Depuis, la loi l'a autorisé dans les situations extrêmes (viol, risques pour la vie de la mère, malformations). En 2007, la loi a approuvé sa prise en charge gratuite par l'État, selon le souhait de la mère, et jusqu'à 10 semaines. La constitution portugaise protège la vie humaine et l'objection de conscience, mais la loi ordinaire et l'interprétation de la Cour suprême vont en sens inverse. Au cours des 50 dernières années, l'indice de fécondité est tombé de 3,5 à 1,32 enfants par femme. Environ 20% de toutes les grossesses se terminent par un avortement légal (la commodité de la mère est invoquée dans 97% des cas). Depuis 2007, nous avons plus de décès que de naissances, et il manque 1 250 000 enfants pour le renouvellement des générations. La population active est en baisse, et moins de 40% de travailleurs prennent en charge plus de 60% de population restante. Les médecins objecteurs de conscience ne sont pas autorisés à voir les femmes qui sont en période de réflexion pré-avortement. Pour être objecteurs de conscience ils sont tenus de remplir et de signer un formulaire; il n'y a pas d'enregistrement national. Environ 90% des obstétriciens sont objecteurs de conscience face à l'avortement seulement basé sur le désir de la mère. Dans de nombreux hôpitaux le personnel médical n'est pas suffisant, et les femmes sont adressées à des cliniques privées pour l'avortement. L'état paie la facture (500 €). Jusqu'à présent, il n'y a pas de discrimination vis-à-vis des médecins objecteurs de conscience, et ils peuvent obteni le titre de spécialiste. Habituellement, les médecins ne font pas de discrimination les uns vis-à-vis des autres poiur des raisons d'objection de conscience. La principale discrimination découle de la loi.
Summary
Conscientious objection (CO) in medical practice is important when speaking about
abortion (A), as euthanasia is not allowed. Before 1984, abortion was forbidden. Since
that the law allowed it in extreme situations (rape, risk for mother´s life,
malformations). In 2007, it was approved a law for free abortion supported by state
(mother´s wish) until 10 weeks. Portuguese Constitution protects human life and
conscientious objection, but ordinary law and the Supreme Court interpretation go in
opposite direction. In the last 50 years the fecundity index has dropped from 3,5
children to 1,32. About 20% of all pregnancies end in legal abortion (97% invoked
mother´s convenience). Since 2007 we have more deaths than births and are lacking
1.250.000 children for generation renovation. Active population is decreasing and less
than 40% of workers support more than 60% remain population. CO doctors are not
allowed to see women who are in pre abortion reflection period. To be a CO they are
obliged to fulfill and signed a form; there is not national registration. About 90% of
obstetricians are CO for abortion based only on the mother´s wish. In many hospitals
medical staff is not enough and the women are sent to private clinics to have the A
done. State pays the bill (500 euros). Up until now there is no discrimination to CO
doctors, and they can achieve the specialist title. Usually, doctors do not discriminate
each other among them because CO. The main discrimination arises from the law.
A - Portuguese Constituition and Portuguese Law
The subject of conscientious objection in medical practice is particularly important when we speak about abortion. Up until now, euthanasia is not allowed in Portugal. Concerning abortion, law has been change in the last 28 years. Before that, it was completely forbidden. In 1984 we started to have changes in the law, first allowing abortion in very extreme situations such as rape, high risk for mother´s life and severe malformation; finally, in 2007, we approved a law for free abortion (mother
´s wish) until 10 weeks gestation, totally supported by State. Chronological evolution of all these events is that:
In 1984, a review of the Penal Code (1982) authorized abortion (without penalty) in specific situations. It is known as the “indication model”. In 1984 and 1985, two decisions of the Supreme Court supported the Penal Code review and abortion was authorized for «medical and humanitarian» reasons (to save the woman's life, fetal abnormalities and rape). In 1995, a review of the Penal Code supported the indication model, authorizing abortion in specific conditions. In 1997, three bills were proposed to change the Penal Code, authorizing abortion up to 10 weeks based only in mother’s wish, after a counseling meeting between the health care provider and the woman; In 1998, the Supreme Court supported the constitutionality of a national referendum on the proposed reform in which, in which 68.1% of the voters was absent.
