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URGENT ACTION - Women's Abortion Rights Under Threat in Romania

News author: Daniela Draghici
2009-05-03 20:58:03 / News read 2942 reading

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Daniela DraghiciRomania is informing us about worrying news from the Romanian Parliament, where anti-choice amendments to the abortion law could have serious repercussions on women’s access to therapeutic abortion after 24 weeks. The amendment, which relates specifically to Article 199 of the Draft of the New Criminal Code, could grant fetuses the status of personhood post 24 weeks.  

 

If you agree, please support the attached letter, which has been circulated by Romanian reproductive health and rights campaigners internationally and requires urgent support – the proposed amendment will be debated only in Parliament, not as part of a public debate "for lack of time" and is intended to be passed by May 15, so Romania will look nicey-nice in the country report submitted to the EU.

Please circulate and send your response DIRECTLY to Daniela Draghici: daniela.draghici@gmail.com as soon as you can. 

 

 

 

To:              The Romanian Parliament

In attn:       Mr. Daniel Buda, President of the Special Joint Commission for the Debate on the Merits, in the Emergency Procedure, of the Criminal Code, Criminal Procedure Code, Civil Code, and the Civil Procedure Code

                   Mr. Victor Ponta, President of the Sub-commission on the Criminal Code and the Criminal Procedure Code

Re:              Proposals to modify the criminal legislation in the field of abortion within the debate on the Draft of the New Criminal Code

Date:          4 May 2009

 

 

 

The undersigned organizations express their concern with regards to the negative impact the adoption of the proposals for the amendments in the field of the law on abortion under debate in the Romanian Parliament will have on women in Romania (the incrimination of the therapeutic abortion conducted after the 24th week from conception in Article 199 of the Draft of the New Criminal Code and the proposed definition of the person in the context of the Draft of the New Criminal Code as including the fetus after the 24th week from conception). The adoption of such provisions will lead to Romania being the only Member State of the European Union that prohibits abortion in situations when the life of the pregnant woman is endangered by taking the pregnancy to term (after the 24th week from conception). Such a legislative measure would represent a regress in ensuring fundamental rights such as the right to life, the right to health, the right not to be subjected to torture or inhuman and degrading treatment and the right not to be subjected to discrimination on the ground of sex, in the case of women.

 

quot;>Impact on medical standards and practices

 

Therapeutic abortion is the abortion that is conducted when the life or the health of the pregnant woman is endangered by taking the pregnancy to term. The necessity of a therapeutic abortion after the 24th week from conception is a rare medical situation and this necessity is determined individually, on a case by case basis. The decision on such a medical intervention is taken by the specialist doctor together with the patient. While naturally, during the pregnancy, the doctors are concerned about the development of the fetus, they should take into account that the fetus is intrinsically connected with the pregnant woman, as recognized by the European Court of Human Rights in the case of Paton v. UK.[i] Consequently, the doctors should give priority to the health and life of the pregnant woman. In addition, in the case of the pregnancy, the woman is the patient. The doctor has the obligation towards his patient to do everything within its power to save her life or health.

 

According to the legislation in force in Romania, at the moment, the abortion conducted to save the life or health of the pregnant woman is allowed irrespective of the term of the pregnancy (Article 185 of the Criminal Code). Imposing the 24 week limit after which the therapeutic abortion is forbidden, as well as defining the “person” to include the fetus after the 24th week from conception will have a chilling effect on doctors with regards to medical acts, even in cases where such an intervention would be necessary to save the life or health of the pregnant woman. According to the proposed legal amendments mentioned above, the fetus after the 24th week from conception is a “person” in the context of the criminal law, consequently any criminal offence can be inflicted on the fetus as in the case of any person, from the criminal offence of murder to criminal offences like heating or other violence inflicted on the person, inflicting bodily harm, leaving a person without the help needed or impeding other person to give help, according to the Draft of the New Criminal Code. Recently, the European Court of Human Rights has recognized that the “chilling effect” on doctors when confronted with the perspective of being the subject of criminal investigation or even prosecution is more visible in countries with restrictive laws on abortion, such as Poland. In the case of Tysiac v. Poland, the Court recommended the adoption of legislation that is formulated in such a way as to alleviate this effect.[ii] The prohibition of therapeutic abortion after the 24th week from conception and the inclusion of the fetus after the 24th week from conception in the group of persons that are protected by the criminal legislation appear to be unnecessary and potentially harmful on the medical act that should be individualized according to the needs and wishes of each patient. Therefore, these legal provisions could place the doctor in the position of refusing to take action, which could lead to maternal mortality and morbidity otherwise avoidable.

