abortion law in brazil

INTRODUCTION
Females all over the world have been aborting pregnancies which are not desirable. In many areas of the world where abortion was not allowed has been legalized in order to prevent serious health issues which arise from it. However it is still a very controversial topic as it raises many questions about the existence of man. The duty of the state to protect the unborn child, the fight of the religious activists and the rebuttal of the women’s movements, results in a situation where nobody is able to achieve what they want. The church wants ‘no abortion’ policy in any case and women rights activists want females to exercise their rights and decide what they want.

In most of the Latin American and Caribbean region, abortion is still not allowed. Same is the case with Brazil. Abortion is highly restricted and is only allowed in case of two conditions, in Brazil. If the pregnancy is a result from a rape, or if it poses threat to the life of the female, then only abortion can be done after acquiring a legal permission. This study does not resolve this controversy however does present forward the actual and present situation of reproductive rights of females in Brazil. The research question below summarizes what the paper will discuss.

RESEARCH QUESTION

The growing number of diseases in Brazil is due to the lack of reproductive rights which the females are able to exercise. The maternal mortality is rising day by day, as females tend to use unsafe measures to abort pregnancies. This again, is due to the lack of support from the government and the strict abortion law which has been implemented in the country. This lack of access to healthcare options results in the degradation of reproductive rights of females. The main research question focuses on the reproductive rights of females in Brazil and lack of health care options due to a strict abortion law.

THE ABORTION LAW
According to the 1940 Penal code of Brazil amended in 1998; (Translated by Human rights watch translation) [1]

–          Abortion done with the permission of the pregnant female

–          Article 124. If the female has an abortion with the help of someone else, not due to the approved reasons: Punishment – detention of 1 (one) to 3 (three) years[2].

–          Abortion done by a third party

–          Article 125. If the abortion is done without the approval of the pregnant woman: Punishment – imprisonment of 3 (three) to 10 (ten) years.

–          Article 126. The punishment in article 125 will be applied if abortion, either with the consent of the female or by a third party, if the pregnant female is less than 14 years old. If the approval of the pregnant female was attained via a fraudulent method or violence, the punishment will be same as article 125. If the pregnant female is mentally ill or disturbed, then again same punishment will be applied[3].

–          Amendments (the following amendments were later made in the Penal code of Brazil) [4].

–          Article 127. The punishments in all of the above cases will be doubled if the pregnant female has an injury due to the abortion.

The above law clearly presents strict punishments to people who get involved in illegal abortion. Despite this almost half a million abortions take place every year.

BACKGROUND
Since the late nineteenth century, abortion was considered as a crime in Brazil. In those days no female could opt for abortion under any circumstances. Later in 1940 a few amendments were made in this law. The Penal code of 1940 was a result of these amendments. According to the law of Brazil, no female can have an abortion if she does not qualify for two conditions.

–                     If the pregnancy is a result of rape

–                     If the life of the female is at risk due to the pregnancy

In the first case the female has to agree that she was raped and that the pregnancy is due to that rape. She has to sign legal documents which have to be presented to the physician at the time of abortion operation. If the female is not able to do so then a legal representative will sign the papers. The law number 6734 of the Penal code of 1979 also prohibits the advertising of materials or substances which could cause an abortion. Moreover advertisement of substances which could prevent pregnancy, were also prohibited[5].

The punishment for illegal abortion operation in Brazil is up to four years. This can be more if the pregnant female has not allowed this abortion and was forced to have one. Moreover, if due to the abortion the female suffers major injury or dies as a result, the person performing this operation can be imprisoned for more than four years. A female under fourteen years of age cannot get an abortion; therefore in this case also the person performing the abortion will be imprisoned more than four years.[6]

In 1975 many people protested against this law. Women’s right organizations were especially against this law and were in favor of getting it annulled or at least amended. However except for one, no changes were made. One more condition was added in the table of conditions under which abortion was allowed. According to this condition in case of fetal malformation, the female can opt for an abortion. However for this she has to first get her case approved by the judiciary; secondly she also needs to have a lawyer’s petition for this abortion. After her case has been approved she needs statements by 3 physicians and one mental health doctor. This is to prove that she is telling the truth and that this fetal malformation might result in deformation of the brain.

