Commentary on Article 319 of the Criminal Code of the Republic of Kazakhstan. Illegal Performance of Artificial Termination of Pregnancy

1. Performing an artificial termination of pregnancy by a person who does not have a higher medical education in the relevant specialty —

shall be punishable by a fine in an amount of up to two thousand monthly calculation indices, or corrective labor in the same amount, or community service for a period of up to six hundred hours, or restriction of liberty for a period of up to two years, or imprisonment for the same period.

2. An act provided for in Part One of this Article, committed repeatedly, —

shall be punishable by a fine in an amount of up to four thousand monthly calculation indices, or corrective labor in the same amount, or community service for a period of up to one thousand hours, or restriction of liberty for a period of up to four years, or imprisonment for the same period.

3. Illegal performance of an artificial termination of pregnancy by a person who has a higher medical education in the relevant specialty —

shall be punishable by a fine in an amount of up to one thousand monthly calculation indices, or corrective labor in the same amount, or community service for a period of up to four hundred hours, or restriction of liberty for a period of up to one year, or imprisonment for the same period, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years.

4. An act provided for in Part Three of this Article, committed repeatedly, —

shall be punishable by a fine in an amount of up to three thousand monthly calculation indices, or corrective labor in the same amount, or community service for a period of up to eight hundred hours, or restriction of liberty for a period of up to three years, or imprisonment for the same period, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years.

5. Illegal performance of an artificial termination of pregnancy resulting, through negligence, in the death of the victim or the infliction of grievous bodily harm upon her —

shall be punishable by imprisonment for a period of three to seven years, with or without deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years.

The public danger of the crime provided for in Article 319 of the Criminal Code lies in the fact that, where the rules established by healthcare authorities for performing an artificial termination of pregnancy are not complied with, the life and health of the woman are exposed to a real threat.

The object of the crime under consideration is public relations focused on compliance with the rules and standards established in the field of medical activity.

According to subparagraph 73) of paragraph 1 of Article 1 of the Code of the Republic of Kazakhstan “On Public Health and the Healthcare System,” health is a state of complete physical, spiritual (mental) and social well-being, and not merely the absence of diseases and physical defects.

In this regard, harm caused to health during an artificial termination of pregnancy does not necessarily have to be visible, since, during an artificial termination of pregnancy, a woman experiences severe moral and psychological trauma. An additional object is represented by public relations guaranteeing the protection of a woman's life and health. At the same time, according to subparagraph 1) of paragraph 3 of Article 81 of the Code of the Republic of Kazakhstan “On Public Health and the Healthcare System,” a pregnant woman has the right to health protection and medical assistance during pregnancy, childbirth and the postpartum period, including premature childbirth, as determined by international criteria for live birth and stillbirth, using methods permitted within the territory of the Republic of Kazakhstan.

Article 319 of the Criminal Code does not provide for liability for an infringement upon an embryo, since this provision does not protect the life of the fetus (embryo). According to the Explanatory Dictionary by S.I. Ozhegov, an embryo is an organism at an early stage of development that lives at the expense of the mother's organism or the nutrients contained in an egg cell. In the Republic of Kazakhstan, pursuant to the Constitution, human rights and freedoms belong to a person only from birth. A human embryo located inside the mother's body does not possess legal capacity and constitutes part of her body; harm caused to the fetus is considered harm caused to its future mother. Accordingly, the future mother has almost complete authority over the unborn child, the same as the authority she has over her own body. Consequently, criminal liability for the illegal performance of an artificial termination of pregnancy shall be imposed only on the person who caused harm to the life and health of the pregnant woman, and not to the fetus.

The objective aspect of the crime consists in the illegal performance of an artificial termination of pregnancy. In other words, the objective aspect consists of active actions aimed at artificially terminating pregnancy (expelling the fetus from the woman's uterus), committed in violation of the established rules.

The dispositions of Parts 1 and 3 of the Article under consideration are of a blanket nature and refer to certain regulatory documents that explain the concept of illegal artificial termination of pregnancy. There are several regulatory legal documents in Kazakhstan governing the performance of artificial termination of pregnancy. Its legality is determined on the basis of these documents. Such documents include the Code of the Republic of Kazakhstan “On Public Health and the Healthcare System,” the Order of the Minister of Healthcare of the Republic of Kazakhstan “On Approval of the Rules for Performing Artificial Termination of Pregnancy and the List of Medical and Social Indications, as well as Contraindications for Performing Artificial Termination of Pregnancy,” and Clinical Protocols recommended by the Expert Council of the Republican Center for Healthcare Development, a Republican State Enterprise on the Right of Economic Management under the Ministry of Healthcare and Social Development of the Republic of Kazakhstan, dated August 27, 2015.

