Defending the Human Right to Life in Latin America
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Defending the Human Right to Life in Latin America Translated from the Spanish Americans United for Life, Washington, DC 20005 Copyright © 2012 by Americans United for Life All rights reserved First edition published 2012 Published in the United States of America ISBN 978-0-9777204-8-4 Defending the Human Right to Life in Latin America Dr. Charmaine Yoest, President & CEO Editors M. Laura Farfán Bertrán, Lawyer & Project Coordinator William L. Saunders, Senior Vice President & Senior Counsel Jeanneane Maxon, Vice President of External Affairs & Corporate Counsel Translator Noelia Estefanía Marchetti Translated from the Spanish Copyright 2012 by Americans United for Life. All rights reserved under International and Pan-American Copyright Conventions. No part of Defending the Human Right to Life in Latin América may be reproduced or transmitted in any form, electronic or mechanical, including photocopy, recording, or any information storage and retrieval system now known or to be invented, without permission in writing from the publisher, except by a reviewer who wishes to quote brief passages in an article or a review written for inclusion in a magazine, newspaper, or broadcast. For information, please contact: Americans United for Life 655 15th Street NW, Suite 410, Washington, DC 20005, United States of America; 202-289-1478 www.aul.org Table of Contents Introduction – Human Rights and the Right to Life William L. Saunders 11 Overview – Latin America Reaffirms its Commitment to Life M. Laura Farfán Bertrán 15 Legislation Guidelines for Latin America 21 I. General Guidelines to a Constitutional Amendment 21 II. Prohibition of Hormonal “Emergency Contraception” 22 III. Rights Acknowledgement 23 A. Comprehensive Protection of Pregnant Women and Unborn Children 23 B. Protection of Women with Problematic Pregnancies 25 C. The Right to Information 27 D. Burial of the Unborn 30 IV. Convention on the Elimination of All Forms of Discrimination Against Women and its Optional Protocol 31 United Mexican States Diana Ortiz Trujillo – Santiago Maqueda 35 I. Introduction 35 II. The Right to Life 36 A. Political and Legal Organization of Mexico 36 B. The Role and the Content of International Treaties Signed by Mexico 38 III. The Right to Life and Abortion 43 A. The Creation of Legal Excuses Absolving the Crime of Abortion 43 B. The Decriminalization of Abortion in the Federal District within the First Twelve Weeks of Pregnancy 48 C. Legal Precedents Relating to Cases of Non–Punishable Abortions 51 D. Reactions of the Local Constitutions 55 E. The Role of International Human Rights Treaty Bodies 58 F. Non–Governmental Organizations Pursuing the Decriminalization of Abortion 58 IV. The Right to Life and Reproductive Health Programs 59 A. Description of the Legislation in Force 59 B. Content of the National Programs on Reproductive Health 60 8 Defending the Human Right to Life in Latin America C. Regulating the Offer of Family Planning and “Emergency Contraception” Services 61 Honduras Ligia M. De Jesús 63 I. Protection of Prenatal Life in Honduras: a Token of Central America’s Strong Pro–Life Identity 63 A. Political and Legal Organization 64 B. Legal Protection of the Unborn Child in National Laws and Honduran Declarations in International Conferences 66 C. Full Abortion Ban and Criminalization of Abortion in Honduras 69 D. Non–Governmental Organizations and Political Advocacy 73 E. Statistics 77 II. Reproductive Health Legislation 78 Colombia Camila Herrera Pardo – Gabriel Mora Restrepo 81 Between False Assertions and Flaws in Argumentation: The So–Called “Abortion Case” in the Colombian Constitutional Court I. Introduction 81 II. The Arguments of the Parties 83 III. Review of the Opinion of the Majority in the Constitutional Court 85 IV. The Magical Leap from the “Decriminalization” of Abortion to the “Fundamental Right to Abortion” 89 V. Conclusion 92 Brazil Carlos Alberto Di Franco 95 The Impact and Importance of Abortion in the Last Presidential Elections: A Commentary Paraguay Carlos Agustín Cáceres Sarubbi – Carmen Viviana Chavez de Talavera 99 I. Introduction 99 II. Legislation Guaranteeing Human Dignity 100 A. Political and Legal Organization 100 B. The Legal Worldview of Dignity and Life in Paraguay 100 C. International Instruments in Force 101 D. Domestic Legislation 103 9 E. Life, the Paramount Right Pursuant to the Paraguayan Courts’ Jurisprudence 105 F. Legislative Bills to be Considered by the National Congress 107 III. Abortion 108 A. Regime Protecting the Right to Life 108 B. High Rates of Maternal Mortality: Alleged Ineffectiveness of Abortion Penalization 112 IV. Threats and Potential Action Channels to Decriminalize and/or Legalize Abortion 118 Argentina 121 M. Laura Farfán Bertrán The Protection of the Human Right to Life in the Republic of