Once the principle of respect for human life has been adopted, no one would analyze the question of whether doing away at this moment with half of humanity, or with the elderly, or with the mentally weak, would bring good or bad consequences upon the rest of those who would remain alive.
Is Abortion Legal?
Those who favor the liberalization of abortion tend to adopt as their point of view what may be called the “ethics of consequences,” answering this question: if abortion is made legal, will the consequences be better or worse than those obtained with illegal abortion? Thus they allege the beneficial consequences with regard to hygiene, avoiding clandestine practice, freely deciding about “one’s own body,” and so on. Those who oppose the legalization of abortion, on the other hand, commonly adopt the perspective that may be called the “ethics of principles.” The principle of respect for human life is taken as the starting point, and then the question that must be answered is the following: is the immediate fruit of conception a human being? In light of the answer to this question, the analysis of the consequences—good or bad—turns out to be secondary. For once the principle of respect for human life has been adopted, no one would analyze the question of whether doing away at this moment with half of humanity, or with the elderly, or with the mentally weak, would bring good or bad consequences upon the rest of those who would remain alive[1].
It should be noted that this analysis is focused primarily on Mexican legislation.
1. Does the legislation protect the unborn?
Some refer to a supposed right to abortion dating back to the era of the Roman Empire, because—they claim—the unborn was regarded as a part of the mother’s organism, and in support of this argument a document taken out of its real context is adduced, for the Romans never intended by that sentence to justify abortion or anything of the kind. The clearest text is one by Ulpian (Lib. 24, ad Edictum, in D. XXV, IV, 2) in which, commenting on a rescript of Marcus Aurelius and Verus concerning a husband who claimed that his wife was pregnant, which she denied, he states that: partus enim, antequam adatur, mullieris portio est, vel viscerum (the child, before birth, is a portion of the woman or of her viscera). If the text is read in full, it is clearly seen that Ulpian wields this argument to maintain that it is impossible, before birth, to fully exercise the rights that paternal authority granted to the father, among which was having the child in his company. The case concerns a couple in the process of divorce, in which the husband, as always in Roman law, exercises paternal authority over all the children. Once born, the husband will have the right to take the child with him (ducere remitti), something he cannot do before birth, because his child is at that time a part of the mother. Rightly understood, the text is one more argument in favor of life, for the father is not authorized to take the child with him before birth. In the same text of the Digest, several fragments of the Praetor’s Edict are gathered, regulating the powers of the guardians of the womb [2].
In Justinian’s Digest the nasciturus is recognized as a human being (D. 1. 5. 26); and for this reason he must be considered a holder of rights, as if he had been born (Nasciturus pro iam nato habetur D. 1. 5. 7), when it is to his advantage (commodum). This principle—which the creative Roman jurisprudence of the Augustan age introduced into the system of the ius civile, bringing about a qualitative change in the structures of non-Roman social and juridical thought, as well as of the entire human civilization—becomes one of the universal foundations constitutive of the edifice of man’s inviolable rights, the right to life. The whole juridical tradition has been possible for almost thirty centuries, from the very beginning of the civilization of law, because respect for every innocent human life has been formed on the basis of the ontology of the human being, of his singular dignity and superiority over other beings, and not on mere considerations of a political and pragmatic order. So then, what have been the causes of the juridical tumble which, denying the principle concerning the inalienable character of the human right to life, is leading to the legalization of abortion, of euthanasia, and of other attacks against the dignity of the human being? [3].
There are those who admit that a generic right to the life of persons exists, but they ask: who is truly a person? And they distinguish this from being a human being, and in this way they carry out an arbitrary discrimination between one phase and another of its development. Where are the roots of this contradiction? In recognizing as a holder of rights only the one who does not depend on others [4].
A few years ago abortion was considered a crime throughout the world. The evolution in this matter begins in Europe with the Soviet laws of 1920, and later receives a strong impulse in the West. Iceland (1935), Denmark (1939), Sweden (1939), East Germany (1950), (Finland (1950), Hungary (1950), Czechoslovakia (1954), Switzerland (1954), Poland (1956), Romania (1957), Norway (1960). From 1967 is the United Kingdom’s Abortion Act. Bulgaria (1968), West Germany (1974), France (1975), Italy (1978), the Netherlands (1981), Portugal (1984), Spain (1985), Greece (1986), and Belgium (1990) [5].
Why has this change in legislations occurred? Experience has been that it begins by speaking of decriminalization for borderline cases, such as, for example, in the case of rape or when the mother’s life is in danger; later on as a solution to the social problem posed by the practice of clandestine abortions; then it has arrived at its complete decriminalization in the name of women’s emancipation. Considering, by way of example, the case of Sweden, it is observed that in the year 1864 the maximum penalty provided for procured abortion was reduced to six years of forced labor. On January 1, 1939, “therapeutic” abortion was legalized. Since 1975 it is at the complete discretion of the woman up to the twelfth week of gestation, and from there to the eighteenth she must consult a social worker. In later periods, the decision rests with the General Directorate of Public Health and Social Welfare. And the statistics showed that the number of legal abortions rose from 0.4 per 1000 women during the period 1939-43 to 3.7 ten years later. The UN data up to 1994 attribute to Sweden 20.4 induced abortions per 1000 women of childbearing age [6].
In the United States, following the Roe vs Wade decision of 22-I-73, the following was declared:
a) First trimester.— The decision to abort remains absolutely in the hands of the woman who consults with the physician;
b) Second trimester.— There may only be restrictions relating to guaranteeing the safety of the procedure for the woman, for example: personnel, instruments, method, adequate facilities, etc.;
c) Third trimester.— Abortion is prohibited, except to save the life or health of the mother. But the Supreme Court, in a later decision (Dolton), defined the term “health” so broadly, admitting psychological, familial, social, economic factors, etc., that a woman is left “justified” in aborting under any motive [7].
In Spain it was approved that the woman may decide on abortion if the pregnancy poses for her a personal, familial, or social conflict of gravity similar to the three situations previously admitted: risk to her life or her health—physical or psychological—malformations in the fetus, or rape. In order to abort it will be necessary to receive prior counseling, informing about other options such as adoption. Moreover, in this case the abortion would have to be carried out within the first twelve weeks of gestation. The data show that, in practice, abortion is already free in Spain by invoking the assumption of danger to the mother’s psychological health, which pro-abortion physicians readily certify. The statistics reveal that this motive is the one invoked in 97% of abortions [8].
In China, the “one-child” policy was mandatory from 1979. The central authorities are in charge of formulating the ideological guidelines, and local governments specify the sanctions and incentives according to the local situation. As for the maximum number of children, in almost all regions residents in cities may have only one, or two if the first is disabled; peasants are allowed to have two children if the first is a girl. A third child is forbidden in almost all the regulations. If a woman becomes pregnant and is single, she is obliged to abort [9].
In Mexico, Article 4° of the Political Constitution of the United Mexican States states in its third paragraph: “Every person has the right to decide in a free, responsible, and informed manner about the number and spacing of their children,” but it refers to the decision whether or not to have those children who may come in the future, and not to those who, having been conceived, have not yet seen the light.
On the other hand, as has been explained in the chapter “Human Life,” Civil Law places the conceived under the protection of the law and shows the legislator’s desire to give him the greatest possible protection, by considering him as born.
