Specific Characteristics of Abortion Legislation in Some Countries in the Region

This section contains brief descriptions of the legislation on abortion in the countries in the region, reflecting some of the characteristics of the context in which the legislation has been developed, changes in legislation over time, the penalties established by law, and some of the additional requirements necessary for abortion to be authorized. Although some laws have become more flexible, in most countries there are still many legal restrictions surrounding the ways abortion is permitted to take place. These restrictions are aimed at guaranteeing medical safety for women and take into account the duration of the pregnancy, the woman’s consent, and the health center or facilities where the abortion is to be carried out. Nevertheless, these regulations often represent increased limitations and obstacles to women exercising a free, autonomous choice Rayas and Catotti, 2004; Rayas et al., 2004. Moreover, of great importance is the time lapse between the legal authorization for an abortion and actual access to it. One example of this is the frequent denial of authorization to rape victims.

It is worth emphasizing that there are inconsistencies in the available information between countries, and that it does not cover the same aspects for each country. Only data found in the selected reviewed bibliography is included here.

Countries That Do Not Restrict Abortion

Only eight countries in the region permit abortion whatever the grounds (including 3 countries in the French Antilles, French Guyana, Cuba, Guyana, Barbados and Puerto Rico) and only some of these countries allow it at the women’s request; that is, without  women presenting any health, social, economic or other reasons. Not surprisingly, the reasons and circumstances whereby women have the right to request and obtain an abortion have markedly different origins, in each country.

French Antilles and French Guyana

French legislation operates in the French Antilles, comprising Guadeloupe and its five small islands, Martinique and Saint Martin, which are French overseas departments, and French Guyana, a French overseas territory. In these countries women can seek an abortion upon their request during the first twelve weeks of gestation, after which period abortions are only allowed for medical reasons.

In Saint Martin, only a doctor at a public or private health establishment can perform abortions. Any pregnancy interruption outside these constrains is illegally consider. In 1988 the law was amended to enable women to legally self-administer medicines that provoke abortion. Other recent reforms include the abolition of parental consent for abortions for underage girls, and the regulations regarding migrants and the residential qualification of foreign women were also changed (Pheterson and Azize-Vargas, 2005.).

Barbados

Although there is very little data on abortion legislation in the Caribbean countries, Barbados is known to have been the first English-speaking Caribbean country to legalize abortion for all the circumstances accepted in the region (to protect the life and physical and mental health of the woman, in pregnancies resulting from rape, for deformations of the fetus, and for economic and social reasons), but not at the woman’s request (United Nations, 2001). This last legal modification was made in 1983, as the result of a revision process that was begun in 1974 by the Health Ministries of several Caribbean countries (Encuentro Latinoamericano de Periodistas sobre Derechos Sexuales y Reproductivos, 1998).

The authorization of one doctor is required by law if gestation is 12 weeks or less. If the pregnancy has reached 12 weeks but is less than 20 weeks, the law requires the authorization of two doctors. If the pregnancy is more than 20 weeks on, an abortion requires the consent of three doctors. Before an abortion can be performed, the woman has to receive counseling and provide written consent when the cause of pregnancy is rape or incest. Only doctors are authorized to perform abortions and if the pregnancy is more than two weeks on, the abortion must be carried out at a government authorized hospital (United Nations, 2001).

Cuba

Until 1959, abortion was penalized in Cuba and was only allowed if the woman’s life was in danger, if she had been raped, or if she suffered from hereditary illnesses (Mayo Abad, 2002). After the fall of the Batista government and the installment of the new government led by Fidel Castro, abortion was decriminalized through legislation passed in 1961 and could be carried out at the woman’s request. By 1965, the National Health System offered abortion services. The new Penal Code passed in 1979 stipulated that abortion could only be punished if it had been performed without the woman’s consent or in unsafe conditions (Ehrenfeld et al., 1992; Encuentro Latinoamericano de Periodistas sobre Derechos Sexuales y Reproductivos, 1998).

The approval of the health authorities in Cuba is required if gestation exceeds 12 weeks, and the abortion must be performed by a doctor at an official health center. The woman has to consent to the abortion and if she is unmarried and less than 16 years of age the authorities require parental permission (United Nations, 2001). It is interesting to note that the registration of abortions is precise and accurate in Cuba due to their being carried out at specific health centers, showing notable advantages in comparison to the available information in those countries of the region where abortions are carried out in a clandestine contexts (Ehrenfeld et al., 1992).

Guyana

Guyana was a British colony that inherited the British law prohibiting abortion in 1957. The situation remained unchanged until 1995, despite various attempts to modify the law. It was not until the first free elections were held that abortion was debated on several occasions, culminating in May 1995 with the elimination of restrictions. In modifying the abortion legislation, it was important that members of the National Assembly had a free vote on the issue. Moreover, it is significant that Catholicism is not the main religion in this country and does not have a strong influence over the population. The introduction to the Guyana Law states, among other things, that it is a law to increase the dignity of life and protect motherhood (Encuentro Latinoamericano de Periodistas sobre Derechos Sexuales y Reproductivos, 1998).

Puerto Rico

Puerto Rico is a Free Associated State of the United States of North America and its abortion legislation is taken from the American Constitution. In 1973 the Supreme Court of the U.S.A. ruled in favor of abortion in the case of Roe vs. Wade, since which time abortion has been legal in that country. The Supreme Court decision prohibits the states from preventing abortions that have been requested by the woman for any reason until the point when the fetus is viable and potentially capable of life outside the mother’s uterus, even assisted by artificial methods (Colón Warren, 1998). After the fetus has attained viability outside the uterus, which is a moment that varies in accordance with advances in medical science and the resources available in each country, states may prohibit abortion except when the mother’s life or health is at risk. Risk is defined in physical, emotional, psychological and familial terms as well as in relation to the woman’s age. The states can also impose restrictions on abortions, such as a waiting period or parental consent, but these restrictions cannot seriously impede the woman’s right to abortion. In Puerto Rico, local government has prohibited voluntary abortion in public hospitals, meaning that it is only carried out at private clinics that offer this service (Colón Warren, 1998), which does not in any way make them illegal.

