Sujetos obligados a retener o efectuar un ingreso a cuenta

4.1. Regulation before the enactment of the Law of Legal Time Limits

In Spain, before the current Law of Sexual and Reproductive Health and Vol- untary Termination of Pregnancy, of 2 March 2010, was passed, which will be analysed in the next section, legislation already existed that allowed abortions to be performed in certain cases (which will also be analysed later),10 _{and yet}

the need to change the law and the way in which the pre-existing law had been applied had been extensively and repeatedly questioned. The previous law was in force in the long period from 1985 to 2010 and not even the total reform of the Criminal Code — in 1995 — modified it. Passed at the end of the political transition, after the period of the Franco regime it seemed the only one pos- sible at the time. Through its long period in force, it proved to be so necessary that successive governments — despite their overall majorities — neither sup- pressed it nor restricted it, nor even tried to limit the extensive interpretation with which it was being applied. And it is well known that the scope attrib- uted in practice to the third instance of the current law went much further than what its own formulation indicated, since through the gradual extension of the concept of mental health, it in fact introduced the social indication.

Although it covered obvious social needs and problems fully deserving of support, this generated a situation of legal uncertainty repeatedly pointed out

by jurists and the different groups involved. The changes in criminal law poli- cy are effectively possible and the attorney general could have ordered each of the “legally” practised cases of abortion to be thoroughly investigated. In this respect, it should also be remembered that many healthcare workers are still unaware of the real possibilities of the legal framework and they find it safer to pretend not to know about the problem or to refuse to collaborate in acts that have legal consequences unknown to them.

Thus, in this context, it may be said that the reform of the abortion law with the aim of its conditions being clear and accessible had become a demo- cratic demand to give women legal certainty, while at the same time respecting those who have an abortion and those who do not.

Along with all these facts and precedents, let us remember that women’s reproductive autonomy has been an internationally acknowledged right ever since the International Conference on Population and Development in Cairo in 1994 went further than the generally accepted association with the concepts of family planning and contraception, and defined sexual and reproductive health as the possibility of having a responsible, satisfactory and safe sex life, and it understood reproductive rights as the capacity to freely determine whether one has children or not.

At this point we ought to add that the University of Barcelona’s Bioethics and Law Observatory has been drafting various documents on the subject with considerable repercussions in the media and public opinion. The science associations involved have echoed its recommendations, and they have even had a big impact on the law, since the various regulations — at state and au- tonomous community level — include many of its proposals. There is the

Document on the Voluntary Termination of Pregnancy, in which we make a

proposal to change the law in Spain and in which we include additional meas- ures that we had published previously, in the Declaration on Sexual and Repro-

ductive Health in Adolescence and the Document on Conscientious Objection in Healthcare. These publications, along with other similar initiatives, have had

an impact on the debate in society and have generated ideas for the creation and / or updating of healthcare institutions’ protocols of action referring to this subject. These initiatives include the Report on the Termination of Gestation drafted in 2008 by the Bioethics Advisory Committee of Catalonia.11

4.2. The Organic Law of Sexual and Reproductive Health and Voluntary Termination of Pregnancy

4.2.1. The history of the drafting of the law

The result of the precedents mentioned so far was that — at the request of the Ministry of Equality, something in itself open to interesting interpretations — on 14 May 2009 the Council of Ministers passed the draft bill of the Organic Law of Sexual and Reproductive Health and Voluntary Termination of Preg- nancy.12

After that a series of rulings and reports on the draft bill were issued, some due to statutory requirement and others — like the one by the recently created Spanish Bioethics Committee — at its own request.13 _{Of them it is interesting}

to mention the Report of the Prosecution Advisory Board, of June 2009, and the Ruling of the Council of State, of September that same year.

On 26 September the Council of Ministers passed the bill, which was pub- lished in the Official Bulletin of Parliament on 2 October 2009. After the cor- responding parliamentary channels in Congress and the Senate, the new Or- ganic Law of Sexual and Reproductive Health and Voluntary Termination of Pregnancy was finally passed on 2 March 2010, and came into effect on 4 July of that year.

In the period from the draft bill to the text eventually passed modifications were introduced that, in our opinion, have left the articles of the legal text looking more and more like a programme rather than a specific regulation. Many of its articles are a declaration of good intentions, so the interpretation being given to the precepts — in too many cases, very open — will determine its application, and only with the passage of time will we see if the new law has provided the longed-for legal certainty that was so badly lacking with the pre- vious law. Or if it does indeed represent progress for women’s rights, as is claimed in the Preamble, postulating that “The first duty of the legislator is to adapt the law to the values of the society whose relations it has to regulate, always ensuring that new legal regulations generate certainty and security in

12 _{It could be said with satisfaction that the draft bill included many of the conclusions and proposals}

of the aforementioned Documents of the Bioethics and Law Observatory and that it had, moreover, an interesting and enlightening exposition of reasons.

