The Decriminalization Of Abortion Produced By Rape

The decriminalization of abortion produced by rape

Introduction

It is clear that the right to life composes an absolute, specific right, and is established in international human rights preservative instruments and enshrined in the constitutions of the countries of the world. But despite this recognition and guarantee, in certain laws, important legal norms have been incorporated, some more free than others, prone to restrain the right to life of that individual who is to be born, refugee for it in endless reasons of different different reasonsnature: economic, social, political, religious, psychic, ethical, among others (Rodriguez, 2013). These legal criteria decriminalize the damage to life through legalized abortion, with it victimizing the most helpless and innocent of human beings, both abortion, and their decriminalization, are usually issues that generate controversy in the country and worldwide.

Currently in Ecuador, abortion remains a penalized fact, for indistinct reasons, when a woman makes that decision her reasons are personal, even when she is a victim of a violation and decides to abort the product of it, therefore, the right is the one who regulatesThe relationships between people, social relations, and recognizes the autonomy of the people to whom it imputes the sanctions provided for in their norms, in this sense making a little history it must be mentioned that in the year of 1837 the Criminal Code is promulgatedEcuadorian and the Law of Criminal Procedure and from the announcement of the aforementioned Criminal Code, in even current.

456 of the timely legal instrument, indicated that:

Those who cause the abortion of a woman by any of the analogous media or arbitration to achieve it will be punished as follows: if the means or impositions expressed without consent or knowledge of the woman are used, they will endure a sentence of two to six years,And if they do it with consent or understanding of it, the time of the sentence will be one to four years.

While art. 457 of the same instrument of law, expressed:

Doctors, surgeons, apothecaries or midwives, who teach, suggest or supply, any of the mentioned media or arbitration, will be sentenced to public works for two to six years;But if abortion has been verified, the term of the sentence to public works will be six to ten years

At present, the Criminal Code released in the Official Registry Supplement 147 on January 22, 1971, and its latest reforms correspond to March 18, 2011 continues in effect, correspond to March 18, 2011. Meanwhile, the current Criminal Code decriminalizes therapeutic abortion and eugenic abortion, in the latter it is a case of violation of a woman with mental difficulties or conditions that compromise their lucidity. However, by carefully analyzing the transcribed document, it is evidencethe total approval of the woman or her legal representative in case she is not trained or simply cannot provide the aforementioned consent.

Discussion

In recent days, a very controversial issue has been discussed in the National Assembly, in this case it is the decriminalization of abortion when pregnancy is produced by a violation, in this type of abortion, the objective is to avoid existenceof an offspring not expected by women. Likewise, this type of abortion has been called, by some experts, as a sentimental abortion or ethical abortion or simply humanitarian abortion. International law forces to protect human life, meanwhile the National Assembly of Ecuador should decriminalize abortion in the case of sexual violation, this has been indicated by the organization (Human Rights Watch, 2019), this is reported in advance toA presentation made for the Justice Commission of the Assembly, in order to urged the commission to offer support towards a proposal that would lead to the decriminalization of abortion in case a sexual violation originated, in accordance with the international duties ofHuman Rights of Ecuador.

What clearly leads to think that the Justice Commission in the National Assembly of EcuadorTo victims of sexual violations a great opportunity to decide whether or not to continue with pregnancy, because denying women victims of sexual violations This possibility of deciding whether or not to continue their pregnancy would be considered a very cruel measure.

It is worth mentioning that, the right to life is protected as one of the universal human rights, protected in most constitutions and protected by international human rights instruments. In this sense, by decriminalizing abortion, the right to life of the one that is to be born is transgressed, but in some laws this attack against life clearly decriminalizes, as is the case of Spain with Organic Law 2/2010, on thesexual and reproductive health and voluntary interruption of pregnancy (BOE, 2010). This clearly shows what this law in question protects and is the reproductive right of women, being evidenced the discrimination and violation of rights suffered by the unborn.

In this sense, the first thing to establish is whether the protection of life in international law managesEcuadorian CP establishes within its laws the crime of abortion, located in Title VI, “Of the crimes against people”, Chapter I, “Of the crimes against life”, it is highlighted in Title VI, on “Crimes againstPeople ”, begins with art. 441 that establishes the figure of abortion, which means that for the purposes of the legal body analyzed, Nasciturus is taken into account as a person, of course, does not occur in the civil field, since the fetus has no quality of person, whichIt is obtained at the time the birth is given, since it is completely separated from its mother, this is how the art. 60 of the Civil Code.

