DOI:

Med. pravo., 2014; 2(14): 18-27

UDC: 343.621:347.9(477)

BUCHKIVSKA VIKTORIYA LEONIDIVNA

Judge, deputy head of the Stryi city and district court of the Lviv Region

Illegal Abortion: Criminal Law Qualification and Court Practice

Art. 3 of the Constitution of Ukraine states that an individual, his life and health, honor and dignity, inviolability and security shall be recognized in Ukraine as the highest social value.

The notion of the "right to life" involves the discussion on the moment of emergence of this right—conception of birth. Depending on the answer the legislation either prohibits abortion (with some exceptions for medical direction), or vice versa - provides women the opportunity to decide issues on their motherhood. Article 2 of the Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter – the Convention), establishing a fundamental human right, does not specify the timeframe for its implementation - it says nothing about the beginning and the end of life.

The Convention doesn`t contain any provision that clearly and directly protect the right to life of the unborn child. Article 2 of the Convention doesn`t contain the definition of the emergence of this right, in particular the concepts of "everyone" and "life" are not drafted. In practice, the problem of determining of the moment of emergence of the right to life arises in the context of the right to abortion, which is questioned in many countries. Legal opinions on these issues are insignificant and are characterized by careful approach.

For example, in the case "Paton v United Kingdom» (Paton v. UK), the Commission accepted that abortion at the tenth week of pregnancy in order to protect the physical and mental health of women, provided by British legislation, does not contradict Article 2 of the Convention.

Strasbourg noted that Article 2 does not guarantee the absolute right to life of the unborn child. Accordingly, an abortion at the 10th week, especially for medical directions, does not violate the right to life. Otherwise the life of the fetus would be considered more significant than the life of a pregnant mother. However, the Court thinks that the mother`s needs have priority over the needs of an unborn child.

In the case "N. against Norway” (N v. Norway) question at issue concerned abortion at the fourteenth week, carried out not for medical (health care for the women), but for social reasons. The Commission found no violation of Article. There is notion in the decision that this area is very delicate and requires careful approach and confidence in the national legislation.

The Court has no reason to state a violation of Article 2 if discretion of the state in regulating of abortion does not exceed the reasonable limits. The issue of the right to life of the unborn child was considered in the case "Vo v France” (Vo v. France). Ms. Vo, French citizen of Vietnam origin at the 6thmonth of pregnancy, had to be examined in the hospital. On the same day another woman, Tan Van Vo, was assigned a removal of the spiral.

The doctor entangled those two women as they both had the same last name, and tried to remove spiral out of pregnant woman. As she spoke French badly she could not communicate with the gynecologist. As a result, after medical intervention Ms. Vo. was forced to make an abortion. The doctor, whose actions led to abortion, was acquitted on the ground that uterine fetus is not a human being and is not the subjects of criminal law protection. In this case, the Court notes that he can`t answer the question, what the moment of emergence of right to life is and is forced to leave its solution to the national courts. In particular, the Court stated:

"Based on the fact that the laws on abortion, investigated by conventional institutions, in different countries do not recognize the unborn child as a "person", directly protected by Article 2 of the Convention, the Court held that if the unborn has the right to life, the right is obviously limited by interests of his mother”. Thus, each State Party at their own discretion decides the issue of guarantees of the right to life of the unborn child.

This is due to the fact that, firstly the issue of protection of fetus’s life is not clearly resolved in most states, and secondly, to date, there is no universal or regional international document that would unify scientific and legal approaches to defining of moment of emergence of right to life. Based on this special attention should by paid to the analysis of crimes against the most important human values—life and health, as these encroachments are supposed to be the most dangerous. Constitution of Ukraine, the statutory foundation of Ukraine on health care and other legislative acts are oriented on the providing of real guarantees of human life protection.

