Redress of damage resulting from unlawful prevention of the execution of termination of pregnancy

• Autore: Magdalena Rzewuska
• Pagine: 589-593

MAGDALENA RZEWUSKA

REDRESS OF DAMAGE RESULTING

FROM UNLAWFUL PREVENTION

OF THE EXECUTION OF TERMINATION

OF PREGNANCY

This article concerns a redress of damage resulting from unlawful preven-

tion of the execution of termination of pregnancy This problem is very im-

portant and still current not only in the doctrine but also in judicial decisions.

According to the author, the Polish legislator should make these questions

more precise so that it is not necessary to appeal to transnational agencies.

The issue analyzed in this article is highly controversial both in the doc-

trine and in judicial decisions. The main problem concerns the attitude to

the question whether unlawful prevention of the execution of termination of

pregnancy can be considered within the limits of damage. If an afrmative

answer is given, a further analysis should focus on an examination whether

in this case we have to do with a nancial loss or a non-nancial loss. Ad-

ditional doubts also arise as to the indication of subjects authorized to claim

for the payment of damages. The question of a possibility of a physician’s

liability at any time for a refusal to carry out a legal abortion is equally inter-

esting. This subject is extremely signicant in the time of globalization and

emphasized in the jurisdiction of many states. The idea of abortion itself, de-

spite statutory regulation, is still criticized by clergy. Both the specic nature

of the abortion procedure and related problems are so complex issues that

their deep analysis would require a multi-page elaboration. However, in this

paper the author will limit herself only to the presentation of the articulated

problem.

A possibility to demand claims for indemnity due to unlawful preven-

tion of the execution of termination of pregnancy results indirectly from the

constitution. In the light of art. 77 part 1 of the Constitution of the Republic

of Poland of 1997: „everyone has the right to a compensation for damage,

which has been caused to him/her by unlawful acting of a public authority

organ”. Unlawful prevention of the execution of termination of pregnancy

occurs when it is contrary to law or the principles of community life. The

Supreme Court, in its statement of reasons for the resolution of 22 February

2006, indicated two regulations, from the violation of which it results: