Spain: “Gender in Constitutional Discourses on Abortion,” by Blanca Rodríguez-Ruiz

June 29, 2017

Congratulations and thanks to Professor Blanca Rodríguez-Ruiz,  who teaches constitutional law at the University of Seville in Spain, for her useful article, recently published in the international journal, Social & Legal Studies:

Blanca Rodríguez-Ruiz, “Gender in Constitutional Discourses on Abortion: Looking at Spain from a Comparative Perspective,” Social & Legal Studies 25.6 (Dec. 2016): 699-715.
PDF     Download text      Author publications – English and Spanish

Abstract:   In as far as the regulation of abortion deals with issues like how and to what extent can women’s capacity to gestate and give birth be controlled, and by whom, any discourse on abortion necessarily reflects a construction of women’s citizenship, hence of gender.  The question is, which is the ruling construction? Behind non-legal discourses that focus on human life and public power’s duty to protect it, there lies the modern construction of gender that articulates women’s passive citizenship within the state.  This is also true of confrontational discourses that construct women and the foetus as potential adversaries. Both discourses are traditional in continental Europe.  Yet, they are being superseded by an understanding of abortion from the perspective of women’s active citizenship. Spanish Organic Act 2/2010 stands as part of this trend.  Not surprisingly, governmental attempts to reinstate women’s passive citizenship in this matter have met stark resistance.   PDF.     Download text.

Source:  “Regulating Abortion: Dissensus and the Politics of Rights,” ed. Siobhan Mullally,  symposium issue of Social & Legal Studies: An International Journal 25.6 (Dec 2016)       Introduction, pp. 645-650.

See also:
Catherine O’Rourke, “Advocating Abortion Rights in Northern Ireland: Local and Global Tensions,” Social and Legal Studies 25(6): 716-740.  PDF and abstract       Submitted text

Claire Murray, “The Protection of Life During Pregnancy Act 2013: Suicide, Dignity and the Irish Discourse on Abortion“, published in Social and Legal Studies 2016,  25(6): 667-698     PDF and abstract     Accepted text.
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The REPROHEALTHLAW Blog is compiled by the International Reproductive and Sexual Health Law Program, Faculty of Law, University of Toronto, Canada,  reprohealth*law at utoronto.ca.   For Program publications and resources, see our website, online here.
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Noninvasive Prenatal Genetic Diagnosis

November 24, 2016

Congratulations to Prof. Bernard M. Dickens whose article, abstracted below, is now universally available.

Bernard M. Dickens, “Ethical and Legal Aspects of Noninvasive Prenatal Genetic Diagnosis,”   International Journal of Gynecology and Obstetrics 124.2 (2014): 181-184. online here.

Abstract:  The new technology that will allow genetic testing of a fetus within the first trimester of pregnancy by isolating cell-free fetal DNA (cffDNA) in the mother’s blood raises a range of ethical and legal issues. Considered noninvasive, this test is safe and reliable, and may avoid alternative genetic testing by amniocentesis or chorionic villus sampling, which risks causing spontaneous abortion. Ethical and legal issues of cffDNA testing will become more acute if testing expands to fetal whole-genome sequencing. Critical issues include the state of the science or diagnostic art; the appropriateness of offering the test; the implications of denying the test when it is available and appropriate; disclosure and counseling following test results; and management of patients’ choices on acquiring test results. A challenge will be providing patients with appropriate counseling based on up-to-date genetic knowledge, and accommodating informed patients’ legal choices.  Full text is online here.

Related Reading:
Rebecca J. Cook, “Stigmatized meanings of criminal abortion law,” chapter 16 of Abortion Law in Transnational Perspective: Cases and Controversies (University of Pennsylvania Press, 2014), 347-369, analyzes the decision of R.R. v. Poland (European Court of Human Rights),  which held that a woman in Poland should not have been denied access to genetic prenatal examinations which would have enabled her to decide whether or not to seek a legal abortion in Poland. Abstract of this chapter.   Book: Abortion Law in Transnational Perspective.   Libro: El aborto on el derecho transnacionalRR v Poland decision.

Bernard M. Dickens, “Preimplantation Genetic Diagnosis and ‘Saviour Siblings’International Journal of Gynecology and Obstetrics, Vol. 88, pp. 91-96, 2005  is online here.

76+ other articles on Ethical and Legal Issues in Reproductive Health are on our Program webpage here.

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Removing tension between female autonomy and foetal interests

May 28, 2015

Congratulations to Camilla Pickles, LL.D.,  who recently defended an interesting doctoral thesis at the Department of Public Law, Faculty of Law, University of Pretoria in South Africa.  The author, who can be reached at her firstname. lastname@gmail.com, currently works for the Chief Justice of the Constitutional Court of South Africa.  We thank her for submitting the following abstract:

 Addressing the Tension between Female Reproductive Autonomy and Foetal Interests during Pregnancy and Birth

by Camilla Pickles
LL.D. Thesis presented to the Department of Public Law, Faculty of Law, University of Pretoria.
 