 

Comparative law standards and international law standards

 

Adopting the legal provisions mentioned above is not in compliance with the comparative law standards at the level of the Member States of the European Union and the international law in the field of human rights protection. All Member States of the European Union allow abortion when the life of the pregnant woman is endangered by taking a pregnancy to term. When evaluating the compliance with the constitution of the national legislation, constitutional courts from Member States of the European Union have constantly recognized the lawfulness of abortion when it is needed to save the pregnant woman’s life or health, according to the women’s rights to physical and mental health and personal autonomy.[iii] Therefore, the legal recognition and proclamation by courts of the exception based on the health or life of the woman reflect the preoccupation that exist in the Member States of the European Union on the need to protect women’s human rights within the abortion laws.

 

Also, the United Nations Human Rights Treaty Monitoring Bodies interpret the human rights to life, health and non-discrimination, and the freedom from cruel, inhuman and degrading treatment or punishment, as requiring state parties to lawfully permit abortion where necessary to protect the woman’s health. These bodies have consistently advised state parties to amend national laws on abortion to permit abortion where necessary to protect the woman’s life or health.

 

The Committee on Economic, Social and Cultural Rights (CERC), which monitors state compliance with the International Covenant on Economic, Social and Cultural Rights (ICESCR), has expressly advised state parties to permit or consider permitting abortion for therapeutic reasons.[iv]

 

The Human Rights Committee (HRC), which monitors state compliance with the International Covenant on Civil and Political Rights (ICCPR), has expressed concern that national laws prohibit abortion in all cases, except where necessary to save the woman’s life.  In K.L. v. Peru, the HRC reasoned that state failure to enable the applicant to benefit from a therapeutic abortion caused the depression and emotional distress she experienced, and thus constituted a violation of Article 7 (freedom from torture or cruel, inhuman or degrading treatment or punishment).[v]

 

According to the Committee on the Elimination of All Forms of Discrimination Against Women and the Committee on Economic, Social and Cultural Rights, the refusal of a state party “to provide legally for the performance of certain reproductive health services for women” is discrimination on the ground of sex.[vi] Such a health service is also abortion when the life or the health of the pregnant woman is endangered by taking the pregnancy to term.

 

The Romanian State through its competent authorities should take into account the compliance of the national legislation with the regional and international standards in the field of human rights in accessing health services essential in the case of women.

 

 

 

 

NGOs’ proposal with regards Art. 199 (Abortion) and the proposed definition of person from the Draft of the New Criminal Code, under debate in the Parliament

 

No.

Draft law

Discussed version

NGOs’ proposal

20

CHAPTER IV  AGGRESSION ON THE FETUS

Art. 199 Abortion 

(1)  The termination of pregnancy conducted in any of the circumstances:

    a) outside medical units or medical private practices authorized for this aim;

;b) by a person who is not an OB-GYN medical doctor with aright to practice this medical specialty;

    c) if the term of the pregnancy is more than fourteen weeks,

is punishable with imprisonment from 6 months to 3 years or a fine and the interdiction of certain rights.

 

 

- not modified


CHAPTER IV ABORTION

- not modified

20

Art. 199 Abortion 

 (2)  The abortion conducted in any circumstances, without the consent of the pregnant woman, is punishable with imprisonment from 2 to 7 years and the interdiction of certain rights.

 

- not modified

- not modified

20


Art. 199 Abortion

 (3) If the acts prescribed by paragraphs (1) and (2) caused to the pregnant woman a bodily harm, the punishment is imprisonment from 3 to 10 years and the interdiction of certain rights and if the act had as a consequence the death of the pregnant woman, the punishment is imprisonment from 6 to 12 years and the interdiction of certain rights.

 

- not modified

- not modified


  20

Art. 199 Abortion

 (4)  When the facts have been committed by a medical doctor, the punishment consisting in the interdiction of the exercise of the medical profession will apply in addition to the punishment of imprisonment.

 

- not modified

- not modified

20

Art. 199 Abortion

 (5)  The attempt to commit the criminal offences prescribed by paragraphs (1) and (2) is punishable.

 

- not modified

- not modified

20

Art. 199 Abortion

(6)  Conducting a therapeutic abortion by an OB-GYN medical doctor is not a criminal offence.

(6)Conducting a therapeutic abortion by an OB-GYN medical doctor up until the term of pregnancy is 24 weeks is not a criminal offence.

- Keeping in the Government’s version:

(6)  Conducting a therapeutic abortion by an OB-GYN medical doctor is not a criminal offence.

21

Art. 199 Abortion

(7) The pregnant woman who terminates the pregnancy is not held criminally liable.

 

 

- not modified

 

- not modified

21

Art. 200   Harming the fetus

(1) Harming the fetus during birth, which prevented the installation of the life outside the uterus, is punishable with imprisonment from 3 to 7 years.

 (2) Harming the fetus during birth, which subsequently caused a bodily harm of the child, is punishable with imprisonment from 1 to 5 years, and, if it caused the death of the child, is punishable with imprisonment from 2 to 7 years.

