ABORTION

The crime of abortion is regulated in arts. 144 to 146 of the Penal Code and there are the following modalities:

1. First, Art. 144 of the Penal Code provides for the fact of producing the abortion of a woman without her consent or when such consent is obtained by using violence, threat or deception. The penalty associated with this crime is a prison sentence of 4 to 8 years and special disqualification to practice any health profession or to provide services in gynecological clinics, for a period of 3 to 10 years.

145. Secondly, the Penal Code punishes a person who causes the abortion of a woman, with her consent, outside the cases permitted by law (art. 145.1). The penalty to be imposed in this case is less: imprisonment from 1 to 3 years and special disqualification from 1 to 6 years, which shall be applied in its upper half if the acts are performed outside an accredited establishment.

Likewise, a woman who causes her own abortion or consents to another person causing it, outside the legally permitted circumstances, is punished with a fine of 6 to 24 months. This penalty is imposed in its upper half if the abortion occurs beyond 22 weeks of gestation.

In order to assess the possible commission of this type of crime, it is essential to know the regulation of abortion in Spain, which is currently provided for in Organic Law 2/2010 of March 3 on sexual and reproductive health and the voluntary interruption of pregnancy. The aforementioned law allows pregnant women to freely terminate the pregnancy within the first 14 weeks of gestation. Since then, termination of pregnancy is only allowed in two exceptional cases:

1. Up to 22 weeks of gestation, if there is a serious risk to the life or health of the pregnant woman or if there is a risk of serious anomalies in the fetus.
2. Without time limit, when fetal anomalies incompatible with life or extremely serious and incurable diseases are detected in the fetus.

Abortion practiced outside of the indicated assumptions may generate criminal liability both for the person who performs the abortion and for the pregnant woman herself.

1. Thirdly, the practice of abortions in breach of some of the legally stipulated obligations is punishable (art. 145 bis of the Penal Code). Specifically, in the following cases:
2. When it has not verified whether the woman has received prior information on the rights, benefits and public aid for maternity support.
3. If the legally required waiting period has not elapsed.
4. If it does not have the required prior opinions.
5. If practiced outside an accredited facility or center.

In this modality, the pregnant woman is never punished.

1. Finally, Art. 146 of the Penal Code punishes a person who causes an abortion through gross negligence with a prison sentence of 3 to 5 months or a fine of 6 to 10 months. If the abortion is committed by professional negligence, the penalty of special disqualification from the exercise of the profession, office or position is imposed for a period of 1 to 3 years.

In this case, the pregnant woman is not penalized either.