The implementation of these guarantees is impossible without criminal means. Criminal law provisions providing the liability for attacks on human life and health are contained in Part II of the Special Part of the Criminal Code of Ukraine (hereinafter - Code)

"Crimes against life and health". Certain place among these crimes belong to infringements, dangerous to person`s life and health. Art. 134 of Code provides responsibility for illegal abortion. Illegal abortion, as it is understood by legislator, is abortion carried out by person without special medical education. Abortion in medicine is premature termination of pregnancy and removal from uterus fertilized egg or fetus, that is not yet able for living outside the mother`s body, at the first 28 weeks of pregnancy. There are 2 kinds of abortion in medicine: 1)Pathological—caused by the woman`s illness; 2)Affected—caused by side interference in the body of pregnant woman. Affected abortion can be legal and illegal. The list of activities and services for the prophylaxis of unwanted pregnancies, the operation (procedure) of affected abortion and prevention of possible complications is provided by Procedure of providing comprehensive health care to the pregnant woman during an unwanted pregnancy, approved by the Ministry of Health of Ukraine, May 24, 2013 No 423, and registered by the Ministry of Justice of Ukraine June 27, 2013 for No 1095/23627 (hereinafter Procedure). In the case of pregnant woman`s a decision about the operation (procedure) of abortion, preabortion counseling under the clinical protocol

"Comprehensive medical care during unwanted pregnancy", approved by the Ministry of Health of Ukraine (hereinafter - Clinical Protocol) is necessarily conducted. As Pankratov V.V. says, breaking the question of the importance of consent to an abortion, we will inevitably face the challenge of establishing of legal significance of consent for causing her harm in general in criminal law. Leaving aside the general theoretical questions about the nature of consent for causing her harm today we can note that the legislator takes into account the fact of his consent very inconsistently. Besides, the attention should be paid to the nature and terms of consent at issue. We suggest that the basic conditions for illegal abortion with the consent of the victim are: a) the validity of consent, which means that consent, must come from a sane and capable man; b) consent must be conscious and volitional; c) consent must be voluntary. Affected abortion can be recognized as legitimate if it was conducted with the woman`s consent: - in accredited health institution of II and III levels with using of safe techniques under the clinical protocol; - At the first twelve weeks of pregnancy; - Operation (procedure) of affected abortion is carried out after the mandatory signature by pregnant woman of informed voluntary consent to the operation (procedure) of affected abortion in accordance with the form approved by the Ministry of Health of Ukraine on May 24, 2013 No 423 . - Due to the fact that the continuation of pregnancy and childbirth menaced a woman's life (in such case, abortion is legal even in the case if the pregnancy lasted more than 12 weeks); - Operation (procedure) of affected abortion after is carried out by obstetrician-gynecologists of accredited healthcare institutions of II and III levels with appropriate training and experience. In this regard attention should be paid to example of judicial practice. Under the decision of Vyshgorod District Court of Kyiv region on January 25, 2011 PERSON_1 was discharged from criminal liability under Part 1 art.134 of Criminal Code of Ukraine.

On July 21, 2010 approximately at 12 p.m. after talking with the mother the PERSON_2 agreed to abortion, then her mother, the PERSON_1, without special medical education at home with the purpose of abortion of his daughter injected drug "Estrofan" in the buttocks and vein of OSOBA_2. Mother injected her daughter during two days with intervals of one hour. On July 22, 2010, approximately at 10 p.m., the next injection of the drug "Estrofan" caused a miscarriage, due to what on July 23, 2010 at 02.05 p.m. PERSON_2 was taken to Vishgorod CRH for medical care. Under the Court Decision PERSON_1 was dismissed from criminal liability and the case was closed due to reconciliation with the victim. Another example is the sentence of Obolon District Court of Kyiv of 05 June 2008. PERSON_2 found guilty under Part 2 art.134 of the Criminal Code of Ukraine. Having a special - medical education and being a - a gynecologist by profession, retirement pensioner since 1992, carried out illegal abortion not in special - accredited health institution where is a general gynecological surgical department, but at her home under such circumstances. On the March 5, 2008, approximately at 3 p.m PERSON_2, staying at home that was not specifically accredited health institution, using medical instruments and drugs, carried out an illegal abortion of PERSON_3, due to what PERSON_3 was admitted to the hospital number 4 where she was operated. During the operation of OSOBA_3 uterus with appendages were removed. According to the conclusion of forensic examination No117 after 21.04.2008, illegal abortion led to perforation of the uterus with bleeding, hemorrhagic shock of II development stage. There is a direct causal relationship between abortion in and consequences that led to hysterectomy with tubes. This abortion refers to grievous bodily harm (by the criterion of abortion) (criterion of danger to life and the criterion of loss of organ). Hysterectomy eliminates the possibility of further pregnancy of PERSON_3, i.e. infertility.