Now then, in Criminal matters the crime of abortion is classified within the title of crimes against life. In that same section are found bodily injury, homicide, etc. It is treated in a similar way in all the states of the Mexican Republic, and abortion is handled as legal in the case of rape, in the case in which the mother’s life is at risk, and the so-called therapeutic abortion.
In summary, it can be concluded that Mexican legislation does protect the unborn; nevertheless, it must be noted that it lacks clarity, for on the one hand it defends human life to the point of descending to the detail of considering the conceived as born, and on the other hand it does not express forcefully—in the Constitution, for example—the respect that is owed to him.
2. Statement of reasons for an addition to the Constitution
The need to submit the legal system to revision in light of changing circumstances and to adjust it to new needs leads to the following considerations:
To achieve a true rule of law it is necessary to exercise not only the faculty but the obligation of equipping oneself with sufficient knowledge to face the new questions and situations. This, which is important for any of the three branches, is more pressing in the case of the legislative branch.
Since the mission of the State must be directed to ensuring the minimum existence of each person, the goal is an order that can be felt as just, even according to changing circumstances, since the decisions of the present influence the living conditions of the generations to come, for what is decided today is not immediately correctable, but only in a more or less distant future; and in the event of committing mistakes, it is not enough to retrace one’s steps and eliminate the causes so that the errors are not repeated. As far as possible, problems must be anticipated so that the harm or damage does not even come to occur.
The effort in favor of doing today what suits the interests of those who are to be born in the future is to be expected, as well as anticipating the needs of the following generations.
No one wants to risk the reproach of acting without social sensitivity or of not collaborating in the triumph of the new events, but really, what contributes to true human progress?
Any law presupposes the existence of certain minimal principles, and in particular the dogmatic part of every Constitution shows an order of values, in such a way that the universality of the legal system receives guidelines and impulses from that hierarchy.
These are not maxims of ideological formulation, but rather those fundamental principles that are required as the basis of coexistence in an organized community.
For this reason, Law is something more than the form in which the decisions adopted by the direction of the State are declared to be generally binding. The State itself is also in some way dominated by Law. Law contains certain fundamental principles to which everyone—including the State—must be subject. The public subjective rights of the governed, that is, those individual and social guarantees that the Constitution establishes in its dogmatic part, constitute a limitation on the power of the State.
The dignity and respect for the life of the human being is a lofty value and therefore must be expressly recognized in the Fundamental Law. The decision in favor of private property, or the special protection of the family, is necessarily founded on value positions. When they appear in the Constitution itself, this responds to the aim of strengthening the effectiveness of fundamental rights. Ordinarily, this order of values is a description of the normative content of fundamental rights.
At present the order of values of the Fundamental Law and the laws that serve its execution compensate, up to a certain point, for the loss of orienting references. Therefore, in order to preserve the rule of law, we must seek the preservation of those values that are threatened or in danger of disappearing.
In this regard, one begins to notice how lately the perception of those principles considered immutable has been transformed. Merely by way of example, one may cite the grave problems concerning abortion, euthanasia, the various forms of artificial fertilization, experimentation on human embryos, cloning, etc.: all facts of great social and political, ethical and philosophical significance.
All this vast and complex set of problems has made felt the necessity and urgency of arriving, also with the help of genetics, at an exact and objective understanding and delimitation of man’s right to a dignified life. A right which, being one of the fundamental ones, is for that reason at the base of the very concepts of Law and, therefore, at the base of the very concept of human civilization. Because without respect for the person there is no Law, and without respect for Law there is no Civilization [10].
It is a question which, if solved inadequately at the legislative level, reveals itself as a dangerous principle of dissolution for the entire legal system.
3. On what basis should the unborn be protected?
As has been explained in the chapter “Human Life,” the union of the two cells called germ cells gives rise to a new individual of the human species.
The same is stated by the General Health Law, in force since 1997, in its article 314, section III, when it states that germ cells are the male and female reproductive cells capable of giving rise to an embryo.
It has been demonstrated, also in the chapter “Human Life,” that from the moment an individual is conceived, the Law considers him a person.
Furthermore, criminal legislation defines the crime of abortion within the crimes against the life and integrity of persons, and it is defined as “the death of the product of conception, at any moment of pregnancy.”
The chapter “Natural Law: an invention?” demonstrates that these laws are laws of all time.
On the basis of the foregoing, this question is posed: When legislation protects human life, who has been thought of? Only those who have managed to be born? Or have the unborn been included?—even though some do not fall into the category of the so-called normal: without physical or psychic defect. Has it been intended to protect the weak, the defenseless, the innocent? If the answer is yes, only then are the unborn included.
4. Proposal for an addition to the Constitution
Since fundamental rights must exist for the benefit of all, it is necessary that the protection of human life be regulated more clearly from the moment of conception until death, and not only guaranteed to those who are able to dispose of its exercise or claim.
The fundamental presupposition for the defense of any right requires, in the first place, absolute respect for human life and, especially, because of their defenselessness and innocence, that of the unborn. At present, with the development of genetics, no one can reasonably deny that the individual formed by the gametes coming from individuals of the species homo sapiens also belongs to the species homo sapiens; that is, that he lacks nothing to be defined, from his conception, as a “human being.”
The unborn human being, being a person, enjoys a dignity of his own. The most his own that he has is life, and so this right must be protected and made to be respected. Therefore, being considered a human person must not be a characteristic that appears only after a certain interval of time following birth, and that can be lost in the course of life. If in matters of Criminal Law it is preferable that some guilty person escape than that an innocent one be condemned, what justification will there be for failing to protect the unborn, in any of the possible attacks on his life?
Therefore, with the aim of laying the foundations for a solid body of laws in keeping with human dignity, one that clearly expresses the protection of the life of the unborn, the reform by addition to the Constitution is proposed, to read as follows. Every person has the right to the protection of life and health from the moment of conception until his death.
To defend life at the Constitutional level, from the moment of conception until death, is not a political program nor a cultural alternative; it means moving away from violence and a concrete way of attaining peace.
Without any doubt, from this will derive benefits of greater justice and respect of man for man. It is not a circumstantial impulse that leads to striving for this; it is a matter of defending the right to life and respect for the democracy of a people who must not be let down.
5. MYTH. Protecting the right to life of the conceived is already provided for in civil and criminal law; why include it in the Constitution?
RESPONSE. From this anticipated objection there emerges the evident absence of will to affirm a right to life, fundamental and inalienable, for although it is true that it is provided for in the legislation, the protection is nevertheless very deficient, which is easily observable when considering the current threats to life in other countries and in Mexico itself. Some examples we can observe with the so-called “eugenic abortion,” that is, physical or mental malformations that are considered grave, which is already legal in the States of Baja California Sur, Coahuila, Colima, Chiapas, Durango, Guerrero, Oaxaca, Puebla, and Yucatán; and, even without specifying that it be grave, in the states of Quintana Roo and Veracruz; on “economic grounds” in Yucatán; on grounds of “unwanted insemination” in Baja California Sur, Colima, Chihuahua, and Guerrero.
