Abortion in Chile

The abortion , based on induced abortion or abortion is illegal in Chile under the Penal Code of 1874. It is not considered abortion punishable who is expected consequence but not sought medical procedures to save the life of the mother . 1 2 Decriminalization in the causes of rape, fetal infeasibility and life risk of the mother is currently under discussion. 3 4

History of abortion legislation

Colonial regulation

In Chile abortion has been considered a moral and socially reprehensible behavior since the colonization of the Spaniards, who brought with them the Western Judeo-Christian values ​​that prevail in the country and have traditionally rejected that act. The Spanish conquest meant the validity of their right in the Kingdom of Chile , reason why already since that time that the abortion is criminally sanctioned. Only clandestine abortions were practiced through infusions , herbs or other natural methods.

The independence of Chile did not bring about significant changes in the legal system, maintaining Spanish laws for several decades, only altered before codification by some special laws that did not affect the regulation of abortion.

Abortion crime in the Penal Code (1874)

First edition of the Penal Code of Chile .

The Penal Code , from its original version, punished abortion in its articles 342 to 345. This is due to the clear influence of the previous criminal laws contained in the Code and the influence of the Spanish Penal Code in the drafting of the Chilean.

In the context of moral reproach of abortion for the traditional values ​​of the time, the second paragraph of Article 344 makes sense, which has remained the same since the promulgation of the Code and establishes a reduction in the penalty allocated to abortion if the woman ” I will do it to hide his dishonor. ” 5

Legalization of therapeutic abortion (1931-1968)

In 1931 , during the government of Carlos Ibáñez del Campo , therapeutic abortion was legalized contemplating in article 226 of the Sanitary Code for certain assumptions defined by law. 6That provision stated:

Art. 226 . Only for therapeutic purposes will it be possible to interrupt a pregnancy or practice an intervention to make a woman sterile wants the documented opinion of three doctors.
When it is not possible to proceed in the aforesaid manner, because of the urgency of the case for lack of doctors in the locality, document the execution of the doctor and two witnesses, and the corresponding testimony shall remain in the possession of the physician.

Health Code of Chile , version of 1931. 7

The number of abortions was growing, along with the high birth rate that the country reached in the 1960s. This official protection of abortion was reinforced by the diffusion of contraceptive methods initiated in the Christian Democrat government of Eduardo Frei Montalva , during which The Health Code was also reformed, reducing the requirements for a therapeutic abortion. 6Thus, article 119, belonging to his Fifth Book “On the Exercise of Medicine and Related Professions,” said:

Article 119 . Only for therapeutic purposes can a pregnancy be terminated. In order to proceed with this intervention, it will require the documented opinion of two surgeons.

Health Code of Chile , version of 1968. 8

Prohibition during the military regime (1973-1989)

During the work of the Commission of Studies of the New Constitution , in charge of discussing the preliminary draft of the new Chilean Basic Charter, Jaime Guzmán Errázuriz tried to introduce a constitutional prohibition of the abortion. His address is recorded in the official minutes of the Constitutional Commission of November 14, 1974: “The mother must have the child even if it is abnormal, even if it is not wanted, even if it is the result of rape or, death”. Referring to Fig.

Finally, the other drafters of the 1980 Constitution did not accept this motion (constitutional prohibition of all abortions), so they only established, in article 19, number 1, that “the law protects the life of the unborn” With which the regulation of the matter was rooted in the law .

