Inadequate in Latin America

WENDOLYN TROGNEUX, POLICY ANALYST • 6 FEBRUARY 2020

Legend: The “green wave” in Argentina became a symbol in the region, in favour of free and legal . TÉLAM/El País Summary Latin America remains a region where women do not have full reproductive rights. The different national restrictions on abortion result in women being sent to jail or forced to practice unsafe which increases the likelihood of death for both the mother and foetus. The consequence of conservative and restrictive laws, as well as a failing health and social security system, is the decrease in women’s quality of life, especially young ones, every day. As countries in the region continue to criminalize abortion under any circumstance, pregnancies and abortions become more precarious. International treaties and domestic laws that require not only safe abortions, but access to such services, would improve quality of life and health for women of all ages.

Background In El Salvador in 2016, Evelyn Hernandez, a rape victim who was unaware of her pregnancy, fainted in a toilet and was later taken to a hospital where she found out that she had given birth. She was subsequently arrested when the authorities were warned by the hospital of the stillborn child and charged her with aggravated homicide under claim that she knew of the pregnancy and had not sought prenatal care. She was thus considered a murderer because of her miscarriage. First sentenced to 30 years in prison, when Ms Hernandez’s lawyers appealed for a retrial, she faced a harsher sentence of 40 years. Eventually, El Salvador’s Attorney General announced last year that the case was being overturned as she was cleared of the charges, however the country’s strict anti-abortion laws persist (Centre for Reproductive Rights, 2019) (The Guardian, 2019).

Reproductive rights are not guaranteed in Latin America. Cases like Evelyn’s are not rare; according to the Guttmacher Institute, a research group that supports abortion rights, 97% of women in Latin America and the Caribbean live in countries with restrictive abortion laws. From 2010 to 2014, the institute estimates that 6.5 million induced abortions occurred in Latin America and the Caribbean. This translates to a rate of 44 per 1,000 women of reproductive age, while about 760,000 women in the region are treated each year for complications from unsafe abortions (AP News, 2019). As this year’s Social Inclusion Index indicates, Latin America maintains some of the world’s most restrictive anti-abortion laws (Americas Quarterly, 2015). El Salvador has been criticized for its aggressive prosecution of women who terminate their pregnancies, even when they may have sought treatment for miscarriages. Six other countries - the Dominican Republic, El Salvador, Haiti, Honduras, Nicaragua and Suriname - do not allow abortion under any circumstances, while some countries, like Mexico or Chile, allow termination of pregnancies only in very specific cases (AP News, 2019).

Nonetheless, efforts to legalize abortion have emerged in the region. Some societies have become more liberal and the Roman Catholic Church is losing its sway amid clerical sex abuse cases (AP News, 2019). Earlier in 2015 for example, Chilean President Michelle Bachelet presented a bill to the country’s congress that would decriminalize abortion in the case of rape, a risk to a woman’s life, or malformation of the foetus (Americas Quarterly, 2015). The number of abortions in the Americas has declined overall, thanks to increased access to contraception, including emergency contraception known as the morning-after pill. While this progress is good news to advocates on all sides of the debate, the harmful, and sometimes fatal, results of laws restricting access to safe and legal abortion remain of grave concern.

Challenges

ANTI-ABORTION POSITIONS IMPEDING REFORM

Church and State The Catholic Church remains an important institution in Latin America. As such, the debate against abortion is turned towards the idea that abortion is murder, and thus must be penalized. A number of countries and

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subnational governments have inscribed a “life begins at conception” proclamation into their constitutions. Examples include El Salvador and Mexico, two countries that have passed constitutional amendments protecting the foetus and recognizing from conception. As long as the Catholic Church keeps its strong influence within the governments, abortion will likely remain criminalised in these countries, with only those with the financial means having the option to abort (BBC News, 2015).

Political Interests Party affiliations and political ideologies also stand in the way of abortion rights. Former Argentinian President, Cristina Elisabet Fernández de Kirchner, as well as former Brazilian President Dilma Rousseff, have declared themselves to be anti-abortion and have either upheld existing restrictions on reproductive rights, vetoed attempts to ease them or tightened them even further (Americas Quarterly, 2015), despite being generally considered as left-wing governments. Although the Argentinian President, Alberto Fernández, confirmed this year that he would send a yet-unspecified project of law that would legalize abortion to the Congress (Página 12, 2020), the law today only allows abortion in cases of rape. However, abortion rights advocates say that the law is not always applied across the country and that local hospitals have signficant influence in deciding which cases fall under the legal criteria (The New York Times, 2019).

CONSEQUENCES OF CRIMINALISING ABORTION

Clandestine Abortions Criminalising abortion does not imply that abortions do not take place in Latin America. The abortion rate in the region is 32 per 1,000 pregnancies; by contrast, the rate is just 12 per 1,000 in Western Europe, where abortion laws are more permissive (AP News, 2019). The Mexico City Health Ministry says more than 200,000 legal abortions have been performed in the capital over the past 12 years. Nevertheless, the majority of abortions taken place in Mexico are done outside of hospital, with numbers going from 750,000 to a million per year (El Diario, 2018). The conditions in which these abortions are done increase the risks of death both for the foetus and the mother.

