Judge María Luisa Balaguer signs a separate concurring vote, since she agrees with the decision, but questions whether the pregnant woman's partner has the legitimacy to impose an amparo appeal.
The plenary session of the Constitutional Court has dismissed the appeal filed by a couple against the court orders that forced the woman to enter a hospital to induce labor as the life of the fetus was at risk, although her wish was to give birth in House.
The Court endorses the decision that was made after weighing the right to physical freedom and personal and family privacy and the life and health of the unborn, protected by article 15 of the Constitution, which includes the right to life and physical and moral integrity.
Three magistrates have signed separate dissenting opinions considering that a deprivation of liberty was decreed without respecting the minimum guarantees to protect fundamental rights, since the mother was not given an audience.
However, in the opinion of the majority of the magistrates, the measure adopted was "constitutionally legitimate" because its "suitability, necessity and proportionality" were sufficiently motivated.
Although there is no legislation applicable to these cases, the court explains in a statement, the resolutions that forced the hospitalization offered "a reasonable normative coverage" to intervene judicially and adopt a measure "protected by a legal duty to protect an asset derived from the constitutional text".
The orders validated by the court of guarantees were issued by an instruction court in Oviedo and by the Provincial Court of Oviedo, which agreed to the compulsory entry of the woman "for the practice, if necessary, of an induced birth" after the request of the Asturian Health Service, based on reports from the Obstetrics Service of the Central University Hospital of Asturias.
The doctors explained that, despite the warnings issued, the parents' wish for the birth to take place at home with the assistance of a midwife meant putting the life of the fetus in "imminent and serious danger" due to the risk of "fetal hypoxia (deficiency of oxygen in the blood) and intrauterine death" due to the advanced stage of pregnancy, since they had exceeded 42 weeks of pregnancy.
With the court order, the woman was transferred by ambulance to the hospital, where a cesarean section was performed on medical indication due to the complications presented by a labor that had started spontaneously.
In its appeal, the family considered that the judicial measure was not protected by any appeal, considers that the judicial measure adopted was not protected by any legal precept, that it was not granted a prior hearing and that it was not sufficiently motivated.
The court agrees that before adopting a measure of this type, the surrogate mother must be given a hearing, but it considered that, in this specific case, "the urgency of the situation" justified the omission of that procedure.
In their private votes, the magistrates Juan Antonio Xiol, Ramón Sáez and Inmaculada Montalbán defend, however, that the appeal should have been upheld. The lack of hearing the pregnant woman, in her opinion, cannot be justified by the urgency of the case, since there are legal mechanisms that make it possible even in cases of "extraordinary urgency"
In his opinion, it is necessary to preserve "minimum unavoidable guarantees" to avoid serious interference by public powers in the lives of citizens; its non-compliance reveals "a total absence of a gender perspective" and "a violation of the plaintiff's rights to personal freedom, personal privacy and effective judicial protection".
For her part, the magistrate María Luisa Balaguer signs a separate concurring opinion, since she agrees with the decision, but questions whether the pregnant woman's partner has legitimacy to impose an amparo appeal.
In another concurring dissenting opinion, Cándido Conde-Pumpido defends that the appealed proceedings did have a normative basis due to the legal duty to protect life in formation when -as was the case in this case- "the viability of the fetus was absolutely undeniable before the advanced state of pregnancy of the plaintiff".