Comprehensive medical assistance to pregnant woman during unwanted pregnancy is organization of measures of providing with qualitative and efficient health care in health care institutions to prevent for the future unwanted pregnancies, carrying out operation (procedure) of abortion and prevention of possible complications (p. 1.3 of Procedure). Abortion conducted with the consent of the victim is recognized as illegal (criminal punishable) if: -is carried out outside special medical institution, regardless of who carried out the operation; -the duration of pregnancy was over 12 weeks, and there were not contraindications for pregnancy and childbirth; -by person who has no special higher medical education. Abortion is considered illegal (criminal) if at least one of these circumstances is present. It should be noted that Article 134 of the Criminal Code of Ukraine does not include any case of illegal abortion carried out by a person, which have special medical education, that hadn`t caused significant harm to the health of pregnant women. The verdict of the panel of judges of the Chamber of Criminal Appeal Court of Vinnitsa region on December 6, 2012 PERSON_3 and PERSON _4 were found guilty and convicted for committing the next. After becoming pregnant in early 2011PERSON _4, decided to get rid of her pregnancy through premature birth and subsequent killing of her newly born child. In August 2011 she offered the friend PERSON_3 to make abortion and kill newborn for financial reward. The latter agreed to the proposal and advised on the acquisition by PERSON _4 of appropriate medicines necessary for carrying out of premature birth. On October 10, 2011, in the morning PERSON_4 bought drugs "Senystrol" and "Oxytocin" in one of the pharmacies on the Mykolayenko Street in. Bershad and at 09 a.m. came to the OSOBA_3 apartment, and gave her food as material compensation for miscarriage and deprivation child of life. Pursuant to the agreement reached earlier, PERSON_3, for the purpose to cause PERSON _4 abortion, being aware of the illegality of such operation, acting deliberately, without higher medical education and specialized training, without checking health condition of PERSON_4, acting outside the specially accredited health institution, injected forbidden for use by pregnant drugs "Senystrol" and "Oksytatsyn". This caused premature birth at 3 p.m. PERSON_3 took her to bathroom where under conclusion of forensics examination No114 delivered live, full-term, viable female baby. Then, PERSON_3 acting with selfish motives and on behalf of PERSON_4 decided to kill the newborn. For this purpose PERSON_3, acting deliberately, being aware of the danger of her actions and of the inevitable occurrence of the death of a newborn baby, put it in a bucket of water. Due to the closure of airways of newborn baby by water mechanical asphyxia came, which under the conclusion of forensic examination No114 caused death. In order to conceal the crime PERSON_3 wrapped corpse in a plastic bag and gave it to OSOBA_4 which threw it in the toilet cesspool of non-residential premise. Pregnancy under art.134 (criminal abortion) can be terminated in various ways: 1) Mechanical - by insertion in the uterus various items (such as wooden batons) solution (soap, baking soda, iodine, etc.) or strikes in the stomach, etc.; 2) medication -by using of various drugs or chemicals (quinine, mercuric chloride, arsenic, kerosene, etc.); 3) thermal - by the influence of heat on the body of a pregnant woman (hot tubs, irrigation, etc.). Abortion can be caused by mental trauma, fear. Obligatory component of criminal abortion is coming of criminal consequences - termination of pregnancy. Crime, foreseen by part 1 Art.134 is considered to be complete after the actual abortion.

This fact of extraction of the fetus that is unable to grow out of the mother`s body is not important to recognize the crime completed. If a person committed all of the actions that to her mind were necessary to abortion (made injection, made surgery etc.), but failed to abort, the committed should be qualified under Art.15, p.1 art.134. Crime foreseen by p.2, Art.134 is considered to be completed after occurrence of certain dangerous consequences - long disorder, infertility or death of the victim. The death of a pregnant woman can occur both during illegal abortion and after surgery. The offender under Part.1, Art.134, is a person who has attained the age of 16 and had no special medical training, for example: 1) Doctors, that means persons who received higher medical education, but have no special medical training and the nature of their professional activities does not include carrying out abortion (such as dentists, ophthalmologist); 2) Nursing staff (nurses, midwives, paramedics, etc.) or medical students; 3) Persons who have no relation to medicine. Criminal Code does not provide the liability of woman affected abortion.

