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RIO DE JANEIRO, Feb 8 2016 (IPS) - The Zika virus epidemic and a rise in the number of cases of microcephaly in newborns have revived the debate on legalising abortion in Brazil. However, the timing is difficult as conservative and religious groups are growing in strength, especially in parliament.
“We are issuing a call to society to hold a rational, generous debate towards a review of the law that criminalises abortion,” lawyer Silvia Pimentel told IPS.
Pimentel, one of the 23 independent experts who oversee compliance with the United Nations Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), defends the right to abortion in cases of “severe and irreversible birth defects”.
In Brazil, a 1940 law makes abortion illegal with two exceptions: when it is necessary to save the mother’s life or if the pregnancy is the result of rape.
A third exception, in cases of anencephalic fetuses -which have no brain – was legalised in 2012 as the result of a Supreme Court ruling based on the fact that they cannot survive outside the womb.
“This is different – microcephaly is not like anencephaly, in terms of surviving outside the womb; for the anencephalic fetus, the uterus serves as an intensive care unit; many even die before they are born,” said Clair Castilhos, executive secretary of the National Feminist Network for Health and Sexual and Reproductive Rights.
Microcephalic children, who are born with abnormally small heads, often have some degree of mental retardation, but they can survive.
“In these cases, we should discuss a woman’s right to decide whether to continue with the pregnancy, once she and her partner have been informed that their child could be born with serious difficulties,” said Castilhos, a pharmacist and biochemist who specialises in public health.
If the Supreme Court rules in favour of the right to abortion in cases of microcephaly, as women’s rights activists are seeking, “it would be a fourth exception,” she said.
“Although it wouldn’t be what we’re working for, which is the right for all women to decide whether to continue with a pregnancy, in any circumstances, rather than have an abortion as a ‘permissible crime’ in some cases,” she said in an interview with IPS.
But the approval of this “fourth exception” is unlikely.
Those opposed to making abortion legal, led by religious groups, argue that it violates the most basic of human rights, the right to life. They even protested the decriminalisation of abortion in cases of anencephalic fetuses, arguing that life begins at conception.
In their campaign over the social networks, they are now arguing that abortion of microcephalic fetuses amounts to “eugenics” or selective breeding, and compare those who defend the right to abortion in these cases to Nazis.
But Débora Diniz, a researcher at the Anis Bioethics Institute and the University of Brasilia, has argued in interviews and opinion pieces that eugenics occurs when the state intervenes in decision-making in an authoritarian manner, exercising control over women’s pregnancies, and not when the idea is for women to be free to make their own family planning decisions.
Diniz forms part of a group of legal experts, feminists and other activists who plan to turn to the Supreme Court for a ruling on abortion in the case of microcephaly, in a repeat of the process they followed in the case of anencephaly, which began in 2004 and finally led to a verdict in 2012.
On Feb. 5, U.N. high commissioner for human rights Zeid Ra’ad Al Hussein urged Latin American governments to boost access to “reproductive health services,” including emergency contraception and abortion, given the spread of Zika virus in several countries of the region.
Between October – when the outbreak of microcephaly was identified as possibly linked to the Zika virus – and Jan. 30, there were 404 proven cases of microcephaly in newborns in Brazil. Another 3,670 cases are still being studied.
There have also been 76 infant deaths due to small brain size or central nervous system problems since October, but only five cases were confirmed as Zika-related while 56 are still under investigation.
Seventeen children were born with brain malformations proven to be linked to a mother’s infection with the Zika virus during pregnancy.
Zika virus, like dengue fever and the chikungunya virus, are spread by the bite of an infected Aedes aegypti mosquito.
The main symptoms of Zika virus disease are a low fever, an itchy skin rash, joint pain, and red, inflamed eyes. The symptoms, which are generally mild, last from three to seven days, and most people don’t even know they have had the disease, which makes it difficult to assess the actual number of cases.
The government does not even have estimates of the number of victims of the epidemic, and only recently gave instructions for mandatory reporting of the disease.
There were 1,649,008 cases of dengue registered by the Health Ministry in 2015, with 863 deaths, 82.5 percent more than in 2014. This virus is more widespread and more lethal, but it does not seem to have caused such alarm among Brazilians as Zika virus.
Microcephaly, which is only a threat in the case of pregnant women, has had a much bigger public impact.
Its link to Zika was established by Brazilian researchers.
Nevertheless, on Feb. 1 it declared the Zika virus and its suspected link to birth defects an international public health emergency.
In Brazil, only when unborn babies began to be affected was a decision reached to combat the spread of the Aedes aegypti mosquito. In late January, the government launched a campaign that mobilised 220,000 military troops and thousands of health ministry and other public employees, as well as the public at large.
Brazil will have “a generation of people who have been impaired” if the mosquito is not eliminated, said Health Minister Marcelo Castro, who has been criticised for making contradictory statements about the epidemic.
But a leading national voice on bioethics, Volnei Garrafa, complained to IPS that the government wants to hold society responsible for fighing the Aedes aegypti mosquito, without assuming its own responsibility for the lack of adequate sanitation and the “garbage and stagnant water everywhere,” which generate perfect breeding grounds for the mosquito.
He said that in the renewed debate on the right to abortion, it would be important to have a bioethics council, such as the ones that operate in Europe and in a few countries of Latin America, where abortion remains illegal except in Cuba, Uruguay and Mexico City, or under extremely limited circumstances (fetal malformation, rape, risk to the mother’s life) in most other countries.
Garrafa said that with the current composition of the national Congress, where evangelical and Catholic groups have a strong influence, the approval of measures moving – even gradually – in the direction of the legalisation of abortion is nearly impossible.
“Congress is no longer ‘national’, it is an inquisition tribunal, where religious beliefs prevail,” said Castilhos.
Proposals in parliament, rather than being aimed at easing abortion law, seek to restrict the right to legal abortion in cases of rape, creating humiliating requirements for the victims that make it practically impossible for them to obtain an abortion.
“The Supreme Court has been forced to fill the legislative vacuum, at the risk of eroding democracy through the mixing up of the branches of the state, with the judiciary legislating instead of parliament,” said Garrafa.
In the past few decades, the Supreme Court has handed down rulings on complex issues such as biosafety and stem cell research, where experts in jointly evaluating biological and ethical questions would help overcome or mitigate controversies, said Garrafa, the founder of several Brazilian and Latin American bioethics institutions.
In the current political context, the Supreme Court represents the hope for progress on sexual and reproductive rights, Pimentel, Castilhos and Garrafa all told IPS.
Against this backdrop, the outbreak of microcephaly is traumatic, but it also represents an opportunity for debate on abortion and the need for universal access to sanitation, they added.
Edited by Estrella Gutiérrez/Translated by Stephanie Wildes
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