Even though the Brazilian law for abortion is very strict, almost 1.4 million illegal abortions are performed every year. As these are illegal therefore they are usually performed secretly under unhygienic conditions. This results in complications due to which almost 300,000 females are admitted to hospitals every year[7].

Almost 12% of the maternal mortality ratio of Brazil is due to unsafe abortions. It is the third leading cause of the death in pregnant females[8]. In Brazil almost 31% of all pregnancies end up in abortion. In a country where abortion is strictly prohibited, this is a high rate and as mentioned before, this means that many abortions are taking place under unsafe conditions. Almost four females out of a hundred have an abortion due to one reason or the other[9]&[10].

CHURCH AND ABORTION

Almost 86% of the total population in Brazil is catholic[11]. The Catholic Church is very much against abortion. According to them, this is an immoral act and even if a female’s life is at risk this should not take place. Such strict beliefs of the church have an influence on the government also. Hence even if sometimes due to the pressure of women rights activists and other health organizations, the government seeks to allow abortion in more than these three cases mentioned above, the church opposes it. Therefore, these efforts end up in vain. According to Catechism;

“Human life must be respected and protected absolutely from the moment of conception. From the first moment of existence, a human being must be recognized as having the rights of a person—among which is the inviolable right of every innocent being to life…. Direct abortion, that is to say, abortion willed either as an end or a means, is gravely contrary to the moral law”[12].

The church in Brazil has categorized abortion in to two types; direct and indirect abortion. According to the Catholic Church, indirect abortion results when a female has a surgery for some other thing but the due to some side effects the fetus is lost. For example in case of problems in the fallopian tube, it is obvious that the fetus will be lost and neither the doctor nor the pregnant female has any control over this. The direct abortion is described as the one in which the female willingly wants to get rid of the child. The Church prohibits any form of direct abortion even if the life of the pregnant female is at risk. The church in Brazil makes sure that no amendment in the abortion law of Brazil allows the females to have abortion. Due to the work of women’s right activists, a few amendments have given some space to these females. Due to the constant pressure of the church the Penal code has never been altered[13].

The Church has however become quite liberal. In many countries the Catholic Church ahs allowed women to have abortions under certain circumstances. According to Daniel Dombrowski;

“It is well known that a significant number of Catholics have quite a liberal view of abortion. What is less well known is that those positions are well-grounded in Catholic teaching.[14]”

This is very true. Even though in many of the countries, the Catholic Church has become quite liberal, the root of the teachings still persist, which prohibits them to think in a new direction.

Not only the church does not allow females to have an abortion, it also prohibits any form of contraception. Even though modern Catholics are using almost all forms of contraception, yet many firm believers and especially the Church itself does not allow it. This means that women cannot protect themselves against diseases such as HIV and AIDS. Not using contraceptives means unwanted pregnancies will be more and as a result unsafe abortions will also be more.

Women in Brazil strongly support family planning but are not able to do so due to laws regarding this action. Early in January 20008, the government stepped forward and encouraged people in Brazil to take contraceptives. They did this by distributing contraceptive medicines and condoms in public places. The reason for this was the increase in health problems in Brazil. However this was condemned by the Catholic Church[15]. Hence again not much amendment could be done in the abortion law.

In 2004, the federal judge of Brazil passed a rule. According to this rule neither the third party involved in abortion nor the pregnant female has to obtain any legal documentation or permission from the court for an abortion, in case of an anencephaly. In this fetus malformation, the brain of the child is not formed resulting in a disabled child. This act of the judge attracted a lot of attention worldwide. However, the Catholic Church was not happy and the Brazilian National Bishops’ Conference was held which tried very hard so that this rule is vetoed. National Confederation of Healthcare Workers, on the other hand tried hard to make this change permanent. The reason was simply health concern and the females’ right to choose what she wants. The issue is still not resolved[16] &[17]

REPRODUCTIVE HEALTH IN BRAZIL

The table below summarizes the reproductive health of females in Brazil.

