“Of the abortion” is how is entitled the Title II of the Book II of the Spanish Penal Code (CP). In it are regulated the cases in which either the voluntary or involuntary interruption of the pregnancy of a woman, are punished as a crime.
The Title II is made up of four articles: In the article 144, is typified the case in which a woman aborts without her consent; In the article 145, is penalized the cases in which a women aborts with her consent but without being in any of the scenarios established by the law; In the article 145 bis, are punished the cases in which a women aborts with her consent and within the scenarios expressly allowed by the law, but without complying with any of the requisites mentioned in such law to be allowed to do it, and; In the article 146, is the punished who has imprudently caused the abortion of a women.
Of the above four scenarios, the mentioned in the art. 145 and art. 145 bis should be completed with the established in the Organic Law 2/2010 of 3 March, of sexual and reproductive heath and of the voluntary interruption of the pregnancy (LO 2/2010). A law which has tried to end with the moral problem that some people associate to the voluntary interruption of the pregnancy, which in the majority of the cases, if not in all, it is only a religious interpretation of such morality. Oswald Spengler says in its book “Decline of the West” that, “Every law is established by a class in the name of the generality”, and without doubt this can be a good example, for the abortion in the cases in which it is produced only and exclusively for the own will of the woman, is still a matter which provokes that the more conservative sectors of the society, highly influenced by the catholic religion, continue protesting in the streets as a sign of nonconformity with the current regulation.
In any case, the right to abort of the woman, her right to take the control upon her sexuality and to decide when and how she wants to have a child, is a right internationally recognized, as the own LO 2/2010 affirms in its exposition of motives: “The protection of this ambit of personal autonomy has a singular meaning for the women, for whom the pregnancy and the maternity are facts which deeply affect their lives in all the senses. The special relation of the rights of the women with the protection of the sexual and reproductive health has been manifested by different international texts. Thereby, in the ambit of United Nations, the Convention on the elimination of all forms of discrimination against the woman, adopted by the General Meeting through Resolution 34/180 of 18 December 1979, establishes in its article 12 that “The Member States will adopt all the proper measures for eliminating the discrimination against the woman in the sphere of the medic attention with the end of ensuring, in conditions of equality between men and women, the access to services of medical attention, included those concerning the family planning.” On the other hand, the Platform of Action of Beijing agreed in the IV United Nations Conference about the woman which took place in 1995, has recognized that “the human rights of the woman include the right to have the control and freely and responsibly decide about her sexuality, included the sexual and reproductive health, free of pressures, discrimination and violence.” In the ambit of the European Union, the European Parlament has approved the Resolution 2001/2128 (INI) about the sexual and reproductive health and the associated rights, where are gathered recommendations to the Governments of the Member States in the subject of contraception, not desired pregnancies and sexual education which has a basis, among other considerations, the confirmation of the great differences between the European women in the access to the services of reproductive health, to the contraception and to the voluntary interruption of the pregnancy depending on their income, or their country of residence.
On the other hand, the Convention about the Rights of the Handicapped Persons of 13 December 2006, ratified by Spain, establishes the obligation of the Member States to respect, “the right of the handicapped persons to freely decide and in a responsible way the number of children that they want to have […] to have access to information, proper education about reproduction and family planning for their age and to the provision of the necessary means which allow to them to exercise their rights” as well as, “to maintain their fertility, in equality of conditions than the rest of the people.”
Following the scheme proposed by the CP, we will divide this writing into four parts, according to the four sorts of abortion mentioned in the Title II.
– The abortion without the consent of the woman:
The abortion without the consent of the woman is regulated in the article 144, which says: “Who produces the abortion of a woman, without her consent, will be punished with the punishment of imprisonment from four to eight years and special disqualification for exercising any sanitary profession, or for rendering any kind of services in clinics, gynecological establishments or consultancies, public or private, for a term from three to ten years.
The same punishment will be imposed to who practices the abortion having obtained the consent of the woman through violence, threat or deception.”
As we can see, in the article 144 is punished who willingly, in other words with malice, causes the abortion of a woman without her consent. The existence of malice determines that the abortion of the woman has to be caused consciously, knowing that its behavior is punished as a crime, or at least in its eventual modality, having thought as possible the abortion of the woman by who executes the action which causes or provoques it, and in spite of this, executes it putting willingly into risk the legal good protected, the unborn child.
