The President of the Republic enacted today the legislation excluding penalization in cases of voluntary termination of pregnancy, and sent a message to Parliament indicating a number of issues which should merit special regard from those responsible for legislative and regulatory powers, in order to ensure a reasonable balance among the interested parties.
Following is the text of the message sent to Parliament by the President of the Republic:
In accordance with the provisions of Article 134 of the Constitution, I have decided to enact as Law the Decree No. 112/X issued by the Parliament, which determined the exclusion of penalization in cases of voluntary termination of pregnancy.
And, as permitted by item d) of Article 133 of the Constitution, I decided that the enactment should be followed up by a message to Parliament.
1. As is publicly known, Decree No. 112/X was approved following a referendum on the voluntary termination of pregnancy, which took place on February 11, 2007, with a number of participating voters which was not sufficient for the result of that same referendum, in the terms of Article 115, No.10, of the Constitution, to be legally binding.
2. Although Parliament was not legally bound by the results of the said referendum, the legislator decided, in the terms of the powers awarded by the Constitution, to obtain approval of the Decree that has now been submitted to me for enactment.
3. It is obvious that this decision was based upon the fact, that cannot be ignored by the President of the Republic, that 59.25% of the votes cast in the referendum was in favour of the non-penalization of the voluntary termination of pregnancy, in accordance with the conditions and the terms of the query placed before the voters, which was approved as being in line with the Constitution by Sentence No. 617/2006 passed by the Constitutional Court.
4. Equally, the President of the Republic cannot ignore the fact that Decree No. 112/X was approved by Parliament with a large majority.
5. It is my belief, however, that there is a number of issues which merit the special regard of those responsible for legislative and regulatory powers, in order that, with the issue of the legislation now enacted and other legislation to be issued later, a reasonable balance is ensured among the interested parties.
6. As such, since the Law states that «the relevant information which will permit a free, conscious and responsible decision» of the pregnant woman, which is referred to under item b) of paragraph 4 of Article 142 of the Penal Code, should be established through an official administrative rule – an option which seems doubtful, due to the extreme sensitivity of the issue – it is necessary that the woman receives immediate information concerning the development of the embryo, by viewing the respective echography, and the methods used for the termination of pregnancy and its possible consequences for her physical and psychic health.
A «period of reflection» only makes sense, in my understanding, if before or during that period, the pregnant woman can access the maximum of information about an action the consequences of which are always irreversible. And her decision will only be free and clearly defined if based upon all the information available on this specific issue.
On the other hand, it seems extremely important that the physician, who will have to judge the woman’s capacity to give a knowledgeable consent, may question her upon the motive which led her to terminate the pregnancy, without any resulting constraint as to her freedom of decision.
It also seems reasonable that the male parent could attend the obligatory consultation and the psychological and social follow-up during the period of reflection, should he so wish and should the woman not oppose it, without prejudice of the final decision belonging exclusively to the woman.
It is equally advisable that the woman is made aware of the possibility of the child being placed for adoption, as considered in the information made available regarding the supports that the State can provide for the pregnancy to go ahead, in the terms of item b) of paragraph 2 of Article 2 of this Law.
This information must be effectively and definitely conveyed, not just as a mere formality, but include all available data that will clearly advise the woman regarding the procedures, measures and locations of State support for pregnancy to be continued and consequent maternity.
The availability of the above referred information is something which does not contend with the woman’s freedom of decision, but is equally a very important, or even crucial, component for such a decision to be taken, whichever the final result, in the most adequate conditions – whether for the preservation of her future psychological well-being, whether for making a weighted judgement as to the conflicting interests, whether, finally, as to the irreparable consequences of the act as considered.
7. Having in mind that the psychological and social follow-up during the period of reflection which precedes the termination of the pregnancy can be provided in official as well as in officially recognized health establishments (private clinics specially dedicated to this purpose), it is necessary that the State ensures adequate control, specifically through the implementation of a system which will control the professional and ethical quality and, equally, the exemption of those entrusted with such a responsible duty.
