TY - JOUR
AU - Ribot, Jordi
AB - Abstract This paper examines the recent developments in underage abortion and related questions in Spanish law. Despite the prevalence of the language of autonomy, like in Britain, children's interests are not defined in Spain by relying exclusively on the competent child's views. Parental opinion and societal expectations are given due weight, although sometimes only implicitly. Calculated ambiguity in legal practice and in the relevant legal texts provides evidence of the pervasive influence of deeply rooted distrust as against clear-cut rules favouring a young person's autonomy. Minors, Consent to medical treatment, Underage Abortion I. INTRODUCTION Professor Margaret Brazier contended convincingly that the domination of one ethical principle—namely autonomy—over many is disturbing.1 Such discomfort is clearly felt in the legal issues surrounding the medical choices of competent children. In this area, perhaps even more than in other settings, principles other than autonomy claim equal or higher bearing. Even if empowered, minor patients also have moral responsibilities towards others, especially to their parents and guardians. Accordingly, children's interests are not very often defined by relying exclusively on the child's views but rather parental opinion and societal expectations are given some weight, even if sometimes only implicitly. At its simplest, autonomy entails that the free and informed decisions of patients who are competent to decide shall be respected by any party involved (eg doctors, relatives, public officials, etc). In fact, the main legal mechanism through which autonomy is recognised is the right to refuse treatment, supporting a patient's right to non-interference when making his or her decision.2 Self-determination is a central feature of any notion of autonomy, notwithstanding the variety of conceptions that have been proposed by ethicists and jurists.3 Autonomy also assumes a central role in the ‘era of children's rights’. International standards stipulate not only that children need and may claim protection, but that they are also entitled to take control of their affairs as soon as their developing capacities enable them to do so. Thus children must be heard before major decisions are taken involving their persons or assets.4 Moreover, as the child grows older, parents or guardians are disempowered and may no longer have the final say on many issues.5 The idea of autonomous self-determination for children demands a more nuanced approach, however. Two elements, both remnants of centuries-old paternalism, struggle to keep pace under this evolving legal environment. Both help explain why the issue is so fraught and socially sensitive. The first element is conveyed when young people are viewed as vulnerable regardless of their proven capacity to understand and assess a given situation. From this standpoint, competent children should be granted protection because they are entitled to enjoy any available choices that they may make in the future when they reach majority. Such potential choices should not be put at risk by decisions taken at an earlier stage of life.6 The second element derives from the fact that the minor is typically part of a family or a community, where his or her decisions have an impact on other persons. As a result, holders of responsibilities vis-à-vis the child demand to play a part in the decision-making process, and tensions arise in these settings concerning the scope and the intensity of this involvement. When it comes to medical decisions, especially if the decision at stake involves serious health risks, the status of competent minors remains ambiguous.7 Autonomy is overtly recognised according to the maturity of the child, but family relationships and the gravity of the decision tend to water down the practical effects of the child's self-determination. Commenting on the so-called retreat of Gillick,8 Brazier and Bridge suggested that the courts' stance may arguably be explained in the light of a ‘sceptical approach to autonomy’,9 wherein Autonomy is not disregarded [ … ]. Indeed its value is expressly acknowledged, though more as an ethical imperative than a legal principle in relation to minors. The judiciary appears apprehensive about the consequences of clothing that ethical imperative with the authority of the law and anxious not to delve into what is perceived as an area of social controversy10 In fact, it is doubtful whether society, as represented by judiciary, legislative committees, and legal thinkers, is prepared to assume that, as far as they are under the protection of the legal system, minors may enjoy the right to harm themselves irreversibly.11 Luckily, the opposing views of young people and parents or other concerned parties are not usually related to medical choices in life-threatening situations nor to consent to medical procedures or treatments even if they involve serious risks. The autonomy of the child is more often challenged in matters such as sexuality, consumption of illicit drugs, and other potentially risky activities. Here, it is very difficult to strike a fair balance between, on the one hand, competent children's autonomy, and legal responsibilities assigned to parents or legal guardians for their protection, and, on the other hand, the legitimate pursuit of policies amounting to controversial interference with ambits belonging to the privileged area of parental rights, and this to a great extent explains the uncertainties and contradictions in this area of the law.12 This holds especially true in the highly contested area of underage legal abortion. Certainly, both pregnancy and its voluntary termination are fundamental personal experiences with a likely physical and psychological impact. However, whereas some may see this impact as a reason to allow more room for competent underage girls to decide for themselves without interference, many still place emphasis upon parental responsibilities over an adolescent's life decisions. In Britain, for instance, influential voices have claimed that these issues would be better treated separately from strictly medical choices, as long as moral and religious issues are intrinsically involved, and must be given special consideration.13 This paper aims to show that recent developments in Spanish health law also provide evidence that clear-cut rules favouring a young person's autonomy are viewed with distrust. Despite the pre-eminence of the language