El aborto en el Código Penal

Introduction

• The Penal Code addresses the protection of prenatal or dependent human life through the regulation of abortion in articles 144 and following.
• The legal status of human life in Spain varies, with different stages receiving different levels of protection.
• Dependent human life during gestation is protected under Article 15 of the Constitution, ensuring effective legal protection, potentially involving penal intervention.
• The protection of the "nasciturus" is biologically linked to the pregnant person's body, imposing burdens and limitations that can extend beyond birth.
• Conflicts may arise when protecting dependent human life clashes with the rights of the pregnant person.
• The technical-juridical analysis of abortion requires considering conflict situations, as regulated in Organic Law 2/2010, Sexual and Reproductive Health and Voluntary Interruption of Pregnancy, Law 1/2023.

Common elements of abortion crimes

• The result of an abortion is defined as any interruption of gestation that causes the death of the embryo or fetus, according to articles 144 and following of the Penal Code.
• The object of penal protection is generally considered to exist from the moment of implantation of the fertilized ovum in the uterus.
• The implantation is considered to be approximately two weeks after conception.
• It is argued that since many fertilized ova do not implant, and pre-embryos lack organic individuality, it is nearly impossible to determine if an action destroyed a fertilized ovum before implantation.
• The destruction of fertilized in vitro pre-embryos that have not been implanted does not constitute the crime of abortion.
• Administrative responsibility may exist according to legislation on assisted reproduction and the use of embryos, Law 14/2006 and 14/2007.
• The maximum limit for the application of the crime of abortion is the beginning of the birth, also addressed in the crime of homicide.
• Fetal viability is a factor in determining the penalty, with the ability to survive outside the womb being an aggravating factor in punishable consensual abortions.
• The embryo or fetus must be alive and viable; eliminating inviable embryos is not a crime.
• Extrauterine pregnancies might be applicable for abortion due to medical causes of article 15 Law 2/2010 if the gestation continues successfully.
• The crime of abortion is not restricted to any specific method of execution, and subjective intent only requires eventual intent.
• The crime of abortion covers multiple examples of fetal extractions.
• If the act provoking the abortion also results in the death or injury of the pregnant person, whether intentional or unintentional, there is a concurrence of offences.

Types of Legal Abortion

• Abortion provoked intentionally by a third party.

Without consent or with vitiated consent

• Article 144 of the Penal Code punishes anyone who causes an abortion without the woman's consent with imprisonment and special disqualification from practicing any health profession.
• The same penalties apply to someone who obtains consent through violence, threats, or deception.
• The most serious form of abortion occurs without the woman's consent or when consent is obtained through violence, threats, or deception.
• This violates not only the developing human life but also the pregnant person's freedom and dignity.
• This law also applies if the woman lacks the capacity to consent, that is, to understand the nature and significance of their decision.

Abortion consented to by the woman

• Article 145.1 of the Penal Code punishes anyone who causes an abortion with the woman's consent outside the cases permitted by law with imprisonment and special disqualification from practicing any health profession.
• This is a situation where a third party causes an abortion with the consent of the pregnant person.

Responsibility of the pregnant person for intentional abortion

• Article 145.2 of the Penal Code states that a woman who causes her own abortion or consents to another person causing it, outside of the cases permitted by law, will be punished with a fine.
• The law punishes the pregnant person less severely in light of her state of diminished requirements.

Auto-Abortion

• The first scenario occurs when the woman induces the abortion herself, often using medications with abortive effects.
• If the self-induced abortion occurs during the first fourteen weeks of gestation, the corresponding indication applies, and the conduct is not punishable.

Abortion consented to by the woman

• In cases where the woman consents to a third party causing an abortion, there is the question of whether she is a necessary participant or co-author of the act in Article 145.1 of the Penal Code.

Unintentional Abortion

• Article 146.1 of the Penal Code dictates that anyone who causes an abortion through gross negligence will be punished with a prison sentence of three to five months or a fine of six to ten months.
• The Penal Code excludes punishment for a pregnant person who unintentionally causes her own abortion.
• There also an established form of abortion due to serious professional negligence, but there is no specified type of abortion for minor negligence.

Legal requirements voluntary termination of pregnancy

• The legal regulations for abortion vary across European countries. Laws permit combining each system, which makes it difficult to categorize into two models.

System based on indications

• Intrauterine human life is considered the pre-eminent interest.
• Specific situations determine what is considered "indications".
• If the conflict is extremely intense, the interests of the pregnant person outweigh continuation of the gestation.
• The finding of these situations remains in the hands of third parties.

System based on timelines

• During the first weeks of gestation, the women's interests can be affected (health, freedom, intimacy, etc.) and generally outweigh the pre-natal life.
• Abortion may be practiced without restrictions during this stage.
• Article 14 of Law 2/2010 allows women to terminate their pregnancy during the first fourteen weeks of gestation.
• The law is supplemented with abortion for medical reasons, comprising two indications with regard to the therapy and embryopathy.
• It may be applied to a more advanced stage of the pregnancy.
• The legal nature and the events of abortion has considerable controversy and, as such, the laws should have justification.

Common requirements

• For the cases mentioned in Law 2/2010 to be applicable, the abortion must be practiced under the direction of a medical specialist in an accredited center.
• There should be prior express and informed consent of the woman.
• Law 1/2023 eliminated the possibility of young people needing authorization to undergo abortion.

Abortion at the request of the woman

• Article 14 of Law 2/2010 stipulates that during the first 14 weeks the pregnancy may be interrupted at the request of the pregnant woman.
• It is considered that the interruption can be based on the request of an individuals.
• Law 1/2023 states that the woman must still be informed of all available rights.

Therapeutic Indication

• Article 15 of the LO 2/2010 indicates there will be no penalties for abortion being performed when there is a grave matter that endangers the individual.
• In this case, the decision to consider life or death, as well as the affectation, must be different from the normal process .
• It is not necessary to know when the condition of the pregnancy became a factor in an individual.
• The seriousness of a patient must be judged on a factor that is decisive towards the condition or risk.

Fetopathic Indication

• It is not punishable under Art. 15.b, LO 2/2010 if the abortion is during the first 22 weeks of gestation and there is a risk.
• This is to not limit the development of life and to prevent the assumption of pregnancy.
• There must be 2 prior actions relating to the intervention.
• Abortions can be performed after the 22 weeks if deemed necessary.
• The situation should be confirmed by clinical trial per Law 2/2010.

Constitutionality

• After the promulgation of Law 2/2010, an appeal of unconstitutionality was filed, resolving in STC 44/2023.
• The constitutional issue for an ethical and legal approach focuses on balancing the moral status of the embryo and of the fetus.
• Prior to Law 2/2010, the Spanish regulations for legal abortion complied with the system of indications.
• If there is any conflict that is impossible regarding the rights of women a protection is needed.
• Court decisions that question these indications were admissible constitutionally.

Non-compliance of requirements

• According to Article 145 the CP, the requirements have been basic upon 14 weeks.
• The people that carried out these actions are to be punished without exceptions.
• Having a legal situation does not grant any code on penalty.
• The Law of 2/2010 sets the parameters of conflict from occurring.

Application of the system in Spain

• A government publication shows just over 90000 abortions that occurred in 2021.
• 95% occurred during the first 14 weeks of gestation.
• 7.8% were from individuals of the age of 20.
• Almost all are conducted at the woman's request with other percentages for what is involved.

Análisis del delito de aborto en el Código Penal español. Se examina la protección de la vida humana dependiente durante la gestación y su regulación en los artículos 144 y siguientes. Se consideran los conflictos entre la protección del nasciturus y los derechos de la mujer embarazada.