In effect, should the establishment where the psychological and social advice is being provided be the same as where the termination of pregnancy takes place, and the Law guaranteeing the impartiality and exemption of the attending practitioners – specifically establishing that the physician who terminates the pregnancy is not the same that verifies the circumstances why it is not penalized – I consider that like safeguards must be ensured in the psychological and social follow-up, especially when the termination of the pregnancy takes place in a private clinic.
Apart from this, the State must not discharge itself from setting up a public network for psychological and social follow-up, for the women who require it, or from supporting such actions performed by private non-profit institutions.
8. Apart from the regulatory plan, the exclusion of the professional practitioners who declare themselves as conscientious objectors, as established in paragraph 2 of Article 6, seems to be based on a non-proven presumption, which could also eventually be taken as damaging to the professional ethics of physicians, that these would tend to overlap the limits imposed by law and, apart from advising the woman, would endeavour to condition her or even pressurize her to opt for continuing the pregnancy.
It does not appear that the declaration of conscientious objection to the termination of pregnancy would constitute, in itself, sufficient motive for disqualifying physicians for the practice of other actions – a consultation with an informative clinical content.
This exclusion is even more unexplainable when, in situations where there could be sufficient motive to suspect the impartiality and exemption of the providers of information, nothing was foreseen by the legislator, neither were identical concerns evinced as to the safeguard of women’s autonomy.
9. It is equally legitimate to exercise doubt if the declaration of conscientious objection by physicians and other health practitioners must be exclusively and obligatorily of a general and abstract nature – which seems out of proportion – or if it can also be made selectively, in accordance with the specific circumstances related by the woman, such as the repeated recourse to termination of pregnancy, pressure exerted by another towards the decision taken or even the sex of the embryo, which is ever earlier determinable.
10. I consider that there is a need for the rigorous determination of the limits to the arousal of urgent situations when the termination of pregnancy may take place without the written consent of the woman and without observing the minimum three day period of reflection, in the terms of paragraph 6 of Article 142 of the Penal Code. This issue has now an accrued relevance with the non-penalization of the termination of pregnancy, as an option of the woman, within a ten week period.
11. Since the termination of pregnancy is a social evil to be avoided, as was anyway agreed by all who took part in the campaign for the referendum, it would be anomalous if the authors of the legislation did not take measures to restrict or discipline the commercial publicity offering services for the termination of pregnancies.
As such, similarly to what was done in respect of other social evils, publicity which favours the generalized and systematic practice of termination of pregnancies, prejudicing family planning methods, access to which the State must promote and which, in the terms of this Law, is bound to transmit to the woman, must be proscribed.
12. Equally, in the case of family planning, the State is, especially now, more than ever bound to undertake an adequate policy of responsible sexuality and supporting the birth rate.
13. I noted the progress registered in the sense of approaching the contents of the legislation to the solutions contained in most of the European laws covering this issue, through the proposal of alterations presented to the Full Session of Parliament on March 8, which established that a woman who was regarding the termination of pregnancy had to be advised as to «the conditions of support that the State must provide in favour of continuing with pregnancy and maternity».
14. I also consider that, if these legislative procedures had benefited from deeper thought and preparation, it would have been possible, and obviously desirable, that a greater political consensus could have been found, with clearer solutions for issues which seem to be extremely relevant, some of which have been exemplified above.
After it comes into force, it should be possible to verify, in practice, if this Law effectively contributes towards a decrease in clandestine abortions as well as in general abortions, which implies an assessment of the results of this law by the legislator within a reasonable period.
15. Notwithstanding, Decree No. 112/X, approved by a large majority, contains the essential conditions for the results of the referendum which took place on February 11, 2007, to be complied with.
Further to this, the improvements introduced during the parliamentary debate, should the above comments be taken into consideration, are a step towards reconciling the freedom of women and the protection of intrauterine human life, a value which the Portuguese State cannot, in any way, relinquish.
Lisbon, April 10, 2007
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