It is important to mention the Inter -American Commission who, then, is the one that has the precept of provoking the observance and defense of human rights in the region and acts as an advisory body of the OAS in the matter, but only celebrate the different requests made, andIn relation to the right to life and personal integrity of women, both the Ecuadorian Constitution and International Human Rights Law hinder any action or omission that causes effects on the physical, psychic and emotional integrity of people;However, the penalty of abortion related to the moral character of society, creates a crazy violation of this right, which generates on numerous occasions a breakdown to the right to life of women.

Therefore, there have been several countries in the world that have registered and certified various international human rights treaties;This being a commitment that implies that the State recognizes these norms as national schemes, which is submitted to the committees that regularly evaluate compliance with each signed treaty and that makes each recommendation that these organs issue and, in terms of matter on rights over the rights on the rights on the rightsOf women, they have been the different human rights committees that have recommended certain countries in Latin America, including, Peru, Ecuador and Chile in decriminalizing abortion in cases of sexual violation for being considered said prohibition contrary to international system.

Worldwide there are various organizations, some of these to mention would be the World Health Organization, the Inter -American Commission on Human Rights, the European Court of Human Rights, Amnesty International, Human Rights Watch, the UN Committee against torture, Among others which are responsible for ensuring human rights, but many of them among others, have unanimously declared, in recent years, about the penalty of abortion when mother’s life or health are in danger or when simply pregnancy It is the product of a violation, constituting this an act of torture that violates or transgres An obstacle for women to have access to medical care according to the (United Nations Population Division, 2013).

These international organizations suggest and recommend to the states that eliminate all criminal provisions towards women who have submitted to abortions. These organizations have also requested that states allow abortion in certain cases, because the jurisprudence of the organs established by virtue of their agreements have flatly indicated that denying access to abortion to women when there is a threat to life or healthof the woman, or when a pregnancy is the result of a violation or incest, the rights to health, privacy are being violated and, in a way, to be free of cruel, inhuman and degrading treatment towards the woman.

That said, the Committee for the Elimination of Discrimination against Women states that "the reprobation of a State starts to provide for the provision of conclusive reproductive health services to women in legal contexts is discriminatory". It also states that "the laws that sanction certain medical interventions that disturb the woman exclusively and sanction women who are subject to these interventions," establishing an obstacle to the free access of women to health care to health care. In its jurisprudence, the same committee for the elimination of discrimination against women is the one who has requested a State that please review its legislation with intentions to decriminalize abortion when pregnancy is the result of a rape or sexual abuse.

For specialists in the subject as Vivanco, J. (2019), when a violation occurs, the prohibition of aborting minimizes the possibilities that sexual aggressors pay accounts for their crimes committed, this is because the victims do not report for fear of being judicially persecuted. In the Ecuadorian field, this reality is more likely and are currently a reality, and this is because in many cases the sexual aggressors become close or relatives of the victims.

In this regard, one of the concerns of the Justice Commission of the National Assembly is what happens to the decision of girls who are under 12 years, since by law they would be incapacitated to make that decision to make abort or not. On that, human rights defenders said that the State must locate the different mechanisms to protect and protect victims and punish and punish those responsible.

Therefore, it must be protected, ensuring and above all to protect the rights of the minor, without the consent of the father or legal representative, for example, be a requirement of demand to authorize the interruption of pregnancy, because he himself could beThe responsible. This case is a clear example of the different situations that are manifested in Ecuador and for the different observers of the Observatory of Rights and Justice, they state that, although religious beliefs must be clearly respected, taking into account that Ecuador hasA majority Catholic population, in this regard, these cannot be seen as a standard for the interpretation of international human rights.

It is not enough to accentuate the penalties for sexual aggressors, but a minimum repair is necessary for women and girls of rape. This could be achieved by allowing their life projects, without forcing the end of a forced pregnancy, the Justice Commission of the National Assembly should be exhorted to take into consideration the concept of health as a whole, sinceaccording to the World Health Organization (WHO), since this not only understands the physical state, but also mental and emotional state, which are fundamental aspects that are affected with a violation and irruption of life projects for unwanted pregnancies.

According to a selection of Latin American doctrine and jurisprudence on the causal violation and/or incest in cases of abortion, carried out by the International Program for Sexual and Reproductive Health Law Faculty of Law, University of Toronto, show that the cause ofviolation or incest is decriminalized in some countries such as Argentina, Bolivia, Brazil, Chile, Colombia, Ecuador, Panama, Uruguay and even 32 states of Mexico, therefore, are under legislation and certain administrative resolutions, it is worth mentioning them.