Abstract

This thesis considers different areas of tension developing in South Africa between female reproductive autonomy rights and foetal interests that arise when law reform is proposed which aims to ensure healthy pregnancy and birth outcomes. Four areas are highlighted: prenatal substance abuse; termination of pregnancy; violence that terminates a pregnancy without a woman’s consent; and the extension of legal personhood to the unborn. Ultimately, this thesis explores whether it is possible to tackle these concerns without encouraging an adversarial pregnancy environment.

There are two leading approaches to pregnancy in law: pregnant women are viewed either as single entities (the primary South African position) or two separate entities (the primary position in the United States). This thesis tests the validity of both to adequately tackle the identified areas of concern. Research indicates that these approaches undermine healthy pregnancies or birth outcomes and female reproductive autonomy. The approaches fail to reflect the embodied nature of pregnancy being one that is based on relationship and inseparable connection. The single-entity approach denies the existence of the unborn while the separate-entities approach encourages pregnancy adversarialism.

This thesis reveals that the concerns will never be adequately resolved unless the potential for tension between women and the unborn is removed.   The author proposes a relational approach to pregnancy, centred on fostering relationships, in order to eliminate the potential for tension. She applies the not-one-but-not two approach to pregnancy which recognises that a pregnant woman and her foetus are two separate entities but inseparably linked through pregnancy. This approach focuses the embodied connection that pregnancy represents and the contextual realities in which pregnancy exists.

The author then applies this useful approach to four key areas of concern:
*    prenatal substance abuse;
*    termination of pregnancy;
*    violence that terminates a pregnancy without a woman’s consent; and
*    the extension of legal personhood to the unborn.

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Related publications

  • C Pickles “Personhood: Proving the Significance of the Born-Alive Rule with Reference to Medical Knowledge of Foetal Viability” (2013) 24(1) Stellenbosch Law Review 146
  • C Pickles “Lived Experiences of the Choice on Termination of Pregnancy Act 92 of 1996: Bridging the Gap for Women in Need” South African Journal on Human Rights (2013) 29(3) 51
  • C Pickles “Approaches to Pregnancy under the Law: A Relational Response to the Current South African Position and Recent Academic Trends” (2014) 47(1) De Jure 20

Decisions, Calls, Resources, News & Jobs

November 22, 2013

REPROHEALTHLAW-L
November 22, 2013

DECISIONS

Australia – Tasmania: New abortion law allows terminations up to 16 weeks with the woman’s consent, and after that if two doctors agree on medical or psychological grounds.  News article

Brazil:  New law guarantees treatment, including emergency contraception, for rape victims in public hospitals.   English news.  Spanish news.

CEDAW General recommendation No. 30 on women in conflict prevention, conflict and post-conflict situations, Paragraph 52 mentions “access to sexual and reproductive health and rights information; . . . family
planning services, including emergency contraception;. . .  safe abortion services; post-abortion care . . .” Advance Unedited version, October 13, 2013  CEDAW Gen. Rec. 30.

European Court of Human Rights:   Costa and Pavan v. Italy, No. 54270/10, 28th August 2012 (re assisted reproduction), found violation of Article 8.   Ban preventing healthy carriers of cystic fibrosis from screening embryos for in vitro fertilisation, despite existence of right to therapeutic abortion in domestic law.  Court decided violation of Article 8, Right to respect for private and family life.   Decision online.  Brief Comment by Adriana DiStefano  in Strasbourg Observer. Academic article by Gregor Puppinck online at SSRN.

Ireland: Protection of Life During Pregnancy Act 2013 allows abortion only when woman’s life is at risk, including from suicide. signed into law July 30, 2013.   Newspaper article.    CRR Legal Analysis.  Articles in special issue of Irish Journal of Legal StudiesO’Sullivan et al.   Schweppe et al.

Ireland:  Verdict of “medical misadventure” in 2010 maternal death in Irish hospital.  Bimbo Onanuga (32) died after being induced to deliver a stillborn baby.  News article.     Details of case from Association for Improvements in the Maternity Services (AIMS), Ireland.

CALLS

Call for Applications, PhD Fellowship in Gender Equality Measurement, Carleton University, Ottawa, Canada – Apply by Jan 15, 2014.  Fellowship details.  Facebook page.

Call for Abstracts and Conference Registration. “Eliminating Women and Girls’ Sexual and Reproductive Health Vulnerabilities in Africa”, 6th Africa Conference on Sexual Health and Rights,  Yaounde, Cameroon,  February 3-7, 2014,
Conference announcement. 
Call for Abstracts, due Dec 13, 2013  
Registration.  Early bird deadline: 15 December 2013.

