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Report on Access to LegAL AboRtion in Latin America and the caribbean
Access to Legal Abortion
Introduction Legislation on Abortion
5 13 15 16 20 22 22 31 34
Complete Prohibition of Abortion
Current Situation Legislative Reforms in Discussion Current Situation Legislative Reforms in Discussion
Legalization: Indications Model
Decriminalization: Gestacional Limits and Mixed Models
Consequences of the Criminalization of Abortion on Women’s Reproductive Health 37 45 51 Obstacles to Safe and Legal Abortion Accsess Conclusion and Recommendations
Access to Legal Abortion
Report on Access to Legal1 Abortion in Latin America and the Caribbean2
Reproductive rights were recognized as human rights in the 1990s, after being acknowledged as such at two United Nations Conferences. The International Conference on Population and Development, which took place in Cairo, Egypt (1994), and the Fourth World Conference on Women, which took place in Beijing, China (1995), established that reproductive health and rights, in particular those of women, are fundamental for development and for exercising human rights. According to the Programme of Action adopted in Cairo:
Reproductive health is a state of complete physical, mental and social well-being…in all matters relating to the reproductive system and to its functions and processes. Reproductive health therefore implies that people are able to have a satisfying and safe sex life and that they have the capability to reproduce and the freedom to decide if, when and how often to do so. Implicit in this last condition are the right of men and women to be informed and to have access to safe, effective, afford-
Translator’s note: Abortion in general is criminalized by the Penal Codes of the countries discussed in this document. These codes contain certain exceptions or indications when abortion is permitted, such as when the pregnancy is a result of rape, among others. As such, abortion is not technically legal but rather decriminalized under limited circumstances. For purposes of this report, however, the term “legal abortion” will be used to refer to these indications. 2 This report was written by Alma Beltrán y Puga and Ximena Andión of gire, and Mercedes Cavallo of adc. Special thanks to Daniela Schnidrig and Marisol Escudero for their help with research, Mónica Maorenzic for editing and Sara Gómez for translation. 5
able, and acceptable methods of family planning…reproductive health care is defined as the constellation of methods, techniques and services that contribute to reproductive health and well-being by preventing and solving reproductive health problems. It also includes sexual health, the purpose of which is the enhancement of life and personal relations…3 …reproductive rights embrace certain human rights that are already recognized in national laws, international human rights documents and other consensus documents. These rights rest on the recognition of the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so, and the right to attain the highest standard of sexual and reproductive health. It also includes their right to make decisions concerning reproduction free of discrimination, coercion and violence, as expressed in human rights documents.4
The World Health Organization (who) has defined reproductive health as:
…a state of complete physical, mental, and social well-being, and not merely the absence of disease or infirmity, reproductive health addresses the reproductive processes, functions and system at all stages of life. Reproductive health, therefore, implies that people are able to have a responsible, satisfying and safe sex life and that they have the capability to reproduce and the freedom to decide if, when and how often to do so. Implicit in this are the right of men and women to be informed of and to have access to safe, effective, affordable and acceptable methods of fertility regulation of their choice, and the right of access to appropriate health care services that will enable women to go safely through pregnancy and childbirth and provide couples with the best chance of having a healthy infant.5
Both definitions include individual’s right to freely decide whether or not they want to have children. In this way, women’s
Programme of Action adopted at the International Conference on Population and Development. Cairo, September 5-13, 1994, New York, United Nations, 1995, paragraph 7.2. Available at <http://www.unfpa.org/webdav/site/global/shared/documents/publi cations/2004/icpd_eng.pdf> [accessed: May 3, 2012]. Ibid., paragraph 7.3. World Health Organization, “Reproductive Health” in Health Topics. Available at <http://www.who.int/topics/reproductive_health/en> [accessed: April 26, 2012]. 6
Access to Legal Abortion
reproductive rights and health cannot be limited to pregnancy or childbirth, but rather are present during the entire reproductive life of the woman and include her decisions related to these issues. These decisions include the use of both regular and emergency contraceptive methods—to avoid unwanted pregnancies—and, in certain cases, the termination of a pregnancy in safe conditions. One cannot ignore that many women, during their reproductive lives, are faced with the decision of whether or not to continue an unwanted pregnancy, or a pregnancy that poses a risk to her life or health (understood broadly as comprehensive physical, psychological, and social well-being). The inter-American Human Rights System also defines women’s rights, including reproductive rights, in accordance with those established in the American Convention on Human Rights, the Protocol of San Salvador, the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women (Convention of Belem do Para), and the Inter-American Convention to Prevent and Punish Torture (Convention Against Torture). As highlighted by the Inter-American Commission on Human Rights (iachr), the aforementioned international treaties form part of the international legal framework that
...are the basis for recognizing and protecting the reproductive rights of women, which begin with the protection of other fundamental rights, such as the rights to life, health, equality and non-discrimination, liberty, personal integrity, and being free from violence, which constitute the essential core of reproductive rights.6
The right to equality and non-discrimination is one of the pillars of the inter-American system. The instruments of the
iachr, Legal standards related to gender equality and women’s rights in the Inter-American human
rights system: development and application, [OEA/Ser.L/V/II.143 Doc. 60], November 3, 2011, pp. 92-93. Available in English at <http://www.oas.org/en/iachr/women/ docs/pdf/REGIONALst.pdf> [accessed: April 26, 2012]. 7
inter-American system establish the equality of all people before the law, as well as the duty of States to respect and guarantee these rights without discrimination due to sex.7 Using the binding principles on equality as a foundation, both the iachr and the InterAmerican Court (iachr Court) have established that the obligation to guarantee equality and nondiscrimination is closely bound with the prevention, investigation, and punishment of violence against women.8 In the same way, the instruments of the inter-American system affirm women’s right to access to justice, which translates into “a woman’s right to a simple and effective recourse, with due
Articles 1.1, 2 and 24 of the American Convention on Human Rights. Available at <http://www.cidh.oas.org/Basicos/English/Basic3.American%20Convention. htm>. Articles 1, 2, and 3 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights, “The San Salvador Protocol”. Available at <http://www.cidh.oas.org/Basicos/English/basic5.Prot.Sn%20Salv.htm>. Articles ii and xvii of the American Declaration of the Rights and Duties of Man. Available at <http://www.cidh.oas.org/Basicos/English/ Basic2.American%20Declaration.htm> [accessed: April 26, 2012]. iachr, Access to justice for women victims of violence in the Americas, [OEA/Ser.L/V/II Doc. 68], January 20, 2007, paragraph 59. Available at <http://www.cidh.org/women/ Access07/Report%20Access%20to%20Justice%20Report%20English%20020507. pdf> [accessed: April 26, 2012]. iachr, Access to justice for women victims of sexual violence in Mesoamerica, [OEA/Ser.L/V/II. Doc. 63], December 9, 2011. Available at <http:// www.oas.org/en/iachr/women/docs/pdf/WOMEN%20MESOAMERICA%20 ENG.pdf> [accessed: April 26, 2012]. iachr, Report Nº 54/01. Case 12.051. Maria da Penha Maia Fernandes v. Brazil, April 16, 2001. Available at <http://www.cidh.oas.org/ women/Brazil12.051.htm> [accessed: April 26, 2012]. iachr, Report No. 80/11. Case 12.626. Merits Jesssica Lenahan (Gonzales) et al. v. United States. Available at <http://www. cidh.oas.org/casos/11.eng.htm> [accessed: May 22, 2012]. Inter-American Court of Human Rights, Case of González et al. (“Cotton field”) v. Mexico. Preliminary Objection, Merits, Reparations, and Costs, November 16, 2009. Available at <http://www.corteidh. or.cr/docs/casos/articulos/seriec_205_ing.pdf> [accessed: April 26, 2012]. InterAmerican Court, Case of Fernández Ortega et al. v. México. Preliminary Exception, Merits, Reparations and Costs, Judgment of August 30, 2010, Series C No. 215. Available at <http://www.corteidh.or.cr/docs/casos/articulos/seriec_215_ing.pdf> [accessed: April 26, 2012]. Inter-American Court, Case of Rosendo Cantu et al v. Mexico. Preliminary Objection, Merits, Reparations and Legal Costs, Judgment of August 31, 2010, Series C No. 216. Available at <http://www.corteidh.or.cr/docs/casos/articulos/seriec_216_ing. pdf> [accessed: April 26, 2012]. 8
Access to Legal Abortion
guarantees, for protection against acts of violence committed against her. They also establish the State’s obligation to act with due diligence to prevent, prosecute and punish these acts of violence and provide redress.”9 In this sense, the iachr has reiterated that “access to adequate and effective judicial remedies is the first line of defense to protect basic rights, which includes the rights of women victims of violence,” including sexual violence against women.10 Similarly, the iachr has highlighted the link between the right to access to information and the protection of women’s reproductive rights. In this respect, the iachr has emphasized States’ positive obligations to provide women with effective access to necessary information on reproductive issues, establishing that:
The right to access to information is especially relevant in the area of health, and specifically in the area of sexuality and reproduction, since it helps to ensure that everyone is prepared to make free and informed decisions with regard to intimate aspects of their life. In the inter-American system, access to information on sexual and reproductive health involves a series of rights such as the right to freedom of expression, to personal integrity, to the protection of the family, to privacy, and to be free from violence and discrimination.11
In the same vein, the iachr has addressed the obligation of the States to guarantee women’s access to maternal health services free from discrimination, respecting their right to personal, physical and moral integrity. In this respect, the iachr has pointed out that:
iachr, Access to justice for women victims of violence in the Americas, op. cit. (see supra, note 8), paragraph 23, p. 10. iachr, Access to justice for women victims of sexual violence in Mesoamerica, op. cit. (see supra, note 8), paragraph 21, p. 6. iachr, Access to information on reproductive health from a human rights perspective, [OEA/ Ser.L/V/II Doc. 61], November 22, 2011, paragraph 3, p. 1. Available at <http:// www.oas.org/en/iachr/women/docs/pdf/womenaccessinformationreproductivehealth.pdf> [accessed: April 26, 2012].