“The law of God says not to kill. Nothing can be more unnatural than to punish with death than to be helpless, but a person is yet to be born. To abort is to kill, even if the corpse is very small. “
– Admiral José Toribio Merino , member of the military junta , in 1989. 10

That mandate of the constituent party to the legislator materialized in 1989 with the amendment of article 119 of the Sanitary Code, which prescribes the following: “No action may be carried out to cause abortion”, and the provisions of 1931 were repealed. Promoted by Cardinal Jorge Medina with the help of Admiral José Toribio Merino . eleven

Thus, Chile is a state with a protective regulation of the nasciturus , since it does not allow abortion even in case of rape or incest. Medical practice in cases where the life of the mother is at risk has not changed substantially due to the application of the double effect principle in the interpretation of the Health Code. 1 Indeed, what Article 119 of the Sanitary Code permitted before the 1989 reform is nothing more than what is now permitted under current health legislation, something reaffirmed by the coexistence of both versions of the standard with the Same criminal law. The difference lies in the legislative technique used: whereas before its modification the article in question allowed directly medical interventions that sought to save the life of the mother, even if they had as a side effect the death of the fetus (“For therapeutic purposes only A pregnancy can be interrupted “), with the current wording, the rule indirectly allows such actions (interpreting a contrario article 119, it can be concluded that all medical actions whose direct purpose is not to cause abortion, although In fact, the death of the fetus occurs.) The reason for reforming the article was its ambiguity and imprecision (specifically, the term “therapeutic purposes”), thus attempting to avoid a broad interpretation of the rule that would give rise to Actions that had a direct abortion, as in fact happened during 1973 at the Hospital Barros Luco where more than 3,000 abortions were performed in less than 6 months. 12 Moreover, the amendment to the Sanitary Code did not increase the maternal mortality rate in the country, as predicted, as it continued to decline year after year, being currently the second lowest in the Americas. 13

Failed attempts to decriminalize abortion (1990-2013)

Women protesting against the criminalization of abortion in 2013 .

Nonetheless , since the transition to democracy begun in 1990, some parties belonging to the Coalition for Democracy Parties have presented a series of bills that sought to restore the figure of therapeutic abortion under conditions similar to that of 1931. First of them (Bulletin N ° 499-07) was presented in 1991 by the representatives Adriana Muñoz , Armando Arancibia , Carlos Smok , Juan Pablo Letelier and Carlos Montes . 6 14

“These ultraliberal theses on the family make an almost absolute appreciation of freedom, raise banners in the world as the term of film censorship , the absolute and complete freedom of pornography , encourages divorces to single signature and conclude in many countries In an abortion authorization. “
-Ramón Briones, Counselor of the Christian Democracy , 1993. 15

All these projects were unsuccessful, the opposition Christian Democratic Party (PDC) , also belonging to the Concertación and the parties of the Alliance – the Independent Democratic Union (UDI) and National Renewal (RN) – all widely influenced by the church Catholic , who consider that therapeutic abortion is a confusing and unnecessary denomination that pretends to cover the admissibility of the free abortion, since it is a hypothesis covered by the current legislation. [ Citation needed ]

In 2011 President Sebastián Piñera stated that he would use his constitutional veto power if a therapeutic abortion bill was passed in Congress . 16 In the Commission on Human Rights report for the year 2013, Piñera again expressed his rejection of abortion. In 2013, the bill was passed by Senator Jaime Orpis, who declared March 25 as the “Day to be born and of adoption”. 17

Project of decriminalization of abortion in 3 causes (2014-)

Protest groups pro in 2016.

During her public hearing on May 21, 2014, President Michelle Bachelet announced that she would promote a bill to decriminalize therapeutic abortion in cases of mother’s life- threatening , rape and unfeasible fetus. The initiative generated, from the first moment a strong political debate. 18 19

The current legislation on interruption of pregnancy, which prohibits it without exceptions, does not respond to the dignified treatment that the State of Chile must grant its citizens in these situations and places our country as one of the four in the world that criminalizes in all Its modalities, in addition to The Vatican : Chile, Nicaragua , El Salvador and Malta .

