The Abortion Issue in Brazil: alongside participation in lhe debate by a variety of extraparliamentary political and a study of the debate in Con- social groups. I referring to the Roman gress' Catholic Church, segments of the medicai profession, the women's movement and MARIA ISABEL BALTAR DA ROCHA evangelicals, in the chronological order of their entry into lhe controversy. Translation by CHRISTOPHER PETERSON My concern with the abortion question has always been motivated on the one hand by the gravity of lhe problem of abortion in A bill was brought before the Brazilian Brazil and a social commitment to tackling Congress in March 1995 to amena the it, and on the other by the dynamism of Constitution so as to prohibit induced political debate about lhe issue and my abortion under any circumstances. If interest in investigating it in depth. I set out passed, this bil1 would have led to the to study the political process, the related immediate suppression of the only legal parliamentary decision-making process, provisions that currently allow abortion: two the involvement of lhe Executive branch items in the Penal Code providing for legal and, above all, the activities of political abortion when the life of the pregnant and social interest groups involved in lhe woman is at risk ar when the pregnancy is abortion debate. the outcome of rape. Furthermore, banning Before detailing the methodology and abortion in the Constitution itself would results of this investigation to date, however, have hindered a democratic debate on this paper presents a brief description of this grave problem. lhe reproductive health situation in Brazil, In April 1996, the above-mentioned focusing on fertility regulation as the context proposed amendment to lhe Constitution for any appraisal of a bortion. As an was voted down by a wide margin in the introduction to this description, I shall first Chamber of Deputies, as discussed further outline some key demographic data and on in this paper. However, the mere fact lhe main factors determining them. that it was submitted at all, not to mention the controversy it generated, reflects a Some introductory information longstanding debate in Brazilian society on In 1991, Brazil had a population of an issue considered divisive. Above ali, it 146,825,475 inhabitants according to lhe reflects political discussions in Congress Demographic Census conducted that since lhe end of the 1940s, and still more year. Women accounted for 50.6 per cent intensely in the 1980s and early 1990s. of the total and men for 49.4 per cent; 75.6 per cent of Brazilians lived in towns and 24.4 ' Paper presented in the seminar Socio-Cultural and per cent in the countryside. In the 1980s the Political Aspects of Abortion from an Anthropological Perspective. organized by the International Union mean annual rate of population increase for the Scientific Study of Population (IUSSP). was 1.9 per cent, continuing the tendency Trivandrum, lndia, March 1996. Portuguese version for population growth to slow down since revised and updated in September 1996. the 1960s. The annual rate of increase was

ESTUDOS FEMINISTAS 55 S.I /99 about 3 per cent in the 1950s, slipping to 2.9 ali stages of their Iife cycle. This was PAISM per cent in the 1960s and to 2.5 per cent in (Programme of Integral Health Care for the 1970s. Contributing to the deceleration Women), subordinated to the Health was a sharp drop in the total fertility rate, Ministry. ff included reproductive health which was some 2.7 children per woman in care and family planning but did not have the 1980s, down from 4.4 in the 1970s, 5.6 in demographic objectives. 4 Later on, the the 1960s and 6.3 in the 1950s, showing an issue of fertility regulation was included, overall reduction of more than 50 per cent without birth control purposes, in lhe new In the period.2 federal Constitution enacted in 1988. Here This decline in fertility took place alongside family planning is defined asa right of married deep-seated changes in Brazilian society couples for which the state must provide. in the second half of the 20th century, lhe Constitution also prohibits coercion by relating to the consolidation of Brazil's public or private entities in this sphere. A specific form of industrial capitalism. In a private member's bill is now before Congress review of the theoretical debate about the to implement this constitutional provision issue in Brazil, Faria analyzes the role of the through ordinary legislation. lhe bill reiterates 'state as a mediator between the structural the above points while adding new items and proximate determinants of fertility. He that reinforce the distinction between full particularly emphasizes the unexpected health core including family planning and effectsof non-demographic governmental population policy relating to fertility. policies: However, for a firmer grasp of the "The recent decline in fertility in Brazil is due reproductive health situation in Brazil, to a complex set of processes associated particularly concerning fertility policy, three with the pattern of development of the further points must be highlighted. First, productive forces (development with fertility regulation in Brazil has historically accelerating urbanization, proletarianization been a sphere in which the private sector and social exclusion) and the unanticipated has been active, with greater or lesser consequences of government policy in intensity, through family planning and birth telecommunications, consumer credit, so- centrei organizations, mainly funded from cial security and health care, ali strategic abroad. Second, progressive segments of dimensions of the process of change, for the societyhave historicallytaken a criticai stance reproductive behaviour of the structured on birth centrei policies and the activities totality which is Brazilian society".3 of these private bodies; such segments, These remarks bring us to the second item especially lhe women 's movement, acted in this introduction, which isthe reproductive as the motive force leading to formulation health situation in Brazil, especially the status of the PAISM programme. And lastly, this of fertility regulation. lhe first point of programme hasfaced major implementation revelance is social policy in this area, which problems since its inception.5 relates to the previous paragraph. In connection with lhe above points, and Consistently with the above quotation, it as part of an overall process of public can be said that Brazil has never had an explicit population policy relating to fertility. ^ROCHA, M.I.B.. População. Reprodução e Saúde: In 1983 the government introduced a policy anotações sobre a questão de uma política social. relating to human reproduction, but it took Revista Brasileira de Estudos de População. Campi- the form of a health programme focusing nas, vol. 5, n° 2, p. 21-33, July-Dec. 1988. on integrated health careforwomen during 'ROCHA, M.I.B.. Política Demográfica e Parlamen- to: debates e decisões sobre o controle da natali- dade. Campinas: Núcleo de Estudos da Popula- , FIBGE. População. Home Page IBGE, 1996. ção, 1993. (Textos NEPO 25). COSTA, A.M.. PAISM: 'FAMA, V. Políticas de Governo e Regulação de uma política de assistência integral à mulher a ser Fecundidade. Conseqüências não antecipadas e resgatada. São Paulo: Comissão de Cidadania e efeitos perversos. São Paulo, 1988. Mimeograph. Reprodução (Cadernos CCR 1), 1992.

