I. GENERAL PROVISIONS OFFICE OF THE HEAD OF STATE 3514 Organic Law 2-2010 of March 3 on Sexual and Reproductive Health and Voluntary Termination of Pregnancy JUAN CARLOS I KING OF SPAIN To all whom this may be seen or known: Know Ye: That the Legislature has approved and I have given assent to this Organic Law. PREAMBLE I Sexuality and procreation are directly connected to human dignity and to the right to personal growth and development. These entitlements are protected by several fundamental rights, namely those guaranteeing physical and moral integrity and family and personal privacy. Whether and when to have children is among the most personal and private decisions individuals can make. It is also a decision falling completely within the realm of self-determination. Governments are required not to interfere with them and to provide conditions, including counselling and health services, for these decisions to be made freely and responsibly. Protection of this aspect of personal freedom has special significance for women, whose lives are profoundly affected in every way by pregnancy and motherhood. The special connection between women’s rights and sexual and reproductive health is noted by many international instruments. Within the United Nations system, article 12 of the Convention on the Elimination of All Forms of Discrimination Against Women adopted by General Assembly Resolution 34/180 of 18 December 1979 establishes that “States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning”. The Beijing Platform for Action adopted at the Fourth World Conference on Women held in 1995, recognizes that “The human rights of women include their right to have control over and decide freely and responsibly on matters related to their sexuality, including sexual and reproductive health, free of coercion, discrimination and violence”. Within the European Union, European Parliament Resolution 2001/2128(INI) on sexual and reproductive health and associated rights makes several recommendations to Member States on issues of contraception, unwanted pregnancy, and sex education. These recommendations were based, inter alia, on the huge inequalities experienced by European women in terms of access to reproductive health services, contraception and abortion according to their income or country of residence. The Convention on the Rights of Persons with Disabilities of 13 December 2006, ratified by Spain, requires States Parties to ensure that “The rights of persons with disabilities to decide freely and responsibly on the number and spacing of their children and to have access to age-appropriate information, reproductive and family planning education are recognized, and the means necessary to enable them to exercise these rights are provided” and to ensure that these persons “retain their fertility on an equal basis with others”. This Law seeks to adapt the Spanish legal system to the international consensus on these issues by updating public policy and introducing new sexual and reproductive health services. The Law is based on the conviction, validated by current scientific knowledge, that offering adequate reproductive and sex education, ensuring universal access to effective family planning by incorporating state-of-the-art contraceptives to the roster of services offered by the National Health System, and making sexual and reproductive health programs and services available, are the most effective ways to prevent sexually transmitted infections, unwanted pregnancies and abortions, especially among young people. This Law addresses the protection and defense of sexual and reproductive health rights in a comprehensive manner. It introduces into the Spanish legal system the definitions on sexual and reproductive health adopted by the World Health Organization and provides for the adoption of a range of both health- and education- related measures and steps. Consistent with the views prevailing in politically and culturally like countries, the Law strikes voluntary termination of pregnancy from the Criminal Code with a view to more adequately guaranteeing and protecting the rights and interests of both pregnant women and prenatal life. II The foremost duty of legislators is to make the law consistent with the values of society. Legislators must also ensure that law reforms provide certainty and security, as freedom can only thrive on the firm ground of clear, precise legislation. Such is the spirit behind these new regulations on voluntary termination of pregnancy. A quarter century ago, legislators partly decriminalized abortion in an effort to address the social problem posed by unsafe abortions that seriously threatened women’s lives and health. They did so after taking stock of the majority consensus on the relevance of women’s childbearing rights. Resulting Criminal Code reforms made strides by providing women with access to legal, safe abortions upon the occurrence of any one of several events contemplated in the law, including serious risk to the their life or physical and mental health, when pregnancy resulted from rape, or when the fetus was malformed or mentally disabled. However, application of the law led to uncertainty and practices detrimental to legal certainty, with serious consequences to both the security of women’s rights and effective protection of the concerned legal interest. These practices, contrary to the spirit of the law, tended to create a predicament for the health care providers entrusted with providing the medical services required to terminate a pregnancy. The need to reinforce legal certainty in reference to regulations on the voluntary termination of pregnancy was emphasized by the European Court of Human Rights in a 20 March 2007 decision stating that “in such situations the applicable legal provisions must, first and foremost, ensure clarity of the pregnant woman’s legal position”. It also added that “Once the legislature decides to allow abortion, it must not structure its legal framework in a way which would limit real possibilities to obtain it.” In a free, pluralistic and open society it is the role of the legislature, within the range of options allowed under the Constitution, to adapt fundamental rights to the prevailing values and the needs of the day. Application of the law, growing social and legal recognition of women’s autonomy in the private and public domains, and prevailing legal trends in like countries all speak in favor of clearly regulating voluntary termination of pregnancy with a view to adequately protecting both women’s autonomy and prenatal life. The Parliamentary Assembly of the Council of Europe, in Resolution 1607 of 16 April 2008, reaffirmed the right of all human beings, in particular women, to respect for their physical integrity and to freedom to control their own bodies. The Assembly asserted that in this context the ultimate decision on whether or not to have an abortion should be a matter for the woman concerned, and invited member states to decriminalize abortion within reasonable gestational limits. This new Law takes especially careful account of the constitutional doctrine laid out in the decisions of the Constitutional Tribunal. In Decision 53/1985, the Tribunal, though often divided on substantive questions, did lay out certain principles that were subsequently validated by jurisprudence and which served as benchmarks for this law. One of these principles is that the competing rights and interests involved in regulating voluntary termination of pregnancy are not absolute. As such, the legislature must “balance the protected legal interests and rights at hand and attempt to harmonize them if possible, or if not, spell out the conditions and requirements for one of them to prevail” (CTD 53/1985). Although “the system of laws does not consider the unborn as citizens entitled to the fundamental right to life guaranteed under article 15 of the Constitution”, this is not meant to deprive them of all constitutional protection (CTD 116/1999). Prenatal life is a legal interest deserving of protection. While it is the role of legislators to extend such protection, they must not overlook the fact that the manner in which protection is configured and implemented is always contingent on guaranteeing the fundamental rights of pregnant women. Based on the doctrine in CTD 53/1985 and the qualitative changes undergone by prenatal life during pregnancy, legislators weighed the facts and attained practical concordance between the conflicting rights and interests through a system of gradual protection. This Law recognizes the right to freely decide whether and when to have children. This implies, inter alia, ensuring that women can make conscious, responsible decisions as to whether to carry a pregnancy to term, and that these decisions are respected. Based on expert opinion and comparative law, legislators considered it reasonable to allow a period of fourteen weeks in which to guarantee the right of women to make an informed decision about termination of pregnancy, free from interference. This concept, referred to in CTD 53/1985 as “conscious self- determination”, considers that decisive third-party intervention to shape a pregnant woman’s will provides no significant guarantees to the fetus while needlessly restricting the right to personal growth and development protected under article