Spain violates conscientious freedom of medical practitioners

European Center for Law and Justice

(Strasbourg, France) - On June 22, 2011, the European Centre for Law and Justice (ECLJ) organized a public hearing at the Council of Europe, entitled "Spain: Violations of Medical Practitioner's Freedom of Conscience". It was conducted with the Spanish Defense Association of Conscientious Objection (ANDOC) and with the support of the European's People's Party.

During this hearing, the ANDOC and ECLJ have launched a comprehensive report detailing, with individual examples, the structural and systemic violations of freedom of conscience for healthcare professionals in Spain, and in particular their right to conscientious objection. The right to conscientious objection is founded on the principle that no one shall be forced to threaten someone's life. Any attack on human life, when permitted by law, can be only performed voluntarily.

Based on this report, a number of parliamentarians from various national and political parties lead by Luca Volontè and Blanca Fernandez, have addressed a "Written question to the Committee of Ministers" urging this Committee, composed of the Representatives of the 47 Council of Europe Member States, to take action in order to ensure respect for doctors, healthcare and administrative personnel, as well as hospitals and institutions' right to conscientious objection in compliance with European and international regulation. In the following months, the Committee of Ministers will have to agree on a common written response to the Parliamentary Assembly addressing this specific problem.

In Spain, health professionals suffer structural and systemic violations of their rights. Doctors, nurses, and other medical staff that object to performing or assisting with abortion procedures are coerced and suffer career-crippling sanctions or are legally prosecuted for attempting to exercise this fundamental right, which is recognized by both European and international law.

In particular, they are prevented from exercising their freedom of conscience through the following practices:

• Submission of a fundamental right to administrative authorization: In order to exercise their fundamental right, a conscientious objector must request an authorization from the administration in advance and in writing.
• Creation of a registry of conscientious objectors: The above requests are registered in a directory that ranks medical professionals according to their conscience.
• Systematic discrimination against the conscientious objectors:
  • The presence in the directory has negative consequences for a medical professional. Their career advancement is dependent upon the number of abortions performed or prescribed through the "Accreditation Program of Professional Skills." In Andalusia, recruitment in the health care system is subject to the condition of not being an objector.
• No recognition of the right to conscientious objection of health care institutions that according to their ideology refuse to practice abortions.

Within this structure, there are also other violations such as:

• Refusal to register a medical practitioner as an objector;
• Deprivation of the right to object for the staff responsible for pre-natal diagnosis, nursing and other administrative personnel;
• In order to prevent conscientious objections, the type of operation or information about a negative opinion from the clinical committee is not communicated to the medical professionals, especially to the anesthesiologists and clinical nurses.

During the hearing, presided by the Spanish parliamentarian and medical doctor, Dr Blanca Fernandez (PPE), has also intervened Dr. Esteban Rodriquez Martin, gynecologist, Prof. José Antonio Diez Fernandez Secretary of the ANDOC, and Dr. Grégor Puppinck, Director of the ECLJ.

Dr. Esteban Rodriguez Martin gave his testimony as a gynecologist and victim of the Spanish regulation on abortion and prenatal diagnostic procedures. He explained that he is now before national courts for refusing to take part in the procedure leading to eugenic abortions.

Dr. Esteban Rodriguez Martin underlined that professionals must request advance approval from Spanish administrative authorities to be listed as a "conscientious objector." Only health care professionals placed on this list of "objectors" are exempt from performing or assisting with abortions, and often, this requirement is not communicated. As a result, if a woman solicits abortion services, health care professionals who object to providing assistance, but are not pre-registered as an "objector," are legally obligated to either perform the abortion or give a referral-even if doing so would violate their conscience.

José Antonio Diez Fernandez, Professor of Law and Coordinator of ANDOC, presented the national legal framework leading to this structural violation of medical professional's rights. He noted, inter alia, that those who register as conscientious objectors suffer further negative consequences and are unjustly singled out for voicing their objection. Often career advancement and health care ratings depend on the number of abortion referrals or procedures completed, he noted. Opting to register as an objector has career-stifling effects, because assessment of an objector's professional skills becomes linked to ideological beliefs and not to the practitioner's true merit or ability. He also highlighted how administrative authorities will often refuse a practitioner's attempt to register as an objector. Though the process is supposedly declarative in nature, in practice, health care professionals may be refused to register as objectors for arbitrary criteria.

Dr. Gregor Puppinck, Director of the ECLJ, analyzed the situation in regard to the legal obligations of Spain under European and International law.

He recalled in particular the resolution 1763/2010 "On the Right to conscientious objection in the field of health" adopted in October 2010 by the Council of Europe Parliamentary Assembly holding that:

"No person, hospital or institution shall be coerced, held liable or discriminated against in any manner because of a refusal to perform, accommodate, assist or submit to an abortion, the performance of a human miscarriage, or euthanasia or any act which could cause the death of a human foetus or embryo, for any reason."

He also commented on the case law of the European Court of Human Rights (ECHR) related to Conscientious objection underlining, in particular, the fact that in numerous decisions since the 1989 Rommelfanger v. Germany ruling (no. 12242/89), the Court has recognized the right of institutions based on a specific ethos, such as religious hospitals, to exercise - on an institutional level - their right of conscientious objection to abortion and other related practices.

Grégor Puppinck also commented on the ECHR's recent ruling in the case R.R. v. Poland (no. 27617/04) of May 26, 2011. In this case, the Court asserted that if a State decides to legalize abortion, it is then "obliged to organise the health services system in such a way as to ensure that an effective exercise of the freedom of conscience of health professionals in the professional context does not prevent patients from obtaining access to services to which they are entitled under the applicable legislation." Two aspects of this ruling are of particular interest: first, it expresses the right to an "effective exercise of the freedom of conscience of health professionals in the professional context", and second, it does not say that the access to abortion should be ensured at the expense of the fundamental rights of health professionals, but it say, however, that the State has to respect both.

Dr Puppinck concluded that in this regard, it is clear that the Spanish regulation does not respect both the individual and institutional right not to take part in an abortion process.

The ECLJ thoroughly supports ANDOC's efforts to draw attention to this important issue. The right to conscientious objection must be respected. Rather than punishing health care professionals for exercising this right, Spanish authorities must comply with European and international standards to protect this right from the structural and systematic violations that conscientious objectors in Spain are experiencing today.

Related documents:

• CoE PACE Resolution 1763 (2010) on "The right to conscientious objection in lawful medical care"
• Written question to the Committee of Ministers on the violations of the right to conscientious objection in lawful medical in Spain. English | Spanish
• ANDOC Informe sobre vulneraciones al derecho de objeción de conciencia de los profesionales de la sanidad pública en España.
• 2011 ECLJ Memorandum on the Proposed Pace's Resolution on "Women's Access to Lawful Medical Care: The Problem of Unregulated Use uf Conscientious Objection". September 2010. English | Spanish

The European Centre for Law and Justice is an international, Non-Governmental Organization dedicated to the promotion and protection of human rights in Europe and worldwide. The ECLJ holds special Consultative Status before the United Nations/ECOSOC since 2007.

The ECLJ engages legal, legislative, and cultural issues by implementing an effective strategy of advocacy, education, and litigation. The ECLJ advocates in particular the protection of religious freedoms and the dignity of the person with the European Court of Human Rights and the other mechanisms afforded by the United Nations, the Council of Europe, the European Parliament, the Organization for Security and Cooperation in Europe (OSCE), and others.