In vitro: fundamental error
Marek Jurek
When there were discussions concerning the guarantee of the right to life to be written in the Constitution the opponents of this concept threatened the authorities and the Catholic opinion with a referendum. Today, desiring to force the legalisation of the in-vitro fertilisation they use the argument of the alleged legal vacuum, allowing killing babies in their earliest phase of life, exactly after being conceived in vitro. This propaganda strategy carries a side effect: there can be a real legalisation of the existing lawlessness and another breakdown of the imperfect, but binding and warranting justice to a considerable extent, bill on legal protection of the conceived life. The defenders of life intended to use the bill to protect, although partly, the weakest whereas the advocates of the ‘compromise of life’ intended to appease conscience and remove the problem from the sphere of the political responsibility of the state and from the public debate; the bill was to be a declaration and not a law factually executed. That’s why when two years ago the Parliamentary Commission for the Family voted the desideratum to the Ministry of Justice to begin preventing the abortion delinquency effectively, Elzbieta Radziszewska (the present minister for equal treatment) when asked by ‘Dziennik’ said that she opposed this kind of radicalism and was in favour of preserving status quo. And in this case the status quo is not to execute the law in a real way. That’s why last year it was so easy to extend ‘the penal law cases’ considering ‘Agata’s case’. It turned out that not only sick children and those conceived as result of probable rape but also children conceived by school couples that began sexual life early are to be excluded from legal protection. We can see ourselves another breakdown: children are to be devoid of legal protection not because of their defects (illness) or parents’ deeds (probable rape, school sex) but because of the arbitrary intention to predestine them to pre-delivery selection. Such an arbitrary decision has no basis in the binding law and even in the earlier declarations of the advocates of ‘the compromise of life’ (because they never spoke about such an exception in the protection of life). Suffice to look at the text of the Law On Family Planning, Protection of the Human Foetus and Conditions of Permissibility of Interruption of Pregnancy.’ Article 1 of the law clearly states that life is protected ‘also in the prenatal phase’, which though has the reservation ‘within the limits defined in the law’, but the exceptions defined in article 4a do not say that human life is not to be protected in vitro, i.e. after being conceived in the test-tube. The most elementary, i.e. textual, interpretation of penal law regulations, executing the provisions of the bill on protection of life, speaks even much more. The bill says about the right to life ‘in the prenatal phase’, i.e. throughout the whole time before birth, whereas articles 151, 152 and 157a of the Criminal Code says more clearly about ‘conceived child’ as the subject to legal protection; therefore, it assumes the very ‘conception’ as the moment of the beginning of life. The same applies to in-vitro conception. Article 157a is especially clear in this case because it recognises as a crime ‘causing bodily harm or [every] health damage endangering the life of a conceived child.’ One can misinterpret these regulations only when one has clearly bad will. Furthermore, it is not true that in Poland there are no legal regulations of bioethical character. Certainly, they can be amended since law must follow the reality. For example, it is worth introducing regulations concerning the protection of human genome into the Polish law. But one should use the principle of Article 39 of the Constitution to all matters concerning conceived human life. The article says that ‘No one shall be subjected to scientific experimentation, including medical experimentation, without his voluntary consent.’ Thus it excludes any experiments on children (because of the necessity of personal declaration of will) or on unconscious people. However, shouldn’t first of all those who – including those in the Catholic world – claimed two years ago that Poland had a sufficient constitutional protection of the conceived life remind people about all these matters? That’s why I appealed to Jaroslaw Gowin to make the Commission he presided over get interested firstly in the issue to what extent the existing law protected the life of the smallest and to incline the public authorities to execute this law. Because you should stop the horror of destruction of embryos in laboratories not through debates but only through actions of the machine of justice. And it should be done at once especially that the party of Jaroslaw Gowin is the ruling party; therefore, his responsibility for Minister Cwiakalski’s policy is bigger. But the opposition must wake up since last year it assisted in the abolition of the legal protection for another category of children. Since this was the sense of the tolerant silence about ‘Agata’s case’ (i.e. the most dark affair of the present government) in the long motion of the opposition concerning vote of non-confidence for Minister Kopacz. The opposition that was so much critical about various matters did not raise any reservations about the activities, which the Minister of Health undertook concerning ‘Agata’s case’. Moral revolution was first of all to execute laws, to restore the execution of the law that is circumvented, evaded or ignored. It pointed to corruption but it was to concern restoration of law in general. Today this is its second attempt.
"Niedziela" 3/2009