Abortions in Ukraine: what does the state guarantee? - Jurfem

Abortions in Ukraine: what does the state guarantee?

INTRODUCTION

In the previous analytical material, it was mentioned that all the countries of the world can be conventionally divided into three categories, depending on the legislative regime regulating the women’s right to abortion. Ukraine belongs to the category of states where abortions are allowed at a woman’s request. This means that in order to access an abortion service, a woman just has to go to an appropriate health care centre. However, there are certain conditions when this service is available. Thus, according to Ukraine’s legislation, abortions are possible at a woman’s request when a woman is pregnant for up to 12 weeks. After 12 to 22 weeks, pregnancy can be terminated only according to a number of conditions specified in the legislation.

A BIT OF STATISTICS

Throughout 2019 almost 75 000 women had an abortion in Ukraine. According to the Ministry of Healthcare of Ukraine (MHC), the number of abortions in 2019 reached 74 606, including 727 abortions experienced by minor individuals.

In 2018, 46 552 abortions were performed in Ukraine, including 400 abortions experienced by minor individuals.

61 048 abortions were recorded in 2020, including 42 044 abortions experienced by women aged 20 to 34, 1 835 by women aged 18 to 19, and 538 by women aged 15 to 17. Girls under 14 had 35 abortions.

WHAT STATUTES REGULATE ABORTIONS IN UKRAINE?

Part 6 of Article 281 of the Civil Code of Ukraine provides that artificial termination of pregnancy can be carried out at a woman’s request when a woman is up to twelve weeks pregnant and in cases stipulated by law – up to twenty-two weeks pregnant. This provision is also stipulated by Article 50 of the Law of Ukraine “Fundamental Healthcare Legislation of Ukraine”.

Article 284 of the Civil Code of Ukraine and the Law of Ukraine “Fundamental Healthcare Legislation of Ukraine” indicate that the provision of medical assistance to an individual who has reached the age of 14 is carried out upon her consent.

According to Order No. 423 of the Ministry of Healthcare, the operation (procedure) of the artificial termination of an unwanted pregnancy in a pregnant woman under the age of 14 is carried out at a request of her legal representatives and with the consent of a minor girl

Resolution No. 144 of the Cabinet of Ministers of Ukraine dated  February 15, 2006 “On the Implementation of Article 281 of the Civil Code of Ukraine” lists the grounds for an abortion in a period between 12 and 22 weeks of pregnancy. These grounds include:

  • Some infectious and parasitic diseases (rubella, HIV – stage IV infection, tuberculosis);
  • Neoplasms (malignant neoplasms of any location);
  • Diseases of the endocrine system (severe form of diabetes, hyperparathyroidism, hyperaldosteronism);
  • Mental and behavioural disorders (vascular dementia, organic amnestic syndrome, not caused by alcohol or other psychotropic substances);
  • Diseases of the nervous system (Alzheimer’s disease, muscular dystrophy);
  • Diseases of the circulatory system (secondary hypertension, heart failure);
  • Respiratory diseases (chronic respiratory failure);
  • Diseases of digestive organs (esophageal obstruction, liver cirrhosis);
  • Diseases of the genitourinary system (hydronephrosis);
  • Diseases of the musculoskeletal system and connective tissue;
  • Birth defects, deformities and chromosomal anomalies;
  • The age of the pregnant woman is less than 15 years or more than 45 years;
  • Pregnancy due to rape;
  • Disability during pregnancy.

It should be noted that the law provides for restrictions on abortion or sterilization. In particular, Article 134 of the Criminal Code of Ukraine requires punishment for the following actions:

  • abortion by a person having no special medical education;
  • forced abortion without the victim’s consent;
  • illegal abortion causing a long-term health disorder, infertility or death of the victim;
  • forced sterilization without the victim’s consent.
LEGISLATIVE PROPOSALS TO REGULATE ABORTIONS IN UKRAINE

In the Ukrainian parliament, draft laws on abortions are put to vote from time to time. However, they do not receive the support of parliamentarians.