…Protecting women’s right to personal integrity in the area of maternal health includes the obligation to guarantee that women have equal access to the health services they require according to their particular needs as they relate to pregnancy and the post-partum period and other services and information related to maternity and reproduction throughout their lives.12
In its country reports, the iachr has also reiterated that reproductive rights are part of the core of human rights that should be respected and guaranteed by the States under equal conditions with men and free from all forms of violence and discrimination.13 That being said, the majority of Latin American and Caribbean States, due to moral, religious, and fundamentalist influences regarding sexuality, particularly women’s sexuality, maintain limited and biased public policies on reproductive rights. For this reason, 14 civil society organizations— the Information Group on Reproductive Choice (gire), the Association for Civil Rights (adc), Planned Parenthood Federation of America (ppfa), the Citizens’ Group for the Decriminalization of Therapeutic, Ethical, and Eugenic Abortion, the Center for Women’s Rights (cdm), the Documentation and Research Center (Centro de Documentación y Estudios, cde), the Center for the Promotion and Defense of Sexual and Reproductive Rights (promsex), the Women and Health Collective, the Collective
iachr, Access to maternal health services from a human rights perspective, [OEA/Ser.L/V/II Doc. 69], June 7, 2010, paragraph 3, pp. 1-2. Available at <http://cidh.org/women/ SaludMaterna10Eng/MaternalHealth2010.pdf> [accessed: April 26, 2012. See iachr, Report on the Rights of Women in Chile: Equality in the Family, Labor and Political Spheres, [OEA/Ser.L/V/II.134 Doc. 63], March 27, 2009. Available at <http://www. cidh.org/countryrep/chilemujer2009eng/chilewomen2009toc.eng> [accessed: April 27, 2012]. iachr, The Right of women in Haiti to be free from violence and discrimination, [OEA/Ser.L/V/II Doc. 64], March 10, 2009. Available at <http://www.cidh.oas. org/pdf%20files/HAITI%20WOMEN%20REPORT%20SPN-FINAL.pdf> [accessed: April 27, 2012]. iachr, Violence and discrimination against women in the armed conflict in Colombia, [OEA/Ser.L/V/II Doc. 67], October 18, 2006. Available at <http:// www.cidh.oas.org/pdf%20files/InformeColombiaMujeres2006eng.pdf> [accessed: April 27, 2012].
Access to Legal Abortion
for the Right to Decide, the Commission for Citizenship and Reproduction (ccr), Ipas Central America, the Working Group for Women’s Lives and Health (La Mesa) and Women and Health of Uruguay (mysu)—participated in a thematic hearing on Latin American women’s reproductive rights before the iachr. The hearing took place in Washington, dc on March 28, 2011, at the iachr’s 141st session. Commissioners Dinah Shelton (iachr President), José de Jesús Orozco Henríquez, María Silva Gillén, and Luz Patricia Mejía Guerrero, the Rapporteur on the Rights of Women, were present at the hearing, and emphasized the issue’s importance and special relevance and thanked the organizations for the information provided.14 During this hearing a diagnosis was presented on the obstacles that women face in effectively exercising their right to reproductive health. It was pointed out that the criminalization of abortion diminishes women’s enjoyment of their reproductive rights, as well as of their human rights to life, to personal integrity, to the highest attainable standard of reproductive health, to privacy, to dignity, to personal liberty and to the right to live free from violence and discrimination. In follow up to the information put forward in the hearing before the iachr, we present this report, which contains an analysis of the problems related to the regulation of legal abortion in the region, its inaccessibility, and the terrible consequences for women’s rights. We, the organizations, believe that the issue of abortion must be approached from a perspective of protection and guarantee of women’s rights, in accordance with the definitions of reproductive rights and reproductive health provided by the international community.
See iachr, Access to information on reproductive health from a human rights perspective, op. cit. (see supra, note 11). 11
Access to Legal Abortion
ii LegisLation on
In legal systems throughout the world, two forms of abortion regulation exist: regulation within or outside the penal system. Holland15 is an example of a country that regulates abortion outside of its penal system. The great majority of countries, however, regulate it within their Penal Codes. Penal regulation can take three distinct forms: total criminalization without exceptions, the model of gestational or trimester limits; and the model of legal indications or allowances.16 The total criminalization of abortion does not permit the practice under any circumstance. Chile, El Salvador, the Dominican Republic, Honduras, Suriname,17 and Nicaragua are the countries that completely prohibit abortion. The model of gestational limits decriminalizes abortion up to a specific gestational limit; in other words, abortion is not considered a crime—usually—up to the 12th or 14th week of gestation,
According to the “Termination of Pregnancy Act”, which entered into effect in 1984, abortions are free of charge and can be carried out, at the woman’s request, up to the 21st week of gestation. In cases in which pregnancy endangers the woman’s health, termination can be carried out up to the 24th week of gestation. Bergallo, Paola, “Introducción. La liberalización del aborto: contextos, modelos regulatorios y argumentos para su debate” in Paola Bergallo (comp.), Aborto y justicia reproductiva, Buenos Aires, Editores del Puerto, 2011, pp. 5-6. In Suriname, despite the total criminalization of abortion in the penal legislation, the State has pronounced itself in favor of the practice of abortion when the woman’s life is in danger, arguing women’s right to reproductive health. See, Initial periodic report of Suriname, CRC/C/28/Add.11, (1998), paragraphs 27-29 and Combined initial and second periodic report of Suriname, CEDAW/C/SUR/1-2, (2002), paragraph 65; cited in Castelen, Milton Andy, “Women’s reproductive health rights: the rule of law and public health considerations in repealing the criminal laws on abortion in the Republic of Suriname”, Faculty of Law, University of Toronto, 2009. Available at <https:// tspace.library.utoronto.ca/bitstream/1807/18236/1/Castelen_Milton_A_200911_ LLM_thesis.pdf> [accessed: July 17, 2012]. 13
although there are countries that allow it up to 18 weeks.18 This model generally is “mixed”; after the term is completed, abortion is regulated through a system of legal indications. This, for example, is the case of Mexico City. The model of legal indications permits abortion in certain situations, known as “legal indications”. Typically, legal indications include: risk to the woman’s health or life, rape, fetal malformations incompatible with extra-uterine life and— in some cases— -socioeconomic hardship.19 The majority of Latin American countries regulate abortion with the legal indications model. This is the case in Argentina, Bolivia, Brazil, Colombia, Costa Rica, Ecuador, Mexico (except for the capital city), Paraguay, Panama, Peru and Uruguay, among others. As Paola Bergallo explains, the legal indications model is divided, in her view, into models with and without implementation.20 Frequently, the implementation of legal indications is carried out through complementary legislative regulation (when sanctioned by legislatures) or administrative regulation (when it is carried out by an entity dependent on the Executive branch, such as the Ministry of Health).
In Sweden abortion is legal, upon request, until the 18th week of the pregnancy, provided that the abortion does not put the woman’s life in danger. Between 12 and 18 weeks of gestation, women must discuss the abortion with a social worker. After 18 weeks she must obtain permission from the National Committee on Health and Well-Being. See Pimenta de Faria, Carlos Aurelio, “El derecho al aborto y las políticas reproductivas en Suecia” in Estudios sociológicos, México, El Colegio de México, vol. vii, no. 3, September-December 2000, pp. 617-659. Law N. 9.763, art. 328 inc.4, Uruguay. “Extenuating and exempting circumstances: Subsection 4. If the abortion is performed without the woman´s consent for reasons of economic distress, the Judge may diminish the penalty from one third to half, and if it is carried out with her consent he may waive the punishment altogether.” Bergallo, Paola, “Aborto y justicia reproductiva: una Mirada sobre el derecho comparado” in Cuestión de Derechos, Buenos Aires, adc, num. 1, July 2011, pp. 20-44. Available at <http://www.cuestiondederechos.org/ar/pdf/04-aborto-justicia-reproductiva-Paola-Bergallo.pdf> [accessed: April 26, 2012]. 14
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As Agustina Ramón Michel states, in the models of legal indications and gestational limits:
…there is an underlying consideration of what is at stake and the decision to give prevalence to women’s rights and values. What changes is the intensity and form of this result. The intensity changes because, in the model of gestational limits, there is a less conditioned and more open stance regarding the woman’s decision, while in legislation based on legal indications a structure is adopted that that demands certain circumstances and in this way, limits and constricts, both materially and symbolically, women’s possibilities.21
II.a Complete Prohibition of Abortion International mechanisms, such as the Human Rights Committee, the Committee for the Elimination of Discrimination against Women (cedaw Committee), the Committee of Economic, Social, and Cultural Rights (cescr), and the Committee Against Torture, have stated clearly that the absolute criminalization of abortion is contrary to the provisions of all international human rights treaties, because it does not respect women’s rights to life, integrity, and health. The iachr has expressed that
...therapeutic abortion is recognized internationally as a specialized, necessary health service for women intended to save the mother’s life when it is at risk due to pregnancy, and that denying this service constitutes an attack on the life and physical and psychological integrity of women.22
Accordingly, the iachr has recommended that States revise their legislation and liberalize laws that prohibit abortion without exceptions.
