Protection of the fundamental right to life from conception

1. The Constitution and non-criminal legislation understand the existence of life from the moment of conception.

Article 66, numeral 1 of the Constitution of the Republic guarantees the right to the inviolability of life, and article 45 of the same fundamental charter recognizes and guarantees life from the moment of conception: Art. 45.- Children and adolescents shall enjoy the common rights of human beings, in addition to those specific to their age. The State shall recognize and guarantee life, including care and protection from conception. (emphasis added)

The Civil Code itself, in its article 61, establishes that the State, through law, protects the life of the unborn. This legal mandate is a direct consequence of the guarantee of life and protection of the fetus from the moment of conception.

Article 20 of the Childhood and Adolescence Code recognizes the right to life of children and adolescents from the moment of conception and orders the State to ensure, by all means available, their survival and development; this implies an obligation for the State to protect the life and rights of the unborn child in the mother's womb after conception.

The aforementioned provision of the Organic Code of Childhood and Adolescence also prohibits experiments or genetic manipulations from fertilization of the egg until birth; or the practice or performance of any technique that endangers their life or affects their integrity or integral development. This provision must be understood in conjunction with article 148 of the same Childhood and Adolescence Code, which recognizes a woman's pregnancy from the moment of conception.

Consequently, the Ecuadorian State, by virtue of the mandate contained in article 45 of the Constitution of the Republic in concordance with article 61 of the Civil Code, has the obligation to protect the life of the unborn. It must be understood, by literal interpretation of the transcribed provisions, that the life of the unborn begins at the moment of conception, a stage from which the right to life and its protection by the State already arise.

The Constitutional Court, in case number 0014-2005-RA of May 23, 2006, has stated: TENTH.- There is no specific provision in the Ecuadorian legal system that defines when conception occurs. However, Article 20 of the Childhood Code gives us a guideline, as it guarantees the right to life from conception, and in the second paragraph it states that medical manipulations from fertilization of the egg are prohibited. In any case, this Chamber, aware of all the scientific and social debate, cannot assert that conception occurs from fertilization of the egg, but it cannot be sure of the opposite either. That is, in the analysis of this matter, a reasonable doubt has been generated that obliges us, in our capacity as constitutional judges, to interpret the norm contained in Article 49 of the Constitution, with a scope in favor of the person and the right to life, by virtue of the second paragraph of Article 18 of said Constitution, which states: In matters of constitutional rights and guarantees, the interpretation that most favors their effective validity shall be followed. No authority may demand conditions or requirements not established in the Constitution or the law for the exercise of these rights. This is about applying the universal principle of in dubio pro homine, that is, in case of doubt, one must rule in favor of the person.

The invoked constitutional provisions, although not belonging to the current Constitution, are in harmony with current provisions, and therefore the ruling issued by the Constitutional Court is perfectly valid and applicable to the present day. Thus, article 11 of the current Constitution establishes:

3. The rights and guarantees established in the Constitution and in international human rights instruments shall be directly and immediately applicable by and before any public, administrative or judicial servant, ex officio or at the request of a party. For the exercise of constitutional rights and guarantees, no conditions or requirements not established in the Constitution or the law may be required. Rights shall be fully justiciable. Lack of a legal provision may not be alleged to justify their violation or disregard, to dismiss an action based on those facts, or to deny their recognition.

4. No legal provision may restrict the content of rights or constitutional guarantees.

5. In matters of constitutional rights and guarantees, public, administrative or judicial servants shall apply the provision and interpretation that most favor their effective validity.

The foregoing means that in case of doubt, the right or guarantee that most favors the protective purpose of the legal provision must be applied, and in the case under analysis, evidently the right to life from conception prevails over any other that may conflict, such as the right to dignity. This interpretation must be made based not only on the cited provision but also on the mandate of article 427 of the same Constitution, because the interpretation that most favors the full validity of the conflicting rights, according to the literal constitutional interpretation, is the right to life, which, by the very recognition of the supreme norm, begins its existence at conception; therefore, the legislator's obligation is to comply with the constitutional norm that obliges the protection of the fetus in the mother's womb from the moment of conception.

Thus, this obligation arising from the supreme norm cannot be subjected to the interpretations of the Inter-American Court of Human Rights, which has interpreted numeral 1 of article 4 of the Inter-American Convention on Human Rights in a manner unfavorable to the right to life from conception, arguing that the fetus cannot be considered a person and therefore lacks legal recognition and protection; however, both our Constitution and the Childhood and Adolescence Code refer to the fetus as the beginning of the human being and therefore grant it strict care, recognizing its right as a person from the moment of conception. Consequently, in the event of a conflict between the supranational norm and the Constitution, the same interpretation of the right to life from conception as recognized in Ecuador must evidently prevail.