  1. For example, in 2017, Draft law No. 6239 dated March 27, 2017 was submitted to the Verkhovna Rada of Ukraine proposing to prohibit the artificial termination of pregnancy, except for cases established by the applicable legislation of Ukraine. Consistent with this draft law, abortions should be allowed only in three cases: firstly, if there are medical indications regarding the pathology of the foetus, incompatible with the life of the child after birth; secondly, if pregnancy poses a direct threat to the life of the pregnant woman; and thirdly, if pregnancy occurred as a result of rape. It is separately noted that the mentioned circumstances must be certified by a special commission made up of relevant experts.
  2. It should be noted that similar draft laws have already been submitted to the Verkhovna Rada of Ukraine for consideration, namely: Draft law No. 10170 dated March 12, 2012 and Draft law No. 2646-1 dated  April 05, 2013. In particular, Draft law 10170 proposes to prohibit abortions in order to protect the interests of a conceived, but not born baby. According to the authors of this draft law, an unborn baby has a right to life from the moment of his/her conception and cannot be deprived of it. Furthermore, the authors of the draft law proposed to amend Article 134 of the Criminal Code of Ukraine as follows: “The artificial termination of pregnancy or the artificial termination of pregnancy in cases permitted by law by a person having no special medical education…” is prohibited. Draft law 2646-1 was improved and the proposed amendments to Article 134 of the Criminal Code of Ukraine were revised to read as follows: “1. The artificial termination of pregnancy (abortion), except as otherwise provided by law, is punishable … 2. If the artificial termination of pregnancy (abortion) in cases provided for by the applicable legislation is carried out by a person having no special medical education, this person is subject to imprisonment for a period of up to seven years”. Analysing these draft laws, I would like to point out that such legislative initiatives are discriminatory against women and violate their reproductive rights, since a decision of whether to have an abortion must be made by a woman herself. After all, as it was already been mentioned on multiple occasions, the ban on abortions leads to an increase in the number of the so-called “underground” abortions and abortions performed by unqualified persons, which, in turn, leads to the loss of women’s reproductive capacity and to maternal mortality, and this ban does not improve the demographic situation in Ukraine. Ineffectiveness of the ban on the artificial termination of pregnancy in order to improve the demographic situation in Ukraine is emphasized in the conclusion of the Healthcare Committee dated  June 15, 2018. In particular, it refers to the experience of the former USSR where a ban on abortions in 1936 – 1955 led to a 70% increase in the death rate caused by “underground” abortions and an increase in the number of murders of new-born babies. Poland’s experience should be mentioned as well. According to unofficial data made available by Polish organizations, due to a ban on abortions Polish women get from 100 to 200 thousand illegal abortions annually, 10% to 15% of which are performed abroad – mainly in Ukraine, Germany and Austria.

When it comes to the interests of a conceived, but not born baby, which may be violated when a woman has an abortion, this is quite a controversial issue. In this case, it is necessary to keep in mind when a baby comes to have civil rights and duties, and in particular the right to life. The Convention on the Protection of Human Rights and Fundamental Freedoms does not regulate the issue of when the right to life comes to exist or the legal protection of life comes into existence, thereby providing every state with autonomy in solving this issue. However, according to the world practice and the practice of the ECHR, the moment of a person’s physical birth is the beginning of the person’s life, and not his/her conception. Thus, the termination of pregnancy by abortion, in my opinion, is not a violation of the right to life.

As regards changes to the Criminal Code of Ukraine concerning criminal liability for abortions, the provision proposed by Draft law 10170 is laid down in such a way that practically any termination of pregnancy is criminalized. It is about the fact that one form of the objective side of “the artificial termination of pregnancy” encompasses the other form of “the artificial termination of pregnancy in cases permitted by law by a person having no special medical education”. In other words, the draft law allows abortions “in cases specified by law”, and the proposed changes to the Criminal Code of Ukraine make abortions impossible. The proposed text contains internal contradictions and also contradicts the provisions of this draft law, which allows abortions in certain cases defined by law.

The aforementioned draft laws were rejected or dismissed due to such initiatives having no support in the parliament and in society as a whole.