That there exists no consent of the woman is another important aspect for classifying the facts according to this article, otherwise we would be in the ambit of the article 145 which punished the abortion of the woman with her consent, but out of the cases expressly established by the LO 2/2010.
Within the first paragraph of this article 144, there is no much more to say, the punishment imposed to who executes the fact in it described is of imprisonment from four to eight years and the special disqualification for exercising any sanitary profession or rendering any service related with it, for a term from three to ten years, something which seems to hint that the abortion in the majority of the cases will take place in such ambit, public or private, sanitary, and who causes it will be a professional related with such ambit, although it cannot be otherwise.
Now we shall detain ourselves, in the second of the paragraphs of the article 144, which punished to who has obtained the consent of the woman by means of violence, threat or deception. This is an important point, above all in the cases in which, the abortion has been practiced by a medical professional believing that it has obtained the preceptive consent of the woman, making legal the abortion according to the rules of the LO 2/2010, but in reality this consent has been tainted by a third who has threatened the women for giving it, and who is in reality, who executes the abortion. In order to develop this idea we have to depart from the article 28 of the CP, who points out as author of a crime “those who executes the fact by their own, jointly, or by means of another whom they use as an instrument.” According to the above, author will be who has the functional domain of the fact, what has been called by the doctrine the theory of the functional domain of the fact, in other words, who promotes, makes, executes and carries out the criminal ideation. From this perspective, we can distinguish between, the formal domain of the direct author, the domain of the will of the mediate author, and the joint domain, of the coauthorship. Because although the article 28 includes among those who are regarded as authors, the instigators and the necessary cooperators, those in reality are not authors since they do not have the functional domain upon the fact, or if it is preferred, for not executing it directly, jointly with another, or by means of another whom the author use as a tool. Therefore, the article 28 expressly authorizes the mediate authority, having pointed out the jurisprudence from the courts what are its elements, for example in the STS 4790/2017: “…the jurisprudence of this Chamber has regarded, as criteria from where deducing the mediate authorship, the domain of the action and using another to execute the crime. Thereby, we have pointed out that the mediate author has also the domain of the fact, although through the domain of the will of another, called tool, who is who commit the crime directly. This authorship will take place in the following scenarios: a) when the tool acts without malice, in other words with error of type; b) when it acts coerced, being necessary to appreciate here the intensity of the coercion for estimating the mediate authorship or the induction; c) when the tool is unfit to plead, save the cases in which this has kept the domain of the fact, in which case it will rather be a case of induction; and d) when the tool acts with error of prohibition, in which case that, not knowing the prohibition, does not dominate its will but only its action, which is used by the mediate author.” Therefore, in the scenario that we mention at the beginning, in which the abortion is carried out by medical professionals believing that they are acting within the usual legal framework, such professional will be the mere tools of the mediate author, who is, who has obtained the consent of the woman through threats, for who has directly executed the fact, the medical professionals, has executed it with error of type, in other words, without malice. To the above we have to add that, in order that the intimidation to the pregnant woman has legal effects, “the pregnant woman has to be threatened with immediate and grave harm; the gravity has to be measured by its penal relevance: the harm with which is threatened has to be a crime.” as is remembered to us by the STS 1/2020.
We have a good example of the above, in the STS 3391/2019: “In short, the accused controlled the development of the criminal action, both in its objective dimension and in its subjective, concretely their behavior is integrated in the article 28 of the Penal Code, when it is referred to those who execute the fact “by means of another whom they use as an instrument”, since they took advantage, using violence upon the victim, and deception on the doctors, for provoking an error in them about her consent, therefore the doctors executed the fact with neither malice nor liability, nor having wholly knowledge or domain of the fact, something which differentiates them from the accused.”
