The following analysis is from Dr. Martin Hevia, an S.J.D. graduate of the Faculty of Law at the University of Toronto, and his colleague Ezequiel Spector, both of whom teach at the Escuela de Derecho, Universidad Torcuato Di Tella in Argentina.
ARGENTINA: RECENT COURT DECISIONS AND NEW PROTOCOL ON THERAPEUTIC ABORTION
In the last months, a heated discussion on abortion has been taking place in the Argentine media. This is caused by a series of recent decisions by Argentine courts. The main discussion is about the scope of Art. 86 of the Argentine Criminal Code, which allows for abortion only for therapeutic reasons and for eugenic reasons.
The discussion may be traced back to C.R.O. vs. Province of Buenos Aires, a 2002 Supreme Court of the Province of Buenos Aires decision that authorized a hospital to induce the childbirth to Ms. C.R.O., who had been pregnant for thirty-two weeks, because the fetus had anencephaly – a pathology that consists in the absence of an important part of the brain. On the basis of a 2001 Argentine Supreme Court decision (T., S. c. Gobierno de la Ciudad de Buenos Aires, sentencia del 11-I-2001), the Supreme Court of the Province of Buenos Aires argued that, in the case of a fetus with anencephaly, permitting a premature childbirth does not imply permitting an abortion. In the case at stake, this was so because the fetus’s death did not depend on a human action, but on the pathology. Postponing or advancing the childbirth does not change the situation of the fetus: had Ms. C.R.O given birth in the thirtieth-second week, the child would have died; and had Ms. C.R.O given birth in the thirtieth-sixth week, the child would have also died. According to the Supreme Court of the Province of Buenos Aires, the hospital was allowed to induce the childbirth to Ms. C.R.O because, had she continued with the pregnancy, she would have suffered serious psychological harm.
More recently, on February 21, 2007, in O., M.V. S/ víctima de abuso sexual the Civil and Commercial Court of Appeal of the city of Mar del Plata allowed a 14 year-old girl who had been raped by her stepfather to get a therapeutic abortion. Under the Argentine Criminal Code, abortion is not punished when the pregnancy is due to rape or when the health of the pregnant women is at stake. The Court understood that health also includes mental health and decided accordingly.
The Court understood that at stake was a person¹s need to visit a doctor to prevent risks to her life and health and that recognizing that need does not say anything against the right to life or about the discussion on when life starts. In some circumstances, when several rights are in conflict, the Court said that proportionality should be used and that in the case at stake that meant that the health of the victim had to be specially taken into account.