3. Another draft law submitted to the Verkhovna Rada of Ukraine concerns the right of a doctor to refuse to perform an abortion due to moral reasons (Draft law No. 6747 dated  July 17, 2017). This draft law proposed to make amendments to the Civil Code of Ukraine and the Law of Ukraine “Fundamental Healthcare Legislation of Ukraine”. In particular, it proposed to enshrine the right of a medical worker to refuse to plan or participate in the artificial termination of pregnancy due to his/her moral or religious beliefs. The authors of the draft law proposed the following conditions to be met in order for the doctor to be able to exercise this right: the doctor must inform a woman of his refusal as soon as possible, provide all the necessary information about the operation and its consequences, as well as about a medical worker or a health care institution where she can receive appropriate medical services. The draft law was returned for revision due to a number of comments. So today the refusal of a doctor to carry out the artificial termination of pregnancy for moral reasons, including worldview and religious beliefs, is not provided for by law. The Verkhovna Rada of Ukraine Healthcare Committee emphasized in its conclusion that when deciding on whether to allow a medical worker to refuse to perform an abortion for moral reasons, there is a need to maintain a balance between the patient’s right to medical care and the free choice of a doctor and the right of a medical worker as an individual to freedom of conscience and certain religious beliefs. I completely agree with this position because “the right of one person ends where the right of another begins”. The mentioned rights of a patient and the rights of a doctor are established at a legislative level. Consistent with Article 38 of the Fundamental Healthcare Legislation of Ukraine, every patient who has reached the age of fourteen and who requests medical assistance has the right to freely choose a doctor, if the latter can offer his services. The right to freedom of conscience and religion is enshrined in Article 35 of the Constitution of Ukraine and Article 3 of the Law “On Freedom of Conscience and Religious Organizations”, which states that every citizen in Ukraine is guaranteed a right to freedom of conscience, which includes the freedom to have, follow and change a religion or belief of one’s choice and the freedom to practice a religion individually or together with others or not to practice a religion. However, this article provides that the freedom of practicing a religion or belief is subject only to restrictions that are necessary to protect public safety and order, the life, health and morals, as well as the rights and freedoms of other citizens.

If we take into account the right of a doctor to refuse to perform an abortion as proposed by this draft law, the question arises whether in this case the patient’s right to receive qualified medical care and the free choice of a doctor is not violated. When solving this problem, it is necessary, first of all, to determine whose interests are most violated, who will suffer the most. I believe that the interests of a woman who wants to have an abortion are the most unprotected, since this draft law does not ensure to a woman the obligatory provision of assistance by another qualified specialist in the event of a doctor’s refusal to provide an abortion service. In this case, time is wasted to go to and consult a new doctor while the pregnancy period keeps on increasing. At the same time, international regulation offers a way to solve this problem: according to the Statement on Abortion, which was adopted at the 24th World Medical Assembly in 1970, a medical worker who, because of his views, cannot prescribe and perform an abortion, may refuse to carry out this operation, making sure that medical care continues to be provided by qualified colleagues. However, the approaches proposed by the authors of the draft law did not find support among the lawmakers and, accordingly, the draft law lost its relevance.

One more legislative initiative should be noted, which, as of today, has already become a law. In 2018, the Verkhovna Rada of Ukraine adopted a very important law for Ukraine “On Amendments to the Criminal Code and the Criminal Procedure Code of Ukraine in Order to Implement the Provisions of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence”, which, among other things, introduces liability for forcing an abortion without the victim’s consent. Prior to this, the Criminal Code of Ukraine contained a provision on liability for an abortion being performed by a person having no special medical education, and the victim’s consent was not taken into account. This is an important point because before the amendments to Article 134 of the Criminal Code of Ukraine there was no criminal offence such as a forced abortion. And in practice, this was manifested in the following way: only the subject of the criminal offence was taken into account, that is, a person having no special medical education when qualifying the offence. If the abortion operation was carried out without the victim’s consent, it was considered that this constituted a criminal offence under Article 121 of the Criminal Code of Ukraine “Intentional grievous bodily harm that caused the termination of pregnancy”.

Thus, after implementing the provisions of the Istanbul Convention into the Ukrainian legislation, Article 134 of the Criminal Code of Ukraine was reworded permitting to qualify forced abortions as a separate criminal offence.

In 2019, Draft law No. 1154 was submitted to the Verkhovna Rada of Ukraine for consideration, which proposes to amend Article 134 of the Criminal Code of Ukraine by toughening criminal liability for illegal abortions or sterilization. However, this draft law was also returned for revision.

