Mission Impossible? Preventing discrimination on grounds of disability of foetuses with Down syndrome in Spain after the emergence of non-invasive prenatal testing
| DOI | 10.1177/1358229120902654 |
| Date | 01 September 2019 |
| Author | Begoña Rodríguez Díaz |
| Published date | 01 September 2019 |
| Subject Matter | Articles |
Article
Mission Impossible?
Preventing discrimination
on grounds of disability of
foetuses with Down
syndrome in Spain after the
emergence of non-invasive
prenatal testing
Begon
˜a Rodr´
ıguez D´
ıaz
Abstract
This article analyses the current situation of discrimination towards foetuses with
Down syndrome (DS) in Spain, both legally and through the medical practice, pointing
out how this discrimination breaches the United Nations Convention on the Rights of
Persons with Disabilities (CRPD), ratified by Spain, according to the Committee of the
CRPD. This work argues that an eventual modification of the Spanish abortion legis-
lation (in appeal before the Constitutional Court) might not be enough to prevent the
said discrimination due to the emergence of the non-invasive prenatal testing (NIPT).
It explores the challenges introduced by the NIPT and the relationship between a
prenatal diagnose of a disability (DS in particular) and termination of pregnancy rates.
Health practitioners, mainly through the communication of the diagnose, play a
significant role in the bias against the DS population that leads to discrimination.
Consequently, this article suggests the need for a different approach towards a DS
diagnose, more ac curate, positi ve and based on the actu al experience of in dividuals
with DS and their families.
Facultad de Ciencias Jur´
ıdicas y Empresariales, Universidad Francisco de Vitoria, Madrid, Spain
Corresponding author:
Begon
˜a Rodr´
ıguez D´
ıaz, Facultad de Ciencias Jur´
ıdicas y Empresariales, Universidad Francisco de
Vitoria, Carretera Pozuelo-Majadahonda, Km. 1.800, Madrid 28223, Spain.
Email: b.rodriguez@ufv.es
International Journalof
Discrimination and theLaw
2019, Vol. 19(3-4) 178–199
ªThe Author(s) 2020
Article reuse guidelines:
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DOI: 10.1177/1358229120902654
journals.sagepub.com/home/jdi
Keywords
Discrimination, disability, Down syndrome, non-invasive prenatal testing (NIPT),
selective termination of pregnancy
Introduction
Unborn children with Down syndrome (DS) have been discriminated in Spain on
grounds of their disability since 1985. The Criminal Code considered the abortion an
offence unless there were special circumstances, one of them being the risk of ‘serious
mental or physical disabilities’ in the foetus, where termination prior to the 22nd preg-
nancy week would not be considered punishable.
In current Spanish legislation regarding termination of pregnancy (TOP),
Act 2/2010,
1
abortion at request of the pregnant woman is considered a right (within
the fundamental rights in the field of sexual and reproductive health) if performed in the
first 14 weeks of the pregnancy. An extended deadline is given in case there is a ‘risk of
serious anomalies in the foetus’ and no time limit when ‘an extremely serious an incur-
able illness is detected in the foetus’ (Article 15).
Having ratified the International Convention on the Rights of Persons with a Dis-
ability (CRPD) in 2007, the Act 2/2010 is in breach of this international commitment.
The Committee on the CRPD accordingly recommended in 2011 ‘that the State party
abolish the distinction made in Act 2/2010 in the period allowed under law within which
a pregnancy can be terminated based solely on disability’.
2
Again, very recently, the
Committee expressed its concerns about ‘the lack of progress to implement the previous
recommendations of the Committee to abolish legal provisions that reinforce a negative
perception of disability by providing for the late termination of pregnancy based on
foetal impairment’
3
and therefore recommended to
abolish any distinction by law to the period within which a pregnancy can be terminated
based on a potential foetus impairment ( ...), as these contribute to a climate of stigma
against disability that can lead to discrimination.
4
Nine years after the Act 2/2010 (that has remained unchanged despite the CRPD
Committee Reports), we are facing a new challenge regarding the discrimination of
foetuses on grounds of disability: the misuse of non-invasive prenatal testing (NIPT).
Designed to detect chromosomal abnormalities, and DS in particular (Gil et al., 2015)
through a simple blood test in the early weeks of the pregnancy they are having a radical
influence in the increase of terminations of DS foetuses.
Globally, selective abortion rates are 60–90%when a foetus is diagnosed DS. In some
countries such as Iceland (Klucznik and Slepian, 2018) and Denmark,
5
the rates are
already near 100%. In France (Dommergues et al., 2010) and in England (Morris and
Springett, 2014), environ 90%of diagnosed foetuses with DS end up as TOP. In the
United States, the rate is around 65–75%(Natoli et al., 2012). In Spain, it is nearly 95%
(Vargas Aldecoa, 2015).
Rodr´
ıguez D´
ıaz 179
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