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Fading rights: The case of Ukrainian refugees & abortion rights in Poland

Content warning: this article discusses sexual violence, including rape

Protest against abortion restriction in Kraków. Photo by Silar. Licensed under Creative Commons CC BY-SA 4.0.

Since February 24, UNHCR estimates that over 6,5 million people have fled Ukraine as a result of Russia’s invasion. This evacuation has come to be dubbed “the fastest exodus of refugees this century”. As Ukraine does not allow most men between the ages of 18 and 60 to leave the country due to military conscription, women and children constitute the majority of those fleeing the war - almost 90% of those displaced. Whilst the conflict wears on, the vulnerability of women and girls is being exacerbated in tandem with growing humanitarian needs. Even before the conflict, gender-based violence has been a severe problem for millions of women and girls in the country, especially for those who have lived in the shadow of the ongoing conflict in eastern Ukraine for the past eight years. According to a UNFPA survey published in 2019, 67% of women in the nation had experienced some form of abuse since the age of 15, with one in every three reporting physical or sexual violence. In comparison, in the EU, since the age of 15, the European Union Agency for Fundamental Rights estimates that one in every five women has been subjected to unwanted touching, embracing, or kissing, and 6% of all women have been subjected to this form of harassment at least six times.

Most of those fleeing due to Russia’s invasion are bound for Poland, the neighbouring country which has received the highest intake of refugees with over 3,5 million people having crossed its borders since the start of the war. Poland is also the country which has had one of the most stringent historical records when it comes to reproductive and sexual rights. Based on the reporting of several instances of sexual violence linked to the ongoing conflict in Ukraine, the contentious topic of abortion in Poland has resurfaced, both nationally and internationally. While exact figures are still unknown, Ukraine's human rights ombudsman, Lyudmyla Denisova, stated that her office received 400 accusations of rape by Russian forces in the first two weeks of April 2022 alone. Since the beginning of the invasion, there has been an alarmingly high prevalence of sexual violence reports, alongside summary killings and torture employed against people in Russian-controlled regions.

What are the expected realities of female refugees when crossing the Polish border? What are some of the main challenges and what is being done to address them? These are some principal questions that this article aims to address. First, an overview of the abortion situation both in Ukraine and Poland will be given, underlining the vast differences between the two countries, despite their shared historical, cultural, and geographical links. Second, the article will explore the main national efforts aimed at mitigating the gendered aspects of the current refugee crisis. Where do the main stakeholders, such as the national government and grassroots organisations, stand? Lastly, the importance of mainstreaming a gender analysis into humanitarian approaches will be stressed, using the progressively deteriorating humanitarian situation in Ukraine to illustrate the need for adequate support for women and children.

Mismatched realities: Abortion rights in Ukraine & Poland

In Ukraine, abortions are lawful on demand within the first 12 weeks of pregnancy, oral contraception is available without a prescription and the morning-after pill is widely available. Representatives from the far-right Svoboda party attempted to pass a measure in 2013 that limited abortion to the same three broad situations that had previously been permitted in Poland [for a more detailed explanation on the history of abortion rights in Poland, please see this blog post by CYIS Research Analyst Freya Thompson]. The Ukrainian Parliament, or Verkhovna Rada, voted against this restriction of access to abortion. Later on, women's rights groups in the country protested when independent MP Dmitri Golubov sought to introduce similar legislation in 2018. Furthermore, in comparison to Poland, Ukrainian society is also relatively secular, and anti-abortion movements have had far less institutional and societal support than in the neighboring country.

In terms of abortion and contraception, Poland has long been an anomaly in Europe. It is one of just two European Union member states, together with Malta, that does not allow abortion on demand, and access to contraception is among the lowest in Europe. The situation has become considerably more dire since the nationalist Law and Justice (PiS) party came to power in 2015, advocating a return to a traditional, devout society coupled with large state subsidies. As a result, abortion has become a highly polarizing subject in Poland. In 2020, the Constitutional Tribunal declared that terminating foetuses with deformities - or, as mentioned by the country's constitutional court, "on eugenic grounds" - was unlawful, therefore ending the most common legal abortion case in Poland, a country where the majority of its population identifies as Catholic. There are currently only two situations in which an abortion can be legally authorized in Poland: firstly if a pregnant woman's life or health is in jeopardy, and secondly if there is a reasonable suspicion that the pregnancy is the product of an unlawful act (i.e., in case of rape or incest). In either case, the procedure can only be performed up to twelve weeks of pregnancy. Furthermore, while the law does not penalize the act of abortion itself, meaning that a woman who performs her own abortion in theory cannot be charged, anybody who supports a pregnant woman in obtaining an abortion might be.

