F., A.L. s/ Medida Autosatisfactiva, Expediente Letra “F,” No. 259

Plaintiff, a minor represented by her mother, sought a court order, under art. 86, para. 1 and 2 of the Penal Code, permitting termination of her pregnancy, which Plaintiff alleged resulted from rape by her mother’s husband. Plaintiff was in the eighth week of pregnancy and was suffering from depression as result of the pregnancy. The Superior Court of Justice overturned a lower court’s holding, and permitted an abortion to be carried out. Importantly, at this time, a growing body of jurisprudence from different provinces, protocols, and national health regulations had interpreted this provision to permit abortion in all cases of rape, given lack of clarity within the provision’s statutory construction.

The decision was subsequently challenged in the Argentine Supreme Court of Justice on behalf of the ‘unborn child’ by the Subrogating General Counsellor, acting as guardian ad litem. Appellant claimed that the court had erred, as art. 86 of the Penal Code permitted abortions in cases of rape only to those with intellectual disabilities (“idiotic and demented” in translation) and the court’s ruling was inconsistent with domestic Constitutional protections of prenatal life, as well as protections under international human rights law. Specifically, the petitioner relied on Article 75, paragraph 23 of the Constitution, which empowers Congress to “protect children from abandonment, [from] pregnancy up to the end of elementary education,” as well as numerous international instruments, such as the American Convention on Human Rights, the International Covenant on Civil and Political Rights, and the Convention on the Rights of the Child.