 (3) Harming the fetus during the pregnancy, which subsequently caused a bodily harm of the child, is punishable with imprisonment from 3 months to 2 years, and, if it caused the death of the child, is punishable with imprisonment from 6 months to 3 years.

(4) Harming the fetus during birth perpetrated by the mother who is in a state of psychical disorder is punishable with the same punishment prescribed by paragraphs (1) and (2), reduced by half. 

(5)  If the facts prescribed in paragraphs (1) - (4) have been committed by negligence the limits of the punishment are reduced by half.

(6) When the facts prescribed by paragraphs (1) - (3) and (5) have been committed by a medical doctor, the punishment consisting in the interdiction of the exercise of the medical profession will apply in addition to the punishment of imprisonment.

(7) Harming the fetus during the pregnancy by the pregnant woman is not punishable.

 

- Art.200 will be removed. We will introduce an article having the following text, in the final part of the Criminal Code about definition of terms:

„After 24 weeks, the fetus is considered a person in the context of the criminal law.”

Removing Article 200.

 

Rejecting the amendment proposal aiming to include in the definition of person the fetus after the 24th week from conception.

 

 

We offer our thanks in advance for the time you devote to considering these comments and reflections on these proposed legal provisions.  We offer them in the spirit of hope that Romania will continue its efforts to ensure women’s health and rights.

 

 

 

 

Romanian organizations supporting this letter:

Agenţia de Dezvoltare Comunitarǎ Împreunǎ, Romania

Alianţa Civicǎ a Romilor din România

Asociaţia ACCEPT, Romania

Centrul Parteneriat pentru Egalitate (CPE), Romania

Centrul pentru Politici si Servicii de Sanatate (CPSS)

Centrul FILIA, Romania

Fundaţia Proiectul de Educatie Civica si Dezvoltare Academica (FPECDA)

Galaţi EU-RO Consult, Romania

Population Service International (PSI), România

 

International, regional organizations and networks supporting this letter:

Abortion-information, Zollikofen / Switzerland

Article 42 of the Constitution, Georgia

ASTRA - CEE Women's Network for Sexual and Reproductive Health and Rights

Bulgarian Gender Research Foundation

Catholics for Choice, USA and Europe

Eastern European Alliance for Reproductive Choice

Family Federation of Finland

Family Planning Association, Portugal

Family Planning and Sexual Health Association, Lithuania

Federation for Women and Family Planning, Poland

French Family Planning Movement

Grupo de Interes Espanol en Población, Desarrollo y Salud Reproductiva, Spain

Gynuity Health Projects, Georgia

International Planned Parenthood Federation European Network (IPPFEN)

Ipas, USA

Irish Family Planning Association

Marie Stopes International (MSI), UK

Metropolitan Community Churches (MCC), USA

Network of East-West Women, Poland

Population Action International (PAI), USA

Pro Choice Slovakia

“Pro Familia” German Association for Family Planning, Sexuality Education and Sexual Counselling

Reconstruction Women's Fund, Serbia

Regional Centre for Minorities, Serbia

Reproductive Health Training Center, Moldova

Slovak-Czech Women’s Fund

Slovak Family Planning Association

The Sexuality Information and Education Council of the United States (SIECUS), USA

The Swedish Association for Sexuality Education (RFSU)

Voice of Difference, Serbia

Women's association "Refleksione", Albania

Women's Center, Georgia

Women`s Safe House, Montenegro

 

Also supporting this letter:

Albena Koycheva, Lawyer, Bulgaria

Arina Khitrina, Directing Attorney, American Bar Association /Rule of Law Initiative, Russia

Carmen Popian, Lawyer, România

Crina Marina Morteanu, PhD candidate, Facultatea de Stiinte Politice, Bucharest, Romania

Cristina Vaileanu, Gender Policy Expert

Derek Rebro, Literary critic and university teacher, Slovakia

Heili Einasto, Lecturer, Tallinn University, Estonia

Janka Debreceniova, Human Rights Lawyer, Slovakia

Linda Svilane, Lawyer, Latvia

Luba Kobova, PhD candidate, Comenius University, Slovakia

Marije Nederveen, The Netherlands

Natalie McDonnell, Barrister at Law, The Law Library, Dublin, Ireland

Monica Vasile, Secretary of State, Member of the Steering Committee of the National Council for Combating Discrimination, Romania

Renate Weber, Romania

Dr. med. Regula E. Bürki, USA

Sonia Jaffe Robbins, founding member, Network of East-West Women, USA

 