of children's rights, the wave of legislation on patients' rights that started on the eve of this century brought about severe setbacks for claims for the autonomous medical choices of competent children. In addition, support for greater deference to parental views and the reinforcement of parental powers is also visible in recent legal texts. After providing a brief outline of the general principles on children's capacity and the specific rules governing their capacity to give consent to medical treatment, attention is paid to the legal issues surrounding the termination of pregnancy when required by adolescents, in the light of the change to Spanish laws on abortion. Finally, conclusions are drawn from comparing the current situation in Spain with parallel trends in English law. II. STATUS OF COMPETENT MINORS A. Principles of the Law on Children's Capacity In Spain, as in the UK, the age of majority is reached at eighteen.14 Until then, minor children are subject to the powers legally conferred upon their parents or guardians. As a general rule, on the basis of the ‘legal representation’ with which they are vested, parents or guardians have the power to take decisions on behalf of the children in any sphere of their lives.15 A number of rules and legal principles point nevertheless to a certain capacity for young people under eighteen to govern their own affairs. First, the so-called personality rights—among them bodily integrity, privacy, one's own image, and so on—are excluded from legal representation16 and are thus subject to the special criteria developed by specific acts. If these criteria are lacking, courts shall develop them according to the general principle which maintains that these rights may be exercised personally once a person reaches maturity.17 Besides these general rules, a number of legal acts of a strictly personal nature are already allowed by the Civil Code. Children older than fourteen may give consent to certain forms of will18 and marriage is also available to them if judicial permission is granted.19 As regards contracts and other legal acts, the general rule laid down in the Civil Code is that minors are deemed to be without capacity to enter into contracts.20 Even a contract entered into by a competent minor would thus be voidable if he or she acted alone. However, both legal doctrine and case law agree that the only voidable transactions are those that go beyond the kind of legal acts entered into by children on a daily basis. Leisure or transport contracts, as well as minor sales, are deemed valid on the theoretical basis that those authorised to avoid them would have tacitly waived their claim.21 Moreover, contracts for personal services agreed upon by legal representatives on a child's behalf are unenforceable unless the competent child had given consent.22 From sixteen years onwards, any minor may enter into an employment contract himself, although express or tacit permission shall be provided by parents or guardians.23 Beyond civil law, children older than thirteen can legally give consent to sexual intercourse.24 So during the past few decades, a gradual process of giving recognition to a child's autonomy has taken place, and children have been allowed greater capacity to enter into certain legal acts and take part in a number of social relations. The legal status of children's autonomy is nonetheless still contested. No general rule on legal capacity according to natural capacity can be derived from the legal provisions in force, and parents and guardians hold legal powers capable of controlling and undoing most of children's relevant acts. A provision was introduced into Spanish Law in the wake of the implementation of the UNCRC which stipulates that any legal rule providing limitations to children's capacity shall be construed as having as little an effect as possible.25 But the majority of legal scholarship holds that this rule does not enhance per se the legal status of mature minor children.26 Moreover, nowhere is a clear-cut declaration such as Lord Scarman's in Gillick to be found which states that ‘parental right yields to the child's right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision’.27 B. The Capacity of Children in Health Law Against this background, the question of the legal autonomy of young people in health matters came to the fore when several regional legislative bodies decided to develop the provisions of the Oviedo Convention 1997.28 The Convention entered into force in Spain in 1998 and lacked detailed rules on the consent to treatment on behalf of minor children or on the competent child's consent.29 The legal rules laid down by the Act passed by the Catalan regional parliament in 2000 on the issue chose to rely upon natural capacity as a criterion for valid consent to medical treatment. Capacity was expressed as the competence to understand one's clinical condition and circumstances as well as the medical procedure, its risks and the available alternatives. This notwithstanding, a threshold of sixteen years of age was also laid down, which has later been interpreted as a presumption of capacity for young people over this age to give valid consent.30 No differences were set on the grounds of the characteristics of the medical treatment or intervention or on the basis of the therapeutic or non-therapeutic nature of the procedure. A number of specific medical acts were, however, mentioned, apparently to stress that they were restricted to patients of age. One of them was abortion.31 In 2001, the issue was raised again as the Spanish Senate allowed a national law on patients' rights to be passed.32 There was a significant change in approach: although the bill followed the lines set out by the Catalan Act, the rules on the competent child's capacity to consent to medical treatment were reframed during parliamentary proceedings. A number of amendments were made, including an exception regarding treatments involving severe risks for the competent child's health, for which parental opinion must now be sought and parental views at least ‘taken into account’ before proceeding.33 This new provision was immediately read as a logical consequence of legal powers granted by civil law to the holders of parental responsibilities.34 The exception was also extended to cover a reduction in the scope of the medical duty of confidentiality vis-à-vis the young patient.35 Both issues came to the fore when the good practices guidelines of the Catalan