Theological - BIoethical Evaluation of Constitutional Court Decisions on Abortion

Pobačaj kao aktualna višedimenzionalna problematika društva nalazi se u fokusu zakonodavno-pravne, biomedicinske, filozofske, teološke, ali i socio-političke perspektive. Zakonodavno-pravno uređenje načinom regulacije pobačaja otvara pitanja početka ljudskog života, pravnog subjektiviteta nerođenog djeteta i njegovog temeljnog prava na život, prava žene na izbor, samoodređenje i privatnost. Nacionalno zakonodavstvo Republike Hrvatske razgraničenje prava na život i prava na samoodređenje uređuje zastarjelim Zakonom o zdravstvenim mjerama za ostvarivanje prava na slobodno odlučivanje o rađanju djece iz 1978. godine. Temeljem sedam prijedloga za pokretanje postupka ocjene suglasnosti Zakona s Ustavom, Ustavni je sud Republike Hrvatske donio Rješenje broj U-I-60/1991 i dr. od 21. veljače 2017. s Izdvojenim mišljenjem. Disertacija donosi analizu spomenutih dvaju dokumenata iz teološko-bioetičke perspektive iz koje se promatra i vrjednuje kontekst nastanka Zakona, njegovo poimanje dostojanstva čovjeka, prava djeteta i žene. Analizi zakona prethodi istraživanje međunarodnog i europskog zakonodavnog okvira koji uređuje pravni status djeteta i majke, kao širi globalni kontekst unutar kojeg je nastajao Zakon koji nije slijedio dosege međunarodnog prava spomenutog konteksta. U aktualnom društvenom trenutku revidiranja zakonsko-pravnog uređenja, rad teološko-bioetički vrjednuje Rješenje Ustavnog suda i Izdvojeno mišljenje na kojemu se temelji izložena ustavno-pravna argumentacija, formalno-logička i znanstvenobiomedicinska argumentacija obrazloženja, čime donosi novost teološke misli spram važnog općedruštvenog problema. Kvalitetno pravno uređenje kompleksnog pitanja pobačaja moguće je tek razumijevanjem spomenutog fenomena u izvornom kontekstu biomedicine i embriologije na čijoj se artikulaciji znanstvenih spoznaja temelji evaluacija pobačaja kao čina i njegovih moralno-etičkih implikacija. Istraživanjem spoznaja biomedicine i embriologije rad donosi plauzibilne potvrde nastanka ljudskog života, odnosno početka novonastalog organizma posve nove genetske strukture u trenutku začeća. Teološko-bioetička perspektiva iznosi moralno vrjednovanje pobačaja kao nedopustivog prekida započetog ljudskog života, posredstvom analize dokumenata učiteljstva Crkve. Pogled na ljudski život i dostojanstvo ljudske osobe, pritom se artikulira iz pozicije kršćanske antropologije koja počiva na Svetom Pismu i učiteljstvu Crkve. Čovjek je u vizuri teološke antropologije stvoren na sliku Božju, posjeduje neotuđivo dostojanstvo ljudske osobe od početka života do prirodne smrti te je svaki čin koji to negira isto, protivan dostojanstvu njegove osobe.Abortion as a current multidimensional issue of society is the focus of legislativelegal, biomedical, philosophical, theological, as well as socio-political perspectives. Legislative regulation, through its method of regulating abortion, raises questions about the beginning of human life, the legal subjectivity of the unborn child and its fundamental right to life, the woman's right to choice, self-determination and privacy. The national legislation of the Republic of Croatia defines the delimitation of the right to life and the right to self-determination by the outdated Act on Health Measures for exercising the Right to Free Decision-making on Childbirth (further AHM), since 1978. On the basis of seven motions for initiating the procedure of reviewing the conformity of the Act with the Constitution, the Constitutional Court of the Republic of Croatia issued Decision No. U-I-60/1991 et al., dated February 21, 2017, with Separate Opinion. Dissertation Theological-Bioethical Evaluation of Constitutional Court Decisions on Abortion provides an analysis of the above-mentioned two documents from a theologicalbioethical perspective which gives review and evaluation of the context of the origin of the Act, its understanding of human dignity, the rights of the child and woman. In evaluating the Act on Health Measures and the Decision of the Constitutional Court of the Republic of Croatia, this work brings the novelty of interpretation and evaluation of the problem of abortion in the original contexts in which the matter and issues are located. Through an interdisciplinary approach, the theological-bioethical evaluation of constitutional court decisions seeks to explore, through four sections, three basic and key areas in which the phenomenon of abortion is determined, and in which discussions are articulated. The legal aspect tends to shed light on the socio-legal context that fuels the legal framework on abortion. The imperative of the biomedical aspect is through the knowledge of biological-scientific disciplines, to explore the biological truth about the beginning of human life, which is articulated through philosophical-bioethical principles. Finally, the moral - theological aspect seeks to evaluate the same truth about the beginning of human life in the light of the theology of the Church and the Divine Revelation of Jesus Christ. The conceptual division of the aforementioned areas followed the structure of the topic research, which was divided and rounded into three thematic units. The Legislative Thematic Unit is structured in two parts, the first part of which aims to clarify the understanding of Croatian national legislation offered by AHM, where the key of the research is to focus on the international regulation of abortion, ie the legal status of the human embryo within that framework, which existed at the time of the passage of the disputed law. The research in this section seeks to consider arguments that will verify or refute the hypothesis that relevant international community documents