The offender of crime foreseen by p.2, Art.134, in addition to the abovementioned categories of persons may be individual with special medical education, i.e. doctors, obstetricians. There is notion in medical literature that abortion carried out even in the hospital according to the aseptic and antiseptic norms causes significant harm to woman`s health. Under the verdict of Dzerzhinsky City Court of Donetsk Region on October 21, 2013 PERSON_4 was convicted of Part 2 art.134 of the Criminal Code of Ukraine under the following circumstances. On November 30, 2011 PERSON_2 applied to gynecologist PERSON_4 about unwanted pregnancy. In turn PERSON_4, with medical education, but without special authorization certificate for providing comprehensive care to women with unwanted pregnancies, realizing that her actions are beyond the competence of gynecologist in violation of "clinical protocol" without the creation of medical records (and namely medical records of abortion) accepted a motion of PERSON_2 to carry out abortion. According to previously reached agreements on the 4th of January 2012 approximately at 10 a.m. PERSON_2 came to the medical clinic Artemovo of Dzershinsk city of Donetsk region where PERSON_4, for the purpose of abortion, staying out of the gynecological conditions or day hospital intentionally in order to carry out medical abortion intravaginally injected medical drug "mifepristone" and gave concomitant medications that PERSON_2 on the recommendation of PERSON_4 took. 2 As a result, approximately at 8 p.m. OSOBA_2 blood excretion appeared and fetus came out, about what PERSON_2 by phone reported PERSON_4. On the 5th of January, 2012 PERSON_4 held an ultrasound examination and told PERSON_2 about successful abortion. However, on the 7th of January 2012 PERSON_2 complained about the fever, pain in the right side blood excretion and announced PERSON_4 In turn, the latter assured PERSON_2 that these effects are postoperative and are not dangerous to life and health. However, on the 10th of January, 2012, due to deteriorating of health, PERSON_2 was taken by an ambulance to CCH of Dzershinsk city where she from 10.01.2012 till 08.02.2012 was treated with a diagnosis of incomplete medical abortion with hemorrhagic anemia, exacerbation of chronic Metroendometritis. Because of inadequate medical care, which led to violation of the anatomical integrity of tissues and organs and their functions due to medical abortion, complications are assessed as injuries of moderate severity. Mens rea of crime foreseen by Part.1, Art.134, is characterized by direct intention. Mental attitude to dangerous consequences mentioned in p.2, Art.134 is careless (criminal arrogance or criminal negligence).

If there is indirect intent to death, infertility or prolonged disorder actions of offender should by qualify as cumulative action offences under p. 2 Art.134 and the corresponding Articles of Part II of the Criminal Code (e.g., Art.115, 121, 122). If lasting health disorder, infertility or death of the victim is caused as a result of abortion, carried out on legal grounds by doctor with specialized medical training, in the presence of reasons the committed should be qualified under Art.140 of the Criminal Code of Ukraine. It`s important to determine the initial moment of life for qualification of abortion and its disassociation from killing. In medicine, the beginning of life is the beginning of physiological childbirth. Beginning of physiological childbirth (without taking pathology into account because it either has no legal value, or has a very different legal nature) - is the moment when the fetus is over, it is ripe for an independent life outside the body of the mother, that means the appearance of a new life. Since then, the criminal law must take the life of the citizen under its protection. Infringement aimed to causing death of the fetus before the physiological birth is qualified as abortion. Causing death during childbirth is qualified as murder in cases when the birth was caused artificially and the fetus was viable (fetus is considered as viable after 6 months of pregnancy). It was incorrect to qualify actions of PERSON_5 under Part 1 art.134 of Criminal Code of Ukraine was given by Trostyanetsk district court of Vinnitsa region and to sentence her under points 2,6,11 Part 2 art.115 of Criminal Code of Ukraine to 13 (thirteen) years of imprisonment with confiscation of all personal property under the following circumstances. 

