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Redalyc.Human Rights and the Right to Abortion in Latin America Ciência & Saúde Coletiva ISSN: 1413-8123 [email protected] Associação Brasileira de Pós-Graduação em Saúde Coletiva Brasil Zúñiga-Fajuri, Alejandra Human rights and the right to abortion in Latin America Ciência & Saúde Coletiva, vol. 19, núm. 3, marzo-, 2014, pp. 841-846 Associação Brasileira de Pós-Graduação em Saúde Coletiva Rio de Janeiro, Brasil Available in: http://www.redalyc.org/articulo.oa?id=63030163017 How to cite Complete issue Scientific Information System More information about this article Network of Scientific Journals from Latin America, the Caribbean, Spain and Portugal Journal's homepage in redalyc.org Non-profit academic project, developed under the open access initiative DOI: 10.1590/1413-81232014193.11032013 841 OPINIÃO OPINION Human rights and the right to abortion in Latin America Direitos humanos e direito ao aborto na América Latina Alejandra Zúñiga-Fajuri 1 Abstract The scope of this study is to question Resumo O objetivo deste estudo é questionar o the fact that in some countries in Latin America fato de alguns países da América Latina (Chile, El (Chile, El Salvador, Nicaragua, Honduras and the Salvador, Nicarágua, Honduras e República Do- Dominican Republic) abortion is still forbidden minicana) proibirem o aborto em qualquer situ- in all situations. Even after all the debate on this ação. Mesmo após todos os debates sobre o tema, thorny issue, the theory of human rights is not poucas vezes é utilizada a teoria dos direitos hu- often used in the defense of abortion. This is cle- manos para sua defesa. O que certamente está re- arly related to the pervasive, albeit unspoken be- lacionado com a crença generalizada, embora ve- lief that, due to their condition, pregnant women lada, de que as mulheres grávidas perdem, devido inherently lose their full human rights and should a esta condição, seus direitos humanos, devendo surrender and even give up their lives in favor of ceder e até renunciar à sua vida em favor do nas- the unborn child. This article seeks to show that cituro. Este artigo pretende demonstrar que uma an adequate reading of the theory of human ri- leitura adequada da teoria dos direitos humanos ghts should include abortion rights through the deve incluir o direito ao aborto nos três primeiros first two trimesters of pregnancy, based on the meses de gravidez, baseado em que as liberdades fact that basic liberties can only be limited for the fundamentais só podem ser limitadas pelo bem da sake of liberty itself. It also seeks to respond to própria liberdade. Também tem a intenção de res- those who maintain that the abortion issue can- ponder aos que sustentam que o tema aborto não not be resolved since the exact point in the deve- pode ser resolvido já que o ponto exato no desen- lopment of the embryo that distinguishes legiti- volvimento embrionário separando o feito da for- mate from illegitimate abortion cannot be deter- ma legítima do da ilegítima não pode ser determi- mined. There are strong moral and scientific ar- nado. Existem argumentos morais e científicos guments for an approach capable of reducing un- consistentes para reduzir a incerteza e assentar as certainty and establishing the basis for criminal bases para reformas penais centradas na impor- law reforms that focus on the moral importance tância moral dos prazos. of trimester laws. Palavras-chave Aborto, Direitos Humanos, Cui- 1 Escuela de Derecho, Universidad de Valparaíso. Key words Abortion, Human rights, Health care dado sanitário Errázuriz 1834, Quinta Región de Valparaíso. 800 242 800ý Valparaíso Valparaíso Chile. [email protected] 18 alejandra.pmd 841 5/3/2014, 12:25 842 Zúñiga-Fajuri A Introduction impose not so much an obligation not to abort, but a life upheaval of incalculable consequences. An adequate reading of general human rights Women forced into pregnancy and childbirth will theory should include abortion rights through have to forego many life objectives to raise that the first two trimesters of pregnancy, noting, with child, thus entering into servitude of sorts”5. Rawls, that basic liberties can only be limited for the sake of liberty itself1. This paper intends to Abortion and Human Rights respond to those who claim that the abortion in Latin America issue cannot be resolved, since the exact point in embryonic development that separates legitimate Therapeutic abortions are legal everywhere and illegitimate abortion cannot be determined. in the western hemisphere except Chile, El Salva- Potent moral arguments exist for an approach dor, Nicaragua, Honduras and Republica Do- capable of reducing uncertainty and establishing minicana (During the Pinochet government, all a basis for reforms that move past prescriptive forms of abortion are judged as felonies and laws and focus on the moral importance of tri- punishable with prison. However, women still get mester laws. abortions