The Day of the Unborn Child and Free Abortion

Ours is a country full of contradictions, some of them very serious, such as the one to which this article is dedicated. Of course, the main contradiction lies in the comparison between what we could be (because of our natural wealth, geographical position, educational and cultural assets), and what we are, or rather, between our potential situation and our real situation.

But we want to dedicate these paragraphs to the issue of decriminalization of abortion (law 27610), which, in reality, is not only decriminalization but also official promotion of abortion practice.

Let's look at the contradictions. By decree 1406 of 1998, which remains in force, the Argentine Republic declared March 25 of each year as “Day of the Unborn Child” (art. 1), following the ancient expression “nasciturus” that Roman law used to designate the human being from the moment of conception until birth. This was reflected in our historic Civil Code, drafted by Vélez Sarfield, in force until 2015: “Unborn persons are those who have not been born are conceived in the mother's womb” (art. 63). The current Civil and Commercial Code reiterates the same idea: “Beginning of existence. The existence of the human person begins with conception” (art. 19), a declaration that also matters a ratification of the foundations of decree 1406/98, and of the entire legal tradition of our country.

Let us return then to decree 1406/98. Its foundation — of the institution of the Day of the Unborn Child, and therefore of the human condition of the “nasciturus” — begins by recalling the Universal Declaration of Human Rights (UN) and the Charter of the United Nations regarding “the dignity and worth of the human person and... the equal rights of all mankind”. It also refers to various international standards aimed at the protection of “children”, in particular the Convention on the Rights of the Child (UN), already declared constitutional hierarchy in the constitutional reform of 1994, citing the Preamble of that Convention: “The child, because of his lack of physical and mental maturity, needs protection and special care, including due legal protection, both before and after birth”. I insist that this text, whatever its normative value, is a constitutional criterion for the interpretation of the Convention, so much so that its law approving Argentina (Law 23849) declared that for the purposes of the Convention “a child is understood to be every human being from the moment of conception until the age of eighteen (18) years”, a norm which has been declared compulsory in respect of any State measure that is “adopted in respect of persons up to the age of eighteen” (art. 1, law 26061, “On the Comprehensive Protection of the Rights of Children and Adolescents”). Obviously, for the consideration of the legal status of a “human person” we must resort to the Civil Code, whose article 19, as we have seen, states that such personality is recognized from the very moment of conception.

The “recitals” of decree 1406/98 continue to say: “That the quality of a person, as an entity capable of acquiring rights and contracting obligations, derives from a constitutional requirement and for our Constitution and Civil and Criminal Legislation, life begins at the moment of conception.”

We insist that all these rules are, to this day, in full force. We have already seen what art. 19 of the new Civil Code states. Even the decriminalization provided by Law 27610, which is not for all cases, keeps abortion within the qualification of “Crimes against life”. Against whose life? Of the nasciturus, obviously. The important thing is that the criminal legislator placed the protection of the life of the unborn in the same “Title I”, “Crime against persons”, “Chapter I” “Crimes against life”, criminalizing abortion immediately after the crime of homicide. After admitting that the unborn and the born are carriers of the same criminally protected property (human life), the legislator of the abortion law, in the new art. 86 excluded the life of the unborn from criminal protection in all cases up to the 14th week of maternal pregnancy (the legislator instead of mother used the expression “pregnant person” and instead of pregnancy that of “gestational process”, probably because of the repulsion caused by those traditional and beloved terms (mother, pregnancy) that remind us of the precious value of women and life).

Thus, our country recognizes the humanity of the unborn throughout the pre-natal period, but legalizes his death during the first 14 weeks of his life, without any cause: during such a period it does not matter the age or health of the mother, nor whether the pregnancy resulted from rape. These grounds, on the other hand, will be important in the case of abortions after 14 weeks, but with an assessment of such a “wide sleeve” that in practice (the mere declaration of having been raped nine months ago is enough) the abortion can be carried out almost to completion, by dismembering the child and/or sucking brain, to facilitate its separation from the mother, already dead (otherwise we would have infanticide).

