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Belgium: Proposed Amendment on Removal of Abortion from Penal Code

(Aug. 23, 2018) On August 1, 2018, the Justice Commission of the Belgian Chamber of Representatives adopted a bill introduced by representatives of the Ecolo-Groen opposition party that would remove abortion from the Penal Code and place relevant provisions in a public health law. (Proposition de loi relative à l’interruption volontaire de grossesse (1er août 2018) [Bill Regarding Voluntary Termination of Pregnancy (Aug. 1, 2018), Chamber of Representatives website.)

 Background

Abortion is legal in Belgium if performed within specified conditions, but remains a criminal offense if those conditions are violated. (CODE PENAL [PENAL CODE] arts. 348–352.) Article 350 of the Penal Code begins by stating that a person who by any means “has carried out an abortion for a consenting woman shall be sentenced to imprisonment for a term of three months to a year and fined one hundred to five hundred Euros [about US$114.36 to $572],” before stating the conditions under which abortion is legal. (Id. art. 350 (all translations by author).)

The current law, adopted April 3, 1990, amended provisions of the Penal Code to authorize women who are “in a state of distress” to get an abortion within twelve weeks of conception following a mandatory six-day waiting period after counseling. (Loi relative à l’interruption de grossesse, modifiant les articles 348, 350, 351 et 352 du Code pénal et abrogeant l’article 353 du même Code [Law Regarding the Termination of a Pregnancy Modifying Articles 348, 350, 351, and 352 of the Penal Code and Repealing Article 353 of the Code] (Apr. 3, 1990).)

Beyond these twelve weeks following conception, an abortion may be performed only if the pregnancy will cause serious harm to the woman or if it is certain that the unborn child has or will be born with an incurable disease, in which case the opinion of two doctors is necessary to confirm the diagnosis. (Id.)

Proposed Amendments

Belgium’s Ecolo-Groen opposition party introduced amendments to the Penal Code on July 4, 2018, following recent legislative changes adopted by France and Luxembourg. (Propostition de loi relative à l’interruption volontaire de grossesse (4 juillet 2018) [Bill on Voluntary Termination of Pregnancy (July 4, 2018)], Chamber of Representatives website.)

In France, Loi du 4 août 2014 [Law of August 4, 2014] explicitly permits abortion for “any woman who does not wish to continue a pregnancy.” (Loi n° 2014-873 du 4 août 2014 pour l’égalité réelle entre les femmes et les hommes [Law No. 2014-873 of August 4, 2014, for True Equality Between Women and Men] art. 24.) In Luxembourg, abortion-related provisions were taken out of the Penal Code, and the procedure is now governed by the Code de la santé publique (Code of Public Health). (Loi du 12 décembre 2012 portant modification des articles 351, 353 et 353-1 du Code pénal [Law of December 12, 2012 on the Modification of Articles 351, 353 and 353-1 of the Penal Code].)

The bill proposed by the Ecolo-Groen party would effectively transfer abortion-related provisions to a separate public health law and remove them from the Penal Code. It would also remove the criterion of “distress,” extend the twelve-week delay to a sixteen-week delay, and reduce the mandatory six-day period of reflection to 48 hours. (Propostition de loi relative à l’interruption volontaire de grossesse (4 juillet 2018).)

The Bill also proposes that for an abortion carried out after sixteen weeks following conception, a woman’s psychosocial situation should be considered. Therefore, “serious harm” to the woman or an “incurable disease” of the unborn child would no longer be the only factors taken into account. (Id.)

Having been adopted by the Justice Commission, the Bill still needs to be voted on by the Chamber of Representatives in a plenary session before it can be signed into law by the King of Belgium.

Reactions

Due to the current restrictions, around 500 women travel from Belgium to the Netherlands annually to have abortions performed. (Daniel Boffey, Belgium Takes Big Step Towards Decriminalising Abortion, THE GUARDIAN (May 2, 2018).) A majority in the Parliament among the opposition parties is believed to be in favor of decriminalization. (Id.)

The President of the political party Mouvement réformateur (MR), Olivier Chastel, indicated that the proposed amendments are “historic because abortion remains a fragile right that requires constant vigilance” and the reform is “in line with the ethical progress that has been achieved since the early 2000s, particularly in the [Belgian] legislature.” (Dépénalisation de l’avortement: “Une avancée libérale pour les femmes,” selon Chastel [Decriminalization of Abortion: “Liberal Progress for Women,” According to Chastel] L’AVENIR (July 4, 2018).)

Prepared by Sarah Ettedgui, Law Library intern, under the supervision of Nicolas Boring, Foreign Law Specialist.