In Poland and beyond, a media storm broke out in the beginning of June because of the so-called „pregnancy registry.“ It is not actually a registry but a regulation of the Minister of Health, which extends the catalogue of medical data, in which doctors must record information about pregnancy (also about implants, possible allergies, or blood group) in the Medical Information System – an electronic register of medical data. The obligation will cover all doctors working in private and public medical centers. The problem at the heart of the media storm is that if a woman decides to terminate her pregnancy, for example, abroad, it will be known because of the system’s pregnancy data and prenatal test results. Nevertheless, it is difficult to judge this registry unequivocally, especially after hearing the arguments of both sides.
The Ministry of Health’s Arguments – Making Doctors‘ Jobs Easier and Improving Patient Safety
At face value, the arguments of the Ministry of Health seem to be reasonable. Additionally, the changes are not assessed negatively by the medical field. The first and most important argument for extending the catalog of medical data, including on pregnancy, is the recommendations of the team appointed by the European Commission. The extension is primarily related to the introduction of „Patient Summary„; the patient card, which will be valid in the European Union from 2023. Data on pregnancy in such a system may facilitate the work of medics, for example, when a patient has an accident in another EU country and does not speak the local language. With more information on the patient, it is possible to choose the right medicines and decide to not get X-rays. The presence of medical data in the system should improve patient safety, mainly during their stay in other EU countries. In addition, increasing the availability and transparency of information will streamline the work of medical staff, improve the circulation of medical records between doctors, and reduce the cost of providing them. Moreover, it is necessary to change paper patient records to electronic ones. The Ministry of Health responded to the critique regarding the release of pregnancy data by saying that pregnancy data was already available in paper medical records.
Arguments Against the Registry – A Tool of Surveillance
While the solution can certainly benefit medics and patients, doubts arise primarily due to the socio-political context in which Poland currently finds itself. The main issue is the practical ban on abortion in Poland, which the Constitutional Tribunal established with the judgment K1/20 in October 2020. The Tribunal ruled then that abortion due to fetal defects is illegal. In addition, after the judgment, the parliament proceeded with bills restricting reproductive rights prepared by fundamentalist organizations. The ruling party has been winking at fundamentalists; many of them sit in its ranks. We can conclude that the prevailing atmosphere does not encourage women to be pregnant. The opponents‘ arguments against the registry are unsurprising that patients will be afraid to disclose information about their pregnancy before a prenatal diagnosis.
Although the patient would not be punished for terminating the pregnancy (only the person who helped to terminate it), the mere psychological awareness that someone might use this data in a criminal proceeding may result in fear and non-disclosure of pregnancy information. What is more, as reproductive rights activists point out – in their experience, doctors often moralize patients and interfere in their private lives. So there is a risk that if a doctor notices a discrepancy in the register – there was a pregnancy, now there is no pregnancy – they may report suspicion of a crime having been committed.
The problem with the registry is a problem with processing medical data. According to Article 9 of the GDPR, health data is sensitive, and its processing is legally restricted. The problem is that the regulation of the Minister of Health does not allow the possibility of withdrawing consent to processing such data, contrary to the GDPR. The most emotional issue has been access to this data by unauthorized parties. That is, there are concerns that police and prosecutors will use pregnancy data against women, even in cases where a miscarriage rather than abortion has occurred. Opposition politicians and feminist activists have expressed concerns that women will be surveilled by the state if they carry out abortions on their own, including abroad. These concerns may be justified because Article 26 of the Act on Patients‘ Rights allows entities that provide health care services to provide access to medical records to several other entities, including „the minister responsible for health matters, courts, including disciplinary courts, prosecutors, court-appointed physicians, and ombudsmen of professional responsibility, in connection with ongoing proceedings.“ In addition, according to the Code of Criminal Procedure, judges and prosecutors have access to medical records. Thus, the release of data can also help investigate abortions. Once the data is entered into the electronic system, it will be much easier to access.
Despite these provisions, the Ministry of Health assures that access to the reported pregnancy data would only be available to a doctor or a paramedic in case of emergency and, if requested by the patient, would be provided to any other doctor the patient wishes to use. Evidently, there is a contradiction here between the provisions of several legal acts and the statements made by representatives of the Ministry of Health and its regulation.
Furthermore, the opposition’s concerns may be based on previous experience – after the abortion judgment in 2020, pro-life organizations were particularly active in tracking abortions. For example, they are currently concerned about the potential abortions in Poland sought by Ukrainian women raped during the war (such abortion is legally permitted). The fundamentalist organization Ordo Iuris has applied to 370 hospitals for access to public information on the citizenship of patients who terminate their pregnancies. They are also concerned about whether each procedure was performed based on a prosecutor’s opinion, confirming the justification of the suspicion of rape. Thus, they can request, for example, statistics on pregnancies and file criminal notices after analysis. They have the favor of the Minister of Justice, who is at the same time the Attorney General. Fundamentalist organizations conduct many strategic litigations to limit liberally understood human rights. In one of these cases, the Minister of Justice got personally involved and brought the case to the Constitutional Court. The case concerned a printer who refused to print a banner for an LGBT organization. This case is one example of the hijacking of liberal mechanisms for protecting human rights (proceedings before the Constitutional Court) to limit them. While there is currently no indication of the Ministry of Health using the data, there is no such certainty about the Minister of Justice collaborating with fundamentalists.
Monkey with a Razor Blade
We may conclude that the collection of pregnancy data is a helpful tool, and the Ministry of Health did not have any bad intentions by introducing such a solution. However, we can compare the registry to another tool, the razor. The function of the razor is shaving, which was probably the intention behind its invention. Nevertheless, when such a razor gets into the hands of a monkey, the situation may prove dangerous. If we compare the fundamentalist organizations, police, or prosecutors (subordinate to the Minister of Justice) to a monkey, such a tool can lead to much damage and result in surveillance. If the changes come into effect, NGOs will play a significant role in monitoring their use – guarding the razor against the monkey.