Final Considerations

The descriptive analysis of abortion legislation in the region is informed by the historic situation of each country – the legislation inherited from former colonizing countries; the dominant ideology when abortion laws were passed and the changes that have taken place according to the different opinions and social forces that have influenced the issue. The Catholic Church and conservative groups are among the most important influences and have a strong presence in most Latin American countries. During the 1970s and 1980s, modifications were made to legislation regarding equality between men and women, the right to decide on the number and spacing of children and access to public family planning services. However these changes do not seem to have had repercussions on abortion legislation in the region. More recently the debates, agreements and resolutions that have preceded and followed the international conferences and meetings held during the 1990’s, regarding sexual and reproductive rights, particularly those concerning women (the right to decide about one’s own body, the right to a life without violence, and the right to access to abortion services that are permitted by law), have resulted in attempts to change legislation. To date, very few countries have achieved greater flexibility in the laws related to abortion and providing better quality services. Foremost among efforts to change this is the constant struggle of progressive civil movements (Women's Health Journal, 2003; IPAS, 2002; Rayas and Catotti, 2004; Rayas et al., 2004). Likewise, some of the follow-up committees for international agreements and treaties, such as the Human Rights Committee of the International Civil and Political Rights Pact, have made observations that clearly identify restrictive abortion laws as a cause of female mortality. They also identify the refusal to allow an abortion to a woman whose pregnancy is the result of rape as inhumane treatment (Cook and Dickens, 1999). The role of international human rights recommendations in liberalizing abortion laws is a subject for future research.

It is important to underline again that the proposals and legislative changes approved in certain countries are not only due to the recognition of woman’s reproductive rights but also to the negative impact of restrictive legislation on women’s heath and economic, social and psychological status and that of their families, as pointed out by the follow-up committees to the international agreements. These negative consequences are often determined by the quality of treatment women receive for abortion-related complications, because there is usually a latent threat of legal sanctions against the woman if she is denounced by the health authorities, and even a threat of denunciation of the health professionals attending her (Llovet and Ramos, 2001). The exclusion of many women from safe abortion services due to the lack of financial resources is also acknowledged, as is the denigrating treatment they receive from health personnel when they go to hospitals to be attended for the consequences of an incomplete abortion (Rahman, 1998). We also stress again the influence of the Catholic Church and conservative and right wing groups in legal changes that include the right of the unborn child and the protection of the fetus from the moment of conception.

In general terms, the legal status of abortion in the whole region is extremely restrictive. In 2003 eight countries (including four French overseas Territories or Departments) constituted exceptions to this general conclusion and permitted abortion without restrictions. In these countries the legislation reflects concern for and interest in respecting the right of women to obtain access to services for the voluntary interruption of pregnancy and to guarantee safe abortions that are free from persecution by police authorities. In other countries, such as Uruguay, the situation is ambiguous but with a tendency towards greater flexibility, as there are certain specific circumstances in which abortion is not penalized. Other countries such as Argentina and El Salvador have tightened up their position on abortion mainly due to the influence of the Catholic Church. It is important to emphasize that although abortion is permitted in most countries, at least to safe  women’s life, the prevailing situation is characterized by social injustice, since women’s lives and health, as well as the well-being of their families, are at risk (Freitas, 2003). Thus, in 2003, only two countries allowed abortion for socioeconomic reasons, 7 for fetal deformity, 9 for pregnancy after rape, 17 to protect the woman’s physical or mental health, while 27 countries permitted abortion to save the woman’s life.

Despite the exceptions, exemptions, lack of legal specifications and of the specific cases permitting to carry on penalized or non- penalized abortions, described in this chapter, there are still serious obstacles related to access abortion services. There is a marked lack of regulations indicating the agency responsible for providing services or controlling the procedures at health centers. Where these do exist, they are sometimes deficient or almost unknown and are prone to bureaucratic procedures that slow down access to a service where time is essential. Conscientious objection is a right that is recognized at the individual level and can also slow down prompt access to abortion. In this cases, it is essential for regulations to clearly state that conscientious objectors must refer abortion cases to colleagues who are not conscientious objectors, and clearly specify that health centers cannot refuse to provide abortion services (Cook and Dickens, 2000).

It is worth stressing the fact that several countries stipulate that the husband’s permission has to be obtained for an abortion, even in cases where the woman’s life is at risk and she is not able to give it herself. At the same time, in most countries, there is a lack of clear regulations on abortion services for adolescents, and the legal requirement for authorization from her parents or husband reflects the lack of the adolescents’ right to freely make decisions about her own reproduction and the exercise of her sexuality without risks. These requirements and legal loopholes, together with the lack of regulations for permitting abortions where they are allowed by law, the excessive discretionary power of doctors to decide on the life or death of women, and the formidable bureaucracy that has to be dealt with, undoubtedly constitute major obstacles to the exercise of women’s rights. Vulnerable, marginalized women are most affected by these circumstances, which represent a source of discrimination that deepens the social inequality prevalent in the region. As Guillaume concludes in reference to Africa, women’s reproductive rights, as defined at the international conferences held in Cairo and Beijing, which stressed that women should be free to exercise their sexuality without risk and decide when they want to procreate, are not respected in most countries in the region, since access to abortion is still very limited and, moreover, there are serious consequences for women (Guillaume, 2004). 

The contradictions prevalent between the rights acknowledged at conferences and those that have actually been adopted by several countries must also be taken into account. These include the right to health, to make decisions about the number of one’s offspring, and to gender equality, among others, within abortion legislation. Thus, for example, in terms of protecting the right to health, abortion when the woman’s health is at risk should be permitted in all countries. In order to guarantee all the rights recognized by the World Population Conference held in Bucharest in 1974, abortion without the consent of the woman should be severely penalized, yet abortion should be permitted at the woman’s request, particularly when pregnancy is the result of conception without the woman’s consent (rape, incest and artificial insemination); when continuing the pregnancy puts the life or health of the pregnant woman at risk; for eugenic and socioeconomic reasons; or in the event of contraceptive failure (Salas Villagomez, 1998). Likewise, we emphasize the various follow-up recommendations related to international norms, such as those of the Committee for the Elimination of All Forms of Discrimination against Women (CEDAW) and the Special Reporter, for the right of everyone to enjoy the best possible physical and mental health. They have submitted proposals to countries in the region asking them to consider revising their abortion regulations in order to prevent mortality due to illegal abortions, provide safe, affordable abortion services where they are legal, and eliminate sanctions against women that have had an abortion (pp. 91-92) (Hessini, 2005).

Finally, and again, it has been widely verified that the prohibition of abortion does not prevent it from being performed; it merely leads to abortions that carry risks. As it has been stated in another study, despite its illegality, abortion is performed by women from all social classes, although the consequences are more serious for poor women. Most legislators in the region have attempted to resolve the problem of abortion by prohibiting it, which leads to serious economic and social problems as well as public health and social justice problems for the women in these countries. Since banning it has not reduced the high rate of abortion in the region, it is essential that the legislative framework for abortion be revised. Existing evidence shows that the number of unsafe abortions is lower in countries where abortion laws are more liberal and therefore maternal mortality caused by abortions is also lower (Berer, 2004).

Abortion must be seen from another perspective that takes social reality and women’s needs into account. These issues must be debated with the participation of the public and private sectors so that the implications of abortion can be fully analyzed and reflected upon, and alternatives proposed for access to safe services (Center for Reproductive Law and Policy, 2000).

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