ESPAÇO TEMÁTICO: EXPERIÊNCIAS INTERNACIONAIS

THEMATIC SECTION: INTERNATIONAL EXPERIENCES

Challenges and opportunities for access to

legal and safe abortion in Latin America
based on the scenarios in Brazil, Argentina,
and Uruguay

Desafios e oportunidades para o acesso ao

aborto legal e seguro na América Latina a partir
dos cenários do Brasil, da Argentina e do Uruguai

Beatriz Galli 1
Desafíos y oportunidades para el acceso al
aborto legal y seguro en Latinoamérica a partir
de los escenarios de Brasil, Argentina y Uruguay doi: 10.1590/0102-311X00168419

Introduction 1 Ipas Brasil, Rio de

Janeiro, Brasil.

The issue of decriminalization and legalization of abortion sparks controversies of a moral, religious, Correspondence
philosophical, and legal order. Regardless of individual positions, it is the State’s duty to guarantee B. Galli
beatrizgalli@hotmail.com
public policies and laws for all women, without discrimination, for them to have the capacity to decide
if, when, how often, and with whom they want to have children. States have the duty to prevent avoid-
able deaths and sequelae from unsafe abortions. Restrictive abortion laws violate the human rights of
women and adolescents, including the right to life, the right to physical and psychological integrity,
the right to sexual and reproductive health, the right to equality and nondiscrimination, the right to
be free of torture and inhumane and degrading treatment, and the right to live a life free of violence,
among other rights 1.
Due to restrictive laws and policies, every year in the world, approximately 22 million women risk
their lives through unsafe abortion procedures, and 47,000 women die from this avoidable cause 2.
Some 25% of the world population lives in countries with restrictive abortion laws 3. Women with the
greatest risk of death and sequelae from unsafe abortions are young, indigenous, and black and living
in poor urban or rural areas with less access to formal education and less information on sexual and
reproductive health and contraceptive methods, besides being more exposed to abusive relationships
and/or to being victims of sexual violence 4.
Latin America is the region of the world with the most restrictive laws and the most induced
abortions, most of which in unsafe conditions 5. In countries where access to legal abortion is lim-
ited, women turn to unsafe abortion 6, with devastating consequences for their health, lives, and
families. Only three countries in the region have laws favorable to legal termination of pregnancy at
the woman’s request (Cuba, Guyana, and Uruguay), while four countries totally criminalize abortion
(El Salvador, Honduras, Nicaragua, and the Dominican Republic) 7. An important aspect in the Latin
American scenario is the growing number of women criminally indicted for abortion. Most of these
women are reported to authorities by health professionals when they turn to healthcare services for
treatment of obstetric complications 8.
The agencies for monitoring and overseeing compliance with international human rights treaties
have developed a growing interpretation that acknowledges human rights related to sexual and repro-
ductive autonomy. On several occasions, the Committees have recommended that countries revise

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2 Galli MB

their restrictive criminal laws that disproportionally affect the right to life and the right to health for
more vulnerable groups of women 9. Nevertheless, the path to conquering reproductive rights for all
women is long and hard. We will now discuss three scenarios on processes to reform abortion laws in
Brazil, Argentina, and Uruguay that demonstrate the mismatch between Latin American countries in
relation to the recognition and guarantee of reproductive rights.

Threats to rights won in Brazil

In Brazil, the criminalization of abortion hampers knowledge on the problem’s real magnitude, since
the practice is clandestine and data are thus underreported. The most recent estimated data are from
the National Survey on Abortion in 2016, indicating that one out of five Brazilian women have under-
gone an abortion by age 40 10. Abortion is now the fourth cause of avoidable maternal death in Brazil,
next to pregnancy-induced hypertension, hemorrhage, and infecctions 11.
The main victims of clandestine abortion are women with the greatest social vulnerability, affec-
ted by limited coverage of services, low quality of care, and more exposure to institutional racism
and sexism 12.
There are currently three situations in which abortion is not punishable in Brazil: risk to the
woman’s life, rape, and fetal anencephaly 13. However, even in these three situations allowed by law,
women’s access to legal abortion is still precarious 14. Studies on the issue showed that the referral
services are in different stages of implementation. According to the data, the procedure is not per-
formed due to systematic refusal by physicians, who doubt the victim’s word. Systematic refusal by
health professionals to treat women who are victims of sexual violence in these cases runs counter to
official Ministry of Health guidelines 15.
In the Legislative area, recent years have witnessed an increase in the number of bills aiming to
deny women’s access to abortion, under the argument of the absolute right to life for embryos and
fetuses starting at conception. For example, Congressional Amendment n. 29 of 2015 proposes to alter
Article 5 of the Brazilian National Constitution to include the inviolability of the right to life starting
at conception 16.
In the opposite direction, jurisprudence in the Brazilian Supreme Court has tended to acknowled-
ge women’s reproductive rights 17. With the more favorable scenario in the Judiciary Branch vis-à-vis
acknowledgment of reproductive autonomy, on March 8, 2017, the Party for Socialism and Freedom
(PSOL) filed the Argument on Noncompliance with Fundamental Principle 442 (ADPF 442), claiming the
unconstitutionality of articles 124 and 126 of Brazil’s Criminal Code.

