N. R. F. s/ abuso sexual s/ incidente solicitud interrupción embarazo s/apelaciones

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A girl allegedly raped claimed for abortion under the art. 86 (2) of the Criminal Code of Argentina, which excluded women from criminal liability when they have been raped and they were mentally disabled.  The girl had no disabilities.

The First Instance Court authorized the abortion and, fifteen minutes later, gave notice to mass media. At this time, the girl had nine weeks of pregnancy.

The judgement was challenged based on the due process clause with the Criminal Court of Appeal [Cámara Primera en lo Criminal]. The Child Advocate argued that the judge had not designated a special tutor for the fetus and that he has not been attended at trial. The advocate also argued that the judge had not responded for her incidental petitions.

The Criminal Court of Appeal concluded that the inferior court had violated the right of the fetus to a due process of law. For the court, the inferior judge had unlawfully authorized an abortion based on mother’s rape even when she did not suffer any disability as the Criminal Code mandates. The court also said that judge had precluded to unborn representatives the proper intervention at trial.

In first place, the judge said that Child Advocate are right because even if she had claimed for a special tutor for the fetus, the inferior judge had never responded. In fact, inferior judge had authorized abortion fifteen minutes after receiving the medical opinion about pregnancy. For the court, this reflected judge’s partiality and preconceptions; thus, appellees’ intervention was no more than a fiction.

The trial court added that appellee was futile because abortion had already taken place. For the court, the judge should instruct health authorities to paralyze and/or to stop abortion until the definitive sentence was issued.

Finally, the court sustained that the judged had acted unlawfully by authorizing abortion even if the pregnant woman did not have any disability and even if rape had not been fully proof.

“[A]fter granting the suspensive effect of the pending the appeal, the inferior judge should instruct health authorities to paralyze and/or to stop surgical maneuvers regarding abortion because its decision was not definitive”.