The abortion in Argentina , based on the voluntary termination of pregnancy or induced abortion is a crime described in Title I, Chapter I “Crimes against life” of theCriminal Code Argentine . Likewise, this code establishes as non-punishable abortion the one practiced in order to avoid a danger to the life or health of women (therapeutic abortion ); Or who interrupts a pregnancy resulting from a rape or an attempt against the modesty committed on an idiotic or demented woman. 1 Note 1
In March 2012 , the Argentine Supreme Court of Justice stated that abortion is not punishable in violations committed against any woman; And also indicated that it is not necessary to appeal to justice for its realization. 2
Guidelines and protocols for performing abortions
Technical guide for comprehensive care of non-punishable abortions
In October 2007 , the Ministry of Health of the Nation , through its Sexual and Reproductive Health Program, developed the so-called Technical Guide for comprehensive care of non- punishable abortions . 3 It indicates that it aims to promote equality of rights, equity and social justice as well as to contribute to improving the structure of opportunities in the field of sexual and reproductive health, and in particular “to define measures to reduce and eliminate The barriers to access to abortion permitted by law. ”
The guide was updated in June 2010 . 4 It was initially announced as a ministerial resolution, a fact that had to be denied by Health Minister Juan Manzur . 5 In 2015, the Ministry of Health of the Nation updated the guide to care for non-punishable abortions, where it considers the legal interruption of a pregnancy as a right of women, and also incorporates mental health for the first time, as a reason to request a Abortion not punishable. 6
The guide provides a brief summary with statistical information. A study by Dr. Edith Pantelides and the licensed Silvia Mario, who estimated that the number of abortions per year in Argentina is 460,000. To calculate this number, they were based on the number of hospital discharges by abortion (both induced and spontaneous ) occurred in the year 2000, and applied certain statistical formulas. 7
The 2007 guide specifies that, according to the Ministry of Health’s own records, there are around 100 deaths a year due to unsafe abortions, which is the main cause of maternal death. In addition, a total of 78,894 hospitalizations per abortion were counted, regardless of whether they were induced or spontaneous.
In the 2010 guide, the number of deaths from unsafe abortions was reduced to around 80, and became only one of the leading causes of maternal death, accounting for about 30% of them. In this publication, hospitalizations for induced and spontaneous abortion were reduced to 59,960.
These figures have been considered exaggerated and false by some analysts, who understand that the data is manipulated in order to promote the decriminalization of abortion. Referring to Fig.
Legal framework and principles
The guide presents a summary of the legislation related to the topic, citing articles of the Constitution of international treaties , the Criminal Code of the Nation and Law No. 25.673 on Sexual Health and Responsible Procreation.
It also mentions a number of principles to be followed, including favorability, which states that in case of doubts about the meaning of a rule or its application, the interpretation or application that best sympathizes with the rights of women.
Definition and Finding of No Punishability
The guide lists cases of non-punishment of abortion as follows:
- In cases of danger to the life of women.
- In cases of danger to the health of women.
- When the pregnancy is the product of a violation.
- When the pregnancy is the product of the indecent assault on an idiot or insane woman.
- Mental health, understood as affecting the health of the pregnant person (since 2015) 9
It indicates that “the complete state of physical, psychic and social well-being, not just the absence of diseases,” as defined by WHO, should be interpreted as health . In certain cases, it has been interpreted that rape should be committed only on women with The abovementioned disabilities so that abortion is not punishable ( eugenic abortion ). 10
The non-punishability of cases of danger to the life or health of the woman must be verified by the treating physician, who may also make an interconsultation with another doctor or, in cases of danger to mental health, with a professional Of psychology.
In cases of rape or indecent assault, the 2007 guide specified that a police or judicial complaint should be filed. As of the launch of the 2010 guide, if there is no complaint, it is sufficient to file a sworn statement.
It also states that any imposition of additional requirements is considered a violation of the rights of women to access abortion in cases permitted by law.
Methods of Abortion
The guide lists the different safe abortion methods, making a distinction between Preferred Methods and Other Methods and indicating the weeks that must elapse since the last menstruation .
The preferred methods are:
- Manual or electric vacuum aspiration: between 5 and 12 weeks from the last menstrual period. It may take up to 15 weeks as long as they are well-trained providers.