Argentina – The Guarantee of the Enforceability of the Whole System of Human Rights I. Introduction 121 II. The Human Right to Life 122 A. Legal and Political Organization of the Republic of Argentina as a Democratic State of Law 122 B. The Human Right to Life in the National Legislation and in International Treaties 125 C. A Good Decision by the Supreme Court, Though with Questionable Nuances 132 III. Criminalization of Abortion: The Logical Consequence of the Acknowledgement of the Right to Life from the Moment of Conception 135 A. National Legal Situation 135 B. Amendment Bills for the National Congress’s Consideration 141 C. A Very Important Jurisprudential Precedent 148 D. An Unprecedented Ruling by the Supreme Court of Justice 150 E. Non–Governmental Organizations Pursuing the Decriminalization of Abortion 153 F. The Same Statistical Data, Different Readings 155 G. Legislative Proposal: “Act on the Comprehensive Protection of the Human Rights of Pregnant Women and Children to be Born” 160 IV. Sexual Health, Reproductive Health and the Right to Life. Considerations about their Debate in National and International Laws 162 V. Conclusion 173 10 Defending the Human Right to Life in Latin America Chile Diego Schalper Sepúlveda 175 I. Chile: A Privileged but Fragile Context 175 II. General Right to Life 176 A. Political and Legal Organization 176 B. International Treaties and National Legislation 182 C. Details by the Courts of Justice 189 D. Protection of the Life of the Conceived Unborn Child in the Chilean Law 191 III. Abortion in Chile 196 A. Rules Prohibiting Abortion and Bills Intending to Have it Approved 196 B. Legal Precedents: The Highest Courts in Chile Confirm the Rejection of Abortion Under All Circumstances 200 C. Current Context: Organizations Involved and State of the Issue 206 D. Statistics: Little Significant Information 211 IV. Reproductive Health Legislation 212 11 Introduction – Human Rights and the Right to Life By William L. Saunders, Senior Vice President and Senior Counsel1 t seems intuitively simple: unless you are I alive, there is no practical way to claim— to insist upon, to assert—any other right. If you no longer exist, you cannot speak or protest or file a lawsuit (or hug your child or help someone in need). Thus, the right to life—the right not to be arbitrarily killed—necessarily is the prerequisite to, the foundation of, every other kind of right. There can be nothing recognized and respected in society, and in the courts, as “human rights” unless the most basic human right—the right to life—is respected. However, though this would seem to be simple intuition, easily—and therefore, widely—grasped, the fact is that, in today’s world, it isn’t. That is, many people support “human rights” but, at the same time, self– identify as “pro–choice”, which necessarily means they support the recognition in the law of a right to abortion, that is, the right of some human beings to kill other human beings for no other reason than they wish to do so. That is the very definition of arbitrary killing. Holding these two positions entails a logical contradiction: the right of all human beings to life is supported, except for those who are not yet born. But how can it be that the youngest, the smallest, the most defenseless are subject to legalized violence while the older, the bigger, the more powerful human beings are not—in fact, cannot legally be—subject to the lethal violence of another? There is here, as noted, a contradiction. What explains it? Can it be that it matters—in some way that has moral purchase upon our hearts—that the state has legalized the killings? Or that the mother authorizes it? This can be answered with another question – would it matter to our unstinting opposition to slavery that someone chose to be a slave? The answer, I suggest, that we would all agree upon is no, it would not matter; slavery is always and everywhere wrong, and it is wrong because it reduces a human being to property, to the status of an object; it 1 Doctor of Law (JD), Harvard Law School, 1981 12 Defending the Human Right to Life in Latin America deprives him of his inherent human dignity, something of which no one—not even himself—may deprive him. In other words, it violates his human rights. Whether or not, it is “legal”, it is wrong. Whether or not, the mother—or anyone else—authorizes it, it is wrong. It is wrong because it reduces the unborn human being to the status of an object that has no legal protection. But human rights are either for all human beings or they are for none. Either human rights are for human beings, or they are arbitrary legal constructs, applied to some but not all, at the whim of the powerful. To be “pro–life” is to be “pro–human rights”, and the reverse is true as well: to be “pro–human rights” means one must be “pro–life”. Many nations in Latin America understand this fact better than do those in North America.