Reform of the Belgian Penal Code: "loss of pregnancy" regarded as an attack on personal integrity

Intention to cause the loss of a pregnancy made a criminal offence

In the new Penal Code, "loss of pregnancy", whether or not intentionally induced, is classed as an "act of violence" resulting in third-degree bodily harm. Unlike under the old Code, the intention to cause the loss of pregnancy is now taken into account (Art. 214). This offence is punishable by a level 4 penalty (as opposed to a level 3 penalty if the perpetrator did not intend to cause the loss of pregnancy). Article 215 provides for a level 5 penalty if the loss of pregnancy results in the death of the pregnant woman - without the legislator mentioning the death of the unborn child to justify this penalty.

This new criminal concept of "loss of pregnancy" echoes the bill proposed by MPs Vanessa Matz and Maxime Prévot, which aimed to amend the Criminal Code to introduce an aggravating circumstance in cases of assault, injury or poisoning of a pregnant woman, resulting in the loss of the embryo or foetus. The legislature has chosen to take account of the "seriousness" of the acts and "their impact on the victim", which "also justify this rate of penalty". This is based on the definition in the Istanbul Convention, article 39 of which requires States to criminalise forced abortion.  

The foetus, taken into account but only "indirectly protected”

It should be remembered that the draft bill amending the Criminal Code initially used the term "termination of pregnancy" to describe the damage suffered by the woman. The opinion of the Council of State (point 9) suggested that this concept should be clarified, which ultimately led the legislator to replace the term "interruption of pregnancy" in articles 214 to 216 of the Criminal Code with "loss of pregnancy". In response to the opinion of the Council of State, the legislature clarified its choice in the explanatory memorandum to the bill: "We prefer the term 'loss of pregnancy', which better reflects the situation, i.e. the loss of an unborn child rather than the interruption of a pregnancy". (Parl. Doc. 55-3518/001, p.71-72). Pregnancy loss means "the deliberate destruction of an embryo or foetus in the body of a pregnant person".  The legislator also specifies that the conditions for the offence are met "as soon as the embryo or foetus is destroyed, even if it has not been expelled from the body of the pregnant person". (Parl. Doc. 55-3518/001, p.186).  

However, the definition of pregnancy loss in the new Penal Code is totally inconsistent and unclear as to the actual loss in question, which concerns the unborn child. The expression does not explicitly mention the unborn child, the embryo or the foetus. However, the opinion of the Council of State pointed out that "the obligation to respect life requires the legislature to take measures to protect unborn life as well", referring to the ninth paragraph of the preamble to the Convention on the Rights of the Child of 20 November 1989. While stressing that there is no legal obligation to treat an unborn child in the same way as a victim of offences against the person, the Council of State emphasised the legislature's obligation to "guarantee - by defining offences against natural persons - that the unborn child benefits from sufficient protection". 

The question arises as to how induced abortion is viewed, depending on the circumstances surrounding it. How can it be understood that abortion is presented as care or a right when it is induced by a doctor and desired by the woman on the one hand, and as an attack on the integrity of the person, punishable by law, when it is induced without the woman's consent? The result for the unborn child is the same: it is destroyed. The classification of an induced abortion as a criminal offence therefore depends solely on whether or not it is consensual; in other words, it is fundamentally subjective.