The Legal Good of a Nasciturus

Introduction: Legal Good

• After precepts protecting independent human life, the Penal Code addresses the protection of prenatal or dependent human life through the criminalization of abortion in articles 144 et seq.
• In Spain, protection of human life is not uniform; legal status changes with development stages.
• During gestation, dependent human life is considered a protected legal asset under Article 15 of the Constitution ("everyone has the right to life").
• Intervention has a legal-criminal aspect, but doesn't equal protection for independent human life.
• The life of the nasciturus biologically depends on the pregnant person's body, imposing burdens and limitations extending beyond birth.
• Protection of dependent human life usually aligns with the mother's interests, but sometimes collides with her fundamental rights.
• Examples of conflicts include pregnancies that have a high risk and require absolute movement restrictions for months, or a teenage pregnancy preventing pursuit of life goals.
• A technical-legal analysis of abortion must consider these conflict situations and their treatment in Organic Law 2/2010 (Sexual and Reproductive Health and Voluntary Termination of Pregnancy), reformed by LO 1/2023.

Crime of Abortion: Common Elements

• The result of abortion is a universal element in crimes outlined in articles 144 et seq. of the Penal Code.
• It can be defined as any stopping of gestation that results in the death of the embryo or fetus.
• Despite human life existing from fertilization, for legal protection, it is considered most often to exist from implantation, specifically complete implantation of the fertilized ovum in the uterus.
• Implantations conclude approximately two weeks after conception.
• There is a high rate of fertilized ova that do not implant (around 50%) and little organic individualization at the pre-embryo stage.
• Determining if something has destroyed a legitimately fertilized ovum pre-implantation is nearly impossible in a criminal trial.
• The issue is disputed and affects how some methods that prevent implantation are legally viewed.
• Destruction of in vitro fertilized, non-implanted pre-embryos does not constitute a crime, according to criteria for abortion.
• Administrative responsibility may apply with laws on assisted reproduction (Law 14/2006, Human Assisted Reproduction Techniques and Law 14/2007, Biomedical Research).
• The maximum application limit of abortion is the beginning of birth or full removal of the fetus from the uterus, which relates to homicide.
• Prenatal development is a factor for sentencing, specifically surpassing the fetal viability threshold (22 weeks) which is an aggravating factor for punishable consensual abortions (art. 145.3 and 145 bis 2 CP).
• Embryos or fetuses must be alive and minimally viable, so eliminating non-viable embryos is not a crime.
• This applies mostly in ectopic pregnancies.
• If successful gestation is possible, article 15 of the LO 2/2010 could apply if the abortion is for medical causes.
• Abortion is not limited to any means of execution as a typical conduct.
• Actions such as a doctor extracting an embryo or a violent attack causing fetal death can be classified as abortion.
• Regarding subjectivity, only eventual intent is needed.
• Example: A pregnant woman of 8 months, repeatedly attacked by her husband, tries to escape from a window and falls, causing her death and the fetus’ death (STS 444/2007).
• In cases of concurrency, if the act that induces abortion also causes the death or injuries to the pregnant person, a corresponding concurrence of crimes will be dealt with.
• Example: Murdering a heavily pregnant woman using a firearm is an ideal conflict between the two crimes (STS 721/2016).
• Just because an abortion is punishable doesn't automatically mean there is a relevant risk to the pregnant person’s life/health.
• Example: Doctor performs a consensual abortion on a 13-week fetus in an equipped medical center and the woman unexpectedly has cardiac arrest.

Legal Types (Arts. 144-146 CP)

Abortion caused intentionally by a third party

Without consent or with vitiated consent

• Article 144 of the Penal Code:
• Anyone who causes an abortion without a woman's consent will be punished with 4 to 8 years imprisonment, including special disqualification from any health profession, or providing services in gynecological clinics/offices, public/private, for three to ten years.
• The same penalty applies if consent was obtained through violence, threat, or deception.
• The most serious form of abortion is without the woman's consent, or committed when consent is gained by violence, threats, or deception. This violates human life and the pregnant woman’s dignity/liberty.
• Examples include husband kicking a pregnant woman of eight months in the stomach, forcing abortions by threat, having the doctor lie to the woman about the embryo’s death, or even intimidating the pregnant person into an abortion at an accredited center, making providers believe that the procedure is consensual.
• This precept also applies if she lacks capacity to consent/understand (mental disorders, immaturity).