protecting fundamental human rights and freedoms miss the definition of key elements such as the beginning of human life or the legal status of a child. By not defining the aforementioned elements, international documents leave a great deal of space for individual interpretation by particular legislators, thus allowing for the inconsistency of international legislation. The issue of abortion, regulated by the legal framework, is concentrated precisely within the definition of the concept and scope of human rights. The inherent human rights and freedoms, based on human dignity, are inviolable and inalienable to every human being. The dignity of the human person is base for all fundamental rights, of which the priority has the right to life, which is a prerequisite for the exercise of all other rights, such as the right to self-determination, privacy and family life. The research in the indicated direction had the intention of clarifying the relation between the dignity of man in legislative stipulations governing the legal subjectivity of a person and the range of reach of his natural right. Does the human embryo have a legal personality, that is, whether the human embryo is the owner of the rights? Defining the concept of a human being decides to what extent and in what way legal subjectivity is guaranteed by legal regulation. The peculiar framework of legal status gives international law by declarations and conventions, but the final legal framework is nevertheless left to the national legislator. The goal of researching international documents is to understand how international and European legislation defines a human being, how it defines a human embryo and whether it defines it at all, and finally what is entailed and protected by the concept of a child. The Convention on the Rights of the Child, based on the United Nations Resolution, the Declaration on the Rights of the Child, which is the benchmark and reference point in the disputes and proceedings of international and national courts, was imposed as a starting point. An analysis of the international and European legal contexts attempts to articulate the legal status of the child, especially the unborn child or unborn human being, as international legal terminology most commonly calls it. The same legal status of the child is observed through the legal practice of the European Union, through its documents and pragmatic solutions that outline the correlation between the rights of the child and the rights of women, which are visibly and constantly pushed into the confrontational framework. The conflict of rights to the right to life, as a fundamental right inherent to every human being and the right to self-determination and privacy, is the subject of controversy, debates, and interpretation at the international level. Exploring the level of guarantee the right to life and its implementation in the legislation starts with the interpretation of the Convention provisions, in particular through the authentic Council of Europe guidance. The international and European legislative framework summarized the understanding of the context within which Croatia's national legal solution to the abortion issue developed. The aforementioned indulgence of the defining of the terms and their delineation by the national legislature is a matter of research of the second chapter of the work, as well as the extent to which the legal regulation, conditioned by the social order of the systemic authority, have remained immune to the said international legislative reach. The second part of the first thematic unit presents the interpretation and analysis of the AHM as a meritorious Croatian law and the Constitutional Court's Decision, as new guidelines and stages in changing the legislative framework. The research focused on understanding the structure of the law at issue, its provisions, and measures, as well as its definition of human rights and the definition of abortion. Understanding the context of the creation of the AHM and the constitutional-legal framework within which it was formed is a turning point that explains the many concerns about the regulation of abortion in 1978. On this basis, the interpretation of the Constitutional Court decisions in 2017 and the explanation of the Constitutional Court's Decision were upgraded. The analysis covered the proceedings of the Constitutional Court, the complaints of the petitioners for initiating the procedure of conformity assessment with the Constitution, consulted scientific opinions of relevant experts, considered relevant documents and provisions of the Constitution, as well as selected comparative model of selected examples of European case law. The articulation of legal argumentation, the interpretation of the concept of the formal-legal approach of the Constitutional Court, and the establishment of a concept that questions the argumentation of the Constitutional Court's decisions have opened up new perspectives for considering the issue. In the context of the constitutional approach to the Decision and the evaluation of its argumentation, the intervention of Constitutional Judge Miroslav Šumanović, who delivered a dissenting opinion within the said Decision, was a valuable judgment. Therefore, one of the aims of the research is focused on the conceptualization of Šumanović's argumentation and its verification, through aspects of constitutional arguments, formal-logical sequences and scientifically biomedical evidence. It is a fact that has directed the exploration of another thematic unit of work into the original context of biological matter itself, into the field of biomedicine viewed through the optics of bioethics. This conception approaches the evaluation of critical issues from a bioethical point