The right to abortion in Puerto Rico has led to strong tensions and conflicts and continuous attacks on the clinics and providers that offer abortion services, which has affected access to the service since both the women seeking abortions and clinic staff feel intimidated and threatened. Some of these tensions and conflicts have led to the drawing up of proposals for legal amendments to limit access to abortion (Profamilia, 1993). Similar situations are found in many other countries in the region where there is strong influence of various groups such as the catholic Church and conservative groups, and certain health professionals opposed to abortions (Azize Vargas, 1997). The conservative stamp of the George W. Bush administration has undoubtedly influenced Puerto Rico and other States in the North American union, and pressures to limit women’s access to abortions services have intensified.

Countries where Abortion is Totally Prohibited

Chile, El Salvador, Honduras, the Dominican Republic and Sint Maarten (Dutch Antilles) are five countries in the region where current legislation completely restricts abortion. In Chile and El Salvador legislation was tightened up relatively recently; in the case of Chile this happened in 1980 and in El Salvador in 1997, which is surprising as the new restrictions were approved after the Cairo conference. Colombia also belongs to this group in 2003; however, abortions are permitted under some circumstances under new Colombian legislation passed in 2006.

Chile

The Chilean Penal Code of 1930 did not criminalize abortion when the woman’s life is at risk but pressure from the Catholic Church during the Pinochet dictatorship crystallized protection of the unborn child in modifications to the Constitution passed in 1980 (Casas Becerra, 1997; Alexander, 1995). These modifications completely restricted abortions under any circumstances and label them a crime against family order and public morality (Gómez, 2003). Chile’s Penal Code punishes women who abort with 3 to 5 year sentences and abortion providers with sentences ranging from 541 days to 3 years. The legislation also includes sanctions against persons that help women obtain an abortion, or who help service providers who perform it.  

Chilean culture is characterized by patriarchal values and double standard, according to which penalties are less severe when abortions are practiced to protect a woman’s honor, and therefore that of her family. The Supreme Court has established that female prostitutes have the right to invoke an exemption clause in the abortion legislation owing to dishonor, as the protection of honor is regarded as a personal matter. The Santiago Court of Appeal has established that the exemption applies when the woman alleges that she had an abortion for fear of rejection in her social and economic circles (Centro de Derechos Reproductivos, 2001).

Casas Becerra (1997) shows that women that have been denounced by personnel at public hospitals are sentenced to about 41 days in prison while persons that perform abortions serve 133-day sentences. The author states that forcing poor women into unsafe abortions is a violation of constitutional and human rights. These rights are also violated when poor women are exposed to being denounced by public hospitals that treat the complications that derive from unsafe abortions, whilst middle class and rich women have access to safe abortions without fear of being denounced to the authorities (Casas Becerra, 1997). The Chilean case clearly shows that restricted abortion generates no only public health problems that are commonly referred to in the literature, but mainly reinforces the marked social inequality that is particularly prevalent in developing countries.

Contradictory attempts to modify the law were made in the 1990s, on the one hand to permit abortions in specific situations and on the other to increase penalties for the crime. At the beginning of the 1990s, the Chilean Parliament analyzed proposals to liberalize abortion but they were not approved (Profamilia, 1993). Since 1998 attempts have been made to increase sentences for the crime of abortion and to make them equal to those served for crimes of infanticide or homicide but these have proved unsuccessful. The Catholic Church has pressured for constitutional changes to recognize the right to defend life from the moment of conception.

El Salvador

Before the 1997 amendment to the Penal Code that eliminated all grounds for abortion, it was possible to have an abortion if the woman’s life was at risk, when the pregnancy was the result of rape, and when there was a risk of fetal malformation. Since 1997, abortions have been prohibited in all circumstances. In addition, the Constitution now states that human life starts with conception and is protected from then on. (Centro Legal para Derechos Reproductivos y Politicas Púbicas, 2000; Center for Reproductive Law and Policy, 2001; Reproductive Freedom News, 2001; Gómez, 2000).

A study about the violation of woman’s human rights as a consequence of punitive legislation on abortion in El Salvador argues that the principles of national and international human rights have not been respected by the state, as it has failed to incorporate into the law necessary and appropriate measures to guarantee its citizens, particularly young, single, poor women, the exercise of general reproductive rights, specifically that to abortion; this argument applies to the majority of countries that do not permit abortion at the request of pregnant women. The criminalization of abortion in El Salvador is the result of legal and constitutional reforms passed between 1998 and 1999 that weaken the protection of the women’s rights guaranteed in the Constitution and the international agreements that have been ratified by El Salvador. These rights include a person’s right to life, liberty and security; the right to physical integrity; the right to health; and the right to privacy. The right to privacy has also been violated by legislation that obliges health professionals to denounce women that seek treatment for complications after an unsafe abortion (McNaughton et al., 2004). In addition, the study emphasizes that the El Salvador government has failed to comply with commitments emanating from the International Conference on Population and Development in 1994 and the Fourth World Conference on Women (REPEM (la red va), 1999; Center for Reproductive Law and Policy, 2001).

Honduras

Abortion is completely prohibited in Honduras and carries a sentence of a minimum of three years’ and a maximum of five years’ imprisonment for women that undergo one (Centro de Derechos de Mujeres, sd.). Measures were proposed whereby abortion could be permitted for health reasons, to protect the life of the pregnant woman, or in the event of rape or fetal abnormality, but they were rejected as running contrary to the constitutional right to life (Childbirth by Choice Trust, 2005).