- Dilation and evacuation : between 13 and 22 weeks from the last menstruation.
- Mifepristone and Misoprostol (or gemeprost ): between 5 and 9 weeks since the last menstruation. It is being investigated whether this method can be applied until after 12 weeks. Between 13 and 22 weeks, doses of Misoprostol (or gemeprost) should be repeated.
- Vaginal prostatiglandins in repeated doses: 12 to 22 weeks from the last menstrual period.
The Other Methods are:
- Dilation and curettage: between 5 and 11 weeks from the last menstruation.
- Hypertonic solutions : between 12 and 22 weeks since the last menstruation.
- Prostaglandins intra amniotic or extra amniotic: between 12 and 22 weeks since the last menstruation.
Protocol for the integral attention of the people with right to the legal interruption of the pregnancy
In April 2015 , a new update of the Technical Guide for comprehensive care of non – punishable abortions is published , in this case under the name of Protocol for the comprehensive care of persons entitled to legal termination of pregnancy . eleven
History of abortion legislation
In 1886 the first Penal Code of Argentina was sanctioned. It penalizes abortion in all cases. In 1903 , the code was reformed for the first time and established that cases of attempted abortion were not punishable . The non-punishable cases that are currently in force arise from the second reform of the code, sanctioned in 1921 .
The Commission Code of Argentine Senate approved the new code was integrated by legislators Joaquin V. Gonzalez , Enrique del Valle Iberlucea and Pedro A. Garro. This commission explained that, as far as abortion was concerned, it was based on the text of the 1916 Swiss Penal Bill . He also understood that the non-punishment of therapeutic abortion needed no explanation; whereas, for cases of indecent assault on women with mental disabilities, was justified with the following quote from lawyer and politician Spanish Luis Jimenez de Asua referring to Swiss draft: ” This is the first time that legislation will dare to legitimize Abortion with an eugenic purpose, to prevent an abnormal or degenerate being from being born of an idiotic or alienated woman or an incest . ” Although the Swiss text made reference to the case of incest, it was excluded from the Argentine code. 12
In 1968 , under the regime of the self-proclaimed Argentine Revolution , commanded by Juan Carlos Ongania , Decree Law No. 17,567 came into force , which established the exception of the crime if the danger to the life or health of the woman was serious; Or in any case of rape, provided that it is judicialized, and with the consent of a legal representative if the woman is a minor, idiot or demented. After the arrival of the democracy in 1973 , these modifications were left without effect through the sanction of the Law Nº 20.509.
In 1976 , during the self -proclaimed National Reorganization Process , Law Decree No. 21,338 is sanctioned, which reincorporates the modifications made in Onganía’s decree law. However, in 1984 , already in democracy, Law No. 23,077 is sanctioned, which brings the situation back to what was sanctioned in 1921. 13
The public debate: sanctions, judicial decisions and declarations
Law No. 23,054, which approves the American Convention on Human Rights , an international treaty whose text declares that the right to life exists “in general, from the moment of conception “. 14 Since its reform in 1994 , the National Constitution establishes the constitutional hierarchy for that treaty in its article 75, paragraph 22. fifteen
In 1990 , Law No. 23,849, which approved the Convention on the Rights of the Child , was sanctioned . Article 1 of the law declares that every child under 18 years of age is a child unless, by virtue of the law applicable to him, he or she has attained the age of majority. 16
In 1998 , after an interview with Pope John Paul II in Vatican City , Argentine President Carlos Menem passed a decree declaring March 25 the Day of the Child to Be Born. 17 During the first celebration in 1999 , the president said that “Argentina has placed among the priorities of its foreign policy, a strong and decisive action in defense of life”. 18
In 2002 , the Supreme Court ruled in favor of the civil association Portal de Belén , which had denounced the Ministry of Health of the Nation for authorizing the use of the drug Inmediat, which prevents the implantation of the blastocyst . In the text of the ruling it is affirmed that “the beginning of human life takes place with the union of the two gametes , that is to say with the fertilization , at that moment, exists a human being in embryonic state”. 19
