Uruguay's Voluntary Termination of Pregnancy Act
Protection of conscience provisions may be defined out of
existence
Sean Murphy*
In the fall of 2012 the Uruguayan legislature passed the
Voluntary
Termination of Pregnancy Act, which legalized abortion in the country
under certain circumstances. By January, 2013, Reuters was
reporting that the law was meeting "fierce opposition" among Uruguayan
gynaecologists, with up to a third of them refusing to provide the procedure
for reasons of conscience;1 in some
locations, almost none will do so.2
The British Medical Journal once advised that, when legalization
of a contentious medical procedure is contemplated, it would be prudent to
first consider how many health care professionals are willing to assist with
it.3 It is alleged that the Uruguayan
government failed to do this. "This law was produced apart from the
professionals who are more or less involved directly," said one
gynaecologist. "They didn't even consult the scientific organizations of
which we are members."4
Certainly, one of the expectations in the law suggests ignorance on the
part of legislators that could have easily been remedied by consultation
with medical professionals.
Section 2 of the Act permits abortions up to 12 weeks of gestation, but
Section 6(A) states that
physicians are obliged to try to "save the life of the embryo or fetus
without endangering the life or health of the woman." However, even
with the best and most modern neonatal technology, an infant delivered at
22-23 weeks gestation has little chance of survival.5
Further, surgical and medical abortion techniques commonly used in first 12
weeks of pregnancy are inescapably destructive of the embryro or fetus.
Thus, the pretence that an attempt will be made to save the live of an
embryo or fetus during a first trimester abortion is absurd, and becomes no
less absurd when it is phrased as a legal expectation.
Much more troublesome is the conflict between
Section 2 and
Section 6(C). The
former states that, in order to be legal, an abortion permitted by the Act
must be "performed during the first twelve weeks of pregnancy," while the
latter states that abortion may be provided for up to 14 weeks gestation in
the case of a rape that has been reported to the authorities. It will
probably be necessary for a court to resolve the conflict.
The current controversy draws attention to the sections of the Act that
deal with protection of conscience for objecting health care workers and
institutions. Unfortunately, these parts of the Act are also
problematic.
Institutional protection
Section 10 provides
protection for existing health care institutions that are part of the
National Integrated Health System if they had ideological objections to
abortion at the time the law was enacted. They are not required to provide
abortion, but "may" reach an agreement with the Ministry of Public Health to
arrange for their patients to have abortions elsewhere. If "may" is
understood to mean that such arrangements are optional, institutional
freedom of conscience will not be compromised. It will be compromised
if the government intends to compel institutions to facilitate abortions by
referral, even if they have moral objections to doing so.
It appears that all hospitals opened after the enactment of the law will be required to provide
abortions if they are part of the National Integrated Health System.
Whether or not this will affect denominational hospitals depends upon the
law governing the operation of hospitals and on the extent to which
hospitals need funds that can only be obtained by becoming part of the
National system.
Individual protection
Protection for individual health care workers is provided by
Section 11. The
protection is much more limited than appears at first glance. To
understand why this is the case, it is necessary to take a closer look at
how legal abortions are to be obtained.
Criteria for legal abortion
Leaving aside the question of whether the upper gestational limit for
abortion is 12 or 14 weeks, within the legal window of opportunity a woman
may seek an abortion if the pregnancy presents a "serious risk to her
health" (Section 6A), if
foetal diagnosis indicates a malformity incompatible with life outside the
womb (Section 6B) or if the
pregnancy is the result of a reported rape (Section
6C).
However, in the case of Section 6A, everything turns upon the definition
of health, and upon what counts as a "serious risk." The Act clearly
implies that socio-economic factors can be considered (Section 3). In
other jurisdictions, it has been demonstrated that the definition of
"health" is so elastic that it is impossible to apply consistently. In
fact, it may be construed so broadly as to permit abortion in almost any
circumstances.6
Approval of legal abortion
A woman seeking an abortion must consult a physician with the National
Integrated Health System, who must forthwith arrange for her to meet a panel
of professionals. The panel must include a gynaecologist, a mental
health specialist and a social worker. It appears that the role of the
panel is to ensure that the woman is fully apprised of the available
options, as well as the nature and risks of the procedure. If she
qualifies for an abortion under one of the three criteria, and if she wants
an abortion, she is required to confirm her choice after a five day waiting
period. Upon confirmation, the attending gynaecologist must
"immediately" arrange for the procedure. (Section
3)
Conscientious objection
Under Section 11, health
care workers who object to abortion for reasons of conscience and who do not
wish to be involved in providing the procedure must explicitly express their
objection in advance "to the authorities of the institution in which they
practise." There is no requirement that the objection be communicated
in writing, but it would be prudent to do so.
An objection made in one institution is considered to be valid in any
other institution in which they work, whether public or private. They
may explicitly revoke their objection, or tacitly revoke it by becoming
involved in providing the service.
Once an objection is made, health care workers cannot be compelled to be
involved in any part of the abortion approval process after the five day
"cooling off" period (i.e., in recording the confirmation of a woman's
choice for abortion and in making the arrangements for the procedure).
They may also refuse to be involved in providing abortions under Section 6.
Nullifying objections
However, the law provides that objecting workers can be compelled to be
involved in providing abortion when there is a "serious risk" to the health
of the mother, the meaning of which, as discussed above, can be very broadly
construed. In fact, it could be so broadly construed as to completely
eliminate the possibility of conscientious objection to abortion.6
At the very least, the protection ostensibly provided by the law for
individual health care workers is open to attack by determined activists and
administrators, and this is likely to contribute to further conflict.
Notes
1. Castaldi, Malena, "Some Uruguayan doctors refuse to perform abortions despite law."
Reuters, 16 January, 2013 (Accessed 2013-01-19)
2. Hoffman, Matthew, "100 percent of Uruguayan
doctors opt out of new abortion law in some areas." LifeSiteNews, 18
January, 2013 (Accessed 2013-01-20)
3. Dooley, D. "Conscientious
refusal to assist with abortion" (Editorial). BMJ 1994;309:622-623 (10
September) Accessed 2008-11-30.
4. Hoffman, Matthew, "100 percent of Uruguayan doctors opt out of new
abortion law in some areas." LifeSiteNews, 18 January, 2013, quoting El Pais. (Accessed 2013-01-20)
5. Hence the recommendation of a Swiss working
group: "The members of the interdisciplinary working group suggest that the
care of preterm infants with a gestational age between 22 0/7 and 23 6/7
weeks should generally be limited to palliative care." Berger TM, Bernet V,
El Alama S, Fauchère JC, Hösli I, Irion O, Kind C, Latal B, Nelle M, Pfister
RE, Surbek D, Truttmann AC, Wisser J, Zimmermann R.
Perinatal care at
the limit of viability between 22 and 26 completed weeks of gestation in
Switzerland. 2011 revision of the Swiss recommendations.
Swiss Med Wkly. 2011 Oct 18;141:w13280. doi: 10.4414/smw.2011.13280
(Accessed 2013-01-20)
6. Dr. Gabor Mate served for years on a
therapeutic abortion committee in Canada, which was responsible for
confirming that an abortion was necessary to preserve the health of a woman.
"[N]ot once at committee meetings did I witness discussion as regards the
health merits of a particular case," he wrote. "It was assumed that if
the referring doctor and the woman had decided that the pregnancy would
impair the patients health as she understood it then no further enquiry was
necessary or possible." Mate, Gabor, "A woman's choice - as it in fact
was under committee". Vancouver Sun, 22 February, 1988. Emphasis
added.