In the case of Argentina, abortion is a crime pointed in Title I, Chapter I ‘Crimes against Life’ of the Argentine Criminal Code. The art. 86 institutes as non -punishable abortion that is exercised in order to avoid a danger to the life or health of women;or the one that prevents a pregnancy from a rape or an attack against modesty committed on an idiot or insane woman. In Bolivia since 1973, abortion is illegal. Article 266 establishes the cases of non -punishable abortion: “When abortion has been a sequel to a crime of rape, rapture not followed by marriage, stupro or incest, no sanction will be applied, provided that the criminal action has been initiated. Nor will it be punishable if abortion had been practiced in order to avoid a risk for the existence or health of the mother and if this danger could not be avoided by other means.

For Brazil, abortion regulations are in the Brazilian Criminal Code, Title I (Crimes against the Person), Chapter I, Article 124 (Crimes against Life). The art. 128 establishes that abortion is not punishable when it is the only means to save the life of women or when it is the result of a violation or stupro, in 2005, the Ministry of Health sanctioned the Portariat No. 1.508/GM where it has a form of authorization for the stoppage of pregnancy in cases provided by law in the scope of the Single Health System.

In Chile, abortion in the Chilean legal system is regulated by two laws: Criminal Code, articles 342 to 345 and the sanitary code, articles 119, 119 bis, 119 TER and 119 Quáter. In particular, article 119 of the Sanitary Code establishes that, “mediating the will of women, the interruption of their pregnancy by a surgeon” is authorized, in three causes: the woman is at vital risk, so that the interruptionpregnancy avoids a danger to your life;The embryo or fetus suffers an acquired or genetic congenital pathology, incompatible with independent extrauterine life, in any case of lethal;Be a violation, provided that no more than twelve weeks of gestation have elapsed.

The case of Colombia Legislation: Abortion in Colombia was liberalized in some cases, through the judgment of the Constitutional Court C-355 of 2006. The causes of non -punishability are: the existence of danger to the physical or mental health of women;when there is serious malformation of the fetus that makes the extrauterine life of it unfeasible or that due to her disability has an unworthy life;In case of rape, fertilized ovulus transfer or unseen artificial insemination.

While, for Ecuador the Integral Criminal Code in article 150 establishes that it will be a non -punishable abortion that is practiced by a health professional who is trained, who also has the consent of the woman, of their spouse or relativesintimate that they are legal representatives in case she is not able to consent to itself. An abortion will be considered not punishable when: it has been practiced to avoid a danger in the life or health of a woman and if pregnancy is the product of a violation of a woman who has mental disability.

conclusion

Those who replicate in favor of the penalty of abortion usually do so at the base to the idea that women, after they become pregnant, lose their situation of people, in the sense that they have understood, that is, they are not individuals endowed with lawTo freedom, dignity and much less equality, and you cannot fail to recognize, much less the claim that women make with an unwanted pregnancy is a claim associated with a broader claim for equal treatment. In this sense, no other individual in any other situation can be forced to perform the supergatory act to which pregnant women are forced.

Therefore, the General Theory of Human Rights requests coherence in its practical application to the bioethical problem of abortion so that it being essential to recognize that, if the restriction of rights requires being justified on the basis of person to person, the lawsystematize abortion may restrict it only when possible to recognize, in Nasciturus, some of the relevant characteristics shared by human people, or for example, discernment or awareness of pain.

As if the existing scientific evidence of these last 30 years was not enough, which has confirmed that this characteristic, which would merit a legal consideration, only appears in that last stage of pregnancy, then that is where the legislation should not only decriminalize abortionIn those cases qualified by human rights organizations typified as serious, or what they mention as a danger to the health and life of the mother and violation, but should raise, rather than a reform with indications, a law that, as hasoccurred in other countries recently, recognize the importance of deadlines, at the time of giving protection to Nasciturus.

In conclusion, the State must respect and eliminate the legal provisions that punish women who have undergone abortion or doctors or people offering these services. As they must also organize their health system to ensure that the exercise of conscientious objection in health professionals and that they do not prevent women from accessing services provided by the health system or, for example, in places where theAbortion is legal, if a doctor refuses to carry it out, the health system must refer women to an alternative medical care service.

Consequently, measures must be taken to ensure women’s access to appropriate medical care services and thus avoiding their lives, also the State that does not yet have a convenient regulatory framework to adopt legislation aimed at guaranteeingWomen the effective exercise on their sexual and reproductive rights, in the understanding that the refusal of the voluntary interruption of pregnancy in conclusive circumstances may constitute a violation of the fundamental rights of women and adolescents.

Bibliography

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