Kultura Prawna, 2024
DOI: TBC

Human dignity of unborn child as understood in jurisprudential terms.

Grzegorz Górka

Abstrakt / Abstract

Moment wyznaczenia początku życia ludzkiego budzi coraz większe kontrowersje. Od jakiego etapu właściwie rozpoczyna się życie ludzkie i od kiedy możemy mówić o przysługującej nienarodzonemu jeszcze człowiekowi przyrodzonej godności? W artykule podjęto próbę odpowiedzi na te pytania na podstawie wybranego orzecznictwa oraz prawodawstwa krajowego i międzynarodowego oraz wskazano konsekwencje i zagrożenia prawne oraz etyczne podejmowanych prób przesunięcia tego etapu rozwoju.


The definition of the moment at which we consider that a human life begins is becoming increasingly controversial. At what stage does such a life actually begin, and at what point can we speak of the inalienable dignity to which an as-yet-unborn human being is entitled? In this essay, we will attempt to answer these questions on the basis of a review of the relevant jurisprudence as well as national and international legislation in order to indicate the consequences, as well as the legal and ethical risks, of the ongoing attempts to shift this stage of development to later periods.

Słowa kluczowe: godność ludzka, poczęcie, prawo do życia, Konstytucja RP

Keywords: human dignity, conception, right to life, the Constitution of Poland

1. Introduction

The purpose of this essay is to attempt to determine the legal status of unborn children by analyzing the subject through the lens of the dignity of the human person.

This will be accomplished by presenting a brief definition of precisely what the dignity of the human person means in various contexts, including those of a primarily juridical-legal nature. There will also be an attempt to answer the question of the point to which the inherent and inalienable dignity that is man’s right actually extends.

Important contributions to the development of the concept of human dignity were made not only by lawyers, but also by canonists; thus the topic of dignity as seen by both state and Church regulations will likewise be addressed. Human dignity will be defined and briefly discussed in each of its aspects. This essay will also broadly show the foundations of Polish legislation as well as well-established case law pertaining to the personal dignity of the human being, including that of a conceived child.

These considerations will become the starting point for a detailed evaluation of the legal status of a child in its prenatal stage. This will be accomplished via a discussion of specific regulations, including the Constitutional Tribunal’s judgment on October 22, 2020 (K 1/20), as well as international jurisprudence and law.

In conclusion, the author will point out the arguments in favor of granting the dignity inherent in a human being to an unborn child by, among dothings, citing the need to realize who a human being is, and from when his existence begins – i.e. the process of his existence.

2. What is dignity?

Dignity extended to one’s own as well as other people’s worth is due to every human being without exception. This is a truism with which it is impossible to disagree.

In attempting to answer this question more broadly and thoroughly, however, it is certainly worth referring to Scripture, which reveals the dignity of man: “And God said, Let Us make man in our image, after our likeness.”[1] Thus, in this passage from the very first pages of Scripture the unique dignity of man, who was created in the image and likeness of God[2], is highlighted.

It should be added that the concept of dignity itself does not appear in Genesis, but there is nevertheless a certain idea of the dignity of man that places him higher than all other living organisms[3].

A worthwhile approach is to use the same criterion in assessing the unborn child’s legal subjectivity. When viewed in this way, the conceived child is the subject of those rights and freedoms that apply to it due to the simple fact of its nature as a specific being. “The basic attribute of an unborn chid is existence, which is a constitutive element of human dignity. Thus, the way to guarantee the preservation of its existence is the constitutional right to the legal protection of life.”[4] In the Polish legal system, guarantees for the protection of human dignity are enshrined in its most significant normative – component: the Constitution, which refers to dignity twice. The first occasion is in its Preamble, and the second is in Article 30.[5] This theme will be developed more extensively later in this essay.

3. From when does the life of the human person begin, according to science?

This author infers that life begins at conception and continues until natural death. Human dignity is included in the work in question for the same duration.

Every human life has inherent dignity, and therefore must unquestionably be treated with the respect due to a human person. Any other view of the beginning of human life calls into question the respect for that which is human.[6]

In light of the findings of biological and medical science, however, the subject of when human life begins is not controversial. Science knows the answer to this question: it is determined by when the genome comes into existence. According to one study, “The human genome contains 3.08 billion nucleotides. Their arrangement in sequence comprises the genetic information that is a common feature of the genomes in all humans. However, each human genome has a distinctive set of variations”[7]. Another study further explains: “After fertilization, a mammalian (human) embryo undergoes maternal to zygotic transition (MZT), in which maternally-deposited RNAs are degraded while the zygotic genome begins to be transcribed. Maternal RNA degradation (MRD) and zygotic genome activation (ZGA) are two highly correlated events, which are essential for ensuring the first lineage decisions.”[8]

This process is analogously described by various other scientists as well. According to one: “After fertilization, two specific gametes must fuse to create a brand new organism. Gradually, the genome is activated in a process known as the transition from mother to zygote, which allows the zygotic gene products to replace the maternal supply that initiated its development. This fundamental transition has been extensively documented through decades of research on several model organisms.”[9]

In a book by the prominent Polish gynecologist Prof. Debski entitled Without Anesthesia: How a Human Being Is Created, Debski clearly defines the moment at which a human life is created: he makes it clear that life begins from the moment of conception, when two types of genetic material come together and a new being is created.[10]

Additionally, in Prof. H. Bartel’s book Embryology, Chapter IV is entitled “The Beginning of Prenatal Development in Man: The First Week of Development.” Prof. Bartel emphasizes that “fertilization is the process of the fusion of two cells: the female germ cell (the second-order oocyte) and the male germ cell (the sperm). As a result of this fusion, the genome is transferred from one generation to the next, and the development of the new organism begins.”[11]

It is also worth quoting some similar statements by other professors of medical science:

Dr. Michal Troszynski: “Human development begins with the fusion of two cells - the female gamete, i.e. the egg cell (oocyte), and the male gamete, the sperm, in the action of fertilization.”[12]

Dr. Bogdan Chazan: “A human being is a human being from the moment a male sperm fertilizes a female egg cell,” and “an egg cell is called an embryo from the moment of fertilization, but there is no doubt that it is a human being.”[13]

Dr. A. Ingelman-Sunberg: “The unborn child is a person whom no one knows. He is living being from the moment of conception.”[14]

Dr. Rudolf Klimek: “The life of a human being begins at conception – that is, fertilization - and ends at death.”[15]

4. When does the dignity and life of the human person begin, according to lawyers and case law?

4.1. The Constitution of the Republic of Poland

In the Polish legal order, guarantees for the protection of human dignity are enshrined in the most important source of legal norms: the Constitution. It refers to dignity twice. The first is in its Preamble, where it identifies dignity as a principle, the respect for which must be maintained at the very foundations of the state. At the end of the Preamble, it states that all changes to the country’s Basic Law must only be made “by taking care to preserve the inherent dignity of man.” This is mentioned once again in Article 30 of the Constitution, which states that “Inherent and inalienable[16] human dignity is the source of human and civil liberties and rights. It is inviolable, and its respect and protection is the duty of the public authorities.” This principle expresses the fundamental principle of Western civilization which holds that there is an inalienable value in every human being, which moreover is qualitatively different from that of other entities. Human dignity is thus viewed as a transcendent value, and is a fundamental basis of all other human rights and freedoms (for which it is the source), essential and sacrosanct. In this sense, man always retains his dignity and no form of behavior can be allowed to either deprive him of it or violate it. In another sense, human dignity appears as the “personal dignity” that is closest to what could be referred to as the law of personhood, which encompasses the values of each person’s intellectual life and all those values that define the subjective position of the individual in society. This in turn comprises, according to popular opinion, the respect that is due to each person.

According to the generally accepted view, this is the only right to which it is not possible to apply the principle of proportionality. In this author’s opinion, it does not require normative legitimacy, since its source is not any power that is granted by the state. It is rather fundamental in relation to it and constitutes a kind of opening of the constitutional system to values that fall outside and prior to the law. It is a kind of link, a bridge between the order of natural law and that of positive law, while forming the basis of the entire constitutional order.[17]

The principle of protecting human life at every stage of its development is in turn derived from this, and this has led to, among other things, Article 2 of the Constitution, i.e. the principle underlying a democratic state of law that guarantees the legal protection of a conceived life. This is derived from the community of a people, which is de facto the state, and only people can be the proper subjects of rights and obligations. In turn, Article 38 of the Constitution states, “The Republic of Poland shall ensure to every person the legal protection of life.” This article is inextricably linked to the protection of human dignity, which will be further explicated later in this essay. It also appears at the beginningof the section on freedoms and personal rights, emphasizing its importance. In this author’s opinion, human life is the most important of all the constitutional values, as it determines all other rights and freedoms. Without it, every other right would become secondary. The right to life is inherent, which means that it applies to every human being in its very essence, and in the Basic Law we can only find confirmation of this.

In passing it should also be mentioned that there have been unsuccessful attempts to amend the Constitution by changing Article 38. For example, there was a proposed amendment to change its wording by adding “from the moment of conception” and “from the moment of conception[18] until natural death.”[19]

4.2. Selected relevant Constitutional Tribunal jurisprudence

The protection of human dignity and human life is guaranteed to every human being without exception. It is impossible to alter the value of human life because it is the protection of life as such, regardless of the social value it represents. I would now like to presentspecific examples from case law regarding this value in order to show how it has developed over the course of nearly three decades.

In a ruling of May 28, 1997, K 26/96[20], the Court touched on two issues: the status of the human fetus and limits on the protection of its legal rights, treating as binding those findings from the K 26/96 case. In doing so, the Court stressed that “[t]he constitutionally-protected legal good of human life, including that of life developing in the prenatal stage, cannot be distinguished from each other.” The Court clearly concluded, contrary to the Constitution’s provisions in which there are none indicating the moment when a human life begins, when this occurs, thereby giving the term “human being” a meaning that is derived from the Constitutional Tribunal’s jurisprudence. It was stressed that deprivation of life thus means annihilating a human being, both as a subject of rights and obligations but most importantly meaning human life from its inception. The term “conceived child” was used in the ruling’s text, establishing an equivalence between it and a fully-formed human being who had already been born.

The value of a constitutionally-protected legal good such as human life, which includes life developing in the prenatal stage, is that the two cannot be separated, as there are no legitimate criteria allowing a distinction to be made based on the stage of development of a particular human life. Thus, from the moment of creation human life becomes a constitutionally-protected value. This likewise applies to the prenatal stage. This is clearly articulated: “Human life holds value at every stage of development, and as a value rooted in the Constitution’s provisions, it should be protected by the legislature. The Court further stated that a child not yet born, given that it is a human being with inherent and inalienable dignity, is a subject with a right to life, and the legal system must guarantee due protection to this primary good, without which its personhood would be perverted.”[21]

In connection with this ruling, one can still recall the position which opposed the established fact that “[t]he Republic of Poland guarantees the legal protection of life to every person.” Some judges on the Constitutional Tribunal have opined that Article 38 of the Constitution as it currently stands does not in fact guarantee the protection of life in its prenatal phase, because the constitutional legislature has not explicitly guaranteed it (see the dissenting opinion of Z. Czeszejko-Sochacki to the ruling of the Constitutional Tribunal of May 28, 1997, K 26/96, as well as the dissenting opinions of L. Garlicki and W. Sokolewicz to this ruling).[22] The judges pointed out that there had been an improper evaluation of the grounds of “grave living conditions” and a “difficult personal situation” as being sufficient causes to justify an abortion. However, these same judges further raised the fundamental objections that the principle of the protection of conceived life cannot be derived from the principle of a democratic state of law, that the Court exceeded its competence by stepping into the role of legislator, and that it is not the Court’s place to adjudicate philosophical and ideological issues, but rather to determine whether or not legislation is constitutiona. In this author’s opinion, both of these allegations that are of a constitutional nature as well as that of valuing life and living conditions are inaccurate. First of all, both the right to life and the dignity of the human person are fundamental principles that are derived from the Constitution; therefore, the view that the Court exceeded its competence should be considered to be incorrect. An even more far-reaching view which attempts to attach the value of the life of an unborn child no longer to the life of its mother, but rather to her material or personal situation is, in this author’s opinion, illegal, and hence this ruling supports the majority position. Every case where the legal protection of human life is restricted must be treated as a measure of ultima ratio.