In 2004 , Judge Carmen Argibay was appointed to the Supreme Court of Justice of Argentina. 20 Due to their position in favor of the decriminalization of abortion, different organizations had filed challenges to their application. twenty-one
That year, Ginés González García , Minister of Health of the government of Néstor Kirchner , declared his support for the decriminalization of abortion. 22 Later, President Kirchner himself expressed his rejection of the proposal, but pointed out that “in that there is freedom of conscience”. 2. 3
In July 2007, the National Academy of Moral and Political Sciences published an opinion on the project of non- punishable abortions in which it was held that “norms of any level sanctioned by Congress, legislatures and municipal councils, and Which authorize the direct death of an innocent person, lack constitutional validity, and it is irrelevant that those affected have a week or three months of gestation, a year or eighty years of life, and everyone has the same right to life. ” 24
During the 2007 election campaign , then-presidential candidate Cristina Fernández de Kirchner declared against abortion, although she clarified: “I do not think those who advocate the decriminalization of abortion are in favor of abortion: that would be a simplification” . 25
In March 2010, in a review conducted by the Human Rights Committee on Argentina, paragraph 13 states “concern about the restrictive abortion legislation contained in article 86 of the Criminal Code, as well as the inconsistent interpretation (Articles 3 and 6 of the Covenant) “and recommends that” The State party should amend its legislation in such a way that it effectively helps women to avoid pregnancies And that they do not have to resort to clandestine abortions that could endanger their lives. The State must also adopt measures for the training of judges and health personnel on the scope of article 86 of the Penal Code. 26
In June 2010, in a review conducted by the Committee on the Rights of the Child on Argentina, the State is recommended, in paragraph 59, that, inter alia, “Take urgent measures to reduce maternal mortality related to abortion , In particular by ensuring that the medical profession knows and practices non-punishable abortion, especially in the case of raped girls and women, without the intervention of the courts and at the request of them “and that” Article 86 of the Criminal Code At the national level to prevent disparities in existing and new provincial legislation regarding legal abortion. ” 27
In March 2012, the Supreme Court of Argentina, through the ruling ” F., AL s / autosatisfactive measure “, and in order to disambiguate paragraph 2 of Article 86 of the Penal Code, states that abortion is a right For any victim of rape who submits to the health personnel an affidavit stating this situation. The Maximum Court affirms that the Argentine State is guarantor of the access to the abortion in the conditions that the law establishes. This ruling cites work done by the World Health Organization; And observations of the Human Rights Committee and the Committee on the Rights of the Child. 2
The Catholic Lawyers’ Corporation issued a statement questioned the different scope of the ruling, including allowing abortion for any case of rape, that a prior complaint is not necessary, that national and provincial authorities have been urged to implement hospital protocols and That the time in which the doctor exerts his conscientious objection is limited. 28
In March 2015, Daniel Gollán , Health Minister of the government of Cristina Fernández de Kirchner, said that “there are 500,000 abortions in the country per year and it is the main cause of maternal death. A serious debate must be carried out without going to extremes Ideological and religious, from the point of view of sanitarianism, you have to do something, we are going to foster a mature debate with all sectors of society. ” 29 Faced with this statement, Chief of Staff Aníbal Fernández disavowed it by stating that the item “is not on the agenda of this government”. 30
Interpretations to the American Convention on Human Rights about abortion
There are different interpretations of what is stipulated in the American Convention on Human Rights in relation to abortion.
