Barriers to Abortion Care for Migrant Women and Girls
By Lúcia Pestana
Editors: Veronica Corcodel, Tatiana Morais
Abstract
This blogpost focuses on health and healthcare inequalities affecting migrant women and girls, including asylum seekers, beneficiaries of temporary protection, irregular migrants and unaccompanied minors. More specifically, it examines access to safe and legal abortion, a topic chosen due to its heightened restrictions in several Member States, despite being recognized as essential care by the World Health Organisation. Building on recent reports, the blogpost analyses the national abortion laws of Germany and Poland and shows that restrictions under these laws affect migrant women and girls differently, with particular challenges arising out of specific statuses.
Keywords:
abortion care, sexual violence, beneficiaries of temporary protection, irregular migrants, asylum seekers.
- Introduction
Health and healthcare inequalities between ‘third-country nationals’ and EU citizens have been widely documented.[1] These disparities are particularly pronounced in the realm of sexual and reproductive health (SRH).[2] When compared to EU citizens, migrant women and girls, understood here as including irregular migrants, asylum seekers, beneficiaries of temporary protection and unaccompanied minors, face a number of barriers, such as limited access to family planning and contraception, lower rates of gynaecological healthcare and a heightened risk of unintended pregnancies.[3] Moreover, studies have also shown that migrant women and girls face sexual violence at each stage of their journey to the European Union (EU) and subsequently in their host country, placing them in a particularly vulnerable position.[4] These challenges are exacerbated by often-securitised approaches to sexual and reproductive health in migration policies, in which migrants are often framed as risks to public health.[5]
This blogpost specifically examines access to safe and legal abortion, a topic chosen due to its heightened restrictions[6] despite being recognized as essential care by the World Health Organisation (WHO).[7] Restrictions on sexual and reproductive rights affect all women, but migrant women and girls are particularly vulnerable to these limitations, with further inequalities sometimes present among them. Existing national restrictions may conflict with EU law, which guarantees asylum seekers and beneficiaries of temporary protection access to emergency healthcare and, in cases of sexual violence, specialised care.[8]
In this context, an approach that takes migration status into account is essential for evaluating the availability of abortion care for all women. An intersectional lens, adopted here, allows precisely to explore if and how women who are not EU citizens are affected differently by national restrictions on abortion.[9]
The case studies will demonstrate how the restrictive legal abortion model in Germany and the prohibitive model in Poland [10]—two countries hosting the largest numbers of beneficiaries of temporary protection[11]—ultimately result in similar barriers to accessing abortion. These barriers may force beneficiaries of temporary protection to return to Ukraine for care or resort to illegal abortion methods. The same goes for migrant women and girls who have statuses other than temporary protection, as it will be argued below.
- Access to sexual and reproductive health under the Temporary Protection Directive and the Reception Conditions Directive
Council Directive 2001/55/EC, also known as the Temporary Protection Directive (TPD), was adopted in 2001 and establishes minimum standards for Member States to provide temporary protection in case of a mass influx of displaced persons. Despite being in force for the past 23 years, the TPD has been activated only once, following Russia’s invasion of Ukraine.[12]
Under the TPD, beneficiaries of temporary protection are entitled to access healthcare, including necessary medical assistance and treatment, particularly emergency care and essential treatment of an illness.[13] Additionally, there is an explicit reference to Member States’ obligation to provide the “necessary medical or other assistance to (…) persons who have undergone torture, rape or other serious forms of psychological, physical or sexual violence”.[14]
While the Directive does not explicitly mention reproductive health services, its emphasis on ensuring medical assistance to victims of sexual violence shows an understanding that women and girls covered by the Directive face specific challenges that must be addressed. However, and although reference to the needs of rape survivors is welcomed, this provision is highly vague, leading to inconsistencies in its application across Member States.
According to WHO, medical care following sexual assault should include a physical examination, the provision of emergency contraception pills, prevention and treatment of sexually transmitted infections, access to specialised mental health care, and, if a woman is pregnant and abortion is legal, a referral for safe abortion.[15] While the directive does not mention any particular services, its overarching objective of providing medical assistance to victims of sexual violence should encompass these procedures.
