Document on voluntary interruption of pregnancy
| Autor | M. Casado - M. Corcoy - R. Rosi - A. Royes |
| Páginas | 35-53 |
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The Observatori de Bioètica i Dret, based in the Barcelona Science Park, was formed in response to the need of analysing, from a scientific and multidiscipli-nary point of view, the ethical, social and legal implications of biotechnology and biomedical problems.
The Observatori de Bioètica i Dret Opinion Group was formed in 1996 in order to bridge the gap between universities and society to convey scientific and technological knowledge and provide the necessary arguments to take part in a truly informed public debate. In sum, this involves allowing people’s opinions to be heard before administrative and political agencies which regulate and control research activities and applications of new technologies. In this exchange it is necessary to involve the media, not only to improve the quality of information but also due to their power to create public opinion.
On this occasion the Group presents a Declaration of Opinion with the intention of intervening in the debate concerning voluntary interruption of pregnancy with the understanding that both bioethics and law must be involved in solving disputes and providing real solutions. With this in mind this Declaration puts forward a number of regulatory measures which put a stop to the current situation of legal insecurity derived from the distorted application which is made in the current obsolete laws.
Abortion is a real public health problem so both ethics and law must deal with presenting guidelines on conduct which can be followed by most citizens, respects minorities and always bears in mind the framework and principles of Human Rights.
This theme, as usually occurs with most problems challenging or brought about by bioethics, a profound debate involving people from many sectors is required which covers ethical-philosophical, anthropological, legal, economic and social health factors along with strong scientific and technical support from the sectors involved in the fields where this debate takes place.
To prepare this Declaration the Group has been co-ordinated by Drs. María Casado, Mirentxu Corcoy, Rosa Ros and Albert Royes and has received contributions from multidisciplinary areas by specialists listed at the end of this declaration.
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Abortion was legalised in the Criminal Act for three possible situations1: pregnancy caused by rape -when reported previously-, foetal malformation and serious danger for the mother’s life or health, providing it is carried out with the patient’s consent and all the established requisites are met. The need to reform the regulation has raised an old controversy, has received widespread coverage in the media and this has highlighted the confiicting values and rights which require urgent attention by public authorities to provide solutions for material justice combined with legal guarantees.
The current legislation on voluntary interruption of pregnancy was passed towards the end of the period of political transition and seemed then to be the only one possible. The introduction of a system of guidelines for voluntary interruption of pregnancy also implied some progress. However, it is now obsolete. Throughout the Act’s existence reform has been considered so
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necessary that governments -despite absolute majorities- neither abolished or restricted it or even attempted to limit the loose interpretation applied to it. However, under no circumstance have these governments carried out the necessary reforms to the law to adapt the rules to the present needs of society which mean unnecessarily restricting it, leaving it devoid of content. And here we stand. Nothing prevents each and every case of alleged legal abortions from being investigated in detail as is presently the case.
The present dispute stems from the extensive and widely accepted interpretation made concerning abortions due to therapeutic reasons in cases where the future mother is suffering psychologically, and in fact this is used in such a way that it includes -against the provisions of the abortion Act- social economic reasons. In addition, one must bear in mind that for therapeutic reasons there are no set periods so, in principle, abortion can be carried out during the whole period of pregnancy. The latter, despite covering obvious social needs and problems worthy of protection, creates a situation of legal uncertainty which has already been repeatedly highlighted. It is always a negative symptom when the way regulations are dealt with goes against general practices, above all when these lie in the sphere of criminal justice and even means bordering on material justice solutions. What is required of the legislator is for him to take on the problem and provide a reasonable answer.
Abortion has had a long history of prohibition and practice. Suppressing it has not led to avoiding it but simply turning it into something highly unsafe for a woman’s health and life. Accepting this risk is clearly discriminatory which not only affects women and men but discrimination arises among women themselves since obviously, situations of poverty and lack of education and access to safe abortions vary greatly depending on the cultural and economic status of the woman. That is why the law must strive to guarantee condition of equality and offer all women the same opportunities.
The first consideration to be made is that in all legal systems abortion without the pregnant woman’s consent must be a crime to respect her autonomy. Secondly, at no time in history has abortion ever been considered homicide or murder. Nor is it considered equal on a social level and the loss of a foetus is not equal to the death of a person. The third fundamental reason is that an abortion law must go hand in hand with sexual health and reproduction education and good policies which will make access to information and con-
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traceptive methods easy and will encourage responsibility in sexuality so that abortion will never have to be the first option.
In comparative law, voluntary interruption of pregnancy is regulated by laws that include guidelines of cases where abortion is legal, either through a law which sets periods for carrying out the abortion with no other requirements than the woman’s consent or through a mixed system which observes a system of time periods during the first weeks of pregnancy and then guidelines come into play and even prohibition2. The system of set periods is the only one that does not transfer the decision to a third party, i.e., it is the one that most takes into account the woman’s freedom. When deciding on one legal technique or another, different valuations of the dispute arise between women’s effective rights and potential rights of the unborn baby, which the Spanish Constitutional Court does not regards as a person but a legally protected object3.
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Between problems of extreme cases that arise when more rights are given to the foetus than women, abortion is prohibited in all circumstances or absolute rights are given to a woman’s free choice over her body at all times, this Declaration proposes a gradualist approach which bears in mind the factual circumstances and arguments based on reasoning what we advocate. At the beginning of pregnancy it is understood that the woman’s decision predominates the odds of life at the embryo stage and by establishing set time periods this is left up to the person with rights -the woman- her decision, by respecting her independence and with no need for controls by third parties -doctors, psychologists or relatives-. From then on, it is considered that the higher the foetus’ odds of life grow the greater degree of protection it deserves.
This Opinion Group’s approach starts by considering the public debate on abortion should not include criteria based on religious conceptions, on whether it is right or wrong or ideal life appropriated for imposing them on oneself voluntarily but not a subject of interpersonal moral correction which can be imposed on others. This means it is not possible to debate, deliberate on or discuss controversial subjects in the field of bioethics, such as abortion, if one fails to accept the rules of the values of science...
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