“Of the injuries to the fetus” is how is titled the Titile IV of the Book II of the Spanish Penal Code (CP). It is a crime relatively new, for it is only typified by the CP since 28 years ago. It was through the Organic Law 10/1995, of 23 November, of the Penal Code, when expressly were included as crimes the injuries to the fetus.
Although it is true that, up to the entry into force of the Organic Law 10/1995, of 23 November, the crime of injuries to the fetus had never been expressly punished by the Spanish Penal Code, it is not less true that, before the Spanish Courts had punished such behavior through more or less complex doctrinal elaborations. For example, the STS 9375/2002 made reference to this doctrinal evolution which finally became a norm: “The sentence of this Chamber of 5 April 1995 in the causation appeal 2/1994, under the validity of the Penal Code of 1973 convicted for a crime of negligence with the result of grave injuries caused to the fetus, when there existed no the specific categorization of the art. 158 of the current Code of 1995 which established it, although it was heralded by the projects of reform.
Analyzing from the penal standpoint the injuries caused to the fetus during the course of gestation recalled that the articles 29 and 30 of the Civil Code are forced to regard as person the conceived to all the favorable effects and there is no more beneficial for the human being in gestation than to conserve its physical and psychic integrity, adding that the conceived, in harmony with the scientific advances, has a genetic patrimony different altogether and own immunological system, that it can be a patient within the womb -according to the more advanced techniques- of medical or surgical treatment for organic illnesses and deficiencies, and that the dependence of the mother, abstraction of the biological term of gestation, is not an absolute term since it is prolonged after the birth; denying to the embryo or the fetus independent human condition and otherness maintaining the pretended idea of the “mulieris portion”, is to ignore the realities indicated.
The sentence denied, in essence, that there existed an authentic normative void in this point and affirmed that was possible, even from the perspective of this that time, a legal-penal construction as had been implicitly doing the jurisprudence of this Chamber, citing five sentences, in order to conclude that could be attributed to the fetus “with a progressive sense emancipated of civil fictions, human condition differentiated from its progenitora and penally protectable; the possibility of the crime for malice and, consequently, of the crime for negligence is not questionable in the name of the principle of legality.”
Hence, although the crime of injuries to the fetus is of relative new creation, the malicious or imprudent behavior which the current regulation punishes, were already punished by the Spanish Courts, considering the fetus a human being entirely different from the mother who has it in her womb.
However, this lack of express regulation served as defensive argument in many occasions, which affirmed that the punishment of facts that were not punished by the CP as such infringed the principle of legality recognized in the Constitution, first in the article 9.3 with general character, and later in the article 25.1 regarding the penal norms, achieving in this article the status of fundamental right of the citizen.
In this sense the Spanish Constitutional Court explains in its sentence 47/2022 of 24 March 2022: “a) According to reiterated doctrine of this court , the mandate enunciated contains a subjective fundamental right which comprehends a formal guarantee, which consists in the necessary existence of a norm with rank of law as previous condition of the punitive action of the State, which defines the punishable behaviors and the sanctions which correspond to them, and a material guarantee in order to assure the normative predetermination of the illicit behaviors and the corresponding punishments (STC 24/2004 of 24 February).
The material guarantee, in relation with the legislator, is traduced in the mandate of specificity (lex certa), which mainly comprehends the demand of a precise typification endowed with the adequate concretion in the description which it incorporates. On the other hand, the analogy in malam partem and the extensive interpretations of the penal norm by the judicial organs have been expressly reproached by our doctrine, for contravening the mandate of the article 25.1 CE.”
This is the void which tried to fill the current regulation of the crime of injuries to the fetus. Before commenting the specific content of the article 157 and the article 158, we should clarify what we can understand as such. For that, we should depart from the above excerpt of sentence, the fetus will acquire its own autonomy and will be penally protected from the moment of its conception, thus is the unborn child what is protected by the articles 157 and 158, with independence of the term of gestation in which it is. Nevertheless, this protection ends in the moment of giving birth, this is how has been considered by the jurisprudence of the Spanish courts, understanding that from the moment the body of the mother starts to prepare the birth, the fetus acquires a new legal dimension and has to be already deemed as a human being, thus, not being protected by the articles 157 and 158, in the cases in which are caused injuries to it, but by the articles 147 and following of the CP. The Spanish Supreme Court´s sentence number 241/1999 is clear with regard to the above: “The beginning of the birth ends with the fetal stage and this beginning commences with the so-called period of delation and continues with the period of expulsion, in both times the birth has already started. The contractions of the dilatation tend to extend the mouth of the uterus till total extension and at the same time push the child out, there is already an attempt of expulsion from the mother´s body, which links with the contractions y pains of the expulsion which coincides with the last stage of the birth.
