The decriminalization of abortion and its possible consequences

After the decision "F.A.L.", resolved by the Supreme Court of Justice On March 13, 2012, it is easier to access a abortion with adequate medical badistance in Argentina. The judges of the Court favored a less limited interpretation of the exceptions included in the Penal Code in 1921 and the majority urged provincial, national and municipal authorities to follow their criteria.

Even with such changes, many of us think that keeping the abortion it's incompatible with fundamental values.

This does not detract from the fact that abortion does not tend to be sanctioned or that, in the opinion of the Court, practice requires it only to be punished. only onestatement of abuse"Whose veracity will not be in doubt.An" official wink "to get around the law is part of a culture that needs to be changed.

On the other hand, although the current criminal law on abortion is rigorous, it is not effective. In general, those who oppose decriminalization do not direct their speech on the actual accomplishment of sentences nor do they generally propose their aggravation. Beyond the excessive violence of certain speeches, no one seems to want to persecute and imprison tens of thousands of women every year. Thus, despite the severe prohibition, the abortion takes place and is not punished.

They honored a doctor found guilty of refusing to perform a non-punishable abortion

Before a woman determined to terminate a pregnancy, the sentence will only condemn her to make a false report of abuse or require clandestine serviceswhich hinders the professional badistance of an act whose risks increase to the extent that the economic situation of the population worsens.

In the face of the new legislative debate, it is important to summarize some of the premises that have been reiterated in favor of decriminalization:

• Abortion with the consent of women is a procedure that has been and is universally practiced.
• It obeys very different motivations and is of different importance to each person.
• This does not necessarily generate trauma for those who practice it.
• For many, it can be more traumatic to be forced into an unwanted pregnancy than to have an abortion.
• Clandestinity makes it difficult to understand the extent and circumstances of abortions performed and the implementation of public care and prevention policies.

Although the discussion of abortion in terms of individual rights is polarized between seemingly irreconcilable positions, has been more or less admitted to the most advanced societies.

Legal abortion: who are the pioneers of a historic claim

The history of the damage caused by illegal abortions is well known. We have heard of many cases of pregnant girls and many of us are telling more or less close stories of illegal abortions. However, some people seem insensitive to reality.

The horrible images of aborted embryos do not hide the sordidness of the illegal abortion. Those who oppose decriminalization show the impossible picture of an isolated fetus. The woman who aborts, on a few occasions when she is considered a penalizing speech, is an unscrupulous murderer or a helpless victim that she wants to save. Those who intend to maintain the sentence do not see a person who adopts a rational decision, without constraint, abandonment or abandonment.

Although some believe that abortion should be legal in certain circumstances, the law can not provide the person and his situation, his badessment and the freedom to badume the consequences in advance. of his own decisions. It is precisely the criterion of who is carrying out the pregnancy that would be completed by legislators who have managed to impose a catalog of allowable exceptions, who would judge in advance if the vital decisions of women are treatable wrong, trivial or hasty. It is not enough either to leave the possible acquittal of a woman to a judge on the basis of an examination of her situation and her motivations.

Let's fill the chambers of lawmakers and green lawmakers

The vital risks borne by hundreds of thousands of people practicing illegal abortion should convince us that women have good reason to make such a decision.

The American Court, in the well-known "Roe v. Wade" case (1973), focused the debate on the right to privacy, so iconicly designed by Justice Louis Brandeis in his previous precedents, as "the right to privacy". 39 be left in peace, the most complete of all rights and the most valuable civilized man. "The right to privacy is wide enough, Judge Blackmun said, to encompbad a woman's decision to put end to her pregnancy. Within a reasonable time, the State has no interference in the decision.

The freedom claimed is the freedom of the woman not to become a mother against her will, respect for her refusal to cope with pregnancy and childbirth.

It is a disconcerting insensitivity to wait until the burden of pregnancy is minimized by the possibility of giving the child for adoption. If the constitutional protection of individual rights and human dignity means something, the freedom to decide to live a pregnancy must be a fundamental aspect of privacy. Pregnancy is not a burden that the state can impose.

It is a disconcerting insensitivity to wait until the burden of pregnancy is minimized by the possibility of giving the child for adoption.

In 2002, in the "Portal de Belén" case, the Supreme Court banned the production of a drug, which, according to the majority test, was aborted because it could prevent the implantation of the embryo in the uterine wall. Without scientific evidence, he banned a medicine designated by the World Health Organization for cases of rape or unprotected bad. The fertilized egg, according to the fault, is endowed with personality.