A recent case is that of Yucatán, where a single party decided the fate of the conceived in that state of the Republic: 15 legislators of the PRI expressed their total support for the initiative that the Governor sent on 5-I-00, while the eight of the PAN and the two of the PRD opposed it. Such being the case, the Criminal Code establishes that abortion is not punishable in the following cases:
a) when it is caused by a negligent act (accidentally) of the pregnant woman;
b) when the pregnancy is the result of a rape;
c) when, if the abortion were not induced, the pregnant woman would be in danger of death in the judgment of the physician attending her;
d) when the abortion is due to grave and justified economic causes and provided that the pregnant woman already has at least three children;
e) when it is performed with the consent of the mother and of the father where applicable, and in the judgment of two physicians there exists sufficient reason to suppose that the product suffers grave genetic or congenital alterations [11].
Abortion has also come to be considered legal when the pregnancy causes grave harm to the health of the mother, without specifying what is meant by “grave harm to health”; thus it is established in the states of Guerrero, Hidalgo, Jalisco, State of Mexico, Michoacán, Nuevo León, San Luis Potosí, Tamaulipas, Tlaxcala, and Zacatecas.
Within this situation favorable to abortion, the most critical case arose in Chiapas already in 1990, when an article was approved authorizing abortion for reasons of family planning and in the case of a single pregnant woman; the text is the following: Art. 136 “Abortion is not punishable when the pregnancy is the consequence of rape, if it is performed within ninety days from conception; when because of the pregnancy the mother is in danger of death or it can be determined that the product suffers genetic or congenital alterations that make necessary the birth of the child with grave physical or mental disorders; when the abortion is carried out for reasons of family planning in mutual agreement with the couple; or in the case of single mothers, provided that such decisions are made within the first 90 days of gestation and after the opinion of other physicians, when possible, and delay is not dangerous.”
However, this new article is not currently in force, because more than 200,000 signatures were collected against that reform of the Criminal Code, the State Congress deciding to suspend its application until the National Human Rights Commission issued an opinion on the matter, which, to date, has still not been done.
And, in other countries where abortion is already legally permitted, such as the United States, Australia, and above all Holland, the legal battle over euthanasia is being waged; in Europe, and specifically in England, over the cloning of human beings.
Such being the case, let it not happen that, in practice, life is a fundamental right, but only of the born, because, even though there is an interest in the legal system in protecting the conceived, it is so by means of a different and inferior status from that which corresponds to born persons. Thus, the unborn can come to be considered by the Law in a way not very different from mere things, and his greater or lesser protection would depend on the most varied questions of expediency: demographic, economic, reproductive, psychological, sociological, ecological, biological. In the history of Law there are similar degrading situations, where in different epochs and appealing to the most varied justifications, juridical personality has been denied to certain human beings, transforming Law into a tool of oppression, rather than one of liberation [12]. For example, with slavery, racial discrimination, the lack of the right to vote for women, etc. It has been necessary to change many things, and it falls to legislators to do so.
It is true that article 22 of the Civil Code and those relating to abortion in the Criminal Code establish the protection of the unborn, on the basis of articles 1° and 14 of the Federal Constitution; nevertheless, the duty to protect human life—also that of the unborn—is not specifically indicated in the Constitution, despite being a fundamental value among all the goods that the State must protect.
It is also worth mentioning that the addition being proposed is entirely consistent with the precepts of the legislation; or, if it were not so, whom does the Federal Constitution protect in the second paragraph of Art. 14 when it states that “no one may be deprived of life”? Is it not alluding specifically to the human being? And with respect to the precise moment to which it refers, is it not consistent with the legislation of each and every one of the States of the Republic that it be from conception, as established by Art. 22 of the Civil Code?
Therefore, with the addition the protection of human life “from the moment of conception” is specified, making more specific what is indicated by Constitutional Art. 14, for at present numeral 22 of the Civil Code and the precepts that define abortion in the Criminal Code attempt it, but without guaranteeing it.
With the proposed addition, the beginning of the unrestricted right to life would be made concrete in a specific, clear, and consistent manner. Specific: by indicating that human life is protected “from the moment of conception.” Clear: because until now it is only secondary legislation that mentions it in that way—legislation, I now note, subject to changes. Consistent: with the will of the legislators who established Art. 22 in all the states of the Mexican Republic.
The conclusion that can be reached is that legislation in Mexico protects the unborn from the moment he is conceived; nevertheless, that protection lacks force. If human life is protected from the moment of conception in the Civil and Criminal Code, what problem is there in its being determined in the Constitution? None.
From what has been mentioned so far, one may ask: if legislation continues as until now, is there a danger that the absolving excuses for abortion may increase, or even that new breaches against human life may be opened? And the answer is that, in practice, yes it is possible, as is easily verifiable by observing the legislation of the country’s constituent states.
In view of the foregoing, it can be concluded that the current protection for the conceived is not sufficient, the opposition to bringing it into the Constitution being strikingly notable. Are they aware of what an abortion is and means—in terms of justice? Have they seen one? Would it not be necessary for society to observe what it really is? Because we all give our opinion about it, but it is not clear that those same people thoroughly know what it is.
6. Conclusions
1° Articles 22 of the Civil Code and 329 of the Criminal Code establish a clear protection of the unborn, and it has its basis in articles 1° and 14 of the Federal Constitution.
2° The duty to protect human life—also that of the unborn—is not specifically indicated in the Constitution, despite being a fundamental value among the goods that the State must protect.
3° That same duty obliges the State to preserve and foster in the popular conscience respect for the life of the unborn.
4° To add to the Constitution in order to protect the life of the unborn not only does not conflict with the Constitution, but is coherent with the Civil and Criminal Codes of all the States of the Republic.
5° It is advisable to add to the Constitution in the following manner: Every person has the right to the protection of life and health from the moment of conception until his death.
7. What will be called progress in relation to the unborn? Is it humane to eliminate the most defenseless human being?
To employ the word “progress” a defined ethical code is required. One cannot be progressive without possessing a doctrine, because by its very name progress indicates a direction, and the moment we are in the slightest doubt about the direction, we doubt to the same degree about progress [13]. For this reason, in the matter of the protection of the unborn human being, what doctrine is being followed? And will there be true progress in following it?
History teaches that there have been errors in legislation, even grave ones, in relation to the treatment given to the human being. So has been demonstrated by the existence of slavery, racial discrimination against blacks, indigenous peoples, Jews, and women themselves. Now those who made those bad legislative decisions are sadly notorious. The most current case of discrimination is with the unborn.
Nevertheless, abortion has come to be considered legal because certain conditions occur: disability, pregnancy as a consequence of rape, danger to the life or health of the mother, etc.; or by the system of time limits, when the duration of the pregnancy is less than that which the law establishes in order to be able to abort.
In those cases the question arises: why is abortion to be legal? What is the reason someone is or is not in favor of it? Is the necessary information available? Is it a humanitarian cause?
At present there is no doubt that the unborn is a human being; so declare genetics, embryology, immunology, ultrasound studies, etc. Even so, there are those who maintain that the unborn is human only from the point at which the cerebral cortex is completely developed and begins to function, placing this event around seven months of gestation; therefore, should six-month premature infants be thrown away?
In the face of this curious case, it is to be supposed that, in addition to the search for the truth on this matter, there may exist another motive, not exactly philanthropic, because how humane will it be to eliminate the most defenseless human being? Should six-month premature infants be thrown away?