Abortion consented to by the woman

• Article 145.1 of the Penal Code:
• Anyone who causes an abortion with a woman's consent, that is outside of legal cases, is to be punished with one to three years imprisonment, including special disqualification to practice any health profession, including services in gynecological clinics/offices, public/private, with one to six years.
• In this case, the abortion is carried out by a third party with the consent of the pregnant person, but the woman's involvement is specifically addressed in article 145.2 of the Penal Code.
• Example: A med student causing a woman's abortion (STS 2675/1992); abortions at an accredited center simulating legal grounds (STS 798/2017).

Responsibility of the pregnant person for intentional abortion

• Article 145.2 of the Penal Code specifies:
• A woman who causes her abortion or consents to another person to do it, outside of legal cases, will be punished with a fine that is six to twenty-four months.
• The legislator specifies the pregnant individual to have a less severe treatment, probably due to finding them in a situation of diminished exigibility.
• LO 2/2010 suppressed imprisonment, but maintained the effects that the anticipation of prosecution would produce.

Intentional Self-Abortion

• One form is the woman causes herself the abortion, typically through medications that have an abortive result.
• Example: A twenty-five week pregnant woman that delivers a substance through her vagina and subsequently causes the interruption (SAP-Madrid 474/2021).
• The action is not punishable if the self-induced termination occurs in the first fourteen weeks of gestation, due to the existing indication being applied.
• 145.1 CP does not apply when a third party who is merely complicit in the actions of the woman, because the only typical action that exists is a self-abortion, so the reference crime in this case must be applied for any accomplices.
• There are cases, though, where 145.1 CP is applied automatically to self-abortion cases.

Abortion consented to by the Woman

• When someone agrees to allow someone else to induce an abortion, necessary cooperation/co-authorship could be considered, and would be held accountable in 145.1.
• It is avoided by considering these cases as alleviated in 145.2 СР.
• Example: A woman asks/allows a medical student to perform an abortion (STS 2675/1992).

Negligent Abortion

• According to article 146.1 CP:
• "Whoever by gross negligence causes an abortion will be punished with prison sentence of three to five months or a fine of six to 10 months."
• This was a new figure in Spanish law after the 1995 Penal Code, as the legislation only covered negligent abortions through violent means.
• This, along with fetal injury, meant penetrating criminal law in areas such as abortions that are a result of medical malpractice or traffic accidents.
• Code excludes punishment of the pregnant person who negligently causes an abortion: "the pregnant person will not be penalized."
• Examples are insults, shoves leading to stress, or the mistreatment of the pregnant individual, producing the abortion (STS 552/2018); errors in medical diagnoses that are negligently performed.
• Typified negligent abortion is also professional (article 146.II CP) and there are is no typified minor reckless abortion.

Legal Requirements for Voluntary Termination of Pregnancy

Introduction

• It is important to know the instances of legal, non-punishable abortion given the types that exist.
• These regulations exist in many countries in Europe with two different techniques/models:
• System of Indications: Intrauterine human life is the preeminent interest in any pregnancy, but there are specific instances where the conflict is too strong and the pregnant person prevails- such as terminating the gestation. Outside parties usually confirm the situation. Some countries are extraordinarily restrictive (Poland), while others are quasi a term system (Great Britain, Italy, Finland).
• Regulations in Spain existed in this form between 1985 and 2010- with indications being a serious threat to the life/health of the woman, serious conditions in the fetus, or pregnancy as a result of rape (ethical or criminal law). Compared to other places there is the consideration of socio-economics where social/economic burdens of going through with pregnancy and maternity outweigh those of a normal pregnancy.
• System of Terms: In early pregnancy, the interests of a woman are considered prevalent (health, liberty, intimacy, etc.) and the abortion can be practiced with no restrictions in this period. With distinctions and nuances, the system is accepted in most of Europe (Spain).
• A woman can end a pregnancy in the first fourteen weeks of gestation.
• Can be complemented by medical causes, which can cause medical (therapeutic and embryopathic) indications to be in place, and at more advanced stages of the pregnancy.

