Uruguay Court Upholds Conscience Rights of Medical Professionals

Until it was amended in 1964, the Hippocratic Oath was taken by all medical professionals around the world and included the promise, “I will give no sort of medicine to any pregnant woman, with a view to destroy the child.” hippocraticoath

In October 2012, the Parliament of Uruguay decriminalized abortion for the first trimester of the pregnancy; maintained the exception of rape for the second trimester, and allowed the exceptions for a risk to the life of mother and fetal malformation for the third trimester. Among the several components of the new law there is a mandatory five day waiting period and there must be a formal request made by the mother to a counseling panel that includes a gynecologist, psychologist, and social worker. In addition, medical professionals were not forced to perform or facilitate abortions, as conscientious objections were recognized.

Thereafter, it was up to Uruguay’s Ministry of Health to prepare an administrative decree that would offer guidelines regarding the practice of abortion. Yet the administrative decree that was later issued in 2012 by the Ministry of Health reinterpreted several components of the abortion law, including conscientious objection. In effect, according to the administrative decree, conscientious objection could only be invoked regarding the act of performing the abortion or administering a chemical abortifacient, but could not be invoked as to the preparatory and post-operative phases.

Other components of the law were also distorted by the national health agency, such as the mandatory five day waiting period. In the administrative decree, the waiting period would begin after the first consultation with any one of the three members of the counseling panel, which would could limit the possibility of the other two panel members being able to provide a thorough counseling to the pregnant woman in time before the mandatory waiting period was set to expire. Additionally, the administrative decree defined the “life of the mother” exception as unlimited in scope, thus opening the way for abortions to be performed for any alleged health reason.

These changes did not sit well with many Uruguayan physicians. In January 2013 over one hundred gynecologists-obstetricians, represented by attorneys Gianni Gutiérrez and Agustín Almonte, filed a class action court case against the Ministry of Health. The plaintiffs asserted that eleven of the forty-two articles of the administrative decree were unconstitutional, among which was the denial of the full exercise of the right of conscientious objection of medical professionals who do not want to be part of any stage of the abortion procedure.

In October 2014, the Court of Administrative Litigation in Uruguay issued a provisional measure against the implementation of the administrative decree, while it continued to study the case presented by the gynecologists-obstetricians.

In a decision published on August 20 of this year, the Court of Administrative Litigation issued its final ruling in the case in favor of the claims presented by the gynecologists-obstetricians, in seven of the eleven articles that had been challenged. According to the ruling, the ability to claim conscientious objection extends to those who work at any stage in the process of abortion, including preparatory actions (such as the preparation of instruments) and subsequent ones (such as the disposition of remains). This protection further extends to the interdisciplinary counseling committee, since it requires the medical professional’s signature for the abortion to take place. That is, a professional who makes conscientious objection will no longer be required to sign any form that enables the abortion. The court also found that the mandatory five day waiting period was to begin after the last of the three panel members provided counseling to the pregnant woman. In addition, abortion in cases of danger to the life of the mother was clarified so as not to include any health reason.

The court did keep in place the requirement that conscientious objections must be submitted in writing. The Ministry of Health wasted no time in informing the medical community not only that such documents are requested, but the ministry will also prepare a list with the names of the medical professionals who will not be part of the practice of abortion. Understandably, some have expressed concern that such a list could be used to intimidate certain members of the medical community.

Though not perfect, the decision did relieve some in the medical community. On Telemundo’s August 26 morning TV program one of the plaintiffs in the case, Obstetrician Washington Lauría, expressed gratitude for the court decision ‘because the dignity inherent in medical consultations, in the doctor-patient relationship, has been restored.’ Doctor Lauría explained that the administrative decree ‘would not allow me to talk about the life of the unborn child to the pregnant mother, to encourage her to choose life. I was not allowed to show her the ultrasound screen of her unborn child and talk to her about it. I was not allowed to talk to her about adoption. The administrative decree was a pro-abortion administrative decree.’

About Marlene Gillette-Ibern, Esq.

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