The Communication from the Commission 2022/382 establishing operational guidelines for implementing the TPD does not mention sexual and reproductive health.[16] Therefore, while the Temporary Protection Directive sets forth important provisions regarding access to reproductive care and support for survivors of sexual violence, the existence of this legal framework, regrettably, has not translated into de facto access to the full range of SRH services.[17]
The Council Directive 2003/9/EC, laying down minimum standards for the reception of asylum seekers, establishes a similar commitment of Member States as the TPD in ensuring access to emergency care and the need to address the specific needs of victims of sexual violence.[18] However, no official EU publication, similar to the EIGE report on access to SRH services under the TPD, has evaluated asylum seekers’ access to sexual and reproductive care. This highlights the differentiated treatment of individuals displaced by the Russo-Ukrainian war, which, although imperfect, contrasts with the treatment of asylum seekers that many scholars have criticized.[19]
- The Cases of Germany and Poland: Temporary Protection in Focus
The recent EIGE publication Women Fleeing the War: Access to Sexual and Reproductive Healthcare in the EU under the Temporary Protection Directive seeks to assess the accessibility, availability, acceptability and quality of SRH services for women and girls protected under the TPD. The report analysed several SRH services, including safe abortion and post-abortion care.[20]
Access to safe abortions and subsequent medical care is a significant challenge in Poland and Germany despite the two countries having different legislative models.[21] In Germany, abortion is unlawful but not punishable if performed by a medical practitioner before 12 weeks of gestation, following mandatory counselling to encourage women to carry the foetus to term and a three-day waiting period.[22] In the case of pregnancies resulting from sexual violence, the mandatory counselling and waiting period may be circumvented. However, in practice, this procedure is not often utilised, which calls into question the adequacy of the services provided to sexual assault survivors.[23] The effects of this regime include significant challenges in finding medical professionals willing to perform abortions, primarily due to concerns about legal repercussions and the complex procedures mandated by the German Criminal Code.[24] Furthermore, interviews conducted by EIGE revealed that the costs associated with abortion present a substantial obstacle for beneficiaries of temporary protection.[25] While an in-depth analysis of the German abortion law is beyond the scope of this blogpost, it is important to note the overall regime goes against WHO recommendations.[26]
In Poland, abortion is heavily restricted and only permitted in cases of rape or when a woman’s health or life is in danger.[27] When the pregnancy is a result of rape, abortion can be accessed up to 12 weeks of gestation. However, the circumstances of the pregnancy must be “ascertained by the public prosecutor”.[28] Thus, women must report their rape to obtain a prosecutor’s certificate, which can prove incredibly hard for women who do not speak Polish and are not familiar with the Polish legal system.[29] Conscientious objection by medical professionals and the stigma surrounding abortion are also barriers to its access.[30]
Despite the legal provisions in Germany and Poland that permit access to abortion services for victims of sexual violence, in practice, this right is not effectively realised, thus not fulfilling the objectives of Article 13-4 of the TPD.
As a result of national laws, women and girls who have fled the war in Ukraine might be forced to travel back to Ukraine to access abortion. Those who indeed travelled for these purposes reported “safety concerns, financial constraints, family care and administrative burdens”, which result in severe anxiety and stress and “exacerbate(s) pre-existing distress and trauma resulting from the war and their displacement.”.[31] This illustrates the way some Member States have failed to guarantee access to healthcare and ultimately protect victims of sexual violence.
When travelling to Ukraine is not possible, unlawful pathways to obtain abortion care might be taken.[32] An alternative might be to travel to different European countries with more permissive legislation, where women and girls might re-register for temporary protection to access reproductive healthcare.[33] Although reports show this is most common in Poland, Hungary, Romania and Slovakia[34], it is crucial to highlight that despite having a more permissive law, Germany is also an origin country for cross-country abortion travel.[35]
While the law prohibiting and limiting access to abortion affects all women, migrant women and girls are often unfamiliar with both the healthcare and legal systems of the host country, as well as its language.[36] Not understanding the law governing abortion has been highlighted as one of the main constraints for beneficiaries of temporary protection.[37]
Despite the existence of a favourable regime at the EU level that aims to assure protection and adequate care for victims of sexual violence under temporary protection, restrictive national legislation imposes significant barriers to access to abortion, leaving women and girls often unprotected and susceptible to more victimisation.
- Additional challenges faced by irregular migrants, asylum seekers and unaccompanied minors
The issues highlighted above for beneficiaries of temporary protection are equally valid for migrant women and girls with other statuses. However, irregular migrants, asylum seekers and unaccompanied minors face additional challenges. Considering the case of Germany, while accessing legal abortion may be an arduous task for all women, irregular migrants face deportation if they seek healthcare. The Committee on the Elimination of Discrimination against Women notes that section 87 of the Resident Law allows for undocumented women to be “reported to the immigration authorities and deported” when accessing the documentation necessary for non-emergency care.[38]
EU citizens and beneficiaries of temporary protection can travel to access abortion in other EU countries, assuming that the associated costs are not prohibitive.[39] However, asylum seekers are barred from travelling inside the Schengen area. Thus, they cannot bypass the abortion laws in their country of residence without resorting to unlawful and possibly unsafe abortion.[40]
Asylum-seeking women have higher rates of induced abortion than the local population, often due to financial barriers to accessing contraception, lack of childcare support or sexual violence experienced on their journey to the EU.[41] Policies and legislation should be developed with this in mind to ensure the availability of abortion and contraception to asylum-seekers.