YEAR 7 56 SEMESTER 99 spending cuts, particularly in the area of I now return to lhe specific topic of abortion social policy, it must be stressed that the and conclude these introductory remarks. field of reproductive health, and within it lhe numberof abortions in Brazil is estimated lhe part relating to fertility regulation, is to have totalled 1,443,350 in 1991, or about highly problematic in Brazil. 44 per cent of live births. 9 This high number A nationwide survey conducted in 19866, of abortions coexists with a legislation showed that some 70 per cent of formally making a bortion iIlegal, with the two or informally married women aged 15 to 54 exceptions mentioned above, and with an used contraceptives of some kind. Surgical intense debate on the subject in Congress sterilization and lhe pill were by far the most and throughout society. It is to lhe debate prevalent methods used, with 44.4 per cent In the legislative sphere that we now turn. and 41.0 per cent respectively. The practice of surgical sterilization, a virtually irreversible Methodology method, is widespread in Brazil and has lhe period analyzed ranges from the start taken on a genuinely cultural nature, as of such discussions in Congress from the shown in studies by Berquó. Attention has 1946 legislature until the present day, but also been drawn to the excessive use of with greater emphasis on recent debates. caesarean sections, accounting for some Both the research project and the political 34 per cent of ali deliveries in 1990. debate on which it focuses are still in Depending on the state, however, the progress. However, forthe present purposes proportion of caesarean sections exceeds shall restrict my comments to the period 50 per cent.These operations are frequently including lhe legislature which adjourned performed without medicai prescription, in February 1995. usuallyforthe purpose of sterilization.' Lastly, endeavoured to detect not only the and very importantly, there is a strikingly emergence of the issue but also its evolution high rate of maternal mortality, around in the Chamber of Deputies and Senate, 118.6 per 100,000 live births for 1992, lhe Brazil's lower and upper houses, during lhe most recent datum available. In this long period just defined. It is important to context, abortions account for about 12% stress that the section of lhe Penal Code of maternal deaths; induced abortions containing lhe provisions on abortion to specifically account for some 7.9%.8 which I referred at the outset was enacted in 1940 under theEstado Novodictatorship, after President Getúlio Vargas had closed 6 FIBGE. Anticoncepção 1986. Rio de Janeiro: Fun- Congress. lhe Legislative did not resume dação Instituto Brasileiro de Geografia e Estatística. normal activities until the Constituent 1991. Assembly of 1946. 'BERQUO, E.. A Saúde Reprodutiva das Mulheres na lhe empirical research material consisted Década Perdida. Paper presented at the seminar Rapid Fertility Decline in Brazil and India: social of parliamentary documents from the determinants and consequences, Cambridga April Chamber and Senate, mainly draft 1995. BERQUO, E., ARAÚJO. M.J.. SORRENTINO, S.. legislation and speeches by members of Fecundidade, Saúde Reprodutiva e Pobreza na both houses. lhe speeches were used but Américo Latina: o caso brasileiro. São Paulo, 1995. Mimeograph. not systematically incorporated during this stage of lhe project.'° " BRASIL. Ministério da Saúde. Mortalidade Brasil, 1992. Brasília: CENEPI. Fundação Nacional de Saú- de. 1996. In the data on maternal mortality, abortions Poder written for teaching purposes and presented are the fourth largest cause of death. while the at the Program on Studies in Reproductive Health second largest cause. post-partum infection, and and Sexuality. Campinas: NEPO/UNICAMP. 1993. the third. hemorrhage. no doubt include many induced abortions. When performed clandestinely, 'THE ALAN GUTTMACHER INSTITUTE . Aborto Clandes- abortions are also responsible for major sequelae in tino: uma realidade latinoamericana. New York: the morbidity profile of Brazilian women. COSTA, The Alan Guttmacher Instituto, 1994. A.M.. Direitos Reprodutivos: riscos e encruzilhadas. Parliamentary sources are not included in the

ESTUDOS FEMINISTAS 57 S.1199 This analysis of parliamentary documents in the chart. This methodological approach will be supplemented in the future by produced a historical accompaniment to information deriving from interviews with the debate itself, leading up to lhe present members of Congress and interest groups. and showing how the past evolution of Interviews have been held with ali discussions on abortion hasgiven rise to the parliamentarianswho submitted billsto the current status que. 11 last legislature in the period analyzed, and Before moving on to a summary of lhe the information thereby obtained has parliamentary debates on abortion, it is already enriched the ongoing research necessaryto outline a numberof characteristics work to a significant extent. of lhe Brazilian legislation on this matter, Forthe purposesof analysis, the parliamentary especiallythose provisions which members documents were divided into four stages of Congress have endeavoured to change. based on the political evolution of the lhe legislativo proposals submitted are of debate in Congress and in society aí large. various kinds, Some are bilis designed to lhe resulting periodization comprised amend existing provisions, others aim to stages that included differing numbers of repeal them, while some seek to introduce an legislatures and legislativo proposals. Thus entirely new legislative framework without the first stage, covering