Non-treatment of Severely Disabled Newborns and Criminal Liability Under Spanish Law1

Abstract

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 nonviability 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.