1. Introduction

On May 15, 2019, the first chamber of the Supreme Court of Justice of the Nation (SCJN) of Mexico, resolved the legal protection revision 1388/2015, for the refusal of a hospital to terminate the pregnancy of the complainant, for health reasons. This was decided by a hospital that is governed by the General Health Law and the Federal Criminal Code, where the latter, the complainant intends to enact an implicit discrimination in articles 333 and 334 of the Federal Criminal Code, which tacitly prohibit the legal interruption of pregnancy for health reasons.

Article 333. - Abortion is not punishable when it is caused only by imprudence of the pregnant woman, or when the pregnancy is the result of a rape.

Article 334.- No sanction shall be applied upon: when the abortion is not provoked by the pregnant woman, or when the woman herself or the product are in risk of death, in the opinion of the attending physician, listening this one to the opinion of another physician, whenever this is possible and not the delay is dangerous. Emphasizing that such legislation is an act of concretization of a historic process of discrimination against women. Situation that resulted in a sentence, where the interruption of pregnancy is justified concurring with the eugenics of a fetus with a disability, and updates it as a right to health from a liberal setting.

Out of respect for the complainant, no allusion will be mentioned and only an exclusively academic analysis of the case in question will be established.

2. Background

Finally, by mail, the answer of the responsible authorities was the refusal of their request because the fetus could be self-sufficient, even if it had Klinefelter syndrome. In addition, it was indicated that the hospital is an institution of health within the federal field, which is governed by the General Health Law, which does not contemplate the legal interruption of pregnancy.

Considerations of the complainant:

Positioning in the sentence by the first Chamber of the SCJN:

3. General analysis

From the facts exposed, it is clear that due to her age, obesity and recent surgical intervention, pregnant women would be exposed to a high-risk pregnancy. The situation that, according to the lex artis ad hoc³ of medicine and medical ethics, should have informed her and point out all the consequences and situations that could occur due to their particular situation of vulnerability. As a result, if it was not performed, a medical malpractice is present, a situation that gives every person a adequate information on their health situation, respecting their autonomy, freedom and in particular their human dignity.

On the other hand, although Q had already had a spontaneous first miscarriage difficulty, she subsequently requested a genetic amniocentesis test in order to know if the fetus had a congenital problem, a situation that increased the risk to her health and the possibility of having an abortion, so that later she presented discomfort and bleeding. The foregone should have taken an informed consent according to her situation, likewise, it should have provided all counseling and psychosocial support, for the care it required.

Subsequently, with the result of amniocentesis, and diagnosis of Klinefelter syndrome, she requested that the pregnancy be interrupted, a situation that implies a eugenic act.

It can be deduced that there was probably a lack of ethics and professionalism, if the health professionals, did not provide adequate and correct information on the consequences and alternatives and support that can be provided for proper follow-up and care of your child.

However, the social security institution did not agree to the request for an abortion, following the strict legality of the rules that govern it, as well as the lack of conditions to do so, since what existed was a high-risk pregnancy.

However, since the amniocentesis itself could have caused an abortion, it can be considered a medical malpractice.

4. In depth analysis

5. Worrisome paragraphs of the sentence

6. Comments

A genetic condition happens in men when they have an extra X chromosome. This occurs in about 1 in 500 to 1,000 male babies. Women, who become pregnant after the age of 35, are slightly more likely to have a child with this syndrome than younger women.

The symptoms they present are:

These people can be prescribed testosterone therapy and this can help:

Most men with this syndrome are not able to get a woman pregnant. Nevertheless, an infertility specialist can help them. Visiting an endocrinologist can also be useful. These people should always be sent to support groups.⁶

Possible complications: enlargement of the teeth with a thinning of the surface is very common in the Klinefelter syndrome. This is known as taurodontism. It can be seen in dental x-rays.

This syndrome also increases the risk of:

People with such a disability can live with support and good human treatment; it is not possible to exterminate them, validating an act of discrimination and positive eugenics. In addition, the fallacious argument of provoking eugenics to have a decent life. Moreover, to avoid the suffering or pain of women to reach a full term pregnancy, or not allowing people with disabilities to be born, because they do not have a choice of dignified life, in addition to being a mechanism of psychological defense of those who adduce it, have a false premise. People with disabilities, per se, are not born unhappy, nor are they unhappy about their disability, especially if it is genetic. It is the adult psychological predisposition that the sentence of unhappiness is met. If you unconsciously split from being unhappy, you end up doing things that will make that person unhappy. This fact is well established in the whole psychology of child development.⁷

Instead, the attitude of unconditional acceptance, that is, loving, part where everything is done to be happy and thus, significantly supports the development of a strong and mature personality of these people. For example, the one that is eliminated or discriminated because of having a disability such as Down syndrome (Trisomy 21), with Turner syndrome (Monosomy X), or Klinefelter (Trisomy XXY), where most people lead a normal and productive life. Moreover, the great humanists Nicholas James Vujic and Hirotada Ototake, with the Tetra-Amelia syndrome, were born without legs and arms, and according to the ideology of perfection, they would be suitable candidates for abortion; however, and a contrario sensu, following the lex artis ad hoc, the treatments and supports necessary for its inclusion must be provided.

