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Female Sexual and Reproductive Health Beyond Foetal Right to Life

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Female Sexual and Reproductive Health Beyond Foetal Right to Life Female Sexual and Reproductive Health Beyond Foetal Right to Life A Comparative Analysis of Gender Equality in Mexican Criminal Law with Relation to Abortion Written by Selma Geovanna Tello Garcia Malmö University Department of Global Political Studies Human Rights III, 15 Credits Spring Semester 2020 Supervisor: Kamal Makili-Aliyev Abstract The aim of this study has been to analyse the ways Mexican states articulates the actions of women undergoing abortion and the effects it has on criminal sanctions specified for women. This study analyses the criminal code of Mexico City which decriminalised abortion in 2007, the criminal code of Jalisco reformed in 2009 and the criminal code of Yucatán reformed in 2009. The discrimination of women had been the major concern of International Human Rights Law as well of feminist jurisprudence. This research has attempt to problematise and highlight different aspects of discrimination taking place in Mexican law. Feminist liberal theory and radical feminism had been placed to analyse the criminal codes governing Mexican abortion law. Thus, in this thesis the problems of women to access legal abortion had been discussed as a problem of discrimination based on sex. Therefore, this study does not touch upon tensions between the foetus and the mother but the conflict that emerge in the ways the law thinks of women. TABLE OF CONTENTS 1. Introduction 1 1.1. Research Problem 2 1.2. Aim and Research Questions 3 1.3. Relevance to Human Rights 4 1.4. Delimitation 4 1.5. Disposition 5 2. Method 5 2.1. Empirical Data 5 2.2. Comparative Legal Method 6 2.3. Possible weakness and strengths 7 2.4. Why to use legal comparative method? 7 3. The Abortion Landscape in Latin America and in Mexico 8 3.1. A historical view on abortion in the Latin American region 8 3.2. Consequences of restrictive abortion laws on women 10 3.3. Mexican Legal System and Abortion Law 11 3.4. The new legislative development on abortion in Mexico and 12 Mexico City’s landmark reformation in 2007 3.5. Legislative reformation in Jalisco 2009 14 3.6. Legislative reformation in Yucátan 2009 16 3.7. Summary 17 4. The definition of Abortion at the International Level 18 4.1. Right to Equality 19 4.2. The right to non-discrimination in the Health Care and before the Law 20 4.3. Right to Autonomy, Physical and Psychological Integrity 21 4.4. Summary 22 5. Cases presented before Supreme Tribunals of Justice 23 5.1. Case 61/2018 “Patient A” presented before the Supreme Tribunal of 23 Justice of Jalisco, April 2018 5.2. Case 454/2013 Supreme Tribunal of Justice Yucatán 25 6. Theory 27 6.1. The Premises and Development of Feminist Theory 28 6.2. Sexual Reproductive Freedom and Differences in Feminist Theories 29 6.3. Liberal Feminism Gender Inequality 29 6.4. Women as Immoral Agents 30 6.5. Radical feminism Good vs. Bad Mother in Patriarchy 31 7. Analysis 32 7.1. Analysing Documents 33 Federal Criminal Codes Arts. 329-332, Mexico City Arts. 144-146, 33 Jalisco Arts. 227-229 and Yucatán Arts. 389-392 7.1.1. Liberal Feminism Theory 33 7.1.2. Radical Feminism Theory 34 8. Conclusion 35 Bibliography ABRABIATION CIDAW Convention in the Elimination of all Forms of Discrimination Against Women GIRE Grupo de Información en Reproducción Elegida ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights ICPD International Conference on Population and Development UN United Nations UDHR Universal Declaration on Human Rights 1. Introduction In the last few years, in Mexico the legal rhetoric on women’s right to reproductive health had advanced in two opposite ways; the dilemma on foetal right to life and women’s autonomy is a factor that can be seen at first glance. However, the debate on abortion between progressive and conservative groups reveals the way politics and religion intersect with women’s bodies and sexuality. In Mexico, the setbacks women’s movements for sexual and reproductive autonomy had experience the last years reflects the growing diverging opinion on women’s rights (Amuchástegui et al. 2010, p. 289-290). Abortion has traditionally been criminalize based on the foetus right to life from conception, however paternalistic language legitimizing criminal sanctions for women inducing abortion may also be in tension with women’s right to autonomy and equality (Madrazo A., 2007, P.). Yet, restrictive regulations on abortion in Mexico affects women in the sense that they either choose for practicing unsafe abortion leading to health issues and legal consequences or even worst to bear the burden of obligatory motherhood. Studies show that disadvantage women living in rural areas are disproportionately affected by costs since it is only legal in Mexico City