Abortion Legislation in Latin American and the Caribbean

Some preliminary remarks

Most of the legislation in Latin American and Caribbean countries frames abortion as a crime for which punishment, including imprisonment, is specified in their penal codes. Many of the laws were originally passed in the 19th or early 20th century. Since most Latin American countries were colonized by Spain and Brazil by the Portuguese, the influence of the Catholic Church since the Colonial time and still present in the region, is the background that characterizes the highly conservative nature of most abortion legislation.

Although only a few Latin American countries permit abortion on demand by women,  since the end of the 19th century and beginning of the 20th century several countries have allowed abortion at least for some of the following circumstances: saving a woman’s life or if the pregnancy results from rape, which is discussed below. The range of circumstances for permitted abortions has been widened as a result of the family planning and reproductive health rights recognized at the international conferences, and the protection of the physical or mental health of the pregnant woman has been included.

On the other hand, modifications have recently been made to the legislation in some countries, reversing the changes achieved over the years since the 1994 World Population Conference. This regression is due to the powerful influence of the Catholic Church (Borland, 2002), and right-wing groups that have been supported by the United States under the presidency of George W. Bush. One of the main actions taken against governments and civil organizations that support abortion has been the withdrawal of financial aid. Claiming the constitutional rights of the unborn child is a central strategy applied to reverse the legislative progress that has been made in Latin America, and it is the subject of considerable debate. Legislative changes have provoked confrontations focusing on the meaning of the right to life or the right to exist. Traditionally, this has been a right to protection where life exists, and the debate centers on whether life begins at conception, which confers rights on the fetus or whether these rights are conferred after birth. It is tacitly acknowledged in countries that permit abortion in some circumstances that the right to life, as many other human rights, is not an absolute value and can be restricted when rights conflict or under  circumstances such as a risk to the life or health of the woman. Other legal and political systems acknowledge that woman’s rights must prevail under the principle of human dignity, respect for physical and mental integrity, the free development of the personality and free self-determination.

Another aspect to bear in mind is that the revision of abortion laws must be considered in the context of the general principles of rights. Although these vary from one country to another, it is possible to establish a reasonable degree of judicial certainty on the following issues: the definition of induced abortion and the type of offence it constitutes; the various situations that can lead to an abortion; the sanction or punishment established by the law for the offence and according to the circumstances in which abortion takes place that are mentioned in the penal code; as well as  the causes that exclude responsibility, mainly for women  (see the different types of abortion and their definitions in Appendix 1).

Other aspect that deserves attention when analyzing the legal status of abortion is the diversity of criminal legislation on abortion within countries whose geopolitical configuration comprised free, sovereign states. This is the case of Mexico, which is made up of 32 federal states (see Table 3).

Finally, there is another element that complicates the evaluation of abortion legislation in the region. Although it is based on written law, all laws are subject to interpretation. As a result, the application of the law varies according to the context or the people who interpret it. In some cases, there are different versions of the same law in the same country. The lack of congruence, clarity and precision on the legal status of abortion is common in the revised literature on this matter, and sometimes it contains references to the status of abortion which are not based on legislation, therefore giving misleading impressions of the legal reality. An example of this is Honduras, where abortion is prohibited but where there are frequent references in the law to exceptions to this prohibition. This is because the Medical Ethical Code allows for the possibility of not punishing doctors for undertaking abortions to save a pregnant woman’s life. However, this code has no legal status in national law.

In this text we use the term abortion exclusively to mean the voluntary, deliberate interruption of pregnancy. This is the type of abortion that is often criminalized as actions that intentionally lead to the death of the product of conception before a given point in the gestation period or during the pregnancy, according to the definition of the crime in the various legislative frameworks. The corresponding sanctions are applied to women who abort or to another person who actively participates in the abortion, even if they do so at the request of the pregnant woman. In some countries women are not punished when abortions have been provoked without their consent, whether or not physical or moral pressure has been applied, and, conversely, severe punishment is given to the person that performed the abortion. This is the case in Cuba and Guyana. Spontaneous or imprudent miscarriages are not considered crimes and are therefore not penalized (Appendix 1). It is interesting to note the implicit gender discrimination in the law, as the male party involved in the pregnancy is never punished whereas sanctions are being implemented only against the pregnant woman.