13 _{Spanish Bioethics Committee, Opinion on the bill for the Organic Law of Sexual and Reproductive}

Health and Voluntary Termination of Pregnancy, 2009. Available for consultation at www.comitede bioetica.es/documentacion/docs/consenso_interrupcion pregnancy_comite_bioetica_oct_2009.pdf.

those to whom they are addressed, as freedom only finds refuge on the firm ground of the clarity and precision of the law”.

At the same time, this Preamble makes it clear that “The law comprehen- sively tackles the protection and guaranteeing of rights relative to sexual and reproductive health. It introduces the definitions of the World Health Organiza- tion in reference to health, sexual health and reproductive health in our legal system and provides for the adoption of a series of actions and measures in both healthcare and education”. It is also important to mention that, based on national and international law, on the sentences of the Spanish Constitutional Court and those of the European Court of Human Rights, “This law recog- nizes the right to freely decided maternity, which among other things implies that women can make the initial decision about their pregnancy and that this decision, conscious and responsible, must be respected”. The decision adopted of establishing a mixed system “of time limits” in the first 14 weeks of gestation combined with a later one of indications is justified in this way.

4.2.2. General requirements

The general requirements for terminating pregnancy are (Art. 13):

1) That termination of pregnancy be performed by a specialist doctor or be car- ried out under his/her supervision.

2) That it be carried out in a public or private healthcare centre that has been previously authorized.

3) That it be carried out with the express consent in writing of the pregnant woman, or, where appropriate, of her legal representative, in accordance with the stipulations of Law 41/2002, Basic Regulator of Patient Autonomy and of Rights and Responsibilities in matters of Information and Clinical Documen- tation. Express consent may be waived in the case envisaged in article 9.2b) of the said law.

The question of consent through representation is especially important in the case of abortion, as the case law that may be present (minors up to the age of 15; minors aged 16 and 17; and persons with disability, who may have very different levels of autonomy) generates quite a few problems.

The law of Patient Autonomy, to which the Law of Voluntary Termination of Pregnancy refers, stipulates the following (Art. 9):

3. Consent through representation will be granted in the following cases:

a) When the patient is incapable of making decisions, in the opinion of the

doctor in charge of their care, or their physical or mental state does not allow them to be aware of their situation. If the patient has no legal repre- sentative, consent will be given by people related to them for family or de facto reasons.

b) When the patient’s capacity has been legally modified and this is stated in

the sentence.

c) When the patient is a minor, incapable either intellectually or emotionally

of comprehending the scope of the intervention. In this case, consent will be given by the minor’s legal representative, after listening to their opinion, in accordance with the provisions of article 9 of Organic Law 1/1996, of 15 January, of Legal Protection of Minors.

We can thus distinguish four classes of autonomy in reference to the ter- mination of pregnancy:

a) Women aged 18 and over. They have full autonomy.

b) Minors aged 16 and 17. The original wording of the law (2010) allowed

them to have an abortion not only without their parents’ consent (it was enough for one of them to be informed), but also, if there was a conflict of interests, without their knowledge. Nevertheless, in 2015 the Partido Popu- lar reworded this part and, for a girl of that age to be able to have an abor- tion, the express consent of her parents was obligatory and necessary (we shall analyse in detail the ideological context of this reform in a later sec- tion), as well as that of the minor.

c) Minors aged 15 and under. Besides the specific consent of their parents, the

minors’ consent will be necessary. In the event of their age or circumstanc- es not permitting it, it will be enough to know their opinion, which must be taken into account.

d) Persons with some degree of disability, who in turn may or may not be

minors, and who may also be totally or partially legally incapacitated, or even not be. Given that there is a huge body of case law in these cases, each specific case will have to be considered in order to assess whether their consent, their opinion, and possibly the consent of their parents or guard- ians is necessary.

4.2.3. System of time limits

The main new aspect of the law is that it makes it possible to terminate preg- nancy without having to justify the reason (Art. 14). The only substantial re- quirement is that termination must take place within the first 14 weeks of gestation.

As to the formal requirements, apart from the woman’s consent, it will be necessary for her to be informed of her rights, services and help in the event that she decides to continue with the pregnancy, and there must be a three-day gap between the moment she is offered this information and when the abor- tion is performed.

This is the most noteworthy aspect of the law, as it means it is the woman who decides freely and voluntarily to continue or not with the pregnancy, without having to justify, explain or argue, in the event of termination, why she does not wish to continue with it.

Causal (justified) abortion is limited to the cases of danger to the mother’s health or anomalies in the foetus. Abortion because of rape, which in the pre- vious Spanish law had to be reported, and the abortion had to be performed within the first 12 weeks, disappears. It has been absorbed by a generic system of time limits without specific causes.