of view on abortion, and above all seeks to investigate and evaluate the same points of dispute within the legal framework offered by the AHM. The bioethical evaluation of abortion from the perspective of biomedicine draws conclusions from research that has used scientific methodology and insights into biomedicine and embryology in the field of abortion. The research is aimed at defining the biological characteristics of the human embryo, its developmental and genetic characteristics that determine biologically the beginning of human life. Furthermore, bioethical critique, operating through philosophical categories, questions the human embryo as a human being and discusses the human embryo in the context of speaking about the human person and his individual beginning. The articulation of philosophical arguments on the aforementioned issues remained consistent with the philosophical scientific method, and only philosophical argumentation was used in this part of the paper, while the theological answer, although often used by the philosophical method, was included in the next section of the doctoral thesis. Furthermore, from a biomedical perspective, abortion is primarily seen as a medical intervention through pragmatics and methods of abortion, then as an act that has moralethical implications by internal dichotomy and is valorized in the context of human rights speech. Bio-embryological scientific knowledge plausibly confirms the emergence of a new unique genetic material by connecting gametes of opposite sexes. Coupling the sperm nucleus with the egg nucleus produces a zygote, which is the initial cell of a newly created organism with a completely new genetic structure. It is a key element that determines the beginning of a new individual human life, and at the same time forms the corpus of another hypothesis that will be verified based on the scientific facts of embryology. Some other elements are included that accompany the act of abortion, either as its direct or implied consequences or as the right not to participate in its execution. The paper briefly addresses the psychological dimension of a woman affected by abortion, indicating briefly pre-natal and post-traumatic trauma. The speech about the right to not participate in the abortion act briefly raised the issue of the conscientious objection from the perspective of medical ethics, which is a complex separate topic, but it is also an indispensable element in the articulation of the problem of abortion. The third thematic unit, or the fourth part of the doctoral thesis, presents the theological - moral dimension of the complex issue of abortion, which, from the position of moral theology, values the exposed matter. In doing so, it brings the theological-bioethical perspective of contemporary challenges that are imposed by the moral code of contemporary society. The theological-moral evaluation of the abortion phenomenon has included a more detailed evaluation and the way it is regulated in Croatian legislation and justified in the framework of the Decision. Preliminary research has established the hypothesis based on the knowledge of biological - embryological sciences about the beginning of life which concludes that genetic material created by the conception is an individual human being, a person in the developmental stage. The interruption of the developmental phase signifies the end of individual life, that is, theological evaluation considers abortion the murder of an unborn man. Explaining the position of the Christian view of man seeks to clarify the truth about the dignity of the human person, about the dignity of a woman who is deeply morally threatened by the problem of abortion, and about intentional abortion as an act. The analysis of the documents of the Church gives an overview of human life as well as the articulation of contemporary theological discourse on the issues of the beginning of life, conception, abortive contraception and abortion. The teaching of the Church, especially after the Second Vatican Council, brings to the researcher the full range of documents of the Church dealing with the subject of human dignity, thereby articulating the uniform and continuous speech of the Roman popes and choirs of bishops. Christian anthropology, which rests on Scripture, the teaching of the Church, and enriched with contemporary bioethical and medical knowledge, brings a coherent contribution to contemporary debate and proposes the concept of a vision of a human person who inherits his dignity from conception to natural death. The last section of the research evaluates the Act of the Health Measures and the values it promotes and protects along with the Decision of Constitutional Court from the moral and theological perspective. While acknowledging the moral aspect of the judgement, the metods applied in the interpretation of the Constitution and the position that the Constitutional Court takes in the explanation of the Decision, this paper seeks to expound a theological view with a reflection on the processing of this delicate matter. The evaluation also refers to the theological implications of the given decisions and attitudes, as well as the repercussions they may have in the long term. The hypothesis from the field of the moral and theological evaluation of the Decision recognizes the Constitutional Court as the supreme interpreter of the Constitution of Republic of Croatia, and a social arbitrator which in the matter of abortion has uncritically positioned itself by the moral relativism opposed to the Croatian Constitution, it withholds the right to interpret the constitutional categories and thereby creates the environment for the legislator, which from the perspective of the moral theology is ethically doubtful