Organic Law 2/2010: Time-Limit System and Art. 145 CP Reform

Organic Law 2/2010, of 3 March, on sexual and reproductive health and the voluntary interruption of pregnancy (BOE-A-2010-3514), brought about one of the most significant shifts of model in the field of abortion in Spain. It not only regulated access to the voluntary interruption of pregnancy from a health and rights perspective, but also reformed the criminal response of the Criminal Code (CP) to abortion performed outside the law. As a firm dedicated exclusively to criminal law, we explain what changed, why, and above all what it means today for anyone being investigated or prosecuted, as well as for those acting as victims or injured parties. You can review the full picture of recent legislative changes on our criminal law reforms page.

What the reform changed and why

Until 2010, abortion in Spain was governed by a system of indications: the interruption of pregnancy was lawful only where one of the closed grounds admitted by law applied (for example, serious danger to the life or health of the pregnant woman, pregnancy resulting from a crime, or serious foetal anomalies). Outside those indications, the conduct amounted to the offence of abortion.

Organic Law 2/2010 shifted the axis of the model and established a time-limit system. Its underlying idea is that, within an initial period of gestation, the decision on whether to continue the pregnancy belongs to the woman, who may interrupt it at her own request within the first fourteen weeks, without needing to invoke a specific indication, provided certain information and reflection requirements are met. Beyond that period, interruption is only possible on specific grounds provided by law, linked to the pregnant woman's health or to foetal anomalies, with reinforced safeguards and medical opinions. The direct criminal consequence was clear: interruption carried out within that framework ceases to be a crime, while criminal reproach is reserved for what falls outside the law.

The affected articles: 145 and 145 bis CP

The criminal reform of Organic Law 2/2010 concentrated on two provisions of the Criminal Code:

• Article 145 CP — Abortion performed outside the cases permitted by law. This is the central offence. It punishes anyone who causes the abortion of a woman outside the cases permitted by law, distinguishing according to whether the abortion is performed with or without the pregnant woman's consent. The reform adapted the wording of the provision to the new model: what now marks the boundary of what is punishable is no longer compliance with an indication, but that the abortion has been performed outside the legal system (for example, out of time, without the legal requirements or without the required safeguards).
• Article 145 bis CP — Abortion within the legal cases but failing to meet requirements or safeguards. This is the provision added by the reform. It punishes the intermediate scenario: abortion carried out within the legally provided cases, but failing to meet the requirements or safeguards set by law (for example, prior information, the reflection period, the medical opinions or the conditions of the centre). It is not an abortion performed entirely outside the law, but one that, while in principle lawful, has departed from the formal and safeguard requirements. Its criminal treatment is different and generally more lenient than that of the abortion under Article 145 CP.

The practical reach of this architecture is twofold. On the one hand, it allows the criminal response to be graded: someone who performs an abortion completely outside the law does not receive the same treatment as someone who performs it within the legal cases but without respecting all the safeguards. On the other, it makes the classification of the scenario a central technical question: determining whether the conduct falls outside the law (Art. 145 CP) or within the law but with defects in requirements or safeguards (Art. 145 bis CP) can make a decisive difference.

The decriminalisation of the woman in the time-limit system

One of the most important effects of the new model is the position of the pregnant woman herself. Within the framework of the time-limit system, the woman who interrupts her pregnancy or consents to it being performed is decriminalised when she acts in accordance with the law, that is, within the first fourteen weeks at her own request or on the specific grounds admitted beyond that period, with the corresponding requirements.

This does not mean that every act of the woman falls outside the Criminal Code in all circumstances, but the model of Organic Law 2/2010 shifted the focus of criminal reproach: the criminal response is directed mainly at whoever performs the abortion outside the law or without the required safeguards, and not at the woman who decides within the time-limit system. This distinction is key when analysing the procedural position of each party involved in a matter of this kind.

A note on subsequent developments

The time-limit system established by Organic Law 2/2010 has been the subject of subsequent reforms. In particular, Organic Law 1/2023 amended aspects of the regime governing the voluntary interruption of pregnancy. It is not the purpose of this analysis to detail that evolution, but it should be borne in mind: when analysing a specific matter, one must always start from the wording in force at the time of the facts and from the succession of rules over time, because the regulation of the time limits, requirements and safeguards has undergone adjustments. That succession of rules also has direct criminal relevance when the facts straddle different regulations.

What it means today for the investigated, the accused and victims

For anyone being investigated or prosecuted in an abortion matter, the first technical task is to place the conduct within the new model. The question is not only whether the pregnancy was interrupted, but under what conditions: whether the interruption took place within the legal time limit and grounds, whether the consent and information requirements were respected, and whether the required safeguards were present. That placement determines whether the conduct is non-punishable, whether it fits Article 145 bis CP (defects in requirements or safeguards) or whether it amounts to an abortion performed outside the law under Article 145 CP.

For those acting as victims or injured parties, the new framework requires a technically precise prosecution: proving not only that the interruption took place, but that it was carried out outside the legal system or without the safeguards set by law, and rigorously delimiting the scenario charged.

There is also a cross-cutting issue: the temporal application of criminal law and of the relevant health legislation. Where the facts fall within periods in which different wordings were in force, regard must be had to the rule applicable at the time of the facts and, where appropriate, to the most favourable criminal law to the defendant.

Defence strategies

On the basis of the current model, the main lines of defence we work on revolve around the requirements of consent, information and grounds:

• Existence of consent. Proving that the interruption was carried out with the pregnant woman's valid consent is central, because Article 145 CP draws its distinction precisely according to whether the abortion is performed with or without consent.
• Fit within the legal grounds. Verifying whether the conduct falls within the time limit or the specific grounds admitted by law, which may render the facts non-punishable.
• Distinction between Art. 145 and Art. 145 bis CP. Where the interruption was carried out within the legal cases but with formal defects, arguing that the conduct fits Article 145 bis CP — failure to meet requirements or safeguards — rather than the abortion performed outside the law under Article 145 CP, with the different treatment that this entails.
• Compliance with the information and reflection requirements. Documenting that the required prior information was provided and that the time limits and procedures were respected, against a charge of breach of safeguards.
• Application of the most favourable rule over time. For facts straddling successive regulations, requiring the comparison of the applicable frameworks and the application of the criminal rule more beneficial to the defendant.

How to act if this reform affects you

If you are being investigated, have already been charged, or act for the prosecution in a matter relating to the interruption of pregnancy, it is advisable to review the classification of the facts as soon as possible. Strategy is decided in the early stages: the statement, the evidence about consent, the fit within the legal time limits and grounds, and the debate over compliance with requirements and safeguards set the course of the entire proceedings.

You can read more about this and other amendments in our criminal law reforms section, consult the provisions in the annotated Penal Code, or learn how we approach criminal defence in this type of matter. You will find further analysis of legislative and procedural developments on the firm's blog.