But, let us start again from the beginning. We said that, this second paragraph of the article 144 which punished as author those who has obtained the consent of the woman by violence or intimidation, was relevant above all in the cases of mediate authorship in which those who exercise the violence or intimidation make use of medical professionals, who are in the practice who cause the abortion with error in the type for not concurring malice, as tools. However, we cannot forget those cases in which is the own woman who decides to abort, as consequence of having been induced. The cases of induction are characterized, for the fact that the instigator creates in the induced the determination of committing a crime, in other words, the induced acts with malice, acts willing and desiring to commit a crime to which has been induced. The existence of malice differentiates the cases of induction from the cases of mediate authorship, since in the latter the tool acts without malice, although the mediate author has the domain upon the fact, something of which is lacking the instigator. We find a good example of the above in the STSJ AR 1479/2022, where are also mentioned the requisites of all induction to have legal consequences: “According to the above, we have to consider the accused as author, at least in its concept of instigator, for he induced the minor, with only 14 years of age, to provoke herself an abortion through a medicine provided by him, including precise information of the way of taking it for obtaining the goal of interruption the pregnancy which is only used in the hospital ambits, thereby, although it is true that he cannot be regarded as a material author of the facts, he must be regarded as an instigator (art. 28 CP), for we can only understand that he made to arise in the minor the will, until then not existent, of interrupting the pregnancy (STS 503/2008), and he complies with the requisites mentioned in the SSTS 1026/2009 and 681/2018, reiterated in the STS 347/2022:
a) The influence of the instigator has to be upon someone who previously does not have the intention of committing the infringement;
b) The incitement has to be intense and adequate, in a way that it motivates the induced to the commission of the fact desired;
c) That is determined a determined executer and the commission of a concrete crime;
d) That the induced commit, to which it has been incited, and;
e) That the instigator has acted with the double intention of provoking the criminal decision and that the crime is executed.
Certainly, the idea of making use of the medication was transmitted by the accused to the minor, who did not have it, the influence was enough intense, due to the proximity between them and the difference of age which exist between both, to make arise in the minor the idea of committing the fact, it is the commission of a concrete crime, and this was executed.”
– The abortion with consent of the woman, but out of any of the scenarios expressly envisaged by the law:
In the article 145 of the CP is punished who produces the abortion of a woman, with her consent, but without complying with any of the cases expressly envisaged by the law. Like in the scenario envisaged in the article 144 of the CP, in the behavior of the author who provokes the abortion, although with the consent of the woman, there has to be malice, although in this case the logical will be that the only kind of malice which can concur is the direct malice, for if we take into account that there exists the consent of the woman, the behavior which provokes the abortion will always be altogether premeditated, which should discard the possibility of eventual malice, though we should not altogether discard it, in those cases in which the author and the woman who consent its behavior, are conscious of the risks which it entails.
In the article 145, is also punished the woman who provokes to herself the abortion or consent that other causes it to her, out of the cases expressly envisaged by the law. Something which does not happen in the article 144, since for being applicable the article 144 the abortion has to take place always without the consent of the woman. This, too, makes us to thing about the mediate authorship and the induction which we saw in the article 144. In the scenario envisaged by the article 145, the will of the woman cannot be tainted, and therefore, she will be neither threatened nor incited, to obtain her consent. In other words, for being within the scope of the article 145, the woman must have given her consent freely.
Let us now see what is said by the article 145: “1. Who produces the abortion of a women, with her consent, out of the cases allowed by the law will be punished with the punishment of imprisonment from one to three years and special disqualification for exercising any sanitary profession, or for rendering services of any class in clinics, gynecological establishments or consultancies, private o public, for a term from one to six years. The judge may impose the punishment in its superior half when the acts described in this point are practiced out of a public or private accredited center or establishment.
- The woman who produces the abortion or consent that another person causes it to her, out of the cases allowed by the law, will be punished with the punishment of fine from six to twenty-four months.
- In any case, the judge or court will impose the punishments respectively envisaged in this article in its superior half when the behavior is carried out from the twenty-second week of gestation.”
As we can see, in the crime of abortion of the article 145, existing consent of the woman, its author is punished with the punishment of imprisonment from one to three years and special disqualification for exercising any sanitary profession or related with it for a term from one to six years. Due to the kind of special disqualification, it is understood, too, that the typification of this behavior is aimed above all to the medical professionals, although we cannot discard that it can take place in other ambit.
As we said above, the article 145 also punished the woman who produces her abortion or consent that other causes it to her out of the cases legally envisaged, although in these cases the punishment is only of fine from six to twenty-four months. Naturally, always that exist consent of the woman freely given, we can never be within the ambit of the article 144.