To want to base the death of these people in the first stage of their existence, is to grant a false right, they are mere exercise of the law of the strongest, which may well be a majority of consensus, of experts, democratically elected parliamentarian or a jurisdictional decision one or a few-as is the case. It is at pure discretion of those who hold power: they sanction their supposed right to trample on the weakest, who in this case lacks any possibility of defense. Representatives who cannot be the ultimate source of good and evil.

The current social model, considers that the problem is not in the person with disability, but in the social factors that generate their exclusion. To the extent that the barriers that prevent people with disabilities from leading an autonomous life and having the same opportunities as other citizens disappear, disability ceases to be a factor of exclusion. In this way, disability is understood as a disgrace and is seen as another manifestation of human frailty that should not prevent, as long as possible, a full life. Accepting abortion due to the risk of a future disability implies regression to an anachronistic disability and, above all, discriminatory.

On this criterion, in 2011 five United Nations agencies⁸ jointly prepared a report to denounce the practice of selecting the sex of people who are going to be born through selective abortions, widespread in many countries of the world. In the same year, the Committee on the Rights of Persons with Disability made public some considerations on the report presented by Spain about the degree of compliance with the Convention on the Rights of Persons with Disabilities, where it condemns Spain for its treatment of disability in the current regulation on abortion. It argues that each State is free to establish its own regulation on abortion, but rejects that a reason to consider abortion as lawful is disability.⁹ In this regard, the undersigned states that at the time of signing the Convention on the Rights of Persons with Disabilities and in accordance with Article 10 «Right to Life,» the member States reaffirm the inherent right to the life of all human beings. Therefore will take all necessary measures to ensure the effective enjoyment of this right by persons with disabilities on equal terms with others.¹⁰

On the right to health under the control parameter of constitutional regularity,¹¹ it is worth highlighting:

As can be seen in the concept of the «highest possible level of health», referred to in paragraph 1 of article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), biological conditions are taken into account and socioeconomic essentials of the person as the resources available to the State. There exist several aspects that cannot be addressed solely from the point of view of the relationship between the State and individuals in particular, a State cannot guarantee good health nor can it provide protection against all possible causes of human ill health. Thus, genetic factors, the individual tendency to a condition and the adoption of unhealthy or risky lifestyles often play an important role about the health of the person. Therefore, the right to health should be understood as a right to enjoy a range of facilities, goods, services and conditions necessary to achieve the highest possible level of health.

What has been specified by the World Health Organization (WHO), in the sense that health is a state of complete physical, mental and social wellbeing, and not only the absence of diseases or illnesses. Thus, the enjoyment of the maximum degree of health that can be achieved is one of the fundamental rights of every human being without distinction of race, religion, political ideology or economic or social condition.¹²From this definition, well-being¹³ becomes the broadest concept of health; changes in the state of the environment can result in environmental impacts, capable of positively or negatively influence the environmental services that determine human well-being. For example, the health effects associated with the degradation or loss of ecosystem services include avoidable mortality;¹⁴ morbidity¹⁵ burden of disease;¹⁶ discomfort / psychological suffering¹⁷ and violence (physical or symbolic).¹⁸

Thus, health involves prevention, promotion and protection activities and implies a comprehensive approach in which physical and social environments are included, as well as other factors related to existence. Under a similar approach and very interestingly, this right is defined by the last part of the last thesis of the Supreme Court cited in the bill: «[...] the right to health must be understood as a right to enjoy a wide range of facilities, goods, services and the necessary conditions to reach the highest possible level of health. “The same body also points out”: the right to health, which implies obtaining a certain general well-being and that, is necessarily integrated by the physical, mental, emotional and social status of the subject, including then the right to physical-psychological integrity».¹⁹

As noted, the issue of well-being and health is very different to how they expose both the complainant and the sentence. For its part, the Committee on Economic, Social and Cultural Rights (General Comment 14, paragraph 36) states: there is an obligation to ensure that the infrastructure of public health provide sexual and reproductive health services, including safe motherhood, mainly in rural areas.

In that intelligence, General Comment 15 of the rights of the child to enjoy the highest possible level of health (Article 24), paragraph 18 states: «Among the main determinants of health, nutrition and child development, the realization of the mother’s right to health and the role of parents and other caregivers should be mentioned [...]».

Therefore, the right to health, at no time promotes abortion or misnamed interruption of pregnancy.

Based on the right to health and women, a high-risk pregnancy is one that has associated factors that can negatively affect the health of the mother or the fetus. Good control of pregnancy is key to avoid major problems, as it should be with a health approach.

To which a high-risk pregnancy is one that has more possibilities of complications, both from the point of view of the mother and the baby and, therefore, the previous control during pregnancy, delivery and puerperium, must be more complete, avoiding any possible risk.

The term refers to medical, social, gynecological or obstetric circumstances that may put at risk the health of the mother, the baby, or of both, with a higher probability than the one of general population during pregnancy, delivery or puerperium.