Dominican Republic

Article 317 of the Dominican Republic’s Penal Code of 1948 characterizes all abortion as a crime, without any exceptions (Human Rights Watch, 2005). “Since approximately two years ago, a process of reform of the Penal Code has been developing in the National Congress. The women’s movement and other civil society organizations presented a proposal that includes, among other things, the decriminalization of the interruption of pregnancies in special circumstances: when the woman’s life is at risk; when pregnancy is the result of sexual aggression; and when conception takes place without the woman’s consent. These circumstances are considered to lessen the infraction under the first reform proposal drawn up by the legislators, and abortions carried out under them would receive the relatively light maximum penalty of six months’ imprisonment. However, the second version excluded any exemptions and reinforced the imposition of maximum sentences” (Galván, 2005). In addition, the recognition of the rights of the unborn child has recently been approved. This was due to the influence of the Catholic Church in government decisions on sexuality and reproduction (Ferdinand, 2000).

Sint Maarten (Dutch Antilles)

Estimations of and documentation on abortion are not usually available in countries that are territories of other countries (in this case Holland) or have a small population. Thanks to the work of researchers Pheterson and Azize Vargas (2005) we have access to information on abortion in this small country, which, despite being part of one of the countries with some of the most liberal abortion legislation in the world, has opted to maintain previous legislation that prohibits abortion completely even if the woman’s life is at stake. This is because, in the 1990s, the Dutch Antilles acquired autonomy from Holland in all social and health matters. Saint Maarten chose not to modify its abortion legislation (Pheterson and Azize Vargas, 2005).

Nevertheless, an interview with health personnel revealed that abortion is prohibited but tolerated, as doctors are aware of the Dutch legislation. They commented that the health authorities in Curaçao –the headquarters of the Central Health Ministry for the Dutch Antilles- visit the centers where abortions are performed in order to guarantee their quality (Pheterson and Azize Vargas, 2005).

Countries Where Abortion is Allowed under Specific Circumstances

Anguilla (Territory of Great Britain)

Abortion in Anguilla is regulated by the Criminal Law against persons (Offences Against the Person Act). The law provides for the following exceptions: when the abortion is performed in good faith in a hospital by medical staff with the recommendation of two other doctors; when the woman’s life is at risk or there is a risk to her physical health or of grave and prolonged damage to her mental health. Another exemption is in case of serious physical or mental deformities where the infant would be seriously disabled if birth took place. The requirement for the abortion to take place in a hospital under the care of medical staff and two approving physicians does not apply when the woman’s physical or mental health or life is at risk (Pheterson and Azize Vargas, 2005). However, authorities from the island said in an interview that social and religious circumstances lead to confusion on the interpretation of the law and restrict its implementation.

Antigua and Barbuda

Antigua and Barbuda is a former British colony that conserves the prohibitive English legislation from 1861 that categorizes abortion under the Offences Against the Personal Act. However, as part of the Commonwealth countries, its internal regulation of abortion takes into account more recent laws that have been approved in other Commonwealth countries, such as the British 1967 Abortion Act, the Indian Medical Termination of Pregnancy Act of 1971, and the Singapore Abortion Act of 1974. “These laws became models to reflect upon as they were more liberal for other jurisdictions in the Commonwealth, in the same way as the United States abortion law of 1973 passed after the Roe vs. Wade case”(p.13) (Pheterson, and Azize Vargas, 2005). Abortion is permitted in Antigua and Barbuda to save the life of the mother (Law for the Protection of Infants –1929), which was extended by jurisprudence in 1938 to include “the mother’s quality of life,” which is described as physical and mental health (p.14) (Pheterson and Azize Vargas, 2005). The authorization of a committee of doctors is required to perform an abortion, which must be carried out during the first 16 weeks of pregnancy. Only in exceptional circumstances can abortions be performed after 16 weeks of pregnancy (United Nations, 2001).

Argentina

The Argentine federal government adheres to apostolic Roman Catholicism: the Constitution respects life from the moment of conception, and in 1999 a Presidential Decree designated 25 March as the Day of the Unborn Child.

Abortion legislation from 1921 only permitted abortions in the case of the rape of a mentally retarded woman or if the pregnant woman’s life and health were in extreme danger. Persons who performed abortions were sentenced to between 10 and 15 years’ imprisonment, while the women received 4-year sentences. Information on contraception and sterilization was prohibited by a decree issued by Isabel Peron in 1974 and was applicable to public health services but not to private sector activities. This meant that low-income women were denied access to contraceptives. It took until 1987 to overturn the Decree (Rogers, 1994; Elsa López, personal communication).

The current situation in Argentina is that abortion is permitted only in the same situations stipulated in the 1921 legislation: pregnancies that result from the rape of a mentally retarded woman or if the woman’s life and health are in extreme danger. Such abortions have to be carried out by licensed doctors and with the consent of the pregnant woman (United Nations, 2001). The Argentine Constitution was modified in March 1995 to recognize the right of protection for human life from conception. To some lawyers, this nullifies the supposed exceptions under which the crime of abortion did not carry sanctions. However, it is possible that the constitutional changes do not cancel out the exceptions due to other legal considerations about the unborn child, such as the fetus is not subject to constitutional rights before birth. The Constitution also recognizes the fundamental right of a person to their own life and to control their procreation capacity and the law cannot force one person to be sacrificed for another.

Despite the two exceptions to the criminality of abortion, there are no regulations guaranteeing access to abortion in these circumstances. In fact, some government functionaries from the provinces said in interview with Human Rights Watch (2005) on the subject of abortion that they were not aware of the exceptions. Juliana Weisburd, coordinator of the Health Ministry’s National Program for Sexual Health and Procreation in the province of Santa Fe mentioned the fears of medical personnel in relation to abortion. These are owing to the need to obtain legal authorization to perform an abortion, although this is not a requirement of the Penal Code and has come about through custom and practice. One abortion provider told Human Rights Watch that a judge is always consulted before performing an abortion to ensure peace of mind, even though the law does not require it. The Human Rights Watch report concludes that an arbitrary level of requirements, an additional barrier, is added to enable women to have access to a safe, legal abortion (HRW, 2005).