In another judgement (see the judgment of the Constitutional Tribunal of April 4, 2001, K 11/00[23]) the Constitutional Tribunal (following the ruling of the Constitutional Tribunal of March 23, 1999, K 2/98) stated that “the state legislature has rendered dignity as the plane of reference for the entire system of values around which the Constitution is built, and at the same time the foundation of the entire legal order.”[24] Dignity cannot be understood as merely a feature or as a set of rights conferred by the state, since it is in fact fundamental to it. Being the source of rights and freedoms, the concept of dignity determines how the state understands and realizes them.

Turning to the interrelation of articles 30 and 38 of the Constitution, it is in the judgment made on January 27, 2004, K 14/03[25] in which the Court pointed to Article 38 of the Constitution as a sort of corollary to Article 30 of the Basic Law. The Court stressed that “it has a special meaning and thus gives rise to certain consequences for the positive legislator. [...] There can be no protection of human dignity if sufficient grounds for life or the protection of life have not been established. In any case, without the existence (life) of a human being, it makes no sense to claim inherent and inalienable human dignity in a situation where a human being would not be guaranteed the right to life or where sufficient grounds for the protection of life have not been established.”[26]

An interesting ruling which shows that the Polish Tribunal does not differentiate between the various stages of life can also be found in the ruling of September 30, 2008, K 44/07.[27] In this case, a hypothetical scenario involving the hijacking of an airplane by terrorists who would then use it as a weapon against targets on the ground was assessed by the Court, which undertook an assessment by weighing the respective value of the lives of those who might be sacrificed and rescued. The Court finally declared that sacrificing the passengers’ lives in order to save those on the ground is unacceptable and emphasized that even in the event of a declaration of martial law or a state of emergency, “the rights set forth in articles 30 and 38 of the Constitution are not subject to restriction.”

The Court referred in this case to Article 233(1) of the Constitution, which deals with the possibility of limiting the rights of citizens during martial law or a state of emergency. It stated that the prohibition “may not restrict the freedoms and rights as set forth in Article 30, namely the principle of the protection of human dignity.”[28] Article 34 regarding Polish citizenship; Article 36, which concerns the protection of citizens abroad and Article 38, which establishes the principle of the requirement to protect life. In a constitutional system of values, the segregation of human beings into those who possess human dignity and those who lack such dignity, rendering the latter thus undeserving of equal protection when it comes to the value of their lives, cannot be considered acceptable. This emphasizes the strong protection of civil rights and freedoms by the Polish Constitution. In conclusion, the Court stressed that “[f]or the state to give itself the right to kill [passengers], even if this is only done to defend the lives of others, is a denial of this right.”[29]

The protection of conceived life in the prenatal stage is still not absolute, however, due to the increase in abortions that are permitted in certain cases, as established in the judgment of the Constitutional Tribunal on October 22, 2020, K 1/20.[30] From a constitutional standpoint, however, this ruling represents a consistent reference to and continuation of the established jurisprudence of the Constitutional Tribunal, most notably the ruling that is discussed in this essay under K 26/96.

The current wording of the Act of January 7, 1993 focuses on family planning, the protection of the human fetus, and the conditions when abortion is permitted.[31]

In doing so, the Court took into account the fact that this constitutional norm as it already existed in the law did not specify that life must be protected from conception, and therefore allowed for the termination of pregnancy in certain cases (Article 4a (1) of the law in question). This can only be carried out by a doctor in cases where:

● the pregnancy poses a threat to the life or health of the pregnant woman; or
● there is a reasonable suspicion that the pregnancy is the result of a criminal act.[32]

As of January 27, 2021, based on the Constitutional Tribunal’s judgment on October 22, 2020, K 1/20, the possibility for an abortion to be authorized was removed when prenatal tests or other medical grounds indicatated either a high probability of severe and irreversible fetal impairment or that there was an incurable disease threatening the life of the fetus. But attention should also be paid to medical considerations. The Court reiterated its position that human life has value at every stage of development, and that since this value has its origins in the constitutional provisions, it should be protected by the legislature, not only in the form of those laws which guarantee the life of a person as a purely biological individual, but also as a holistic entity for whose existence appropriate social, living, and cultural conditions are likewise necessary, this whole making up the individual’s very existence. In the Court’s opinion, a child who has not yet been born, as a human being who is entitled to inherent and inalienable dignity, is a subject with a right to life, and the legal system under Article 38 of the Constitution must guarantee due protection for this central good, without which this subject would become untenable. The Court quoted from the judgment of the Constitutional Tribunal of March 23, 1999, K 2/98 that “[s]ince a certain objective system of values is derived from the Constitution, it is incumbent on the legislator to legislate in such a way that it is possible to protect and realize those values to the fullest extent possible.”[33]

In the Supreme Court’s judgment of November 21, 2003, V CK 16/03[34] it is emphasized that there is no obligation to terminate a pregnancy resulting from a criminal act when there are medical contraindications to such a procedure. It follows that the protection afforded to aconceived child is therefore still not complete.[35]

5. International law and conventions

Today, the term “person,” when it is used in international treaties, also includes unborn children, and therefore again, human dignity must be protected from its conception[36]. This is not a unanimous view, however. It is worth mentioning here some principles which are of fundamental importance for human and social development. First of all, these are the principles which hold that all people are equal and that discrimination is prohibited. These principles imply, according to this author, the necessity of granting unborn children the attribute of a person as well.