Medical College, based on regional Act passed in 2000, were challenged in courts by some registered physicians opposing the official view that, regardless of the child's age, a competent child's views were to be given due respect, and confidentiality should be preserved even against his or her parents. The Superior Court of Justice of Catalonia quashed the guidelines as unlawful. The court stressed the importance of the exceptions introduced by national legislation, to the detriment of the general rule of the competent child's autonomy in health matters.36 The result of the litigation concerning the Catalan good practices guidelines is but one example of a more general trend towards watering down the principle of autonomy as applied to competent children's medical decisions. This is also visible in other developments of Spanish Law where one may observe elements of deep-rooted distrust in the rule of autonomy. The basis of these developments, however, can be linked to different elements, namely to the undesired outcome stemming from the free decision taken by a child, to deference to parental responsibility holders, or to a fear that medical professionals may become entangled in family conflicts or incur disproportionate liability. The first example is a well-known judgment delivered in 2002 by the Constitutional Court, which absolved from criminal liability for unintentional murder the parents of a thirteen-year-old Jehovah's Witness who died after refusing a blood transfusion.37 This decision has been viewed by many as a decision which enhances a child's autonomy in medical decision-making. Indeed, a number of statements in the ruling point to the minor's capacity to give consent to medical treatment according to his natural capacity. However, the Constitutional Court was also emphatic in declaring that the competent child's opinion must by no means be seen as final when he or she is taking life-threatening decisions such as refusing life-saving emergency treatment.38 The second example where the child's autonomy is compromised concerns situations in which the rule of medical assessment of the child's capacity is qualified. Some have advanced the view that too much responsibility is put on the shoulders of doctors by requiring them to decide when a child is competent to give consent to treatment, thereby opening the door to family conflict or to undesired consequences. In an attempt to reduce this burden, specific regional provisions on aesthetic surgery have explored alternative legal tools, such as a requirement for a ‘maturity certificate’ signed by an independent psychologist before a procedure is carried out at the request of a competent child.39 Parallel rules are being displayed at local level to obtain authorisation for other non-therapeutic procedures involving certain health risks, such as piercing and tattooing. In such cases, the maturity of the competent child is attested by one of his or her parents.40 However, this form of authorisation has proven insufficient in respect of more serious interventions, such as when a competent child asks a court to respect a decision to undergo radical gender reassignment surgery.41 III. UNDERAGE SEXUALITY AND ABORTION A. Patients’ Rights Act 2002 and Abortion The Patients’ Rights Act 2002 expressly mentioned termination of pregnancy among the medical procedures allowed only to people older than eighteen. The legislature provided no explanation for this rule, although it could be regarded as backsliding when compared with the situation immediately before the Act entered into force.42 The only abortion then legally available was that based upon proving at least one of the serious grounds or indications that were laid down in the Penal Code. Among these grounds, risk for the mother's physical or psychical health has been by far the most commonly used by women wishing to undergo a lawful abortion. Access to this was not, however, expressly restricted to women over eighteen. In fact, the Constitutional Court pointed to the general principles of civil law on legal capacity to decide whether minor pregnant women were deemed able to give valid consent.43 Later, a number of rulings of the Criminal Chamber of the Supreme Court implicitly assumed that competent minor women could do so.44 Bearing in mind these precedents, many voices qualified the new rule of the Patients' Rights Act 2002 as excessive, and encouraged it to be ignored.45 In addition, the consequences of the provision were unclear: if the views of the child could be ineffective because she was not yet of age, who should decide on whether she should have a legal abortion or pursue pregnancy and give birth to the child? Could parents or tutors force an adolescent to abstain from abortion and to bear an undesired and perhaps even harmful birth? Could they impose on their daughter or pupil the obligation to have an abortion despite her refusal and her willingness to bring pregnancy to term? These gloomy scenarios should have convinced anyone of the unrealistic assumptions behind the new rule. At any rate, since any interested party is allowed by the law to bring a claim to prevent any potential harm to a minor child,46 courts were eventually called on to decide. And when they were called on to decide, disagreements about abortion were tackled by upholding the competent child's freedom of choice.47 B. New Legislation on Lawful Termination of Pregnancy The Socialist government then in power wanted to remove the hurdles introduced by the Patients' Rights Act 2002 by simply deleting the reference to abortion from the treatments to which competent minors were not allowed to give consent. This measure was also recommended by national and regional bioethical committees. For instance, the Bioethical Committee of Spain stressed that pregnant girls are particularly vulnerable to pressures and other elements undermining their capacity to form free will.48 As regards parental involvement, it concluded that, apart from cases where the procedure may involve serious risks for the minor's health, to deny that the decision to terminate pregnancy is hers and to provide that she must share her will to undergo an abortion with her parents would excessively undermine her autonomy. The committee concluded nevertheless that underage pregnant girls should be informed of the importance of receiving advice from their parents or, if that is not possible, receiving counsel from another adult whom they trust. Along the same lines, the