After becoming pregnant in early 2011PERSON _4, decided to get rid of her pregnancy through premature birth and subsequent killing of her newly born child. In August 2011 she offered the friend PERSON_3 to make abortion and kill newborn for financial reward. The latter agreed to the proposal and advised on the acquisition by PERSON _4 of appropriate medicines necessary for carrying out of premature birth. On October 10, 2011, in the morning PERSON_4 bought drugs "Senystrol" and "Oxytocin" in one of the pharmacies on the Mykolayenko Street in. Bershad and at 09 a.m. came to the OSOBA_3 apartment, and gave her food as material compensation for miscarriage and deprivation child of life. Pursuant to the agreement reached earlier, PERSON_3, for the purpose to cause PERSON _4 abortion, being aware of the illegality of such operation, acting deliberately, without higher medical education and specialized training, without checking health condition of PERSON_4, acting outside the specially accredited health institution, injected forbidden for use by pregnant drugs "Senystrol" and "Oksytatsyn". This caused premature birth at 3 p.m. PERSON_3 took her to bathroom where under conclusion of forensics examination No114 delivered live, full-term, viable female baby. Then, PERSON_3 acting with selfish motives and on behalf of PERSON_4 decided to kill the newborn. For this purpose PERSON_3, acting deliberately, being aware of the danger of her actions and of the inevitable occurrence of the death of a newborn baby, put it in a bucket of water. Due to the closure of airways of newborn baby by water mechanical asphyxia came, which under the conclusion of forensic examination No114 caused death. In order to conceal the crime PERSON_3 wrapped corpse in a plastic bag and gave it to OSOBA_4 which threw it in the toilet cesspool of non-residential premise. The Court of Appeal of Vinnitsa region changed a sentence of Trostyanetsky District Court of Vinnitsa region of 7th September 2012 in relation to PERSON_5 by removing a part of his conviction under Part 1 art.134 of the Criminal Code of Ukraine and pointed out that the first instance court made a mistake in finding PERSON_5 guilty of illegal abortion foreseen by Part 1, Art.134 of the Criminal Code of Ukraine. On the objective side abortion is realized through the person`s actions who carries it out, aimed to abortion, which led to its actual termination. Carrying out of illegal abortion by a person who has no special medical training can take place only before the physiological childbirth, i.e. when the opportunity of direct physical impact on the child's body appeared. Causing the death to the fetus child after beginning of physiological childbirth is not abortion but a murder of a young child, which entails responsibility under Part 2 Art.115 of the Criminal Code of Ukraine and additional qualification under Part 1 Art. 134 of the Criminal Code of Ukraine is not required. According to Romanovsky G.B., the issue of giving every woman an opportunity to have an abortion is so important that sometimes, according to the solution of it by government, the degree of democratism of societies is evaluated. As noted by B. Tobes: "... the problem of abortion in the context of human rights is very controversial.

On the one hand, arises the question to what extent the unborn child has a right to life. On the other – it`s necessary to understand whether it has the right to dispose of her body and due to this right to physical integrity and privacy. Because of this uncertainty it is difficult to balance the rights of the unborn child and the mother, to choose between them ... ". Like some other reproductive rights, the right to terminate the life of her child can cause unambiguous attitude. According to the Declaration on the medical abortion adopted in Oslo (adopted by the 24th World Medical Assembly, Oslo, Norway, on August 1970, amended by 35th World Medical Assembly, Venice, Italy, October 1983), the first ethical principle pulled out to doctor is to respect human life from its very beginni.

Key words: right to life, illegal abortion, abortion, life, court, pregnant woman.    

Reference list

1. Avdeev M.Ya. (1959) Kurs sudebnoy medytsyny. Moskva

2. Medytsynskaya entsyklopedyya. Moskva, 1966.

3. Pankratov V. (2001) Problemy ustanovlenyya uholovnoy otvetstvennosty za nezakonnoe proyzvodstvo aborta. Uholovnoe pravo. 3.

4. Romanovskyy H.B. (2003) Pravo na abort otechestvennyy y zarubezhnyy opyt. H.B. Romanovskyy. Chelovek. 6.

5. Serdyukov Y.H. (1954) Chem vreden y opasen abort. Moskva.