lhe period 1946-71, precedent in Brazilian jurisprudence. lhe comprised six legislatures to which three majority refer to the Penal Cede. The rest refer, proposals were submitted, and saw the in descending order, to the Misdemeanours start of lhe debate as Congress reopened Act, the Consolidated Labour Laws and, in a afterthe fali of theEstadoNovodictatorship. single case, to the federal Constitution of Brazil. lhe second stage, covering the period The Penal Cede of 1940, 1 ' in the section 1971-83, comprised three legislatures to entitled Crimes Against Life, defines as cri- which 13 proposals were presented; lhe mes (with their respective penalties) an debate became more heated during this abortion deliberately caused by a woman stage, although social and political interest bearing a foetus or with herconsent(articie groups did not yet participate intensely. 124) and an abortion caused by a third The third stage, covering the period 1983- party with ar without lhe woman's consent 91 comprised two legislatures to which 15 (arts. 125 and 126 respectively). In addition, proposals were submitted; this was when the Cede stipulates more severo penalties the debate intensified sharply, under the for abortions by third parties if they cause influence both of redemocratization after grave bodily harm ar the death of the a long period of military rule and of the mother (art. 127). Lastly, art. 128 exempts women's movement. lhe fourth and last from punishment any medicai doctor who stage, covering the period 1991-95, cardes out an abortiondefined as necessary, contained ano legislature to which 18 i.e. when the pregnantwoman's life cannot proposals were submitted and is when the debate was at its most intense to date. " ROCHA, M.I.B.. O Congresso Nacional e a Ques- The study outlined in this paper was based tão do Aborto. Campinas, 1994 (mimeo). Research on an examination of the abortion debate report submitted to the MacArthur Foundation. This in ali fourstages. For each stage, the following study. entitled The National Congress and the items were produced: a foreword presenting Abortion lssue, has been developed with the Nú- cleo de Estudos de População (NEPO), at the Uni- background information on the period, a versidade Estadual de Campinas. It was originally chart containing a description of lhe bilis supported by the MacArthur Foundation, which submitted to Congress, which was the provided me with a grant from 1991 to 1994.1n 1994 source of most of the data used, and an I began receiving a research grant from the CNPq, the Brazilian National Research Council, with an analysisof the legislativo proposals described expanded research project including the current study. Jurist Sílvia Pimentel now acts as consultant references because they are not relevant to the and sociologist Tania Ma rgatto as researc h ossistant, present purpose. 12 Decree-Law 2848. Dec. 7, 1940,

YEAR 7 58 1' SEMESTER 99 besaved byother means, or when the woman recalling here that three propos.als were has become pregnant as a result of rape. submitted during lhe first stage, which covered lhe Misdemeanours Act of 19413 in a 25 years; 13 during lhe second, which lasted section entitled "Misdemeanours Against 12 years; 15 in lhe third, lasting eight years; Persons", defines as a punishable offence and 18 in lhe fourth, lasting only four years. lhe advertising of a process, substance ar This is an indication of lhe extent to which object designed to bring about an abortion lhe debate has intensified as time passes. (art. 20). ff is worth recording that until 1979 Almost ali the proposals examined (43) this article also prohibited advertising of originated In the Chamber of Deputies, the methods for avoiding pregnancy. lower house, with four coming from lhe lhe Consolidated Labour Laws of 1943,14 Senate and two from lhe Executive. Itshould when dealing in a section entitled "Annual be noted that lhe documents submitted Paid Leave" with absences from the by lhe Executive are in fact portions of workplace not taken into account for lhe comprehensive draft legislation designed purpose of computing vacation entitlement, to reformulate the Penal Code and stipulates that a femaleemployee must be Misdemeanours Act. given such leave when pregnant or for a lhe majority of lhe bilis submitted (26) deal "non-criminal abortion"(art. 131, clause II). with proposed amendments to provisions This provision was partially suppressed under of the Penal Code or include new provisions lhe last legislature analysed. changing lhe legal approach adopted in Lastly, the federal Constitution of 1988,15in lhe Code. Eleven refer to lhe Misdemeanours article 5 of the section on "Individual and Act, and two to lhe Consolidated Labour Collective Rights and Duties", defines as Laws. Two bilis set out to oblige the National inviolable lhe right to life (without referring Health Service to perform abortions to conception), freedom, equality, security permitted by law. One bill refers to lhe and property, in lhe context of several federa1Constitution. Three of lhe remaining fundamental rights and guarantees. four bilis propose to authorize contraceptive As already mentioned, lhe abortion deba- activities and practices but exclude those te in Congress revolves essentially around capable of causing abortions. Lastly, one these legal provisions, and the next section bill provides for lhe issuance of civil deals precisely with this debate. certificates for foetuses. Only two of ali lhe bilis submitted to date The abortion debate in Congress have ever been passed by Congress. While lhe question of abortion has a strong they do not relate to issues that are central appeal