A woman gives birth to a baby on the beach. The video went viral a few days ago and shows a follower of the movement freebirth, the phenomenon of defending a free birth and in a friendly environment for the mother and without health care (home, a swimming pool, nature…). The publication has precipitated a strong discussion on the networks about the extent to which the decisions of the parents, under the protection of the exercise of certain fundamental rights, can collide with the welfare or physical integrity of their children.
Precisely, a few weeks ago, the Constitutional Court rejected the request for protection of a mother who wanted to give birth at home, against the advice of doctors. The magistrates concluded that, measuring the rights at stake (on the one hand, that of the mother to physical freedom and personal and family privacy, and on the other end of the scale, the right of the unborn child), the well-being of the baby is above all things. In situations like this, the ruling collects, doctors can request the forced admission of the patient if there is danger to the baby. Even, the magistrates point out, without the need for the person involved to testify before a judge as a prerequisite.
The golden rule is that the integrity of the minor is the most important thing. The child comes first and the fundamental rights of the parents take second place when there is a conflict between the two; however, each case shows its peculiarities.
Jehovah’s Witnesses
For example, can parents refuse their child to receive a blood transfusion based on their beliefs? The matter brought queue in the past. In 2012, the State Attorney General’s Office had to issue a circular and make it clear that a parent cannot refuse a minor to receive a transfusion in situations where her life is in danger. Belonging to the community of Jehovah’s Witnesses, where a literal interpretation of the Bible prohibits this type of intervention, is not enough to act against medical criteria.
In this scenario, the document collects, the doctor can act against the will of the parents if it is the only way to save the child. In these cases, the endorsement of a court will be necessary; however, if the child’s life or health is in imminent danger, the doctor can skip the paperwork and intervene directly.
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medical decisions
In Spain, minors who are at least 16 years old can decide on medical issues that affect them without the need for prior validation from their parents.
This rule, however, has one important exception. Again, if there is a risk to their life or health, “it is the parents who must consent on their behalf,” explains Marta Juste, professor of Civil Law at the International University of Valencia. This is stated in the Law amending the child and adolescent protection system, in force since 2015.
If the parents’ decision is contrary to the patient’s recovery, the last word belongs to the courts, or ultimately, to the doctor, whose criterion is once again the one that prevails if immediate action is necessary. For example, there is an accident and the patient needs a new heart. The parents refuse the intervention due to their religious beliefs. At these crossroads, the integrity of the minor is above any ethical debate. “The well-being of the child always prevails,” says the teacher.
abortions
Another area that brings conflict is the issue of voluntary interruption of pregnancy. If a minor wants to have an abortion, explains Delia Rodríguez, a lawyer at the firm specialized in family conflicts Vestalia Asociados, “the rights of the parents of the minor, those of the minor surrogate mother and those of the unborn child come into play. [el concebido que aún no ha nacido, pero que, a ojos de la ley, ya tiene derechos reconocidos]”.
At this point, what jurists know as a “weighting of rights” is carried out. But concepts such as physical freedom, sexual health, personal intimacy or the free disposition of the body are sometimes too abstract definitions.
The laws serve to clarify the gray spaces. Thus, in the case of pregnancy interruptions, “the current law subjects the abortion of minors under 16 and 17 years of age to the decision of their parents,” says the lawyer. However, she adds, the draft bill on abortion, which was approved by the Council of Ministers in March, plans to allow minors under 16 and 17 years of age to have an abortion without the prior approval of their legal representatives.
home school
Parents or legal guardians cannot refuse a minor to go to school. The Constitutional Court ruled on the issue in 2010 and clarified that the Magna Carta does not recognize parents’ right to educate children at home.
The highest interpreter of constitutional guarantees thus responded to some parents who argued that the Constitution did not expressly recognize “compulsory schooling.” Under this loophole, they defended their right to educate their children at home, where they would receive better values than “in classrooms of 30 or 40 students,” they alleged.
The courts, however, rejected this argument, and to do so put on the table the “serious problems” of “academic and social” development that the children would face in the future. “The power of parents to choose for their children an education outside the compulsory education system for pedagogical reasons is not included in any of the recognized constitutional freedoms,” the ruling stresses.
“Parents’ freedom to teach is limited to the power to teach their children and encourage them to carry out the study activities entrusted to them,” explains Delia Rodríguez. What does not suppose a carte blanche to evade the duty of schooling in an authorized center. “In Spain teaching is not allowed from home or homeschooling, the legal consequences being diverse, both criminal and administrative,” warns Rodríguez, who admits that, although it is not an expressly prohibited practice, the courts have ruled in recent years in this regard.
There is debate on the matter. A part of the sector defends that it is an alegal question and that, in certain cases, educating children at home is a possibility. Professor Marta Juste recognizes that in Spain home education is not an expressly prohibited practice. But she clarifies that, if carried out, parents must ensure that the child’s social needs are met. Children live in bubbles, alienated from social reality, the prosecution can intervene.
Nazi ideas
Minors have the right to develop “in an environment free of ideology”, recalls Professor Juste. This means that a parent cannot instill Nazi ideas in her children; or educate them in hatred towards a community – the homosexual, for example -.
“Any teaching that leads to a lack of respect for human rights and/or the justification of genocidal, terrorist, discriminatory or xenophobic acts can and should be punished,” the teacher remarks. Not complying with this, in the most extreme cases, can culminate in the withdrawal of parental authority.