Original article (in Croatian) was published on 11/05/2022
The Council of Europe and the European Union recognize the right to appeal to conscience in medicine, but it is explicitly emphasized that this is a right that is not absolute. Invoking it must not jeopardize patients’ rights to access medical care.
The case of pregnant Mirela Cavajda, who was rejected by hospitals in Zagreb to terminate her pregnancy even though her fetus was diagnosed with a malignant tumor, has again raised the issue of conscientious objection in medicine in Croatia. We remind you that Mirela Cavajda went public with her case after four Zagreb hospitals refused to provide her with medical care guaranteed by the current Law on Health Measures for Exercising the Right to Freely Decide on the Birth of Children.
The right to conscientious objection is initially related to the refusal of military service, and based on the provisions of Article 47 of the Constitution of the Republic of Croatia, the Croatian Army is obliged to provide it. An appeal to conscience is the right of every individual to refuse to perform an act that he or she deems to be inconsistent with his or her religious, moral, philosophical, or ethical principles.
Council of Europe: Patients must not be left without care due to conscientious objection
The right to freedom of conscience is guaranteed by the Universal Declaration of Human Rights, the European Convention on Human Rights and Fundamental Freedoms and the International Covenant on Civil and Political Rights. In medicine, the right to conscience is recognized by Resolution 1763 from 2010, adopted by the Parliamentary Assembly of the Council of Europe. The resolution states that no legal or natural entity will be subjected to coercion or discrimination if he/she refuses to perform an abortion or euthanasia.
However, the same resolution states that the right to conscientious objection does not diminish the state’s responsibility to ensure that patients have timely access to legally guaranteed medical services. “The Assembly is concerned that the unregulated use of conscience appeals may disproportionately affect women, especially those on low incomes or those living in rural areas”, the resolution stated.
However, this right is not absolute and may be limited in certain key situations. It is made possible in the EU under the right to freedom of thought, conscience and religion; Article 10 of the EU Charter of Fundamental Rights states that it recognizes “the right to conscientious objection, in accordance with the national laws governing the exercise of that right”.
As stated on the pages of the Ombudsman of the Republic of Croatia, the legislation of developed countries allows for the appeal of conscience as “legally permissible acts of limited scope”. In doing so, for the appeal of conscience to be legitimate, it must be based on the moral principles of the individual who understands the meaning of legal norms and not on personal interests.
In Croatia, the right to appeal to the conscience of doctors is regulated by specific provisions of the Law on Medicine and the Code of Medical Ethics and Deontology. The right to conscientious objection is also regulated by the Nursing Act, the Dental Activity Act and the Medically Assisted Insemination Act.
European Parliament study: Appeal of conscience leads to human rights violations
The study “Sexual and Reproductive Health Rights and the Implications of Conscientious Objection” commissioned by the European Parliament’s Department for Citizens’ Rights and Constitutional Affairs states that 22 of the 28 EU Member States provide conscience appeal in medicine (the study was done before the UK left the EU).
Regulations differ from state to state, so some legally restrict conscientious objection. In some Member States, a conscientious objection can only be “used” by doctors, while some (such as Croatia) allow conscientious objection to other workers, such as nurses or pharmacists. (1, 2).
In Sweden, for example, the legislation does not recognize an instrument of conscientious objection in the area of sexual and reproductive rights. The Swedish Health Act, the Patient Protection Act and the Abortion Act clearly state that the needs and rights of patients are above the rights of health care providers.
The European Parliament’s study takes the example of six EU states – Italy, Croatia, Sweden, the Czech Republic, Poland and Portugal.
All six states allow abortion in certain cases, but the legislation varies greatly. The most restrictive is Poland, which does not allow abortion at a woman’s request, while in the other five countries, it is allowed, but in different time frames. In Croatia and Portugal, it is allowed in the first ten weeks of pregnancy, in the Czech Republic within the first 12 weeks, in Italy within the first 90 days of pregnancy, and in Sweden until the 18th week. All Member States allow abortion within a longer period, most often in the case of threats to the health of the pregnant woman or the fetus.
The study explicitly states that insufficient regulation of conscientious objection can lead to serious human rights violations in terms of restricting the right to abortion, sale or counseling on birth control pills or the morning-after pills.
The data is not complete, but many experts, according to a study by the European Parliament, say that conscientious objection has had a significant impact on reducing access to health care in the field of reproductive rights. For example, data from the Italian Ministry of Health from 2016 show that about 70 percent of gynecologists in Italy refuse to perform abortions. In some regions, this figure is close to 90 percent of gynecologists who refuse to perform abortions.
The hospital may refuse to hire a person who invokes conscientious objection
The scientific article “Freedom of conscience in Europe? An analysis of three cases of midwives with a conscientious objection to abortion” talks about different legislative approaches to the issue of conscience appeal when it comes to abortion.
The article dealt with three cases when midwives refused to participate in abortions due to conscientious objection – in Croatia (the case of the Croatian Pride Hospital in Knin), Scotland and Sweden. Two cases resulted in court proceedings (Croatia, Sweden).
Swedish midwife Ellinor Grimmark, a member of the Pentecostal church, sought employment at three hospitals and was rejected from all three because of her conscience appeal. The Grimmark case ended in court; the midwife claimed to have been discriminated against, but the court ruled against her, arguing that the region where Grimmark lives has an obligation to guarantee access to abortion and that abortions are part of the duties midwives perform in Sweden. Her lawsuit was later rejected by the European Court of Human Rights.
Since the right to conscience is not absolute, there are verdicts of the European Court of Human Rights that individuals cannot use their religious beliefs to block other individuals’ access to services guaranteed by law.
Conscience appeal must also not be an obstacle to access to sexual and reproductive health services. A study by the European Parliament states that member states must establish effective referral mechanisms in cases where some health professionals refuse to perform reproductive health interventions based on conscientious objection (which Croatia has – at least in theory – implemented).
Abortion is allowed in Croatia, but it is unavailable
According to CESI in its study “Conscience Appeal in Reproductive Medicine”, some studies show that some medical staff “seek to avoid providing services that are stigmatized, fear negative consequences if they perform abortions and want to avoid discrimination and stigmatization”.
In Croatia, it is estimated that about 60 percent of gynecologists refuse to perform abortions (N1). There is often a regional disparity in access to health care.
According to the EP study, referring to the example of Croatia, some gynecologists have a conscience appeal in public hospitals, but not in private clinics where they operate after work; in some rural areas, all doctors refuse to perform abortions, forcing women to travel to larger cities. Due to the lack of financial resources or places where the procedure can be performed, some women are, in fact, denied the right to abortion.
A statement issued by the Croatian Medical Chamber (HLK) in response to Mirela Cavajda’s case said that “appeals to doctors’ conscience are often misrepresented in public as an obstacle to exercising the legal right to abortion”.
However, the question remains to what extent abortion is really available for women from rural areas when hospitals in larger cities refuse to perform this medical procedure. In the case of Cavajda, four hospitals in Zagreb refused to perform the operation: KB Sveti Duh, KBC Sestre milosrdnice, KB Merkur and the Clinic for Women’s Diseases and Obstetrics of KBC Zagreb in Petrova.