Bioethical Committee of Catalonia rejected ‘imposing the obligation on the pregnant woman to share her decision with someone with whom she does not want to’. The Committee considered that legally emphasising parental involvement may in practice lead doctors to abandon patients who were unwilling to discuss the decision with their parents.49 Predictably, the ad hoc expert panel appointed by the Government to assess the draft bill also supported the repeal of the exception on underage abortion from the Patients' Rights Act 2002.50 As the draft bill was submitted to official bodies however, the opinions and the tone changed substantially. There was both criticism of the option to repeal the pre-existing indications' regime and of the shift towards a model of free abortion within certain periods of time. At the same time, official instances voiced the distress triggered by the legal admission of unsupervised underage abortion. First, the council of public prosecutors (Consejo Fiscal) stressed that the rule should be that minor women must inform their parents should they want to have access to legal abortion. Accordingly, it was suggested that, even if the decision is solely to be taken by the competent child, her parents should always be informed and their view taken into account.51 The public prosecutors relied upon the rights and responsibilities assigned to the parents by the law. The same argument was raised by the Council of State52 and in the undelivered report of the General Council of Judicial Power.53 Both official bodies supported the view that parental responsibilities trigger ‘the right to be informed of the petition made by the daughter’.54 The Council of State admitted nonetheless that ‘in case of disagreement, the will of the woman will always prevail’ and that no information must be required ‘if the minor provides justified grounds that would lead to a situation where informing her parents would trigger a serious conflict between her decision and the advice that her parents might afford’.55 In the same vein, the report of the General Council of Judicial Power admitted ‘exceptional circumstances’ where information shall not be required in order to avoid backstreet abortions. On the other hand, whereas the Council of State recalled that disagreements between minor competent children under sixteen years and their parents should be always decided by the courts, the General Council of Judicial Power stressed instead that in this case the general rules would apply but parents must be granted the right to be heard in order to ‘assess the capacity and maturity of the child’.56 None of the suggestions made by these official bodies was taken into account. But as public outcry around the bill did not wane, political parties took sides and negotiated amendments when it was introduced to Parliament. Parliamentary arithmetic allowed the conservative Basque Nationalists to push for significant changes on underage abortion, where a duty to inform parents and guardians was introduced. On the other hand, exceptions to this obligation also resulted from parliamentary negotiations. Some members of Parliament showed scepticism about the effect of the amendment, as long as parties supporting it held two different interpretations of its scope during parliamentary discussions.57 The outcome of debates and parliamentary negotiations was qualified as a fraud by the Conservative Party opposing the bill. Its representatives reproached the Government for abuse in undermining parental responsibilities and argued that the amendment on underage abortion was a loophole for unsupervised abortion.58 The regime became final at this stage of parliamentary proceedings59 as no more amendments were introduced. The bill was eventually passed as Organic Act 2/2010, of 3 March, concerning sexual and reproductive health and voluntary termination of pregnancy.60 Paragraph IV of Article 13 of the Act deals with underage abortion and states that: For women aged 16 to 17 years, consent to abortion rests solely with them according to the general rules applied to women of full age. At least one of the legal representatives, father or mother, persons with parental responsibilities or guardians of women between these ages must be informed of the decision of the woman. This information may be dispensed with when the minor provides grounds that this will cause a serious conflict, manifested in the likely danger of domestic violence, threats, coercion, abuse, or a situation in which she is uprooted or one of helplessness. A Regulation on the information required before undergoing legal abortions was approved after the Act's entry into force.61 Article 8.1 requires that proof that at least one of the parents was informed should be provided in writing, and enclosed in a document that the underage girl has to deliver personally, accompanied by her legal representative. When the child requests an application of the exception to compulsory disclosure, the said Regulation states that the physician who will perform the abortion shall assess whether the allegations that a serious conflict may arise are well-grounded. In order to make such an assessment, the physician is expressly allowed to require reports from psychiatric, psychological, or social work professionals. He or she will write down the conclusions in a document that the minor must sign. These guarantees are held to be insufficient by the opponents of the law. In fact, in the constitutional complaint already admitted by the Constitutional Court,62 the appellants argue that, by allowing the termination of pregnancy without the consent and even sometimes the knowledge of the parents or guardians, Article 13 IV of the Act eliminates prerogatives that must be granted to them. In their view, the regime set out by the new legislation on abortion leads to a violation of the constitutional protection afforded to the family by Article 39 of the Spanish Constitution 1978 as well as of international obligations of the Kingdom of Spain to grant effective protection to minor children, which are directly enforceable as provided by Article 10.2 of the Spanish Constitution 1978. In their own words: To these appellants, it is absolutely clear that the fact that parents are deprived from the opportunity to advise their pregnant minor daughter about the consequences of any kind (medical risks, subsequent psychological problems, etc.), to which the decision to end a pregnancy can lead, and prevent them from giving