The legislative power belongs at present to the class of sovereigns who have power over life and over death; nevertheless, that power must not be exercised arbitrarily or against persons. If absolute respect for human life is not part of that cultural baggage necessary in every civilization, then what of importance can unite us? If in this—respect for life—we cannot manage to reach agreement, then on what will we be in agreement? [14].
8. Is the life of the conceived effectively safeguarded by the juridical-criminal norms?
It was especially from the seventies onward that a change contrary to life began in the legislation of some countries of the West, by not considering abortion unlawful in the case of rape, nor even when the mother’s life is at risk. Lately it has gone further, by legally authorizing eugenic abortion and when the mother’s health is in danger, opening up, in practice, any possibility of abortion, until arriving at the present moment, in which many countries admit it at the mother’s request.
Now then, it is true that the legislator establishes criminal sanctions according to the value he assigns to the legally protected goods, which, in the case of abortion, considers the conceived of lesser value than one already born, but this is antiquated, out of touch with scientific reality; for this very reason it is necessary to adapt the legislation to the advances of knowledge, as well as to evaluate the situation of anguish that a single, pregnant woman, or one with serious problems, may go through, for whom the presence of a new child represents yet another problem. We must look carefully at the special circumstances of a pregnant rape victim, because can an abortion solve the problem?
Therefore, the addition to the Constitution is not sufficient to achieve greater justice; it is also necessary to attend to secondary legislation, such as specifically the Criminal Code that regulates the crime of abortion.
a) Adaptation to advances
Criminal law—like all branches of law—safeguards goods that are made manifest in juridical norms for their better protection; and although in some way the cultural convictions of the community are reflected in them, approving or disapproving of certain conducts on the basis of what is perceived as appropriate, this does not detract from—but on the contrary confirms—the fact that they are modified when they are considered less just than the new proposals.
Nevertheless, justice or the lack of it cannot be measured solely on the basis of the opinion of a majority in Congress, because it does not guarantee that the dignity of man is duly respected and promoted; in this a democratic State takes pride, in which everyone has the right to set forth and defend their opinion.
It is true that democracy is the best of the systems of political organization, because it guarantees, through universal suffrage, the peaceful transfer in the exercise of power, but democracy and its instrument, the rule of the majority, is not a method for the investigation of truth. Truth can be acquired by evidence, by conclusive demonstration, or by trustworthy testimony from another; what cannot be done is to submit it to a vote. Hence there are laws which, even though promulgated democratically, do not deserve that name. Law, according to the classical definition, is the rational ordering, for the common good, promulgated by the one who has authority to do so. According to this definition, laws such as, among others, that of abortion are not laws but corruptions of law, since they are not inspired by reason but by the will of the majority; they do not produce the common good, which is the good of each and every person; nor have they been decided by the one who has authority to do so, because no legislative power, even if it had the backing of those currently in office, has authority to abrogate a right of the person as primary and fundamental as the right to life and to its protection by the State [15].
Such is the case with abortion, which, even though it is considered a crime against the life and integrity of persons, the treatment given to the unborn turns out to be inadequate, because the legislation does not value him as a human being equal to the others. The clearest proof of this is the experience in those legislations that tend, more and more, to admit the practice of free abortion, despite the fact that science, as an auxiliary means of Criminal law, has demonstrated that the “being in gestation” has imprinted all human characteristics from the moment of the union of the female and male gametes, constituting an individual of our own species.
Well then, this decriminalization that is gradually taking place does not seem to obey a situation of justice, but quite the contrary, because the evidence of his humanity is, ever more clearly, in favor of the conceived.
b) Reforming “abortion”
It is necessary, then, to modernize the criminal offense, to adapt it to the advances of genetics and embryology. For this reason, one would have to replace, as anachronistic, in the chapter relating to abortion, the concept of “product of conception,” which at the time was taken from medical science, with that of “human being,” more suited to the knowledge that modern genetics provides us. And something similar should be done with the paragraph that establishes “at any moment of pregnancy,” with that of “unborn” in article 329 of the Criminal Code for the Federal District. Why? Because some procedures of human reproduction do not begin within the body, but are carried out extracorporeally and therefore technically there would be no pregnancy; this is the case of cloning, of in vitro fertilization, and of the genetic manipulation of embryos.
c) Greater protection for the woman
With respect to articles 330, 331, and 332 of the Criminal Code for the Federal District, we have the following:
1° It is necessary to distinguish between the punishment for the woman who aborts and the other subjects of the crime. The decision to abort in a single, pregnant woman, or one with serious problems, for whom the presence of a new child represents an aggravation of things, is, without a doubt, a sign that she is very much affected. But that is not the case of those who profit from that woman’s crisis. For her, the abortion will entail harm to herself, because of that natural union that exists from the maternal womb between a mother and her child. She is the one who, under normal conditions, most enjoys her pregnancy. It is an experience that a mother does not exchange, and which, if she destroys it, harms herself [16].
2° Because of that same deterioration, it will be necessary to reduce the custodial penalty for the mother and to provide her with therapy entrusted to specialists, since it is the woman who has the natural custody of human life from its beginnings, and if she voluntarily interrupts it, she is left emotionally disturbed for that task.
3° To kill a defenseless human being, in the place that nature provided him with security, implies acting with the aggravating circumstances of criminal responsibility, and so the penalty for the perpetrators of the crime must be increased. Nevertheless, suspension from professional practice is dispensed with, with the purpose of ensuring immediate reintegration into working life, without stigmas subsequent to the deprivation of liberty.
In this way the woman is better protected, also drawing her away from abortion:
1º By reducing the custodial penalty for her.
2º By preventing them from doing themselves psychological and at times physical harm.
3º By preventing women from being pushed into aborting by those who do not accept responsibility in the face of an unexpected pregnancy.
The repeal of articles 331 and 332 is also proposed, as they are included in the second paragraph of article 330 of the Code.
d) Abortion in the case of rape: whom does it benefit?
MYTH. It is necessary to preserve abortion in the case of rape and to sufficiently support raped women who become pregnant.
REALITY. In article 333 of the Criminal Code for the Federal District, abortion is established for the case of rape, on account of which it is legally feasible to deprive the unborn of life (even though his life is specifically protected by article 22 of the Civil Code). Therefore, article 333 of the Criminal Code, which authorizes the practice of abortion when the pregnancy is the result of a rape, contrasts with article 22 of the Civil Code.
Now then, should the life of the unborn human being not be protected? Is it the spirit of the law to do away with the most defenseless and innocent beings? And, more fundamentally, is this the way to bring violence to an end?
The statistics reveal that 2% of the women who seek an abortion have become pregnant as a result of a rape [17].
The work carried out in Mexico by those who assist raped and pregnant women reports that of 11,178 women attended who sought to abort, as soon as they were informed of the reality of abortion and its consequences, 95% ruled it out as a solution [18].
To attend to those who have become pregnant through a rape is a matter that must be resolved as a priority in any state governed by the rule of law, for it is a grave situation of injustice for that woman violated in her sexual life; nevertheless, it is not justified that, on the way toward such a solution, the life of one who has committed no infraction continues to be ended: the nasciturus (the unborn). Indeed—it is necessary to understand that—even with the help of the State, suitable attention to those poor women is not ensured, for the governmental machinery can be slow and ineffective. In any case, the urgency to give an adequate solution must lead toward social solidarity on the part of the citizenry, but in no way must it be a condition that permits the homicide of an innocent one [19].