Ramón Michel, Agustina, “Entre la acción y la espera: el acceso al aborto legal en América Latina” in Los derechos reproductivos: un debate necesario. I Congreso Latinoamericano Jurídico sobre Derechos Reproductivos, Arequipa, Perú, November 5-7, 2009, Lima, promsex, November 2011, pp. 30-31. Available at <http://promsex.org/docs/ Publicaciones/Congreso%20AQP%28low%29.pdf> [accessed: April 26, 2012]. iachr, Annex to Press Release 28/11 on the 141st Regular Session of the iachr, April 1, 2011. Available at <http://www.oas.org/en/iachr/media_center/PReleases/2011/028A. asp> [accessed: April 27, 2012]. 15
In his report on the right of all people to the enjoyment of the highest attainable standard of physical and mental health, United Nations Special Rapporteur Anand Grover expressed that: “The use of overt physical coercion by the State or non-State actors, such as in cases of forced sterilization, forced abortion, forced contraception and forced pregnancy has long been recognized as an unjustifiable form of State-sanctioned coercion and a violation of the right to health.”23 He also considered the criminalization of abortion to be an unacceptable barrier that impedes women from exercising their right to health. The Rapporteur stated that the prohibition on abortion should be eliminated, because it threatens women’s dignity and autonomy and seriously restricts their freedom to make decisions regarding sexual and reproductive health. According to the Rapporteur, the criminalization of abortion:
…generates poor physical health outcomes, resulting in deaths that could have been prevented, morbidity and ill-health, as well as negative mental health outcomes, not least because affected women risk being thrust into the criminal justice system. Creation or maintenance of criminal laws with respect to abortion may amount to violations of the obligations of States to respect, protect and fulfill the right to health.24
In conclusion, the Rapporteur recommended that the States “decriminalize abortion, including related laws, such as those concerning abetment of abortion.”25 II.a.1 Current Situation As previously mentioned, some countries in Latin America and the Caribbean prohibit abortion with no exceptions. This is the
Report of Special Rapporteur, Anand Grover, “Right of everyone to the enjoyment of the highest attainable standard of physical and mental health”, General Assembly of the United Nations, 66th Session, August 3, 2011, [A/66/254], paragraph 12, p. 5. Available at <http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N11/443/58/ PDF/N1144358.pdf ?OpenElement> [accessed: April 27, 2012]. Ibid., paragraph 21, p. 7. Ibid., paragraph 65, p. 19. 16
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case, for example, in Honduras, Suriname, Chile, the Dominican Republic, El Salvador, and Nicaragua. Regarding the absolute prohibition of abortion in Nicaragua, the Committee on Human Rights stated in 2008:
The Committee notes with concern the general ban on abortion, even in cases of rape, incest and, apparently, pregnancies threatening the life of the mother. It is also concerned that the law authorizing therapeutic abortion in such circumstances was repealed by Parliament in 2006 and that, since the introduction of the ban, there have been various documented cases in which the death of a pregnant woman has been associated with a lack of timely medical intervention to save her life such as would have taken place under the legislation in force before the law was revised. The Committee also notes with concern that the State party has not clarified in writing that medical professionals can follow the Standard Operating Procedures for Dealing with Obstetric Complications without fear of criminal investigation or prosecution by the State party (arts. 6 and 7). The State party should bring its legislation on abortion into line with the provisions of the Covenant. It should also take steps to help women avoid unwanted pregnancies so that they do not need to resort to illegal or unsafe abortions which may endanger their lives, or seek abortions abroad. The State party should also avoid penalizing medical professionals in the conduct of their professional duties.26
In turn, the cedaw Committee also recommended that Nicaragua revise its legislation on abortion and expressed its concern “[with] recent steps taken by the State party to criminalize therapeutic abortion, which may lead more women to seek unsafe, illegal abortions, with consequent risks to their life and health…”27
Human Rights Committee, Final Concluding observations of the Human Rights Committee: Nicaragua, 94th Session, December 12, 2008, [CCPR/NIC/CO/3], paragraph 13. Available at <http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G08/456/92/ PDF/G0845692.pdf ?OpenElement> [accessed: April 27, 2012]. cedaw Committee, Concluding comments of the Committee on the Elimination of Discrimination against Women: Nicaragua, 37th Session, January 15 to February 2, 2007, [CEDAW/C/NIC/CO/6], paragraph 17, p. 4. Available at <http://www.unhchr.ch/ tbs/doc.nsf/0/521827330c354251c12572a4003f9be8/$FILE/N0724416.pdf> [accessed: April 27, 2012]. 17
In the same vein, the Committee on Human Rights, after revising fulfillment of the International Covenant on Civil and Political Rights (iccpr), made an observation on October 27, 2010, regarding the situation in El Salvador:
The Committee expresses its concern that the current Criminal Code criminalizes all forms of abortion, given that illegal abortions have serious detrimental consequences for women’s lives, health and well-being. The Committee remains concerned that women seeking treatment in public hospitals have been reported to the judicial authorities by medical staff who believe they have been involved in abortions, that legal proceedings have been brought against some of these women, and that in some cases these proceedings have resulted in severe penalties for the offence of abortion or even homicide, an offence interpreted broadly by the courts. Even though the Constitutional Chamber of the Supreme Court has ruled that in cases of vital need a woman facing criminal proceedings for abortion can be absolved of criminal responsibility, the Committee is concerned that this legal precedent has not been followed by other courts and that criminal proceedings against women accused of abortion have not been dropped as a result (articles 3 and 6 of the Covenant). The Committee reiterates its recommendation that the State party should amend its legislation on abortion to bring it into line with the Covenant. The State party should take measures to prevent women treated in public hospitals from being reported by the medical or administrative staff for the offence of abortion. Furthermore, until the current legislation is amended, the State party should suspend the prosecution of women for the offence of abortion. The State party should open a national dialogue on the rights of women to sexual and reproductive health.28
In its observations and recommendations to Chile in November 2004, the cescr stated that:
The Committee is concerned about the consequences for women’s health of the legal prohibition on abortion, without exceptions, in the
Human Rights Committee, Concluding observations of the Human Rights Committee: El Salvador, 100th Session, October 27, 2010, [CCPR/C/SLV/CO/6], paragraph 10. Available at <http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G10/466/98/ PDF/G1046698.pdf ?OpenElement> [accessed: May 2, 2012]. 18
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State party. While there are no official statistics on the number of abortions performed annually, the large number of women who are hospitalized for abortion complications every year (34,479 in 2001) gives an indication of the extent of this problem.29
In view of the above, the cescr recommended that Chile “revise its legislation and decriminalize abortion in cases of therapeutic abortions and when the pregnancy is the result of rape or incest.”30 The Human Rights Committee also stated that Chile should revise its legislation on abortion, to bring it into line with the iccpr.31 With respect to Honduras, the cedaw Committee recommended:
…that the State party consider reviewing the law relating to abortion with a view to identifying circumstances under which abortion could be permitted, such as therapeutic abortions and abortions in cases of pregnancies resulting from rape or incest, and removing punitive provisions imposed on women who undergo abortion, in line with the Committee’s general recommendation 24, on women and health, and the Beijing Declaration and Platform for Action. The Committee also urges the State party to provide women with access to quality services for the management of complications arising from unsafe abortions and to reduce women’s maternal mortality rates.32
cescr Committee, Concluding Observations of the Committee on Economic, Social and Cultural Rights: Chile, 33rd Session, November 26, 2004, [E/C.12/1/Add.105], paragraph 26. Available at <http://www.unhchr.ch/tbs/doc.nsf/%28Symbol%29/ E.C.12.1.Add.105.En?Opendocument> [accessed: April 27, 2012]. Ibid., paragraph 53. Human Rights Committee, Concluding observations of the Human Rights Committee: Chile, 89th Session, April 17, 2007, [CCPR/C/CHL/CO/5], paragraph 8, p. 3. Available at http://www.ccprcentre.org/doc/HRC/Chili/CCPR.C.CHL.CO.5_en.pdf> [accessed: May 2, 2012]. cedaw Committee, Concluding comments of the Committee on the Elimination of Discrimination against Women: Honduras, 39th Session, August 10, 2007, [CEDAW/C/ HON/CO/6], paragraph 25, p. 6. Available at <http://daccess-dds-ny.un.org/ doc/UNDOC/GEN/N07/460/18/PDF/N0746018.pdf?OpenElement> [accessed: April 27, 2012].
Meanwhile, the Human Rights Committee observed that Honduras should revise its legislation on abortion to bring it into line with the iccpr.33 The cedaw Committee made a similar recommendation to the Dominican Republic, recommending “that the State health services should provide an abortion when the pregnancy is a result of rape or when the mother’s health is in danger.”34 To conclude this section, we provide an example of the consequences of the absolute criminalization of abortion on the protection of women’s health. In Nicaragua, public health authorities denied “Amelia,” who was pregnant, access to medical treatment for her cancer, arguing that the medications would provoke an abortion. Amelia requested preventative measures before the iachr to make sure that she would be provided with medical treatment. Having granted these measures, the iachr urgently appealed to the State of Nicaragua to adopt the means necessary to assure the beneficiary access to the medical treatment necessary to treat the metastatic cancer that put her life at risk.35 II.a.2 Legislative Reforms in Discussion In Chile, six bills were presented in 2010 to decriminalize abortion. In September 2011, the Chilean Senate’s Health Commission agreed to discuss three draft bills that proposed decriminalizing abortion under three conditions: rape, unavoidable risk for the
Human Rights Committee, Concluding observations of the Human Rights Committee: Honduras, 88th Session, p. 3. Available at <http://www.unhchr.ch/tbs/doc.nsf/317 ab54d16e0e6aac1256bdd0026bd27/603e371c3f36d612c12572590050bac1/$FILE/ G0645946.pdf> [accessed: April 27, 2012]. cedaw Committee, Dominican Republic: Concluding Observations Adopted at the 31st Session, July 6-23, 2004, paragraph 309. Available at <http://www2.ohchr.org/english/bodies/cedaw/docs/co/DominicanRepublicCO31.pdf> [accessed: May 2, 2012]. See iachr, Precautionary Measures. MC 43-10 “Amelia”, Nicaragua, February 26, 2010. Available at <http://www.oas.org/en/iachr/women/protection/precautionary.asp> [accessed: May 2, 2012]. 20
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woman during the pregnancy, and severe fetal malformations. In order to carry out the procedure, the following would be required: the consent of the woman, the intervention of a surgeon, and the opinion of two other surgeons. Nevertheless, some Commission members stated that the bills were “bad and unnecessary” and that they did little more than undercut the defense of the right to life.36 Recently, the Chilean Senate rejected the possibility of analyzing the proposed bills and regulating abortion. Therapeutic abortion was legal in Chile from 1931 until 1989, when—during Pinochet’s regime—Article 119 of the Health Code, which permitted the termination of pregnancy for health reasons, was modified.37 Currently, the Chilean Penal Code punishes those who cause an abortion with a prison sentence, regardless of the reason that motivated it.38 After the reinstatement of democracy in 1991, various bills to reform the absolute criminalization of abortion have been presented, but none have been successful. Another country whose current legislation prohibits abortion under all circumstances is El Salvador. In 1997, a reform to its Penal Code repealed the legal indications for rape, fetal malformations, and risk to the woman’s health. In the context of the elections for Representatives of the Legislative Assembly on March 11, 2012, conservative Salvadoran groups expressed their hope to gain sufficient votes in the Assembly to pass a constitutional reform— pending ratification—designed to protect the heterosexual family
“Aprueban debatir despenalización del aborto terapéutico en Chile” in Aciprensa, Santiago, Chile, September 6, 2011. Available at <http://www.aciprensa.com/noticia.php?n=34620> [accessed: April 27, 2012]. Before the reform of Article 119 of Chile’s Health Code, it stated that “the pregnancy can be terminated for health reasons of the woman, corroborated by signatures from two surgeons”. The article currently states that “No action can be taken that will result in an abortion”. Available at <http://epi.minsal.cl/epi/html/RSI/ VI/3Miscelaneo/05codsan.pdf> [accessed: June 14, 2012]. See Articles 342-345 in Chile’s Penal Code. Available at <http://www.leychile.cl/ Navegar?idNorma=1984> [accessed: June 14, 2012]. 21
as the foundation of society and to prevent the decriminalization of abortion.39 The iachr, in its recommendations for Haiti, also refers to the problem of the criminalization of abortion and to a particular bill:
The Ministry is also contemplating the submission of a law that legalizes abortion. These draft laws are part of a greater action plan by the Ministry of the Status of Women and Women’s Rights, which includes the promotion of women’s rights, increasing the public’s awareness of the problem of violence against women, the analysis of the disparities between men and women in various sectors, and poverty reduction.40
II.b Legalization: Indications Model The indications model establishes certain circumstances under which abortion is permitted by law, which usually include danger to the life or health of the woman, fetal malformations and rape. Under these circumstances, abortion is permitted. II.b.1 Current Situation The majority of Latin American countries regulate abortion using the indications model. This is the case in Argentina, Bolivia, Brazil, Colombia, Costa Rica, Ecuador, Mexico (except in the capital city), Paraguay, Panama, Peru, Uruguay and Venezuela. As previously mentioned, legal indications are regulated through complementary legislative or administrative norms.