Government view of fertility level:                                                    No official position

Government intervention concerning fertility level:                           No intervention

Government policy on contraceptive use:                                           Direct support provided

Percentage of currently married women using

       modern contraception (aged 15-49; 1996):                                  77

Total fertility rate (1995-2000):                                                          2.3

Age-specific fertility rate (per 1,000 women aged 15-19, 1995-2000):       72

Government has expressed particular concern about:

       Morbidity and mortality resulting from induced abortion           Yes

       Complications of childbearing and childbirth                              Yes

Maternal mortality ratio (per 100,000 live births; 1990):

       National                                                                                        220

       South America                                                                              200

Female life expectancy at birth (1995-2000):                                     71

Table: Female reproductive health in Brazil[18]

The Penal code of Brazil regarding abortion is itself a violation to the human rights law. According to the human rights law stopping a female from getting an abortion due to whatever needs is violence and discrimination against females. Moreover a person of any gender, race ethnicity etc should be able to take decisions about his body. Thousands and thousands of abortions take place every year in Brazil. Most of these take place secretly under unsafe conditions. Many cases are reported every year in the hospitals due to the complications which arise as a result of unsafe abortion. Almost one-third of all maternal deaths are caused by these complications. Even in genuine cases, due to such legal complications, it becomes very difficult for them to have a proper abortion. The laws of abortion in Brazil are not communicated enough also. Many uneducated and poor do not know circumstances when they can have proper legal abortions resulting in more and more unsafe underground abortions[19].

In 1990, the 5th ‘Latin American and Caribbean Feminist Meeting’ was held. It is also known as the September 28th campaign. In this ‘Decriminalization of Abortion in Latin America and the Caribbean’ campaign, long term plans relating to abortions rights of females were made. These have been implemented in various countries. However, the problem of health care especially in case of females and pregnant females is still of great concern in Brazil[20].

Even though females are allowed to have abortions due to malformation of the fetus, these females are subjected to humiliation and inhumane treatment. As a result many females do not opt for a proper hospitalized abortion. This means that these women do not have a right to choose what they want to do with their own body. Instead the government and the Church make the rules. According to the Brazilian feminist network of health, almost 600 females in Brazil give birth to disabled children every year. [21]These females do not opt for abortion in order to save themselves from the humiliation they will face during the interrogation in the hospital. Many poor and uneducated do not even know that they can have abortion for this reason.

According to the WHO (World Health Organization), Brazil has the fourth most number of Disabled children in the World[22].

Abortions performed in the Public hospitals of Brazil are also not safe. Unsafe Abortions are one of the reasons why maternal mortality is so high in Brazil. In the end of the 1990s almost 250, 000 complications due to abortion were reported in various hospitals all over the country. This was a grave concern for the public health activists who later protested as the government was neither allowing use of contraceptives nor allowing abortions. The poor quality of family planning, raising health issues and more disabled children in the society are aggravating the situation more. The women movements against abortion also have been constantly protesting against the medical conditions in the country. The human rights activists are also pushing the government to take increase the awareness in this context.

According to the WHO (World Health Organization) almost 13% of total pregnancies in Brazil end in abortion. Almost half a million abortions happen every year. Females getting these unsafe abortions range from an age of 15 to 49. The deaths resulting from abortion is more than actually reported. The reason for this is the fact that the resultant diseases such as hemorrhages are reported as they are and the cause of these complications is not reported. Hence the actual number of deaths resulting from abortions is unknown. [23]

According to a study[24], countries which give freedom to females and let them decide whether to have an abortion or not have relatively lower number of abortions. Comparing these results with the countries which prohibit abortion such as in our case Brazil, the rate of abortions is very high.

In 2004, there were almost 1600 legal abortions in Brazil. These cost almost R$ 232,280. All of these were the result of rape or health risk issues in females and hence were legal. Due to illegal abortions almost 243, 998 cases were reported in the hospitals. These unsafe abortions resultant diseases had a cost of almost R$ 35,040,978. [25]

In 2005, the first national conference on policies for women was held in Brazil. It was established to revise the abortions laws in Brazil. At this time many female activists protested to stop the criminalization of abortion. However, like before the Catholic Church came forward and nothing much happened.