their daughter the family and moral support they deem appropriate to any decision ultimately taken, is a blatant violation of the right of parents to form the moral conscience of their children, a complete disregard of the responsibilities recognised to them as arising from parenthood, and a source of disagreement and distrust within the family. Unease about the legal status of underage abortion is but one example of the widespread questioning with regard to children's competence to deal with reproduction and sexual health. Parallel controversial issues arose in other highly publicised instances that eventually also found their way to courts. One concerned the dissemination, by public authorities, of information on sexual health aimed at adolescents and young people, including information about contraceptive devices and safer sexual practices.63 More recently, there was public uproar with regard to the provision of the so-called morning after pill to girls under eighteen without their parents' knowledge.64 These instances, as well as the developments explained above in section II, reflect a deeply felt anxiety about the likely consequences of parents or guardians losing control over adolescents' choices in health and sexual matters. Reasons behind the contested status of the autonomy of the child are to be found in the unresolved issue of whether parental legal responsibilities actually dwindle as the child grows older, and what deference must be paid (by doctors, and by the state) to parents or legal guardians. The Bioethical Committee of Catalonia, for example, admitted frankly that ‘enabling an increase in the possibility of parents accompanying a minor demanding a legal abortion’ was required because ‘the security of the professionals who practice the abortions’ and ‘social peace’—whatever was meant by that—demanded it.65 IV. COMPARATIVE REMARKS A. Parallel Trends Watering Down the Autonomy of the Child Spanish law starts with a general rule on natural capacity of the child with regard to health matters, particularly with regard to consent to medical treatment. Furthermore, this capacity is presumed in youngsters older than sixteen and on a case by case basis in children under sixteen. Parallel processes have converged, however, which have watered down this autonomy-based approach.66 First, the minor's views are not decisive when life-threatening decisions are at stake, regardless of whether his or her competence can be effectively established. Secondly, no final decision belongs to competent children when dealing with therapeutic procedures entailing ‘serious risks’. Here the opinion of parents (or guardians) must be sought, although it is far from clear who should eventually decide on the treatment.67 Thirdly, aesthetic surgery is only performed at the competent child's request provided that a ‘maturity certificate’ is issued by certified independent psychologists. As regards other non-therapeutic procedures like tattooing and piercing a number of local regulations also require those holding parental responsibility to issue ‘maturity certificates’ before proceeding. A parallel retreat from the unqualified recognition of a competent child's autonomy can be seen in English law. In Gillick,68 Lord Fraser dismissed as ‘verging on the absurd’ the idea held by the Court of Appeal that the law shall be construed as favouring a rule of competence based upon a fixed age of sixteen. Speaking for the majority, he instead recalled that provided the patient, whether a boy or a girl, is capable of understanding what is proposed, and of expressing his or her own wishes, [there is] no good reason for holding that he or she lacks the capacity to express them validly and effectively and to authorise the medical man to make the examination or give the treatment which he advises. Gillick-competence, however, survived untouched for merely five years as synonymous of adolescents' capacity to legally decide alone on medical procedures regarding their body or health. The so-called refusal cases marked the retreat from Gillick and with questionable reasoning so that ambiguity was introduced into the law on the medical treatment of children to the point that it was at odds with the basic principles of children's rights.69 Moreover, on the basis of their inherent jurisdiction, courts have used their power to overrule decisions made either by a competent child,70 his or her parents, or the medical team.71 Parallel analysis may also hold true with regard to the contraception advice and treatment, and to abortion. The recent Spanish experience described above in section III shows that it has taken a great deal of effort to reach something of an agreement on the availability of legal abortion to women younger than eighteen. The price paid is a complex compromise between, on the one hand, recognition of the autonomous decision of competent underage women and, on the other, the interests of her parents or tutors to keep control of the process of decision-making. Unsurprisingly, such a compromise has failed to convince those who stress the need for parental involvement, covertly supporting parental co-decision. It has also disappointed those who hoped that the legal hurdles to the autonomous choice of competent underage girls, introduced in 2002, would now be removed. Conversely, English law sticks to the application of general principles on consent to medical treatment, which are based upon the autonomous decision of competent minors. Case law, however, has pointed out that a higher degree of competence is required to validly consent to contraceptive treatment and abortion, and that the same degree of competence is required to keep information about them undisclosed to parents or guardians. Twenty years after Gillick, Silber J dealt in Axon72 with almost the same legal challenges. Although he was ‘instinctively attracted’ by what he called ‘family factors’—including the risks of undermining parental responsibilities or threatening family stability73—, Silber J balanced them against the fact that the young person ‘does not want his or her parents to be informed’ and that evidence on the risks involved in disclosing information to parents gave enough force to the granting of greater weight to the right to confidentiality than to the legitimate claims of the parents.74 The result in Axon benefited greatly, thus, from the available evidence of the decrease in the number of teenagers attending health centres when disclosure of medical