“El Salvador: Comicios definirán matrimonio homosexual y aborto” in Mundo Cristiano, Monday, March 5, 2012. Available at <http://www.cbn.com/mundocristiano/Latinoamerica/2012/March/El-Salvador-Elecciones-parlamentarias-definiranmatrimonio-gay-y-aborto/> [accessed: April 27, 2012]. iachr, Observations of the Inter-American Commission on Human Rights upon conclusion of its April 2007 visit to Haiti, March 2, 2008, [OEA/Ser.L/V/II.131 Doc. 36], paragraph 53. Available at <http://www.cidh.oas.org/pdf%20files/April%202007%20 Haiti%20Observations%20ENG.pdf> [accessed: June 15, 2012]. 22
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Colombia developed various regulations to implement the legal indications established in 2006 by the Constitutional Tribunal in decision C-355.41 In Argentina, although the Penal Code has permitted abortion under two circumstances since 1921 (when the woman’s life or health is at risk and in the case of sexual abuse), the only province that has made any legislative regulations to facilitate access to legal abortion, is Chubut.42 In the case f.a.l. s/ medida autosatisfactiva43 on March 13, 2012, Argentina’s Supreme Court upheld a sentence in which Chubut’s Superior Court authorized a.l.’s petition so that her daughter, a.g., a 15 year-old girl raped by her stepfather, could have an abortion. The abortion was carried out but Chubut’s Superior Court’s decision was appealed by the Deputy General Counsel of the Chubut province, in representation of the unborn fetus. In the sentence, the Argentinean Court assured that any victim of rape can have a legal abortion44 and considered the de-
Colombia, Ministry of Health, Decree that regulates Aspects of Sexual and Reproductive Health (2006), available at <http://www.alcaldiabogota.gov.co/sisjur/normas/Norma1.jsp?i=22421>; Resolution 004905 that adopts the Technical Norm (2006) with Attachments, available at <http://www.pos.gov.co/Documents/ Normativa%20Regimen%20Subsidiado/Resoluci%C3%B3n_4905_de_2006. pdf>; Technical Norm IVE (2006), available at <http://www.womenslinkworldwide. org/pdf_programs/es_prog_rr_col_legaldocs_normatecnica.pdf>; Circular 031 of 2007 with Information on the provision of safe services for the voluntary termination of pregnancy, not constitutive of the crime of abortion (2007), available at <http://www.alcaldiabogota.gov.co/sisjur/normas/Norma1.jsp?i=24945]> [accessed: April 27, 2012]. Law XV N 14, Doc. 709/10, “Procedimientos a desarrollar en los establecimientos de salud pública, respecto de la atención de los casos de abortos no punibles” in Boletín Oficial, Chubut, Argentina, June 4, 2010, pp. 2-3. Available at <http”//www. despenalizacion.org.ar/pdf/Legislacion/Leyes_vigentes/Ley709-chubut-2010.pdf> [accessed: April 27, 2012]. Argentina, csjn, f.a.l. s/ medida autosatisfactiva, file 259/2010, Volume 46, letter F, Buenos Aires, March 13, 2012. Available at <http://www.csjn.gov.ar/documentos/ expedientes/toc_expe.jsp> [accessed: May 18, 2012]. Ibid., p. 20. 23
mand for a judicial authorization to be contra legem, promoted by health professionals and validated by various officials in the judicial branch, both at the national and provincial level.45 According to the Court, judicial authorization is not necessary, nor is it necessary to report the rape. The only requirement that the Court allows is an affidavit from the woman regarding the rape. The Court urged national and provincial authorities to eliminate all administrative and factual barriers. To that end, hospital protocols for legal abortion were to be implemented and operationalized in accordance with high-quality standards. These protocols should:
...consider guidelines that guarantee the information and confidentiality of the woman requesting the service; avoid administrative procedures or waiting periods that unnecessarily delay care and decrease the safety of the practices; eliminate requirements that are not medically indicated; and formulate mechanisms that facilitate, without delays or consequences for the health of the woman requesting the service, the resolution of any disagreements that may exist between the intervening professional and the patient, with respect to the origins of the required medical procedure, …all institutions that attend to the situations described here [should have available] sufficient human resources to guarantee, in a permanent manner, the exercise of those rights guaranteed by law to victims of sexual violence.46
A few months after the Court’s ruling, the situation in Argentina varies across jurisdictions. Of the 24 jurisdictions, including the national jurisdiction, only two (Santa Fe and Chubut) have developed protocols that comply, for the most part, with the Court’s decision. Three jurisdictions (Province of Buenos Aires, Buenos Aires City, and Neuquen) maintain restrictive protocols that allow legal abortion only for rape victims with intellectual/ mental disabilities. Four jurisdictions (Salta, La Pampa, Entre Rios, and Cordoba) grant authorization only after compliance with arbi-
Ibid., point 19. Ibid., considering 29. 24
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trary requirements, and two (Salta and Entre Ríos) authorize abortion only for rape victims. In 2007, Argentina’s Ministry of Health developed a Technical Guide to Legal Abortion. The guide was updated in 2010 to effectively ensure enforcement of women’s sexual and reproductive rights, and is available on the Ministry’s website. Nevertheless, since it has not been validated, its implementation has been irregular.47 In 2011, the Human Rights Committee held Argentina accountable for human rights violations in denying l.m.r., a mentally disabled adolescent raped by her uncle, access to legal abortion.48 The Committee considered that the Argentine State’s failure to provide safe and legal abortion services to l.m.r. caused her moral and physical distress49 and violated Article 7 of the iccpr, which establishes that no one shall be subjected to cruel, inhuman or degrading treatment.50 The Committee also noted that in this case, the violation was more serious because the rape victim was mentally disabled. In addition, the barriers that prevented her from receiving safe abortion services were tantamount to a violation of her right to privacy as defined in Article 17 of the iccpr.51 Finally, it also established that although l.m.r. was eventually granted access to legal remedies, they were ineffective, since she had to resort to three judicial agencies in order to obtain authorization and, as
Available at <http://www.msal.gov.ar/saludsexual/pdf/Guia-tecnica-web.pdf> [accessed: June 14, 2012]. Human Rights Committee, l.m.r. v. Argentina. Communication No 1608/2007, 101st Session, April 28, 2011, [CCPR/C/101/D/1608/2007]. Available at <http://www. worldcourts.com/hrc/eng/decisions/2011.03.29_VDA_v_Argentina.pdf> [accessed: May 2, 2012]. Ibid., paragraph 9.2, p. 12. See the judgment of the Committee in a similar case against Peru. Human Rights Committee, K.L. v. Perú. Communication No 1153/2003, 85th Session, November 17, 2005, [CCPR/C/85/D/1153/2003]. Available at <http://www1.umn.edu/humanrts/undocs/1153-2003.html> [accessed: May 21, 2012]. l.m.r. v. Argentina, op. cit. (see supra, note 48), paragraph 9.3, p. 12. 25
a result, her pregnancy continued for several more weeks, increasing her health risk and forcing her to seek care from private and clandestine providers. According to the Committee, the Argentine State also violated her right to an effective judicial remedy as defined in Article 2.3 with regards to Articles 3, 7, and 17 of the iccpr.52 In the case of Mexico, the cedaw Committee has recommended that the State “extend health care coverage, particularly reproductive health and family planning services, and eliminate barriers to women’s access to these services.”53 This recommendation includes legal abortion services. In addition, the Committee suggested harmonizing abortion legislation at the state and federal level, urging the State:
…to implement a comprehensive strategy which should include the provision of effective access to safe abortion in situations provided for under the law and a wide range of contraceptive measures, including emergency contraception, measures to raise awareness about the risks of unsafe abortions and nationwide sensitization campaigns about women’s human rights, targeting in particular health personnel, as well as the general public.54
Similarly, regarding access to legal abortion, especially in cases of rape, and reproductive health services and education, the cescr recommended that Mexico:
…ensure and monitor the full access of rape victims to legal abortion, to implement the Equal Start in Life Programme in all of its states, to ensure full access by everyone, especially by girls and young women, to reproductive health services and education, especially in rural areas
Ibid., paragraph 9.4, pp. 12-13. Committee, Concluding comments of the Committee on the Elimination of Discrimination against Women: Mexico, 36th Session, August 25, 2006, [CEDAW/C/ MEX/CO/6], paragraph 33, p. 7. Available at <http://daccess-dds-ny.un.org/doc/ UNDOC/GEN/N06/482/57/PDF/N0648257.pdf ?OpenElement> [accessed: June 14, 2012]. Idem.