In the last point of the article 145, it is punished with the punishment in its superior half to the envisaged for the behavior in it described, the cases in which the abortion is practiced from the twenty-second week of gestation. This temporal limit, coincides with the marked by the LO 2/2010 for the voluntary interruption of the pregnancy of the woman for medical causes (art. 15).
The envisaged in the article 145 has to be complemented with such LO 2/2010, for in it is where are regulated the cases of voluntary interruption of the pregnancy according to the Spanish law. This law has established a system of temporal limits, according to which the unborn child, the passive subject of the crime of abortion, is more or less protected. Such temporal limits has been established in accordance with a scientific criteria, depending of the state of gestation of the woman, for the lesser the time, the lesser will be the protection granted to the unborn child, for being farther of being able of being regarded a human being. As the exposition of motives of the LO 2/2010 says: “The legislator has regarded reasonable, according to the indications of experts and the analysis of the compared right, to leave a term of 14 weeks in which is guaranteed to the women the possibility of taking a free and informed decision about the interruption of the pregnancy, without the interference of third parties.”
In the LO 2/2010 are regulated three kind of temporal limits: A temporal limit of fourteen weeks of gestation, without the necessity of cause, and always that, a) that the woman has been informed about the rights, benefits and public helps supporting the maternity, in the terms which are established in the points 2 and 4 of the article 17 of this law, and b) which has elapsed a period of at least three days, since the information mentioned above and the medical intervention (art. 14); Another temporal limit of twenty-two weeks, always that there exist grave risks for the life or the health of the woman and this has been gathered by a report from a doctor or specialist doctor different from the one who will carried out the abortion, or always that exist risks of grave anomalies in the fetus and this is gathered in a report emitted before the intervention by two specialist doctors different from who will carried out the abortion (art. 15); And another without term of gestation, in other words without temporal limit, when are detected fetus anomalies incompatible with the life and it is gathered before, in a report emitted by a doctor or specialist doctor, different from who will practice the intervention, or when is detected in the fetus an extremely grave and incurable illness in the moment of the diagnostic and this is confirmed by a clinic committee (art. 15).
These are the cases in which is legal to abort in Spain, without being afraid of troubles with the law. Therefore, always that we are not before any of the above cases, and have existed the consent of the woman or she has been who have voluntarily caused it, we will be within the scope of the article 145 CP.
– The abortion with the consent of the woman and within the cases expressly envisaged by the law:
If we only pay attention to the tittle of this epigraph, it seems not logical that this case is even penalized. There exists the consent of the woman, the abortion has been practiced according to the legal framework, then, what is the problem?
The legislator has wanted to go even a little further in the protection guaranteed to the unborn child, when is not fulfilled in the abortion any of the four requisites mentioned in the article 145 bis. Concretely the article 145 bis says: “Will be punished with the punishment of fine from six to twelve months and special disqualification for rendering services of any kind in gynecological clinics, establishments or consultancies, public or private, for a term of six months to two years, who within the cases envisaged by the law, practice an abortion:
a) Without having checked that the woman has received the previous information concerning to the public rights, benefits and helps supporting the maternity;
b) Without having elapsed the term of waiting envisaged in the legislation;
c) Without having the preceptive and previous reports;
d) Out of a public or private accredited center or establishment. In this case, the judge can impose the punishment in its superior half.
- In any case, the judge or court will impose the punishments envisaged in this article in its superior half when the abortion has been practiced from the twenty-second week of gestation.
- The pregnant woman will not be punished according to this article.”
As we see, all these requisites are mentioned in the article 14 or 15 as part of the scenarios which legalize the voluntary interruption of the pregnancy. For example, the mentioned in the point a) is a requisite for the voluntary interruption of the pregnancy within the first fourteen weeks, as well as the mentioned in the point b).
Perhaps of all the requisites mentioned in the article 145 bis, the one which more impact may have in the practice, is the c) “without having the previous and preceptive reports”. This medical reports are really important, because they guarantee that an abortion is practiced according to the first two legal scenarios of the article 15 of the LO 2/2010. In the absence of such reports, the most probable will be that there is no other proof supporting that the abortion was carried out according to the legal rules. Therefore, in these cases, the absence of preceptive medical reports, will not determine that we are before a crime of the article 145 bis, but before a crime of the article 145, in other words, with the consent of the pregnant woman, but out of the cases expressly legalized by the law, as consequence of the absence of proofs which can proof it.