advice to parents or guardians was required.75 Axon certainly gave new life to Gillick's autonomist assumptions. It is interesting to stress, however, that none of these judgments supports adolescents' contraceptive treatment on demand.76 In fact, the governmental guidelines that had been challenged started in both cases from the assumption that cases where adolescents would be provided with contraceptive treatment without parental involvement must be ‘unusual’. Gillick competence, in addition, is particularly demanding.77 As Lord Scarman put it, ‘there is much that has to be understood by a girl under the age of sixteen if she is to have legal capacity to consent to such treatment’. Legal capacity to undergo contraceptive treatment included, among other things, a reasoned understanding of ‘moral and family questions, especially her relationship with her parents, long-term problems associated with the emotional impact of pregnancy and its termination, and … the risks to health of sexual intercourse at her age … ’. More analytically, the so-called Lord Fraser Guidelines provide a sort of good medical practice checklist, which, if taken seriously, should have limited dramatically the instances of contraceptive treatment of underage children kept secret from parents. It is submitted that they reflect a legal stance where a minor's autonomy is compromised by other legal and ethical principles.78 As a matter of fact, if the requirements imposed by the law were taken seriously, unsupervised contraception treatment or abortion involving adolescents would occur only very rarely both in Spain and in Britain. In practice, however, what happens depends very much upon individual doctors and how far they deem it necessary to defer to children's demands. The law in both jurisdictions is unenforceable even by willing governmental and professional bodies. B. Conclusions Many authors deplore the state of English law on the issue of minors' consent to medical treatment and related matters. Jane Fortin, for instance, has concluded that ‘the law relating to adolescents’ decision-making powers over their health is confusing and arbitrary’.79 She has also pointed out that overall the law certainly no longer matches up to the promise implicit in Lord Scarman's judgment in Gillick [ … ] that adolescents had gained a degree of autonomy over their own bodies.80 Also in Spain, despite so much talk about children's rights apparently leaning towards more autonomy for young people, these rights are sometimes qualified following public outcry triggered by highly publicised extreme cases on teenage pregnancy, the commercial abuse of images of minors, their privacy, and so on. Society seems unable to live up to minors' medical autonomy unless it can rely upon ‘safety nets’ that rule out ‘an unfettered right to consent to and refuse treatment’.81 To many, both in UK and in Spain, the legal situation is not necessarily unsatisfactory as it provides recognition of children's rights whilst at the same time laying down instruments to water it down conveniently when the outcome is too difficult to swallow or when it is seen as unbearable for caring parents or guardians. A certain, even if necessarily provisional, balance is struck between autonomy and other principles, pointing either to ‘family elements’—as they were called by Silber J—or to broader societal expectations of the long-term welfare of underage patients.82 The result of this balance brings about intermediate solutions in which not only the wishes of the minor child as a patient, but also the moral responsibilities he or she has vis-à-vis the holders of parental responsibilities and the medical team, shall be taken into consideration.83 This approach may be disregarded as a hypocritical one, but it is undeniably here to stay. The developments described in this paper are to be seen as examples of the bearing that principles other than autonomy still have on our societies. Welfare and justice find a fertile ground when, as in the case of minors, a connection with relational legal duties exists. These elements will come to the fore again and again, and their influence and weight must be taken into account. But they should also be processed and discussed in order to achieve sensible and measured legal answers to controversial issues involving youngsters' freedom of action. Otherwise, regrettable backsliding into obsolete illiberal paternalism is to be expected. 1 M Brazier, ‘Do No Harm—Do Patients Have Responsibilities Too?’ (2006) Cambridge LJ 65, 397–422. 2 Re T (Adult: refusal of medical treatment) [1993] Fam 95, per Lord Donaldson. Among many others, see recently M Donnelly, Healthcare Decision-Making and the Law. Autonomy, Capacity and the Limits of Liberalism (Cambridge University Press, Cambridge 2010) 50–67. 3 On the different perspectives on autonomy, as (merely) self-determination, as (necessarily) rational self-determination or as moral rational self-determination, see A Maclean, Autonomy, Informed Consent and Medical Law. A Relational Challenge (Cambridge University Press, Cambridge 2009) 10 ff and more references therein. Autonomy in abortion contexts, however, requires further qualification since a woman's self-determination is limited by the protection awarded to unborn children. A balance is to be struck between both interests. This is the way in which the debate has been framed in Spain following the precedent of German constitutional case law. Cf Spanish Constitutional Court decision 53/1985, of 11 of April, and see D van Zyl Smit, ‘Reconciling the Irreconcilable? Recent Developments in the German Law on Abortion’ (1994) 2 Med L Rev 302–20. 4 See Art 12.1, Convention on the Rights of the Child, 20 November 1989 (hereafter UNCRC). In some jurisdictions, parents or guardians are even required to leave room for them to express their own views. See Section 6 Children (Scotland) Act 1995. See also Arts 211–6 Civil Code of Catalonia. 5 See Art 14.2 UNCRC (‘States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child’). 6 With different approaches, see among others M Freeman, The Rights and Wrongs of Children (Pinter, London 1983) and J Eekelaar, ‘The Interests of the Child and the Child's Wishes: The Role of Dynamic Self-Determinism’ (1994) 8 Int'l Journal of Law, Policy and the Family 42–63. 