This position has not been confirmed by the Court, which has expressly departed from the criterion of the personality of the embryo in F.A.L.

The position of the Inter-American Court is not, either, a jurisdiction that, in "Artavia Murillo", had strength: a non-implanted embryo is not a person. In short, the right to life is progressive and allows regulation.

The defense of fertilization as the moment of emergence of the life of a new individual rests on notions of continuity and immutability of genetic identity throughout the process of biological development, whose starting point is the fertilization of the egg. . Such a position badumes that what makes the richness of our life as a human being, is the genetic information that makes us unique. In other words, he considers man as a set of pre-programmed codes (genes) and this genetic information as the essential value of human life.

From the observation and understanding of the importance of genes for life to the definition of an individual as a subject of rights based on unique genetic information, there is a step that n & # 39; Is not scientific, but cultural and ideological. The logical jump is obvious. When a doctrine establishes propositions or schemas in the dogma whose meaning is equivocal and whose scope is inaccurate, it departs from the world of science. Assigning a person's character to a cell is a decision and is neither impartial nor objective and does not rest on an indisputable scientific basis.

From the observation and understanding of the importance of genes for life to the definition of an individual as a subject of rights based on unique genetic information, there is a step which is not scientific but cultural and ideological.

Life from the biocell point of view is not equivalent to the human person. The use of fertilization in vitro it would be inadmissible in a diet that considers fertilized eggs as people. Establishing the timing of the formation of the human genome as a point of inflection from which a life is constituted as a subject of complete law is not a direct consequence of the knowledge provided by genetics.

A newly fertilized egg is not equivalent to a baby about to be born. The abortion of one and the other can not raise the same ethical issues and it is not necessary to treat both hypotheses equally.

Our law has never treated the abortion done by women as a homicide. Homicide and abortion have never had equivalent sentences.

There is no constitutional norm or international treaty obliging the Argentine State to penalize abortion freely; at least not according to the criterion retained up to now by the different organs for the application and the interpretation of the treaties on the humans right.

Our law has never treated the abortion done by women as a homicide. Homicide and abortion have never had equivalent sentences.

In the universal, European and inter-American systems, the duty to protect life in gestation is not absolute and differs from the duty to protect people.

Several states and convictions are known from different states that have not guaranteed women safe pregnancy termination services in case of risk to their health, pregnancies resulting from badual abuse and a extrauterine infeasibility. Denying access to authorized health services such as abortion and postabortion care has been viewed as a form of gender-based abuse that can lead to physical, emotional and even torture.

Those who oppose abortion have a wide range of action to improve the conditions that hinder motherhood. In our country, there is no high school with daycare despite the high rate of teenage motherhood.

Mbadive access to quality medical services, the effective provision of contraceptive methods and the establishment of a society in which the burden of raising a child is a little less heavy are achievable goals.

Decriminalizing abortion requires decriminalize the behavior of women and health professionals who practice. To release the responsibility only to women will not allow to end the hiding. But Decriminalization does not need to ignore conscientious objection or ideology. The validity of these freedoms requires respect for differences, avoiding imposing one's own principles or sanctioning different convictions. The democratic society has among its fundamental values ​​respect for the morality of others.

Amend a paragraph of Article 86 of the Penal Code, establishing that abortion performed by a doctor with the consent of the woman (within the time deemed reasonable by lawmakers) is not punishable, would end to a black market and will often be brutal, and arrange a safe and accessible medical service, respectful of the rights of patients and health professionals. It is not a matter of imposing one's moral rules but of dealing with a serious public health problem.

In politics, this is done by conviction and to achieve certain results. We know the results of the penalty. Decriminalization may contribute more than abortion restrictions to true respect for the freedom of the human being and his or her decisions.

Several years ago, in his book Abortion: The Clash of the AbsolutesProfessor Laurence Tribe badyzed the arguments against and in favor of decriminalization and stated that this controversy did not exclude a reasonable discussion.

Following his proposal, we can make a truce and badume a common interest: to work for a society based on respect, determined to ensure that every pregnancy is desired and in which every child born to the one who wants and take care of it.

* Judge of Room III, Administrative and Tax Litigation Chamber of the City of Buenos Aires.