There are currently several proposals under discussion for abortion legislation in Argentina. These include the authorization of abortions that are freely sought by women who are less than 12 weeks pregnant, and the extension of circumstances under which abortions are permitted to include such cases as a fetus that cannot survive or a woman’s physical or mental health being at risk.

Bahamas

The current Penal Code for the Bahamas permits abortion for reasons of physical health and when the woman’s life is in danger. No sanctions are applied when abortions are caused by acts carried out in good faith, without negligence, for medical purposes, as in the case of surgical treatments that could carry the risk of causing miscarriage, premature birth, or stillbirth. The Penal Code does not mention abortion in cases of pregnancies resulting from rape. The sentence for abortion is ten years’ imprisonment. (Annual Review of Population Law, 1974-2004; United Nations, 2001). Those abortions that are permitted must be authorized by a licensed doctor and carried out at a hospital.

Belize

In Belize, the Penal Code, passed on 18 December 1980, punishes the crime of abortion with fourteen years’ imprisonment for both the woman that aborts and the person that performs the abortion. Sanctions are not applied when the life or health of the pregnant women is at risk and the abortion is carried out by a registered doctor with the authorization of two colleagues. Nor do sanctions apply when there is considerable risk of physical or mental damage to the unborn child that would lead to serious disadvantages during his life. The Code regards as felonies women performing abortions on themselves or another person attempting to destroy the life of a child that could be born or premeditatedly causing the death of a child before it can exist independently of its mother. Such cases are punished with life imprisonment. Any person that offers or procures any type of poison or tool in the knowledge that it will be used to cause an abortion receives a lesser sentence. The legislation allows for conscientious objection against the carrying out of abortions and states that no one is obliged to participate in a treatment that goes against their conscience. However, if the treatment is to save a life or to prevent serious damage to physical or mental health, this objection is not valid. (Annual Review of Population Law, 1974-2004). Legal abortions must be carried out by a registered doctor and must be authorized by two other registered doctors (United Nations, 2001).

Bolivia

The Bolivian Penal Code was drawn up in 1834 and updated in 1972. Abortions are only permitted under the Code if the pregnancy is the result of rape, incest or sexual intercourse that is not followed by marriage, or if the life or health of the woman is at risk. The law allows some exemptions to the proposed penalties when the abortion has been carried out to save the honor of a single woman (Rayas and Catotti, 2004; Rayas et al., 2004).

The law additionally requires that abortion be carried out by a licensed doctor and authorized by a government official. In the event of rape, judicial authorization is required together with a formal accusation against the guilty party. Judicial authorization is a requirement that makes access to safe abortions extremely difficult for women (Micheel, 2000). In practice, despite requests by women that are eligible under the conditions established by the legislation, no legal terminations of pregnancy have been carried out (Rayas and Catotti, 2004; Rayas et al., 2004).

Brazil

As a result of the Bucharest Declaration in 1974, Brazil, like Mexico, acknowledged the right of couples to control their own fertility, as well as the responsibility of the State to provide the means to exercise this right. However, due to the influence of several groups in power, the Brazilian state did not directly participate in family planning programs or the improvement of related public services until the 1990s (Giffin, 1994). For example, although the Integral Assistance Program for Woman’s Health (Paism), set up by the Health Ministry in 1984, included family planning services, it experienced serious problems in its implementation (Costa, 1993). Delays in the provision of such services led to an increase in unwanted pregnancies (Profamilia, 1993).

Abortions are regulated by the Penal Code, issued in 1940. The Code only permits abortion when pregnancy is the result of rape or when the woman’s life is at risk (considering these “necessary abortions”). However, as in the case of other countries in the region, the issue is contradictory: “although the legislation penalizes abortion, it is widely practiced and difficult to punish legally; on the other hand, few authorized abortions are practiced for lack of access to services, for fear of incrimination or due to ignorance of the procedures to carry it out” (p.26) (Baltar da Rocha and Andalaft Neto, 2003).

The judicial branch has authorized some more frequent abortions since the 1990s due to fetal abnormalities that are incompatible with life. It is interesting to note, as pointed out by Baltar da Rocha and Andalaft (2003), that these situations were previously handled by private sector medical services and have only been treated in the public sector during this decade. Although the Penal Code permits the interruption of pregnancy in the cases stipulated by law, the first public legal abortion services were not established until 1989. It was not until 1999 that the recommended procedures were established for the legal interruption of pregnancy, thanks to national debates begun in the second half of the 1980s that were intensified after the Cairo Conference (Rayas and Catotti, 2004; Rayas et al., 2004). When the woman’s life is at risk, a medical team decides whether the interruption of the pregnancy is justified. If rape is the cause of abortion, permissible up to the time of 20 weeks’ gestation, the Health Ministry technical norm that was revised and extended in 2005 stipulates, among other things, that the woman must give written consent. As far as services for legal abortions are concerned, a recent study undertaken by the organization Catholics for a Free Choice, Brazil, identified 37 hospitals, linked to states, municipalities, or public university hospitals that offer abortion services in 21 states and the Federal District (Talib and Citeli, 2005). 

Discussion on abortion arose in the National Congress in the late 1940s, intensifying in the 1980s and even more so in the 1990s (Baltar da Rocha, 1996; and 2005). One of the recent landmarks in the discussion was the submission of a new bill on the decriminalization of abortion presented by the Executive Branch in September 2005. The proposal stated that the Unified System of Public Health (SUS) and the private health sector should cover the costs of the abortions considered in the proposal (Adital, 2005).

The preparation of the bill was the result of the First National Conference on Policies for Women and the National Plan, which was also derived from the conference. A tripartite commission, including representatives from the executive and legislative branches and civil society, was set up to revise the punitive legislation on the voluntary interruption of pregnancy. The Commission formulated a draft proposal that was supported by feminist groups. Despite serious contradictions within the government, the Minister of the Special Secretariat for Policies for Women submitted the proposal to Congress (Rocha, 2005). Discussion on the proposal began in 2005 but the enormous tension it generated led to a change of strategy regarding its content, together with a paralysis of discussion. Everything would suggest that it is unlikely the proposal will be voted on in 2006, which is an electoral year in Brazil.