Michelle Bachelet , Message No. 1230-362, January 31, 2015. 20

The bill entered Congress on January 31, 2015, through Bulletin 9895-11, and the Health Commission of the Chamber of Deputies approved the project on August 4, 6 while the cause of rape was approved on 15 September of 2015. 21 This House finally approved the project on March 17, 2016, passing to the Senate . 22 The Senate Health Commission approved the bill on September 6, 2016, by three votes in favor – including that of PDC President Carolina Goic – and two against. 2. 3

Legal regulation

Abortion in the Chilean legal system is prohibited by two laws:

  • Penal Code of Chile of 1874: articles 342 to 345.
  • Health Code: Article 119.

Chilean Penal Code: articles 342 to 345

Title VII: Crimes and simple crimes against the order of families and against public morality
1. Abortion

Art. 342 . Who maliciously causes an abortion will be punished:
1 With the penalty of imprisonment higher in its minimum degree, if it exerts violence on the person of the pregnant woman.
2 With the one of presidio minor in its maximum degree, if, although it does not exercise it, it works without consent of the woman.
3 With the lower presidio in its middle degree, if the woman consents.

Art. 343 . He shall be punished with a juvenile presidio in his minimum to medium degrees, who with violence shall cause an abortion, even if he has not intended to cause it, provided that the woman’s state of pregnancy is notorious, or is reported to the hegem.

Art. 344 . The woman who causes her abortion or consents that another person causes it, will be punished with lesser imprisonment in its maximum degree.
If he does so by hiding his dishonor, he will incur the penalty of junior presidio in his middle degree.

Art. 345 . The physician who, abusing his office, causes abortion or cooperates with him, will incur respectively the penalties indicated in article 342, increased by one degree. 24

Health Code

Article 119 . No action may be taken to end an abortion. 25

From the interpretation of the use of the term “end” in this norm, medical practice applies the ethical principle of “double effect”, according to which it is licit to perform an action essential to save the life of the mother and have as Unintended or accidental consequence of the death of the child, which can not be sought neither as an end nor as a means. 1 2 Such actions are not punishable by law, since abortion by doctors of article 345 of the Criminal Code requires the author to act “abusing his office”, an abuse that does not occur in conduct authorized by the Sanitary Code.

Abortions clandestine

A 2014 study by Dr. Elard Koch, using objective epidemiological criteria, estimated that as an average in Chile from 2001 to 2008, 13,553 to 18,071 abortions occurred per year, with a downward trend that would reach a range of Between 10 345 and 13 794 in 2008, mainly due to self-administration of misoprostol. This is much lower than the results of previous studies, such as one in 1990, based on subjective opinion surveys, which estimated abortions at 160,000 a year. These methodologies have little or no reproducibility and are subject to selection, memory and ideological biases of the subjects interviewed. Huge estimation errors have been demonstrated in several countries after legalizing abortion. 26 27 However, Koch’s study has been highly criticized for using “assumptions that are both simplistic and incorrect.” 28

Koch’s study also includes the results of a survey of the reasons for these abortions, made to women who had expressed an intention to have an abortion, which indicated as factors coercion of parents or partners or of a third party with or without domestic violence ( 44.4%); Interference with life expectancy (22.8%); Concealment of pregnancy for fear of reaction of parents or partner (20.4%); Repeated sexual abuse, rape and incest (2.1%); Abandonment of the couple (1.9%); And psychological or emotional problems (1.9%), outlining fear and coercion as the causes of more than 65% of clandestine abortions.