2. Necessity of criminal protection of the legal right to life from the moment of its legal birth: conception.

When Ecuador, under the current Constitution, adopted a Social State of Rights and Justice, its legal system became regulated by the mandates and guarantees pre-established by the Fundamental Charter. In other words, principles were established that frame the fundamental rights of citizens, and consequently, it identified the legal rights that the domestic legal system must protect. This protection must be governed by the principles of criminal policy that justify the intervention of criminal law over those legal rights. Therefore, they would become criminally protected. These principles are: subsidiarity, ultima ratio or minimal criminal law, fragmentation, harmfulness, proportionality.

Therefore, only after evaluating human conduct from a criminal policy perspective can it be considered justified, both for the criminalization of acts and for their decriminalization. The principle of subsidiarity teaches that the application of criminal law is justified only when necessary. Necessity is measured when the non-criminal legal system is insufficient to protect the legal right that the Constitutional norm orders to protect. So, to understand when the protection of non-criminal provisions is insufficient, it is necessary to apply the principle of harmfulness, which teaches that any act contrary to law will be harmful, but not all harm can be adequately protected by common law. In that sense, harmfulness must be understood as material unlawfulness, not seen from the single perspective of criminal law or the type, but according to its ability to seriously threaten legal rights. That is, the harm must be measured in terms of the social impact it may produce, and this, in turn, will justify criminal punishment of the conduct. Even within criminal law itself, this rule would have the critical capacity to defend impunity in certain cases, even where a legal provision exists; thus, in cases of criminalization of conduct without sufficient impact on social life, or of insignificance of the offense committed. In the latter case, those conducts lacking minimal significance are not sufficiently relevant to involve criminal law. Under this rule, it would be inappropriate to punish minimal cases even if the conduct formally matches a legal description.

On the other hand, the principle of fragmentation of criminal law establishes that conduct must be criminally sanctioned in proportion to the harm it causes, which marks the need for intervention of ius puniendi. For this, it must be assessed whether the rest of the legal system is insufficient to protect legal rights. In that case, they would become criminally protected.

Thus, what have been called crimes against life protect human life and integrity in all its extension, that is, from gestation in the womb to death.

Our legislation establishes a single exception to the principle defended. Thus, the only justified reason to proceed with an abortion is when the mother's life or health is in danger. This exception is correct, because in such a case, the right of the one with greater survival probability must be weighed. In that sense, since the mother has greater physical capacity to survive, the State must protect the mother's right over that of the unborn child in her womb.

From a legal concept, abortion must remain a criminally condemned conduct, except where the mother's right to life prevails in case of medical risk. As stated, that is the supreme legal right recognized by the Constitution. For this reason, numeral 1 of article 66 of the Magna Carta determines: The right to the inviolability of life. There shall be no death penalty.

That said, the recognition of the right to life cannot be diminished or overridden by any other right, such as human dignity. Even less so by an interpretation of the Inter-American Court of Human Rights that contravenes a constitutional mandate. Abortion is such a serious conduct that the material unlawfulness referred to is preventing the right to life. In that sense, harmfulness consists of interrupting the exercise of a fundamental right that human life has from the moment of conception. Therefore, it is irrelevant whether fertilization has occurred and implantation in the uterus has not taken place for the State to fulfill its duty of legal protection, which includes ensuring the development of intrauterine life until birth.

Decriminalizing abortion certainly does not mean legalizing it. However, due to the principles of subsidiarity and fragmentation, the intervention of criminal law is necessary because the non-criminal legal system is not suitable for ensuring respect for the right to life of the unborn. This assertion leads us to conclude that eliminating this prohibited conduct would mean non-compliance with the constitutional mandate of the right to life, legally recognized from conception.

It might be said that keeping abortion as a punishable conduct would be an example of symbolic criminal law. This would mean that it would be a mere act of enacting provisions clearly intended not to be applied. However, reality shows us otherwise. The social relevance caused by the discussion of its decriminalization is a recognition that the right to life of the unborn would be left unprotected. Therefore, all those women who wish to have an abortion would engage in an illegal act but one that is difficult to punish, which reaffirms the need to keep such conduct criminalized. That is, without a criminal type that protects the life of the unborn, those who perform abortions, despite the illegality of the act, would go completely unpunished.