for members of Congress, who to lhe debate, they indicate a change of subrnitted a total of 49 legislative proposals altitude towards abortion. lhe first was during lhe period analyzed. Forty-six of submitted by Senator Aloysio Chaves to these were bilis, including resubmissions amend article 20 of lhe Misdemeanours and substitutions, and lhe remaining three Act by striking out the ban on advertising were documentsof a different nature (one for 'processes. substances or objects" relating was an indicative draft and two were to contraceptive methods. However, lhe requests for information from lhe Executive). prohibition regarding abortion was retained. lhe number of proposals submitted Although this measure did not change lhe increased from one stage of lhe analysis to law on abortion, ithad lhe effectof reiterating lhe next, despite lhe fact that each stage a prohibition already stipulated in lhe comprised a shorter period of time. It is worth legislation in force. II should be stressed that several other bilis I 'Decree-Law 3688, Oct. 3, 1941. with a similar content had been submitted Decree-Law 5452. May 1, 1943. previously, until one of them was finally ' 5 Constitution of the Federal Republic of Brazil. Oct. passed in 1979, in aclimate of governmental 5. 1988. concern about population increase. Most

ESTUDOS FEMINISTAS 59 S.1199 of these bilis were influenced by Bemfam exception to the general ban on abortion, (Society for Family Wellbeing in Brazil), an to changing the legislation more radically organization whose stated aims included by decriminalizing and/or legalizing lobbying Congress to remove legal abortion altogether. obstaclesto birth contrai and family planning. lhe various tendencies ar attitudes The other bill passed, which became law expressed by bilis, and the differences during the last legislatureanalyzed, differed among these tendencies in terms of their from the first by taking a position that was "ideologies" and goals, in turn reflect the roughiy speaking favourable to the diversity of the political and social groups permissibility of abortion. it was submitted participating in the debate. Congress by Deputies Eduardo Jorge and Sandra indeed functions as a sounding board for Starling, both progressive politicians who the interest groups involved. As mentioned supported the ideas of the women's above, these groups are as follows, in the movement. lhe bill amended clause II of chronological arder of their entry into the article 131 of the Consolidated Labour Laws debate: the Roman Catholic Church, so as to ensure that absences from work segments of the medicai profession, the duetoabortion are notdeductedfromannual women's movement and the evangelical paid leave regardless of the circumstances. churches. These groups have appeared In practice, this means allowing women to on the scene at different times and conti- take time off work even for an illegal nue to participate in the action today. abortion, by contrast with the previous The Catholic Church manifested itsthinking legislation which did so only for "non-crimi- on the issue from the beginning of the nal" abortions. According to Jorge and period analyzed. Back in 1949, during the Starling, it is inadmissible that women who first legislature after the end of the Estado undergoabortionshould bedoublypunished: Novo, Deputy Arruda Câmara, a monsignor, whetheranabortionislegalor iilegal, it entails submitted a bill to remove the two physical, psychological and social suffering exceptions to the ban on abortion from the for the woman in question, who needs time Penal Code. Many years later, in 1986, to recover before returning to work. when a tense debate on abortion was With regard to the stance on abortion proceeding in Congress, Deputy Nilson taken in these bilis, 25 were favourable to Gibsonsubmitted a bill that was ais() inspired permissibility whereas 21 were against. An by the ideas of the Catholic hierarchy. In analysis of the evolution of this attitude 1994, when the controversy was particularly over time shows that in the first three periods heated in civil society, 16 Deputy Osmãnio bilis implicitly ar explicitly opposed to Pereira, representing the official position of permissibility were in the majority, although the Catholic Church, submitted the latest the number of bilis favouring permissibility bill itemized in this stage of the research g radua Ily increased.lbefourth period marked project. It sought to Insert a clause on the a turning-point, in the sense that the vast majority of the bilis submitted - 13 out of 16 16 During this period, a number of national and - were favourable to allowing abortion in International factors carne together to heat up the one way or another. debate in Brazilian society. Included amongstthese In fact, even in the first three stages the was the Vatican's position with regard to issues that predominant trend among the bilis relating were to be dealt with at the International directly to the issue - those referring to the Conference on Population and Development. including abortion; the debate waged in the Penal Code - was favourable to permitting Workers' Party over whether to include the abortion abortion. However, the underlying definition issuein itscampaign platform forthe 1994 Presidential of a favourable attitude here covers a elections: the disclosure by renowned physicians broad spectrum of positions embodied in Anibal Faúndes and Thomaz Gollop that abortions were performed in clinics headed by them in cases these bilis, which ranged between two of serious and irreversible foetal malformations soas extremes: from providing for a single new to be incompatible with life.