Illegal abortions are punished with sentences of between one and four years’ imprisonment for the person that performs it. The sentence is increased if the woman is under 14 years old, if the woman’s consent was not obtained, if the woman’s health is damaged or if she dies. The sanction for women who abort is between one and three years’ imprisonment (Profamilia, 1993; Rede Feminista de Saúde, 2005; Frigerio et al., 2001; Ardaillon, 1994).

Colombia

Until 1991, abortion in Colombia was regulated by the Concordat, an international treaty with the Vatican State, despite the fact that some of the articles in the Concordat contradicted Colombia’s own Constitution. Given this background, it is not surprising that abortion was considered a crime or that Colombia should have been among the countries in the world where abortion is completely prohibited (Women's Health Journal, 1999; Profamilia, 1993).

The total prohibition on abortion remained in effect until 2006. The Penal Code passed on 24 July 2001 includes exemptions related to the length of sentences in cases such when fetal deformities are proven; when pregnancy is the result of rape; or when pregnancy is the result of insemination against the woman’s will. These changes were achieved despite the powerful influence of the Church and the opposition of the bishops, who threatened excommunication, and ultra-conservative groups such as Provida (Prolife) that condemned the new legislation as immoral and anti-constitutional. Where the law allows leniency in sentencing, a written certificate by two doctors stating that the abortion is justified for serious medical reasons is required (United Nations, 2001).

A study undertaken by the Center for Reproductive Rights on the decisions made by Colombian courts shows that, even under the legislative framework of 2001, judges could decide not to impose sanctions for abortion in certain cases. These include rape and other circumstances under which the judges decide that an abortion was carried out “under extraordinary conditions with unusual grounds.” It is important to mention that the judge’s decision in these cases does not constitute the decriminalization of abortion, merely that constitutional parameters allow the judge to abstain from imposing a sentence. One difference from previous cases is that the courts did not cite the religious authorities. The most interesting thing about these sentences, according to the Center for Reproductive Rights, is that the magistrates gave the woman’s rights priority over her “obligation” to finish her pregnancy under specific circumstances (Cabal et al. 2001).

In April 2005, Colombian lawyer Monica Roa brought legal action against the Constitutional Court, by questioning the constitutionality of the total prohibition of abortion. This lawsuit elicited strong support from public opinion and the predictable opposition of the Colombian Catholic Church. Roa’s action demanded that abortions be permitted in three cases: when the woman’s life or health is at risk; when the pregnancy is the result of rape; and when fetal deformities are present that are incompatible with life outside the uterus. The lawyer based her case on recognized international human rights and some of the recommendations on this issue made by certain international human rights committees of the United Nations. The recommendations were also made because in Colombia, abortion is the third leading cause of maternal deaths (Electronic Bulletin Mujeres Hoy, at http://www.mujereshoy.com/secciones/portada.shtml, consulted in November 2005). However, at the beginning of December 2005 the Colombian Constitutional Court decided that Roa’s case lacked some of the minimum requirements for the process of revision of current laws to take place (BBC Mundo.com, Thursday 8 December 2005).

Finally, in May 2006 the Court decriminalized abortion (Article 122 of the Penal Code), stating that “.abortion does not constitute a crime when the woman agrees to the interruption of the pregnancy for one of the following (three) reasons: a) when continuation of the pregnancy constitutes a threat to the life or health of the woman, as certified by a doctor; b) when the fetus is seriously malformed and its life is not viable, as certified by a doctor; c) when the pregnancy is the result of conduct, correctly denounced, that constitutes carnal access or an abusive sexual act or one without consent, or artificial insemination or the transference of a ovule that has been fertilized without the consent of the woman, or incest” (official communication from the Constitutional Court of the Republic of Colombia sent by M. M. Lafaurie and C. Villarreal; http://eltiempo.terra.com.co/judi/2006-05-13/ARTICULO-WEB-NOTA_INTERIOR-2889951.html).

Costa Rica

Abortion is considered a crime in Costa Rica, consistent with the Constitution, which stipulates that the state religion is Catholic, Apostolic and Roman and that the Catholic hierarchy can participate in all issues related to sexuality and reproduction (Article 75). Despite this, Article 121 of the Penal Code permits therapeutic abortions when the woman’s life and health are at risk. Attempts have been made to modify the law since 1993 to authorize abortions in the events of rape and incest, but they have not been successful to date (Profamilia, 1993; Carrera, 2005).

Legal abortions require the approval of two doctors, including the doctor attending the patient at that moment and the written consent of the woman or her husband or legal representative. The abortion must be performed by a doctor, or if none is available, by an authorized abortionist (United Nations, 2001).

Dominica

This small island, located south of Puerto Rico, only permits abortion to save the woman’s life. Abortions must be carried out at a hospital and authorized and performed by a licensed physician (United Nations, 2001). Legislation is based on the British system and, as in the case of other countries in the region colonized by the British such as Antigua and Barbuda, and Saint Kitts and Nevis, on the Criminal Law against Persons dating from 1873 (sections 56-57). This law considers abortion a crime in all cases, yet maintains the exception of risk to the women’s life on the principle of need.

It is interesting that the 1938 case Rex vs. Bourne, which established jurisprudence in Commonwealth countries regarding the meaning of legal abortion for reasons of health, is not recognized in Dominica (United Nations, 2001).