Thus, in Mexico there are private institutions that carry out a task of assistance to persons in that difficult situation; among them are: Centros de Ayuda para la Mujer (CAM) and Vida y Familia (VIFAC).
There is no doubt that suffering a rape is a traumatic experience that is accentuated by pregnancy. Faced with this situation, current legislation—following a criterion called the “non-exigibility” of a conduct considered heroic—grants the possibility of opting for abortion, because of the displeasure caused by the manner in which that human being has come to be conceived, as well as the psychological trauma that carrying the pregnancy for nine months would signify. However, it is necessary to acknowledge that, unfortunately, once the rape has occurred, it is not possible to set things right, to turn back and continue as if nothing had happened. It would be best that such a situation had never taken place, that it had never come about, but it is no longer possible to bring back the events. It is for this reason that it is necessary to punish severely the perpetrators of a crime of that nature. On the other hand, what should be reformed in the legislation, because it is completely lacking in justice and equity, is that abortion continues to be legal in the case of rape, for a death sentence is being imposed on an innocent one, for the crime that his father committed. For the rapist, the penalty will consist of the deprivation of his liberty; on the other hand, for the child of the victim, death. Some comment that it is not ethical to force a woman to carry the pregnancy that is the fruit of a rape, but what they do not delve into is whether there exists another better alternative than abortion, or, put another way, is it ethical to kill an innocent one? Must a mother pay for the crimes of her child? Why, then, must the child pay for those of his father? [20].
It is something as absurd as it would be for those who are awaiting the death penalty to have it commuted so as to be applied to another. There would be no sane person who would agree to be that other, even if it were explained to him that it is nothing personal, nor that it is applied to him because he is considered a criminal, but exclusively so that he might pay in his place [21].
And the fact is that when human survival is made conditional on the discretionary decision of a third party, it does nothing but consecrate a discrimination among human beings. When the protection of human life is subordinated to the concession of pronouncing on the ending of someone’s life, every idea of law collapses, in favor of the establishment of privileges, especially of the privilege of living [22].
In such a way that continuing the pregnancy and carrying it to term—giving the baby up for adoption, if the mother so wishes—turns out to be more in conformity with justice than the possibility of eliminating an innocent one to resolve a crime. In Mexico and throughout the world, there are many married couples willing to welcome, as their own child, an adopted one, even when his origin is a rape.
On the other hand, it is proven that mother and child are helped by preserving life, by not perpetuating violence. Aborting only adds one more trauma to the rape victim. Rarely have the best ways of helping rape victims been studied. In this sense, what Sandra Mahkorn comments in Psychological Aspects of Abortion is revealing; she specialized in counseling raped women. She studied the cases of some women made pregnant by rape. Among them, only five chose to abort. Of the other 28 who gave birth, 17 gave up their little ones for adoption, and 3 took charge of the baby. In the remaining 8 births it was impossible to know what became of the child. Those women found weighty reasons not to abort. In the first place, several thought that abortion was simply another act of violence, immoral and homicidal. One of them affirmed that taking the life of the little one would only cause her new reasons for anxiety. In the second place, some saw a meaning in that child. The child had burst into their lives without asking their opinion but, on the other hand, they sensed some kind of hidden meaning behind that event. And although they were not responsible for its conception, the truth is that it had happened and they would face the consequences. Moreover, the victim of a rape understands, in the deepest part of herself, that if she carries the pregnancy to term, she will have triumphed over the rape. To go forward is the best way to demonstrate that she is better than the man who forced her. Abortion does not help rape victims. On the other hand, the birth of the baby can be a victory for her, and instead, it is very likely that abortion would hinder her recovery by increasing the feelings of guilt and shame that undermine her own self-esteem [23].
Women who were raped and aborted remain with the trauma of the abortion, even thinking that there was no other remedy: “Yes, I feel guilty; I know that God has forgiven me many things, I do not know whether He has forgiven me that; I myself have not forgiven myself, but there was no other alternative. Back then I could not cope with my own life, I could not support myself, much less another little creature” [24].
Nevertheless, alternatives do exist. Another woman who suffered a rape, in the seventh month of pregnancy, comments: “I would have liked my first child to have been born of love, and if I keep this baby he will always be reminding me of what happened to me. I do not know whether I could ever come to love him, perhaps I would reject him, and so I prefer that he have a family where he can be better off (…) I could not respond to one crime with another crime” [25].
It is also necessary to fix one’s attention on those who promote abortion, because they are contributing to sexual abuse by concealing the crime in such a way that the exploitation continues.
With respect to the rapist, if someone were to suggest that rapists be punished with castration or death, a great controversy would surely arise in society:
1° Because of the uncertainty that would be generated as to whether it would be the true solution.
2° Others perhaps, because of the disproportion of the penalty.
3° Still others because of the mere possibility of not having correctly identified the guilty party.
The question then is: why is there insistence on killing the innocent? What reasons can be argued to justify it? To suggest abortion in the case of rape is to attempt to compensate for one injustice with another injustice.
It is, then, necessary to abolish abortion in the case of rape for the following reasons:
1º The human being, even the conceived one, is a person who has committed no crime, and yet is treated worse than the rapist. Why is the right to live denied to a person for a crime that his father committed?
2º The unborn is incapable of incurring any fault.
3º Minors are not criminally liable, so that penalties cannot be imposed on them.
4º By express provision of article 22 of the Federal Constitution, the death penalty is reserved for certain crimes, among which is not to be found that of having been conceived.
But, above all the foregoing, there is the fact that it is not a rabbit that is aborted, but a human being who is deprived of life.
Therefore, is it acceptable that abortion continues to be regulated in its current terms, despite the fact that from the moment of conception it is a human being? What justification is there for eliminating a human being who has not yet been born? Will we not be capable of seeking and admitting less violent solutions for carrying the difficulties? For pregnancy through rape no magnificent solution will be found, but all are better than abortion.
e) Therapeutic abortion: mask or reality?
MYTH. Legislations must authorize “therapeutic” abortion when the pregnancy endangers the mother’s life: why, in a situation of conflict, should the right of the fetus prevail over the corresponding right of the mother to live?
REALITY. As a gynecologist once said: “when they tell me to perform a therapeutic abortion I ask myself, whom am I going to cure?”.
The danger to the mother’s life, at present, with the knowledge and technical means available, practically does not occur; nevertheless, what is indeed frequent is to use this argument to request an abortion.
On the other hand, the current legislation contains serious deficiencies, for the present wording of Art. 334 of the Criminal Code for the Federal District, which contains what is usually called “therapeutic abortion,” seeks to justify the physician who induces the abortion when he considers it necessary to save the mother’s life. This is a principle called the “state of necessity.”
Juridical doctrine explains the “state of necessity” as a situation of present danger to the interests protected by Law, in which there is no other remedy but the violation of the interests of another, which are juridically protected [26].
Now then, it is objectionable that this article on abortion should be included as a case of “state of necessity.”
The legislation indicates in section V of article 15 of the Criminal Code the following: “The crime is excluded when: one acts out of the necessity of safeguarding a legal good, one’s own or another’s, from a real, present, or imminent danger, not brought about intentionally by the agent, injuring another good of lesser or equal value than the one safeguarded, provided that the agent did not have the legal duty to confront it” [27].
