Gusztav Kosztolanyi

[Dr. Laszlo Surjan in the Hungarian Parliament during the debate on child benefit. Author's translation].

Anxious to establish their credentials as the defenders of the family and champions of the interests of the citizen, the new Hungarian government have set about a long overdue overhaul of the benefits and welfare system to protect the most disadvantaged members of society. Demographic developments are a source of particular concern to Hungarian politicians with the number of live births in drastic decline. Against this backdrop, it is hardly surprising that policy is once again moving in the direction of encouraging couples to have children, in this instance by extending the entitlement to child benefit to better-off families, a move fully in keeping with their inclusive approach to administration. Unlike their predecessors, they have abandoned a confrontational attitude: in place of the rhetoric of "them and us", they do not differentiate between citizens, seeking to forge a sense of nationhood once again.

In spite of prophecies of doom about the looming demographic catastrophe, the Hungarian population at large has retained its liberal attitude to abortion. In the aftermath of the scandal in March centring on the case of Katalin P., an opinion poll (conducted by the Median Opinion Poll and Market Research Institute, the results of which were subsequently published in "Nepszava") showed that 97% of Hungarians agreed that it was the exclusive right of the girl and her family to decide whether to keep the baby or to abort and 85% endorsed the decision to complete the abortion. This demonstrates a remarkable degree of consensus on a highly emotive issue. For the best part of a month, the drama that unfolded held newspaper readers and TV viewers in its thrall. It threw into high relief the conflict that exists in current legislation between the interests of the mother and her right to determine how to live her life and the rights of the unborn child as defined in the 1992 law on the protection of foetuses.

The teenager in question, Katalin P., a girl from the tiny village of Davod (comprising 2,600 inhabitants) in Bacs-Kiskun county, was 13 years old when she became pregnant to a 24 year-old man with two children. Twelve weeks had elapsed since the beginning of her pregnancy and, in such instances, permission to abort may only be granted on special grounds (which did exist given that her boyfriend had committed an offence, namely corruption of minors). In the meantime, however, a religious organisation, the Alfa Association for the Protection of Infants, Children and the Family had become involved (whose Secretary General is, as journalists were quick to discover, the editor-in-chief of romantic fiction at Harlequin Publishers, liberally quoting from the more piquant passages to undermine his credibility), encouraging the local child welfare authorities to appoint a guardian on behalf of the foetus who subsequently launched a civil suit against Katalin and her mother. The Alfa Association, moreover, deposited a sum of 100,000 forints at a lawyer's office with instructions that it be handed over at birth. On this latter point, commentators pointed out that this amount, a pittance in terms of the total cost of raising a child, could have no more than purely symbolic value, upping the moral stakes.

The real public outcry was triggered by the decision of the court in Baja to refuse to grant Katalin authorisation to have an abortion. Although this decision was not legally binding, it was taken over the heads of the members of the family (Katalin's mother is a widow with other children to support and, as such, belongs to a vulnerable social grouping ) and created a precedent, deeming the rights of the unborn child to be paramount.

Clearly, the case contained a number of sensationalistic aspects: teenage pregnancy; the dubious role of the Alfa Association; where childhood ends and adulthood begins; the irreconcilable clash between militant pro-lifers and womens' self-determination. It degenerated into a tug-of-war, a primordial battle between the forces of progress and reaction, democracy and dictatorship, which reduced Katalin to the status of public property, completely neglecting the issue of her future, particularly given that she had already missed out on over a month's schooling and would have to return to class to face her fellow pupils and might even have to repeat a year.

Ultimately, the abortion was performed, after the then Minister of Home Affairs, Mihalyi Kokeny intervened with the full backing of his colleagues, including Pal Vastagh, Minister of Justice, instituting special proceedings at the County Court of Bacs-Kiskun which allowed for an immediate re-examination of the original decision, dispensing with the usual delays caused by cases having to be taken in order of submission, nor do other formalities, such as the deadline usually applied for the litigating parties to present their request for an appeal, have to be respected. Thus Katalin's case, falling into the category of cases affecting the interests of society as a whole, was able to "jump the queue" and the abortion was duly performed in spite of some intransigence on the part of the County Court.