YEAR 7 60 1" SEMESTER 99 inviolability of the right to life at ali times, submitted by DeputyJosé Sampaio. During starting with conception, into the section thisperiod, moreover, membersof Congress of the federal Constitution dealing with frequently made references in speeches individual and collective rights and duties. to a report published by physicians in Rio The bill alsodefined abortion asa "heinous" deJaneiro when endeavouring to legitimate crime against life and proposed to amend their stance against making abortion legal. the Constitution soas to prohibit any future Bemfa m's participation in the debate attempt to pass legislation decriminalizing during this period was also significant, or legalizing abortion. especially as regardsitstieswith the medicai Although the official position of the Catholic profession. Bemfam was set up in 1965 by Church appearstransparently in only three gynaecologists and obstetricians during of the bilis analyzed, it was effectively their 15th Brazilian Conference, and in 1967 it manifested throughout the period studied joined the International Planned Parenthood in debates on bilis relating to abortion and Federation. This interest group can be in speeches by members of Congress with considered a key participant in the deba- ties to the Church. Most of these speeches te on abortion inside and outside Congress. were delivered as attacks on bilis designed As already mentioned, it influenced several to increase the numberof situationsin which bilis that set out to allow contraceptives to abortion would be allowed. More recently, be distributed while maintaining the ban the position of the Catholic hierarchy nas on advertising ordissemination of abortion. 'oeen expressed through the activities of There are also recent examples of pro-life movements, which are of a religious participation in the debate by segmentsof nature but not exclusively Catholic and the medicai profession. In the 1990s. they have been lobbying Congress as part of have advocated permission for abortion in their fight against legalization of abortion. two situations: when the mother is HIV- However, Catholic influence can also be positive and when there is evidence of a seen to point in the opposite direction. An grave and irreversible foetal anomaly. example is a group called Catholics for Discussions on these issues, especially the Free Choice, which recently began latter, went so far as to cause the draffing lobbying Congress. These Christian feminists of a bill by the Federal Council of Medicine who identify with the women' s movement and itsanalysis byseveral of the profession's on the issue of reproductive rights have regional councils. A bill dealing specifically taken part in debates with members of with abortion justified by a grave foetal both houses of Congress and members of anomaly, submitted by Deputy Luiz Moreira the Catholic hierarchy. They disagree with during the last legislature studied, was not the Vatican onthisissue but seethemselves directly influenced by the Council but as members of the Church and constitute a indirectly reflects the Council's participation new interlocutor in Congress's deliberations in the debate in Congress. lndeed, this on the abortion issue. medicai organization was represented in The medicai profession began to have a two public meetings held on the premises perceptible influence on the congressional of Congress to debate the issue in the debate in the second half of the 1960s and second half of 1993. especially in the 1970s. Senator Vasconce- The women'smovement began participating los Torres, for example, submitted a bill to in discussions on abortion in Congress in make abortion permissible under certain the 1980s and as time went by became conditions based on a paper delivered to the the most active of the interest groups 19th Brazilian Conference of Gynaecologists invoIved. Taking a position in favour of and Obstetricians. Another example is the permitting abortion, it directly ar indirectly attack led by members of the National influenced the submission of a number of Academy of Medicine and Bemfam on a bilis, the organization of public meetings in bill providing for "therapeutic abortion" Congress to debate the issue and the

ESTUDOS FEMINISTAS ól s.1199 contents of speeches delivered by several lhe women's movement was active during parliamentarians. This active role was lhe last decade in lhe sphere of Congress, largely mede possible by lhe fact that including lhe period of intense debate by Congress now had women members the Constituent Assembly, which is not and by lhe movement's proximity to covered by this paper. More recently, the parliamentarians of a progressive tendency, movement reinforced its opportunities to especially in the Chamber of Deputies. influence lhe political and legislative A chronological analysisof this movement's process by setting up lhe Feminist Centre participation points first to lhe activities of for Studies and Parliamentary Assistance Cristina Tavares, a deputy who submitted (CFEMEA) in 1991. Headquadered in lhe two bilis on abortion, one in 1983 which was capital. Brasília, this organization is an lhe first bill ever submitted to Congress important instrument for lobbying Congress under lhe influence of the women's and publicizing its activities in relation to movement Another salient feature of lhe women's rights, besides joining forces with 1980s was lhe presence of José Genoíno, other feminist individuais and groups to who also submitted two bilis on abortion, provide