Unaccompanied minors are also especially vulnerable. Only six EU countries have no age restrictions in place for accessing abortion.[42] Many Member States require parental consent and, given the short period abortion is allowed in most Member States, it does not give minors much time to obtain such consent, given their unaccompanied status and distance from their ‘home’ country, or to seek alternative avenues.[43]
Considering these findings, efforts to promote reproductive justice in the EU must be grounded in an intersectional approach that acknowledges the special vulnerability women may be exposed to due to their migration status. This entails not only reforming restrictive abortion laws but also dismantling barriers to healthcare access more generally.
Conclusion
In conclusion, despite the existence of EU directives such as the Temporary Protection Directive (TPD) and the Reception Conditions Directive, which theoretically ensure access to healthcare for beneficiaries of temporary protection and asylum seekers, significant obstacles remain in implementing and enforcing these provisions. The inadequacy of national legal frameworks to address the specific SRH needs of women, especially asylum-seekers and beneficiaries of temporary protection who are survivors of sexual violence, reflects a systemic failure to prioritise their well-being and rights.
This blogpost has looked at the intersection of migration status and reproductive rights, exposing how restrictive abortion laws exacerbate the vulnerabilities faced by migrant women and girls. More research is needed to unveil what legislative measures can be put in place to guarantee access to legal abortion for all, with a specific attention dedicated to the challenges faced by migrants.
How to cite this blogpost: Pestana, Lúcia, “Barriers to Abortion Care for Migrant Women and Girls”. NOVA Refugee and Migration Clinic Blog, December 2024, available at:
[1] Adele Lebano and others, “Migrants’ and Refugees’ Health Status and Healthcare in Europe: A Scoping Literature Review” (2020) 20 (1039) BMC Public Health.
[2] Inês Keygnaert and others, “Sexual and Reproductive Health of Migrants: Does the EU Care?” (2014) 114 Health Policy 215, 216.
[3] Keygnaert and others (n 2) 216.
[4] Jane Freedman, “Sexual and Gender-Based Violence against Refugee Women: A Hidden Aspect of the Refugee ‘Crisis’” (2016) 24 Reproductive Health Matters 18.
[5] Keygnaert and others (n 2) 221.
[6] European Institute for Gender Equality, “Women Fleeing the War: Access to Sexual and Reproductive Healthcare in the EU under the Temporary Protection Directive” (2024) 42, available at <https://eige.europa.eu/publications-resources/publications/women-fleeing-war-access-sexual-and-reproductive-healthcare-eu-under-temporary-protection-directive>.
[7] World Health Organisation, “WHO Model List of Essential Medicines – 23rd List, 2023” (July 26, 2023), available at <https://www.who.int/publications/i/item/WHO-MHP-HPS-EML-2023.02>.
[8] Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof [2001] OJ L 212.
[9] European Commission: Directorate-General for Justice and Consumers and Fredman, S., “Intersectional discrimination in EU gender equality and non-discrimination law” (2016) Publications Office 27, available at <https://data.europa.eu/doi/10.2838/241520>.
[10] This model classification is based on Federico Fabbrini, The Right to Abortion (Oxford University Press, 2014).
[11] European Council and Council of the EU, “Refugees from Ukraine in the EU” (24 January 2024), available at <https://www.consilium.europa.eu/en/infographics/ukraine-refugees-eu/>.
[12] Council implementing decision (EU) 2022/382 of 4 March 2022 establishing the existence of a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Directive 2001/55/EC, and having the effect of introducing temporary protection [2022] L 71/1
[13] Council Directive 2001/55/EC (n 8).
[14] Ibid.
[15] World Health Organisation, “Health Care for Women Subjected to Intimate Partner Violence or Sexual Violence: A Clinical Handbook” (October 8, 2014), available at <https://www.who.int/publications/i/item/WHO-RHR-14.26>.