The right to life is a value in itself, although it is also a pillar of the United Nations’ Universal Declaration of Human Rights. The protection of the right to life at in any phase was in fact the main reason why this system of human rights was established after World War II. The Charter of the United Nations[37], the Universal Declaration of Human Rights, the International Covenant on Civil and Fundamental Rights, and the International Covenant on Economic, Social and Cultural Rights became the foundations of the UN’s entire human rights system, outlining the direction that was desired concerning developments to be based on respect for human rights, above all the right to life and the recognition that every human being is born free and equal in dignity[38].

The Introduction to the Universal Declaration of Human Rights, asserts the equality of every human, both in dignity and before the law, “[b]ecause the recognition of the inherent dignity and equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” Its evaluation should refer to the policy of applying the principles that laid the foundations for the creation of the entire system of human rights protection. According to Article 3 of this document, “everyone has the right to life, liberty and security of the person.”[39]

Article 6(1) of the International Covenant on Civil and Fundamental Rights states that “[e]very human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”[40]

Article 11 (1) of the International Covenant on Economic, Social and Cultural Rights emphasizes that “[t]he States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.”[41]

In the proclamation preceding the principles expressed in the Declaration of the Rights of the Child, it is stated that “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth” (Preamble).[42] It can be concluded from this passage that the principles expressed therein likewise apply to children in the prenatal stage of development. The above principle was subsequently reiterated in the Convention on the Rights of the Child.[43]

When it comes to European law, in Article 2 of the European Convention of Human Rights, the protection of life is similarly emphasized: “Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which the penalty is provided by law.”[44]

6. Selected relevant case law of the European Court of Human Rights and the Court of Justice of the European Union

In a judgment of the European Court of Human Rights (ECHR) dated August 27, 2015[45], the applicant underwent in vitro fertilization. Five embryos that had been obtained through in vitro fertilization had been cryopreserved. In deciding not to implant the embryos, the applicant, Ms. Adelina Parrillo, sought rather to donate the embryos for scientific research, and thus contribute to advances in the treatment of difficult-to-treat diseases by submitting an application to the facility where the embryos were stored. The Grand Chamber Court stressed that “[u]nborn human life is no different in essence from born life.”[46] Human embryos must therefore be treated under all circumstances with respect for human dignity. Scientific research on the human genome, particularly in the field of genetics, does not outweigh respect for human dignity. The scientific goal of saving human life does not justify measures that are intrinsically destructive to that life.

In its conclusion, the Court pointed out that in Europe, the Convention establishes an absolute limit on our ability to experiment with human life. Accordingly, it is incompatible with the Convention to produce or use live human embryos for the preparation of embryonic stem cells, or to produce cloned human embryos and then destroy them in order to produce embryonic stem cells. Ms. Parrillo’s claims concerning the “ownership of embryos” results in them being treated as mere things, rather than as persons or subjects of law.[47]

The Court of Justice of the European Union (CJEU) in turn addressed the issue of “use of human embryos for industrial or commercial purposes,” as well as the concepts of a “human embryo” and a “use for industrial or commercial purposes” in its ruling on October 18, 2011 (Oliver Brüstle v. Greenpeace eV[48]). The Court pointed out that “[t]o that effect, as the Court has already held, Article 5(1) of the Directive provides that the human body at the various stages of its formation and development cannot constitute a patentable invention. Additional security is offered by Article 6 of the Directive, which lists as contrary to ordre public or morality, and therefore excluded from patentability, processes for cloning human beings, processes for modifying the germ line genetic identity of human beings and uses of human embryos for industrial or commercial purposes. Recital 38 in the preamble to the Directive states that this list is not exhaustive and that all processes the use of which offends against human dignity are also excluded from patentability (see Netherlandsv Parliament and Council, paragraphs 71 and 76).”[49]

The context and purpose of the directive thus indicate that the EU legislature intended to exclude any possibility that a patent could be granted in a situation where the respect that is inherently due to human dignity could be violated. It follows that the concept of a “human embryo” under Article 6(2)(c) of the Directive must be understood broadly. “Accordingly, any human ovum must, as soon as fertilised, be regarded as a «human embryo» within the meaning and for the purposes of the application of Article 6(2)(c) of the Directive, since that fertilisation is such as to commence the process of development of a human being.”[50]

The Court has recognized the human embryo, from the moment of its creation, as endowed with human dignity – and this is so regardless of how the embryo came into existence. Thus, the embryo enjoys human rights that are derived from its dignity, most important of which is the right to life.

An important ruling from the point of view of the unborn child is also the ECHR’s judgment in Vo v. France. An unborn child died as a result of a medical error. Ms. Vo’s complaint to the Court included an allegation that there had been a violation of the right to life (Article 2 of the Convention) due to a French court’s refusal to recognize that there had been an unintentional deprivation of the life of the unborn child. For this reason, a doctor who had negligently caused the abortion could not be convicted. It was then necessary to examine the scope of protection held by the applicant in trying to establish the doctor’s responsibility for the loss of the child and the possibility of receiving compensation for the abortion. Ms. Vo argued that only a punitive measure could satisfy the requirements of Article 2 of the Convention. The Court did not share this view, recognizing that if a violation of the right to life or physical integrity is not intentional, the obligation to ensure an effective judicial system does not necessarily require a measure in criminal law. In its conclusion, the Tribunal affirmed that “the embryo and/or foetus” are “beginning to receive some protection in the light of scientific progress and the potential consequences of research into genetic engineering, medically assisted procreation or embryo experimentation. At best, it may be regarded as common ground between States that the embryo/foetus belongs to the human race. The potentiality of that being and its capacity to become a person – enjoying protection under the civil law, moreover, in many States, such as France, in the context of inheritance and gifts, and also in the United Kingdom (see paragraph 72 above) – require protection in the name of human dignity, without making it a “person” with the «right to life» for the purposes of Article 2.”[51]