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and in indigenous communities, and to allocate sufficient resources for these purposes.55
In the case of Paulina del Carmen Ramírez Jacinto v. Mexico, the State was held internationally responsible for denying her access to legal abortion services.56 In 2002, Paulina, an adolescent at the time, filed a petition with the iachr against the Mexican State for obstructing and delaying access to a legal abortion to which she was entitled as a victim of rape.57 In its report of the friendly settlement of the case, the iachr pointed out:
…that women cannot fully enjoy their human rights without having a timely access to comprehensive health care services, and to information and education in this sphere. The iachr also notes that the health of sexual violence victims should be treated as a priority in legislative initiatives and in the health policies and programs of Member States.58
The Mexican State accepted international responsibility. For Paulina and her son, the remedies in the friendly settlement included compensation for health services; medical expenses incurred as a result of the event; financial support for living expenses, housing, education and professional development; psychological care; and reparation for moral damages.59 In addition, the State ac-
cescr Committee, Concluding observations of the Committee on Economic, Social and Cultural Rights: Mexico, 36th Session, June 9, 2006, [E/C.12/MEX/CO/4], paragraph 44, p. 7. Available at <http://www.unhchr.ch/tbs/doc.nsf/%28Symbol%29/E.C.12.MEX. CO.4.En?Opendocument> [accessed: June 14, 2012]. See iachr, Paulina del Carmen Ramírez Jacinto v. Mexico. Petition 161/02. Report 21/07. Friendly Settlement, March 9, 2007, [OEA/Ser/L/V/II.127 Doc. 26]. Available at <http://www.cidh.oas.org/annualrep/2007eng/Mexico161.02eng.htm> [accessed: April 27, 2012]. Paulina, 13 years old, was the victim of a rape, result of which she became pregnant. According to legislation in Baja California, Mexico, where she resides, she had the right to terminate said pregnancy. However, the public health authorities delayed the abortion and gave her false information regarding the risks of the procedure, thereby hindering Paulina from fully exercising her rights. iachr, Paulina del Carmen Ramírez Jacinto v. México, op. cit. (see supra, note 56), paragraph 19, p. 6. Ibid., paragraph 16, first to tenth clauses, pp. 3-5.
knowledged that Baja California lacked appropriate abortion regulations and committed to changing the local legislation to prevent the reoccurrence of similar incidents.60 In the case of Peru, several international agencies have recommended that the State review its abortion legislation. The Human Rights Committee, for example, noted:
Peru must ensure that laws relating to rape, sexual abuse and violence against women provide women with effective protection and must take the necessary measures to ensure that women do not risk their life because of the existence of restrictive legal provisions on abortion.61
Furthermore, the Committee expressed its concern at the fact that abortion continues to be punished even in those cases where the pregnancy is the result of rape. Clandestine abortion continues to be a major cause of maternal mortality in Peru. The Committee reiterated that the above provisions are incompatible with Articles 3, 6, and 7 of the iccpr. Similarly, the cedaw urged the Peruvian government:
…to look into the causes of high maternal mortality rates arising from clandestine abortions and to review the law on abortion, taking into consideration the health needs of women and to consider suspending the penalty of imprisonment for women who have undergone illegal abortion procedures. ...that the Government seek the cooperation of medical associations and of judges and lawyers to consider more expansive use of the
Ibid., paragraph 16, eleventh to twelfth clauses, p. 5. Since the compromise of the modification of the legislation, the Secretary of Health of the state of Baja California issued the memorandum “General Guidelines for the Organization and Operation of Health Services Related to the Termination of Pregnancy in the state of Baja California” and the Constitutional Law of the Attorney General of Justice in the state of Baja California was reformed. Human Rights Committee, Concluding observations of the Human Rights Committee: Peru, 58th Session, November 18, 1996, [CCPR/C/79/Add. 73], paragraph 22. Available at <http://www.unhchr.ch/tbs/doc.nsf/%28Symbol%29/CCPR.C.79. Add.72.En?Opendocument> [accessed: June 14, 2012]. 28
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therapeutic exception to the criminal prohibition of abortion, in cases of danger to the mother’s health.62
In the case of k.l. v. Peru, the Human Rights Committee held Peru accountable for human rights violations for not providing k.l. with access to legal abortion.63 Pregnant at 17, k.l. found out that she was carrying an anencephalic fetus after having undergone a medical examination. Although Peru does not criminalize therapeutic abortion, it did not authorize the procedure, and she had to bring her pregnancy to term and breastfeed an anencephalic baby girl who lived four days. In 2005, the Committee established that Peru had violated k.l.’s right to privacy and to a life free from cruel, inhuman or degrading treatment, and ruled that the State should implement measures of reparation and non-repetition.64 Despite the Committee’s ruling on the case, 121 pregnancies were brought to term after a diagnosis of anencephaly65 between 2005 and 2008 in Peru. This situation exacerbated the need for a therapeutic abortion protocol endorsed by the State66 because the only such protocols available in the country were those developed by health institutions.67
63 64 65
cedaw Committee, Concluding observations of the Committee on the Elimination of Discrimination Against Women: Peru, 14th Session, February 3,1995, [A/50/38], paragraphs 446 and 447. Available at <http://www.unhchr.ch/tbs/doc.nsf/0/51f46fd7b60 3b10ec12563a9003c7586?Opendocument> [accessed: April 27, 2012]. k.l. v. Peru, op. cit (see supra, note 50). Ibid., paragraphs 7 and 8, pp. 9-10. Data provided by the Ministry of Health (minsa) in 2010, at the request of demus. promsex, “Ministro Ugarte: cumpla lo que ofreció el 28 de mayo y apruebe el protocolo del aborto terapéutico”, August 17, 2010. Available at <http://www.promsex.org/ informacion/notas-de-prensa-1849-ministre-ugarte-cumpla-lo-que-ofrecio-el-28-demayo-y-apreube-el-protocolo-del-aborto-terapeutico> [accessed: June 15, 2012]. The demands for a protocol met with strong obstacles, with perhaps the strongest the refusal of the President of the Council of Ministers to authorize it in May 2007. Belen de Trujillo Hospital, Department of Gynecology, Protocolo de Manejo de Casos para la Interrupción Legal del Embarazo, 2006. Maternal and Perinatal Institute, Directiva del Instituto Materno Perinatal, 2007.
In this context (lack of a protocol for therapeutic abortion) promsex and the Center for Reproductive Rights (crr) brought before the cedaw Committee the case of l.c., an adolescent rape victim who became pregnant. Because of a failed suicide attempt, l.c. seriously injured her spine, and even though she needed emergency surgery, she was denied a therapeutic abortion. She carried her baby to term and became paralyzed. Again, in November 2011, the cedaw held Peru accountable for a human rights violation for the l.c. case. It noted that the State should change its legislation to allow abortion in cases of rape and sexual abuse; establish mechanisms to ensure availability of abortion services; and guarantee access to abortion when the woman’s health or life is at risk (indications that are currently available in Peru but, in practice, are inaccessible).68 In Bolivia, the lack of access to legal abortion was discussed after a group of physicians, in 2002, refused to perform a legally authorized abortion on a 12 year-old girl who had been raped by her stepfather in Cochabamba. Ipas Bolivia found that because victims of rape are required to file criminal charges against the perpetrator to have access to legal abortion, up until 2008 only six legal procedures for this indication had been documented.69 In fact, Ipas Bolivia promoted litigation to contest the constitutionality of requiring legal authorization to receive an abortion, and the National Committee against Sexual Violence demanded implementation of appropriate regulations twice.70 Consequently, the Bolivian Supreme Court ruled that lower courts must comply with Article 266 of the Penal Code
cedaw Committee, L.C. v. Peru. Communication N 22/2009, 50th Session, November 25, 2011, [CEDAW/C/50/D/22/2009]. Available at <http://www2.ohchr.org/ english/law/docs/CEDAW-C-50-D-22-2009_sp.pdf> [accessed: April 27, 2012]. Cited by Ramón Michel, op. cit. (see supra, note 21), p. 34, note 43. See <http://www.ipas.org>.
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(which allows abortion in cases of rape and incest and when the woman’s health or life is at risk).71 In Brazil, the Ministry of Health approved technical standards that implemented the legal abortion indications as provided in the Penal Code.72 Lack of access to abortion, however, persisted. In 2009, again, the cescr recommended that Brazil “undertake legislative and other measures, including a review of its current legislation, to protect women against the effects of clandestine and unsafe abortion and ensure that women do not resort to such harmful procedures.”73 Regrettably, as discussed above, in all the countries that have implemented systems of indications for legal abortion there are serious problems with access to the procedure. II.b.2 Legislative Reforms in Discussion In general, very restrictive models of legal indications operate—in practice—as absolute forms of criminalization. For that reason, civil society organizations have campaigned in favor of changing existing regulations to incorporate more indications or decriminalize early abortion.