Cuba sets an example in this regard: the country decriminalised abortion in 1965, offering the procedure free of cost in government hospitals. These days, amid widespread shortages of contraception, an estimated two out of five pregnancies in Cuba are terminated, and almost no deaths are recorded from these legal medical procedures (AP News, 2019). Although the decriminalisation of abortion results in less ended pregnancies, it does not exclude the urgency of addressing inefficient prevention programs and insufficient access to contraception, which still fail to reach the entire population of the region.

Safe abortion is a Privilege Clandestine abortions are often synonym of unsafe and unsanitary conditions. Some women use home remedies, including caustic soda (BBC News, 2015). These remedies, instead of terminating pregnancies, complicate them, or even lead to the death of the women using them. According to the World Health

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Organisation, the main causes of death in adolescent girls in developing countries are pregnancy-related complications and childbirth (BBC News, 2015). Although it remains illegal in several countries, safe abortions are done in private hospitals. However, to access these abortions, one has to have the funds either to pay for these illegal procedures or to fly out of the country to get them done.

Erika Guevaras-Rosa, Amnesty International’s Americas director, says “strict abortion laws in Latin America criminalise poverty” (BBC News, 2015). The women convicted for murder after aborting or trying to abort are the ones who could not afford an expensive hospital to end their pregnancies. It is important to note here that there have been no cases of women being imprisoned on abortion charges after attending a private hospital. If a woman pays for a service and knows her doctor, she can get the treatment she asks for: this does not apply for women without the economic means.

Policy Recommendations • Increase coordination across political parties to ratify the optional protocol of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW); • Establish sex education in high schools, in order open the dialogue and reduce the number of unwanted pregnancies and thus abortions; • Follow the example of the Colombian Constitutional Court, i.e. issue a ruling to decriminalise abortion based on the claim that a total ban on abortion is in violation of the fundamental rights of women to life and health as declared in international human rights treaties; • Empower the voices of activists and civil societies, who have brought cases to international courts and regulatory bodies to exert pressure for governmental compliance with international protocols; • Increase international pressure to ensure that human rights are preserved; • Remove the conditions to the right to legal abortion, as the cases for rape are rarely accounted for by the justice systems; • Decriminalise abortion in order to avoid clandestine and unsafe abortions, thus reducing the mortality rates in young girls and women; • Democratise safe and free abortions in the public health systems; • Introduce a clear separation between religious beliefs and law enforcement.

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References Americas Quarterly. (2015). Behind the numbers: the reproductive rights debate in Latin America Today [online] Available at : https://www.americasquarterly.org/content/behind-numbers-reproductive-right-debate-latin-america-today [Accessed 10 Jan. 2020]

AP News. (2019). AP Explains: Abortion rights in Mexico and Latin America [online] Available at: https://apnews.com/fc09ad4643844f03b8e1175cc0f5c1ce [Accessed 10 Jan. 2020]

BBC News. (2015). How inequality limits reproductive rights in Latin America [online] Available at: https://www.bbc.com/news/world- latin-america-32703342 [Accessed 10 Jan. 2020]

BBC News. (2018). Aborto en América Latina: en el mapa que muestra dónde la interrupción del embarazo es legal restringida o prohibida en la región [online] Available at: https://www.bbc.com/mundo/noticias-america-latina-45132307 [Accessed 10 Jan. 2020]

Center for Reproductive Rights. (2019). Justice for Evelyn [online] Available at: https://reproductiverights.org/story/justice-evelyn [Accessed 2 Jan. 2020]

El Diario. (2018). Abortos clandestinos en México: las cifras y las alternativas [online] Available at: https://www.eldiario.es/internacional/Abortos-clandestinos-Mexico-cifras-alternativas_0_805620004.html [Accessed 23 Jan. 2020]

El País. (2019). El feminismo argentino exige aborto legal y el fin de la violencia machista al próximo presidente [online] Available at: https://elpais.com/internacional/2019/10/14/argentina/1571064564_727931.html [Accessed 13 Jan. 2020]

Gillian Kane (2018). Reform In Latin America: Lessons for Advocacy. Gender and Development, Vol. 16, no. 2, Reproductive Rights: Current Challenges (Jul. 2008), pp. 361-375. Ed. Taylor & Francis, Ltd. on behalf of Oxfam GB. [online] Available at URL: https://www.jstor.org/stable/20461279 [Accessed 4 January 2020] Human Rights Committee. (2018). General comment No. 36 (2018) on article 6 of the International Covenant on Civil and Political Rights, on the right to life. 30 October 2019. CCPR/C/GC/36

Pagina 12. (2020). Aborto legal : el presidente confirmó que enviará un proyecto de ley al Congreso [online] Available at : https://www.pagina12.com.ar/239490-aborto-legal-el-presidente-confirmo-que-enviara-un-proyecto- ?fbclid=IwAR2Z9Stxj4qqYdtgbyquTt3k2SqqM98w3WXcOdHS5f86KjzKEcRW15l5res [Accessed 10 Jan. 2020]

The Guardian. (2019). El Salvador supreme court overturns 30-year sentence for a teen rape vitcim [online] Available at: https://www.theguardian.com/world/2019/feb/15/el-salvador-supreme-court-overturns-30-year-sentence-for-a-teen-victim [Accessed 7 Jan. 2020]

The New York Times. (2019). Argentina moves to Guarantee Abortion Access in Rape Cases [online] Available at: https://www.nytimes.com/2019/12/12/world/americas/argentina-abortion-rape-hospitals.html [Accessed 9 Jan. 2020].

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