Consorcio para el
Derecho Socio-Ambiental
D
Derechos Humanos
The Contraceptive Emergency Pill
Doctors Virginia Gómez de la Torre, Silvana Sánchez Pino, Jenny Londoño López and Rocío Rosero, by their own women’s rights and in representation of the Ecuadorian Centre for the Promotion and Action of Women CEPAM-QUITO, the Latin American and Caribbean Committee for the Defense of Women’s Rights CLADEM-EQUADOR, the Political Coordinator of Ecuadorian Women, the National Counsel of Women CONAMU, legal persons that defend the consolidation and the irreversible conquests of gender, who, as directly injured parties proposed various complaints before the Ombudsman’s Office; who will be immediately threatened by the acceptance of the constitutional protection by means of the resolution issued by the Third Judge of the Civil Court of Guayas, regarding the protection formulated by the lawyer Fernando Rosero against the Ministry of Health and the Izquieta Pérez Institute, despite of their condition of victims, present and potential, of an eventual confirmation of the estimative judgment risen in degree, by appeal of the respondents, of injured third parties, for the sole effect of making their intervention possible in the process, recorded in the Court under number 001405 RA, delivering a report that we subsequently summarize;
Absence of the illegal act of public authority
The first sine qua non requirement to accept constitutional protection to procedure and in the merits claim is the presence of an illegal act committed by public authority. Within this kind, the National Institute of Hygiene and Tropical Medicine Izquieta Pérez, the main one involved, using other terms typical of the criminal field, is a public organ of technical character with own legal personality and has, among its competences, conferred by the law,
In this way, in exercise of its duties and powers conferred by the law that established it, the Institute has granted the sanitary registration of a contraceptive emergency pill, after an objective, scientifically rigorous, unbiased and impartial study, we do not see grounds of certain legal burden as to suggest that the sanitary registration granted by the said institute be considered as an illegal act. The sanitary registration was issued by who has the faculty to do it and not by someone that lacks powers for doing that.
Additionally, it shall be indicated that the granting of the sanitary registration was subjected to the procedures established and required by law, for which the administrative act has been a product of a serious study and its expedition was supported in abundant and exhaustive motives of scientific-technological order. This is enough motivation that frees the administrative act, non-arbitrary in any way, of the smallest shadow of suspicion regarding its legitimacy, unjustifiably questioned by an empty constitutional protection.
Without signs of infringed or threatened human rights
It is not enough to say that a real threat of violation of the right to life exists or that it has been infringed. One must present irrefutable reasons and conclusive proofs on the violation or the injury threat of such right so that the constitutional judge agrees with what is maintained by the actor that has appeared, by his own subjective rights, in the formulation of a constitutional protection.
show, with solid arguments and scientifictechnical reports, given or presented by institutions of high credibility, like the WHO, or researchers of undeniable size, as the illustrious Ecuadorian gynecologistobstetrician doctor Andrés Calle, that the contraceptive emergency pill is an abortive means that attempts to the right to life and not an efficient system to avoid unwanted pregnancies.
Solid bases to grant sanitary registration
The Izquieta Pérez Institute, on the base of its own investigations and with the endorsement of the most advanced scientific opinion, in the field of its legal and technical competences, granted the registration of the CEP1, of the brand requested, in the credible and human conviction that with the use of this pill, conception and unwanted pregnancy is pursued or is sought to be impeded, always recalling that it is not the same thing to impede than to interrupt, that is not scientifically correct to identify fertilization with conception, that the use of the contraceptive pill is accepted in the daily life catholic world despite the sentence of the Church, that once the zygote is placed in the endometrio, state in which, according to the experts, begins pregnancy, which can not be damaged by the pill and that in the misfortune, scientifically unverified, that the pill finishes, accidentally with a fertilized ovule, this uncertain event is not a fact pursued or sought by whom made the product neither by whom employs, allows or recommends its use.
Reception in health strategies
This scientific truth that support that the Emergency Contraception is not abortive has been well received in the public health strategies of various countries in the world, like Germany, Belgium, Colombia, Chile and Ecuador. It is the way in which so many countries have authorized its employment, as mechanism to avoid unwanted pregnancies.
Additionally, some countries have not been satisfied with conferring the authorization for the use but they have promoted its employment in cases of rape. Such is the case of Chile and Ecuador. Guidelines in this sense dictated by the Attorney General’s Office exist in our country (protocols of attention to the victims of sexual violence) and routine applications in the Legal Medical Division of the Ecuadorian Judicial Police and in the Police Stations for Women.
Judges pronouncement
We can neither ignore the pronouncements of the Peruvian, Chilean, and Colombian judges that, after getting acquainted with similar lawsuits to the one presented by lawyer Rosero, finally have considered that the Emergency Contraception is, as its name indicates it, a contraceptive method and that therefore its adoption does not attempt against the right to life of the children that are found in the maternal womb.
Irreversible conquest Besides, we cannot forget that Emergency Contraception, or the so-called Yuzpe method, or the brand method, is an important instrument to protect the rights of thousands of women, victims of sexual violence or prone to unwanted pregnancies, as is the case of a high number of teenagers that otherwise would be tempted to opt for the clandestine, highly risky and traumatic abortion; highly risky for their life and very traumatic as an event that will mark them for life.
The feminist movement considers Emergency Contraception as an invaluable scientific contribution and an irreversible and permanent conquest in its fight for the sociological operation of their autonomy, sexual and reproductive rights.
In this conquer, the order to achieve the introduction of brand products that Ecuadorian women can obtain;
brand products, as POSTINOR 2 or any other that results more effective
Double speech
We have read that the Church accepts emergency contraception in the cases of rape.
The Church has not wanted to pay attention to article 447 of our Criminal Code that accepts abortion in two cases.
The Church accepts the use of the CEP, by reasons of mercy with the raped woman, despite its absurd conviction that it is a matter of an abortive method that kills an innocent human being, and accepts likewise, nor establishing objections of conscience neither theological subtleties, the carte blanche of the legalization to practice abortion in two situations, granted by article 447 of the Criminal Code, in spite of considering it as the death and expulsion of the maternal womb of an innocent and defenseless child. It allows abortion to save the mother or to impede the birth of a child conceived by an act of rape or rape in an idiot or insane woman.
The actor of the present protection quotes only the articles of the Criminal Code that establish abortion as crime and omits deliberately, the legalization of abortion in the two cases indicated in the referred article 447 of the Criminal Code, surely not to expose before the judges his ethical incoherent position and the weakness of his legal argument.
If one wants to be coherent and authentic, once should not practice a double speech. It turns out to be ethically unacceptable that while, on the one hand, the life of the human being since the moment of conception is furiously defended with the sole purpose to be opposed to the sanitary registration of a CEP, on the other hand, abortion is peacefully allowed by the causes established in the Criminal Code, and at the same time, the clothing has been torn, when legislator Miriam Garcés proposes to expand the legalization of abortion in case of rape of a woman that is neither mentally retarded nor of unsound mind.
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El Artículo original entero se encuentra en
by Dr. Raúl Moscoso Álvarez
Former Regular Member of the Constitutional Court,
miembro de la Asociación Americana de
Juristas y Consultor de FEDAEP
