Consensual Abortion and the Penal System's Failure to Protect the Nasciturus: An Analysis of the Proportionality of Article 149 of the COIP in Relation to the Right to Life from Conception

Abstract

This research critically examines the apparent normative contradiction within the Ecuadorian legal system between the constitutional mandate to protect life from conception (Article 45 of the Constitution) and the lenient penalty established for the crime of consensual abortion (Article 149 of the COIP). From a dogmatic-legal perspective and based on the principle of proportionality, the study evaluates whether such penalty effectively fulfills the function of protecting the unborn child as a rights-bearing subject. Through normative, jurisprudential, and comparative analysis, it is demonstrated that the current criminal response is insufficient and ineffective, resulting in a constitutionally unacceptable lack of protection. The research applies Robert Alexy's proportionality test and incorporates doctrinal positions from authors such as Jakobs, Ferrajoli, and Roxin, concluding that there is a structural disproportionality that undermines the protection of the right to prenatal life. Ultimately, the study reveals a practical disconnect between the penal sanction and the constitutional mandate, underscoring the need for legislative reform to ensure coherence and effectiveness within the legal system.