Ecuador

In general terms, abortion is illegal in Ecuador, although it is widely practiced (Profamilia, 1993). Even though abortion is considered a crime against natural existence, no sanctions are applied when it is performed to save the woman’s life or in the event of health problems. These problems are not specified, so it is not known whether they refer to physical or mental ones. Abortion is also allowed in cases of rape when the women is mentally retarded or suffers from dementia, in which case the consent of a legal representative is required (United Nations, 2002). In all these cases, abortions must be carried out by a doctor and have the women’s consent or that of her husband or guardian if she is incapacitated (Ecuadorian Penal Code). Ecuadorian legislation has not changed much since 1837 when the first legal provision on abortion was established. During the second half of the 20th century, the rules on exceptions to sentencing were defined, and they are consistent with the recognized constitutional principle of the protection of life from the point of conception onwards (Constitution of the Republic of Ecuador-reformed in 1998). This has been ratified in the current Code in relation to childhood and adolescence, which stipulates, “Life will be protected from conception onwards”. Miriam Garcés, a feminist deputy for the Democratic Left, submitted a bill to reform the law that would extend the permitted causes for non-punishable abortion to include all rape regardless of the mental or physical condition of the woman or her age. At the same time, groups called Provida have intervened in the country since 2004 and opposed such reforms. They also oppose access to emergency contraception as they consider it abortive (CEPAMX personal communication, 2005).

Grenada

Abortion legislation in Grenada is exactly the same as in the Bahamas and therefore establishes the same ten-year sentence. Abortion is allowed for the same reasons as well, in other words, to save the life or health of the pregnant woman (Annual Review of Population Law, 1974-2004; United Nations, 2001)

Guatemala

Abortion is only permitted in Guatemala to save the woman’s life. An abortion requires the consent of the woman and at least one other doctor, in addition to that of the doctor performing it. Abortions are only allowed “with the exclusive objective of preventing danger to the mother’s life and after all scientific and technical methods have failed” (Penal Code, chapter III, cited in Ipas (undated.)). Imprudential abortions are not sanctioned (Ipas, undated).

Haiti

Haiti is a former French colony that only allows abortion to save the woman’s life; under all other circumstances, the woman and the abortionist are sanctioned with imprisonment. Moreover, doctors, surgeons and other health personnel, as well as any pharmacists that may have collaborated in the abortion, are condemned to forced labor (Annual Review of Population Law, 1974-2004; United Nations, 2001). However, abortions are commonly performed without legal persecution, particularly in cases of women who are registered HIV-positive, to avoid the risk of transmitting the virus during childbirth (Colbert, 1999).

Cayman Islands

The Cayman Islands are part of the United Kingdom. An amendment to the Penal Code (Article No.12, 1975) permits abortion when it is proven that it was performed in good faith with the sole aim of saving the woman’s life. The abortion has to be carried out by a professional medical practitioner or authorized, registered health personnel. A certificate signed by one obstetrician and one gynecologist is required, and the document must stipulate that the abortion was necessary to save the woman’s life (Cayman Islands, 1991).

Jamaica

Abortion is permitted in Jamaica to save the woman’s life and to preserve her physical and mental health. Like other countries colonized by Great Britain, abortion law in Jamaica is shaped by the nineteenth-century Criminal Law against Persons. Legal precedents established in 1938 also govern abortions and establish the exceptions mentioned above. No regulations exist in Jamaica with respect to the role of health personnel, which accounts for their reluctance to perform abortions, since they are not legally protected and fear reprisals (United Nations, 2001). In November 2005, Health Minister John Junor declared at a forum on risk-free motherhood that he had formed a ministerial commission to review Jamaican abortion legislation. The objective of the commission is to make legislation more concrete, and to end clandestine abortions and therefore reduce maternal mortality. The commission has been set up to ensure Jamaica complies with commitments related to the Millennium Development Goals.  (http://www.jamaicaobserver.com/news/html/20051115T210000
0500_92584_OBS_ABORTION_LEGISLATION_UNDER_REVIEW.asp)

Mexico

The Mexican Republic’s political organization comprises 32 free, sovereign states that make their own diverse laws. It is important to mention that most of the Penal Codes in these states were issued during the 1930s. Although some modifications have been made to the rules on the crime of abortion, there is a wide range of legal situations in which abortion is not punished. In most of the states it was permitted to save women’s life and in case of rape. As of the 1970s, abortion was permitted for genetic or congenital malformations in the states of Chihuahua, Puebla, Yucatan and Chiapas. It was even permitted for grave economic reasons in the states of Yucatan, Chihuahua and Chiapas. In all states the sanction imposed on women for aborting for reasons of honor has been reduced, in other words, in cases where the pregnancy was the result of an illegitimate relationship, where the pregnancy was hidden and the woman had a “good reputation.” (Salas Villagómez, 1998).

Several states have modified their legislation on abortion since 1974, when Mexico recognized, in Article 4 of its Constitution, some human rights. These included gender equality; the right to free, responsible, informed decisions on the number and spacing of children; and the right to health protection. On the basis of this, the main legal modifications carried out in certain states to protect women’s health were as follows: a) abortions are permitted when the continuation of the pregnancy jeopardizes the woman’s health; b) there are restrictions on the time period when an abortion can be legally performed on a woman whose pregnancy results from rape; and, c) abortion is permitted when the pregnancy is the result of artificial insemination that was not consented to by the woman. This last cause is to protect the right of the woman to freely choose to become pregnant and is included in the legislation of the states of Colima, Chihuahua and Guerrero. Regarding the period to perform an abortion, seven states establish that abortions must be carried out during the first three months of pregnancy, particularly in the case of pregnancies resulting from rape. This is because medical criteria stipulate that risks to the woman’s health are prevented if abortions are performed during this period.

As a result of the growing influence on politicians of more conservative sectors and the Church, some states have tightened up their position on abortion and excluded causes that were previously not legally sanctioned. One example is the state of Chihuahua, which reversed the exemption that was established in 1938 whereby sanctions were not imposed on women who aborted for serious economic reasons and already had 3 children (Salas Villagómez, 1998).