Dr. Gregorio Badeni argues that the Convention prohibits abortion, stating that “Article 4, paragraph 1 of the American Convention on Human Rights establishes that the right to life is protected from the moment of conception.” 31
On the other hand, Venezuelan lawyer Luz Patricia Mejía, rapporteur of the Inter-American Commission on Human Rights , affirms that this treaty is not contrary to abortion, but “when the Convention says that the right to life will be protected from the moment of The conception clarifies that it is “in general.” This was done so that states that at the time of the sanction of the Convention had legalized abortion could be part of it. 32
In 2012, the Inter-American Court of Human Rights settled the interpretative differences in the ruling of the case “Artavia Murillo et al. (” In vitro fertilization “) vs. Costa Rica,” in which it interprets Article 4 of the American Convention on Human rights. In paragraph 185, it is affirmed that “there are conceptions that see in the fertilized ovules a full human life …. These conceptions can not justify giving prevalence to a certain type of scientific literature when interpreting the scope of the right To the life consecrated in the American Convention of Human Rights, because this would imply to impose a type of specific beliefs to other people who do not share them “. In paragraph 263, the Court concludes that “the object and purpose of the clause” in general “of article 4.1 of the Convention is to allow, as appropriate, an adequate balance between conflicting rights and interests. The case that occupies the attention of the Court, it suffices to point out that said object and purpose implies that the absolute protection of the embryo can not be invoked and nullify other rights. ” The following paragraph indicates that “it is possible to conclude from the words” in general “that the protection of the right to life under that provision is not absolute, but is gradual and incremental in its development, since it is not a duty Absolute and unconditional, but implies understanding the origin of exceptions to the general rule. ” 33
In relation to this ruling, jurists Aída Kemelmajer de Carlucci , Marisa Herrera and Eleonora Lamm have pointed out the importance of the decision of the Inter-American Court in the regional debate on the legalization of abortion: “It can be thought, then, that the highest court In the region has given the green light to legalize the termination of pregnancy in America in a much wider range of cases. ” 3. 4
The ruling given is only applicable to the Republic of Costa Rica, not applying to the Argentine Republic, according to article 68, point 1 of the Convention that says “Article 68
- The States Parties to the Convention undertake to comply with the decision of the Court in any case to which they are parties. “
There are several organizations in Argentina in favor of posture pro . There are, on the one hand, the organizations directly linked with the Catholic Church in Argentina , whose maximum reference at national level is the Argentine Episcopal Conference . 35
Likewise, this position is also defended by various academic and scientific institutions, including the National Academy of Moral and Political Sciences, in its opinion of July 2007; 24 the National Academy of Medicine, as seen in its September 2010 statement; 36 the Medical College of Salta; 37 the Academia del Plata formed for former pupils of the El Salvador school composed of Catholic intellectuals who, in the opinion of their peers, have excelled in their professional life and in their participation in Catholic institutions, 38 and the Argentine Society of Medical and Biological Ethics ( SAEMB). 39 In September 2010, the National Academy of Medicine issued a statement stating that:
- That the unborn child, scientifically and biologically, is a human being whose existence begins at the moment of its conception and, from the legal point of view, is a subject of law as recognized by the National Constitution, the international treaties annexed and The different national and provincial codes of our country.
- That destroying a human embryo means preventing the birth of a human being.
- That medical thinking based on Hippocratic ethics has defended human life as an inalienable condition from conception. So the National Academy of Medicine calls on all doctors in the country to maintain the fidelity to which they committed one day under oath.
- That the right to ” conscientious objection ” implies not being forced to perform actions that contradict the individual’s ethical or religious convictions. 36
Pro-choice organizations , which support the passage of a law that decriminalizes abortion, are part of the National Campaign for the Right to Legal, Safe and Free Abortion . They have the adhesion of more than 300 organizations from different parts of the country. Includes social movements; Trade unions; And scientific, academic and human rights groups. 40 Among them is also Catholics for the Right to Decide , an association that groups people who define themselves as Catholic, but who are in dissidence with the position of the moral doctrine contained in the Catechism of the Church. 41 Various ecclesiastical authorities have indicated that this association does not belong to their creed. 42
Many Argentine universities support the legalization of abortion. The Superior Council of the National University of Córdoba established, by means of a resolution dated June 29, 2010, “to adhere to the treatment of the draft law on voluntary termination of pregnancy, filed in the Chamber of Deputies.” 43 The University of Buenos Aires has expressed its support for the legalization of abortion, through a resolution issued on July 16, 2014 by the Superior Council of that University. 44 Also the National University of La Plata , 45 the Faculty of Political and Social Sciences of the National University of Cuyo , 46 the National University of Comahue , 47 the Faculty of Social Sciences of the National University of the Center of the Province of Buenos Aires , 48 the National University of Mar del Plata , 49 the National University of La Pampa , 50 the National University of Patagonia San Juan Bosco , 51 the National University of Southern Patagonia , 52 the National University of General Sarmiento 53 and the National University of Entre Ríos 54 have shown their support for the legalization of abortion by means of resolutions of their boards of directors.
- Back to top↑ «Title I, Chapter I” Crimes against life ” » . Penal Code of the Argentine Nation .