7. Personal dignity and the personality rights of an unborn child

The Constitutional Tribunal stated that “it is unreasonable to devitalize human dignity on account of its developmental stage, since deprivation of life, regardless of its stage, annihilates at the same time the subject to whom this dignity belongs.”[52] As a result, “human life is subject to legal protection, including at the prenatal stage, and the legal subjectivity of the child is inextricably linked to the dignity to which it belongs.”[53] In the literature, as well as in tribunal jurisprudence pertaining to the basis of Article 30 of the Constitution, at least two meanings, or dimensions, of dignity are spoken of: so-called personal dignity and personality rights. Personal dignity cannot be compared to anything, as it is a property of every human being due to its nature as a living being. It accrues to each person individually and cannot be relinquished. Nor can anyone take it away from a person.

The life of an unborn child is an independent constitutional value, and its destruction is so important in social terms that the state, in assuming its duty to preserve its life, must recognize that “termination of pregnancy” is essentially unlawful throughout the prenatal period. Even less must it exclude from the scope of sanctioned norms the life of an unborn person who is deemed “incomplete” for some reason. This would constitute a violation of Article 30 as well as Article 38 of the Constitution.

Finally, we must also distinguish personal dignity. To an external observer, this attribute is the least apparent one, since it is usually only experienced by a specific person. It is linked primarily to the individual’s sensitivities and his sense of personal honor. Personal dignity does not have some external rationale that justifies it, as it is a matter of an individual’s feelings: how he perceives himself, his self-image, and his emotional attitude toward himself. It is similar to personality rights, yet does not always coincide with it: “For someone may have a high opinion of himself, and this conflicts with his mediocre or even depraved personality.”[54]

8. Summary

The personal dignity of an unborn child is beginning to be questioned. Attempts are being made to do this arbitrarily by manipulating the definition of conception, human life, and the very essence of what it means to be human. Sometimes it is determined that a human life begins from the twelfth week, when the fetus obtains a certain consciousness. In certain extreme cases, no such status is granted to a child even in the ninth month of pregnancy. According to this author, however, law cannot be counterfactual. It cannot contradict the findings of the other sciences, because then it loses its intrinsic morality. A zygote must already be considered a human being endowed with inherent and inalienable dignity. This is confirmed by the findings of biology and medicine, which can most reliably determine the beginning of human existence and the moment of its creation. The legal order must therefore guarantee the legal prerequisites for human development in the sense of an unborn’s own right to life. It has been more than a decade since the 2011 CJEU ruling which held that this is relevant to the protection (including its due dignity) of a human embryo. Judges and legislators are now trying to introduce new exceptions that were not provided for in our founding documents. For example, the Human Rights Committee, in its new version of its general comments on the right to life, affirms the right to end the lives of conceived children as well as those who are terminally ill. Citizens are guaranteed a “right to die” – contrary to the original intent of the drafters of the Universal Declaration of Human Rights, for example.[55] A right to abortion is also spoken about. From the point of view of human life, however, dignity is inherent. On the basis of science, it is impossible to say that the dignity of a younger person, an elderly person, or a middle-aged person is any more important than the others. Thus, from the point of view of human rights, an abortion of a younger person is the same as an abortion of an older person. A so-called delayed abortion could conceivably occur at ten weeks or 40 years. It does not matter from the point of view of human rights. It pertains to every human being as a being with specific characteristics, and therefore there can be no right to an abortion, since its effect is always the same: the death of a human being.

Polish legislation has been trying to find solutions to this problem, diminishing the jurisprudence of the Constitutional Tribunal, in particular judgments K 26/96 and K 1/20. It would seem that in times when human rights are held to be more sacrosanct than ever and we are also seeing the emergence of the issue of animal rights, that the role and importance of an unborn person is nevertheless being degraded. An unborn person’s protection, from the point of view of criminal science at least, is not equal to that of a human being after birth. In addition, developments in the sphere of bioethics, which works to weaken the dignity of man – including that of the unborn, reducing them to the role of mere biological material - may be of great concern. Genetic engineering, in vitro abortion, stem cell research, cloning, and euthanasia are now the backdrop of considerations regarding the very essence of human dignity. All of these issues touch on the personal dignity of human beings, including the unborn. Attempts are being made to alter the concept of dignity by departing from its original meaning, invoking it even in the context of abortion or euthanasia in order to justify murder on its grounds. It has been forgotten that the protection of human life is a product of all other rights and freedoms, which in turn leads us to the conclusion that of all the constitutional values, human life deserves the most vigilant protection.

The legal system, which should be particularly clear and lucid, has a problem in defining dignity, as well as dealing with attempts to manipulate the concept itself. In the Polish legal system, however, the Court has repeatedly emphasized that life developing in the prenatal stage cannot be distinguished from the lives of those who have already been born. The basis for this statement is the observation that the development of a person and his personality is a gradual process that extends to the period before as well as after his birth.