Call for Submissions on  Child Early and Forced Marriage  to the United Nations Office of the High Commissioner on Human Rights (OHCHR) due Dec 15, 2013, for a UN Report.  Details online.

RESOURCES:

[abortion – Australia] “The Legal and Factual Status of Abortion in Australia,” by Ronli Sifris (2013) 38:2 Alternative Law Journal 108.  Article online.

[abortion] “Dignity and the Duty to Protect Unborn Life,” by Reva B. Siegel  in Understanding Human Dignity ed. Christopher McCrudden, 2014) Forthcoming; Yale Law School, Public Law Working Paper No. 294. Article online.

[abortion- Brazil] “Brazilians have different views on when abortion should be legal, but most do not agree with imprisoning women for abortion.” by Anibal Faundes, Graciana Alves Duarte, Maria Helena de Sousa, Rodrigo Pauperio Soares Camargo, and Rodolfo Carvalho Pacagnella, Reproductive Health Matters featured article online.

[abortion – European Union] Draft Report on Sexual and Reproductive Health and Rights. Committee on Women’s Rights and Gender Equality, Rapporteur: Edite Estrela, calls for universal access to sexual and reproductive health and rights throughout Europe, including  safe and legal abortion services.   After controversial debate, report was sent back to the Committee.  15-page report.

[abortion – funding – Canada] “Analysis of Canada’s refusal to fund abortion services abroad.”  Policy brief prepared by Action Canada for Population and Development (ACPD) 4 page analysis.

[abortion – Ireland)  “Article 40.3.3 and the Protection of Life During Pregnancy Bill 2013: The Impetus for, and Process of, Legislative Change,” by Catherine O’Sullivan, Jennifer Schweppe and Eimear A. Spain, (2013) Irish Journal of Legal Studies 1-17.  Introduction to special issue.

[abortion – Ireland] “When is a Foetus Not an Unborn? Fatal Foetal Abnormalities and Article 40.3.3” by Jennifer Schweppe and Eimear A. Spain, (2013) Irish Journal of Legal Studies 92-110. Article online.

[abortion – Ireland, Poland] Procedural Obligations Under the European Convention on Human Rights: An Instrument to Ensure a Broader Access to Abortion, by Gregor Puppinck, Zeszyty Prawnicze (Waszawa), SSN-1643-8183, 2013.  Abstract and article online.

[abortion – Muslim-majority countries] Liberal abortion rights in some Muslim-majority countries, by Gilla Shapiro. Literature review.

[abortion – Northern Ireland] draft “Guidance on the Limited Circumstances of Termination of Pregnancy” issued by Department of Health in Northern Ireland, Northern Ireland draft guidelines.   Rights-based critique  by Dr. Catherine O’Rourke, critique online.

[abortion – Poland] Women’s Reproductive Rights as a Political Price of Post-Communist Transformation in Poland”  by Joanna Diane Caytas, Amsterdam Law Forum 5.2 (Spring 2013): 64-89.  Article online

[abortion: South Africa] “Personhood: Proving the Significance of the Born-Alive Rule with Reference to Medical Knowledge of Foetal Viability”  by Camilla Pickles,  2013 24(1) Stellenbosch Law Review 146-164.  Abstract online.

Abortion stigma webinar summary, based on research by ANSIRH and Ipas.  Abortion stigma webinars.

[Abortion – Uganda] “The Stakes are High:  The Tragic Impact of Unsafe Abortion and Inadequate Access to Contraception in Uganda,” 2013 report from the Center for Reproductive Rights and Georgetown law school.  74-page report

[assisted reproduction] “The Case of Costa and Pavan v. Italy and the Convergence between Human Rights and Biotechnologies. Commentary on the ECHR Ruling in Costa and Pavan v. Italy, No. 54270/10, 28th August 2012,” Quaderni di Diritto Mercato Tecnologia – N°3, Anno III  (2013). Abstract and article online.

[CEDAW] The UN Convention on the Elimination of All Forms of Discrimination Against Women, A Commentary. ed. Marsha A. Freeman, Christine Chinkin, and Beate Rudolf, Oxford 2012   Now available in Paperback and eBook.  paperback details.

[conscience] “Freedom of Conscience in Health Care: Distinctions and Limits,” Sean Murphy and Stephen J. Genuis, Journal of Bioethical Inquiry 10.3 (Oct 2013) pp 347-354, online here.

[emergency contraception] “A review of global access to emergency contraception,” by Elizabeth Westley, Nathalie Kapp, Tia Palermo, Jennifer Bleck in International Journal of Gynecology and Obstetrics 123 (2013) 4–6.  Online by subscription.

