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  • BIOETHICS FORUM ESSAY

Conscientious Objection and Undocumented Migrants in Spain

For decades, all undocumented migrants in Spain have had access health care, but that changed drastically on September 1, when a new law went into effect that provides coverage to undocumented migrant adults only in cases of emergency, pregnancy, or delivery.

The modifications introduced by this law imply a change of paradigm in the public health care system. It means that health care is no longer public, universal, and free for all inhabitants in the country; it is restricted to those insured and their dependents. In the Spanish context, this model is similar to the Francoist health insurance system, which left the most vulnerable populations to depend on charity care.

Although the right to health care has been declared a human right by the World Health Organization and many constitutions around the world, European countries have frequently restricted undocumented migrants’ access to health care systems to discourage them from coming to their territories, especially in times of economic crisis.

However, studies (here, for example) show that health care is not among the motivations for migrants to choose a country. Research in Spain also shows that denying health care to undocumented migrants does not translate into a significant savings. There are two main reasons: there are relatively few undocumented migrants – fewer than 150,000 in Spain – and they rarely seek care because of their age, health status, and lack of time and information, as well as other factors including language and cultural barriers and fear of being discovered and expelled.

It has also been estimated that emergency care ends up being more expensive than the primary services denied by the new law. Additionally, the legal restriction reduces the effectiveness of general public health policies, since it inevitably affects part of the documented population. Therefore, the restrictions have to do more with ideology than with evidence.

From an ethical approach, the law has serious implications for practitioners. For this reason, the Spanish Society of Family and Community Medicine (SEMFyC), the leading medical organization in primary health care, has encouraged physicians to be conscientious objectors to withdrawing health care from undocumented migrants who live currently in Spain. The society argues that the law violates several points of the medical code of ethics, including the physicians’ duty not to abandon their patients and to watch over their patients’ and community’s well-being without discrimination. This initiative has been supported by the Spanish Medical Colleges Association, the organization in charge of regulating the Spanish medical profession. Several nongovernmental organizations and citizens platforms are coordinating similar actions.

It is worth reflecting on the appeal to conscientious objection in this issue. Conscientious objection in medicine is usually applied to metaphysical problems about the beginning or ending of life, but it might also be used as a means to change injustice in health care. In this regard, there are two significant features that should be considered.

First of all, in the migrants’ case, conscientious objection implies a combative action that uses public resources. Although the SEMFyC states that conscientious objection against the new law must not be detrimental to documented patients in terms of time and resources, this could be difficult to avoid. That being said, it is important to note that typical conscientious objection sometimes involves public resources in Spain. This is the case with abortions, which, even in private clinics, are paid for by the government.

Second, typical cases of conscientious objection (i.e., abortion) could be legally protected because they do not involve an action but instead are arefusalto act. However, the conscientious objection in the migrants’ issue could be considered apositive actof civil disobedience and in that case it would not be legal under Spanish law.

Strictly speaking, collective conscientious objection has been identified with civil disobedience, whose purpose is to change an unjust law. On the contrary, individual conscientious objection is aimed to preserve an individual’s moral convictions and it does not pursue any legal, political, or religious objective. Nevertheless, the distinction is not entirely clear.

Physicians refusing to perform abortions seek to be consistent with their convictions, but it is difficult to deny any wider motivation. We can find professionals and organizations supporting massive individual conscientious objections against procedures that they and many others consider to be morally problematic. In the migrants’ case, we can also find these two levels, the individual convictions and the social activism. This is why it has been said that conscientious objection is a kind of civil disobedience individually exercised and the reason to accept it applied to this peculiar case.

Especially in critical times, preserving fundamental values and rights constitutes the only way to protect vulnerable people and to avoid increasing inequality. Claims of conscience usually are associated with individual interests or convictions. However, they can also actively promote social justice.

Spain has come a long way to offer one of the world’s best health care systems in terms of sustainability, quality, and equality in its access. The new law is a clear backward movement, since it endangers the universal access to care, guaranteed until now. The lack of evidence about real benefits, together with practitioners’ ethical duties to their patients, led medical professionals to justify conscientious objection. It remains to be seen if this initiative reaches the desired success.

Rosana Triviño is a researcher at the Instituto de Filosofía in Madrid. She was a visiting scholar at The Hastings Center earlier this year.

Posted by Susan Gilbert at 09/17/2012 04:09:21 PM |

Published on: September 17, 2012
Published in: Uncategorized

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