Table 3 shows that the abortion legislation outlook in 2005 was characterized by the fact that none of the 32 states completely prohibit abortion and none permit abortions without any restrictions. All states allow abortions when pregnancy is the result of rape; 29 (93.7%) states do not punish imprudent or negligent forced abortion and also permit abortion when the practicing doctor believes that the mother’s life is at risk; in 10 states (32%)  abortion is authorized when pregnant woman’s health is at high risk;  13 states (40%) permit abortions when the fetus has genetic or congenital deformities; 11 states (34%) permit abortions when the pregnancy is by artificial insemination without the woman’s consent; and only in the state of Yucatan is abortion permitted for serious economic reasons when the woman has already had at least 3 children (GIRE, 2005; and 2006; Lerner and Salas, 1996; Aguilar Orozco, 1994).

The struggle to restrict abortion in some states has mainly taken place since the World Conference on Population and Development held in Cairo in 1994 and the Women’s Conference held in Beijing in 1995. As in the case of other countries in the region, the struggle is led by right-wing parties that are strongly supported by the Catholic Church. Among the strategies to counteract the discussion on women’s human rights is the proposal of modifications to the Constitution to protect life from the moment of conception. In Mexico, attempts to restrict access to abortion have been promoted by several conservative groups and the National Action Party (PAN) currently in power. The coordinated activities of civil organizations concerned with women’s rights tend to cope with this pressure.

Three of Mexico’s states have modified their legislation on abortion to favor women’s rights. These are the Federal District and the states of Morelos and Southern Baja California. In addition, the Federal District and Morelos have established norms for dealing with women whose pregnancies are the result of rape. In the Federal District, the legislation establishes rules for conscientious objectors to abortion, whereby the objector’s rights are only guaranteed if they refer the pregnant woman to colleagues who are not conscientious objectors.

The legislative changes in Mexico City (Federal District) in 2003 were significant because the law was modified to decriminalize abortion, which was previously exonerated only through exceptions in the local Penal Code (GIRE, 2004). It is important to point out that this modification represents real progress for woman’s rights. They do not merely extend the grounds for unpunishable abortion while still considering the abortion a crime, but they actually eliminate this criminal characterization under certain circumstances, such as when pregnancy is the result of rape; when the abortion is imprudential or involuntary. (i.e., accident); as a result of genetic deformities, when the woman’s health is seriously at risk; and when pregnancy is the result of artificial insemination without the woman’s consent.

Nicaragua

The 1891 Penal Code establishes that therapeutic abortion is permitted in Nicaragua, while Article 165 stipulates that its appropriateness “must be scientifically determined by the intervention of at least three experts and the consent of the husband or the woman’s closest relative” (McNaughton et al., 2004). It is striking that the legislation does not mention any grounds in particular, such as rape, congenital deformities or saving the woman’s life. In the opinion of the Ipas Central America organization, the Health Ministry should establish, in its regulations or by protocol, the precise definition of “therapeutic abortion.” A Nicaraguan legal norm from the late 1980s cites several grounds for abortion including those already mentioned as well as mental health and economic reasons. However, the norms were not publicized and were later withdrawn by the Health Ministry on the grounds that they were not valid (Ipas Central America, personal communication, 2005).

Discussion on proposed reforms to the Penal Code began in 2000 and has undergone several stages. The reforms preserve therapeutic abortion, which is already permitted by law, but the proposal does not specify what this means. The new Penal Code, which was largely approved in 2001, stipulates that abortion is a crime against life and counts physical or psychological damage to the unborn child as crimes. Abortions are penalized with 5 years’ imprisonment for the woman and the person that performs the abortion if it is not the pregnant woman herself. Moreover, health personnel are punished by being completely struck off the register of their profession and by the closure of their clinics or consultancy practices for 8 years.

Several contrasting initiatives have taken place since 2000. Since 2000, a Presidential Decree has designated March 25 as the National Day of the Unborn Child. In several Latin American countries, anti-abortion groups promoted the designation of this day. At the other extreme, in 2002 discussions aimed at making the legislation more flexible included elements to modify the law and reduce penalties for illegal abortions (McNaughton et al.,  2002; 2004).

Panama

The Panamanian Penal Code, issued in 1982, establishes three grounds for not punishing abortions: ethical causes in the case of pregnancies resulting from rape or incest; therapeutic abortions to save the pregnant woman’s life; and eugenic causes, in the case of fetal damage (Cumbrera Díaz, 1997). In abortions carried out due to rape, the crime must be reported to the appropriate authorities and the abortion performed during the first two months of pregnancy. A medical commission designated by the Health Ministry must decide whether an abortion is permitted in a given case for either of the other two reasons stipulated in the legislation (Ipas, Central America, personal communication, 2005).

If abortions are carried out for reasons other than those above and with the woman’s consent, she will be sentenced to between 3 and 6 years’ imprisonment. If the pregnant woman has not consented to the abortion, the abortionist is punished with between 4 and 8 years’ imprisonment. If such an abortion leads to the death of the woman, the prison term is between 5 and 10 years (Hernández, 1995).

The 1997 Penal Code bill and the discussion that took place in 2005 (Muñoz Pope, 2005) place abortion among crimes committed against life and personal integrity. In relation to abortions, it suggests that more severe punishments than those allowed under current law be applied to all personnel that perform abortions and that exemptions be applied only when the woman’s life or that of the fetus is at risk, as well as in cases of rape or artificial insemination without the woman’s consent (Cumbrera Díaz, 1997).

Paraguay

Legislation in Paraguay only permits abortion when the pregnant woman’s life is in danger, an exception which dates from 1937, meaning that the legal situation regarding abortion has not changed in Paraguay since the beginning of the 20th century.

In 1992, the Constitution protected several reproductive rights (Reproductive Health Matters, 2000). Articles 46, 47 and 48 of the Constitution recognize the equality of persons and the participation of the state in creating the conditions for gender equality to be exercised. Article 61 recognizes the right of people to determine the number and spacing of their children. At the same time, Article 4 of the Constitution protects the right to life from the moment of conception (Paraguay, 1993).