References

  1. Gen 1:26–28, Holy Bible, King James Version, https://www.bible.com/bible/1/GEN.1.26-28.KJV, accessed on December 10, 2023; see also K. Szczucki, W poszukiwaniu legitymizacji etycznej zasad odpowiedzialności karnej, Warszawa 2020, p. 67 and next. ↑
  2. A. Zoll, Skąd pochodzi ludzka godność?, https://www.tygodnikpowszechny.pl/skad-pochodzi-ludzka-godnosc-30426, accessed on December 10, 2023; Papieska Komisja Biblijna, „Czym jest człowiek?” (Ps 8,5). Zarys antropologii biblijnej, https://www.vatican.va/roman_curia/congregations/cfaith/pcb_documents/rc_con_cfaith_doc_20190930_cosa-e-luomo_pl.html, accessed on December 10, 2023. ↑
  3. F.J. Mazurek, Godność osoby ludzkiej podstawą praw człowieka, Lublin 2001, p. 21. ↑
  4. J. Roszkiewicz, Prawo nasciturusa do życia w prawie konstytucyjnym i prawie międzynarodowym, „Forum Prawnicze” 2017, No. 4(42), p. 100. All translations are from the author – ed. note. ↑
  5. The Constitution of the Republic of Poland of April 2nd, 1997 (Journal of Laws, No. 78, item 483). ↑
  6. The United States Conference of Catholic Bishops, Respect for Unborn Human Life: The Church’s Constant Teaching, https://www.usccb.org/issues-and-action/human-life-and-dignity/abortion/respect-for-unborn-human-life, accessed on January 1, 2024. ↑
  7. K. Nabielec, Zmienność w ludzkim genomie, https://e-biotechnologia.pl/artykuly/zmiennosc-w-ludzkim-genomie/, accessed on August 23, 2024. ↑
  8. S. Yuan et al., Human zygotic genome activation is initiated from paternal genome, „Cell Discovery” 2023, Vol. 9, https://doi.org/10.1038/s41421-022-00494-z. ↑
  9. K.N. Schulz, M.M. Harrison, Mechanisms regulating zygote genome activation, „Nature Reviews Genetics” 2019, Vol. 20, https://doi.org/10.1038/s41576-018-0087-x. ↑
  10. M. Dębska, R. Dębski, M. Rigamonti, Bez znieczulenia. Jak powstaje człowiek, Warszawa 2014. ↑
  11. H. Bartel, Embriologia, Warszawa 2020, p. 77 and next. See also P. Svoboda, Mammalian zygotic genome activation, „Seminars in Cell & Developmental Biology” 2018, Vol. 84, https://doi.org/10.1016/j.semcdb.2017.12.006. ↑
  12. M. Troszyński, Położnictwo – ćwiczenia. Podręcznik dla studentów medycyny, Warszawa 2003, p. 69. ↑
  13. B. Chazan, „Służba Życiu. Zeszyty Problemowe” 2005, No. 2, p. 1. ↑
  14. A. Ingelman-Sunberg, quoted in: Annual Report of The Inter-American Commission on Human Rights, 1980–1981. Inter-American Commission of Human Rights, Resolution Nº 23/81, Case 2141 (United States), Oea/Ser.L/V/Ii.54, Doc. 9 Rev. 1, October 16, 1981, Dissent of dr. Luis Demetrio Tinoco Castro, https://www.cidh.org/annualrep/80.81eng/USA2141b.htm, accessed on December 17, 2023. ↑
  15. M.M. Tytko, Obrona życia ludzkiego i człowieczeństwa osób niepełnosprawnych w okresie prenatalnym na łamach periodyku „Służba Życiu” [in:] Rodzina. Powołanie – zadania – zagrożenia. Praca zbiorowa, ed. J. Zimny, https://ruj.uj.edu.pl/xmlui/bitstream/handle/item/6394/tytko_obrona_zycia_ludzkiego_i_czlowieczenstwa_osob_niepelnosprawnych.pdf, accessed on December 17, 2023. ↑
  16. A natural right means that a person receives it at the moment of becoming a human being, while an inalienable right is one that a person cannot renounce. Inalienable, on the other hand, also means that is impossible to deprive another human being of his or her dignity, or to limit it. See System ochrony praw człowieka w RP, ed. H. Zięba-Załucka, Rzeszów 2015, p. 20. ↑
  17. M. Granat, Godność człowieka z art. 30 Konstytucji RP jako wartość i jako norma prawna, „Państwo i Prawo” 2014, No. 8, p. 3–4. ↑
  18. Sejm print No. 933, https://orka.sejm.gov.pl/Druki5ka.nsf/0/79EB9DAFA9F1849FC12571F60033806C/$file/993.pdf, accessed on 17 December 2023. See also: R. Trzaskowski, Ocena cywilnoprawnych konsekwencji zmiany art. 38 Konstytucji RP proponowanej w projekcie zawartym w druku sejmowym nr 993 [in:] Biuro Analiz Sejmowych, Konstytucyjna formuła ochrony życia. Seminarium Biura Analiza Sejmowych, 2007, https://orka.sejm.gov.pl/WydBAS.nsf/0/EF539D2C23CBE8ADC125726F003C2FD0/$file/993%20Konstytucji.pdf, accessed on December 17, 2023, p. 35. ↑
  19. R. Grabowski, Opinia prawna do projektu ustawy o zmianie Konstytucji RP z uwzględnieniem pytania, czy możliwa jest inkorporacja art. 4a ust. 1 ustawy o planowaniu rodziny, ochronie płodu ludzkiego i warunkach dopuszczalności przerywania ciąży do art. 38 Konstytucji [in:] Biuro Analiz Sejmowych, Konstytucyjna formuła ochrony życia. Seminarium Biura Analiza Sejmowych, 2007, https://orka.sejm.gov.pl/WydBAS.nsf/0/EF539D2C23CBE8ADC125726F003C2FD0/$file/993%20Konstytucji.pdf, accessed on December 17, 2023, p. 33. ↑
  20. Judgement of the Constitutional Tribunal of May 28, 1997, K 26/96; OTK 1997, No. 2, Item 19. As a result of this ruling, among other things, the premise set forth in Article 4a (1) (4) of the Family Planning Law, which allowed the termination of pregnancy in cases where “the pregnant woman is in grave living conditions or difficult personal circumstances” was removed from the text of the law. Given this fact, as well as its clear declaration that life shall be protected from conception, this ruling should be called a landmark for the defense of unborn life. ↑
  21. Judgement of the Constitutional Tribunal of May 28, 1997, K 26/96. ↑
  22. L. Bosek, Opinia „Czy sprecyzowanie konstytucyjnej ochrony życia przez słowa «od momentu poczęcia do naturalnej śmierci» obejmie ochronę życia ludzkiego powstającego w zapłodnieniu pozaustrojowym oraz ochronę przeciwko interwencji w genomie ludzkim zmierzającej do osiągnięcia zmian genetycznych?” [in:] Biuro Analiz Sejmowych, Konstytucyjna formuła ochrony życia. Seminarium Biura Analiza Sejmowych, 2007, https://orka.sejm.gov.pl/WydBAS.nsf/0/EF539D2C23CBE8ADC125726F003C2FD0/$file/993%20Konstytucji.pdf, accessed on December 17, 2023, p. 64. ↑
