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Spain

Sandy Savini, Lynn Gertiser

Constitution

The right to health is included in the following sections and articles of the Constitution of Spain:

Article 43

  • The right to health protection is recognized.
  • The public authorities must organize and safeguard public health through preventive measures and the necessary facilities and services. The law shall establish the rights and duties in regard to these subjects.

Organic Law (Ley Organica)

The right to health is included in the following sections and articles of the Organic Law of Spain:

Article 7 - Attention to sexual and reproductive health

Public health services will ensure:

  • The quality of services in sexual health and promotion are based on the best scientific knowledge available.
  • Universal access to effective clinical planning practices of reproduction, by incorporating latest generation contraceptives whose effectiveness has been backed by scientific evidence, in the common benefits of the National Health System.
  • The provision of quality services to help women and couples during pregnancy, childbirth and postpartum. In providing these services, the accessibility requirements of people with disabilities are taken into account.
  • The perinatal care; centered on the family and on a healthy development.

Sexual and reproductive rights implementation

Abortion

Organic Law (2/2010)

Article 13 - Common requirements

Requirements for abortion:

  • It has to be practiced by a specialist physician or under his direction.
  • It has to take place in a public or private accredited health institution.
  • It has to be done with the express written consent of the pregnant woman or, if applicable, the legal representative.
  • For women aged between 16 and 17, the consent for abortion belongs exclusively to them in accordance with the general rules for older women. At least one of the legal representatives, a parent, a person with parental authority or guardians of the women between these ages must be informed of the decision of the women. This information may be dispensed with when the minor reasonable claims that this will cause a serious conflict, manifested in some danger of domestic violence, threats, coercion, abuse, homelessness or rootlessness.

Article 14 - Termination of pregnancy at the request of the woman

The pregnancy may be interrupted within the first fourteen weeks of gestation at the request of the pregnant woman, if the following requirements occur:

  • The pregnant woman has to be informed on the rights, benefits and public assistance to support motherhood.
  • That a period of at least three days has elapsed between the information referred to in the preceding paragraph and the intervention.

Article 15 - Discontinuation due to medical reasons

Exceptionally, the pregnancy may be interrupted for medical reasons when any of the following circumstances occur:

  • Not exceeding twenty-two weeks of gestation and whenever there is a serious risk to the life or health of the pregnant woman, and so stated in an opinion issued prior to the intervention by a doctor or other medical specialist different from the one performing the intervention. In cases of emergency when there is a vital risk for the mother, the advice and consent may be dispensed.
  • Not exceeding twenty-two weeks of gestation and whenever there is risk of serious fetal anomalies and so stated in an opinion issued prior to the intervention by two different medical specialists different from the one performing the intervention.
  • When fetal anomalies incompatible with life are detected and so stated in an opinion issued earlier by a doctor or medical specialist different from the one performing the intervention, or if the fetus is diagnosed with an extremely serious and incurable disease confirmed by a clinical committee.

Article 17 - Information prior to the consent of abortion

  • All women who express their intention to undergo an abortion should receive information about various abortion methods, accredited public centers, the paperwork to access the service, and the conditions to be covered by the public health service.

Penal Code

Article 144

He that performs an abortion on a woman without her consent shall be punished with imprisonment from four to eight years and have a specific disqualification to practice any health profession, or service of any kind in clinics or gynecological practices, public or private, for three to 10 years. The same penalties shall be imposed when the abortion was performed after obtaining the consent of the woman by force, threat or deception.

Article 145

He that performs an abortion on a woman, with her consent, outside the cases permitted by law, shall be punished with imprisonment from one to three years and disqualification to practice any health profession, or to provide services of all kinds, clinical or gynecological, public or private, from one to six years.

Violence against women

Penal Code

Article 9

The education system shall provide educational training in sexual and reproductive health, as part of the overall development of personality and values, including a comprehensive approach contributing to:

  • Promoting a vision of sexuality in terms of equality and responsibility between men and women with special attention to the prevention of domestic violence, sexual assault and abuse.
  • The recognition and acceptance of sexual diversity.

Organic Law (1/2004)

Article 1

  • The present Law aims to act against violence that, as a manifestation of discrimination, inequality and power relations of men over women, is exercised over them by those who are or have been a spouse or who are or have been linked to them by similar affective relations, without cohabitation.

Article 17 - Guarantee for the rights of victims

  • All women victims of gender violence, regardless of their origin, religion or any other condition or personal or social circumstance, have guaranteed rights under this Law.
  • The information, comprehensive social assistance and legal assistance to victims of gender violence in the terms covered in this chapter help to make real and effective their constitutional rights to physical and mental integrity, liberty and security and equality and non-discrimination on grounds of sex.

Human trafficking

Penal Code

Article 177 bis

  • Shall be punished with a sentence of five to eight years in prison as guilty of human trafficking whoever, either in Spanish territory or from Spain, in transit or traveling to it, uses violence, intimidation, deception, abuse of a position of superiority, or vulnerability of the national or foreign victim, the capture, transport, movement, or receiving the victim for any of the following purposes:
    • The imposition of forced labor or services, slavery or practices similar to slavery or servitude.
    • Sexual exploitation, including pornography.
    • The removal of their body organs.

Rights of sexual minorities

Penal Code

Article 22

Aggravating circumstances:

  • Committing a crime with racist, anti-Semitic motives, or other forms of discrimination relating to ideology, religion or beliefs of the victim, the ethnicity, race or nation to which he belongs, his gender, sexual orientation or identity, his disease or disabilities.

Article 178

The person, who attacks the sexual freedom of another person with violence or intimidation, shall be punished as responsible of sexual assault with imprisonment from one to five years.

Article 314

Those who produce serious discrimination in employment, public or private, against any person because of their ideology, religion or beliefs, ethnicity, race or nation, gender, sexual orientation, family situation, illness or disability, shall be punished with imprisonment from six months to two years or a fin from 12 to 24 months.

Civil Code

Article 44

Marriage will have the same requirements and effects when both parties are the same or different sex.

Rights of transgender people

Penal Code

Article 22

Aggravating circumstances:

  • Committing a crime with racist, anti-Semitic motives, or other forms of discrimination relating to ideology, religion or beliefs of the victim, the ethnicity, race or nation to which he belongs, his gender, sexual orientation or identity, his disease or disabilities.

Article 314

Those who produce serious discrimination in employment, public or private, against any person because of their ideology, religion or beliefs, ethnicity, race or nation, gender, sexual orientation, family situation, illness or disability, shall be punished with imprisonment from six months to two years or a fin from 12 to 24 months.

Article 510

Those who provoke discrimination, hatred or violence against groups or associations for racist, anti-Semitic reasons or other related to ideology, religion or beliefs, family status, membership of members of an ethnic group or race, national origin, sex, sexual orientation, illness or disability, shall be punished with imprisonment from one to three years and a fine from six to twelve months.

Organic Law (3/2007)

Article 1 - Legitimation

  • Any adult person of Spanish nationality, with sufficient capacity, may request the rectification of the sex registry.

Article 5 - Effects

  • The decision ordering the correction of the sex registry will have constitutive effects on the civil register.
  • The registration rectification will enable the person with all the rights attached to their new condition.
  • The change of sex and name will not alter the ownership of rights and legal obligations that may apply to the person prior to the registry change.

Sexual and reproductive rights challenges

Spain is one of the countries with the most precise laws on violence against women and human trafficking. Despite its very religious background, Spain is constantly developing its laws on transgender people, abortion and sexual minorities.