Peru

Legislation in Peru permits abortion to save the pregnant woman’s life and to avoid serious, permanent damage to the woman. Only doctors are authorized to perform abortions, with the consent of the pregnant woman and only after consultation with two colleagues (Reproductive Health Matters, 2003; Ipas, 2002).

The Peruvian Penal Code of 1991 and the previous Penal Code of 1924 stipulate that abortion is a crime in the chapters on crimes against life, the body and health (Rosas Ballinas, 1998). They establish a maximum penalty of two years’ imprisonment for the woman and the person performing the abortion. However, the same Code includes exemptions to these sentences where less severe sanctions can be applied in cases when the pregnancy is the result of rape or when the fetus displays congenital defects (Ugaz, 2000).

Since 1984, the General Health Law and the National Population Law have recognized the right of individuals and couples to freely and responsibly decide on the number and spacing of their children. Abortions performed to terminate an unwanted pregnancy are explicitly excluded from these rights. Since 1997, the General Health Law has obliged health personnel to report all evidence of illegal abortions (Rosas Ballinas, 1998). In 2002, the Minister of State ordered all conceptions (of any pregnancy) to be recorded at health centers (Reproductive Health Matters, 2003).

St. Kitts and Nevis

Abortion legislation in this country, comprising two islands and with a population of 46,000 inhabitants, is identical to that of Antigua and Barbuda (p. 13-14) (Pheterson, 2005). Abortions are allowed when the woman’s life or physical or mental health are at risk.

St. Lucia

The Penal Code in St. Lucia stipulates that abortions are not punishable when they are caused either intentionally or accidentally during medical or surgical treatment to preserve the pregnant woman’s health or to save her life.

Abortions for other reasons are punished with sentences of fourteen years’ imprisonment for the woman who performs it herself or allows it to be performed by another party, and the same sentence applies to the abortionist (Annual Review of Population Law, 1974-2004; United Nations, 2002).

St. Vincent and The Grenadines

The Penal Code for St. Vincent and the Grenadines sanctions anyone that attempts to perform or performs an abortion with fourteen years’ imprisonment. The woman is sentenced to seven years imprisonment.

The same legal rules stipulate that the woman should not consider herself guilty if the abortion is performed at a hospital or another health establishment that has been designated for this purpose by the Senior Medical Officer of the country and has been performed by a doctor with the agreement of another two doctors in the event that the woman’s life or physical or mental health would have been at risk if the pregnancy had continued. If the continuation of the pregnancy poses a risk to the woman’s already existing children, the same exception is applied. In other words, the legislation permits abortion for both socioeconomic and health reasons and when the existing children might be affected due to the consequences of risky and unsafe abortions to their mother. Sanctions are also not applied when the pregnancy is the result of rape or incest.

The Code also waives the requirement for the attending physician to consult with two other doctors when the abortion is performed at an approved hospital in cases where the woman’s life is at risk or to prevent permanent damage to the mother’s physical or mental health (Annual Review of Population Law, 1974-2004; United Nations, 2002).

Surinam

Although abortion is illegal in Surinam, the general law on the principles of need allows abortion to save the pregnant woman’s life. Persons that perform an abortion to a woman are penalized with between six months’ and four years’ imprisonment and woman who perform it on herself is given up to three years’ imprisonment (United Nations, 2002). 

Trinidad and Tobago

Although abortion is illegal in Trinidad and Tobago, the general law on the principles of need states that it may be performed to save the life of a pregnant woman and to preserve her physical and mental health. Persons that obtain an abortion for a woman are sentenced to four years’ imprisonment, and the woman that has an abortion receives the same sentence (United Nations, 2002).

Uruguay

The current Penal Code in Uruguay, dating from 1938, stipulates that abortion is prohibited. However, the Code specifies four cases that are exempt from punishment: when the abortion is to save the woman’s honor; when pregnancy is the result of rape; when the woman’s life is in danger or there are indications of serious risks to her health; and due to financial anxiety (Art. 328 Law No.9.763 of 28&1/1938). The judge may decide whether the doctor that performed the abortion and the pregnant woman are exempt from punishment. The law stipulates that reductions in sanctions only apply when a doctor has performed the abortion during the first three months of pregnancy. This time scale does not apply when the woman’s life is at risk or if her health is in danger (Annual Review of Population Law, 1974-2004; United Nations, 2002; Comisión Nacional de Seguimiento de Beijing, sf). However, as in the case of most other countries in the region, this punitive law is hardly being implemented and there are dozens of lawsuits on this matter (Susana Rostagnol, personal communication).

In December 2002 the Uruguayan Chamber of Deputies approved the Reproductive Health Defense Law, which authorizes abortion at the request of the woman until 12 weeks’ gestation. However, in May 2004, the Senate voted against the proposal, despite opinion polls showing wide support for the measure (63%) (Rayas and Catotti, 2004; Rayas et al., 2004; Xavier, 2005).

Venezuela

Abortion is only permitted in Venezuela to save the life of the pregnant woman, in which case, written consent must be given by the woman, or her husband or legal representative  (if she is single or under-age). Abortion must be carried out in adequate facilities and use all possible scientific resources (United Nations, 2002).

Women that perform abortions on themselves, or allow an abortion to be performed on them by someone else are punished with prison sentences of between six months and two years. The abortionist is sanctioned with between twelve and thirty months’ imprisonment. If the husband is the guilty one for the abortion, the sanction is increased by six percent.

As with several countries in the region, sanctions are reduced if the abortionist performs the abortion to save his/her own honor or that of his wife, mother, daughter, sister or adopted daughter (Annual Review of Population Law, 1974-2004; United Nations, 2002).

In December 2004, some Venezuelan civil organizations submitted a legal reform proposal. They were motivated by the current revision of the Penal Code that seeks to waive sanctions for abortions performed in the event of pregnancies resulting from rape or incest, (http://www.adital.com.br/site/noticia.asp?lang=ES&cod=17813), in the case of fetal damage or when pregnancy poses a risk to a woman’s health (http://www.rebelion.org/noticia.php?id=17915).

^ Top of page