Abortion and the protection of unborn life in the Chilean constitution

Congratulations to Dr. Verónica Undurraga, who defended her doctoral thesis at the Universdad de Chile in 2012.  She now teaches Constitutional Law, Legal Theory, Human Rights and Sexual and Reproductive Rights at the Universidad Adolfo Ibáñez in Santiago, Chile.   Her contact information is online here.  We thank her for translating her title and a synopsis of her thesis into English:

The interpretation of the affirmative duty to protect unborn life under the Chilean Constitution, in the context of the legal regulation of abortion.

The thesis presents an interpretative proposal for article 19 Nº 1 paragraph 2 of the Chilean Constitution, which establishes that “the law shall protect the life of the unborn,” and analyzes how this provision should be understood in the context of abortion.  To a significant extent, the proposal is built upon contemporary developments of abortion case law in constitutional comparative law and international human rights law.  However, it is mindful of the contextual and institutional differences existing among countries and between the national and international legal spheres.

The thesis defends the doctrine that attributes to unborn life the status of an “objective constitutional value” against the alternative doctrine that considers the fetus a holder of a constitutional (subjective) right to life.  The work challenges the widespread assumption within the Chilean legal community that recognition of a subjective right to life for the fetus provides more effective protection to unborn life from abortion. The thesis affirms that the State’s compliance with the constitutional affirmative duty to protect unborn life is not satisfied by expressive or symbolic measures only; the constitution also requires the State to give evidence of the efficacy of the legal regime to lower abortion rates.  At the same time, the work assumes that such a legal regime should be respectful of the rights of the pregnant woman.

The appropriate framework to evaluate the fulfillment of these conditions is the principle of proportionality, which requires that measures taken to protect unborn life must be appropriate, necessary and strictly proportional to comply with the legislature’s aim.  The thesis concludes that the criminalization of abortion, at least in cases in which abortion is necessary to save the woman’s life or prevent serious dangers for her health, in cases of rape and in those in which the fetus is not viable, does not satisfy the principle of proportionality and that, therefore, Chilean legal regulation on abortion, which penalizes the termination of pregnancy in such circumstances is unconstitutional.
Forthcoming printed edition:   Undurraga, Verónica, Aborto y protección del que está por nacer en la constitución chilena (Santiago: Legal Publishing Chile (Thomson Reuters), publicación pendiente 2014.

Several arguments for the thesis were developed in a conference paper she presented at the 2011 SELA Conference at Yale University:

  • “Building a judicial narrative for Latin-America based on the “non-demandability” argument in abortion cases.”
    39-page paper in English.
  •  Original version in Spanish:  “Construyendo un relato judicial para América Latina en torno al argumento de la inexigibilidad de la obligación de mantener un embarazo.”  Spanish Abstract    41-page paper in Spanish.

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