Brazil: Court Reviewing Criminalization of Abortion

Criminalization of abortion is incompatible with Brazil's human rights obligations, Human Rights Watch said today in filing amicus briefs in two cases before the Federal Supreme Court. Human Rights Watch said that the court should move to decriminalize abortion.

Abortion is legal in Brazil only in cases of rape, when necessary to save a woman's life, or when the fetus suffers anencephaly – a fatal congenital brain disorder. Women and girls who terminate pregnancies under any other conditions face sentences of up to three years in prison, while people who perform abortions face up to four years. In one case before the court, the National Association of Public Defenders, on August 24, 2016, challenged the criminalization of abortion in the context of the Zika virus epidemic, on the grounds that pregnant women experiencing mental health impacts from contracting the virus during pregnancy should have the option to interrupt the pregnancy. In March 2017, the Socialism and Freedom Party filed a separate case challenging the criminalization of abortion on any grounds in the first 12 weeks of pregnancy.

"Criminal penalties for abortion deny pregnant women and girls the right to make deeply personal decisions about their health and lives, and threaten a wide range of human rights," said José Miguel Vivanco, the Americas director at Human Rights Watch. "The Supreme Court now has an opportunity to align Brazil's laws with its international obligations."

International human rights treaties require governments to respect women's reproductive and other human rights. Authoritative interpretations of these treaties by United Nations experts call for the removal of criminal penalties for abortion. Governments should take steps, both immediate and incremental, to ensure that women have informed and unhindered access to safe and legal abortion services, Human Rights Watch said.

The criminalization of abortion in Brazil negatively affects many human rights, including women's rights to life, health, nondiscrimination and equality, privacy, and to be free from torture and from cruel, inhuman, or degrading punishment or treatment. The amicus briefs analyze Brazil's international human rights obligations to reform restrictive abortion laws.

For more than a decade, UN human rights bodies and experts have criticized Brazil for punitive restrictions on abortion, and have urged the government to modify these laws. In 2015, the UN Committee on the Rights of the Child said that Brazil should "[d]ecriminalize abortions in all circumstances and review its legislation with a view to ensuring access to safe abortion and post-abortion care services." In 2012, the UN Committee on the Elimination of Discrimination against Women said that Brazil should "[e]xpedite the review of its legislation criminalizing abortion in order to remove punitive provisions imposed on women."

Media reports indicate that in 2014 alone, at least 33 women were arrested for having abortions, seven of whom had been reported by doctors after the women went to hospitals to seek post-abortion care. One report said that one of these women spent three days handcuffed to a hospital bed.

Reforming laws to facilitate safe abortion has not been found to increase the rate or number of abortions. It does make them safer. The World Health Organization has found that removing restrictions reduces maternal mortality from unsafe abortions.

"Prosecuting women for a procedure that is safe and should be included in comprehensive health services is cruel and a misuse of the criminal law," Vivanco said. "A decision about terminating a pregnancy is a difficult one for any woman, and is for her to make alongside those she chooses to involve, such as her doctor or family or friends: not a prosecutor."

Brazil's restrictive abortion laws are detrimental to public health, Human Rights Watch said. Women and girls unable to prevent an unplanned pregnancy have very few options, and may turn to life-threatening clandestine abortions. According to official information, abortion was the direct cause of 55 maternal deaths in Brazil in 2014, and 69 in 2015.

These figures most likely vastly underestimate the consequences of the criminalization of abortion to women's health and lives. An estimated half million abortions took place in Brazil in 2015 alone – nearly all of them illegal. Clandestine procedures often lead to complications and the need for post-abortion care. Human Rights Watch has interviewed doctors who have treated women and girls in the past year who had turned to caustic acid or other unsafe methods to try to induce abortion.

In contrast, complications from abortion are rare when performed by a skilled health care provider in sanitary conditions.

"Brazil should confront the public health crisis illegal abortion creates, and protect women's health and safety by decriminalizing abortion," Vivanco said. "Decisions about abortion belong to a pregnant woman, without penalty or interference by the government or anyone else."