From Rights to Practice

The fact that the legislation regulating abortion in the region does not recognize it as a women’s right and is completely prohibitive or permits abortions only in specific cases, will not prevent abortions from taking place; nor has restrictive legislation prevented abortions from being a common practice, as seen in the chapter on the incidence of abortion. The legislation has, however, had serious consequences for women’s physical and mental health and has often led to their deaths. This exacerbates the social injustice prevalent in the region, since women with economic resources have access to safe illegal abortions in adequate conditions and with high monetary costs or can visit countries where abortions are legal. Other complications include the psychological consequences of illegal abortions, as well as the difficulties of raising an unwanted child. At the same time, in the cases where abortion is allowed for specific reasons, the stigma attached to abortion is related to the lack of clear and adequate regulations to make legal abortion procedures safe. As a result, there remain serious questions about where and in what conditions abortions should be performed and the qualifications of the health personnel that carry them out. There are also questions about whether access to legal abortion should be denied on the basis of conscientious objection, in other words, religious beliefs or moral convictions that oppose abortion in all cases.

In order to illustrate the problems that have emerged when a woman tries to obtain authorization for an abortion under the law, a number of cases have been documented. These include those of three minors that became pregnant after being raped and were refused the right to abortion by the authorities: Paulina from Mexico: (Poniatowska, 2000; Grupo de Información en Reproducción Elegida, 2000; Gómez, 2000; Farmer, 2000; Taracena, 2002; Lamas, 2000), Rosita from Nicaragua (Women's Health Journal, 2003; Rayas and Catotti, 2004; Rayas et al., 2004), and a young woman from Bolivia, who despite obtaining the necessary authorization from the court was unable to find a doctor willing to perform an abortion (Micheel, 2000). The case of a Peruvian woman is also symptomatic of the problems presented by the legislation. Here the fetus was diagnosed as suffering from anencephaly 14 weeks into the pregnancy and the mother was obliged to continue with the pregnancy and have her child, who died four days after birth (Reproductive Health Matters, 2003).

The three minors mentioned above received support from women’s organizations that defend women’s rights and denounced the decision through legal and political channels, since refusal to provide abortions in circumstances permitted by law constitutes a stark violation of women’s human rights. It is particularly a violation of the right to freely control one’s own reproduction and the right to physical and mental integrity that protects women from unwanted invasion of or intrusion on their bodies and other actions that restrict their physical or emotional autonomy (Centro de Derechos Reproductivos, 2005). Public denunciation of these cases and the demand that paradigmatic cases such as those of Paulina and Rosita not be repeated have led to the emergence of a strong movement throughout most of Latin America that works to ensure access to safe abortions in most of the countries in the region  (Ipas Mexico, 2002; Faúndes, 2002). Doctors play a key role in ensuring access to safe, timely abortions, although in this group of professionals a wide range of opinions and positions, are observed, as shown in the chapter on the debates surrounding abortions.

A clear example of the role played by the medical sector in defining which abortions can be carried out within the legal framework is found in Nicaragua. Here, as can be seen by the case of the minor called Rosita, the lack of definition of what constitutes a “therapeutic abortion,” the only type of abortion permitted in the country, has left an enormous vacuum in practice. It means that the penal exemptions are practically unusable. However, the Nicaraguan Society for Gynecology and Obstetricians (SONIFOB) recently defined therapeutic abortions as those undertaken when the continuation of a pregnancy puts a woman’s life or health at risk; when the fetus displays a high risk of being born with serious physical deformities or mental retardation; or when the pregnancy is the result of rape or incest (McNaughton et al., 2003).

Ignorance of the Penal Code in Argentina, together with the medical sector’s fear of suffering sanctions for performing abortions, constitute additional obstacles for women to access legal abortions. As stated above, abortions are permitted in Argentina in the event of serious risks to the health or life of the woman and when the pregnancy is the result of the rape of a mentally deficient woman. Doctors seek legal authorization in these cases even though the Penal Code does not stipulate this as a requirement (HRW, 2005). A similar situation occurs in Jamaica, where doctors are reluctant to perform abortions that are permitted by law since the legal terms are vague and do not protect them. This reluctance on the part of Jamaican personnel does not seem to stem from a moral conservative reaction to abortion, since a poll carried out in 1973 found that 84% of all doctors and 88% of nurses and birth specialists favor more liberal legislation (United Nations, 2001).

Other problem of abortion that is permitted in the event of rape is the physical dispersion and lack of municipal and local services. This is also true of Brazil, where, despite the increase in the number of centers legally authorized to practice abortions, national coverage is a long way from being achieved. The political decentralized system, through municipalities –there are 5,561 municipalities-, sometimes comes into conflict with the implementation of federal technical norms (Rayas and Catotti, 2004; Rayas et al., 2004).

It is also relevant to underline the problem of professional secrecy and its relationship to abortion, since some legislation in the region, (such as those of El Salvador and Chile), accept medical personnel’s denunciation of patients that have undergone abortions. Professional secrecy is an obligation for health personnel and preserves the right to the patient’s privacy. The principle of doctor-patient confidentiality is violated when health personnel share information about the situation of their patients. In the case of abortion, the violation of this right is more serious, since it puts women’s physical integrity at risk, as she cannot use emergency services if there are complications arising from an abortion for fear of being denounced. Such denunciations again perpetuate social injustice, since it is mainly low-income women that require public emergency services when complications arise. This situation violates women’s right to not be discriminated against for economic reasons (Centro para los Derechos Reproductivos, 1999; McNaughton et al. 2004).

Another factor preventing access to legal abortion services is the frequent and extended ignorance of the latter by the population. A clear example of this is found in information provided by the Grupo de Información en Reproducción Elegida (GIRE) in Mexico, which shows that 74% of the low and middle-income population of the Federal District is not aware that legal abortions can be performed in specified circumstances (Reyes, 2005).

Lastly, illegal abortion is not punished in proportion to its occurrence in countries with restrictive legislation or in countries that allow it in specific circumstances. As Sanseviero (2003) points out, on the basis of empirical evidence, abortion laws “have fallen into disuse”. “Abortion is tolerated and denied in a complex social process in which the police and legal systems are obligatory actors; they are the state institutions between the (legal) norm and the social practice of abortion. The way in which they handle abortion (condemned as a crime in official discourse and tolerated in practice) seems to summarize the way society articulates the contradictions and conflicts that its occurrence creates” (pp.173 and 181).

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