We said that the beginning of the birth ends the fetal stage and, consequently, becomes a person what before was a fetus. There exists no Penal Law with a precept which points out, as in the Civil Code, the demarcation, to the pertinent effects, of the legal consideration of person. There is no doubt, that the consideration of person from the moment the birth begins is situated in the line of the greater effectivity of the rights to the life, to the physical integrity and to the health proclaimed by the articles 15 and 43 of our Constitution.
The human being, whose birth has began, is the legal good protected and at the same time the object which suffers the action or omission which as crimes of homicide or injuries are typified in the Penal Code. Are not, then, the crimes of abortion nor the injuries to the fetus which have to be examined. Nor the health, integrity or life of the fetus what is put into risk but the health and physical integrity of a “person”, the other, to which is referred the article 420 of the Penal Code and the article 147 of the current Penal Code.”
Achieved this point, it is the moment of talking of the articles 157 and 158. In the former is punished the malicious crime and in the latter the imprudent.
The article 157 says: “Who, by any means or procedure, causes in the fetus an injury or illness which gravely damage its normal development, or provokes in it a grave physical or psychic harm, will be punished with the punishment of imprisonment from one to four years or special disqualification for exercising any sanitary profession, or for rendering services of any kind in clinics, gynecological establishments or consultancies, publics or privates, for a term from two to eight years.”
The first we should analyze, as always, is what kind of punishment is sanctioned. The article 157 punishes who maliciously and for any means or procedure, harm the fetus. For malice we should understand both the direct malice and the eventual. There exist malice when are known and wished the elements of the penal type, or in the own words of the STS 4840/2020: “As is argued in the Spanish Supreme Court´s sentence of 16/6/2004 the malice, according to the more classical definition, signify to know and want the objective elements of the penal type.” On the other hand, there will exist eventual malice, when the typic result is envisaged as possible by the subject who carries out an action and despite it executes it, or again in the own words of the STS 4840/2020: “the Spanish Supreme Court´s sentence of 4/6/2000 says that the malice suppose that the agent represent to itself the harming result, of possible and not necessary origination and not directly wanted, in spite of which is accepted, also consciously, because are not renounced the execution of the execution of the thought acts. This means that, in any case, is demandable in the author the consciousness or knowledge of the high risk of production of the result that its action entails.”
Besides, we should have into account the wideness with which is described the harmful behavior, “Who, by any means or procedure…”. Which means that the action or omission, which triggers the injury, may be of very different nature, as for example, it has not to affect directly the fetus, but the mother, and indirectly through this action or omission having damaged the fetus. This is what explains to us the Spanish Supreme Court´s sentence 241/1999, which although is concerning the crime of injuries of the article 147, is applicable due to the fact that both articles, the article 147 and the article 157, share the same wording: “We should, likewise, take into account that the aggression of a crime against the persons do not require that the harmful action or omission is produced through direct action upon the victim, it is perfectly possible that the action or omission that creates the situation of risk or danger for the legal good protected is produced through another person or object, other thing cannot be understood when the article 147 of the current Penal Code and the article 420 of the abolished text, with evident wideness, are referred to causing injuries by any means or procedure. Thereby, this Chamber has declared, as is exponent the sentence of 9 June 1998, that the reform of the crimes of injuries carried out by the LO 8/83 signified an important change in the structuring of the criminal types that protects the physical integrity and the health.
Through the new redaction we passed from a system mainly characterized by describing determined ways of action, which explicitly implied an action upon the body of the victim (to wound, to hit, to maltreat), to another system in which the way of the action lacks any special characterization. In this way, the decisive is not the way of the action, but its causality with respect the result of damaging the physical integrity or the physical or mental health.”