Access to the already limited abortion options has, nevertheless, further become a broad technicality since many physicians in Poland are legally allowed to refuse to perform an abortion based on religious and/or personal grounds. According to human rights campaigners and observers, the outlook is even worse when it comes to abortions to be carried out under the rape exception. A woman looking to get an abortion performed under that exemption is required to be in possession of a certified letter from a public prosecutor which should verify the factuality of the rape. This condition obliges the victims to describe every detail of the crime they suffered (i.e., who, where and how), and thus forces them to relive the trauma.

This burden of proof presents an even greater challenge to Ukrainian refugees who are survivors of rape, whether this is a result of sexual violence perpetrated by Russian forces during the invasion or in other contexts before or after their flight. They are obliged to present factual evidence of this in a foreign country and in a foreign language, while often lacking basic documents such as IDs and birth certificates due to the precarious situation when fleeing. Not only is it a time-consuming process, making it hard for rape survivors to end the pregnancy in its early stages when it is safer and less traumatic, but it is also puts an extra economic burden on refugees who probably have limited cash and need to prioritise other necessities, such as shelter and food. Furthermore, it is still unclear how the Polish Public Prosecutor would be able to handle crimes committed in foreign countries.

The displacement of Ukrainians fleeing to Poland has also created a reversal of the usual migratory dynamics between the two countries linked to abortion. The near total Polish ban on abortions which entered into effect in October 2021 fostered the creation and maintenance of both an important underground national abortion business ecosystem and international “abortion tourism” routes. While wealthy Polish women would go to other EU countries for abortions, such Germany and Austria, Ukraine remained by far the most cost-effective option. Abortions in Ukraine can range from 2,000 to 9,000 hryvnias (approximately 65 to 300 euros) depending on the intricacy of the case. Since the ban was introduced, it has been estimated that 34,000 Polish women have sought abortions illegally within the country or abroad.

Attempts at bending reality: The Polish national context

At the onset of the mass refugee flow from Ukraine, the Polish government created a number of welcome facilities around the country to receive and aid refugees. These facilities aim to provide an emergency initial first response to newcomers, who are then expected to seek refuge elsewhere in the country. Accordingly, human rights and grassroots organisations based in Poland have activated support systems to help the newly arrived Ukrainian refugees and fill in the gaps left by official authorities, with the support ranging from first aid, to finding housing, and providing healthcare (including reproductive healthcare). Additionally, while acknowledging the outpouring of solidarity from private individuals giving transportation and lodging, grassroots organisations have been urging for a concerted effort to inform, register, and accompany women and girls, as well as screen potential hosts.

The main sponsors of help when it comes to supporting the refugee intake in Poland can be subdivided into two categories: those in favour and those against abortion. There are numerous non-governmental organisations that have been at the forefront of the historic struggle against the government’s measures to reduce abortion rights and who are now playing a key role in the reception and care of those newly arrived. The Foundation for Women and Family Planning (FEDERA) is among the main non-governmental organisations fighting for reproductive health and rights within Poland. Activists have created a downloadable pamphlet in both Ukrainian and Russian that walks readers through the reproductive health services available in Poland and where to find them. They have also established a helpline for inquiries about abortion in Poland. When receiving such a call, volunteers direct the person to the websites of international groups such as Women Help Women and Women on Web, where they may purchase abortion pills to be mailed to Poland. Another prominent national organisation, Abortion Without Borders, assists women who are too far along in their pregnancy to take pills by arranging their travel to a facility in a nearby country, such as the Czech Republic.