- ↑ Jump to:a b “The Supreme Court specified the scope of non-punishable abortion and said that these cases should not be prosecuted .” Judicial Information Center / News Agency of the Judicial Branch . March 13, 2012 . Accessed May 29, 2013 .
- Back to top↑ Ministry of Health of the Argentine Nation (October 2007). “Technical guide for comprehensive care of non-punishable abortions 2007” . Accessed June 27, 2015 .
- Back to top↑ Ministry of Health of the Argentine Nation (June 2010). «Technical guide for comprehensive care of non-punishable abortions 2010» . Accessed June 27, 2015 .
- Back to top↑ “The guide is still valid, the signature is not” . Page 12 . July 22, 2010 . Accessed May 29, 2013 .
- Back to top↑ http://www.pagina12.com.ar/diario/sociedad/3-275146-2015-06-18.html
- Back to top↑ MARIO, Silvia and PANTELIDES, Edith Alejandra. “Estimation of the magnitude of induced abortion in Argentina”. Accessed May 29, 2013 .
- Back to top↑ GINÉS, Pablo (November 8, 2011). “The case of Mexico and the case of Spain show that abortionists invent the figures of Argentina and Europe .” Daily Digital Forum Libertas . Accessed November 9, 2011 .
- Back to top↑ http://www.pagina12.com.ar/diario/sociedad/3-275146-2015-06-18.html
- Back to top↑ MAFFÍA, Diana (2006). “Abortion is not punishable: what does the law say?” . Retrieved on May 6, 2013 .
- Back to top↑ Ministry of Health of the Argentine Nation (April 2015). “Protocol for the comprehensive care of persons entitled to legal termination of pregnancy” . Accessed June 27, 2015 .
- Back to top↑ SORIA, Eduardo R. (August 2009). «Eugenics abortion in the Argentine Penal Code (1853-1922)» . Retrieved on September 4, 2013 .
- Back to top↑ BERGALLO, Paola and RAMON MICHEL, Agustina (April 2009). “Abortion not punishable under Argentine law .” Accessed May 29, 2013 .
- Back to top↑ “Part I, Chapter I, Article 4″ Right to life ” ” . American Convention on Human Rights .
- Back to top↑ «Second Part, First Title, Chapter Four” Powers of Congress ” » . Constitution of the Argentine Nation .
- Back to top↑ “Approve the Convention on the Rights of the Child” . National Law No. 23,849 .
- Back to top↑ «Menem instituted the day of the unborn child» . Journal The Nation . 9 December 1998 . Retrieved on June 8, 2013 .
- Back to top↑ «Speech by President Dr. Carlos Saúl Menem» . International Human Life . June 19, 2012 . Retrieved on September 4, 2013 .
- Back to top↑ «Portal de Belén – Non-Profit Civil Association c / Ministry of Health and Social Action of the Nation s / amparo» . March 5, 2002 . Accessed May 29, 2013 .
- Back to top↑ “The Senate approves the designation of Carmen Argibay” . Daily Parliamentary . 8 July 2004 . Consulted on April 2, 2014 .
- Back to top↑ “Challenges to Dr. Argibay” . Catholic Information Agency Argentina . Accessed August 29, 2006 .
- Back to top↑ «Abortion» . Page 12 . 25 November 2004 . Consulted on April 2, 2014 .
- Back to top↑ «Kirchner rejected abortion and calmed the Church» . Diario Río Negro On Line . 27 November 2004 . Accessed May 29, 2013 .
- ↑ Jump to:a b National Academy of Moral and Political Sciences (July 16, 2007). “Opinion on the Non-Punishable Abortion Project” . Consulted on April 2, 2014 .
- Back to top↑ “In the end, Cristina talked about abortion, marijuana, gays and surgeries . Daily Profile . 25 October 2007 . Accessed May 29, 2013 .
- Back to top↑ «Human Rights Committee. Consideration of reports submitted by States parties under article 40 of the Covenant ” . March 26, 2010 . Consulted the 13 of July of 2014 .
- Back to top↑ Committee on the Rights of the Child. Consideration of reports submitted by States parties under article 44 of the Convention . June 11, 2010 . Consulted the 13 of July of 2014 .
- Back to top↑ «The ruling of the Court entails” manifest unconstitutionality “» . Catholic Information Agency Argentina . March 16, 2012 . Accessed May 29, 2013 .