[i] See Paton v.UK (X v. UK) (1980) 19 DR 244; (1981) 3 EHRR 48, paras. 7-9, 19. In addition, despite the new-born and the woman, the fetus is not covered by the protection of human rights. In this sense, Article 3 of the Universal Declaration on Human Rights specifically limits that right to those who have been ‘born’. The UN General Assembly that adopted the text of the declaration rejected an amendment proposing the elimination of the term “new-born” and the protection of the right to life from the moment of conception; see GA OR 3rd Comm., A/PV/99 (1948), pp. 110-124.  The history of negotiation of the International Covenant on Civil and Political Rights shows that a similar amendment was also proposed an rejected; see GA OR Annex, 12th session (1957), Agenda Item 33 at 96, A/C.3/L.654, para. 113.  The Commission on Human Rights adopted by a vote of 55 to nil, with 17 abstentions Article 6 that does not make any reference to conception; see GAOR, 12th Session, Agenda Item 33, A/3764 (1957), para. 119(q).  In a similar way, the travaux preparatoires and the interpretation given to the International Covenant on Civil and Political Rights confirms that the convention protects life from birth; see Commission on Human Rights, Question of a Convention on the Rights of a Child: Report of the Working Group, 10 March 1980, E/CN.4/L/1542.

[ii] See Tysiac v. Poloniei (2007), ECtHR, Nr. 5410/03, para. 116.

[iii] See the decision of the Constitutional Court of the Federal Republic of Germany, Entscheidungen des Bundesverfassungsgerichts [BverfGE] [Fed. Constitutional Court] 39, 1 translated in Robert E. Jonas & John D. Gorby, trans., West German Abortion Decision: A Contrast to Roe v. Wade, 9 John Marshall J. Prac. & Proc. 605, 624 (1976); see also the decision of the Constitutional Court of Italy, Corte Constituzionale, Republica Italiana, n.27, 1975 and the decision of the Constitutional Court of Portugal, Constitutional Court, Art. 47, 1985.

[iv] Concluding Observations of the Committee on Economic, Social and Cultural Rights: Chile, para. 53, E/C.12/1/Add.105 (2004); Concluding Observations of the Committee on Economic, Social and Cultural Rights: Malta, para. 41, E/C.12/1/Add.101 (2004); Concluding Observations of the Committee on Economic, Social and Cultural Rights: Monaco, para. 23, E/C.12/MCO/CO/1 (2006).

[v]Human Rights Committee, Communication No, 1153/2003, K.L. v Peru, U.N. Doc. CCPR/C/85/D/1153/2003 (2005) [hereinafter K.L. v Peru].

[vi]Committee on the Elimination of Discrimination Against Women (CEDAW Committee), General Recommendation 24: Women and Health, para. 11, U.N. Doc. A/54/38 (1999) [hereinafter CEDAW Gen. Rec. 24], Committee on Economic, Social and Cultural Rights, General Comment No. 14 (2000) the right to the highest attainable standard of health (Article 12 of the International Covenant on Economic, Social and Cultural Rights), para. 21. See also, the Protocol on the Rights of Women in Africa under the African Charter on Human and Peoples’ Rights 1981 explicitly provides that State Parties shall take all appropriate measures to. protect the reproductive rights of women through the legalization of the medical abortion in cases where the continued pregnancy endangers the mental and physical health of the mother. See African Charter on Human and Peoples’ Rights, adopted June 27 1981, OAU Doc. CAB/LEG/67/3, rev. 5, 21 I.L.M.58 (1982) (entered into force Oct. 21, 1986), Art. 14.2(c).

 

Letter send to NEWW on the 13th of May:

Thanks, Gosia, for posting the news on the  website. This is what happened at the meeting with the Parliamentary subcommission yesterday:
 
Thank you again for your support with the memo initiated by the Romanian civil society. We managed to send it to the Romanian Parliament last Tuesday and soon after that part of the Romanian media picked up the issue. Due to the pressure placed on the parliamentary subcommission debating the amendments, the subcommission invited the Romanian NGOs to a debate on these amendments.  This discussion took place this Monday, May 11. After long and complicated discussions, the subcommission agreed to change the two amendments as follows:

1. Article 199.(6): Therapeutic abortion before the 24th week, as well as pregnancy interruption after the 24th week for medical reasons in the interest of the woman or the fetus are not criminal offences.

2. Article 200: They took out the definition of person from the Criminal Code, so there is no personhood given by the law to the fetus after the 24th week. Yet, they included back into the Draft Criminal Code the criminal offence “harming the fetus” with a large exemption in cases of medical activity conducted by doctors or other authorized personnel that acts according to the rules of the profession and medical protocols.

The representatives of the doctors insisted on having the 24th week marked and having a provision on the harming of the fetus. Given these circumstances, the Romanian civil society was quite satisfied with the results of the discussion. Please note that we do not have yet the exact text of these new amendments. Also, the subcommission did not vote on these new amendments yet. The vote will take place today. We will keep you updated. The next stage is the vote in the plenary session of both chambers of the Parliament.

Please share with your networks.
All my best from Bucharest, Daniela

 

 

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