assistance to parliamentarians on and of Luiz Salomão, who submitted one. discussions of abortion. Both of these deputies identified with the In lhe second half of lhe 1980s a new social demands of lhe women's movement. actor comes ente lhe stage, as lhe latest Three of these bilis sponsored by Tavares, of lhe groups I have mentioned se far: the Genoíno and Salomão were submitted evangelical churches. Like the Roman afferthe newConstitutionwas promulgated Catholic hierarchy, evangelicalsadvocate in 1988. During the Constituent Assembly, the right to life from the moment of when abortion was one of lhe most conception, expounding this position in controversiai issues, even lhe portion of lhe speeches and bilis. Examples of the latter women's movement that insisted on lhe are two bilis submitted in lhe penultimate importance of including a clause on abortion and last legislatures analyzed, by Deputy in lhe Constitution eventually agreed with Matheus lensen, a Protestant pastor, progressive parliamentarians that this was proposing more severe penalties for not the appropriate way to deo) with lhe abortion in lhe Penal Cede, and another issue. lhe National Council for Women's submitted by Deputy Francisco Diastoallow Rights played a key role in this decision. civil certificates to be issued for foetuses. lhe influence of the women's movement Besides lhe social g roups mentioned on routine congressional activities intensified above, which entered the political and during lhe early 1990s, especially during juridical debate in Congress at different the last legislature analyzed. Five bílis times, it is also worth registering lhe submitted by Deputy Eduardo Jorge, in presence of the Executive and lhe certain cases jointly with Deputy Sandra participation, albeit limited, of lhe political Starling, were influenced one way or porfies. lhe Executive submitted two bilis on another by lhe movement, as were a bill abortion in the 1970s during lhe period of re-submitted by Genorno and parficularly authoritarian military rule, when lhe issue was a substitutive bill by Deputy Fátima Pelaes. not yet intensely debated in Brazil. These lhe movement also influenced two bílis measures involved a number of proposed submitted by Deputy Jandira Feghali and changes to lhe Penal Code of 1969, as SenatorEva Blay, both feminists. On different amended in 1973, neither of which versions occasions while debates were going on in of the Code was enforced, and set out to Congress, these women led two seminars introduce a new law on misdemeanours. and a public hearing. Their intention in Specifically with regard to abortion, the conducting such activities was to involve first bill included a provision on lhe legality more people in the discussion both in of aborhon when pregnancy istheoutcome Congress itself and in society at large. of rape. Such a provision had been struck

YEAR 7 62 1" SEMESTER 99 out of the Penal Code by the 1973 With regard to political parties, their amendments. The second bill repeated participation in the debate in Congress the ban on abortion advertising in the was negligible throughout the entire period Misdemeanours Act but increased the analyzed. Only very recently did the issue amount of the fine imposed as a penalty. of abortion appear on the political agen- These proposals, submitted by a dictatorial das of the Communist Party of Brazil (PC do regime, merelyreiterated existing provisions B), especially its congresswomen, and the enacted by the equally dictatorial Estado Workers' Party (PT). Abortion is a highly Novogovernment. divisive issue for this 'atter party, however, Since 1979, when a gradual move to which is strongly influenced by the Roman restore democracy was timidly begun by Catholic Church. The degree of controversy the generais, and particularly after provoked by the issue is illustrated by the redemocratization gathered momentum decision to exclude the abortion question in 1985, the Executive has taken further entirely from the PT's election manifesto in initiatives to revise the Penal Code. 1994, when the party's candidate, Lula, In 1984, the general section of the Code was was considered a clear favourite for much reformulated, and the Executive circulated of the campaign. a draft of a new special section, although However, it can be said that in the 1980s, as Congressdid not debate it. This draft retained redemocratization advanced and the the definition of abortion as a crime but struggle to decriminalize and/or legalize included a new exception that allowed abortion intensified, many parliamentarians abortions in cases of foetal anomaly.'7 belonging to progressive parties, some of Moving up to the 1990s, two initiatives have them women, individually identified with been taken recently to revise the Penal the demands of the women's movement. Code. The first was originated by the From the standpoint of the research project administration of President Itamar Franco, discussed here, this demonstrates that the the predecessor to the present Executive, abortion debate reflects a political and the second under the incumbent dimension of the social movement rather administration of President Fernando than a party-political configuration. Henrique Cardoso, whotook office in 1995. Past ar future decisions on abortion by Both involved the creation of a special Congress - to maintain the law as it stands, committee subordinated to the Justice partially modify it or profoundly reformulate Ministry, charged with proposing amendments it-depend on the balance