The Offence of Forced Miscarriage as Documented in the Polish State Archive in Suwałki (1921–1939)

Abstract

The Polish term spędzenie płodu (forced miscarriage), used in interwar Poland, meant an intentional termination of pregnancy, now referred to as abortion. Miscarriage was considered an abortion if it was purposely induced by an external factor leading to a preterm delivery, so-called artificial miscarriage, which was carried out with the woman’s consent and resulted in foetal death. The offence of forced miscarriage was regarded as related to murder of a person, so abortion regulations fell in the category of provisions concerning crimes against life. Conditions for the permissibility of terminating a pregnancy were not stipulated in the Russian penal legislation governing this criminal act, which was in force in interwar Poland; instead, the Tagancev Code applied by reference. The Polish Penal Code of 1932 went a step further as it took into account not only the state of absolute necessity, but also health issues in a wider context, which was confirmed by legal scholars in their commentaries. The protection of the mother’s life and health was not associated with the phase of foetal and pregnancy development, because the legislator did not determine the time limit for terminating pregnancy. It was assumed that forced miscarriage could apply to a newly born baby before it was detached from the mother’s organism – a baby that was unable to live independently. In this article, the legal-historical method was used to present a criminal-law analysis of the crime of forced miscarriage in the former Russian Partition, considering the rulings in such cases handed down in the Suwałki District. In the literature of the subject to date, no such a study can be found, which justifies this inquiry.