[16] Communication from the Commission on Operational guidelines for the implementation of Council implementing Decision 2022/382 establishing the existence of a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Directive 2001/55/EC, and having the effect of introducing temporary protection [2022] C 126 I/01
[17] European Institute for Gender Equality (n 6).
[18] Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast) [2013] OJ L 180. Article 21 of the Directive on general principles reads “Member States shall take into account the specific situation of vulnerable persons such as (…) persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence, such as victims of female genital mutilation, in the national law implementing this Directive.”. This provision, although similar to the TPD, does not establish the same obligation as it calls for Member State to merely take into account the same vulnerability.
[19] See, for example, Deanna Alsbeti, “A Double Standard in Refugee Response: Contrasting the Treatment of Syrian Refugees with Ukrainian Refugees” (2023) 26 Human Rights Brief 72; Veronica Corcodel and Dimitra Fragkou, “Europe’s Refugee “Crises” and the Biopolitics of Risk” (2024) 15(2) European Journal of Risk Regulation 416.
[20] European Institute for Gender Equality (n 6).
[21] Ibid.
[22] Fabbrini (n 10) 204.
[23] European Institute for Gender Equality (n 6) 69.
[24] Ibid, 28.
[25] Ibid, 30. It is important to note that abortion is free when the woman is on welfare, ALG 2 or receives benefits under the Asylum Seekers’ Benefits Act. However, it is mandatory to obtain a cost absorption certificate “Kostenübernahmebescheinigung” at one of the statutory health insurers. In Germany, abortions were described as costly, with the cost of the procedure varying from EUR 500 to EUR 600.
[26] World Health Organisatin, “Abortion Care Guideline” (2022), available at <https://www.who.int/publications/i/item/9789240039483>.
[27] European Institute for Gender Equality (n 6) 28.
[28] The Family Planning, Human Embryo Protection and Conditions of Permissibility of Abortion Act of 7 January 19.93
[29] European Institute for Gender Equality (n 6) 28.
[30] Ibid, 70.
[31] Center for Reproductive Rights, “Care in Crisis: Failures to Guarantee the Sexual and Reproductive Health and Rights of Refugees from Ukraine in Hungary, Poland, Romania and Slovakia” (Center for Reproductive Rights 2023) 18 <https://reproductiverights.org/wp-content/uploads/2023/06/CRR_UkraineReport_V20_Screen.pdf>.
[32] Center for Reproductive Rights (n 30) 18.
[33] European Institute for Gender Equality (n 6) 29.
[34] Center for Reproductive Rights (n 30).
[35] Silvia De Zordo and others, “Gestational Age Limits for Abortion and Cross‐border Reproductive Care in Europe: A Mixed‐methods Study” (2020) 128 BJOG: An International Journal of Obstetrics & Gynaecology 838.
[36] Center for Reproductive Rights (n 30).
[37] Ibid, 20. See also Veronika Tirado and others, “Knowledge of the Abortion Law and Key Legal Issues of Sexual and Reproductive Health and Rights among Recently Arrived Migrants in Sweden: A Cross-Sectional Survey” (2023) 23(1) BMC Public Health 551.
[38] UN Committee on the Elimination of Discrimination against Women, “Concluding Observations on the 9th Periodic Report of Germany : Committee on the Elimination of Discrimination against Women” (2023) 85th session, available at <https://digitallibrary.un.org/record/4013941?ln=en&v=pdf>.
[39] Although EU citizens and beneficiaries of temporary protection are allowed to legally travel in order to access cross-border abortion this is not a feasible option for many women due its high cost. However, there are abortion funds run by NGOs designed to assist in abortion travel. See, for example, Alexandra Wollum and others, “Barriers and Delays in Access to Abortion Care: A Cross-Sectional Study of People Traveling to Obtain Care in England and the Netherlands from European Countries Where Abortion Is Legal on Broad Grounds” (2024) 21 Reproductive Health 7.
[40] It is important to note that illegal abortion does not necessarily equate to unsafe abortion. Lucía Berro Pizzarossa and Patty Skuster, “Toward Human Rights and Evidence-Based Legal Frameworks for (Self-Managed) Abortion” (2021) 23 Health and Human Rights 199.
[41] See Elisabeth Kurth and others, “Reproductive Health Care for Asylum-Seeking Women – a Challenge for Health Professionals” (2010) 10 BMC Public Health 659; Simone Goosen and others, “Induced Abortions and Teenage Births among Asylum Seekers in The Netherlands: Analysis of National Surveillance Data” (2009) 63 Journal of Epidemiology and Community Health 528.
[42] European Institute for Gender Equality (n 6) 26.
[43] Ibid.