4.2.4. Termination for medical reasons

Besides the previous case, the law envisages termination of pregnancy for med- ical reasons provided the following requirements are met:

4.2.4.1. Risk for the pregnant woman’s life or health

This is what is known as therapeutic abortion. The only requirement is that it be performed up to and including week 22 of pregnancy. A medical ruling must be issued prior to termination of pregnancy, unless the woman’s life is in danger, in which case it can be omitted (Art. 15).

Moreover, in the event of risk for the woman’s life or health after week 22 of pregnancy, what is required is not an abortion but an induced birth. As the law says, “the woman’s right to life and physical integrity and the interest in protecting a life in the process of development are fully harmonized”. It is important to stress that this rule does not appear in the articles of the law, but

in the preamble, something that is anomalous from a technical point of view, as it may generate legal uncertainty in such an important matter.

In the previous Spanish law these two cases were not distinguished, as they are now, as there was no limit whatsoever to performing an abortion in the case of risk for the physical or mental health of the mother, and nor was in- duced birth envisaged, expressly at least.

4.2.4.2. Serious anomalies in the foetus

This is what is known as eugenic abortion. The only requirement is that it should be performed within the first 22 weeks of gestation and the serious anomalies of the foetus are stated in a ruling issued prior to the intervention by two specialist doctors other than the one who is performing or supervising the abortion. 4.2.4.3. Foetal anomalies incompatible with life or an extremely

serious and incurable illness of the foetus

The law distinguishes between the serious anomalies of the foetus, which allow for the termination of pregnancy within 22 weeks as described above, and the anomalies incompatible with life or an extremely serious and incurable illness of the foetus, in which case there is no limit to terminating pregnancy. The law does not specify what the differences between the two categories are.

The only formal requirement is that foetal anomalies must be stated in a medical ruling by a specialist other than the one performing the intervention, and, in the case of serious and incurable illness, that this be confirmed by a clinical committee.

In the previous Spanish legislation this distinction did not exist, so eugenic abortion came under a single expression, “serious physical or mental defects”, and the abortion was required to be performed during the first 22 weeks.

4.2.5. Regulation in criminal law

We ought to point out that the existence of a law of legal time limits for termina- tion of pregnancy has not led to the criminal law on this subject being repealed. The Criminal Code continues to punish abortion, although with lighter sen- tences than in the previous system, adapted, logically, to the new regulation.

The woman who has an abortion (the Criminal Code uses the term “abor- tion”, while the new law uses the expression “termination of pregnancy”) will be punished with a fine lasting six to 24 months (each day or month of the fine is equivalent to a particular sum of money according to the guilty party’s per- sonal characteristics).

Those who perform the woman’s abortion, with her consent, will be sen- tenced to one to three years in prison and be disqualified from working in the medical profession for a period of between one and six years (Art. 145). In Spain, if the prison sentence is less than two years and the person has no criminal record, it is usually suspended, and they will not have to go to jail.

If one observes the regulation, it can be seen how even in cases in which the abortion law is broken, neither the woman nor the healthcare personnel will go to prison: the former, because she will have to pay a fine, and the latter, because if there are no aggravating circumstances they will be sentenced to less than two years, whereby in principle they would not go to jail (there is an ag- gravated subtype by which, if the abortion were performed after 22 weeks, the judge would impose the higher scope of the sentence. In the case of the wom- an the fine would be higher, but in the case of the healthcare personnel the sentence would be between two and three years in prison, which would in- crease the likelihood of having to go to jail).

If the abortion were performed in accordance with the substantial require- ments established in the law (risk for the mother, unviability of the foetus or abortion for no reason but within the first 14 weeks), but without satisfying the formal requirements (information for the mother, not observing the three- day period, clinics’ lack of authorization, the absence of rulings, and so on), the Criminal Code exempts the woman from punishment but penalizes the healthcare personnel with a fine and disqualification.

4.2.6. An attempt to reverse the reform14

In order to understand the attempted repeal that this law has undergone with the new government (the law was passed in 2010 by a socialist government and in 2011 a conservative government won the election), we have to place this

14 _{In this debate the article by M. Casado is interesting: “Consecuencias para las mujeres y su salud de}

la posible reforma de la ley del aborto.” Gac Sanit., 2014; 28 (6): 498-500. Also, in the editorial of

Gaceta Sanitaria, vol. 26, no. 3, May-June 2012, pp. 201-202, see “¿Es la maternidad lo que hace auténticamente mujeres a las mujeres?”, by M. Casado.

law’s process of gestation in its historical context, and so we must take a brief look back at how abortion has been regulated in Spain:

1) The Criminal Code of 1973, passed during the Franco dictatorship (the dic- tator died in 1975), was the one used, with some modifications, in the demo- cratic period in Spain until 1995. In other words, from 1978, when the Span- ish Constitution was passed, to 1995 the Criminal Code of the dictatorship continued to be used. This Code punished abortion with jail sentences of