Unborn Life and Abortion Legality: A Jurisprudential Analysis
The Life of the Unborn
Article 19, No. 1, inc. 2: “The law protects the life of the unborn.”
However, until 1989, no therapeutic abortion was punished according to Art. 119 of the Health Code, which required the opinion of two non-treating physicians.
Methods of Abortion:
- Therapeutic Abortion: To destroy the life of the unborn child to save the mother’s life or health seriously threatened during pregnancy or childbirth.
- Ethical Abortion: To terminate the pregnancy resulting from rape.
- Eugenics Abortion: A technique that seeks to improve the race by terminating a pregnancy where the child is feared to be born with a physiological, anatomical, or mental deficiency.
- Malthusian Abortion: Based on the theory of economist Thomas Malthus, who stated that while population increases geometrically, food production increases arithmetically. This involves terminating a pregnancy because the mother already has other children and cannot afford to feed another.
- Social Abortion: The mother, regardless of whether or not she has other children, lacks the resources to raise the child.
- Honorary or Sentimental Abortion: To terminate the pregnancy to save the prestige of the single mother.
- Abortion for Convenience: Terminating a pregnancy to avoid difficulties for the mother.
Arguments for Decriminalizing Abortion
Although the Constitution protects the life of the unborn, there are current movements seeking to decriminalize abortion:
1st Argument:
The legislature may exceptionally decriminalize some forms of abortion. Those who believe and affirm that the unborn child is not a person argue that it is a person but not established as such according to the Civil Code until birth and thus does not have rights. In support, they add that the Constitution believes that the unborn child is not a person because if it had considered it a person, it would have sufficed for the Constitution to provide that it guarantees all people physical and mental integrity…but it did not consider people; it had to include a special passage.
Historical Analysis: If you analyze the records of the Ortúzar Commission, you will realize that the majority agreed with legalized abortion, and only two members (A. Guzman and A. Silva B) opposed outright decriminalizing all forms of abortion. The others thought: “That allowing a family to have an abortion or not has more to do with religious or moral issues, rather than with law; the Constitution cannot be mixed with moral issues.”
2nd Argument:
That the unborn child has neither the will nor the understanding, therefore, can hardly be considered a person.
Counterarguments:
Those who hold the position that the unborn child is a person start from a philosophical claim of Julian Marias: “Life is essentially a single entity that does not support division, a continuum that begins at conception and ends with death, regardless of the mental or physiological characteristics of the child before or after birth. The important thing is that the stages of life are interdependent; if you end up with a just life, it shows that it is a single entity.”
It is true that according to the Civil Code, a person is only recognized at birth because the Civil Code only expresses itself by taking into account the need to enter into the enjoyment of property rights. But in any case, the Civil Code does not deny the unborn child the quality of personhood to enjoy rights different from property rights, such as the right to life or birth.
It is true that the Constitution did not explicitly recognize the unborn child as a person because it provided a special provision for the unborn child. If the Constitution contemplated a special provision, it was not considered that it was not a person but to strengthen its protection. By incorporating this into the Constitution, it is no longer up to the legislature. If there is a constitutional limitation imposed by the legislature, the argument that the unborn are not persons because they have no will nor understanding is ridiculous because then the insane should not be seen as persons either.
Mohor Theory
Women could be saved from sentencing by arguing that when having an abortion, they had been motivated by an irresistible force or duress (on the grounds of justification that prevents the crime from being born, Art. 10 of the Criminal Code). In the worst case, the crime may have occurred, but she escapes punishment because she acted as driven by this irresistible force or duress, which exempts her from the criminal offense. No one can claim to be a hero and behave in such situations as the expected behavior for the law.
Theory of Double Effect
According to the Criminal Code, an offense is a voluntary act or omission punishable by law. It must be aimed directly towards the end punishable by law (in this case, the death of the child). For the offense of abortion, the intention must be to kill the creature that is in the womb.
In therapeutic abortion, the baby dies as a result of the action to save the mother’s life or health in serious jeopardy. However, this action will produce another effect, which is the death of the child, which was not the direct intention; therefore, it is not a crime.
According to those who accept this theory, the so-called therapeutic abortion would not be a crime and therefore would not involve punishment for the mother or doctor.
For jurisprudence, the unborn child is a person and the owner of rights, being protected by Art. 19. So that any form of abortion is a crime, except for spontaneous abortion and that produced by a non-directed action (cuasi-abortion).
Prohibition of Illegitimate Pressure
Urgency means any measure or action performed to encourage conduct, to make the recipient act in certain ways. It can be physical or moral. It is legitimate if permitted by law (i.e., arrest of a spouse or parent who refuses to pay child support).
Arrest: Action to persuade through actions. Not to be confused with detention, which is used for crimes. The arrest lasts 15 days, but if the reason for it is satisfied, the person is entitled to release.
Illegitimate constraints are endless. Some of these are:
- To stop or arrest a person in cases not permitted by law.
- To threaten with detention, expulsion, arrest, abuse, death, and so on…for a certain behavior.
- To condition the service of an officer with sexual compulsion.
- To make threats.
Torture (Illegitimate Constraint Par Excellence)
Physical or mental suffering unduly caused to an individual or family members by state agents or individuals acting on behalf of public officials to obtain something from the person suffering the torture or to make them proceed as intended by those who practice it, especially to issue a statement or testimony in a criminal proceeding. It has been classified as a crime against humanity by the International Treaty Against Torture in 1984 and by the International Treaty to Prevent and Punish Torture adopted by the General Assembly of the OAS (1986). Given the nature of the crime against humanity, it falls under universal jurisdiction.