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Protection of Conscience Project

Service, not Servitude
Legal Commentary

Uruguay's Voluntary Termination of Pregnancy Act

Protection of conscience provisions may be defined out of existence


Sean Murphy*

In the fall of 2012 the Uruguayan legislature passed the Voluntary Termination of Pregnancy Act, which legalized abortion in the country under certain circumstances.  By January, 2013, Reuters was reporting that the law was meeting "fierce opposition" among Uruguayan gynaecologists, with up to a third of them refusing to provide the procedure for reasons of conscience;1 in some locations, almost none will do so.2

The British Medical Journal once advised that, when legalization of a contentious medical procedure is contemplated, it would be prudent to first consider how many health care professionals are willing to assist with it.3 It is alleged that the Uruguayan government failed to do this.  "This law was produced apart from the professionals who are more or less involved directly," said one gynaecologist.  "They didn't even consult the scientific organizations of which we are members."4

Certainly, one of the expectations in the law suggests ignorance on the part of legislators that could have easily been remedied by consultation with medical professionals.  Section 2 of the Act permits abortions up to 12 weeks of gestation, but Section 6(A) states that physicians are obliged to try to "save the life of the embryo or fetus without endangering the life or health of the woman."  However, even with the best and most modern neonatal technology, an infant delivered at 22-23 weeks gestation has little chance of survival.5  Further, surgical and medical abortion techniques commonly used in first 12 weeks of pregnancy are inescapably destructive of the embryro or fetus.  Thus, the pretence that an attempt will be made to save the live of an embryo or fetus during a first trimester abortion is absurd, and becomes no less absurd when it is phrased as a legal expectation.

Much more troublesome is the conflict between Section 2 and Section 6(C).  The former states that, in order to be legal, an abortion permitted by the Act must be "performed during the first twelve weeks of pregnancy," while the latter states that abortion may be provided for up to 14 weeks gestation in the case of a rape that has been reported to the authorities.  It will probably be necessary for a court to resolve the conflict.

The current controversy draws attention to the sections of the Act that deal with protection of conscience for objecting health care workers and institutions.  Unfortunately, these parts of the Act are also problematic.

Institutional protection

Section 10 provides protection for existing health care institutions that are part of the National Integrated Health System if they had ideological objections to abortion at the time the law was enacted.  They are not required to provide abortion, but "may" reach an agreement with the Ministry of Public Health to arrange for their patients to have abortions elsewhere.  If "may" is understood to mean that such arrangements are optional, institutional freedom of conscience will not be compromised.  It will be compromised if the government intends to compel institutions to facilitate abortions by referral, even if they have moral objections to doing so.

It appears that all hospitals opened after the enactment of the law will be required to provide abortions if they are part of the National Integrated Health System.  Whether or not this will affect denominational hospitals depends upon the law governing the operation of hospitals and on the extent to which hospitals need funds that can only be obtained by becoming part of the National system.

Individual protection

Protection for individual health care workers is provided by Section 11.  The protection is much more limited than appears at first glance.  To understand why this is the case, it is necessary to take a closer look at how legal abortions are to be obtained.

Criteria for legal abortion

Leaving aside the question of whether the upper gestational limit for abortion is 12 or 14 weeks, within the legal window of opportunity a woman may seek an abortion if the pregnancy presents a "serious risk to her health" (Section 6A), if foetal diagnosis indicates a malformity incompatible with life outside the womb (Section 6B) or if the pregnancy is the result of a reported rape (Section 6C). 

However, in the case of Section 6A, everything turns upon the definition of health, and upon what counts as a "serious risk."  The Act clearly implies that socio-economic factors can be considered (Section 3).  In other jurisdictions, it has been demonstrated that the definition of "health" is so elastic that it is impossible to apply consistently.  In fact, it may be construed so broadly as to permit abortion in almost any circumstances.6  

Approval of legal abortion

A woman seeking an abortion must consult a physician with the National Integrated Health System, who must forthwith arrange for her to meet a panel of professionals.  The panel must include a gynaecologist, a mental health specialist and a social worker.  It appears that the role of the panel is to ensure that the woman is fully apprised of the available options, as well as the nature and risks of the procedure.  If she qualifies for an abortion under one of the three criteria, and if she wants an abortion, she is required to confirm her choice after a five day waiting period.  Upon confirmation, the attending gynaecologist must "immediately" arrange for the procedure. (Section 3)

Conscientious objection

Under Section 11, health care workers who object to abortion for reasons of conscience and who do not wish to be involved in providing the procedure must explicitly express their objection in advance "to the authorities of the institution in which they practise."  There is no requirement that the objection be communicated in writing, but it would be prudent to do so.

An objection made in one institution is considered to be valid in any other institution in which they work, whether public or private.  They may explicitly revoke their objection, or tacitly revoke it by becoming involved in providing the service.

Once an objection is made, health care workers cannot be compelled to be involved in any part of the abortion approval process after the five day "cooling off" period (i.e., in recording the confirmation of a woman's choice for abortion and in making the arrangements for the procedure).  They may also refuse to be involved in providing abortions under Section 6. 

Nullifying objections

However, the law provides that objecting workers can be compelled to be involved in providing abortion when there is a "serious risk" to the health of the mother, the meaning of which, as discussed above, can be very broadly construed.  In fact, it could be so broadly construed as to completely eliminate the possibility of conscientious objection to abortion.6

At the very least, the protection ostensibly provided by the law for individual health care workers is open to attack by determined activists and administrators, and this is likely to contribute to further conflict.


1.  Castaldi, Malena, "Some Uruguayan doctors refuse to perform abortions despite law." Reuters, 16 January, 2013 (Accessed 2013-01-19)

2.  Hoffman, Matthew, "100 percent of Uruguayan doctors opt out of new abortion law in some areas."  LifeSiteNews, 18 January, 2013 (Accessed 2013-01-20)

3.  Dooley, D. "Conscientious refusal to assist with abortion" (Editorial). BMJ 1994;309:622-623 (10 September) Accessed 2008-11-30.

4.  Hoffman, Matthew, "100 percent of Uruguayan doctors opt out of new abortion law in some areas."  LifeSiteNews, 18 January, 2013, quoting El Pais. (Accessed 2013-01-20)

5.  Hence the recommendation of a Swiss working group: "The members of the interdisciplinary working group suggest that the care of preterm infants with a gestational age between 22 0/7 and 23 6/7 weeks should generally be limited to palliative care." Berger TM, Bernet V, El Alama S, Fauchère JC, Hösli I, Irion O, Kind C, Latal B, Nelle M, Pfister RE, Surbek D, Truttmann AC, Wisser J, Zimmermann R. Perinatal care at the limit of viability between 22 and 26 completed weeks of gestation in Switzerland. 2011 revision of the Swiss recommendations.  Swiss Med Wkly. 2011 Oct 18;141:w13280. doi: 10.4414/smw.2011.13280 (Accessed 2013-01-20)

6.  Dr. Gabor Mate served for years on a therapeutic abortion committee in Canada, which was responsible for confirming that an abortion was necessary to preserve the health of a woman.  "[N]ot once at committee meetings did I witness discussion as regards the health merits of a particular case," he wrote.  "It was assumed that if the referring doctor and the woman had decided that the pregnancy would impair the patients health as she understood it then no further enquiry was necessary or possible."  Mate, Gabor, "A woman's choice - as it in fact was under committee". Vancouver Sun, 22 February, 1988. Emphasis added.



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