We can find a good example of the above in the STS 4790/2017: “As we have pointed out, we are not facing the simple omission of a report, what determines the legal classification in the scenario subjected to our consideration is the absence of any element which allows to sustain that there exist a grave risk for the life or health of the pregnant woman, even understood it in the terms defined by the LO 2/2010 as “the state of full physic, mental and social well-being and not only the absence of illnesses.”
The argument exposed in the appeal, according to which, is a maxim of the experience that all the pregnancies not desired suppose a situation of obvious risks for the physic health of the pregnant woman, is not enough for achieving the contrarios conclusion and particularly, for concluding that always in this cases the practiced abortions will be legally protected.”
– The abortion caused for grave imprudence:
The imprudence suppose the absence of malice, there is intention of neither committing a crime, nor prevision by the part of the subject who carried out the action, that the typic result can take place. Therefore, the grave imprudence implies the absence of any kind of malice, even the eventual malice.
The imprudence, is a complex legal concept, bordering with the eventual malice defined before when it is a grave imprudence, for the LO 1/2015 distinguishes between the grave imprudence and the less grave imprudence, being the slight imprudence reserved for the civil ambit of the non-contractual liability.
According to the Sentence of the Spanish Supreme Court 2648/2022: “the essence of the crime of imprudence is the infringement of the duty of care which makes reprochable this behavior because this care was demandable.” And down below it adds the elements of which it is made up: “a) A non-willful or malicious action or omission, with the absent of any direct or eventual malice; b) The psychological or subjective factor in the negligent acting for lacking of forecast of the risk, an element non-homogenisable and therefore susceptible of being appreciable in differing degree; c) the normative or objective factor represented by the infringement of the objective duty of care, specified in the regulation norms or imposed by the social and cultural norms demandable to ordinary citizen, according to common experience; d) production of the harmful result; and e) adequate causal relation between the careless behavior provoking the risk and the harm caused within the ambit of the objective imputation ( SSTS. 1382/2000 of 24.10, 1841/2000 of 1.12.).”
Therefore, the great difference between the eventual malice and the imprudence is that, in the case of the imprudence, it may consist in either an action or an omission, the harmful result must not be wanted or accepted, and such action must be rationally dangerous, not allowed, due to the omission of the duty of care normally demanded by the legal order, by the customs or by the rules of social coexistence.
The sentence of the Spanish Supreme Court 2543/2022 says: “In the imprudent crime, therefore, is produced a result socially harmful through an action avoidable and which exceeds the risk allowed. The illicitness will be determined by means of the comparison between the action made and what was demandable by the duty of care in the concrete situation.”
In order to distinguish between the grave imprudence and the slight imprudence, we have to attend to the importance of the duty omitted, the value of the legal goods affected y greater or lesser possibilities that the result is produced.
According to the aforementioned quoted sentence of the Spanish Supreme Court 2543/2022, the grave imprudence is: “the omission of the care more intolerable, through an active or omissive behavior, which causes a harmful result and which is causally normatively linked which such result.” While in the same sentence the less grave imprudence is defined how: “the constitution of a risk of inferior nature, to the grave, assimilable in this case, the less grave, as the infringement of the common duty of forecast in the activity carried out by the agent in the corresponding behavior which is the object of attention and which is the causally determined, unique or plural, with the result produced, in a way that can be affirmed that the creation of the risk is attributable to the agent, either for professional behavior or for its action or omission in an activity socially and legally allowed which may provoke a harmful effect.”
In the case of the abortion, is only punished the grave imprudence, contrary to what happen for example with the crime of homicide, where is punished the grave imprudence (art. 142.1 CP), as well as the the less grave imprudence (art. 142.2 CP).
The article 146 says: “Who for grave imprudence occasions an abortion will be punished with the punishment of imprisonment from three to five months or fine from six to ten months.
When the abortion has been committed for professional imprudence will be imposed too, the the punishment of special disqualification for the exercise of profession, trade or post for a term from one to three years.
The pregnant woman will be not punished according to this article.”
Víctor López Camacho.
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com