  23. Judgment of the Constitutional Tribunal of April 4, 2001, K 11/00, OTK 2001, No. 3, item 54. ↑
  24. Ibidem. ↑
  25. Judgement of the Constitutional Tribunal of January 27, 2004, K 14/03; OTK-A 2004, No. 1, item 1. See also B. Zalewski, Conceived child as a subject of right to life, „Kultura Prawna” 2018, Vol. 1, No. 2. ↑
  26. Judgement of the Constitutional Tribunal of January 27, 2004, K 14/03. ↑
  27. Judgement of the Constitutional Tribunal of September 30, K 44/07, 1997, OTK-A 2008, No. 7, item 126. ↑
  28. Ibidem. ↑
  29. Ibidem. ↑
  30. Judgement of the Constitutional Tribunal of October 22, 2020, K 1/20, OTK ZU 2021, item 4. ↑
  31. U. Drozdowska, Wykładnia art. 4a ust. 1 pkt 2 ustawy o planowaniu rodziny, ochronie płodu ludzkiego i warunkach dopuszczalności przerywania ciąży w świetle orzecznictwa Sądu Najwyższego i poglądów doktryny prawa, „Miscellanea Historico-Iuridica” 2016, Vol. 15, Issue 1, p. 301. ↑
  32. Article 4a of the Act of January 7, 1993 on family planning, protection of the human fetus, and the conditions of permissibility of abortion (Journal of Laws of 2022, item 1575). ↑
  33. Grounds for the Judgement of the Constitutional Tribunal of October 22, 2020, K 1/20 published in: Announcement of the Prime Minister of January 27, 2021, on the publication of the grounds for the judgment of the Constitutional Tribunal in the case ref. no. K 1/20, together with dissenting opinions to the judgment and dissenting opinions to its grounds (Polish Monitor of 2021 item 114). ↑
  34. The Supreme Court’s judgment of November 21, 2003, V CK 16/03, OSNC 2004, No. 6, item 104. ↑
  35. The fruit of increased public awareness regarding the pro-life position among the representatives of the Polish nation in the Third Republic’s Parliament was an attempt to strengthen the protection of every human being once he has been conceived but not yet born. Realistically, Poland has so far failed to introduce domestic legal solutions that would effectively protect the lives of its citizens from their natural conception to their natural death. After all, the amendment to the Constitution on the protection of human life from conception to natural death which was submitted by national-Catholic circles (including Marek Jurek) was defeated in a vote of 13 April 2007 in the National Assembly. It is worth looking at the results of these most important votes of the National Assembly of the Third Republic, which also squandered the chance to establish effective protection for children conceived with disabilities or genetic defects. See more M.M. Tytko, op. cit. ↑
  36. B. Obelenienė, A. Narbekovas, Human dignity as a universal moral dimension of the preparation of youth for marriage and family life [in:] Strengthening Families, eds. J. Stala, J. Garmaz, Kraków 2016, p. 104. ↑
  37. Charter of the United Nations, 1945, https://treaties.un.org/doc/Publication/CTC/uncharter-all-lang.pdf, accessed on August 26, 2024. ↑
  38. K. Drewniowska, Systemy ochrony praw człowieka [prezentacja do przedmiotu Prawa człowieka i systemy ich ochrony, Stacjonarne studia prawa 2020/2021], https://prawo.uni.wroc.pl/sites/default/files/students-resources/PRAWA%20CZŁOWIEKA%20SSP%20-%20SYSTEMY%20OCHRONY%20PRAW%20CZŁOWIEKA.pdf, accessed on August 26, 2024. ↑
  39. Universal Declaration of Human Rights, 1948, https://www.ohchr.org/en/human-rights/universal-declaration/translations/English, accessed on December 10, 2023. ↑
  40. International Covenant on Civil and Political Rights, https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights, accessed on December 17, 2023. ↑
  41. International Covenant on Economic, Social and Cultural Rights, https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-economic-social-and-cultural-rights, accessed on August 26, 2024. ↑
  42. Declaration of the Rights of the Child, 1959, https://digitallibrary.un.org/record/195831?v=pdf, accessed on January 8, 2024. ↑
  43. K. Wiak, Ochrona dziecka poczętego w polskim prawie karnym, Lublin 2001, p. 92. ↑
  44. European Convention of Human Rights, 1950, https://www.echr.coe.int/documents/d/echr/Convention_ENG, accessed on January 8, 2024. ↑
  45. Judgement of the European Court of Human Rights of August 27, 2015, Parrillo v. Italy, Application no. 46470/11, https://hudoc.echr.coe.int/eng#{%22appno%22:[%2246470/11%22],%22itemid%22:[%22001-157263%22]}, accessed on January 8, 2024. ↑
  46. Ibidem. ↑
  47. Ibidem. ↑
  48. Judgement of The Court of Justice of the European Union of October 18, 2011, C-34/10 Oliver Brüstle v. Greenpeace eV, https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:62010CJ0034, accessed on January 8, 2024. See more M. Muzalewski, Wyrok Trybunału Sprawiedliwości Unii Europejskiej z 18.10.2011 r. w sprawie Brüstle, C-34/10, „Kwartalnik Prawa Publicznego” 2012, 12(2). ↑
  49. Oliver Brüstle v. Greenpeace eV. ↑
  50. Ibidem. ↑
  51. Judgement of the European Court of Human Rights of July 8, 2004, Vo v. France, Application no. 53924/00, https://hudoc.echr.coe.int/eng#{%22appno%22:[%2253924/00%22],%22itemid%22:[%22001-61887%22]}, accessed on January 8, 2024. ↑
  52. Grounds for the Judgement of the Constitutional Tribunal of October 22, 2020, K 1/20. ↑
  53. Ibidem. ↑
  54. G. Hołub, Godność osobowa dziecka nienarodzonego [in:] Od bólu po stracie do nadziei życia. Pogrzeb dziecka poronionego, eds. J. Dziedzic, P. Guzdek, Kraków 2013. ↑
  55. See also M. Kulczyk, G. Puppinck, Godność życia ludzkiego w świetle Powszechnej Deklaracji Praw Człowieka, „Kultura Prawna” 2018, Vol. 1, No. 2. ↑