- Back to top↑ «The new Minister of Health promises” to promote a mature debate “on abortion . Journal The Voice of the Interior . March 2, 2015 . Retrieved on March 25, 2015 .
- Back to top↑ «Minister of Health wants a debate on abortion and the Government disavowed it» . Journal The Voice of the Interior . March 2, 2015 . Retrieved on March 25, 2015 .
- Back to top↑ BADENI, Gregory (August 8, 2006). Right to life and abortion . Person, life and abortion. Legal Aspects . Accessed May 29, 2013 .
- Back to top↑ «Embark the court in the debate on abortion» . Argentine Weather Journal . September 20, 2011 . Accessed May 29, 2013 .
- Back to top↑ «Artavia Murillo et al. Case (” in vitro fertilization “) vs. Costa Rica ” ” . November 28, 2012 . Retrieved on July 13, 2014 .
- Back to top↑ KEMELMAJER DE CARLUCCI, Aída; HERRERA, Marisa and LAMM, Eleonora (February 6, 2013). «Brief analysis of the decision of the Inter-American Court of Human Rights of November 28, 2012» . Microjuris Al Día – Argentina . Consulted the 14 of September of 2014 .
- Back to top↑ Episcopal Conference Argentina (February 25, 2011). «Celebrating life from the beginning» . Consulted on April 2, 2014 .
- ↑ Jump to:a b National Academy of Medicine of Buenos Aires (September 30, 2010). ‘Declarations’ . Accessed May 29, 2013 .
- Back to top↑ «Argentina: Medical College of Salta refuses to practice abortions» . ACI Press . April 12, 2012 . Accessed September 28, 2014 .
- Back to top↑ Academia del Plata (April 12, 2012). “Opinions and Declarations” . Accessed September 28, 2014 .
- Back to top↑ Argentine Society of Medical and Biological Ethics (August 10, 2009). «Dr. Jérôme Lejeune » . Accessed September 28, 2014 .
- Back to top↑ National Campaign for the Right to Legal, Safe and Free Abortion (October 28, 2011). ‘Accessions’ . Accessed May 29, 2013 .
- Back to top↑ Catholics for the Right to Decide. “Catholics for the Right to Decide Argentina” . Consulted the 14 of September of 2014 .
- Back to top↑ «The truth about the” Catholics for the Right to Decide ” » . ACI Press . Retrieved on March 24, 2015 .
- Back to top↑ «Resolution of the Superior Council of the National University of Córdoba / 2010» . June 29, 2010 . Consulted the 14 of September of 2014 .
- Back to top↑ “The UBA expressed its support for the legalization of abortion project” . Journal Notes . July 17, 2014 . Consulted the 14 of September of 2014 .
- Back to top↑ «For a change in national legislation» . Page 12 . September 29, 2010 . Consulted the 14 of September of 2014 .
- Back to top↑ «Resolution of the Directing Council of the Faculty of Political and Social Sciences of the National University of Cuyo» . October 6, 2010 . Consulted the 14 of September of 2014 .
- Back to top↑ «Resolution of the Superior Council of the National University of Comahue» . October 25, 2010 . Consulted the 14 of September of 2014 .
- Back to top↑ «Resolution of the Academic Council the Faculty of Social Sciences of the National University of the Center» . November 5, 2010 . Consulted the 14 of September of 2014 .
- Back to top↑ «By legalization» . Page 12 . November 8, 2010 . Consulted the 14 of September of 2014 .
- Back to top↑ «Resolution of the Superior Council of the National University of La Pampa» . November 30, 2010 . Consulted the 14 of September of 2014 .
- Back to top↑ «The Superior Council of the National University of Patagonia in favor of legal abortion» . March 30, 2011 . Consulted the 14 of September of 2014 .
- Back to top↑ «Resolution of the Superior Council of the University of Southern Patagonia» . May 26, 2011 . Consulted the 14 of September of 2014 .
- Back to top↑ «Archive of the National General Sarmiento University» . November 29, 2011 . Consulted the 14 of September of 2014 .
- Back to top↑ «The UNER adhered to the project to decriminalize abortion» . July 23, 2012 . Consulted the 14 of September of 2014 .