The green wave and social mobilization in Argentina

Unsafe abortions have been the leading cause of avoidable maternal death in Argentina since 1980 18.
Since 1921, according to article 86 of the Criminal Code, and based on a Supreme Court (STJN) rul-
ing in 2012 in the case known as “F.A.L.”, abortion is legal under the following circumstances: risk to
the pregnant person’s life; risk to the pregnant person’s physical, emotional, and social well-being; or
rape. The same ruling urges the provincial governments to provide the necessary conditions for rapid,
accessible, and safe legal terminations of pregnancy 19. Even so, there are frequent situations involving
denial to provide healthcare services, even in cases that meet the legal requirements.
Following several previous unsuccessful attempts, the bill on voluntary termination of pregnancy
was submitted again in 2018, when it passed in the Chamber of Deputies and was rejected in the Sen-
ate 20. The bill proposed a more advanced law, with legal timeframes and conditions, allowing abor-
tion in the first 14 weeks of pregnancy for women and persons with the capacity to carry a pregnancy
and, in specific cases, danger to the pregnant person’s life or health, sexual violence, or extrauterine
fetal unviability. The ruling by the Inter-American Court of Human Rights in Artavia Murillo vs.
Costa Rica was cited as emblematic for the recognition of reproductive rights and the right to access
health services for women and couples in the region 21.

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 LEGAL AND SAFE ABORTION IN LATIN AMERICA 3

The case was submitted to the Inter-American Court of Human Rights in 2011 by nine infertile
couples from Costa Rica, through the Inter-American Commission on Human Rights (IACHR), argu-
ing that by declaring in vitro fertilization unconstitutional in 2000, the government of Costa Rica had
denied infertile couples the alternative means to have the children they wanted, resulting in a viola-
tion of their rights to the protection of private and family life. The Court examined the the decision
established that legal protection of life in gestations is gradual. The approach defending embryo’s
absolute right to life violates the human rights to reproductive life, health, liberty, and autonomy, to
equality and non- discrimination, and to women’s sexual and reproductive self-determination.

Challenges for access to legal and safe abortion in Uruguay

Uruguay was a pioneer in the implementation of a risk- and harm-reduction model for the prevention
of unsafe abortion in public health services, achieving an important reduction in maternal mortality
rates from unsafe abortion 22.
On October 22, 2012, the country enacted Law n. 18,987 on Voluntary Termination of Pregnancy. The
law authorizes abortion at the woman’s request up to 12 weeks of pregnancy, up to 14 weeks in case of
rape, and with no time limit if the woman’s health is at risk or in case of malformations incompatible
with life 23.
The law includes some stages that can act as barriers for women seeking abortion. First, the
woman must communicate her intent to terminate the pregnancy to a health professional. Next,
she must seek pre-abortion counseling from a three-person interdisciplinary team (physician, social
worker, mental health professional), followed by a mandatory five-day period of reflection preceding
the procedure. The third appointment must be with the gynecologist that will perform the surgical
procedure or prescribe the medication for the medical abortion. A fourth appointment is also requi-
red for post-abortion follow-up and contraceptive counseling 24.
Despite obvious progress with the new law, there are still obstacles to full access to termina-
tion of pregnancy for women in Uruguay 25. One limitation to access to abortion has been the
number of health professionals that refuse to perform the procedure, claiming conscientious objec-
tion, considered a barrier and representing 50% of the staff at a primary care service in the capital
city, Montevideo 26.

Conclusions

The Latin American countries with the most restrictive abortion laws show high induced abortion
rates among childbearing-age women, as well as deaths and sequelae from unsafe abortions, as in
Brazil and Argentina. On the other hand, countries that have legalized women’s autonomy to decide
on their pregnancies have faced challenges, as in Uruguay. Women’s access to abortion procedures is
hindered by various factors: lack of services in sufficient number and persistent social stigma, inter-
fering in the quality of care and in the attitude by health professionals who refuse to provide the care
or who report women who come to health services while in process of abortion 27.
The experiences with legal reforms to expand access to safe abortion have increased, despite the
growth of political sectors contrary to liberalization. More studies are needed to understand the dif-
ferent scenarios and to help develop technical and scientific arguments to deepen the debate with the
moral and religious rhetoric.

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4 Galli MB

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Submitted on 19/Sep/2019
Approved on 26/Sep/2019

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