CERTAIN PROBLEMS IN LEGISLATIVE REGULATION OF ABORTIONS

As it was mentioned above, consistent with Order No. 423 of the Ministry of Healthcare of Ukraine, an operation (procedure) involving the artificial termination of pregnancy of a pregnant woman under the age of 14 or of an incapacitated person is carried out at the request of her legal representatives, and the artificial termination of pregnancy of a pregnant woman, who has reached the age of 14, is carried out upon her consent.

Clause 2 of Article 284 of the Civil Code of Ukraine states that an individual who has reached the age of fourteen and who has requested medical assistance has the right to choose a doctor and treatment methods in accordance with his/her recommendations, and consistent with Clause 3 of Article 284 of the Civil Code of Ukraine, medical assistance to an individual who has reached the age of fourteen is provided upon his/her consent.

Therefore, a woman who has reached the age of 14 can go on her own to a health care institution for an abortion service without the consent of her parents.

However, the question arises whether a doctor has to inform the parents of the minor girl about her decision to have an abortion or about an already performed abortion and her state of health.

Ukraine’s legislation does not clearly define the procedure for medical supervision of a minor girl before and after an abortion. It is also unclear whether a doctor should inform the parents of the minor girl about her decision to have an abortion or about an already performed abortion. On the one hand, legislation states that a child who has reached the age of 14 has a right not to tell her parents about her state of health, but on the other hand, we have a provision requiring parents to take care of their child’s state of health.

Well, there is Article 285 of the Civil Code of Ukraine, which provides that parents, adoptive parents and guardians have a right to information about the child’s health. This provision is legally enshrined in Article 39 of the Law of Ukraine “Fundamental Healthcare Legislation of Ukraine”. In addition, the Family Code of Ukraine also contains provisions that parents must take care of their child’s health, physical, spiritual and moral development. That is, the Civil Code of Ukraine provides that parents have a right to know about their child’s health, and consistent with Part 2 of Article 150 of the Family Code of Ukraine, parents must take care of their child’s health. Parents receiving information about their children’s health is a necessary condition for them to fulfill their duty to take care of their child’s health, as the Family Code of Ukraine imposes this obligation on parents.

The answer to this question remains open. On the one hand, according to the law, the minor girl’s pregnancy may be terminated upon her consent. However, in practice, doctors often require permission from parents or guardians. This is due to claims by parents against doctors who performed medical interventions, as well as a growing number of lawsuits filed by such parents against doctors who performed abortions.

How to solve these issues? In my opinion, we need legislative regulation of pregnancy termination in case of girls aged 14 to 18, to determine the procedure for exercising the right of parents to receive information about the health of their child, and, at the same time, to permit a minor girl to exercise her right to medical intervention.

Conclusion

To sum up, Ukrainian legislation is quite favourable for women wishing to have an abortion. The artificial termination of pregnancy can be carried out when a woman wishes it and when she is pregnant for up to twelve weeks, and in cases provided for by law – for up to twenty-two weeks.

Although draft laws banning abortions are periodically submitted to the Verkhovna Rada of Ukraine, they do not receive the support of the parliament, which is a positive point. This shows that our society is gradually beginning to realize the importance of this problem and stops believing that banning abortions can help deal with the demographic crisis.

However, there are certain problems when it comes to abortion regulation. In particular, they concern the parent’s consent to a minor girl’s abortion. Therefore, this issue requires a detailed study and legislation improvement.

I would also like to highlight the problem of a doctor’s refusal to perform an abortion for moral reasons or religious beliefs. The idea of creating a register of medical workers objecting to certain types of medical interventions for moral reasons as proposed in the conclusion of the Verkhovna Rada of Ukraine Healthcare Committee seems appropriate. In this way, a person going to the relevant health care facility for an abortion service will be able to obtain information in advance about who can or can’t provide such services. This will help protect the legally guaranteed rights of patients to receive medical care and the rights of doctors to freedom of conscience and religious beliefs. However, as of now, given that the legislation does not provide for a doctor’s right to refuse to perform the artificial termination of pregnancy due to his/her worldview or religious beliefs, we must make sure that, for these reasons, medical professionals could not unreasonably violate the right to an abortion of persons wishing to exercise this right.