Other grassroots organisations strive to make emergency contraception (which can prevent pregnancy if used within 72 hours after unprotected intercourse) more accessible to Ukrainian refugees. In 2017, Poland's right-wing Law and Justice (PiS) party restored the prescription requirement for emergency contraception, which had previously been provided over the counter to women starting from age 15. Doctors for Women, an informal Polish association of licensed physicians, promise to write prescriptions for patients if another doctor refuses to do so because it goes against his or her personal principles or views. There is also the Day After Collective, an informal nationwide network of hundreds of people who distribute free emergency contraception to anybody in need in cities and towns around the country.

Despite the longstanding efforts of these grassroots organisations, Ukrainian refugees continue to experience difficulties in actually accessing abortion services. Late in March, a group of Polish legislators urged the government to speed up the legal abortion process for women who have been raped by Russian soldiers, as well as to ensure that rape victims can effectively terminate their pregnancy in any public hospital, curbing the flexibility given to doctors when deciding whether or not to perform an abortion. The proposed measure also required prosecutors to provide the appropriate documents within seven days, hence expediting the normally lengthy certification process. Yet, the Sejm, the Polish parliament's lower chamber and the political body in charge of legislating and supervising the government, rejected the plan.

Grassroots organisations against abortion have also been active on the ground, with Polish anti-abortion activists greeting refugees at the border. For example, volunteers from the Life and Family group began passing out pamphlets at refugee reception sites in the early weeks of the war, depicting mutilated foetuses, and openly identifying abortion as the “greatest threat to peace”. Pregnant women were also instructed by the group to directly report anybody offering them an abortion to the police. Another example is Ordo Iuris, a Polish ultraconservative organisation which has been reviewing hospitals to see if they are performing abortions on Ukrainian refugees and, if so, if they are following the necessary legal measures to ensure abortions are legal under the national law.

Future steps: Exposing gendered dangers

This complex picture demonstrates that Ukrainian women currently fleeing conflict and searching for refuge in Poland have only partial safety assurance. In a system that strongly limits access to abortion and contraceptive methods for its national citizens, benefitting from a safe abortion procedure is hardly guaranteed, and is directly reliant on who they first encounter when entering the country. In practice this means that Ukrainian women’s sexual and reproductive rights, once almost secure at home, can suddenly vanish, succumbing to conservatism and religion in a foreign host country.

But the ongoing conflict - which has reached the 100 day mark - and its consequences are not an isolated case when it comes to the threats to women’s rights and safety. It shows that crises are not gender neutral; in fact, the Polish abortion dilemma is indeed a “female crisis”. Consequently, humanitarian aid must be gender- and age-sensitive in order to be successful and reach the most vulnerable. In complex emergency situations, a gender perspective is critical to consider the unique needs of both women and men, as well as the various hazards to which they are uniquely exposed due to their gender. Displacement does not automatically translate into safer circumstances, being only the first step in a longer path towards refuge and welfare. This is further exacerbated when considering that in conflict settings, women and girls tend to be more vulnerable to risks of exploitation and abuse, and thus to gender-based violence.

The case of Ukrainian female refugees in Poland underlines the need for humanitarian actors to streamline a gender-sensitive approach in order to holistically assist and overcome hurdles to crucial services, reduce the danger of gender-based violence, and make refugee reception and integration easier. An initial gender analysis and monitoring can help identify some of the concerns that have already surfaced in relation to the crisis in Ukraine, as well as priority areas. For example, data that is gender-disaggregated and intersectional is critical for identifying individual protection requirements and ensuring that humanitarian aid is truly effective. Another element worth mentioning is the fact that displacement and interruptions in treatment can put women and girls at greater risk, for example of an unwanted pregnancy or untreated infections. As a result, protecting access to these services both nationally and internationally ought to be a top priority.

In sum, sexual health and reproductive rights of women and girls should be cemented as a humanitarian priority and as a critical step in addressing the impacts of gender-based violence in times of crisis. Restrictive abortion and contraception legislation in Poland obstructs humanitarian aid to Ukrainian refugees, ultimately hindering the observance of international law and human rights.

Disclaimer: The views and opinions expressed in this blog are personal to the author(s) and do not reflect the official policy or position of any other agency, organisation, or employer.


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