The nasciturus, a person not yet born, has been a subject of study with two radically opposite views: the first one recognises its legal personality from conception and from that moment, the consequent necessity of creating a legal protective status for its rights, the most important one being the right to live.
25 september 2020
Title: Abortion Regulation in Ecuador: Reflections on its decriminalisation
Author: Ana Ortiz Alcívar
The second view denies its person status and calls it according to its evolutionary process: pre-embryo, embryo, foetus, product, etc. Since it’s not considered a person, women’s freedom and reproductive rights have priority over the right to live.
Article 149 of the Comprehensive Organic Criminal Code punishes women who had an abortion with a custodial sentence of six months to two years, as well as a sentence of one to three years to the person who performed the abortion.
This norm violates women’s fundamental freedom and reproductive rights, which are also recognised in the Constitution and as international human rights instruments, since one of the most recurring arguments maintained by women rights defenders regarding the illegality of abortion bases itself on the fact that such practice is performed clandestinely, which might cause deaths, disabilities and lead to a degrading, inhuman treatment of women.
There have been several attempts at reforming the COIP as a consequence of the debates arisen by the Ecuadorian public discussion. In 2019 debates occurred to include three new grounds for non-punishable abortion, but the bill couldn’t count on the necessary votes, which is why abortion is still a crime except for two grounds: when it’s been performed to avoid a life and health-threatening danger for the pregnant woman and when it’s the result of rape of a mentally handicapped woman.
In second debate, on August 25th 2020, the National Assembly passed the Bill of the Organic Health Code, in which article 201 reopens the legal debate, since it includes “any kind of abortion for whatever apparent cause” as obstetric emergencies.
Given the current situation in Ecuador and South America, we ask ourselves the following questions: can abortion be decriminalised in Ecuador? What’s the legal status of the nasciturus in the country?
In order to find an answer, the research work was developed in three different chapters:
In the first chapter we address the issue of the nasciturus’ rights, its historical- legal development, the ontological considerations of being a person, the biological-scientific aspects where we study the different theories that support the existence of life: theory of conception, theory of fertilisation or nesting and the theory of the development of the central nervous system.
In the same paragraph we study the nasciturus’ international legal status with the most relevant treaties ratified by Ecuador, like the Convention on the Rights of the Child and the American Convention on Human Rights. On national level we review the Constitution, the Civil Code, an Executive Decree and the Code for Children and Adolescents.
In the second chapter we address women’s reproductive rights, understood as the right of freedom of choice over their own body and the guarantee of access to safe abortion that the state must provide. In this chapter we address the history behind women’s rights and their legal status internationally and in South America.
Finally, in the third chapter we analyse the two debating currents: on the one hand, the pro-life current and the criticism made of pro-abortion rulings, especially the Baby Boy case in the United States. We analyse an Ecuadorian decree that prohibits the sale of emergency contraceptive pills called POSTINOR-2, and we include the most recent bill of the Organic Health Code.
As regards the pro-abortion current, we analyse the famous case of Roe vs Wade in United States, where it was determined that the woman’s decision to give birth or not is within the realm of her personal intimacy or privacy, a right recognised as fundamental in the case of Griswold vs Connecticut.