Which means that very few abortions could be included as a “state of necessity,” because it would have to pass through the following sieves:
1° Owing to the technical advances in medicine, the real danger to the pregnant woman due to her pregnancy has practically disappeared.
2° Whether it is a present danger or an imminent danger can make the difference, that is, what may determine the life of the conceived; thus, for example, the presentness of a danger to the mother’s life may result in bringing the birth forward by a few weeks or months, without reaching the imminence of death for the mother. The current wording of article 334 skips this last condition; it only takes it for granted in order to justify the diagnosis of a single physician when a delay would be dangerous.
3° It is the mother herself who must assume the risk of the pregnancy. When one does not have the adequate health conditions for pregnancy, and finds herself in that state, it is the mother who has the duty to confront the risk. If it is not she, then who is to do so? Obviously, to assume the risk does not mean having the duty to die in the attempt, but neither does it mean deliberately eliminating one’s own child, for that would not be to assume any risk at all. And, even less, should abortion for “grave harm to health” be classified within the “state of necessity,” for the life of the conceived and the health of the mother are not comparable goods.
Now then, with respect to having the legal duty to confront the risk of pregnancy, there are indications of it in Article 162 of the Civil Code, with the well-known paragraph—taken from the Fourth article of the Constitution—that says: “Every person has the right to decide in a free, responsible, and informed manner about the number and spacing of their children,” and that responsible decision about the number and spacing of children obviously leads to assuming the risk of pregnancy, even though it entails a serious danger.
In the same way that the desertion of the soldier because of the threat to his life in a battle would not easily be justified, nor the security agent’s abandoning the citizens in the face of the imminence of being murdered, nor the firefighter’s evading the fire that endangers a family because of the risk of being intoxicated himself as well [28].
From which it is concluded that the current wording of the article is very deficient, since:
1° It does not resolve the opposition of the lives of mother and child; it eliminates one of them and places the other at risk of a grave trauma.
2° It lacks justice, for it leaves the most defenseless one unprotected: the unborn.
3° It does away with any non-violent alternative, such as, for example, bringing the birth forward.
4° When abortion is permitted for “grave harm to health” for the mother, it leads to the absurdity of eliminating the conceived for any motive. So it happened in the United States. Therapeutic abortion came to be extended to psychological cases with the complicity of physicians in certifying the suicidal tendency of the patient who requested the therapeutic abortion [29].
Thus, then, the poor wording of article 334 is striking, which seeks to resolve the danger to the mother’s life, in the case of conflict, by sacrificing the life of the unborn, and without achieving any distinction between what is a direct abortion and an indirect one.
Indirect abortion must not be confused with the therapeutic (direct) one, since it is not the same to perform an intervention on a pregnant woman as a consequence of which the unborn dies, as to kill him deliberately. The first is called indirect abortion, and one intervenes to attend to the mother, who is the patient, despite the real possibility that the unborn may die; whereas, in the so-called therapeutic abortion, the intervention consists in eliminating the unborn in order to attend to the patient in danger.
Indirect abortion is an application of another principle, distinct from the “state of necessity,” which is called “indirect voluntary,” in which these four conditions must be present at the same time:
1° The first action from which the consequences (positive and negative) derive must be in itself positive or at least indifferent, according to its object (the intrinsic end of the action).
2° The positive effect must be produced prior to the negative one, or at the same time; the positive effect must not be the result of the other effect (the end does not justify the means).
3° The intention of the agent must aim directly and solely at the positive effect; the other is tolerated, precisely because of its inseparability from the positive one.
4° There must exist a grave, proportionate cause that justifies the negative consequences.
Applying the foregoing concepts to medicine, indirect abortion is the name given to the death of the unborn caused as a bad, unavoidable consequence of a medical intervention, positive in itself and necessary, directed at curing a mortal illness of the mother, that is, at an end distinct from the abortion. The requisites are:
1° That the action, in itself and in its technical execution, and in the intention of the one who carries it out, be directed, as to its immediate and primary effect, at the curing of the mother’s illness.
2° That the effect, that is, the mother’s health, not be achieved by means of the interruption of the pregnancy, because in that case we would be facing a direct abortion induced as a means: “therapeutic abortion”; that the means be put in place to prevent, as far as possible, the abortion, and that there exist no other therapeutic procedure that is less harmful;
3° That the health procured be proportionate to the foreseeable death of the unborn. Given the gravity of the harm produced, it seems that only the danger to the mother’s life would be a proportionate cause, and not any degree of health; therefore, it must be something so urgent that it does not allow of waiting for the birth.
A case could be the following. In the face of a cancer in the uterus of a pregnant woman, sometimes the only means of salvation is the removal of the uterus and, with it, also of the unborn. In this situation, even though with the operation the death of the unborn is certain, it is not a direct attack against his life, but an indirect abortion. A case distinct from “therapeutic abortion,” where the physician carries it out as a means to save the mother’s life.
By contrast, in indirect abortion what is sought is solely the removal of the uterus, even though it is foreseen that, indirectly, an abortion will be caused. The mother is not saved by the suppression of the unborn, but by the removal of the diseased organ. The ideal solution would be that both be saved, but sometimes this is not possible.
Thus, then, the end pursued by the removal of the diseased uterus, by the administration of a medicine, by the intervention on the ovary, etc., is the salvation of the pregnant patient. What is the means by which the physician obtains that end? The extraction of the diseased organ, the surgical intervention, or the medicine. The means used is perfectly licit; the drawback is that two effects derive simultaneously: the one sought, which is to save the mother’s life, together with another—the abortion—which is not willed, but accepted for a proportionately grave reason, since the salvation of the sick woman cannot be obtained by any other means.
For some case, another option could be to bring the birth forward until the conceived has sufficient age to survive outside the uterus, and from then on to perform the intervention, administer the medication, or remove the womb.
Likewise, it may happen that the diagnosis reveals that there is no real hope of saving the mother’s life. In that case, the medical intervention that puts the life of the unborn at risk would not be justified, since the proportionality between the two expected outcomes would be lacking.
A problem, more or less frequent, is the one that arises when an extrauterine—also called ectopic—pregnancy is diagnosed.
Physiologically, at the moment of ovulation the ovum leaves the ovary, passes through the Fallopian tube, and reaches the uterus. During the journey toward the uterine cavity, the fertilized ovum continues the process of cellular multiplication and growth. If at any point of its path it encounters an obstacle (inflammatory conditions, scar wounds, abnormal narrowings, excessive length of the tube, etc.), the ovum implants at the place where it has been halted. The seat of the pregnancy is then no longer uterine, it is not normal, it is ectopic. In the great majority of cases, the ectopic pregnancy takes place in the tube or in any segment of it: in the infundibulum, in the isthmus, in the intermediate portion, and, exceptionally, it lodges in the abdominal cavity. Some hold that every diagnosed extrauterine pregnancy must be immediately operated on, just as if it were a malignant tumor. With some variants, most gynecologists abide by this way of proceeding. The operation consists, as a rule, in the extraction of the tube with the unborn or his remains. Is this operation licit? Evidently yes, when the conceived is dead; on the other hand, the question is not clear in the case that the unborn is still alive [30].
If this uncertainty is submitted to the principle of the “indirect voluntary,” since what is sought is to protect both lives, only three possibilities exist:
1° When the complications caused by the development of the conceived endanger the mother’s life, it is licit to remove the piece of tube that contains him, for the intervention is not directed at getting rid of the unborn, but of the emergency that presents itself in the mother.