Women in Brazil should be given reproductive rights. Trends are changing all over the world. Countries which did not permit abortions and use of contraceptives before now have allowed their women to do so. They can foresee the complications which can arise due to such decisions. Like in the case of Brazil, the maternal mortality rate is high, there are more cases of complications due to abortions in Brazil than in any other country and most importantly due to the prohibition of contraceptives, there are more abortions in Brazil than in any other country which actually allows abortions.

CONCLUSION

Since 2003, the government of Brazil has taken more interest in the health care of females than it had taken before. It has now committed to protecting the health and rights of females. Their right to choose whether they want to have abortions; and their right to choose if they want to use contraceptives will now be granted. New national norms in context to abortions are being formulated.According to the miniter of health in brazil;

 “The Technical Norms [for abortion care] are an acknowledgement by the Government of Brazil of the fact that abortion in unsafe conditions is an important cause of maternal mortality; that women undergoing an abortion, spontaneous or induced, who seek health services should be supported, cared for and treated with dignity; and delayed care for unsafe abortion and its complications can threaten the life, physical health and mental health of women.[26]”

Training and specialization will be preferred in case of the surgeons performing the abortion operations.

The table below highlights the changes which have taken place with the help of the government.

Statistics
Data
Population
169.8 million
Total fertility rate for women aged 15–49
2.5 children per woman
Maternal mortality ratio
260 per 100,000 live births
Percentage of maternal deaths in South America
19%
Percentage of women currently married or in union, aged 15–49, using modern contraception
70%

Table: Key Accomplishments [27]

The above table clearly reflects the changes attitude of the government towards the abortion issue. The abortion issue should be considered as a health issue which is affecting the health of millions of women across Brazil and other Latin and Caribbean countries. It should be noted that the majority of females having abortions in Brazil are young, poor and already have children. Having more children will not only affect their health, family life but will also affect the nations as a whole. More children with disabilities mean more pressure on the society. This clash between religion and state is affecting the country and even though government is taking measures, they are slow. The abortion law of Brazil is itself against the human rights law. As according to this law every person has the right to make his or her own decision and will decide about his body, therefore abortions is the right of a female.

More awareness should be created in this context by various seminars and women activist groups visit remote areas. Poor and uneducated women in Brazil do not know their rights of abortion. This will not only save millions of lives but also the money which is spend on these females who have un safe abortions and as a result come to the hospitals for treatments. Moreover, the government should completely ban these midwives etc who take care of the abortion procedure by traditional means which sometimes results in the death of the females.

REFERENCES

Catholic Almanac that cites the Vatican’s Statistical Yearbook of the Church for 2000.

Catholics for a Free Choice. A World View: Catholic Attitudes on Sexual Behavior & Reproductive Health. Washington, DC: Catholics for a Free Choice, 2004.

Daniel Dombrowski, Catholic philosopher, “A Brief, Liberal, Catholic Defense of Abortion,” Conscience, Spring 2002

Guedes AC: Abortion in Brazil: legislation, reality and options. Reprod Health Matters 2000, 8:66-76

Hall KG: Brazilian court slams door on easing of abortion rules. The Miami Herald 2004:1A

Henshaw SK, Singh S, Haas T: The incidence of abortion worldwide. Int Fam Plann Persp 1999, 25:S30-8.

Human Rights Watch (2006). Women’s rights; Abortion in Brazil. 1940 Penal Code, Articles 124-128, as amended in 1998 (Human Rights Watch translation)

International Women’s health Coalition (September 2004). Abortion rights are Human Rights; the September 28th campaign

IPAS (2005) IPAS in Brazil; background and key accomplishments

Ipas Brazil: Ipas Brazil report. [http://www.ipas.org/english/ where_ipas_works/latin_america_and_caribbean/brazil/index.pdf].

Lobo I: Brazil: Catholic Church goes to court against abortion. Brazzil Magazine 2004.

Ministry of Health, Technical Norms for Humanized Attention for Abortion, Ministry of Health, Brasília – DF, 2005, p. 7.

Pan American Health Organization: Evaluación del plan de acción regional para la reducción de la mortalidad materna. 1996.