of forces among to the Penal Code. lhe first committee did the various political and social groups which not complete its mission but maintained lobby ar are active in Congress. lhe some contacts with segments of civil strongest political tension at present, society, including the women's movement, however, is located in the following: on one and drafted preliminary texts indicating an hand, initiatives to decriminalize and/or increase in the number of exceptions to legalize abortion, by the organized the ban on abortion. lhe second committee, women's movement and progressive set up in April 1995, has not resumed the parliamentarians allied with it; and on the work done by the first committee, but has other the stance adopted by the Roman also received proposais from segments of Catholic hierarchy and evangelical civil society. '8 churches to oppose legal abortion, usually as a reaction to the former initiatives.19

BARSTED. L.L. Legalization and Decriminalization of Abortion in Brazil: ten years of feminist struggle. '9 The second and third parts of this article are a Estudos Feministas, Rio de Janeiro, n°0, 1992, p. 169- revised and updated version of two sections from 186. the study lhe National Congress and the abortion ' 8 CFEMEA. A Reformulação do Código e as Mulhe- issue in Brazil. The work was published at the 9th res. Fêmea. Brasília. n°33, 1995, p. 8. Meeting of Population Studies. in the first issue of the

ESTUDOS FEMINISTAS 63 S.I./99 1995-96: the debate proceeds Sandra Starling. Jorge's strategy in lhe VVhen Congress reconvened in February 1995, current legislature has been to take a lhe topic of abortion almost immediately gradualistic approach, submitting various became lhe object of bilis, including both bilis focusing on specific situations in which ones from lhe previous legislative period a bortion is to be permitted. He also which were brought up for debate again, submitted another bill to oblige the National as well as a proposed constitutional Health Service to perform abortions amendment (PEC 25/95), as mentioned at permitted under lhe Penal Code. the beginning of this paper. lhe debate on II is worth briefly commenting on this latter these bilis intensified during lhe latterhalf of bill, which was responsible for much of lhe 1995 and continued, albeit less intensively, abortion debate In 1995. in 1996, an election year. lhe rapporteur for this bill, and most of the Five bilis from lhe previous legislature others being examined by lhe Social continued before Congress, and four new Security&FamilyAffairsCommiffee, is Deputy proposals were submitted. Ali nine were Jandira Feghal:, who like Jorge is a progressive originated by the Chamber of Deputies, politician and a campaigner for women's and seven were favourable to allowing rights. Pressured by parliamentary rules and abodion. Of lhe two remaining bilis, one is aware of lhe findings of an opinion survey explicitly against allowing abodion, while conducted among members of Congress lhe other takes an ambiguous stance on by CFEMEA, indicating that one of lhe bilis lhe issue. on abodion stood a strong chance of being Six of lhe nine bilis refer directly or indirectly passed, Feghali took measures to speed to changes in lhe Penal Code. Two seek to up lhe committee stage, backed by decriminalize and/or legalize abortion fully segments of lhe women's movement. The or partially (in the latter case, without result was an intense debate at hearings of incriminating pregnant women who have lhe Social Security & Family AffairsCommittee, an abortion). They were submitted by whichfinallypassedthebillbya narrowmargin. Deputies José Genoino and Eduardo Jor- This bill is to be discussed and voted on by ge, respectively. lhe other four are designed the Constitution & Justice Committee. lhe to increase the number of situations in which first rapporteur was Deputy Hélio Bicudo, abortion is legal. Each addresses one or who identifies with lhe official position of more specific cases, authorizing abortion lhe Catholic Church on abortion, to lhe in lhe following situations: when the point of submitting an alternative bill tolhe pregnant woman is HIV-positive; when Committee. However, Deputy Bicudo has pregnancy represents a health hazard and/ moved to another Standing Committee, or when grave and irreversible foetal and lhe current rapporteur is Zulaie Cobra, anomalias are detected; when such a a congresswoman who is sensitive to lhe foetal anomaly is detected; and when lhe ideas of the women's movement. foetus is incapable of surviving due to a ff is relevant to point out that the only bill malformation incompatible with life ar an explicitly opposed to abortion was incurable degenerative disease. lhe first submitted precisely when lhe debate in two of these four were submitted by Eduar- the Social Security & Family Affairs do Jorge and lhe !atter two by Luiz Moreira Committee was at iIs fiercest. Sponsored and Marta Suplicy, respectively. by Deputy Osmânio Pereira, also a As one can observe, three of lhe bilis in supporter of lhe official Catholic position, question were submitted by Deputy Eduar- this bill states that voluntary interruption of do Jorge, in some cases jointly with Deputy pregnancy (and euthanasia) are heinous crimes against life, violating article 5 of lhe Cadernos do CIM. and at the 1 st Meeting of federal Constitution. lhe billconsidersarticle Researchers on induced Abortion in Latin America 128 of lhe Penal Code unconstitutional, as and the Caribbean, during the 'atter half of 1994. it does any legislation creating exceptions

