ABORTION LEGISLATION

Government seeks changes to abortion legislation

Justice Minister invokes 1985 court ruling establishing that both mother and fetus have rights

The conservative government of the Popular Party (PP) claims that its plan to change abortion legislation to make it more restrictive once again is "not based on cold statistics," and that there are a "multitude" of international norms that support it.

Justice Minister Alberto Ruiz-Gallardón announced earlier this year that from now on the fetus will be protected throughout the entire pregnancy, on the basis of a 1985 decision by the Constitutional Court establishing that both mother and fetus have rights. What this means is that the new legislation will eliminate the current right for pregnant women to have an abortion on demand until week 14, a choice that was encoded into law in 2010 under the previous Socialist administration, to bring Spain in line with other European countries.

But the PP government believes that the current law violates the rights of the nasciturus (the unborn), especially "during those first 14 weeks of pregnancy in which the unborn is completely and absolutely unprotected," said the executive.

This also means a return to abortion as a crime except for a few situations considered exceptions to the rule, which women will have to allege to be eligible, such as rape.

Most controversially, the minister said that malformation of the fetus or disability will no longer be a valid reason to seek an abortion, as it had been under previous legislation, because in his opinion this is akin to discriminating against disabled people. He bases this on the United Nations Convention on the Rights of People with Disabilities, and on the fact that in 2010 the UN recommended that Spain modify the possibility of ending pregnancies "for reasons of disability exclusively."

The current law, however, does not mention disabilities but serious fetal defects as valid grounds for an abortion. Currently, a woman may end her pregnancy at up to week 22 if two doctors certify that the fetus suffers from severe abnormalities, and later than that if a medical committee appointed by a regional government considers these malformations to be extremely serious and incurable, or incompatible with life.

In practice, this type of termination barely represents three percent of all abortions in Spain each year.

Most European countries, with the exceptions of Ireland and Malta, allow abortions when there is fetus malformation. In France, Germany, Greece, Britain and Poland, there is no time limit for such cases if the problem is considered extremely severe. In Sweden and Denmark, abortion in such cases is allowed up to week 24.

The debate over abortion reform has moved beyond the political arena and entered medical circles. A group of gynecologists, obstetricians and experts in prenatal screening have signed a manifesto against this reform, and garnered support from 645 people so far. These pregnancy experts say that eliminating the option of abortion in cases of severe congenital disorders will have dramatic consequences for the families involved.

The issue goes beyond women's rights and social progress, both of which would take a hit according to several advocacy groups. It would also create a public health problem, say experts.

"If the law does not allow an interruption of gestation in these cases [of severe fetal anomalies], to this dramatic personal situation we will have to add the legal helplessness suffered by the pregnant women," says the manifesto, whose chief signatories are the gynecologists Pilar Martínez Ten and Begoña Adiego, and which will be handed to the secretary of state for justice, Fernando Román.

The text explains that eliminating this option will push women to resort to clandestine, unsafe abortions.

Other experts agree that the current Sexual Health and Reproduction Law works well. The prenatal diagnosis expert Javier Pedregosa says that it has allowed women to have abortions in cases of extremely severe malformations, which were detected very late in the pregnancy.

"It [the current law] has helped families who were previously forced to travel to France to end their pregnancies because they could not do so in Spain. If the law gets tougher, this situation can arise again. The emotional, psychological, social and medical consequences of limiting this option are very serious," insists Martínez Ten.

As things stand, the congenital defects accepted by the law as grounds for abortion do not support Gallardón's insinuation of a eugenic intention behind the Socialist legislation. While there is no fixed list of accepted pathologies, the bioethics committee of the Spanish Gynecology and Obstretics Society drew up a guide that reflected a few: anencephalia (being born without a brain), grave progressive hydrocephalia or agenesis of the corpus callosum.

"The current law is clear and fair. It has brought increased safety to professionals and to women, who can make a more calm, informed decision," says Javier García Planells, president of the Spanish Association of Prenatal Diagnosis. Eliminating the malformation option will "create mistrust in an incoherent health system that offers the most advanced screening technologies but limits the options available in any developed country."

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