The Brazilian Feminist Network of Health, Sexual Rights and Reproductive Rights –RFS (2007). Pg 1-11

United Nations (November 2001) Abortion Policies: A Global Review – Afghanistan to France (Population Studies). United Nations Publications. ISBN-10: 9211513510

Women’s e news (January 2008). Brazil and Vatican Spar over reproductive rights. By Tereza Parazza

[1] Human Rights Watch (2006). Women’s rights; Abortion in Brazil. 1940 Penal Code, Articles 124-128, as amended in 1998 (Human Rights Watch translation)
[2] Human Rights Watch (2006). Women’s rights; Abortion in Brazil. 1940 Penal Code, Articles 124-128, as amended in 1998 (Human Rights Watch translation)
[3] Human Rights Watch (2006). Women’s rights; Abortion in Brazil. 1940 Penal Code, Articles 124-128, as amended in 1998 (Human Rights Watch translation)
[4] Human Rights Watch (2006). Women’s rights; Abortion in Brazil. 1940 Penal Code, Articles 124-128, as amended in 1998 (Human Rights Watch translation)
[5] Human Rights Watch (2006). Women’s rights; Abortion in Brazil. 1940 Penal Code, Articles 124-128, as amended in 1998 (Human Rights Watch translation)
[6] United Nations (November 2001) Abortion Policies: A Global Review – Afghanistan to France (Population Studies). United Nations Publications. ISBN-10: 9211513510
[7] Guedes AC: Abortion in Brazil: legislation, reality and options. Reprod Health Matters 2000, 8:66-76
[8] Pan American Health Organization: Evaluación del plan de acción regional para la reducción de la mortalidad materna. 1996.
[9] Henshaw SK, Singh S, Haas T: The incidence of abortion worldwide. Int Fam Plann Persp 1999, 25:S30-8.
[10] Ipas Brazil: Ipas Brazil report. [http://www.ipas.org/english/ where_ipas_works/latin_america_and_caribbean/brazil/index.pdf].
[11] 2003 Catholic Almanac that cites the Vatican’s Statistical Yearbook of the Church for 2000.
[12] Catholics for a Free Choice. A World View: Catholic Attitudes on Sexual Behavior & Reproductive Health. Washington, DC: Catholics for a Free Choice, 2004.
[13] Catholics for a Free Choice. A World View: Catholic Attitudes on Sexual Behavior & Reproductive Health. Washington, DC: Catholics for a Free Choice, 2004.
[14] Daniel Dombrowski, Catholic philosopher, “A Brief, Liberal, Catholic Defense of Abortion,” Conscience, Spring 2002.
[15] Women’s e news (January 2008). Brazil and Vatican Spar over reproductive rights. By Tereza Parazza
[16] Hall KG: Brazilian court slams door on easing of abortion rules. The Miami Herald 2004:1A
[17] Lobo I: Brazil: Catholic Church goes to court against abortion. Brazzil Magazine 2004.
[18] United Nations (November 2001) Abortion Policies: A Global Review – Afghanistan to France (Population Studies). United Nations Publications. ISBN-10: 9211513510
[19] International Women’s health Coalition (September 2004). Abortion rights are Human Rights; the September 28th campaign .
[20] International Women’s health Coalition (September 2004). Abortion rights are Human Rights; the September 28th campaign .
[21] The Brazilian Feminist Network of Health, Sexual Rights and Reproductive Rights –RFS (2007). Pg 1-11
[22] The Brazilian Feminist Network of Health, Sexual Rights and Reproductive Rights –RFS (2007). Pg 1-11
[23] Ministry of Health, Technical Norms for Humanized Attention for Abortion, Ministry of Health, Brasília – DF, 2005, p. 7.
[24] Ministry of Health, Technical Norms for Humanized Attention for Abortion, Ministry of Health, Brasília – DF, 2005, p. 7.
[25] The Brazilian Feminist Network of Health, Sexual Rights and Reproductive Rights –RFS (2007). Pg 1-11
[26] IPAS (2005) IPAS in Brazil; background and key accomplishments
[27] IPAS (2005) IPAS in Brazil; background and key accomplishments

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