Ipas Bolivia, “Corte Suprema de Justicia de Bolivia ordena a los tribunales implementar política de aborto”, Ipas, November 11, 2008. Available at <http://cladem. org/index.php?option=com_rokdownloads&view=file&Itemid=165&id=92:1-corte-suprema-de-justicia-de1-bolivia-ordena-a-los-tribunales-implementar-poltica-deaborto> [accessed: June 14, 2012]. Norma técnica: Atenção humanizada ao abortamento (2005), available at <http://bvsms. saude.gov.br/bvs/publicacoes/atencao_humanizada.pdf>; Norma Técnica: Prevenção e tratamento dos agravos resultantes da violência sexual contra mulheres e adolescentes (2011), Third edition available at <http://bvsms.saude.gov.br/bvs/publicacoes/prevencao_agravo_violencia_sexual_mulheres_3ed.pdf> [accessed: June 14, 2012]. cescr Committee, Concluding observations of the Committee on Economic, Social and Cultural Rights: Brazil, 42nd Session, June 12, 2009, [E/C.12/BRA/CO/2], paragraph 29, p. 10. Available at <http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G09/429/06/ PDF/G0942906.pdf ?OpenElement> [accessed: April 27, 2012]. 31
For example, in the case of Venezuela, where:
...during the process of the penal code reform in the country, organizations that were part of the broader women’s movement, the Women’s Institute, and government representatives, among other actors, intensified their demands to incorporate new legal indications, taking advantage of the political opportunity that had opened up in this context. In 2004, these organizations submitted to the National Assembly a bill that, although discussed, was not approved.74
The case of Argentina is not unlike that of other countries where there is absolute criminalization. Inaccessibility of legal abortion is so serious75 that several organizations are pushing for legal reform. Under this effort, the National Campaign for the Right to Legal, Safe, and Free Abortion submitted the Voluntary Termination of Pregnancy Bill. In essence, the bill proposes that all women have the right to voluntarily terminate their pregnancy within the first 12 weeks of gestation and that the procedure should be provided free of charge. Additionally, all women have the right to voluntary termination of pregnancy at any moment during gestation when the pregnancy is the result of rape, their health or life is in danger, or the fetus has serious malformations. On November 1, 2011, the Penal Commission of the House of Representatives discussed the bill, but after several less than transparent actions, it did not receive endorsement from the majority. The bill lost parliamentary status and, in 2012, it was submitted again and signed by about 60 legislators of various political positions. When this report
Ramón Michel, op. cit. (see supra, note 21), p. 35. Human Rights Watch, Decisions Denied. Women’s Access to Contraceptives and Abortion in Argentina, June 2005. Available at <www.hrw.org/reports/2005/06/14/decisionsdenied-0> [accessed: May 2, 2012]. Human Rights Watch, Illusions of Care. Lack of Accountability for Reproductive Rights in Argentina, August 2010. Available at <http:// www.hrw.org/reports/2010/08/10/illusions-care-0> [accessed: May 2, 2012]. Ramos, Silvina, Paola Bergallo, Mariana Romero and Jimena Arias Feijoo, “El acceso al aborto permitido por la ley: un tema pendiente de la política de derechos humanos en la Argentina” in Centro de Estudios Legales y Sociales, Derechos humanos en Argentina. Informe 2009, Buenos Aires, Siglo xxi Editores, 2009, pp. 451-491. 32
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was completed, however, the bill had not yet been discussed in the House of Representatives. In Peru, in 2009, various bills were submitted to increase the number of abortion indications. For example, the Special Commission to Review the Penal Code decided in favor of including indications in cases of rape and serious fetal malformations, as well as non-consensual artificial insemination or transfer of a fertilized ovule.76 The Peruvian Congress, however, has not reviewed this bill. In Uruguay, in December 2011, the Senate approved a bill that establishes that “all women of legal age have the right to voluntarily terminate their pregnancy within the first 12 weeks of gestation.” The gestational limit will be disregarded if any existing indication applies (when the woman’s health or life is at risk, if there are serious fetal malformations, or the pregnancy is the result of rape). The bill establishes that public and private health providers will provide free abortion services at the women’s request. Currently, the bill—passed by the Uruguayan Senate—is being discussed in the House of Representatives.77
“Comisión Especial Revisora del Código Penal aprobó la despenalización del aborto eugenésico y por la violación”, October 11, 2009. Available at <http:// www.promsex.org/informacion/notas-de-prensa/1151-comision-especial-revisoradel-codigo-penal-abrobo-la-despenalizacion-del-aborto-eugenesico-y-por-violacion> [accessed: May 2, 2012]. González, Ariel, “Uruguay: Senado aprueba despenalización del aborto” in Terra, December 27, 2011. Available at <http://noticias.terra.cl/mundo/latinoamerica/ uruguay-senado-aprueba-despenalizacion-del-aborto,55e6ccd02el184310VgnVCM 20000099f154d0RCRD.html?icid=Publicadores_Links_Relacionados> [accessed: April 27, 2012]. 33
II.c Decriminalization: Gestational Limits and Mixed Models In Cuba, Guyana, French Guiana, Puerto Rico, and Mexico City abortion has been regulated through mixed models and gestational limits. Guyana, in 1995, passed the Medical Abortion Law allowing abortion on demand in all cases up to the 8th week of gestation. For pregnancies between eight and 12 weeks of gestation, abortion is allowed for rape victims and when the woman’s life or health is at risk, if the mother is hiv positive, or if the woman became pregnant despite the correct use of contraceptives and there is evidence to that effect. Between the 12th and 16th week of pregnancy, abortion is allowed for the above indications if, in the opinion of two physicians, the procedure can be performed. After 16 weeks, the opinions of three physicians are required to endorse an abortion to save the life of the woman or prevent serious harm to her health, or in case of fetal malformations.78 In Mexico City (or the Federal District), in 2007, the local Penal Code was modified to decriminalize abortion in the first 12 weeks of gestation. The constitutionality of this reform was later upheld by the Mexican Supreme Court (scjn).79 In addition, reforms to the Health Law prioritized sexual and reproductive health policies and the prevention of unwanted pregnancy.80
United Nations, “Abortion Policy: Guyana”. Available at <http://www.un.org/esa/ population/publications/abortion/doc/guyana.doc> [accessed: June 14, 2012]. See Cronología de la despenalización del aborto en Mexico, on gire’s website, <http://www. gire.org.mx/index.php?option=com_content&view=article&id=407&Itemid=1152 &lang=es> [accessed: June 5, 2012]. “Decreto por el que se reforma el Código Penal para el Distrito Federal y se adiciona la Ley de Salud para el Distrito Federal” in Gaceta Oficial del Distrito Federal, Mexico, 17th edition, num. 70, April 26, 2007, pp. 2-3. Available at <http://www.consejeria. df.gob.mx/uploads/gacetas/abril07_26_70.pdf> [accessed: April 27, 2012]. 34
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In the resolution validating the reforms, relevant considerations by the scjn included acknowledging the decriminalization of abortion as an ideal legislative measure to safeguard women’s rights to reproductive autonomy, physical and mental health, and even respect for their life.81 The scjn also ruled that the decision to abort resides exclusively with the woman because pregnancy has an asymmetrical effect on her body and life plan, with respect to caring for and raising children.82 After the scjn’s decision, 16 states amended their constitutions to protect life from the moment of conception or fertilization to hinder potential decriminalization processes in local legislation.83 In this context, two unconstitutionality claims were brought before the scjn against the reforms in Baja California and San Luis Potosi. Although most (seven out of eleven) of the justices ruled for the unconstitutionality of the reforms, the actions had to be dismissed because the full Court did not achieve the qualified majority (eight votes) necessary to declare the reforms unconstitutional and therefore invalid.
Mexico, Supreme Court, Sentencia definitiva acerca de la Acción de Inconstitucionalidad 146/2007 y su acumulada 147/2007. Available at <http://ss1.webkreator.com. mx/4_2/000/000/01f/c72/ENGROSECOSSxcdO-146-07.pdf> [accessed: April 27, 2012]. Idem. These states are: Baja California, Chiapas, Colima, Durango, Guanajuato, Jalisco, Morelos, Nayarit, Oaxaca, Puebla, Queretaro, Quintana Roo, San Luis Potosi, Sonora, Tamaulipas and Yucatan. For more information see <http://www.gire.org.mx/publica2/ReformasAbortoConstitucion_Marzo14_2011.pdf> [accessed: April 27, 2012]. 35
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consequences of the criminalization of Abortion for Women’s Reproductive Health
The criminalization of abortion does not discourage women from seeking abortions. According to who estimates, each year more than 40 million abortions are performed worldwide, 20 million of which are unsafe abortions.84 As many as 98% of all unsafe abortions take place in developing countries with restrictive laws.85 In Latin America and the Caribbean alone, approximately 4.4 million abortions are induced every year.86 According to a study on abortion in Latin America and the Caribbean:
...the majority of legislations in Latin America have attempted to resolve the problem of induced abortion by prohibiting it, which has translated into serious economic, social, public health, and social justice consequences for women in those countries, without decreasing the high rate of abortion that exists in the region.87
These figures show that criminalization of abortion has led women to resort to illegal, clandestine, and unsafe abortions with serious repercussions for their lives, health, families, and social environment.88
Ipas, Asegurando el acceso de las mujeres latinoamericanas a los servicios de aborto seguro: Una estrategia clave para lograr los objetivos de la cipd y Beijing, así como los objetivos de desarrollo del milenio, United States of America, Chapel Hill, 2009, p. 3. Available at <http:// www.ipas.org/~/media/Files/Ipas%20Publications/LACICMDGS09.ashx> [accessed: May 2, 2012]. Guttmacher Institute, Facts on Induced Abortion Worldwide, January 2012, p. 1, [In Brief]. Available at <http://www.guttmacher.org/pubs/fb_IAW.pdf> [accessed: June 5, 2012]. Idem. See Chapter 1: The Legal Framework for Abortion. Guillaume, Agnes and Susana Lerner, “Abortion on Latin America and the Caribbean: A review of the literature from 1990 to 2005” in Les Numeriques du CEPED, 2007. Available at <http://www. ceped.org/cdrom/avortement_ameriquelatine_2007/en/chapitre1/index.html> [accessed: April 27, 2012]. See Center for Reproductive Law and Policy (crlp) and Estudio para la Defensa y los Derechos de la Mujer (demus), Women of the World: Laws and Policies Affecting 37
One of the most important and serious consequences of criminalizing abortion is maternal mortality and morbidity, despite the fact that unsafe abortion is one of the easiest causes of maternal mortality to eradicate.89 According to who estimates, at least 66,500 women die from unsafe abortion annually worldwide.90 Every year in Latin America and the Caribbean, about 2,000 women die due to unsafe abortion, representing 11% of all maternal deaths in the region.91 In addition, “more than a million Latin American women and girls are hospitalized every year to receive treatment for unsafe abortion-related complications; worldwide, this figure reaches 5 million.”92 Almost half of the deaths from unsafe abortion occur among girls and women under 25.93 A serious consequence of criminalization is that it promotes a “clandestine market” of pregnancy termination services that often imply dangerous procedures. This is a discriminatory practice and a social injustice because it is the most marginalized women who seek abortion under the riskiest of circumstances. In contrast, women with more financial resources can access clandestine services provided in quality health care settings. Thus, criminalization of abortion is deeply rooted in economic discrimination.94 In addition, the expenses incurred to treat potential complications related