In accordance with paragraph 1 of Article 150 of the Code of the Republic of Kazakhstan “On Public Health and the Healthcare System,” a woman has the right to an artificial termination of pregnancy, which, pursuant to subparagraph 111) of paragraph 1 of Article 1 of the above-mentioned Code, means the termination of pregnancy before the period of fetal viability using medication or surgical methods, performed by medical professionals who have a higher medical education in the relevant specialty. Paragraph 2 of Article 150 of the aforementioned Code states that an artificial termination of pregnancy is performed at the woman's request up to twelve weeks of pregnancy. An artificial termination of pregnancy on social grounds is performed up to twenty-two weeks of pregnancy, and in the presence of medical indications and conditions threatening the life of the pregnant woman and (or) the fetus (in the presence of monogenic genetic diseases, non-correctable congenital malformations and fetal conditions incompatible with life), regardless of the duration of pregnancy.

The Order of the Minister of Healthcare of the Republic of Kazakhstan dated October 9, 2020, “On Approval of the Rules for Performing Artificial Termination of Pregnancy and the List of Medical and Social Indications, as well as Contraindications for Performing Artificial Termination of Pregnancy,” approves the list of medical and social indications for artificial termination of pregnancy. Thus, according to Appendix No. 2 to the said Order, medical indications include: infectious and parasitic diseases; neoplasms: the presence, at present or in the past, of malignant neoplasms of all localizations, with the exception of hemoblastoses; diseases of the endocrine system; diseases of the blood and blood-forming organs; mental disorders; diseases of the nervous system and sensory organs; diseases of the circulatory system; diseases of the respiratory organs; diseases of the digestive organs; diseases of the genitourinary system; diseases of the musculoskeletal system and connective tissue; genetic indications concerning the fetus.

Artificial termination of pregnancy is performed using medication or surgical methods: on medical grounds threatening the life of the pregnant woman and (or) the fetus (in the presence of monogenic genetic diseases, non-correctable congenital malformations and fetal conditions incompatible with life), regardless of the duration of pregnancy.

Where medical indications are present in a pregnant woman, a conclusion is issued by relevant specialists containing the full clinical diagnosis and certified by the signatures of the said specialists and the seal of the medical organization.

Social indications for artificial termination of pregnancy include: the death of the spouse during the current pregnancy; the woman or her spouse serving a sentence in places of deprivation of liberty; cases where the woman and her spouse are recognized as unemployed in accordance with the established procedure; the existence of a court decision depriving them of parental rights or restricting such rights; pregnancy resulting from rape; the woman having refugee or internally displaced person status; the presence of a child with a disability in the family; divorce during pregnancy; having many children (four or more children); being underage. Artificial termination of pregnancy on social grounds is performed up to 22 weeks of pregnancy.

Where social indications for artificial termination of pregnancy are present, a conclusion of the Medical Advisory Commission is issued upon submission of the originals of the following supporting documents: the spouse's death certificate; a court decision on the imprisonment of the woman or her spouse; a certificate confirming registration as unemployed; a court decision depriving the person of parental rights or restricting such rights; a forensic medical examination report confirming the fact of rape; a refugee or internally displaced person certificate; a disability certificate (for the child/children); a divorce certificate; for mothers with many children (having four or more children) — copies of the birth certificates of all children; for minors — a birth certificate.

When determining medical and social indications for artificial termination of pregnancy, the woman is referred to a Medical Advisory Commission consisting of: the head of the healthcare organization (department), an obstetrician-gynecologist, and a physician specializing in the field to which the disease (condition) of the pregnant woman and (or) the fetus relates. The Commission reviews and confirms the indications for termination of pregnancy.

Appendix 2 to the Order “On Approval of the Rules for Performing Artificial Termination of Pregnancy and the List of Medical and Social Indications, as well as Contraindications for Performing Artificial Termination of Pregnancy” specifies the contraindications to performing an artificial termination of pregnancy: inflammatory processes of the reproductive organs; the presence of purulent foci regardless of their location; acute infectious diseases; late stages of pregnancy.

In addition, the above-mentioned Order specifies the medical organizations in which artificial termination of pregnancy may be performed depending on the method used and the duration of pregnancy.

One of the grounds for recognizing the performance of an artificial termination of pregnancy as illegal, according to the disposition of Part 1 of Article 319 of the Criminal Code, is the fact that artificial termination of pregnancy is performed by a person who does not have a higher medical education in the relevant specialty and does not possess specialized medical knowledge.

Part 3 of Article 319 of the Criminal Code provides for the liability of another subject of the criminal offense — a person who has a higher medical education in the relevant specialty. Consequently, the performance of an artificial termination of pregnancy under Part 3 of the Article under consideration shall be considered illegal if it is performed: outside an inpatient medical institution; in the presence of medical contraindications; after 12 weeks of pregnancy in the absence of medical indications, or after 22 weeks of pregnancy where social indications are present; or without the consent of the pregnant woman, and, if the pregnant woman is a minor, without the consent of her legal representatives.

