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The Criminal Justice System and Health Care$
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Charles A. Erin and Suzanne Ost

Print publication date: 2007

Print ISBN-13: 9780199228294

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780199228294.001.0001

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Non-treatment of Severely Disabled Newborns and Criminal Liability Under Spanish Law 1

Non-treatment of Severely Disabled Newborns and Criminal Liability Under Spanish Law 1

(p.207) 12 Non-treatment of Severely Disabled Newborns and Criminal Liability Under Spanish Law1
The Criminal Justice System and Health Care

Sergio Romeo-Malanda

Oxford University Press

This chapter examines whether medical professionals in Spain can be held criminally responsible if they withdraw life-sustaining treatment from severely disabled newborn babies. The focus on the Spanish jurisdiction is significant, since, in contrast to the legal position in the UK, the USA, Australia, and elsewhere, the position under Spanish law is currently much more ambiguous. Thus, medical professionals faced with making the decision of whether to discontinue medical treatment or to omit to treat severely disabled newborns must reach this decision in a climate of uncertainty as to whether their actions will attract criminal liability. The analysis here leads to the conclusion that it is the distinction between viability and non-viability that marks the point at which the law will intervene to criminalize the medical professional's actions, since a non-viable human being is not recognized as a newborn infant under Spanish law, and thus does not enjoy the protection of the criminal law.

Keywords:   neonaticide, severe disability, withdrawal of life-sustaining treatment, Spanish criminal law, viability

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