Every year, one out of four pregnant people across the globe decides to terminate their pregnancy through abortion. Many of these people live in one of the countries where it is an illegal procedure, which makes an otherwise safe treatment a risky and marginalised practice that poses many risks, including potential lifelong symptoms and death. 

Abortion has always been a controversial subject. While many people believe that it is a woman’s right to choose whether to elect to have an abortion, others have religious, political, emotional, or personal morals that lead them to believe that having an abortion is wrong. Which side of the aisle one falls to often depends on one’s upbringing, instilled ethics, religious background, or specific political alignments.

THE RECENT BRAZILIAN CASE 

In August 2020, a 10-year-old girl in the state of Espirito Santo, Brazil got pregnant as a result of sexual abuse by a family member. She sought and ultimately received an abortion, but not without hurdles. This event re-invigorated the debate about legal abortion in this country. Brazil takes an opposing position to the one stated by the 1994 International Conference on Population and Development’s (ICPD) Programme of Action, which called for countries to “[review] laws containing punitive measures against women who have undergone illegal abortions”. Brazil, instead, still regulates this matter as a crime, punishable under the Penal Code, except in three specific cases:

●      Rape-caused pregnancy;

●      Imminent danger to the pregnant woman’s life; and

●      Under circumstances of anencephalus fetus, a condition in which the foetus develops without a brain and life is not viable, per a 2012 Supreme Court decision.   

Even though this child’s case was protected under law as a rape-caused pregnancy, the girl’s family was forced to request a judicial authorisation for the procedure. A judge in São Mateus in the Espirito Santo state authorised the abortion promptly [in Portuguese], though, holding that that a child should be able to receive the medical care that would best preserve her life, whether that implies a pregnancy termination or full-term birth. 

Hundreds of rape survivors receive abortion care in Brazil without needing authorisation from the courts and without public opinion weighing in on their choice. The protocol of the Ministry of Health for rape cases is to allow termination of the pregnancy. But the public backlash against the girl in this case forced her to seek a solution far from home, even after receiving the court authorisation—already an extra step not generally required under the law in similar cases. 

Following the judge’s authorisation, an anti-abortion activist, Sarah Winter (née Giromini), publicly published the young victim’s personal story and identity. Winter, who had recently completed a prison sentence [in Portuguese] for a conviction of anti-democratic acts against the Supreme Court, published the girl’s name [in Portuguese] and the hospital where she would have the procedure, in a serious violation of article 17 of the Brazilian Child and Teenager Statute, which ensures children’s privacy. Shortly after, anti-abortion protesters, mostly linked to religious evangelical groups, blocked access to the clinic and harassed the staff. The girl had to be escorted inside, hidden in the trunk of a minivan, in order to overcome the protesters’ human blockade.

Ultimately, the young girl had to travel to Recife, 1,500 kilometres away from her hometown, to seek care at the Integrated Health Center Amauri de Medeiros (CISAM), which handles cases like hers. According to the director of CISAM, Dr. Olympio Moraes Filho, this particular clinic performs at least 40 legal abortions per year. 

The Brazilian Women, Human Rights and Family Minister, Damares Alves, tweeted and publicised her resentment for the violence the girl had suffered, but she failed to offer any support for the survivor’s receiving the abortion itself. It is important to point out that Alves is a former pastor and backed by the most conservative sections of the government and society. Relatedly, the Ministry of Human Rights was recently merged with a new one to focus on “family” in the wake of Jair Bolsonaro’s election in 2018.

INTERNATIONAL CONTEXT 

Historically, amongst Latin Americans, Brazilian feminist organisations were featured as protagonists in the defence of abortion as a public health issue—for example, at the UN conferences held in Cairo (1994) and Beijing (1995), which addressed the topic.

Brazil was also the first in the region to produce, in the 2000s, technical standards for legal abortion to support the work of health professionals. For example, Ministry of Health guidelines, "Humanised Attention to Abortion" (2005) [in Portuguese] and "Prevention and treatment of injuries resulting from sexual violence against women and adolescents" (2012) [in Portuguese], state that there is no police report requirement for a survivor to seek an abortion nor does an assault survivor need a court to authorise a pregnancy termination. The Penal Code of Brazil makes it clear that in the three, specified cases for legal abortion, it is not a criminal matter. These policies clearly imply that there is standing authorisation for a pregnant person in these circumstances to seek an abortion without judicial interference.

Activists today recognise Brazil’s shifting role in the abortion landscape. "Twenty years ago, Brazil was a reference for all of Latin America. It was where feminists first fought, made a lot of political influence. [Brazil was] our inspiration for building a legal abortion standard for the health sector, but I recognise that in recent years Brazil seems to have gone backwards," says Veronica Cruz [in Portuguese], director and one of the founders of Las Libres, a Mexican organisation working in defence of women's sexual and reproductive rights. 

In Argentina, the first ILE [Spanish acronym for “legal termination of pregnancy”] protocol, established in 2007, adopted the Brazilian Health Ministry’s 2005 model for abortion, according to Mariana Romero, a doctor and researcher at CEDES (Centre of Society and State Studies), who contributed to Argentina’s revised documents, released in 2019.  The report outlines the struggles with as well as the cultural, health, and legal aspects relevant to abortion legalisation in Argentina.

Despite Brazil’s earlier leadership in abortion politics, Brazilian leadership in Latin America seems to have stopped at this point. While conservative groups in Brazil have strengthened in recent years, other countries have advanced not only in complying with the current laws in force, but also in broadening the debate and thus opening up more legal routes for pregnancy termination. 

For example, Argentina approved in 2018 a project that provided for the legalisation of abortion until the 14th week of pregnancy.In Mexico, where the topic is dealt with in the penal codes of each state, abortion is already legal in Mexico City and Oaxaca. Likewise, Uruguay has, since 2012, allowed the practice in any situation up to the 12th week of pregnancy.

A WAY TO GO

It is clear that the abortion laws in Brazil are not fully compatible with the international treaties nor upcoming legal innovations on the Latin American continent. The conservative awakening in politics and society has made it even more difficult for delicate topics, such as abortion, to be discussed in the public realm without religious or personal ideologies playing a role in the decisions to be taken by the legislative, executive, and judicial powers.

A recent study by the Guttamacher Institute found there is barely a difference in the estimated abortion rates in countries where it the procedure is prohibited versus legal, making it clear that this is not a matter to be debated on the basis of personal beliefs. Rather, abortion is a public health issue and proper policies could save numerous lives and finally give people the freedom of choice for their own bodies and futures. 

Law Undergraduate student at the Pontifical Catholic University of São Paulo - Brazil, Human Rights and LGBTQIA+ Rights enthusiast.