YEAR 7 64 SEMESTER 99 that allow abortions (or euthanasia) ar lhe choice of members to sit on the aimed attheirlegalizationordecriminalization. committee and expert witnesses to be The concerns were similar to those of the calied, working hard to explain their alternative bill sponsored by Deputy Hélio viewpointstothe parliamentarians involved, Bicudo, and Pereiras bill ended up being and publicizing their ideas in the media. withdrawn by the sponsoring deputy. As mentioned previously, lhe committee The last bill to be mentioned is that of completed its work in the first half of 1996. Deputy Wilson Leite Passos, submitted in The constitutional amendment (PEC 25/95) July 1996. It authorizes medicai professionals proposed by Deputy Severino Cavalcanti to refuse to perform abortions under received an unfavorable opinion from whatever pretext, in both public and private rapporteur Deputy Armando Abílio; it was health core institutions. Submitted to the subsequently voted down 9 to 2 by the Chamber of Deputies and referred to the Special Committee itself and later by the Constitution &Justice Committee precisely floor of the Chamber of Deputies, with 351 now when this Committee is reviewing the against, 33 in favor and 16 abstaining. lhe previously mentioned bill obliging the vote was conducted by Deputies Marta National Health Service to treat the cases Suplicy and José Genoino, campaigning provided for under the Penal Code, itwould against the amendment, and lhe authorof appearthat lhe Leite Passos bill is a reaction the bill in favor. to the one ensuring legal abortion. II is In fact, it would be no easy matter to pass relevant to note that the project on legal this proposed constitutional amendment. abortion ailows lhe individual physician to In addition to the political pressure brought ref use to perform an abortion on lhe basis to bear against it, it would have required a of personal objections, while obliging the three-fifths majority to pass, a difficult vote Health Service as a whole to comply with to reach, quite apart from lhe fact that it is lhe law under any circumstances. a radical proposal on a controversial issue. Thus it can be seen thatthe political conflict Furthermore, few political porfies in Brazil over the issue is intense, and it is no accident have a clear position on abortion, and all that this conflict manifested itself once three representatives of the Executive again when the above-mentioned bill to branch who gave witness before the amend the constitution was submitted, special committee stated their opposition particularly when a special committee was to the amendment. set up to examine the bill. In the midst of a Rejection of bill PEC 25/95 prevented a comprehensive review of lhe federal legal measure from being incorporated Constitution, with many committees being into the Brazilian Constitution that would set up to discuss important amendments have ruled out the possibility of performing on a variety of issues, it is striking that groups abortions in the two situations already advocating "the right to life from lhe provided for under lhe Penal Code, and moment of conception" had the political which would thus have had dire results for strength to sei up a special committee to lhe heatth - indeed, even lhe lives - of Brazilian discuss the abortion issue.2° women. From a political perspective, However, as stated in the title of this rejection of PEC 25/95 avoided constraints concluding section, the debate proceeds. being placed on a democratic debate in Following the creation of this special Brazil over lhe issue of induced abortion. In committee, in October 1995, the opposing fact, lhe debate will soon proceed in lhe camps in the abortion debate firmly National Congress, focusing now on the bill entrenched themselves on lhe battlefield concerning legal abortion, which as and at once began lobbying to influence mentioned previously is under study by lhe Constitution & Justice Committee of the 20 CFEMEA. Aborto Polariza Discussão no Congresso. Chamber of Deputies. Fêmea, Brasília, n°35, 1995, p. 2. Such are lhe pitfalls of lhe political game.

ESTUDOS FEMINISTAS 65 S.l./99 Although it may appear contradictory, perform abortions in secret; for dissemination recent developments In effect indicate a of the idoa that abortion is one of women's tendency for events in the political sphere reproductive rights; and publicizing the to proceed by chain reaction. Intensification decisions taken on the abortion issue by of the debate on abortion both in Congress the International Conferences on Population and in other national and international fora & Development and on Women. hasled toa conservative andfundamentalist it is opportune to recai!, in conclusion, that religious backlash in Brazil. The lafferposition, Brazil unreservedly signed the documents confronting an organized movement by produced at both of these Conferences, groups taking a progressive stance on the former recognizing abortion as a gra- abortion, hasinturntriggeredanevenstronger ve problem of public health and the response by progressives: in defence of the latter recommending that signatory Penal Code's provisionspermittingabortion, states consider "the possibility of revising on which some existing health services are the laws that contam n punitive measures based; in denunciation of the grave public against women who have iIlegal abortions". health hazard caused by the need to

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