References

  1. ↑ Jump to:a b c «THE PRINCIPLE OF THE DOUBLE EFFECT AND ITS RELEVANCE IN THE LEGAL REASONING» . December 2008 . Accessed on December 8, 2014 .
  2. ↑ Jump to:a b Palavecino Cáceres, Adriana (September 3, 2014). “Ethical and legal dilemmas on abortion in Chile” . Polis. Journal . ISSN  0717-6554 . Retrieved on December 17, 2015 .
  3. Back to top↑ http://internacional.elpais.com/internacional/2015/09/16/actualidad/1442423251_854920.html
  4. Back to top↑ http://www.24horas.cl/politica/asi-reaccionaron-los-parlamentarios-tras-aprobacion-de-tercera-causal-de-aborto-1787872
  5. Back to top↑ Nuñez, Jacinto. Penal Code of the Republic of Chile . Printing of the Republic.
  6. ↑ Jump to:a b c d «History» . 3causales.gob.cl . Retrieved on September 8, 2016 .
  7. Back to top↑ Ministry of Social Welfare (May 29, 1931), “DFL 226: Untitled” , Library of the National Congress of Chile , consulted on September 8, 2016 .
  8. Back to top↑ Ministry of Public Health (January 31, 1968), “DFL 725: Sanitary Code”, Library of the National Congress of Chile , consulted on September 8, 2016 .
  9. Back to top↑ “OFFICIAL ACTS OF THE CONSTITUENT COMMISSION. Session 87, November 14, page 14 » (PDF) . Repository of documents of the Ministry Secretary General of the Government of Chile . 1974. Archived from the original on November 23, 2015 . Retrieved on June 21, 2012 .
  10. Back to top↑ https://books.google.cl/books?id=PgCZGKUcB3cC&pg=PA254
  11. Back to top↑ «Protagonists detail how abortion was abrogated in 1989» . The Third . December 29, 2010 . Retrieved on May 23, 2014 .
  12. Back to top↑ Cristóbal Aguilera (April 7, 2016). “Abortion in the Health Code?” . Www.diarioconstitucional.cl . Retrieved on April 9, 2016 .
  13. Back to top↑ «Chile is ranked as the second country in the Americas with lower maternal mortality» . The Third . May 7, 2012.
  14. Back to top↑ https://www.camara.cl/pdf.aspx?prmID=5093%20&prmTIPO=TEXTOSESION
  15. Back to top↑ https://books.google.cl/books?id=PgCZGKUcB3cC&pg=PA199
  16. Back to top↑ «President Piñera will use presidential veto in case the therapeutic abortion is approved» . BíoBío Chile . September 9, 2011 . Retrieved on May 22, 2014 .
  17. Back to top↑ http://www.leychile.cl/Navegar?idNorma=1055625
  18. Back to top↑ «Bachelet proposes the decriminalization of therapeutic abortion» . Elcorreo.com. May 22, 2014 . Retrieved on May 22, 2014 .
  19. Back to top↑ «Controversy in Chile for Bachelet’s announcement on therapeutic abortion» . BBC World . May 21, 2014 . Retrieved on May 22, 2014 .
  20. Back to top↑ https://www.camara.cl/pley/pley_detalle.aspx?prmID=10315&prmBL=9895-11
  21. Back to top↑ Núñez, MP; Martínez, R .; Vega, M. (September 15, 2015). “Health Commission approves to decriminalize abortion in the cause of rape” . The Third . Accessed November 7, 2015 .
  22. Back to top↑ «Deputies approve the three grounds of the project that decriminalizes abortion» . EMOL . March 17, 2016 . Consulted the 17 of March of 2016 .
  23. Back to top↑ «Senate Health Commission approves abortion project in three cases» . The Third . September 6, 2016 . Retrieved on September 8, 2016 .
  24. Back to top↑ Penal Code of the Republic of Chile, Book II, Title VII, articles 342 to 345
  25. Back to top↑ http://www.sernac.cl/wp-content/uploads/leyes/dfl/DFL725_Codigo_Sanitario.pdf
  26. Back to top↑ Koch, Elard. “Epidemiology of abortion and its prevention in Chile” . Chilean Journal of Obstetrics and Gynecology 79 (5): 351-360. doi : 10.4067 / S0717-75262014000500001 . ISSN  0717-7526 . Retrieved on December 17, 2015 .
  27. Back to top↑ «How many abortions are actually performed in Chile?» . The Third . November 9, 2014.
  28. Return to top↑ «Estimation of the incidence of induced abortion: refuting a criticism of the methodology of the Guttmacher Institute» . Guttmacher Institute . January 17, 2016.