50.9% said no to the law reform and 49.1% said yes to the law reform. According to this referendum, free abortion until 10 was rejected. In 2005, a second national referendum on abortion was proposed and the Supreme Court issued two decisions about the constitutionality of the proposal. The second decision authorized the referendum. In 2007, a second national referendum was held, in which 54.43% of the voters were absent. 59.25% said yes to the law reform and 40.75% said no to the law reform. According to referendum, all women obtained the right to have an abortion until 10 weeks, completely supported by the state without necessity to give any reason.
The law was changed in order to answer the results of this referendum. An article of this law,
Anyway is important to remember some paradoxes of the free abortion law according to Portuguese
2. No one shall be persecuted, deprived of rights or exempted from civic obligations or duties because of his convictions or religious observance.
3. No authority shall question anyone in relation to his convictions or religious observance, save in order to gather statistical data that cannot be individually identified, nor shall anyone be prejudiced in any way for refusing to answer.
4. Churches and other religious communities shall be separate from the state and free to organize themselves and to perform their ceremonies and their worship.
5. Freedom to teach any religion within the denomination in question and to use appropriate media for the pursuit of its activities shall be guaranteed.
6. The right to be a conscientious objector, as laid down by law, shall be guaranteed.
Because paradoxes concerning the violation of human life and the discrimination of conscientious objection doctor´s, some deputies decided to ask to Constitutional Supreme Court about the constitutionality of this law (“exclusion of penalty in case of voluntary interruption of pregnancy”). In 2010 this Court answered confirming the law with the following arguments:
reflection. The contestation argued that three days were not enough time for reflection, but the Court refused any change in this rule considering that (1) it is only a minimum period of time; (2) there is a limit of ten weeks to performance the abortion, so any extension of this period might have consequences for women's rights; (3) there is no evidence that lengthening this period of time would cause the woman to decide differently.
3. The ethical content of the counseling before the performance of the interruption of pregnancy.
The law defined a neutral framework for the counseling before the abortion. The contestation argued the necessity of having a pro-life perspective at the counseling as a way to guarantee the women's fully informed consent.
The Court rejected this argument, considering the counseling as a health care meeting between the woman and the provider and not a moral arena to debate different perspectives about abortion.
4. The participation of the conscientious objector health care providers in the counseling meetings. The law recognized the right to conscientious objection for health care providers and their consequent right to refuse care. The law did not determine which reasons or beliefs would validate the request for conscientious objection and refusal of care, but stipulated that the health care provider who invoked conscientious objection is not allowed to participate in the counseling meeting. The contestation argued that prohibition is discrimination against the objectors. The Court rejected this thesis using similar argumentation as that of item 3.
B - Abortion Culture and Demography: Double Disaster
In the last 50 years the fecundity index has dropped from 3,5 children per couple in 1960 to 1,32 in 2011, one of the lowest in Europe. About 20% of all pregnancies end in inducted legal abortion (97%
without any reason, but mother´s convenience).
Since 2007 we have more deaths than births. Today are lacking in Portugal 1.250.000 children for generation renovation. Large amount of schools are been closed an unemployment are growing fast among teachers. Active population is decreasing and with unemployment it means that less than 40% of workers are supporting more than 60%
remain population. We risk having a «dictatorship»
of this majority exploring this minority and social peace and stability are in risk. All this problems are multifactorial but hedonism, family destruction and death culture play a main role. According this view of human being, without God, abortion makes totally sense.
C - Conscientious Objection: Today Reality As we see before, doctors who are conscientious objector are not allowed to participate in any kind of consultation with women who are considered in pre abortion 3 days reflection period. Portuguese law precludes their participation and Constitutional Supreme Court confirms the law. They are obliged to fulfill and signed a form to be a conscientious objector. This document stays in the hospital where the doctor works and there is not a national registration of these doctors. About 90% of obstetrician doctors are conscientious objectors for abortion based only on the mother´s wish. In many public hospitals medical staff is not enough for this kind of work and then the women are sent to some privet clinics to have the abortion done. State pays the bill (about 500 euros).
Up until now there is no discrimination among doctors against conscientious objector. An obstetrician resident can achieve the Specialist Title being a conscientious objector.
In conclusion, in my opinion, the main discrimination against conscientious objectors arises from the law and from constitution interpretation by the Supreme Constitutional Court.
Doctors among them, usually do not discriminate each other because conscientious objection.
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Dr. Jorge Buxadé-Arribas (Espagne)
Médecin généraliste à Barcelone - Conférencier à l'Université Internationale de Catalogne
L'obiezione di coscienza In Spagna L'objection de conscience en Espagne
Conscientious objection in Spain
Riassunto