How is abortion legislated in the Argentinian Criminal Code?


The articles that refer to abortion in the Argentinean Criminal Code have always tended to be object of multiple interpretations. Due to this fact, the principle of legal certainty is deeply violated. This violation affects most profoundly the unborn, whose life is toyed with in each interpretation. Next, therefore, the legislation of abortion will be presented.
The rule is that the abortion is illegal and, as any other crime, punishable by law. This way, the first article referring to abortion punishes that who causes an abortion, deserving a larger punishment if it is done without the consent of the woman than the one done with her consent. The punishment is elevated in both cases if, as a result of the abortion, the woman dies. The following article refers to all those who took part in the procedure in any way (the article enumerates the following cases: doctors, surgeons, obstetricians or pharmacists) punishing them in the same way as the ones who caused it. This punishment deserved by those who took part is exceptionally high: it is an exception to the rule established in the first part of the Code that diminishes the punishment for these, if compared with the punishment deserved by the perpetrators. Aguirre Obarrio and Molinario, two important criminal law authors, say that this exception is because of the trust that people usually place upon these people, which is violated in this act. The article also provides a sanction of prohibition to practice.
The woman who aborts is also punishable by imprisonment between one year and four years. However, the article makes it clear that the attempt to abort is not punishable. Aguirre Obarrio and Molinario say that this lack of punishment is a good thing for if it was punished, it would only drive the women to take every precaution is order to make the abortion successful.
All these articles establish a much lesser punishment than the one established for murder. Therefore the life of the unborn is considered by the law of less value than the one of the already born, for it provides a lesser penalty.
Now, to this rule of illegality of abortion there are exceptions. This is the point where interpretations come. The exceptions are established in article 86 in two sections.
The first section indicates that abortion will not be punishable if it is done to avoid a threat/ danger to the life or health of the mother and if this threat cannot be avoided in any other way. The concern is to establish the meaning to be given to threat/danger. A reform project of 1968 wanted to change the words to “grave danger”, but it was never approved. As a result, the broadness of the term can lead to interpretations in which abortion may occur even if the danger is not that grave, or is inconsequential. Moreover, the above-mentioned authors point out that the norm does not require this threat to be confirmed by more than one doctor. This only doctor can decide to perform the abortion without or even against (in this case only in an emergency situation) the consent of the woman.
The second section indicates the other exception: if the pregnancy is the result of rape or indecent assault on an idiot or insane woman. The article adds that in this case, the consent of her legal representative is required to practice the abortion. The key to the interpretation is to know if the article means to say that abortion will not be punishable only if the rape or indecent assault is to an idiot or insane woman, or if it means to say that it is not punishable in the case of rape to any woman, and not just those idiots or insane. Peco, another criminal law author, maintains that the first interpretation is the correct one due to a comma. Indeed, he says, if there were a comma after “is the result of rape”, and them came the hypothesis of indecent assault on an idiot or insane woman, there would be two different situations considered by the law: the one of the rape (to any woman) and the one of the indecent assault to an idiot or insane woman . Yet, he continues to say, since there is no comma, there is only one situation contemplated: the rape or indecent assault ONLY to an insane or idiot woman. Besides, the last paragraph of the section requires the consent of the legal representative, a requirement that would not be needed if the article was referring to any woman. The contrary interpretation considers this argument irrelevant and uses as an argument facts such as the existence of a source to this law: a swiss disposition that allowed women raped by invading soldiers to abort during the Second World War. The Swiss sources are also cited to say that in them ‘indecent assault’ meant rape to an idiot or insane woman. This would demonstrate how the article wanted to contemplate both situations. It is also said that the State can not force the woman tho have the creature, since it would be violating the woman’s freedom
Even if we accepted the first interpretation of this article, we would still have to face that the law considers that the children conceived by an idiot or insane woman are disposable, while the ones of a healthy woman aren’t. We find statements such as the one of the Senate Comitee (on the 09/26/1919): “what good can come of an idiot or insane woman?”; or considering Peco that it is entirely reasonable for the society to have an interest in preventing a birth that is a result of a rape to an idiot or insane woman. This a clear discrimination toward the woman who suffers from insanity.
These are just some of the interpretations of the two exceptions provided by the law. There are many more.
To top it all, the Supreme Court of Justice, has confirmed in 2012 the right of any woman, victim of a rape, to have an abortion without any obstacles and adjured all the provinces the take the legal measures necessary to ensure this right, violating the federal and republican system of our country.
Is it not remarkable how, so many of this controversial issues are dealt with skipping normal procedures (the Judiciary taking the place of the Parliament), ignoring fundamental rights universally perceived as legitimate (no discrimination), or simply just forcing interpretations in order to induce one in clear contradiction with the literality of the texts? Maybe the lack of protection of human life is unavoidably bound with a number of formal illegitimacies, which makes ultimately sense, since to admit that some human lives are not protected by law whilst others are, is a form of arbitrariness profoundly at odds with the spirit and the letter of any human rights treaty