Global Health and Human Rights Database (new)  a free and fully searchable online database of more than 1000 judgments, constitutions and international instruments on the intersection between health and human rights. GH&HR database online.

Health and Human Rights Syllabus Database (new) includes dozens of syllabi from universities around the world.  H&HR Syllabus Database.

[health and human rights] “Bringing Justice to Health: The Impact of Legal Empowerment Projects on Public Health” [profiles projects based in Indonesia, Kenya, Macedonia, Russia, South Africa & Uganda] 58-page report from Open Society.     Summary.

[maternal mortality – causes and factors]  “Why Did Mrs. X Die?: Retold”(2012)  updated remake of World Health Organization 1988 film by Dr. Mahmoud Fathalla, explores socio-economic factors that pave the road to maternal death.  In English and Arabic:
English 15 minute video.   Arabic 15 minute video.

[maternal mortality – CEDAW – Brazil – Alyne] “Evaluating States’ Failure to Eliminate Discrimination against Women using Substantive Equality” by Meghan Campbell, OP CEDAW blog article.

[Tanzania]  “Forced Out:  Mandatory Pregnancy Testing and the Expulsion of Pregnant Students in Tanzanian Schools,” Center for Reproductive Rights – 80-page report.

US-focused news, resources, and legal developments are available on Repro Rights Prof Blog.  View or subscribe:
http://lawprofessors.typepad.com/reproductive_rights/

NEWS

[abortion – Ireland] Three Irish women forced to travel for abortions to take cases to UN — Ireland’s ban on abortions for fatal foetal abnormalities amounts to ’cruel, inhuman and degrading treatment’  Article in Irish Times.  CRR Press Release re case of Amanda Mellet.   Article in Independent.

[Bolivia] UN Human Rights Committee recommendations call on Bolivia to cease prosecuting women for illegal abortions and to remove judicial barriers to legal abortion. Ipas Press Release.

[Chile] Controversial case [of “Belem” – pregnant 11-year-old abused by her stepfather] opens up discussion of abortion in Chile.  News article.
Spanish Petition to decriminalize abortion in Chile  Petition online.
Spanish video about decriminalizing abortion in Chile.  Online here.
Spanish Declaration by NGOs – NGO declaration

Dominican Republic: Women’s Link Worldwide and the Colectiva Mujer y Salud filed a case in the Dominican Republic on behalf of Rosa Hernández, whose daughter Esperancita  was denied therapeutic abortion, leukemia treatment and palliative care which might affect the fetus.
Details from Women’s Link Worldwide

China one-child law change small but crucial, say experts.  Only-child parents may have two children.  News article.

JOBS

Assistant/Associate Professor of African Studies/Women’s Studies,  Pennsylvania State University, Pennsylvania, U.S.    Apply by  November 30, 2013.  PSU job details.

Assistant Professor, Women, Gender And Sexuality Studies,  Oregon State University, Corvallis Oregon
Apply by  December 1, 2013  OSU job details.

Visiting Assistant Professor or Instructor, Gender, Sexuality and Feminist Studies, Middlebury College,  Middlebury, Vermont, USA, Apply by December 9, 2013  Middlebury job details.

Technical Support Consultant on women’s human rights – based on CEDAW recommendations.   UN Women Regional Office for Asia and the Pacific, Home-based, Closing date: November 30, 2013.  Expert roster

Links to other employers in the field of Reproductive and Sexual Health Law are online here

Compiled by the Coordinator of the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca For Program publications and resources, see our website, online here. TO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.


Abortion and the protection of unborn life in the Chilean constitution

November 22, 2013

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.
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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.

Testing for Fetal Exposure to Alcohol

November 10, 2011

Congratulations to Bernard M. Dickens,  Co-Director of our International Reproductive and Sexual Health Law Programme and Professor Emeritus of Health Law and Policy, upon the following recent publication, now available online here. The author can be reached at bernard.dickens@utoronto.ca

Legal and Ethical Considerations in Meconium Testing for Fetal Exposure to Alcohol
J of Population Therapeutics and Clinical Pharmacology Vol 18:e471-e474; October 1, 2011
by Bernard M. Dickens

In Canadian law, pregnant women are held to owe no enforceable duties of care to their children before birth, but healthcare providers may be held accountable once children are born alive for causing injuries prenatally. When children are born in hospitals, recovered meconium may be tested without consent, but there may be an ethical duty to inform mothers. Meconium belongs to the newborns, and mothers may be required to make decisions about its use in their children�s best interests. Proposals to test meconium from particular populations raise concern about stigmatization.

Keywords: Meconium, alcohol, fatty acid ethyl esters, ethics, legal duties, pregnancy, fetal alcohol spectrum disorder