which make Chile the country in Latin America with the highest abortion rates, propor- The World’s Greatest Health Inequity tionally)6. In all these countries Catholic Church typically argues that aborting is killing a human Chile, El Salvador, Nicaragua, Honduras and being, and that killing a human being goes against Republica Dominicana criminalize all sorts of God’s moral code. This argument forgets that, abortion, even in case of rape or when the wom- ever since the 18th century, political theorists and an’s life or health is at risk. To the Committee philosophers have argued that human rights are against Torture, these laws are an act of torture subjective rights granting entitlements that can that flouts women’s basic human rights. The CAT only be curtailed to protect others. As such, hu- made clear that Chile’s policy of delaying treat- man rights cannot be restricted or overridden on ment to coerce confessions from women seeking behalf of collective, utilitarian or consequential- “life saving treatment in public hospitals after ist interests or abstract values such as the con- illegal abortions, denying them confidential treat- cepts of “human life” and “potential human life” ment, or using their statements against them in a advanced by religious or ideological groups, even proceeding constitute a contravention of the Tor- if upheld by a majority. In addition, determina- ture Convention”2. tion of the moral legitimacy and legality of abor- In human terms, making abortion illegal is a tion requires, as a counterweight to women’s very costly way to allocate scarce resources. “The human rights, identifying the rights accruing to question is not whether we agree with abortion. the embryo or fetus as a person or at least as a Legal or not, statistics show that women will have separate being with a protected legal interest (not abortions. The choice is between the life or death as a value). of these women. Keeping punitive abortion laws The notion of human rights also requires in place means opting for death”3. Criminalizing parsing the semantic units involved. The term abortion does not lower the numbers and has “human” is the sole relevant criterion for entitle- been proven completely ineffective policy. In South ment. While the term “right” has many defini- America alone, each year about 30 per 1,000 wom- tions, it refers here to the entitlements or prerog- en between the ages of 15 and 45 will have an atives accruing to an individual. This apparently abortion. In the Netherlands, where abortion is simple formulation, however, begs the question: legal, the figure is 8 per 1,000. In addition, puni- What does it mean to be entitled to rights? Or to tive laws single out poor women. Where abor- be a human being?7. The term “human” implies tion is legal, the risk of death is less than 1 per that the sole standard a holder must meet is mem- 500,000 women, making abortions safer than bership in a class of individuals known as hu- treatment with penicillin and just about any oth- man beings; i.e., human rights are moral rights er type of medical procedure4. enjoyed by dint of personhood. Does that mean Punitive laws force women to choose between that belonging to the human species is the sole an unsafe abortion and enforced maternity. These factual condition of relevance? Defining “human” laws not only disallow behavior, they forcibly in terms of basic organic properties, such as chro- impose maternity. But as Ferrajoli notes “The mosome structure, of necessity assumes that all abortion ban and resulting coercive maternity are equally entitled to such rights. But as C. Nino 18 alejandra.pmd 842 5/3/2014, 12:25 843 Ciência & Saúde Coletiva, 19(3):841-846, 2014 notes, it is not obvious that biological traits alone, however desirable. Taking women’s human rights disconnected as they are from the moral content seriously requires disallowing the abstract need of rights, can be the sole grounds for granting a to uphold the sanctity of human life, the grounds right. Such an assumption would involve a crude used by courts and legislations to criminalize sort of ‘speciesism’ akin to racism (not to men- abortion. Consistent with this conception, limit- tion that persons with Down syndrome carry an ing women’s rights would require determining if extra chromosome. Also, Hume’s principle logi- the unborn has the features generally ascribed to cally prevents the inference of prescriptions, such human beings, or if at any stage of its develop- as the duty to grant a right, from mere descrip- ment it displays features warranting recognition tions, such as biological traits. As Singer notes, of rights. rather than biology (or any other kind of de- scriptive theory), moral citizenship is a question Embryos, Fetuses and Persons of moral theory in the broad sense8. Human beings can also be described on the Notwithstanding the above, regarding a fe- basis of morally relevant traits.
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