The causes of high-risk pregnancy are very varied, but there are a number of factors associated with it, some of which are present before the woman becomes pregnant, while others develop during pregnancy. It is important to identify them early (ideally before conception occurs) in order to estimate their importance and thus reduce the adverse consequences of them, since they increase both the incidence of complications during pregnancy, such as the risk that the situation may recur in later pregnancies, for the case at hand:

The fact of identifying a pregnancy as high risk, before or during its course, ensures that the woman has to follow a more complete and a series of special care, not an abortion as a solution.

In the case at hand, and in the subsequent cases, from a bioethical and bio-legal perspective and, under human rights standards, respecting all persons for their ontological dignity, and without discrimination based on sex, health, age or any other distinction that exclude him/her as another one of our species and common humanity. The foregone should provide, as a preventive measure and in the context of the right to health, the preconception consultation, recommended before planning a pregnancy, in order to identify social and medical conditions, both maternal and paternal, that can be optimized before gestation, in order to increase the chances of a favorable perinatal result.

In the first consultation a complete clinical history, request for basic tests and others that help us to control the pathology of each patient, and a gynecological and mammary exploration with cervical cytology according to the population-screening program will be carried out.

Likewise, a more individualized follow-up protocol must be followed, with a greater number of visits with the obstetrician, to control the evolution and to make an early diagnosis of the complications. The frequency of each visit and explorations will be determined by the type and severity of the disease, interspersed with visits to the midwife.

Weight, blood pressure, edema or varicose veins, Leopold maneuvers (presentation and fitting in of the baby), measurement of uterine height, fetal heart auscultation (from the second trimester), detection of uterine dynamics (contractions from the third trimester), cervical exploration (in the second-third trimester and according to background), and ultrasound scans (ultrasound and fetal Doppler by a Prenatal Diagnostic Unit) will have to be controlled in every case.

In some cases, it is necessary to stay a time in the hospital to treat possible complications that arise after giving birth. Sometimes it is necessary for other medical specialists to assess the state of the mother. It is also recommended that the pregnant woman should be treated before, during, and after delivery, in an III Level Hospital or specialized in Maternal-Fetal Medicine with Neonatal Intensive Care Unit and adult, in case of complications.

An important fact in the control of pregnancy of high obstetric risk is to keep the patient always informed of the prognosis of her pregnancy. In addition, she has to monitor the influence of pregnancy on her illness, the possible complications and their prevention, the frequency of visits, the warning signs before whom you must go to the hospital, and the way and time of termination of pregnancy. This situation is in no case whatsoever cruel or inhuman treatment or degrading, rather it is an informed consent and follow-up care and support according to her particular situation.

If the pregnancy is well controlled and the doctor’s recommendations are followed, no complications should arise. When a woman has a high-risk pregnancy, it is convenient to adopt a series of measures to prevent complications as far as possible, not to encourage abortion, which is the case, if a right to her sexual and reproductive health is fulfilled, with human perspective and according to the lex artis ad hoc of medicine.

7. Conclusion

Therefore, what is seen is the exclusion of the fetus, denying its human dignity, which is a fundamental and inherent value of every human being, ignoring its value as a person, and consequently any right recognized by the constitution and treaty on human rights.

By performing the genetic amniocentesis test which determines the Klinefelter syndrome, a liberal eugenics is updated, violating the principle of synderesis, the core of ethics and law «do good and avoid evil», and violating the relational coexistence of all people, by an unfair and discriminatory resolution against the fetus due to their disability, denying their humanity by excluding it from the human race. Moreover, it stigmatizes it as undesirable and giving its mother the right to eliminate it from its existence, lowering it to object of law, a situation that the SCJN supports and justifies, violating the principles of completeness and impartiality, promoting and generating a jurisdictional antecedent aimed at eugenics. This situation goes against ethics, bioethics and biolaw, by establishing criteria that reify and they begin to establish references that discriminate against human beings at the beginning of their existence, increasing their vulnerability and making invisible embryos and fetuses.

The foregone is a risk, for the relativism that invades us and even more in the dawn of the trans and post humanism that threaten to discriminate against human beings that do not meet the standards of quality and well-being of life.

The good and proper care and therapeutic follow-up that all people must have at any time of their existence, under the ethical, totality, therapeutic and subsidiarity principles, that all health professionals must follow, when corrupted must recognize the courts for the benefit of life, personal integrity and health of all people at any time of their existence without any distinction.

Now, the health professionals should follow all the protocols for an adequate and informed maternal and childcare and their statement would be constructive and cooperative for all people, without discrimination of any kind. Thus they should not only establish the sole option of abortion, under fallacies and euphemisms outside of good medical practice and even more under criteria based on evidence and with ethical and bioethical principles, the path is clear to safeguard the life and health of all people related to the case.

Finally, a constitutional court must analyze the case above all the people involved and even more in a situation of vulnerability. Likewise, if the constitutional regularity parameter of the right to health is the reference to be applied, it must be looked after all the patients and for the correct medical attention. Thus according to the lex artis ad hoc, that all the procedures endorsed and standardized by professional instances and according to the science based on evidence and ethical principles are carried out, without any type of discrimination and under the legal values that must respect the ontology of the human being, the basis of bio-legal.