7 For further details, among many others, see J Herring, Medical law and ethics (2nd edn Oxford University Press, Oxford 2008) 166 ff and J Munby, in A Grubb, J Laing, and J McHale (eds), Principles of Medical Law (3rd edn Oxford University Press, Oxford 2010) 508–32. See also L Hagger, The Child as Vulnerable Patient: Protection and Empowerment (Ashgate, Farnham 2009) ch 2. 8 Gillick v West Norfolk and Wisbeck Area Health Authority [1986] AC 112; [1985] 3 All ER 402. 9 M Brazier and C Bridge, ‘Coercion or Caring: Analysing Adolescent Autonomy’ (1996) 16 Leg Stud 86–109, 109. 10 Brazier/Bridge (n 9) at 87. 11 J Fortin, Children's Rights and the Developing Law (3rd edn Cambridge University Press, Cambridge 2009) 152. See also P Lewis, The Medical Treatment of Children, in J Fionda (ed), Legal Concepts of Childhood (Hart, Oxford and Portland 2001) 154. 12 To provide but one example, the Spanish Supreme Court confirmed the lawfulness of public campaigning on the use of condoms addressed to teenagers, but at the same time considered it necessary to reprove the campaign's language as indecent. See Judgment of 8 November 1996 (‘procaz’) indecent. More recently, the judgment of 10 May 2010 of the Superior Court of Justice of Catalonia demanded more attention to be paid both to the language and the ways of dissemination of leaflets on sexual education produced by the Department of Health. Moreover, in Alejandro Jiménez Alonso and Pilar Jimenez Merino v Spain (ECtHR 25 May 2000), the court stressed that sexual health compulsory educational contents should be displayed in a manner according the respect due to religious and philosophical convictions of the parents. See also the dissenting opinion of judge Verdross in Kjeldsen and others v Denmark (ECtHR 7 December 1976). 13 See A Bainham, Children: The Modern Law (Jordan, Bristol 2005) 355 (‘it is not obvious that the medical profession should be allowed to pass judgment on non-medical matters such as moral and family issues’). 14 Art 315 Civil Code. See also Art 12 Spanish Constitution 1978. 15 Arts 154 III, 162, and 267 pr Civil Code. 16 Arts 162 II 1 and 267 Civil Code. 17 Among many others, see A de Lama Aymá, La protección de los derechos de la personalidad del menor (Tirant lo blanch, Valencia 2006) and B Aláez Corral, Minoría de edad y derechos fundamentales (Tecnos, Madrid 2003) 125 ff. 18 Art 663 Civil Code. But see Art 668 I (holographic will limited to persons of full age). 19 Art 48 II Civil Code. 20 Art 1263 I Civil Code. 21 See the judgment of the Supreme Court, 10 June 1991. See also C Martínez de Aguirre y Aldaz in Derecho Privado. Derecho de la Persona (3rd edn Colex, Madrid 2008) 420–1. 22 Art 162 III Civil Code. 23 Art 7(b) Workers’ Statute 1995. 24 Art 183.1 Penal Code 1995. Before 1995, consensual sex was restricted to youngsters older than 12. 25 See Art 2.II Organic Act 1/1996, of 15 January, on legal protection of minors. 26 See L Díez-Picazo and A Gullón Ballesteros, Sistema de Derecho civil (Vol I, 11th edn Tecnos, Madrid 2003) 231. 27 Gillick v West Norfolk and Wisbeck Area Health Authority [1986] AC 184. 28 Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine. 29 Art 6(2) refers to national law as to when a minor does not have the capacity to consent to an intervention, although it reminds that at any rate ‘the opinion of the minor shall be taken into consideration as an increasingly determining factor in proportion to his or her age and degree of maturity’. 30 Art 7.2(c), first paragraph, Act 21/2000, of 29 December. 31 Art 7.2(c), second paragraph, Act 21/2000. The other two were clinical essays and human fertilisation treatment. 32 An outline in English of its main features may be found in MT Requejo, ‘Legal Analysis of the Spanish Basic Law 41/2002 on the Autonomy of the Patient and the Rights and Obligations with Regard to Clinical Information and Documentation’ (2003) 10 (3) EJHL 257–69. 33 Art 9.3(c) in fine Patients' Rights Act 2002. Undoubtedly, this change contradicted the claim that legislation enhanced minors' autonomy. Indeed, it must be seen as a retreat from the original aim of laying down a special age on legal capacity as to healthcare choices, as it inevitably refers the disagreements between parents and children to the courts, thereby disempowering the competent child. See S Romeo Malanda, ‘Un nuevo marco jurídico-sanitario: la Ley 41/2002, de 14 de noviembre, sobre derechos de los pacientes’ (2003) La Ley 1522–39. 34 MA Parra Lucán, ‘La capacidad del paciente para prestar válido consentimiento informado. El confuso panorama legislativo español’ (2003) Aranzadi Civil 2. <http://www.westlaw.es>. 35 Critical on this point M Navarro Michel, ‘Los derechos a la intimidad y propia imagen del menor de edad: algunos supuestos conflictivos’ (2009) 93 Revista de Derecho privado 47–74 at 66. See also MC García Garnica, El ejercicio de los derechos de la personalidad del menor no emancipado: especial consideración al consentimiento a los actos médicos y a las intromisiones en el honor, la intimidad y la propia imagen (Thomson Aranzadi, Cizur Menor 2004) 126. 36 Judgment of 7 April 2010, upholding the ruling of the first instance administrative Court of Barcelona of 17 September 2007. 37 Judgment 154/2002, of 18 July. 38 ‘[T]he exceptional recognition of the minor's capacity for certain legal acts … is in itself insufficient for, by way of association, recognising the legal validity of an act … that, affecting the minor's life negatively, has the essential note of being definitive and therefore irrevocable’ (at no. 10). In the same sense, see Romeo Malanda (n 33) at 1525. Critical of the Constitutional Court's position, MJ Santos Morón, ‘Sobre la capacidad del menor para el ejercicio de sus derechos fundamentales: Comentario a la STC 154/2002 de 18 de Julio’ (2002) La Ley 1632–8. 39 See Art 5, Andalusian Decree 49/2009, of 3 March. This certificate aims at releasing health professionals from the burden of assessing the minors' capacity, but one may wonder whether it has also the advantage of avoiding the financial consequences of keeping them out from this profitable market. 40 For instance, see Valencian Decree 83/2002 and Catalan Decree 90/2008. Most regional laws on the issue do even require parental consent regardless whether the child is competent or not. 41 Art 156 I Penal Code. See also Art 1 Act 3/2007, on amendment of the gender registered in Civil Registry. In 2009, the media reported nonetheless that judicial authorisation of the surgical gender reassignment of a minor was granted at the boy's and parents' joint request. 