Common Requisites

• To apply in cases under LO 2/2010:
• Abortion must be practiced under a specialist doctor, in an accredited center, with informed consent (art. 13).
• LO 11/2015 removed the possibility of young people of 16/17 consenting without parent permission.
• LO 1/2023 has suppressed this requisite.
• For terms, abortions must be performed before the 22nd week; after viability exists birth proceeds.
• In cases of serious fetal anomalies, you can supera this term with restrictions on the habilitation presupositions of the abortion with a reinforced sense of control.
• Regardless of more advanced abortions being able to be determined with greater certainty in their staging, the date of the last menstruation is the point to where a new stage in the gestation properly begins.
• It is clear what count to begin as a time in the moment of fecundations, which is the moment of anidations.
• Clear indications are required to minimize security issues.

Abortion at the Request of the Woman

• 14 LO 2/2010 establishes interruptions for pregnancy for the first 14 weeks at the request of the pregnant person.
• This responds to a term system since it establishes a term in which abortion is permissable in a generalized form.
• Until the reform introduced by LO 1/2023, the termination happens with public aid; with the reform the information is facilitated and it is not conditional to any abortion practice.

Therapeutic Indication

• According to art. 15.a) LO 2/2010 during the first 22 weeks, abortion is allowed in cases of a serious danger to the life or health of the pregnant person; her right is prevalent.
• The impact has to be distinct that what is usually seen in pregnancy.
• Pregnancy is a cause of an illness or affection when the gestation supposes a factor of additional risk.
• Examples are any existing condition that is already present that is going to cause the exacerbations to potentially deadly diseases, such as cancer and heart/kidney affections, or the risk of developing new ones.
• The deciding factor hinges on the degree of danger/severity that is to be used, being calculated by multiplying damage and probability.
• Factors in the barometers have to be objective but also social, and have to reflect the overall well-being of the person.
• Most problematic is cases of grave danger to the psychic health
• Guarantees of verification is established by the need of a dictamen prior to intervention by a separate specialist physician from the one performing it.
• The jurisprudence is established.

Fetopathic Indication

• Per 15.b) L/2010, abortion is permitted only during the first twenty-two weeks of gestation if there is a risk of serious abnormalities in the fetus.
• This is on an individualized basis vs on one of collective base.
• Guarantees of verifications are established by the need of two dictámenes.
• There can be abortions past the 22 week point if there are fetal abnormalities incompatible with life with dictamens by a distinct specialist.

Constitutionality

• After LO 2/2010, an appeal of unconstitutionality was put forward, to be resolved by the constitutional court by STC 44/2023.
• Ethical and legal considerations are especially relevant within the sphere of consideration, coming to disparate views regarding the positions one typically stands for/against.
• The LO 2/2010 responds to a system of indications that have the basis as found in the 1985 court ruling.
• 53/1985 established an indication when pregnancy was caused through rape.
• The ruling from the court established that a nasciturus is not a titular to the fundamental right to life as established by article 15 CE.
• However, their life is protected through laws of the state and penal remedies.
• Protection is to be lost when there is conflict with a woman’s rights, infringing on her life, health, or dignity.
• Current doctrine is not aligned with a generic system of terms.
• The court is trying to conjoin the rights to abortion with that of life.
• They did admit to potential periods in which generic renounce to punished consensual abortions would be considered.
• As of 44/2023 (FJ 3-6) the following occurs:
• An abortion is an exercise in choice and adoption that is free from coercion, respects the body, and does not impede the rights that are present from a moral/physical nature.
• The court believes a tiered system can allow a chance to exercise that system of rights by punishing only uncommitted actions.
• Once pregnancy elapses, the intensity of the protection of said nasciturus is the only factor for limiting it.

Non-compliance

• According to 145 bis CP, if an abortion that fulfills the material requisites and necessities does not fulfill the requirements and preceptive steps, the person will be castigated with mulcts.
• Regardless of legal cases and code, the LO has parameters that must be fulfilled.
• Justifying causes can be brought forward in court when these values are violated.

Problematic of the error

• This issue has recently been brought up in terms of the system of indications for LO 2/2010.
• The system has slightly diminished the situations.
• An error of diagnosis through miscalculating the term of a pregnancy is to be solved according to 14.1 CP (error of type).
• An error in the legal weight/evaluation of a fact will likely be an error in prohibition.
• Professionals are liable to assess abortions in a fair manner.

Application of the System in Spain

• Recent publication by the ministry of Sanidad states that 90,189 abortions occurred (2021).
• The highest portion are performed in the first fourteen weeks.

The penal code protects prenatal human life by criminalizing abortion. The legal states of people change through development. The protection of dependent human life aligns with the mother's interests but can cause fundamental rights to collide.