Finally, the malicious action or omission has to be of enough entity for causing “in the fetus an injury or illness which harms gravelly its normal development, or provokes in it a grave physical or psychic damage.” Hence, not all the damages caused to the fetus are punishable according to the article 157, but only those which provoke grave injuries. Here we have to stop again, because this article 157 refers to both the physical and the psychic injuries, does it mean that both are equally protected? yes but with nuances, or not but with nuances. In the case of the psychic injuries, are only protected when they derive from a previous physical injury. This is what is said by the Provincial Court of Barcelona´s resolution number 9375/2020: “This conclusion is derived, of the text of the article 147, the same that that of the article 157 (injuries to the fetus) which established that the damage to the psychic health should come from an injury caused. It manifests that in any case is necessary a physical injury from which is later derived, as mediate result, the damage to the physical or psychic health. In other words, that the result of the action must be an injury which should be identified neither with the harm of the physical integrity nor of the physical or psychic health. In consequence, in a correct understanding the penal type of the injuries demands as previous requisite a physical injury which should have also consequences in the physical integrity, in the physical or psychic health.”
Now, it is the turn of the article 158, which says: “Who, for grave negligence, commits the facts described in the above, will be punished with the punishment of imprisonment from three to five months or fine from six to 10 months.
When the facts described in the above article were committed by professional negligence will be imposed as well, the punishments of special disqualification for the exercise of the profession, trade or post for a term from six to two years.
The pregnant woman will not be punished according to this precept.”
The negligence is a legal concept more complex, bordering with the eventual malice when it is a grave negligence, for the LO 1/2015 distinguishes between the grave negligence and the less grave negligence, leaving the slight negligence reserved the the (civil) ambit of the extra-contractual liability.
According to the Spanish Supreme Court’s sentence 2648/2022: “The essence of the crime of negligence is the infringement of the duty of care which makes punishable his behavior because this care was demandable to him.” Afterwards it adds the elements which compound the negligence: “a) a willful not intentional or malicious action or omission, with the absence of whatever direct or eventual malice; b) the psychological or subjective factor consisting in the negligent action for a lack of the forecast of the risk; c) the normative or objective factor represented by the infringement of the objective duty of care, concreted in the regulation or imposed by cultural social norms demandable to the average citizen, according to common experience; d) the production of the harmful result; and e) adequate causal relation between the careless action which unleashes the risk and the harm caused, within the ambit of the objective imputation ( SSTS. 1382/2000 de 24.10, 1841/2000 de 1.12.).”
The Supremo Court ́s sentence 2543/2022 says: “In the imprudent crime, thereby, it is produced a result socially harmful through an avoidable action which surpass the risk allowed. The consideration as a negligence of the action will be determined through the comparison between the action which was carried out and the action which was demanded by the duty of care in the concrete situation.”In order to distinguish the grave negligence from the less grave negligence, we should attend to the importance of the duty omitted, the value of the legal goods affected and the possibilities of provoking the result.
According to the aforementioned sentence of the Spanish Supreme Court 2543/2022, the grave negligence is: “the most intolerable omission of diligence, through either an active or omissive conduct, which causes a harmful result and which is normatively connected with the result.” Whereas in the same sentence the less grave negligence is defined as: “the setting-up of a risk of inferior nature, to the grave, assimilable in this case, the less grave negligence, as the infringement of the average duty before the activity which is carried out by the agent in the corresponding action to the behavior which is the object of attention and which is the main cause, with the produced result, in such way that it can be affirmed that the creation of the risk is imputable to the agent, either for his professional behavior or for an action or omission in one activity socially and legally allowed which may cause a harmful result”.
In the case of the article 158, is only punished the grave negligence, leaving aside the injuries caused to the fetus for less grave negligence.
We cannot forger either that, the article 158 expressly punishes the professional negligence, something which supposes a greater diligence when following the social rules or regulations, as for example is recognized in the Spanish Supreme Court´s sentence number 9375/2001: “When the punishment is related with the behavior of a professional, who has to have knowledges and specific possibilities of preventing the harm, the rules socially defined achieve a high degree of demand since it is not the common demandable to any person, but they include those of the knowledge and application of the specific knowledges for which it has received an special preparation and qualification.
Not to follow these rules determines a greater unlawfullness. In the concrete case of the medical guilt was recognized by the doctrine of this Chamber “that it is not merely constituted by a mere scientific or diagnostic error, except in the cases that it is an error of extreme gravity, nor when are not possessed knowledges of extraordinary and very qualified specialization and for assessing it is necessary to take into account the circumstances of each concrete case, something which entails great difficulties since the medical science is not a science of mathematic precision and the diagnostic knowledges and the remedies are subjected to constant changes determined in great degree by the scientific advances in the subject”, as was established by the Sentence 811/99 of 25 May and was opportunely recalled by the Public Prosecution and the parties in the oral hearing of this cassation appeal.”
Víctor López Camacho.
Twitter: @victorsuperlope.
Más en mi website: www.victorlopezcamacho.com