Latin America: is there a right to access to abortion?

NEW RELSEASES – “47,000 pregnant women die every year due to complications from unsafe abortions.” 1 The issue of access to abortion will be analysed in this article from a human rights perspective and with a particular focus on the current situation in Latin American countries. The characteristics of laws on abortion in different countries will be considered and as well as the consequences of restrictive regulations on women and young girls’ lives.

English

Access to abortion is a human right

The one of abortion is a highly delicate and hugely debated issue with moral, political, religious, legal and social implications. When is it possible to determine whether abortion is acceptable or not? Depending on culture, religion, country of birth etc. the answer can change drastically. Each country has, in fact, different rules and guidelines that set the legal boundaries of access to abortion and establish the mechanisms to protect both the pregnant woman and the unborn. The majority of countries in the world provide for certain instances when abortion is legal. However, some countries have enacted complete bans on abortion.2

From a human rights perspective, it’s been established that access to abortion is a fundamental right for women.3“Human rights bodies have emphasized that access to abortion is a matter of human rights”4 and women should be always considered as people and not as “containers for the foetus.”5 Thus, their rights should be defended just as much as the rights of the unborn since women are the masters of their own body. Therefore, as the OHCHR explained, treaty body jurisprudence has clearly stated that “denying women access to abortion where there is a threat to the woman’s life or health, or where the pregnancy is the result of rape or incest violates the rights to health, privacy and, in certain cases, to be free from cruel, inhumane and degrading treatment.”6

 


A matter of gender equality

Arguably, the right to access to abortion as a sexual and reproductive rights is an issue of gender equality. Women suffer discrimination based on their gender and on the expectations of society tied to traditional beliefs. As Amnesty International reported, it’s incredibly difficult for women to access health services, information and education since women and people from marginalized groups (such as gay men, lesbian women and trans people) “risk a huge amount when they try to exercise choice.” 7

“A pregnancy to a woman is perhaps one of the most determinative aspects of her life. It disrupts her body. It disrupts her education. It disrupts her employment. And it often disrupts her entire family life.” Sarah Weddington in Roe v. Wade8

The Guardian’s journalist Jessica Valenti argues that “The ability to control if and when we parent determines how we participate in society.”9 Thus, the element of social participation is also particularly important in the debate. Women should be free to choose when to become mothers depending on their aspirations, desires and on their decision to have children. “The hard part about arguing that abortion is necessary for women’s equality […], is that there are still too many people who don’t see women’s pursuit of happiness as an unalienable right.”10 This powerful argument is based on the idea that we commonly see women and men as having different roles in society and the position of women in the social ladder is undeniably subordinate to the one of their male counterparts. Instead, the recognition of access to abortion as a human right empowers and enforces women’s own will and dignity. This is why the UN Special Rapporteur on the right to health has argued that laws that criminalise abortion “infringe women’s dignity and autonomy by severely restricting decision-making by women in respect of their sexual and reproductive health.”11

 


Latin American countries and the right to abort

In spite of the guidelines provided by international institutions, many countries in Latin America are still enacting draconian laws aimed at regulating abortion. For instance, in El Salvador life is defined as beginning at conception and therefore it’s impossible for women to legally abort since that is considered to be a crime with no exceptions. Thus, many women seek for clandestine and often dangerous methods to abort. According to Human Rights Watch12, 17 women were convicted of murder in El Salvador, after being accused of having had an abortion. As the Economist13 reported, in most countries where abortion is illegal, only doctors who carry it out are punished. However, El Salvador is “one of a handful of countries that prosecute women for having them”14 with destructive consequences on women’s mental and physical health.

These backwards and traditional laws can cause tragic outcomes. An example of this reality is offered by the case of a Paraguayan 10-year-old girl who was sexually assaulted by her stepfather and, after getting pregnant, was denied an abortion by the authorities.15 After the young girl gave birth at a Red Cross hospital, the case casted “a spotlight on child rape, pregnancy and abortion laws in Paraguay."16 In the Catholic country, abortion is only allowed when the mother’s life in in danger and the 10-year-old appeared to be healthy. However, as Erika Guevara, Director for the Americas Amnesty International, said: the girl “is lucky to be alive. Only time will tell the true extent of the physical and psychological consequences of her tragic ordeal.”17 According to the World Health Organization (WHO), child pregnancies are extremely dangerous for the health of pregnant girls as they can lead to complications and death since girls’ bodies are “not fully developed to carry a pregnancy.”18 Thus, the UN Working Group on the issue of discrimination against women in law and in practice recognised that “The Paraguayan authorities’ decision results in grave violations of the rights to life, to health, and to physical and mental integrity of the girl as well as her right to education, jeopardising her economic and social opportunities.”19

A copious number of cases from Latin America have been filed to the Human Rights Committee concerning exceptions to abortion bans to protect the life or health of the woman, which needs to be understood broadly to include mental health. In most cases, such as V.D.A. v Argentina and K.L. v Peru, the Committee found that denying a woman an abortion and forcing to continue the pregnancy amounted to cruel and inhuman treatment. This cases should pave the way for real change within Latin American countries to finally tackle their laws on abortion.

