ABORTION IN ITALY and Law No. 194 of 22 May 1978 How the italian law regulated the voluntary termination of pregnancy Virginia Matteucci

ITALIAN LAW SINCE 1975  BOOK II TITLE X of italian penal code punished CRIMES AGAINST THE INTEGRITY AND HEALTH OF THE RACE  In particular, the article 546 PROHIBITED ALL ABORTIONS

ARTICLE 546 pc Whoever provides, with her consent - a woman's abortion, will be punished with reclusion from 2 to 5 years. Same punishment will be applied to the woman who gave consent to the abortion.

The only case where abortion wasn't punishable ARTICLE 54 pc: STATE OF NECESSITY ABORTION IS POSSIBLE ONLY IF THERE IS A  CURRENT and IMMINENT DANGER  MEDICALLY CERTIFIED  of a SERIOUS and IRREPARABLE DAMAGE for the woman

N.B.  CURRENT DANGER  not potential, but a PRESENT, REAL and TANGIBLE danger  SERIOUS and IRREPARABLE DAMAGE  SERIOUS or PERMANENT invalidity or incapacity or A REAL THREAT to the mother’s LIFE

TURNING POINT FOR ABORTION IN ITALY Decision of the Italian Constitutional Court (no. 27 of 18th february 1975) article 546 is UNCONSTITUTIONAL

WHY?  Because it prohibited all abortions, even if the woman had consented to it to PROTECT HER PHYSICAL, MENTAL and SOCIAL WELL-BEING because of a serious danger but not IMMINENT (so without the conditions to apply art 54 - state of necessity)

Constitutional judges said that this article was in contrast with italian constitutional principles  Art 31 Cost  The Republic protects mothers, children and the young by adopting necessary provisions.  Art 32 Cost  The Republic safeguards health as a fundamental right of the individual.

MOST IMPORTANT PRINCIPLE STATED BY CONSTITUTIONAL COURT MOTHER ’S HEALTH AND LIFE AND FOETUS ’ HEALTH AND LIFE ARE NOT AT THE SAME LEVEL

WHY? Because  Mother’s health and life are real and actual facts.  Foetus ’ life is a chance more than a fact, it’s not a concrete, fulfilled life.

LAW 194/1978  In the wake of the judgment of the Constitutional Court, the Italian Parliament adopted Law No. 194 of 22 May 1978 on the social protection of motherhood and the voluntary termination of pregnancy.

The main principle behind this law is the principle stated by Constitutional Court in 1975:  Mother’s life and foetus’ life are compared: woman’s life and health are tangible and real facts, foetus’ life is a chance.

“VOLUNTARY TERMINATION OF PREGNANCY”: HOW IS IT REGULATED?  Pregnancy and motherhood are considered in three different ways as a source of danger for mother’s health and life, in relation with the foetal developement : 1.PREGNANCY DURING THE FIRST 90 DAYS 2.PREGNANCY AFTER THE FIRST 90 DAYS 3.WHEN IT IS POSSIBILE THAT THE FOETUS MAY BE VIABLE (= foetus is able to survive outside the uterus)

VTP DURING THE FIRST 90 DAYS (ART 4 L. 194/78)  In order to practice the VTP during the first 90 days, women whose situation is such that continuation of the pregnancy, childbirth, or motherhood would seriously compromise their physical or mental health, in view of their state of health, their economic, social, or family circumstances, the circumstances in which conception occurred, or the chance that the child would be born with abnormalities or malformations, shall apply to a public counselling centre or to a fully authorized medicosocial agency in the region, or to a physician of her choice.

MAIN FEAUTURES OF THIS REGULATION : 1.It has to exist a SERIOUS DANGER FOR THE MOTHER’S PHYSICAL OR MENTAL HEALTH (Serious = reasonable, logical) 2.It’s not necessary that this serious danger is related with a SANITARY FACTOR. This danger could be caused also by ECONOMIC, SOCIAL, OR FAMILY CIRCUMSTANCES. 3.OR CIRCUMSTANCES IN WHICH CONCEPTION OCCURRED (violence, rape, incest) 4.THE CHANCE THAT THE CHILD WOULD BE BORN WITH ABNORMALITIES OR MALFORMATIONS.  It’s not necessary that these abnormalities have been diagnosed. It is sufficient that there is a reasonable chance that the foetus is going to have some abnormalities of malformations.

