Three knots tie the bill that decriminalizes abortion for rape in Ecuador

The bill that guarantees the right to abortion in the event of rape has three critical knots and these are related to the requirements, temporality and conscientious objection.

The report for the first debate on this project has not yet been approved by the Justice Commission of the National Assembly and the term of six granted by the Constitutional Court, for its approval, expires on December 28.

The Constitutional Court, on April 28, 2021, gave the Ombudsman’s Office two months to draft a bill that regulates abortion for rape in Ecuador. That body presented its proposal to the Assembly on June 28 that includes 49 articles, and from that date they have six months for the legislature to approve the Law, according to the constitutional ruling.

National Assembly begins processing the bill that decriminalizes abortion for rape in Ecuador

Punctually, The Constitutional Court determined that paragraph 2 of article 150 of the Comprehensive Organic Criminal Code (COIP) is unconstitutional, which criminalized abortion for rape, since it only allowed the interruption of pregnancy to women with mental disabilities who had been raped.

With the approach formulated by the Ombudsman’s Office, the voluntary interruption of pregnancy as a result of rape is guaranteed as a right of women and people with the capacity to bear child.. Texts are incorporated that establish the most specific rights and guarantees that exist for pregnant people, taking into account the vulnerabilities to which they may be subject and their age, socioeconomic and human mobility disability, and even if they are deprived of liberty. .

The State is obliged to provide comprehensive care that guarantees timely and effective access to health and justice services. Health workers should not submit to legal requirements that could imply obstacles and barriers to access for pregnant people who wish to interrupt their pregnancy.

Alejandro Jaramillo (ID), president of the Justice Commission of the legislature, explains that on September 30 the appearance phase was closed and that throughout the process they received observations from more than 35 sectors belonging to feminist groups, pro-life, civil society, experts, doctors and public officials. After the holiday of November 2, the table will meet to approve the report that will be known to the plenary session.

Critical knots

One of the critical points is the temporality, that is, until what month of gestation can a pregnancy be interrupted by rape without it being penalized, since the bill presented by the Ombudsman’s Office does not include deadlines.

Jaramillo says that this is what they are working on to find a consensus among the members of the commission. Personally, he does not want to anticipate his criteria, however, he emphasizes that his political party of the Democratic Left is feminist and that means always being in favor and defending the fulfillment of women’s rights.

Regarding conscientious objection, which is the second critical issue, the Ombudsman’s Office proposes that the doctor cannot be forced to intervene to interrupt a pregnancy in the event of rape, but that right to conscientious objection cannot prevent access to abortion, so the State must guarantee the referral of the victim to another medical team.

The persistence of these critical knots and the lack of consensus led Pachakutik legislator Ricardo Vanegas to present on October 19 a draft organic law for the harmonization of the protection of human life after conception with the decriminalization of consensual abortion in rape case, which in his opinion solves the problem of temporality because he proposes that pregnancy can be interrupted up to the fifth week or until the first heartbeat, which is a scientific medical criterion.

He warns that in the project that is discussed at the Justice table, it is proposed that pregnancy can be interrupted even up to the ninth month, and that would be a feticide, assures Vanegas, because if she interrupts the pregnancy after five weeks it constitutes a crime because she is a formed child.

In conscientious objection, Vanegas notes, no doctor who operates can be forced to interrupt a pregnancy in case of rape, but it must be implemented in the law that in places where there is no other doctor, in those cases, he has to to intervene.

Regarding the requirements, which is the third critical knot, in order to access the interruption of the pregnancy, the invisibility of the sexual offender must be observed, according to the national legislator, it cannot be said that they have been violated, when the intention of the Ecuadorian criminal law It is to identify the sexual aggressor and apply a sanction, since generally the aggressors are in the family environment.

It proposes that in order to access non-punishable abortion in the event of rape, certain requirements must be observed, such as having a complaint for rape against the aggressor of the victim presented to the competent authorities; statement of the victim under oath before the Prosecutor’s Office on the facts that constitute the crime of rape and the identity of the aggressor, if known; and, comply with the three stages of informed consent.

For Jaramillo, the Vanegas project has to follow the regular process, that is, be qualified by the Legislative Administration Council (CAL), and if it meets all the requirements, it will go to the Justice Commission, and in accordance with the observations that are presented in the first debate, all assembly members can present their observations.

Fausto Jarrín, delegate of the Union for Hope bench before the Justice tableHe points out that they have not yet reviewed the texts, that he knows that there is a project presented by Vanegas and the one that is discussed in the commission. When the debate is opened at the commission level, he says that he will be able to have a broader clarity and determine whether or not they coincide with the project of the Ombudsman’s Office and the work carried out at the table.

Antagonistic positions

From the organization Provida Familia Ecuador, Martha Cecilia Villafuerte, warns that there are contradictions both in the proposal presented by the Ombudsman’s Office and the bill by legislator Vanegas.

Faced with conscientious objection, this sector is concerned that administrative sanctions will be imposed on doctors who oppose the practice of an abortion and other alternatives are not opened through the ethics committee.

Regarding the requirements, Villafuerte considers that the complaint is essential to go after the aggressor, since there are testimonies of violence where the aggressor leads her to abort and return home because they live together or within the family circle. The law in formation, adds the spokeswoman, should motivate the aggressor to report it and prevent him from returning to his victim again.

Regarding temporality, the director of Familia Ecuador affirms that they are defenders of life from conception to natural death, therefore, they are against abortion; so it is very difficult for this sector and quite contradictory to propose a temporality to perform abortion for rape. What they have done are contradictory, such as strengthening the adoption process and proposing a program of isolation and comprehensive protection of the victim.

In the opinion of this sector, abortion does not do justice against the first crime, which is rape, therefore it considers that solutions should be sought against rape and not with a newly conceived third party, innocent who is not to blame for the way he was conceived.

Virginia Gómez de la Torre, from the Desafío Foundation, one of the promoters of the lawsuits before the Constitutional Court, states that the law must be based on ethics and dignity, where respectful and dignified access to service is promoted in women , and this has to do with a process that is not cheating, that there are no obstacles to give way to the termination of pregnancy due to rape.

Regarding temporality, Gómez de la Torre maintains that the law should not have time, because not all women will be able to reach a deadline, since a woman is raped from the beginning to the end of a pregnancy; This does not mean that women are considering aborting late in pregnancy.

He questioned the proposal of Assemblyman Vanegas, to establish the heartbeat as the limit or the five weeks of gestation, since Virginia Gómez assures that this approach is what she seeks is that “the therapeutic abortion is slyly repealed.”. Behind what the Pachakutik legislator proposes there is an intention that is the repeal of abortion for rape, which would be unconstitutional and against rights, he says.

Regarding conscientious objection, it is a constitutional right, but it is a personal matter for those who carry out the procedure, and the State must guarantee that there are no objectors in this process.

Likewise, Gómez de la Torre questions that the law seeks to establish a prior report of rape as a requirement to access the termination of pregnancy, and that what will motivate is to go to the clandestine abortion, because many women are ashamed to say that they raped her. Demanding requirements what they do is obstruct the law. (I)