 


1 Amnesty International, Sexual and Reproductive Rights, Women and Girls. Available at: https://www.amnesty.org/en/what-we-do/sexual-and-reproductive-rights/
2 Office of the High Commissioner of Human Rights, “Abortion”, Information Series on Sexual and Reproductive Health and Rights, United Nations. Available at: http://www.ohchr.org/Documents/Issues/Women/WRGS/SexualHealth/INFO_Abort...
3 Abortion Right, “Charter.” Available at: http://abortionright.eu/spip.php?article603
4 OHCHR, Op.Cit. 2
5 BBC, “Arguments in favour of abortion.” Available at: http://www.bbc.co.uk/ethics/abortion/mother/for_1.shtml
6 OHCHR, Op.Cit. 2
7 Amnesty International, Op.Cit. 1
8Roe v. Wade 410 U.S. 113 (1973) Available at: https://supreme.justia.com/cases/federal/us/410/113/case.html
9 VALENTI Jessica (2014) “Abortion isn't about the right to privacy. It's about women's right to equality”, the Guardian. Available at: https://www.theguardian.com/commentisfree/2014/oct/14/abortion-right-to-...
10Ibidem
11 OHCHR, Op.Cit. 2
12 KLASING Amanda (2014) “Dispatches: 17 Women in El Salvador Need Help This Holiday Season”, Human Rights Watch. Available at: https://www.hrw.org/news/2014/12/11/dispatches-17-women-el-salvador-need...
13 The Economist (2016) “Miscarriage of justice - Where miscarrying can mean a life in jail.” Available at: http://www.economist.com/news/international/21711033-where-miscarrying-c...
14Ibidem
15 IZADI Elahe (2015) “Denied an abortion, 11-year-old rape victim in Paraguay gives birth”, The Washington Post. Available at: https://www.washingtonpost.com/news/worldviews/wp/2015/08/14/denied-an-a...
16Ibidem
17Ibidem
18 UN News Centre (2015) “Paraguay: UN experts deplore Government’s failure to protect 10-year-old rape survivor”, United Nations. Available at: http://www.un.org/apps/news/story.asp?NewsID=50826#.Vc0GovlViko
19Ibidem

 


MR – Research Assistant at CIPADH 

 

Webography

Abortion Right, “Charter.” Available at: http://abortionright.eu/spip.php?article603

Amnesty International, Sexual and Reproductive Rights, Women and Girls. Available at: https://www.amnesty.org/en/what-we-do/sexual-and-reproductive-rights/

BBC, “Arguments in favour of abortion.” Available at: http://www.bbc.co.uk/ethics/abortion/mother/for_1.shtml

DAVIES Christian (2016) “Poland's abortion ban proposal near collapse after mass protests”, the Guardian. Available at: https://www.theguardian.com/world/2016/oct/05/polish-government-performs...

GRIMES A. David (2016) “United Nations Committee Affirms Abortion as a Human Right”, The Huffington Post. Available at: http://www.huffingtonpost.com/david-a-grimes/united-nations-committee-af...

IZADI Elahe (2015) “Denied an abortion, 11-year-old rape victim in Paraguay gives birth”, The Washington Post. Available at: https://www.washingtonpost.com/news/worldviews/wp/2015/08/14/denied-an-a...

K.L. v. Peru, CCPR/C/85/D/1153/2003. In: ESCR-Net. Available at: https://www.escr-net.org/caselaw/2016/kl-v-peru-ccprc85d11532003-communi...

KLASING Amanda (2014) “Dispatches: 17 Women in El Salvador Need Help This Holiday Season”, Human Rights Watch. Available at: https://www.hrw.org/news/2014/12/11/dispatches-17-women-el-salvador-need...

Office of the High Commissioner of Human Rights, “Abortion”, Information Series on Sexual and Reproductive Health and Rights, United Nations. Available at: http://www.ohchr.org/Documents/Issues/Women/WRGS/SexualHealth/INFO_Abort...

Roe v. Wade 410 U.S. 113 (1973) Available at: https://supreme.justia.com/cases/federal/us/410/113/case.html

The Economist (2016) “Miscarriage of justice - Where miscarrying can mean a life in jail.” Available at: http://www.economist.com/news/international/21711033-where-miscarrying-c...

VALENTI Jessica (2014) “Abortion isn't about the right to privacy. It's about women's right to equality”, the Guardian. Available at: https://www.theguardian.com/commentisfree/2014/oct/14/abortion-right-to-...

V.D.A. v. Argentina, CCPR/C/101/D/1608/2007. In: ESCR-Net. Available at: https://www.escr-net.org/caselaw/2013/lmr-v-argentina-un-doc-ccprc101d16...

UN News Centre (2015) “Paraguay: UN experts deplore Government’s failure to protect 10-year-old rape survivor”, United Nations. Available at: http://www.un.org/apps/news/story.asp?NewsID=50826#.Vc0GovlViko

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