Before the promulgation of law n. 194/78 concerning voluntary termination of pregnancy, the Constitutional Court “declare[d] unconstitutional the part of Art. 546 of the Penal Code that does not provide for the termination of pregnancy when prolonged gestation might cause harm, medically ascertainable and inevitable, to the health of the woman”.
Italian Constitutional Court - decision n. 27/1975: voluntary termination of pregnancy
18 febbraio 1975
Numero
27
Anno
1975
The question of constitutionality specifically referred to Art. 546 P.C., which punished those who gave an abortion to a consenting woman, even if it was determined that the physical or mental well-being of the pregnant woman was in danger, short of reaching a state of necessity.
According to Art. 54 of the Penal Code, it is not possible to punish someone who committed the fact only when he or she was “forced by the need to save oneself or others from the immediate danger of serious harm to the person”. This exemption could not therefore extend to cases where the danger to the woman was not immediate or the potential damage was not serious.
The provision did not cover the specific case of a woman, M.C., who terminated her pregnancy in light of the non-immediate danger of worsening her myopia.
The Court, referring to the case, affirmed that “the situation of the woman is of a particular nature which does not find an adequate safeguard in a norm with a general nature such as Art. 54 P.C. This rule requires immediate danger to the woman; but while danger can be foreseen during pregnancy, it is not always immediate”. The Court “declare[d] unconstitutional the part of Art. 546 P.C. that does not provide for the termination of pregnancy when prolonged gestation might cause harm, medically ascertainable and inevitable, to the health of the woman”. However, the Court also makes a clarification: "the exemption from punishment… does not exclude that… the procedure must be performed to save the life of the fetus when possible”.
Full text of the decision in Italian can be found here.
Derek Van Becelaere, Raffaele Guerini
Pubblicato il: Martedì, 18 Febbraio 1975 - Ultima modifica: Lunedì, 02 Settembre 2019