90 91 92 93 94
Their Reproductive Lives Latin America and the Caribbean. Supplement 2000, New York, crlp, 2001. Available at <http://reproductiverights.org/en/document/women-ofthe-world-laws-and-policies-affecting-their-reproductive-lives-latin-america-and-t> [accessed: June 14, 2012]. According to Ipas “unsafe abortion is one of the causes of maternal mortality that is easiest to treat, through access to information and family planning services, high quality post-abortion care and safe and legal abortion services.” Asegurando el acceso de las mujeres latinoamericanas a los servicios de aborto seguro..., op. cit (see supra, note 84), p. 3. Idem. Idem. Idem. Idem. See point 2, chapter 1 in Guillaume and Lerner, op. cit. (see supra, note 87). 38
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to unsafe abortion lead to the further impoverishment of the woman and her family. In extremely restrictive contexts, physicians—to the total detriment of the right to confidentiality and privacy—betray their commitment to preserve patient confidentiality by reporting women who seek medical services for abortion-related complications. Some of these women are imprisoned even in cases where they should have been exempt from penal responsibility, such as cases of miscarriages or complications of a premature birth without access to medical assistance. Thus, imprisoning women exacerbates their social vulnerability.95 In 2000, a study of the number of abortion-related hospitalizations in Argentina revealed that the northwestern region has the highest number of clandestine abortions in the country with almost ten abortions per one thousand women of reproductive age.96 An analysis of the geographical distribution of hospitalizations showed that most of them occurred in the poorest areas.97 In the city of Buenos Aires, maternal mortality was 1.8 per ten thousand live births, whereas in the significantly poorer provinces the estimated mortality ratio was 16.5 per ten thousand live births.98 In Argentina, estimates show that between 486,000 and 522,000 clandestine abortions are performed every year.99 These
See point 5, chapter 1 in Guillaume and Lerner, op. cit. (see supra, note 87). Insúa, Iván and Mariana Romero, Morbilidad materna severa en la Argentina: Egresos hospitalarios por aborto de establecimientos oficiales. Resumen ejecutivo, Buenos Aires, cenep and cedes, 2006, p. 2. Available at <http://www.cedes.org.ar/Publicaciones/ RE/2007/6845.pdf> [accessed: May 21, 2012]. Ibid., p. 4. Equipo Latinoamericano de Justicia y Género (ela), Informe Regional de Derechos Humanos y Justicia de Género, Argentina, 2008, pp. 206 and 207. Developed on the basis of data from the Ministry of Public Health of Argentina. Available at <http://www. humanas.org.co/html/informeR/InformeArgentina.pdf> [accessed: June 14, 2012]. Mario, Silvia and Edith Alejandra Pantelides, “Estimaciones de la Magnitud del Aborto Inducido en la Argentina”, Population Notes 87, cepal, 2006. 39
figures—evidence of the inefficacy of the punitive measures that seek to prevent illegal abortion—are supplemented with public hospital discharge data on abortion patients. In 2005, 68,869 women received care for incomplete abortions at public hospitals.100 In 2000, 15% percent of clandestine abortion-related complications in Argentina occurred among women under 20 years of age (girls and adolescents) and 50% among young women aged 20-29. Between 1994-1996 and 1999-2001, abortion-related mortality increased among adolescents under 15 years of age. The women that died due to pregnancies that ended in abortions were younger, compared to those who died of other causes in both three-year periods.101 As previously mentioned, in Argentina the highest unsafe abortion rate is found mainly among adolescent girls, the most vulnerable of which live in poor conditions and have little education. According to physicians, pregnancy in adolescents, especially the youngest girls, can endanger maternal and fetal life and health. Furthermore, young girls are more likely to have pregnancy-related complications than adult women because “being first-time mothers, not having completed the final stage of growth (incomplete development of the skeleton and pelvis) and not receiving proper prenatal care.”102 In Peru, available estimates for 2006 show that more than 371,000 clandestine abortions were performed,103 30% of which
Argentina, Health Ministry of the Nation, Statistical System of Health, Egresos de establecimientos oficiales por diagnóstico, 2005, series 11, num. 1, Buenos Aires, November 2007, p. 24. Available at <http://www.deis.gov.ar/publicaciones/Archivos/ Serie11Nro1.pdf> [accessed: June 14, 2012]. 101 Insúa and Romero, op. cit. (see supra, note 96) p. 4. 102 Chapter 5: Abortion in Adolescence. Guillaume and Lerner, op. cit. (see supra, note 87). Available at <http://www.ceped.org/cdrom/avortement_ameriquelatine_2007/ en/chapitre5/index.html> [accessed: May 21, 2012]. 103 Ferrando, Delicia, El aborto clandestino en el Perú. Revisión, Lima, Centro de la Mujer Peruana Flora Tristán and Pathfinder International, December 2006, p. 29. Available at <http://www.inppares.org/sites/efault/files/Aborto%20clandestino%20Peru. pdf> [accessed: June 14, 2012]. 40
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require additional care for complications.104 Unsafe abortion is the third cause of maternal mortality105 and accounts for 14% of hospitalizations (one hospitalized abortion per 7 non-hospitalized abortions) each year.106 With regard to Mexico, in 2006, the cedaw Committee noted:
The Committee remains concerned about the level of maternal mortality rates, particularly those of indigenous women, which are a consequence of the insufficient coverage of, and access to, health services, including sexual and reproductive health care. The Committee notes with concern that abortion remains one of the leading causes of maternal deaths and that, in spite of the legalization of abortion in specific cases, women do not have access to safe abortion services and to a wide range of contraceptive measures, including emergency contraception. The Committee is also concerned about the insufficient efforts to prevent teenage pregnancies.107
Unsafe abortion is a problem that has an impact particularly on poor girls and young women, with low levels of schooling, living in rural areas.108 Worldwide, statistics show that 13 million adolescent girls (aged 15-19) give birth every year.109 This accounts for slightly
Ibid., p. 21 Ibid., p. 31 106 Ibid., p. 22 107 cedaw Committee, Concluding comments of the Committee on the Elimination of Discrimination against Women: Mexico, [CEDAW/C/MEX/CO/6], 36th Session, August 25, 2006, paragraph 32, p. 7. Available at <http://www.unhchr.ch/tbs/doc.nsf/898 586b1dc7b4043c1256a450044f331/c996ad6e10bea03ac125722800590433/$FILE/ N0648257.pdf> [accessed: May 2, 2012]. 108 Chapter 4: Sociodemographic Profile and Motivations of Women Who Resort to Abortion. Guillaume and Lerner, op. cit. (see supra, note 87) Available at <http:// www.ceped.org/cdrom/avortement_ameriquelatine_2007/en/chapitre4/index. html> [accessed: June 14, 2012]. 109 Save the Children, Children having children: State of the World’s Mothers, 2004, p. 10. Available at <http://www.savethechildren.org/atf/cf/%7B9def2ebe-10ae-432c9bd0-df91d2eba74a%7D/SOWM_2004_final/pdf> [accessed: June 14, 2012]. 41
more than 10% of all births in the world.110 In Latin America, deliveries among adolescents represent between 15 and 20% of all births, 70% of which are unwanted.111 Moreover, adolescents aged 15-19 are twice as likely to die of pregnancy-related complications as are women aged 20-24. For girls under 15, this risk is four times higher.112 In Mexico, 45% of young women have had at least one live birth.113 Women under 18 are most likely to have their first pregnancy (26.8%), followed by women in the 18-20 (14.5%) and the 21-23 (20.7%) age groups.114 Additionally, with the exception of males between the ages of 12-24, no contraceptive method is used at first sexual encounter.115 According to data from the Mexico City’s Ministry of Health, collected between April 2007 (when abortion was decriminalized and abortion services began to be provided) and April 30, 2012, 78,544 women (living in Mexico City or in other states) had an abortion at public health institutions in Mexico City. Of these, 471
138,949,000 births in the world by year. Population Reference Bureau (prb), Cuadro de Datos de la Población Mundial. 2009, Table “Reloj de la poblacion, 2009”, p. 2. Available at <http://www.prb.org/spanishcontent/articles/2009/2009popclock-spanish.aspx> [accessed: June 14, 2012]. 111 The Alan Guttmacher Institute, “Risk and Realities of Early Childbearing Worldwide” in Issues in Brief, New York, num. 12, 1996, pp. 5-6. 112 National Center for Health Statistic Births, The National Campaign to Prevent Teen Pregnancy, Teen Pregnancy, So What?, December 17, 2003. Updated in February 2004. 113 Mexico, Instituto Nacional de Estadística y Geografía (inegi, National Institute of Statistics and Geography), Estadísticas a propósito del día internacional de la juventud. Datos nacionales, Mexico, August 12, 2005, p. 1. Available at <http://www.inegi.gob.mx/ inegi/contenidos/espanol/prensa/Contenidos/estadisticas/2005/juventud05.pdf> [accessed: June 14, 2012]. 114 Mexico, Instituto Mexicano de la Juventud (imjuve, Mexican Institute of Youth), Encuesta Nacional de Juventud, 2005. Resultados preliminares, Mexico, May 2006, p. 21. Available at <http://sic.conaculta.gob.mx/centrodoc_documentos/292.pdf> [accessed: April 27, 2012]. 115 Ibid., p. 20. 42
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were 11-14 years old and 3,142 were 15-17.116 According to data during the same period, young women (aged 11-24) accounted for 52.4% of the women who received an abortion, with the largest group comprised of 18-25 year olds.117 Although early pregnancy is an alarming reality in the region, public policy aimed at decreasing adolescent pregnancy has not been equal to the task. In Mexico, for example, of 12 state laws related to youth, only three acknowledge sexual and reproductive rights (Mexico City, Veracruz, and Zacatecas). There are only four federal programs for adolescents: one belonging to the Ministry of Health’s Sectoral Program and three to the Ministry of Public Education’s Sectoral Program. There are agencies working for young people in the 32 states of the country, but there are youth programs only in seven (Coahuila, Hidalgo, Mexico City, Puebla, Tamaulipas, Quintana Roo, and San Luis Potosi). None of them, however, addresses legal abortion—only contraceptive methods and unwanted pregnancy. Only the program in Quintana Roo deals with abortion.118 Hence, the criminalization of abortion has failed to meet its objective of preventing women from seeking illegal abortions. As the un Special Rapporteur on the Right to Health recently noted that, not only has the criminalization of abortion been harmful to public health, but it has also proven to be the main factor in increasing unsafe abortion rates—thus endangering a higher number of women due to potential abortion-related complications.119 Given
Mexico, Government of the Federal District, Secretary of Health, “Respuesta a la solicitud de Información Pública No. 0108000092412”, infomex df (System of Information Requests of the Federal District), [database]. Available at <http://www. infomexdf.org.mx> [accessed: May 21, 2012]. 117 Idem. 118 Mexico, Government of the State of Quintana Roo, Direction of Attention to Youth, Video Análisis y Reflexión (Analysis and Reflection). Available at <http:// juventu.cojudeg.gob.mx/videoanalisis.php> [accessed: June 14, 2012]. 119 Report of Special Rapporteur Anand Grover, op. cit. (see supra, note 23), paragraphs 31, 32, and 34. 43
the above context, it is imperative that the countries deal with the problem of unwanted pregnancy from a human rights perspective to prevent clandestine and unsafe abortion in order to protect the life and health of women, girls, and adolescents. In addition, States should respect and guarantee access to safe and legal abortion by implementing public policies that comprehensively protect women’s reproductive rights.
