ECLJ to the Council of Europe:
Spain violates conscientious freedom of
23 July, 2011
(Strasbourg, France) - On June 22, 2011, the European Centre for Law and
Justice (ECLJ) organized a public hearing at the Council of Europe, entitled
"Spain: Violations of Medical Practitioner's Freedom of Conscience".
It was conducted with the Spanish Defense Association of Conscientious
Objection (ANDOC) and with the support of the European's People's Party.
During this hearing, the ANDOC and ECLJ have launched a comprehensive
report detailing, with individual examples, the structural and systemic
violations of freedom of conscience for healthcare professionals in Spain,
and in particular their right to conscientious objection. The right to
conscientious objection is founded on the principle that no one shall be
forced to threaten someone's life. Any attack on human life, when permitted
by law, can be only performed voluntarily.
Based on this report, a number of parliamentarians from various national
and political parties lead by Luca Volontè and Blanca Fernandez, have
"Written question to the Committee of Ministers" urging this Committee,
composed of the Representatives of the 47 Council of Europe Member States,
to take action in order to ensure respect for doctors, healthcare and
administrative personnel, as well as hospitals and institutions' right to
conscientious objection in compliance with European and international
regulation. In the following months, the Committee of Ministers will have to
agree on a common written response to the Parliamentary Assembly addressing
this specific problem.
In Spain, health professionals suffer structural and systemic violations
of their rights. Doctors, nurses, and other medical staff that object to
performing or assisting with abortion procedures are coerced and suffer
career-crippling sanctions or are legally prosecuted for attempting to
exercise this fundamental right, which is recognized by both European and
In particular, they are prevented from exercising their freedom of
conscience through the following practices:
- Submission of a fundamental right to administrative authorization:
In order to exercise their fundamental right, a conscientious objector
must request an authorization from the administration in advance and in
- Creation of a registry of conscientious objectors: The above
requests are registered in a directory that ranks medical professionals
according to their conscience.
- Systematic discrimination against the conscientious objectors:
- The presence in the directory has negative consequences for a
medical professional. Their career advancement is dependent upon the
number of abortions performed or prescribed through the
"Accreditation Program of Professional Skills." In Andalusia,
recruitment in the health care system is subject to the condition of
not being an objector.
- No recognition of the right to conscientious objection of health
care institutions that according to their ideology refuse to practice
Within this structure, there are also other violations such as:
- Refusal to register a medical practitioner as an objector;
- Deprivation of the right to object for the staff responsible for
pre-natal diagnosis, nursing and other administrative personnel;
- In order to prevent conscientious objections, the type of operation
or information about a negative opinion from the clinical committee is
not communicated to the medical professionals, especially to the
anesthesiologists and clinical nurses.
During the hearing, presided by the Spanish parliamentarian and medical
doctor, Dr Blanca Fernandez (PPE), has also intervened Dr. Esteban Rodriquez
Martin, gynecologist, Prof. José Antonio Diez Fernandez Secretary of the
ANDOC, and Dr. Grégor Puppinck, Director of the ECLJ.
Dr. Esteban Rodriguez Martin gave his testimony as a gynecologist and
victim of the Spanish regulation on abortion and prenatal diagnostic
procedures. He explained that he is now before national courts for refusing
to take part in the procedure leading to eugenic abortions.
Dr. Esteban Rodriguez Martin underlined that professionals must request
advance approval from Spanish administrative authorities to be listed as a
"conscientious objector." Only health care professionals placed on this list
of "objectors" are exempt from performing or assisting with abortions, and
often, this requirement is not communicated. As a result, if a woman
solicits abortion services, health care professionals who object to
providing assistance, but are not pre-registered as an "objector," are
legally obligated to either perform the abortion or give a referral-even if
doing so would violate their conscience.
José Antonio Diez Fernandez, Professor of Law and Coordinator of ANDOC,
presented the national legal framework leading to this structural violation
of medical professional's rights. He noted, inter alia, that those who
register as conscientious objectors suffer further negative consequences and
are unjustly singled out for voicing their objection. Often career
advancement and health care ratings depend on the number of abortion
referrals or procedures completed, he noted. Opting to register as an
objector has career-stifling effects, because assessment of an objector's
professional skills becomes linked to ideological beliefs and not to the
practitioner's true merit or ability. He also highlighted how administrative
authorities will often refuse a practitioner's attempt to register as an
objector. Though the process is supposedly declarative in nature, in
practice, health care professionals may be refused to register as objectors
for arbitrary criteria.
Dr. Gregor Puppinck, Director of the ECLJ, analyzed the situation in
regard to the legal obligations of Spain under European and International
He recalled in particular the resolution 1763/2010 "On the Right to
conscientious objection in the field of health" adopted in October 2010 by
the Council of Europe Parliamentary Assembly holding that:
"No person, hospital or institution shall be
coerced, held liable or discriminated against in any manner because of a
refusal to perform, accommodate, assist or submit to an abortion, the
performance of a human miscarriage, or euthanasia or any act which could
cause the death of a human foetus or embryo, for any reason."
He also commented on the case law of the European Court of Human Rights
(ECHR) related to Conscientious objection underlining, in particular, the
fact that in numerous decisions since the 1989 Rommelfanger v. Germany
ruling (no. 12242/89), the Court has recognized the right of institutions
based on a specific ethos, such as religious hospitals, to exercise - on an
institutional level - their right of conscientious objection to abortion and
other related practices.
Grégor Puppinck also commented on the ECHR's recent ruling in the case
R.R. v. Poland (no. 27617/04) of May 26, 2011. In this case, the Court
asserted that if a State decides to legalize abortion, it is then "obliged
to organise the health services system in such a way as to ensure that an
effective exercise of the freedom of conscience of health professionals in
the professional context does not prevent patients from obtaining access to
services to which they are entitled under the applicable legislation." Two
aspects of this ruling are of particular interest: first, it expresses the
right to an "effective exercise of the freedom of conscience of health
professionals in the professional context", and second, it does not say that
the access to abortion should be ensured at the expense of the fundamental
rights of health professionals, but it say, however, that the State has to
Dr Puppinck concluded that in this regard, it is clear that the Spanish
regulation does not respect both the individual and institutional right not
to take part in an abortion process.
The ECLJ thoroughly supports ANDOC's efforts to draw attention to this
important issue. The right to conscientious objection must be respected.
Rather than punishing health care professionals for exercising this right,
Spanish authorities must comply with European and international standards to
protect this right from the structural and systematic violations that
conscientious objectors in Spain are experiencing today.
The European Centre for Law and Justice is an international,
Non-Governmental Organization dedicated to the promotion and protection of
human rights in Europe and worldwide. The ECLJ holds special Consultative
Status before the United Nations/ECOSOC since 2007.
The ECLJ engages legal, legislative, and cultural issues by implementing
an effective strategy of advocacy, education, and litigation. The ECLJ
advocates in particular the protection of religious freedoms and the dignity
of the person with the European Court of Human Rights and the other
mechanisms afforded by the United Nations, the Council of Europe, the
European Parliament, the Organization for Security and Cooperation in Europe
(OSCE), and others.