In the meantime, protests about the ministerial reaction could be heard from many quarters, including from the Vice President of the Constitutional Court, Dr. Tamas Labady. For him, the most worrying feature was the fact that politicians were trespassing on to the legal domain, criticising the law and implying for the most part that the law is deficient and should therefore be changed, and here actually issuing instructions to the effect that the ruling of a court of first instance could be ignored as it had no legal force, thereby undermining the principle of legal certainty and undermining the rule of law in a country where it has only been established relatively recently and has not, perhaps, had an opportunity to take root fully. The matter was exacerbated in his estimation not only by the minister's actions in making press statements (the minister knew when he made his press release that he was on firm ground with the support of the vast majority of the electorate) but also by their timing, in the run up to the elections. For Dr. Labady, the most regrettable aspect was that two constitutional bodies were being pitted against each other in a trial of strength where political considerations carried the day.

A further echo of the Katalin case may be heard in the Constitutional Court's decision of November the 18th on the subject of the law on abortion. According to the Court, courts may authorise abortions where the pregnant woman faces severe difficulties without breaching the constitution. The examination to determine whether a crisis does actually exist can only be avoided in future by legislators where these considerations are properly counterbalanced by arguments in favour of protecting the life of the embryo. The concept of "serious difficulties" and its application are placed exclusively in the legislative sphere. All current laws pertaining to abortion and the implementing provisions which supplement them have been deemed unconstitutional and shall therefore be abrogated by the 30th of July 2000, allowing for new laws to be adopted.

The principle objection from the Constitutional Court is linked to the fact that serious difficulties have been presumed on the basis of the woman in question's statement to that effect, without further investigation as to the truth of her allegations and consequently without the causes or circumstances of the crisis being cited. In the view of the Court, this does not afford even a minimum of protection to the foetus, taking account solely of the woman's right to lead her life as she sees fit. The social services, moreover, are not at the present juncture entitled to offer the pregnant woman advice or support that may influence her choice as to whether to keep the child. Parliament now has to resolve the thorny issue of what changes should be made. There are several options here (see Magyar Nemzet, November 19th edition): establishing whether a crisis does actually exist could be made subject to standard checks. Alternatively, the need to protect the unborn child could be fulfilled by setting up a system according to which counselling is made mandatory for women faced with the difficult decision of having an abortion and whereby she is consulted as to how her problems may best be overcome with a view to encouraging her to keep the baby by creating more favourable conditions for her.

In another passage of the decision reference is made to the desirability of freeing the woman from pressure from her immediate circle of family and friends. Threats about withdrawing maintenance, for example, would have to be made into punishable offences for this to work.

In a separate document, Dr. Labady expressed his personal opinion on the subject: according to the terms of the constitution, the foetus is to be regarded as a human being, and hence as a legal person, from the moment of conception onwards. As a result, its right to life and human dignity must be respected. The implications of this are clear: women no longer enjoy exclusive rights to decide their fates.

In Hungary, for each 100,000 live births there are 70,000 abortions. In common with other countries in the region, abortion has been used as a form of family planning. As the editorial in Magyar Nemzet points out (November 19th), it would be a mistake to believe that only ignorant immature women resort to it. Quite the opposite. Somehow a balance will have to be struck between unacceptable constraints on freedom, interference in private life and the urgency of addressing other methods of contraception to reduce the number of abortions. If this is not achieved, abortions will be driven to the back streets with all the concomitant health risks and the nightmare scenario so beloved of pro-life activists of tiny corpses decaying in plastic rubbish bags beckons. To confuse a solution to the problem of falling birth rates with cutting abortions would be the gravest error of all. Great political sensitivity and awareness of the real issues is called for. The time has come for the "children's government" to come of age.

Gusztav Kosztolanyi, 23 November 1998