(May 25, 2018) In September 2017, the Chilean National Congress passed a new law permitting abortion in some circumstances. (Ley 21030 que Regula la Despenalización de la Interrupción Voluntaria del Embarazo en Tres Causales [Law 21030 Regulating the Voluntary Interruption of Pregnancy on Three Grounds], DIARIO OFICIAL, Sept. 23, 2017, Library of the National Congress website.) Before the new law, abortion was illegal in all circumstances. The Law allows the voluntary interruption of pregnancy, with the woman’s previous written consent and a physician’s diagnosis, only on the following grounds:
- There is risk to the life of the mother.
- The fetus is unviable.
- The pregnancy resulted from rape and no more than 12 weeks of gestation have passed (14 weeks in the case of a girl under 14 years of age). ( art. 1.1.)
Provisions of the Law
The woman’s consent is not required when her condition does not allow her to express her will and it is impossible to obtain the consent of her legal representative, and her health condition is critical. (Id. art. 1.1, para. 2.)
If the woman has been declared judicially disabled by a judge, her legal representative’s consent is required. If she has not been declared judicially disabled, alternative means of communication are to be provided in order for her to render consent. (Id. art. 1.1, para 3.)
If the mother is a girl fourteen years or younger, in addition to her consent, the consent of her legal representative is required. In case the legal representative refuses consent or is not available, the judge may verify the grounds for the abortion and must make a decision on the petition for termination of pregnancy within forty-eight hours after the petition was filed. (Id. art. 1.1, para 4.)
Judicial authorization is not necessary if the life or health of the girl or incapacitated woman is at risk. (Id. art.1.1, para 5.)
In the case of an abortion performed on grounds of the unviability of the fetus, two specialist physicians’ diagnoses are also required. (Id. art. 1.2, para 2.)
A woman considering an abortion on these three grounds has the right to get support before and after the procedure. Such support includes hospitality, medical and psychological assistance, and health information pertinent to the procedure. (Id. art. 1.1, para 11.)
Physicians and their assistants may abstain from performing the abortion on the grounds of conscientious objection, in which case the medical establishment must refer the patient to another physician who does not object. (Id. art. 1.3, para 1.)
A woman who causes her own abortion or consents to another person performing it outside of the three allowed grounds is subject to imprisonment of three years and one day to five years. (Id. art. 2.) If she does it to protect her honor, the sanction is imprisonment of 541 days to three years. (Id.)
Protocol on Conscientious Objection
On January 22, 2018, the Ministry of Health issued Resolution 61, enacting a protocol on conscientious objection applicable in the three cases of abortion allowed under Law 21030. (Resolución 61, Ministerio de Salud, Aprueba “Protocolo para la Manifestación de Objeción de Conciencia Personal y para la Objeción de Conciencia Invocada por Instituciones en el Marco de lo Dispuesto en el Artículo 119 Ter eel Código Sanitario” [Resolution 61, Ministry of Health, Approves “Protocol for the Declaration of Personal and Institutional Conscientious Objection Within the Framework of Article 119 Ter of the Health Code”], DIARIO OFICIAL, Jan. 27, 2018.)
Under the Protocol’s conscientious objection clause, medical professionals may refuse to perform abortions if doing so violates their religious or moral beliefs. (Law 21030, art. 3.) If they object, they must then refer the woman or girl to a medical professional who does not object. (Id.)
The Protocol allows not only individual medical professionals but also medical institutions as a whole—both public and private ones receiving public funding—to raise their conscientious objection. (Ministerio de Salud, Protocolo de Objecion de Conciencia, Jan. 2018, at 10.)
Opponents of the measure have argued that institutions receiving public funding should not be allowed to raise conscientious objections. (Organizaciones Llaman a Manifestarse contra el Cambio de Protocolo de Objeción de Conciencia en Ley de Aborto 3 Causales, EL MOSTRADOR (Mar. 26, 2018).)
In reviewing the Protocol, the Comptroller General declared the Protocol illegal because those institutions receiving public funding may not raise conscientious objections to performing a legal abortion as they are required to provide free and equal access to health to all people. (Juan Peña, Reves para el Gobierno en Aborto: Contraloría Declara Ilegal Cambios al Protocolo de Objeción de Conciencia, EL MERCURIO (May 9, 2018).)