women are forced to travel long distance in order to resolve unintended pregnancies. But also because of the lack of access to health services (Singe r O., 2009, P. 3). In Mexico, the recognition of multiple reasons and circumstances behind a decision to interrupt pregnancy and conception had led to a variety of penalties for women inducing abortion. Most states hold statutes establishing criminal sanctions including prison time, integral health educative and medical programs for women. In the Mexican systems judges are entitled to decide if a woman inducing abortion is eligible for prison time or to undergo a comprehensive medical treatment as penalty. However, some states specify that health education and integral medical treatments are to reiterate human values of motherhood, to treat consequences caused by the effects of induced abortion and to preserve the family (GIRE, 2018, P. 18). In its concluding observations of the ninth periodic report of Mexico the Committee on the Elimination of Discrimination against Women (para. 19.a) is concerned that persistent stereotypes and societal expectations about the roles of women and men in society and the family constitutes a threat for the advancements of equality. In its seventh report (para. 30) the Committee call upon Mexico to lower maternal mortality which amounted 53.5 deaths per 100,000 live births in 2010 which is far from Mexico’s Millennium Development Goal target 1 of 22.2 deaths per 100,000 live births for 2015 (CIDAW/C/MEX/CO/7-8, 2012). In its ninth periodic report (para. 41.a) the committee reiterates its concerns about maternal mortality caused by unsafe abortions as a result of restrictive abortion legislation amended in local criminal codes. The committee (para. 42.a) also calls upon Mexico to take all necessary means to harmonize the federal and state laws and protocols on abortion to guarantee access to legal abortion and access to post-abortion care even when abortion remains illegal (CEDAW/C/MEX/CO/9, 2018). 1.1. Research problem First and foremost, it has to be understood that this study those not claim for law reformation based on that the law is the best way for women to achieve access to legal abortion but rather because the law has become the major barrier impeding women to exercise their sexual and reproductive rights. Neither, does this study focus on the conflicts between foetal and the mothers right. In this thesis, a mixt feminist theory will be placed in order to analyse the problems of women isolated from the foetus and men. This study seeks to gain insight in the ways women are articulated in Mexican criminal law with relation to abortion, and how these regulations reinforces gender hierarchies in criminal sanctions undermining women’s status. The basic elements of this study include an analysis on the representation of women their sexuality and reproductive health either as victims or as crimina ls. Thus, in this study it has been assumed that women’s subordination is the product of law defined in society by male supremacy. Feminist theories provide a rich literature to analyse why women are told or thought in specific ways within the law. However, feminist not only investigate the reason behind treating women differently but also challenges societal notions about women encompassing systemic and structural elements (Glazer N., 2020, P.178). This study on abortion law is important; one because in the interpretation of the law crimes, subjects and sanctions can gain more clarity and transparency. Second, since abortion law treats a problem affecting only women it is important to put close attention to the reasons that lead to criminal sanctions for women. And third, it is highly important to gain deeper understanding on the content representing the legal subjects. This has to be done in order to assess the rational and irrational sides of the law (Ambos K., 2008, P. 1-2; and Berglund K., 2007, P. 16-18). Here, the feminist theories will be used together with human rights concepts to highlight the ways abortion laws discriminates against wome n and what are Mexico’s international obligations to protect and guarantee women’s right to autonomy and equality. 1.2. Aim and Research Questions The purpose of this study is to reach a better understanding on the constructions of women in the Mexican crimina l law with relation to abortion and how these representations could be problematic. Ultimately, I seek to add on the knowledge necessary to address the dimensional effects that stereotypical discrimination has on women. This study stands for the need to abolish discriminatory laws against women as required by Mexico’s international obligations. However, the discriminatory articulations cannot be found mentioned explicitly in restrictive abortion laws; that's why the answer to this problem must be found in the subtle nuances of the legal language.
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