According to the dispositions of Parts 1 and 3 of Article 319 of the Criminal Code, the elements of the criminal offense are formal, since the act is considered completed from the moment the artificial termination of pregnancy is performed, regardless of whether harm has been caused to the pregnant woman. That is, the act is considered completed not only when the fetus has actually been expelled, but also when actions aimed at expelling the fetus have commenced, regardless of the method of artificial termination of pregnancy and regardless of whether the fetus has been expelled or not. The subjective aspect of the crime (Parts 1 and 3 of Article 319 of the Criminal Code) is characterized by direct intent, since the perpetrator is aware that the woman is pregnant and wishes to terminate the pregnancy, while foreseeing that their actions may cause harm to her health.

The motives for the illegal performance of an artificial termination of pregnancy may vary, but in most cases the motive is greed. That is, the illegal performance of an artificial termination of pregnancy is mainly carried out for remuneration, with the aim of making a profit. The purpose of this offense is to terminate the pregnancy.

The subject of the crime provided for in Part 1 of Article 319 of the Criminal Code is a sane natural person who has reached the age of 16 and does not have a higher medical education in the relevant specialty (obstetrician-gynecologist).

The following categories of persons may be subjects of this crime:

• a sane natural person who does not have any medical training;
• persons who do not have higher medical education (midwives, nurses, paramedics, interns);
• persons who have higher medical education but not in the relevant specialty (for example, in surgery, therapy or pediatrics).

The subject of the crime provided for in Part 3 of the Article under consideration is a person who has a higher medical education in the relevant specialty, that is, an obstetrician-gynecologist — a physician whose primary specialization concerns issues related to pregnancy and childbirth. It is precisely the obstetrician who monitors the woman's health throughout the entire period of pregnancy and provides practical medical assistance during childbirth and the postpartum period.

Parts 2 and 4 of Article 319 of the Criminal Code provide for repetition as a qualifying element. According to Article 12 of the Criminal Code, repetition is recognized as the commission of two or more acts provided for by the same Article or the same Part of an Article of the Special Part.

In accordance with the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated December 25, 2006, “On the Qualification of Repetition and Aggregation of Criminal Offenses,” repetition presupposes the commission by the same person of several criminal offenses provided for by the same Article or the same Part of an Article of the Special Part of the Criminal Code.

At the same time, a criminal offense shall not be considered committed repeatedly if the person has been convicted for a previously committed criminal offense or has been released from criminal liability on lawful grounds. Thus, the actions of a person who was previously prosecuted for the illegal performance of an artificial termination of pregnancy or was released from criminal liability on lawful grounds shall not contain the element of repetition.

Criminal liability for the illegal performance of an artificial termination of pregnancy resulting, through negligence, in the death of the victim or the infliction of grievous bodily harm upon her is provided for in Part 5 of Article 319 of the Criminal Code.

The objective aspect of the analyzed elements of the crime consists in the illegal performance of an artificial termination of pregnancy resulting, through negligence, in the death of the victim or the infliction of grievous bodily harm upon her. In this case, the presence or absence of a higher medical education in the relevant specialty does not affect the qualification.

The elements of the crime under consideration are, by their construction, material; accordingly, the occurrence of the specified consequences is necessary in order to bring a person to criminal liability. At the same time, it must be established that the death of the victim or the infliction of grievous bodily harm upon her is causally connected with the illegal performance of an artificial termination of pregnancy. However, adverse consequences may also occur due to the individual characteristics of the pregnant woman's body (the possible presence of some disease). In this case, it is necessary to establish whether the adverse consequences actually occurred as a result of the unlawful actions of the perpetrator, rather than due to diseases the pregnant woman already had (for example, the pregnant woman died of a heart attack during the performance of an artificial termination of pregnancy). In the absence of a causal connection, the actions of the perpetrator cannot be classified under Part 5 of the Article under consideration.

The subjective aspect of the crime under consideration is characterized by direct intent with respect to the fact of performing an artificial termination of pregnancy and negligence with respect to the consequences in the form of causing death or grievous bodily harm to the victim.

For the correct qualification of the actions of the perpetrator under Article 319 of the Criminal Code, it is necessary to establish the fact of the victim's consent. In this regard, it should be taken into account that consent must be genuine, voluntary and timely. The requirement for consent follows from paragraph 2 of the above-mentioned Order, according to which artificial termination of pregnancy is performed at the woman's request. A person shall be held criminally liable for the illegal performance of an artificial termination of pregnancy (Article 319 of the Criminal Code) only in cases where the victim has consented to the termination of her pregnancy.

In cases where the illegal performance of an artificial termination of pregnancy is carried out against the pregnant woman's wishes to preserve the fetus and without the purpose of further using fetal products, the actions of the perpetrator should be classified under Article 106 of the Criminal Code, “Intentional Infliction of Grievous Bodily Harm.”

The acts provided for in Parts 1 and 3 of Article 319 of the Criminal Code are classified as minor crimes.

The acts provided for in Parts 2 and 4 of Article 319 of the Criminal Code are classified as crimes of medium gravity.

The act provided for in Part 5 of Article 319 of the Criminal Code is classified as a serious crime.

Commentary of 2021 to the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honored Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, member of the working group on reform of the law enforcement system under the Security Council of the Republic of Kazakhstan, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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