El proyecto de ley que despenaliza el aborto voluntario en Argentina, es indudablemente un proyecto muy bien redactado y que resuelve todas las objeciones que se hicieron desde algunos sectores.
En principio digamos que no es digno para ningún niño nacer en un contexto familiar donde se disputa su nacimiento o no, lo que no augura felices vínculos con sus padres.
Pero además debe quedar en claro la esencia del proyecto que se trata: el aborto está mal, es una opción horrorosa que una mujer toma solamente en casos donde no hay otra salida, el aborto seguirá siendo pecado en todas las religiones. Pero lo que queremos es que una mujer no vaya presa por abortar, solamente eso, porque creemos que la cárcel no puede ser la respuesta del Estado a una decisión personalísima como ésta.
En lo que al área constitucional refiere, digamos que la definición de persona incumbe al Congreso, no habiendo impedimentos constitucionales para decidir si la persona existe desde la concepción (unión del óvulo con el espermatozoide) o desde el nacimiento, pasando por las etapas intermedias.
Tal como expusiéramos hace años la situación constitucional puede resumirse del siguiente modo:
1- La Constitución en el inciso 23 de su artículo 75 habla de la “protección del niño en situación de desamparo, desde el embarazo”
2- El pacto de San José de Costa Rica establece que la vida se protege “en general, a partir del momento de la concepción” con lo cual permite excepciones que dispongan los legisladores.
3- La Convención por los derechos del niño no establece que la vida se protege desde la concepción como maliciosamente dicen algunos. Cuando Argentina firma el pacto, por una ley, se aclaró que para Argentina la vida empieza con la concepción. Con lo cual otra ley podría disponer de manera distinta. En FAL la Corte ha dicho que esa reserva no tiene ninguna consecuencia jurídica concreta (es interpretativa, y no es técnicamente una ‘reserva’).
4- El código civil argentino establece que hay persona desde la concepción, pero que si el feto nace muerto se considerará que nunca existió. No depende de la ley civil definir si un acto acarrea o no consecuencias penales. Y recordemos que el Código Civil también es una ley que puede ser modificada por otra ley.
5- El Código Penal reprime el aborto realizado en cualquier momento desde la concepción, pero admite algunos supuestos: el terapéutico (cuando la vida o la salud de la madre están en riesgo) y el eugenésico (cuando la madre es idiota o demente y fue abusada), aunque algunos entienden que se aplicaría a cualquier caso de violación. También el Código Penal es una ley modificable por el Congreso.
Sintetizando nuestra normativa interna, como dijo el convencional Raúl Alfonsín en el debate de la Convención Reformadora de 1994 “Hemos dictado una Constitución que permite al Congreso decidir si se permite o no el aborto”.
Finalmente digamos que el Sistema Interamericano de Derechos Humanos que surge de la CADH (Pacto de San José de Costa Rica) ha emitido dos pronuciamientos relevantes: Artavia Murillo y Baby Boy. En ambos ha dicho con claridad que el embrión no es persona en términos jurídicos, y que por lo tanto no es necesaria la misma protección legal que tiene una persona nacida. Caso contrario, ni siquiera podrían manipularse o descartarse embriones en las clínicas de fertilidad humana.
Queda en manos de la prudencia de nuestros legisladores resolver este asunto, y en manos de los ciudadanos peticionar y votar para que atiendan a sus reclamos.
Yo, voto aborto legal.


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