The Legal Status of Abortion in 2003 in Comparison with 1994

As in other regions of the world, abortion laws vary considerably within Latin America and the Caribbean. In some countries, abortions are permitted during the first three months for any reason, but once this period has passed, abortions are allowed only for specific situations. This is the case of Cuba and Guyana, for example, where legislation has been established to protect women’s health. 

From the medical point of view, abortions performed by trained personnel during the first three months of gestation are considered safer, and the risk of side effects is non-existent or lower. In Puerto Rico there is no time limit and restrictions are applied in relation to the viability of the fetus; that is abortions are permitted until the fetus would be viable outside the mother’s womb. At the opposite extreme, other legal systems completely prohibited the performance of abortion as it is the case in Chile, El Salvador, Honduras, Dominican Republic, and Sint Maarten (Dutch Antilles) as of 2003. The same applied to Colombia until 2006. In other countries in the region, abortions are permitted in specific circumstances and when certain requirements are fulfilled, even though they are considered crimes.

As mentioned earlier, from the middle of the 1970s several legislative changes were made in the region to permit abortion to protect women’s health, in addition to their lives, which were circumstances already decriminalized in several countries. Table 2 compares the situation in the region regarding abortion legislation in 2003 (see also the map) and 1994. It is important to note that the two periods are not strictly comparable, as the information from the various sources on the legal status of abortions does not coincide in some countries. Also, information is not available for both periods for some countries. Despite these limitations, the information gives a general idea of the prevalent situation in the two periods.

In 1994, Barbados, three countries in the French Antilles, French Guyana, Cuba, and Puerto Rico permitted abortion without any restriction provided it met with the woman’s authorization. By 2003 only one more country, Guyana, had adopted this legal stance. The available information leads to the conclusion that legislation on abortion has not progressed significantly in ten years, and at the same time, a relative stagnation and backward situation is observed. In 1994 five countries prohibited abortion completely: Honduras, Chile, Colombia, the Dominican Republic and Sint Maarten (Dutch Antilles). In 1997 El Salvador was added to this list. (Centro de Derechos Reproductivos, 1998; United Nations, 2001). In May 2006, the Colombian Constitutional Court decriminalized abortion in the following circumstances: when the pregnancy puts the woman’s life at risk; serious fetal malformation; when the pregnancy is the result of rape, artificial insemination, the transference of a fertilized ovule without the woman’s consent, or as a result of incest (http://www.ipas.org/english/default.asp; official communication from the Colombian Republic Constitutional Court sent to us by Maria Mercedes Lafaurie and Cristina Villareal).

Between 1994 and 2003, the changes made to abortion legislation can be summarized thus: in 1994, 27 countries permitted abortion when the woman’s life was at risk and in 7 of these countries it was the only permitted cause for an abortion; in the 16 remaining countries abortions were also permitted for health reasons. Abortions were additionally permitted in cases of rape in 8 countries, in 4 for fetal malformation, and in one country for socioeconomic reasons (see Table 2). Nine years later, in 2003, in 27 countries (among them Cayman Island and Anguilla that were not listed in 1994 and El Salvador and Guyana that were excluded from this group), abortions were permitted for at least one reason (the risk of woman’s life) ; in 17 countries for at least two reasons (the risk to the woman’s life and for the physical and mental health of the mother); in 9 countries for pregnancies after rape; in 7 for fetal deformations, and in 2 countries for socioeconomic reasons in addition to other reasons. 

Regardless of the changes mentioned in these countries, which either restricted or liberalized their legislation, the same countries that permitted abortion to save the woman’s life in 1994 continued to do so in 2003 (with the exception of El Salvador and Colombia, due to the changes mentioned early).

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