Bibliography

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  12. Kulczyk M., Puppinck G., Godność życia ludzkiego w świetle Powszechnej Deklaracji Praw Człowieka, „Kultura Prawna” 2018, Vol. 1, No. 2.
  13. Mazurek F.J., Godność osoby ludzkiej podstawą praw człowieka, Lublin 2001.
  14. Muzalewski M., Wyrok Trybunału Sprawiedliwości Unii Europejskiej z 18.10.2011 r. w sprawie Brüstle, C-34/10, „Kwartalnik Prawa Publicznego” 2012, 12(2).
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  17. Papieska Komisja Biblijna, „Czym jest człowiek?” (Ps 8,5). Zarys antropologii biblijnej, https://www.vatican.va/roman_curia/congregations/cfaith/pcb_documents/rc_con_cfaith_doc_20190930_cosa-e-luomo_pl.html, accessed on December 10, 2023.
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  22. Svoboda P., Mammalian zygotic genome activation, „Seminars in Cell & Developmental Biology” 2018, Vol. 84, https://doi.org/10.1016/j.semcdb.2017.12.006.
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  26. The United States Conference of Catholic Bishops, Respect for Unborn Human Life: The Church’s Constant Teaching, https://www.usccb.org/issues-and-action/human-life-and-dignity/abortion/respect-for-unborn-human-life, accessed on January 1, 2024.
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Legal acts:

  1. The Constitution of the Republic of Poland of April 2nd, 1997 (Journal of Laws, No. 78, item 483).
  2. Act of January 7, 1993 on family planning, protection of the human fetus, and the conditions of permissibility of abortion (Journal of Laws of 2022, item 1575).
  3. Charter of the United Nations, 1945, https://treaties.un.org/doc/Publication/CTC/uncharter-all-lang.pdf, accessed on August 26, 2024.
  4. Universal Declaration of Human Rights – English, 1948, https://www.ohchr.org/en/human-rights/universal-declaration/translations/English, accessed on December 10, 2023.
  5. European Convention of Human Rights, 1950, https://www.echr.coe.int/documents/d/echr/Convention_ENG, accessed on January 8, 2024.
  6. Declaration of the Rights of the Child, 1959, https://digitallibrary.un.org/record/195831?v=pdf, accessed on January 8, 2024.
  7. International Covenant on Civil and Political Rights, 1966, https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights, accessed on December 17, 2023.
  8. International Covenant on Economic, Social and Cultural Rights, 1966, https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-economic-social-and-cultural-rights, accessed on August 26, 2024.
  9. Convention on the Rights of the Child, 1989, https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-rights-child, accessed on August 26, 2024.

Judgements:

  1. Judgement of the Constitutional Tribunal of May 28, 1997, K 26/96; OTK 1997, No. 2, item 19.
  2. Judgment of the Constitutional Tribunal of April 4, 2001, K 11/00, OTK 2001, No. 3, item 54.
  3. Judgement of the Constitutional Tribunal of January 27, 2004, K 14/03; OTK-A 2004, No. 1, item 1.
  4. Judgement of the Constitutional Tribunal of September 30, 2008, K 44/07; OTK-A 2008, No. 7, item 126.
  5. Judgement of the Constitutional Tribunal of October 22, 2020, K 1/20, OTK ZU 2021, item 4.
  6. The Supreme Court’s judgment of November 21, 2003, V CK 16/03, OSNC 2004, No. 6, item 104.
  7. Judgement of The Court of Justice of the European Union of October 18, 2011, C-34/10 Oliver Brüstle v. Greenpeace eV, https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:62010CJ0034, accessed on January 8, 2024.
  8. Judgement of the European Court of Human Rights of July 8, 2004, Vo v. France, Application No. 53924/00, https://hudoc.echr.coe.int/eng#{%22appno%22:[%2253924/00%22],%22itemid%22:[%22001-61887%22]}, accessed on January 8, 2024.
  9. Judgement of the European Court of Human Rights of August 27, 2015, Parrillo v. Italy, Application no. 46470/11, https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-157263%22]}, accessed on 8 January 2024.

Other documents and official letters:

  1. Announcement of the Prime Minister of January 27, 2021, on the publication of the grounds for the judgment of the Constitutional Tribunal in the case ref. no. K 1/20, together with dissenting opinions to the judgment and dissenting opinions to its grounds (Polish Monitor of 2021 item 114).
  2. Annual Report of The Inter-American Commission on Human Rights, 1980–1981. Inter-American Commission of Human Rights, Resolution Nº 23/81, Case 2141 (United States), Oea/Ser.L/V/Ii.54, Doc. 9 Rev. 1, 16 October 1981, https://www.cidh.org/annualrep/80.81eng/USA2141b.htm, accessed on 17 December 2023.