2° In the case that the ectopic pregnancy has been detected, but there are as yet no complications that endanger the mother’s life, the intervention is not licit.
3° If the conceived is viable, he is to be attended to so that he remains in the best possible conditions.
4° If there is doubt about his viability, it will be necessary to wait and remain alert.
f) Proposal for reform of the Criminal Code for the Federal District
That Book Two, Title Nineteen, Chapter Six relating to abortion be amended, that articles 331 and 332 be repealed, and that articles 329, 330, 333, and 334 of the Criminal Code be reformed, to read as follows:
FIRST. Art. 329. Whoever causes the death of the unborn human being commits the crime of abortion.
Note: The current precept 329 of the Criminal Code for the D.F. reads literally as follows: “Abortion is the death of the product of conception at any moment of pregnancy.”
SECOND. Art. 330. To the woman who voluntarily procures her abortion or consents to it, a penalty of three months to one year of imprisonment shall be applied, and it shall be ensured that she receives the therapy appropriate to her case. To the accomplices, two to twelve years of imprisonment and a fine of fifty to three hundred fifty days shall be imposed.
Note: Article 330 of the Criminal Code for the D.F. states: “Whoever makes a woman abort shall be subject to one to three years of imprisonment, whatever the means employed, provided that he does so with her consent. When consent is lacking, imprisonment shall be three to six years, and if there was physical or moral violence, six to eight years of imprisonment shall be imposed on the offender.”
THIRD. Art. 331. Repealed.
Note: Precept 331 in force for the D.F. states: “If the abortion is caused by a physician, surgeon, or midwife (male or female), in addition to the sanctions corresponding to him under the previous article, he shall be suspended from the exercise of his profession for two to five years.”
FOURTH. Art. 332. Repealed.
Note: The current article 332 for the D.F. establishes: “Six months to one year of imprisonment shall be imposed on the mother who voluntarily procures her abortion or consents to another making her abort if these three circumstances concur:
I. That she not have a bad reputation;
II. That she has managed to conceal her pregnancy, and
III. That it be the fruit of an illegitimate union.
Should any of the mentioned circumstances be lacking, one to five years of imprisonment shall be applied to her.”
FIFTH. Art. 333. No sanction shall be applied for abortion caused without the intent of the pregnant woman.
Note: Precept 333 of the D.F. states: “Abortion is not punishable when caused only by the imprudence of the pregnant woman, or when the pregnancy is the result of a rape.”
SIXTH. Art. 334. The accidental death of the unborn shall not be sanctioned, if it follows as an involuntary consequence of a medical intervention required to preserve the mother’s life
Note: The current article 334 for the D.F. indicates: “No sanction shall be applied: when, if the abortion were not induced, the pregnant woman would be in danger of death, in the judgment of the physician attending her, he having heard the opinion of another physician, provided that this were possible and the delay were not dangerous.”
g) MYTH. It is preferable to keep the current wording of the articles relating to abortion.
REALITY. Some insist that the articles of the Criminal Code relating to abortion must be kept just as they are at present, despite the fact that it is a wording from the nineteen-thirties that served to regulate situations that medical and juridical science have surpassed.
Thus, then, it is by all lights clear that the articles relating to abortion ought to be drafted anew, composing new juridical formulas, because laws are always improvable; and if it were not so, what are the deputies there for? What function do they perform?
No one is as proud as one who shows himself ungrateful, and how many can assure that they do not owe their life to a legislation favorable to life? When people place themselves in the position of the defenseless and innocent one, they see things in another way. The unborn is a completely defenseless person. We live in a society in which we all enjoy equal rights, except the unborn, because he cannot demand them, and there are more and more legislations that make an attempt on his life.
From the perspective of justice, to legalize abortion is equivalent to the capitulation of the “rule of law,” which has consisted in the submission of the stronger to the sovereignty of the law.
There are legal goods that the State must defend, even though there does not even exist a holder capable of exhibiting a right in the matter. What is more, the State must protect a life, even against the will of the one who does possess it: an inmate who declares a hunger strike (a blood transfusion to a person who refuses to receive it). Not only is all possible neutrality of the State excluded before goods deserving of public protection, but their defense is considered especially obligatory in the face of possible demands of the majority. Historically, the struggle for human rights has always been able to rely less on the prevailing commonplaces than on utopia. It is also significant that, when it comes to regulating fundamental rights, all possible coming into play of a popular legislative initiative provided for (with the backing of thousands of signatures) is excluded. The polemical intensity attained by a social debate should rather be considered as a symptom of the need for state intervention—given the relevance that citizens attribute to the problem—than of the contrary. When, in such circumstances, one opts for juridical inhibition, it is easy for some latent prejudice to have come into play. Behind a proclamation of “neutrality” of the public sphere, faith in the pre-established harmony proper to individualist morality is detected. The conviction that each one can organize as he pleases whatever affects his life program turns out to be much more peaceable when the existence of a third party capable of demanding solidarity from us passes unnoticed. The possessive individualism that—appealing to the right of property over one’s own body—accompanies the polemic on abortion is eloquent in this regard. One may even arrive at the excess of branding as fundamentalist everyone who dares to attribute some foundation to what he defends. Fundamentalism, however, really comes into play when argumentation is renounced in order to resort to violence, or when every possible distinction between moral and juridical demands is rejected, on the understanding—in an integralist key—that the law would have to assume them in their entirety. If nothing can be considered more true or false, legitimate or illegitimate than its contrary, no other possibility remains but the imposition of the hegemonic culture. The existence of juridical demands with an objective foundation becomes the condition for the establishment of norms of obligatory fulfillment, that do not imply the mere imposition of a colonialism dictated by a culture that—by dint of relativism—proclaims itself indisputable. The denial of natural law becomes an effective ally of those fundamentalisms which it deprives of all restraint [31].
It is true that, in political action, citizens have no choice but to accept the rule of the majority, but the fact that their thought does not coincide with the prevailing one does not prevent them from continuing to defend the truth that they sincerely believe they have found and from striving, with their vote, to change the situation. This is the essence of democracy. To silence them because they are in the minority would be to ignore the famous phrase that John Stuart Mill stamped in his On Liberty: “If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind” [32].
h) MYTH. The law has no reason to assume moral demands
REALITY. The law, and very particularly the criminal law, is compelled to assume moral demands. A different problem is that it need not assume them all. Its ethical aspirations are content with the guarantee of a reasonable framework of coexistence, whereas morality invites us to endow our personal existence with the fullest meaning. Within this tension—between the frontier of the juridical and that of personal morality—it will be necessary to determine which demands, also moral ones, the law must assume and which not. Very expressive is the principle of minimal criminal intervention, which reserves such classification for a reduced range of conducts: those that may affect legal goods which—predominantly, for moral reasons as well—could not be left to the free disposition of private discretion, nor be considered sufficiently defended with sanctions that do not carry the deprivation of goods as primary as liberty or life.. With but little reflection, it ends up becoming evident that it is not possible to discern whether a question should be regulated by means of the public mechanisms of the law, or whether it should be delegated to private moral demands. From an individualist perspective, for example, it would be easy to rule that no one should be obliged to live even a second longer than he desires. From a solidary perspective, on the contrary, no one is more altruistic than the self-sacrificing firefighter who risks his life to try to save that of a suicidal depressive. A privatization of life, which would make it available without juridical hindrances to mere individual self-determination, would imply a public moral option no less debatable than any other. To permit the theoretical bracketing of confessional factors reveals the null neutrality of secularism and its scant respect for that freedom of conscience. If there are reasons to consider a good—for its public relevance—worthy of juridical protection, the treatment that it may confessionally deserve from some or other social groups must be considered indifferent. The unconditioned unfolding of each one’s conscience usually makes social coexistence impossible. To make it possible there exist—precisely—, besides the moral codes, the juridical orders. The old notion of “public order,” or the more recent one of the “demands of a democratic society,” would be problematically compatible with polygamy and decidedly incompatible with human sacrifices [33].