Why this regulation during the first 90 days?  Foetus’ life is a chance BUT it’s not A CERTAIN FACT.  During the first 90 days the termination of pregnancy isn’t too dangerous for the women  Physically and psychologically less traumatic

VTP AFTER THE FIRST 90 DAYS (ART 6 L 194/78) Voluntary termination of pregnancy may be performed after the first 90 days: a)when the pregnancy or childbirth is a serious threat to the woman’s LIFE b)when the pathological processes constitute a serious threat to the woman's physical or mental health, such as those associated with serious abnormalities or malformations of the foetus, have been diagnosed.

MAIN FEAUTURES OF THIS REGULATION :  The most important difference between this article and the 4th is that here physicists have to DIAGNOSE the pathological process that cause the SERIOUS THREAT TO THE WOMAN’S HEALTH. The main reason of this legislative provision is that here the foetus is OLDER, and the pregnancy is more likely to carry successfully to term. The abortion is more dangerous for the woman, and the foetus has more rights then in the case of abortion during the first 90 days.

VOLUNTARY TERMINATION OF PREGNANCY WHEN IT IS POSSIBLE THAT THE FOETUS MAY BE VIABLE When it is possible that the fetus may be viable, pregnancy may be terminated only in the case referred to in item a) of Article 6, and the physician performing the termination shall take any appropriate action to save the life of the foetus.  So it is possible ONLY IF the pregnancy or childbirth is a serious threat to the woman’s LIFE  Physicians have to take any appropriate action to save foetus’ life.

AND WHAT ABOUT...? PERMISSIONS  The father does not need to give his authorisation for the termination.  If the pregnant person is a under 18 years of age, she must have the consent of either parents or guardians, or the decision can be deferred to a judge.

THE PROCESS  Once the decision is made to terminate a pregnancy, the physician must issue a certificate of consent, sign it and ensure the pregnant woman signs it. Except for urgent cases, there is a seven-day period of reflection before the termination can be carried out.

THE CONSCIENTIOUS OBJECTION (art 9 L 194/78)  The possibility for any physician to refuse to performe abortions because of religious or ethical reasons.

Art 9 of L.194/78  Health personnel shall not be required to assist in the procedures referred to pregnancy terminations if they have a conscientious objection, declared in advance.  The objection may be withdrawn at any time  Conscientious objection shall exempt health personnel from carrying out procedures and activities specifically and necessarily designed to carry out the termination of pregnancy, and SHALL NOT EXEMPT THEM from providing care BEFORE and AFTER the termination.  Conscientious objection may not be invoked by health personnel if their personal intervention is essential in order to save the life of a woman in imminent danger.

IS THE ITALIAN LAW FLAWLESS?  On paper, Italy’s law on abortion seems flawless – but reality is much different.  The most obvious loophole is that of conscientious objection.  As a result, while Law 194 grants women the right to a safe abortion, doctors are also allowed to refuse performing it.

In several italian regions, conscientious objectors are 80 – 85% of the medical personnel qualified to perform abortions.

 Council of Europe raps Italy over difficulty in obtaining abortions  The Council of Europe started to analyse the italian case from a complaint done by the CGIL, Italy's biggest trade union, which said that the high number of conscientious objectors has made abortion extremely difficult for some women who want to get access to the procedure.  Women seeking an abortion are sometimes forced to go elsewhere in Italy or abroad, or bypass the authorities to get a termination.  The Council said that “these situations may involve considerable risks for the health and well-being of the women concerned, which is contrary to the right to the protection of health”

 Silvana Agatone, a 62-year-old gynecologist in Rome and the founder of L.A.I.G.A, an italian organization that provides information on how and where to get an abortion  40% of the italian public hospitals DON’T PRACTISE TERMINATIONS OF PREGNANCY, because they don’t have non-objectors doctors working there.  In most cases, non-objectors doctors are working in a negative cultural climate  A case in Campania: after a first termination of pregnancy a nurse refused to clean and sterilize medical instruments to block other abortion surgeries.  Objection’s abuse that become a real boycott

What solutions?  Minister of Health just collect data about the number of abortions  Italy should make some studies about the real abortions’ demand to see if it is satisfied or not.  Italy have to save some places for non- objector doctors to be sure to have medical personnel qualified to perform abortions in each public hospital.