42 See C Lema Añón, ‘Sobre el consentimiento de las menores para la interrupción del embarazo’ (2002) 43 Jueces para la democracia 34–38. See further S Romeo Malanda, ‘El valor jurídico del consentimiento prestado por los menores de edad en el ámbito sanitario’ (2000) La Ley 1453–72. 43 Judgment 53/1985, of 11 April. 44 Judgments of 30 January and 25 November 1991. 45 Among many, see JL Beltrán Aguirre, ‘La capacidad del menor de edad en el ámbito de la salud: dimensión jurídica’ (2002) 15 Derecho y Salud 10–26 at 21. See also JC Seuba Torreblanca and S Ramos González, ‘Derechos y obligaciones en materia de autonomía privada, información y documentación clínica. Presentación de la Ley 41/2002, de 14 de noviembre’ (2003) InDret 2, 13. <http://www.indret.com>. 46 Art 158 Civil Code. 47 See decisions of the Provincial Court of Madrid 5 June 2008 (rejecting the parents' claim to oblige an unwilling competent child to undergo an abortion) and the first instance court no 80 of Madrid of 1 April 2008 (granting permission to the competent child to undergo a lawful abortion against the wishes of the guardian). 48 Opinión del Comité de bioética de España a propósito del proyecto de ley orgánica de salud sexual y reproductiva y de la interrupción voluntaria del embarazo (October 2009) 26. <http://www.comitedebioetica.es>. 49 Opinion available at <http://www.gencat.cat/salut/depsalut/html/ca/dir2161/index.html>. 50 Report available at <http://www.mujeresenred.net/IMG/pdf/INFORMECOMITE050309.pdf>. 51 Opinion available at <http://www.fiscal.es>. 52 Dictamen 1384/2009, 17 September 2009. <http://www.consejo-estado.es/bases.htm>. 53 Consejo General del Poder Judicial. Comisión de Estudios e Informes. Informe al Anteproyecto de Ley Orgánica de Salud Sexual y Reproductiva y de la Interrupción Voluntaria del Embarazo (undelivered officially due to lack of agreement within the council; on file with author). 54 Dictamen 1384/2009, at 32 and Informe, at 55. 55 Dictamen1384/2009, at 33. 56 Compare Dictamen1384/2009, at 33, and Informe, at 56. 57 Whereas Basque Nationalists stressed that ‘minors are minors and therefore parents must be informed, … and we say that exceptions to this rule shall be admitted, but exceptions are exceptions and cannot become the rule’ (BOCG Congreso no 438, 10 December 2009 at 9), Catalan independentists backed the amendment on the basis that they thought that ‘once [the minor] adduces contrary interests, she shall be respected [and] has the last word’ (ibidem at 8). 58 BOCG Congreso no 438, 10 December 2009 at 11–2. 59 See Dictamen de la Ponencia in BOCG, Congreso no 41–9, 17 December 2009 at 7. 60 BOE no 55, 4 March 2010. An outline in English of its main features may be found in MT Requejo, ‘The New Regulation of Abortion in Spain’ (2011) 18 EJHL 397–412. 61 Royal Decree 825/2010, of 25 of June (BOE no 15, 26 June 2010). 62 Decision 90/2010, of 14 June (which rejected allowing the suspension of the Organic Act's immediate effect as a result of the admission of the constitutional complaint). 63 See above n 12 and related text. A criminal file for corruption of minors against the head of the Department of Health on the basis of dissemination of allegedly immoral materials in schools and social services, which was filed by Christian associations, has been dismissed by the courts (see Resolution of the Superior Court of Justice of Catalonia of 15 February 2011). 64 JL Beltrán Aguirre. ‘Anticoncepción, contracepción de emergencia y minoría de edad’ (2009) Revista Aranzadi Doctrinal 11. <http://www.westlaw.es>. 65 But it also contended that these solutions ‘shall always respect (and enhance) the autonomy of the competent, free and informed person above 16 years’ (emphasis in original) (p 4). 66 See above section II. 67 J Guerrero Zaplana, El consentimiento informado. Su valoración en la jurisprudencia (Lex Nova, Valladolid 2004) 83. 68 Gillick v West Norfolk and Wisbeck Area Health Authority [1986] AC 112; [1985] 3 All ER 402. 69 See Fortin (n 11) at 158–60. Further M Freeman, ‘Rethinking Gillick’ (2005) 13 Int'l J of Children Rights 201, 205–7. 70 Re C (Detention: medical treatment) [1997] 2 FLR 180 and Re P [2004] 2 FLR 1117. 71 See Bainham (n 13) at 354 (arguing whether this is reconcilable with the provisions of the Children Act 1989 on mature child capacity to make an informed decision). See also Lewis (n 11) at 154–6. 72 R. (on the application of Axon) v Secretary of State for Health and another [2006] EWHC 37 (Admin). 73 To which Lord Templeman's dissenting opinion had forcefully pointed to in Gillick. 74 M Brazier and E Cave, Medicine, Patients and the Law (4th edn Penguin Books, London 2007) 407. 75 J Bridgeman, ‘Young People and Sexual Health: Whose Rights? Whose Responsibilities?’ (2006) Med L Rev 14, 418–24 at 423. 76 Fortin (n 11) at 164. 77 Bainham (n 13) at 347. 78 As Charles Foster has put it ‘glittering though it may be, Axon does not establish autonomy's absolute kingship’. He stresses that these guidelines lay down a duty to try to persuade the girl to discuss the matter with her parents and an overriding obligation to consider whether treatment is in a Gillick competent patient's best interest (Choosing Life, Choosing Death: The Tyranny of Autonomy in Medical Ethics and Law [Hart, Oxford and Portland, 2009] 81). 79 Fortin (n 11) at 182. Bainham (n 13) at 354 also says that ‘the distribution of decision-making power which arises by operation of law is now a matter of considerable uncertainty and it is extremely difficult to state the law with any precision’. 80 Fortin (n 11) at 183. 81 As Emma Cave has put it. See E Cave, ‘Adolescent Consent and Confidentiality in the UK’ (2009) EJHL 16, 309–31, 331. 82 See Bainham (n 13) at 348, pointing out that such issues are better conceived as participatory decision-making processes. 83 See Cave (n 81) at 327 (on disclosure and consent as separated issues, thereby allowing acting in the best interest of the child). See also Bainham (n 13) at 359 (on solutions to provide opportunities for potentially beneficial parental involvement). © The Author [2012]. Published by Oxford University Press; all rights reserved. For Permissions, please email: journals.permissions@oup.com
TI - UNDERAGE ABORTION AND BEYOND: DEVELOPMENTS OF SPANISH LAW IN COMPETENT MINOR'S AUTONOMY
JF - Medical Law Review
DO - 10.1093/medlaw/fwr038
DA - 2012-01-01
UR - https://www.deepdyve.com/lp/oxford-university-press/underage-abortion-and-beyond-developments-of-spanish-law-in-competent-a0rwXxG8sy
SP - 48
EP - 66
VL - 20
IS - 1
DP - DeepDyve
ER -