It should be noted that the abortion law does not repeal article 19 of the Civil Code, nor does it contradict law 23849, nor does it contradict them, in the strict sense of the term. It simply authorizes to kill (take life, cancel life, extinguish life) a being whom the rest of the legal system considers a human person, that is, a human being. It is as if a law was passed that provided. “It is not a crime to kill the person of a newborn until the 14th week from birth, with the consent of the person who gave birth (so as not to use the term “mother”, aggravating the 'progressive' feelings)...”. Such a rule — which as we will see is already underway in some countries — would not be contradicting the humanity of the newborn, it would simply be decriminalizing a certain fact. Of course, we would have a serious breach of our obligations to the international human rights system, but the same goes for the case of abortion law, which violates the terms under which Argentina pledged to respect the life of the child.

Contrary to the argument, it would not be worth arguing that the same is true in other legal systems. This is precisely what is not happening. Let's look at some examples, where free abortion, however disgusting in itself it may be in relation to the human right to life, is not dysfunctional — let's say “sperpentic” — with respect to the internal order:

-Spain: “Personality is acquired at the time of birth alive, once the complete detachment of the maternal womb has occurred” (art. 30 CC) so that abortion would not be killing a human person (from the legal perspective, if it does so from biological reality).

-Italy: “Legal capacity is acquired at the time of birth” (art. 1, CCC)

-France: does not define when the human personality begins, although in its adoption of the Convention on the Rights of the Child, unlike Argentina, it declared that one is a child from birth.

In our case, as we have seen, dysfunctionality is evident.

It is true that article 21 of our Civil and Commercial Code prescribes that “The rights and obligations of conceived or implanted in women are irrevocably acquired if they are born alive”, but this provision refers to cases of spontaneous abortion and not to induced abortion. The opposite interpretation, in addition to aggravating common sense, would even matter to authorize abortion so that, for example, the “pregnant woman” should not share with the child (whose life “interrupts”) the inheritance of the husband and father who died after conception and before birth. But the most important argument lies in the fact that, recognized by our legislation (and by the Constitution and international conventions as they have been elevated to the constitutional hierarchy) the human personality of the unborn, since its conception, the right to life is not “acquired” but simply considered the very fact of humanity: it is the most fundamental, essential and intrinsic of rights. On the basis of life, other rights can be acquired, without life no rights are acquired (after death), so life is not acquired (it has no previous budget or basis) but is possessed, and human life is possessed since there is the concrete and individual human person.

The above considerations show the, for our system, the inconsequences and legal inconsistencies of abortion law, but the shock is notably worse from the biological reality of the future.

Such is the ideological fanaticism of which abortion suffers that it even leads them to ignore the data provided by medical science. From the very moment of conception, the unborn enjoys its human DNA, personal, individual, which will accompany it, and identify it individually, until its death. Since the sixth week she has had an audible heartbeat, which has led some legislation to ban abortion since that time, as happened on March 11 in the state of Texas. However, blood circulation starts before it is audible. The “peristaltic waves” (movement) of the heart in formation take place by day 22 of gestation and the beginning of blood circulation by day 25.

But abortism is indifferent to these facts of reality; thus they criticize legislation that prohibits causeless abortion by hearing the heartbeat of the nasciturus, because it hinders the practice of abortion, without pausing to consider whether such a measure is not positive in the face of the universal requirement for protection of human life.

Moreover, some legislators in the state of Maryland have decided to escalate in the horror of the practice, in anticipation of a possible imminent reversal of the “Roe vs. Wade” ruling that led to the legalization of abortion in the United States in 1973. Thus, on February 4, they presented a bill (SB669) that seeks to prohibit investigations and/or criminal lawsuits for mothers and health professionals in the face of an “omission” in relation to a “perinatal” death. Medicine defines the “perinatal” period (maliciously used in the project) that elapses between the 20th week of pregnancy and 1 to 4 weeks after birth (ambiguous term). Thus, a baby born either sick or healthy, could be abandoned and left to die up to potentially 28 days after birth without punishing those who participated in that filicide and infanticide.

On March 25, we will celebrate the “Day of the Unborn Child”, which is also an affirmation, in these times of war, of the sacred value of all human life.

Rodolfo Barra was a judge of the Supreme Court of Justice

Fernando Secin is a urologist , oncologist and teacher

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