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iV obstacles to safe and Legal Abortion Access A number of barriers to safe and legal abortion have been identified in various countries in the region: • Legal abortion is not included in any public health care program or campaign; • A lack of information regarding the scope of legal indications; • Legal abortion is not included in the health curricula of higher education programs; • A lack of a regulatory framework for legal abortion indications; • A lack of a regulatory framework for conscientious objection; • A lack of monitoring, control, and administrative/disciplinary penalties related to inaccessibility to abortion services in health facilities; • A lack of availability, guarantee, and coverage of services; • A lack of control mechanisms and penalties for health providers who refuse to perform legal abortions; • Health professionals misinform women about the legal indications of abortion and its health risks; • Health professionals assume paternalistic attitudes toward their patients; • Health professionals limit the scope of the health indication for abortion; • Health professionals impose more medical requirements than necessary to access abortion services; that is, they use obsolete and more expensive methods; • Health professionals have limited knowledge about sexual violence protocols and sexual and reproductive rights, causing delays and hindering women’s access;
• Health professionals fail to use formal referral and counterreferral systems; • Interventions by ethics committees are detrimental to women’s rights; • To receive a legal abortion when a pregnancy is the result of rape, a formal complaint must be filed and authorization must be obtained from other government agencies. The barriers to legal abortion that have been identified in several countries are, in practice, violations of women’s human rights. The rights violated include the following: • The right to life • The right to health • The right to privacy • The right to reproductive autonomy or reproductive selfdetermination • The right to decide the number and spacing of one’s children • The right to freely exercise and enjoy sexuality • The right to equality, equity, and dignity • The right to be free of discrimination • The right to freedom of thought, conscience, and religion • The right to information and education • The right to a life free from violence and abuse • The right to form a family • The right to personal integrity • The right to enjoy the benefits of scientific advancement • The right to privacy and intimacy • The right to be free from torture and other cruel, inhuman and/or degrading treatment According to the pro persona principle, human rights as established in Constitutions and in international and inter-American
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human rights treaties are to be enforced by judicial authorities in compliance with the interpretations that are most beneficial to the individual to ensure the broadest scope of legal protection at the national level. In this regard, country-level legislation should be interpreted according to international human rights standards, whose content and scope ensure respect and guarantees for women’s reproductive rights. This has been the perspective held by various un human rights protection agencies when making general interpretations and specifically analyzing a country’s compliance with human rights instruments related to the criminalization of abortion. Although reports and observations by international mechanisms are not always legally binding (for example, the observations issued by the cescr, the recommendations by the cedaw, and the interpretations by the Human Rights Committee), they put great political pressure on governments, and are considered international common law. This is relevant because in Latin America an important monistic principle prevails, namely the direct recognition and inclusion of international law into a country’s legal framework. For example, in Argentina, this principle became evident in the ruling in the case of Gómez v. The British Embassy,120 where international common law was not only recognized as a part of national law but was also granted a higher status. The iachr, in its report Access to Maternal Health Services from a Human Rights Perspective, closely links the provision of adequate and timely maternal health services to such rights as integrity, health, equality, privacy, autonomy, and dignity.121
Argentina, csjn, Samuel Gómez v. Embajada Británica, Sentences 295: 176, June 24, 1976. 121 iachr, Access to maternal health services from a human rights perspective, op. cit. (see supra, note 12), paragraphs 4 and 23. 47
The cescr, in its General Comment No. 14, recommends that States adopt measures to “improve…sexual and reproductive health services, including access to family planning, pre- and postnatal care, emergency obstetric services and access to information, as well as to resources necessary to act on that information.”122 Along the same lines, it observes that the States should eliminate the barriers that hinder women’s access to health services, education, and information, particularly in the area of sexual and reproductive health. This is because “the right to control one’s health and body, including sexual and reproductive freedom” is upheld through the right to health as the right to the highest attainable level of physical, mental and social well-being.123 According to the Human Rights Committee, the situation faced by women who are forced to bring their pregnancy to term is very often a violation of their right to be free from torture and cruel, inhuman, or degrading treatment.124 The cedaw, in its General Recommendation No. 24, on women and health, notes that “Other barriers to women’s access to appropriate health care include laws that criminalize medical procedures only needed by women and that punish women who undergo those procedures.”125 Similarly, it pointed out that “When possible, legislation criminalizing abortion could be
cescr Committee, General Comment No. 14 (2000). The right to the highest attainable standard of health (Article 12 of the International Covenant on Economic, Social and Cultural Rights), 22nd Session, August 11, 2000, [E/C.12/2000/4], paragraph 14. Available at <http://www.unhchr.ch/tbs/doc.nsf/%28symbol%29/E.C.12.2000.4.En> [accessed: May 22, 2012]. 123 Ibid., paragraph 8. 124 k.l. v. Peru, op. cit. (see supra, note 50). l.m.r. v. Argentina, op. cit. (see supra, note 48). 125 cedaw Committee, General Recommendation No. 24, Convention on the Elimination of All Forms of Discrimination Against Women. (Article 12: Women and Health), 20th Session, February 5, 1999, paragraph 14. Available at <http://www.un.org/womenwatch/ daw/cedaw/recommendations/recomm.htm> [accessed: June 14, 2012].
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amended to remove punitive provisions imposed on women who undergo abortion.”126 Additionally, in several of its final observations, cedaw has expressed its concern regarding women’s limited access to reproductive health services and information, criticizing barriers that women face regarding medical assistance, including religious influence, health privatization, and budgetary restrictions. In 2011, Anand Grover, Special Rapporteur of the Human Rights Council, prepared a report127 that stated that enforcement of penal laws and other legal restrictions that impede or hamper— specifically—access to safe and legal abortion is an unjustifiable form of State-sanctioned coercion and a violation of women’s rights to health, autonomy, human dignity, and equality. He also highlighted the fact that such laws are discriminatory, create stigma, and reinforce gender stereotypes. Moreover, he argues that criminalization of abortion is ineffective to discouraging women from seeking abortions and constitutes a human rights violation because of its impact on women’s rights and budgetary allocation.
Ibid., paragraph 31.c. Report of Special Rapporteur Anand Grover, op. cit. (see supra, note 23), paragraphs 12, 17, 21 and 24. 49
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V conclusion and Recommendations Based on a legal and jurisprudential human rights framework, we, the signatory organizations, believe that the States in the region have at their disposal sufficient elements for interpretation of international human rights law in order to incorporate into their Political Constitutions content related to women’s rights to life, health, equality, non-discrimination, and privacy, among others. Consequently, they would be able to create laws in accordance with internationally recognized human rights that have been ratified in Latin America and the Caribbean. We, the signatory organizations, are convinced that it is fundamental that the States in the region review the laws that prohibit abortion without exception, as repeatedly recommended by the iachr and agencies of the universal system of human rights treaties. According to the international human rights framework, the States are required to adopt the necessary measures, including legislative measures, to guarantee women’s rights to life, health, information, and—especially—access to legal abortion. It is also their duty to guarantee that adequate, quality, safe, and non-discriminatory care is provided to women seeking legal abortion. Similarly, we believe it is imperative that States establish effective public policies to prevent unwanted pregnancies and reduce maternal mortality. Women’s reproductive health care and the prevention of unsafe and clandestine abortion should be a priority. It is essential to provide timely and appropriate information regarding contraceptive options and safe methods to terminate unwanted pregnancies. This is so for several reasons: as previously mentioned, women seek abortions despite its illegality and despite the personal dilemma involved in the decision; many of these women die or suffer irreversible physical consequences; and, in the case of wanted pregnancies with complications, abortion is sometimes medically indicated.
Public policy should consider social and economic contexts as well as risk factors (ethnic, racial, and age-related) that lead to discrimination of women in terms of access to reproductive health services. Public policy relating to the prevention of unwanted pregnancy—hence, abortion prevention—is extremely important to women’s reproductive health. Nonetheless, the overall picture in the region is one where such public policies are scarce or unable to address the problem and do not have a gender perspective. Based on the conclusions of the regional thematic hearing before the iachr, included in this document, we, the signatory organizations, recommend: a) Adopting measures that guarantee the availability, accessibility, and quality of all contraceptive methods—hormonal, barrier, and surgical; b) Actively promoting the provision of information on sexual and reproductive health, including scientific evidence-based sexual and reproductive education and information about safe abortion methods; c) Decriminalizing abortion and repealing related legislation that restricts or hinders access to safe abortion services; d) Provisionally implementing and operationalizing, in accordance with the highest regulatory standards,
hospital protocols specifically for legal abortion to eliminate all administrative and actual barriers to medical services. [The protocols should] ...eliminate requirements that are not medically indicated and articulate mechanisms to resolve, without delays and health consequences for the patient, any potential disagreement that may arise between the clinician and the patient regarding the pertinence of the required medical procedure;128
e) Providing safe and quality health services, including abortion, in compliance with who protocols;
Argentina, csjn, f.a.l. s/ medida autosatisfactiva, op. cit. (see supra, note 43), statement 29. 52
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f) Establishing policies and programs that guarantee the availability of and accessibility to safe, reliable, confidential and quality services to treat abortion-related complications and provide post-abortion care, in compliance with who protocols, particularly in settings where abortion is illegal; g) Ensuring that the public receives accurate scientific information about abortion and its legal indications, and that health professionals are well aware of abortion legislation, especially its legal indications; h) Establishing regular training mechanisms for health professionals regarding the protection of women’s human rights in the area of reproductive health services; i) Establishing mechanisms to punish legally, administratively, and disciplinarily, as the case may be, health officials and professionals that fail to provide health care services to women who require them; j) Establishing mechanisms to inform women about their rights as public health users in community settings and to explore with them how to improve the effectiveness of the necessary health and information services; k) Ensuring confidential access to sexual and reproductive information, and annul—based on relevant international standards—the criminal regulations that cause health professionals to violate confidentiality and professional secrecy; l) Regulating conscientious objection according to women’s human rights (so that objection is always an individual right and never an institutional policy; a registry of objectors is created; and women are guaranteed referral to non-objecting physicians that can provide the service in a timely manner); m) Establishing a protocol for victims of sexual violence, including provision of emergency contraceptive methods and appropriate legal abortion care.
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