According to Art. 217 § 1 of the Criminal Code, anyone who hits someone or otherwise violates their bodily integrity shall be subject to a fine, restriction of liberty or imprisonment for up to one year. The method of violating bodily integrity specified in the provision is only exemplary. What behaviors can violate the integrity and corporality of adolescents? This is any unlawful interference with their body. All activities that do not result from legal provisions or consent will be illegal. It does not always have to be expressed directly. Close relationships allow us to assess where the other person’s limits are and which ones we should not cross. Violation of the bodily integrity of an adolescent does not only involve an attack on their body, for example by pushing, pinching, spitting or pulling their hair. It is enough that a certain behavior physically affects the body and thus violates its dignity. In a specific situation, for example, intentionally leading a teenager by the hand in order to humiliate him in the eyes of his peers may be considered a violation of inviolability. Can consent excluding the illegality of an action be given by parents or legal guardians?
My body, your consent?
The right to make decisions concerning children is expressly provided for in the Family and Guardianship Code (Article 95 of the Family and Guardianship Code). However, the exercise of parental authority is not absolute. According to the regulation, before making important decisions, parents must listen to and, if possible, take into account the wishes of the child, if the child’s mental development, health and level of maturity allow it. These provisions are of a general nature and their application may depend on a specific situation. However, they are clarified in specific provisions and may concern various aspects of corporeality.
The Penal Code establishes other limits
Teenage sexuality often remains a taboo subject. In the eyes of parents, young people remain children for a long time. However, if we look at the provisions of the Criminal Code, the point at which adolescents can make decisions about their bodies does not even coincide with the age of majority. According to Article 200 of the Criminal Code, which concerns responsibility for, among other things, sexual intercourse with a minor (minor), the point at which an adolescent can make an independent decision is 15 years of age. Below this age, sexual intercourse is a crime, regardless of whether it is consensual. Above this age, criminal impact on the body, in the light of the currently applicable regulations, can be said when sexual intercourse occurred as a result of violence, unlawful threat or deception. In the light of these regulations, adolescents who turn 15 can make their own decisions about their sexual life. Does this also mean that they can go to the gynecologist without the help of their parents?
Medical decisions aren’t just for an 18-year-old
Although it may seem that the lack of punishment for sexual relations with adolescents over the age of 15 should be reflected in other provisions, in fact the legislator decided to address these issues separately. As part of the exercise of parental authority, parents have the right to decide on the treatment of their children, including consent to certain medical procedures. Generally, these rights last until the child turns 18 (or before obtaining full legal capacity as a result of marriage), but are subject to certain limitations depending on the age of the child.
However, these solutions are inconsistent. Despite the possibility of “legal” sexual intercourse for a 15-year-old adolescent, she does not have the legal possibility to decide for herself, for example, about the use of hormonal contraceptives. According to the Act of 6 November 2008 on the Rights of Patients and the Ombudsman for Patients’ Rights (Article 17 of the UPPRP), adolescent patients can only decide about their treatment at the age of 16. The lack of their consent makes it impossible to carry out certain medical procedures, except in situations related to, among others, so-called life-saving activities (Article 19 of the UPPRP). In addition to the adolescent patient’s decision, the express decision of their legal representatives (e.g. parents) is also required. In the event of disagreements between them, the final decision lies with the supervisory court.
The consent of adolescents and parents is cumulative. This means that adolescents cannot go to the doctor alone. In special cases, the parent may be replaced by the actual guardian. However, the right to decide on treatment, which parents have, cannot be equated with the right to be present during all medical procedures. As in the case of adults, medical services are provided to children with respect for their dignity and privacy. Given that the legislator has granted 16-year-olds the right to object to certain medical procedures, it must be assumed that they have the right to decide on the presence of third parties during examinations. In some situations, such as gynecological examinations, the presence of parents may be embarrassing for the child, violating their privacy and even their dignity. It is also worth remembering that adolescents over the age of 16 have the right to accessible information about their health, diagnosis, proposed and possible diagnostic and treatment methods, foreseeable consequences of their use or omission, treatment results and prognosis (art. 9 upprp).
Termination of pregnancy and medical experiences
Although a young woman must visit a gynecologist accompanied by her legal guardian, the legislator has granted her important rights related to the termination of pregnancy. According to the provisions of the Law of January 7, 1993 on family planning, protection of the human fetus and conditions for the admissibility of termination of pregnancy in its current wording, the provisions of the Law provide for the possibility of legal termination of pregnancy by a doctor in two cases: when the pregnancy constitutes a threat to the life or health of the pregnant woman or when there is a reasonable suspicion that the pregnancy resulted from a prohibited act. In the case of girls who were under 15 years of age at the time of conception, the second condition is automatically met. Any pregnancy at this age, by virtue of the content of art. 200 of the Penal Code, arises as a result of a prohibited act.
Can parents decide to terminate a pregnancy on their own? Given the importance of the decision and its consequences for the pregnant minor, the consent of the parents (legal guardian) alone will not be sufficient. According to Article 4a of this Act, in the case of girls under the age of 13, in addition to the consent of the parents, the consent of the guardianship court is also required. The girl reserves the right to express her opinion. Upon reaching the age of 13, a pregnant teenager gains the right to make decisions about her body in this regard. In order to terminate a pregnancy, in addition to the consent of the legal guardian, the consent of the guardian is also required. The same age limit was set by the legislator with regard to consent to participation in medical experiments, i.e., among others: in clinical trials and therapeutic processes using new or only partially proven methods. In this case too, according to Article 25 of the Act on the Profession of Doctors and Dentists, participation in experiments by a patient over the age of 13 is subject to his or her consent. Contradictions in the positions of parents and children are resolved by the guardianship court. In light of the regulations, children of this age can also give binding consent to the procedure of bone marrow harvesting for transplantation purposes for their siblings (Article 12 of the Law of 1 July 2005 on the harvesting, storage and transplantation of cells, tissues and organs). However, they cannot go to the psychiatrist alone, regardless of the problems they face.
Teenagers suffer because of regulatory chaos
The lack of consistency in regulations makes adolescents suffer more. Often, the desire to respect their rights conflicts with the severity of procedures. Going beyond the established standards often means risk for those trying to support young people during a difficult period in their lives. There is therefore no doubt that we need systemic changes in the Polish legal system. Today, however, we can start with the simplest thing: listening to adolescents.