For her part, the Church has stated the following: “We are obliged once more to declare that the direct interruption of the generative process already begun and, above all, all direct abortion, even for therapeutic reasons, are to be absolutely excluded as lawful means of regulating the number of children” [34].
Citing the source and the name of the author, the reproduction of this article, which forms part of the book “SIN MIEDO A LA VIDA,” is authorized:
Author: Oscar Fernández Espinosa de los Monteros. Attorney and researcher in matters of Bioethics
Source:
First version: 12-V-99
Previous version: 29-III-00
Latest version: 20-VII-00
MEXICO
e-mail: oscarf@altavista.net
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[1] Cf. LLANO CIFUENTES, Carlos, “Trece argumentos en favor de la vida,” in the journal ISTMO no. 162, Mexico, January-February 1986, p. 11
[2] Cf. PACHECO ESCOBEDO, Alberto, La Persona en el Derecho Civil Mexicano, Ed. Panorama, Mexico 1992, p. 80
* If you wish to know more about this topic, contact the author of the book directly at the following internet address: oscarf@altavista.net
[3] Cf. HERRANZ, Julián, El Derecho a la vida, Lecture delivered at the Pontifical Athenaeum of the Holy Cross, Rome, Italy, 1-I-97, pp. 3-6
[4] Cf. HERRANZ, Julián, El Derecho a la vida, Lecture delivered at the Pontifical Athenaeum of the Holy Cross, Rome, Italy, 1-I-97, pp. 16 and 17
[5] CHORRO VIZCAÍNO, Paloma and Letizia Grita, “Lenguaje y antilenguaje en algunos textos jurídicos europeos relativos a la reglamentación del aborto,” in Medicina y Ética, March 1996, pp. 260-261
[6] Cf. CHORRO VIZCAÍNO, Paloma and Letizia Grita, “Lenguaje y antilenguaje en algunos textos jurídicos europeos relativos a la reglamentación del aborto,” in Medicina y Ética, March 1996, p. 258
[7] Cf. CASTAÑEDA, Adolfo, “Dimensión social y política del aborto,” in Papers presented at the First International Congress for Life and the Family held on 4-7 March 1993 in Santo Domingo, Dominican Republic, 1993, p. 28
[8] Cf. “El aborto se practica en España sin necesidad socioeconómica relevante,” in ACEPRENSA, 100/95, Madrid, Spain, 12-VII-95
[9] Cf. “El gobierno chino continúa su política de abortos forzados,” in ACEPRENSA, 100/95, Madrid, Spain, 12-VII-95
[10] Cf. HERRANZ, Julián, El Derecho a la vida, Lecture delivered at the Pontifical Athenaeum of the Holy Cross, Rome, Italy, 1-I-97, p. 1
[11] Cf. OCHOA, Teresa, “Apoyan por mayoría priísta la iniciativa del Gobernador; lo rechazan Diputados del PAN y PRD,” in the newspaper REFORMA, Mexico, D.F., 29-III-00
[12] Cf. BARRA, Rodolfo Carlos, Estatuto jurídico del embrión humano, at the III Meeting of Politicians and Legislators of America, Buenos Aires, Argentina, 3-5 August 1999, p. 2
[13] Cf. CHESTERTON, G. K., “Herejes,” in Obras completas, Plaza & Janés, Second Edition, Barcelona, Spain, 1961, p. 343
[14] Cf. ALMADA, Josemaría, Álamos sonoros, Fernández Editores, Spain, 1990, p. 122
[15] Cf. TERMES, Rafael, “De elecciones y Obispos,” in the newspaper El País, Madrid, Spain, 8-III-00
[16] FERNÁNDEZ de GÁMEZ, Q.F.B. Norma, Lecture given in San Pedro Garza García, Mexico, 17-V-99
[17] Cf. CENTRO DE AYUDA A LA MUJER, Estadísticas de causales del aborto, Mexico, 1999
[18] Cf. CENTRO DE AYUDA A LA MUJER, Estadísticas de mujeres violadas, Mexico, 1999
[19] Cf. PRASLOW, Dr. Ignaz, Solidarität, Dornige Verlagshaus, Germany, 1990, p. 17
[20] Cf. PRASLOW, Dr. Ignaz, Solidarität, Dornige Verlagshaus, Germany, 1990, p. 18
[21] VINDIOLA, Alejandro, directly to the author, Hermosillo, Mexico, 13-VI-97
[22] Cf. BARRA, Rodolfo Carlos, Estatuto jurídico del embrión humano, at the III Meeting of Politicians and Legislators of America, Buenos Aires, Argentina, 3-5 August 1999, pp. 5 and 6
[23] Cf. MAHKORN, Sandra, “Pregnancy and Sexual Assault,” The Psychological Aspects of Abortion, eds. Mall & Watts, (Washington, D.C., University Publications of America, 1979) 55-69 and Cf. “Aborto y violación,” in ACEPRENSA, 47/92, Madrid, Spain, 1-IV-92
[24] Cf. RUANO, Silvia, “No pude tenerlo,” in the newspaper EL NORTE, Monterrey, Mexico, 26-V-99
[25] Cf. MEDELLÍN, María Luisa, in the newspaper EL NORTE, Monterrey, Mexico, 26-V-99
[26] Cf. CASTELLANOS, Fernando, Lineamientos elementales de Derecho Penal (Parte General), Thirty-sixth updated edition, Editorial Porrúa, S.A., Mexico, 1996, p. 203
[27] Cf. Criminal Code for the Federal District, Second edition, Mexico, August 1996
[28] Cf. ROMERO BRAVO, Humberto, directly to the author.
[29] Cf. PACHECO ESCOBEDO, Alberto, La Persona en el Derecho Civil Mexicano, Editorial Panorama, Mexico, 1992, p. 84
[30] Cf. DI FRANCESCO, Sebastiano, El derecho al nacimiento, Editorial Difusión, Argentina, 1961, pp. 149 and 150
[31] Cf. OLLERO, Andrés (University of Granada, Spain), “Eutanasia y Multiculturalismo, Derecho, moral y religión en una sociedad pluralista,” no. 7
[32] Cf. TERMES, Rafael, “De elecciones y Obispos,” in the newspaper El País, Madrid, Spain, 8-III-00
[33] Cf. OLLERO, Andrés (University of Granada, Spain), “Eutanasia y Multiculturalismo, Derecho, moral y religión en una sociedad pluralista,” no. 1 and 2
[34] PAUL VI, Encyclical Humanae vitae, 25-VII-68, no. 14, first paragraph.
