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BRAZIL: Major Obstacles on the Road to Safe, Legal Abortion

Mario Osava

RIO DE JANEIRO, Mar 16 2005 (IPS) - The legalisation of abortion appears to be a distant possibility in Brazil, given the slow pace of any progress in this direction and the controversy that continues to surround the few cases where the termination of a pregnancy is legally authorised.

The Brazilian Penal Code, in force since 1940, makes abortion a crime, but allows it in cases where the woman’s life is endangered, or when the pregnancy is the result of rape.

The country is now caught up in a heated debate over whether women should be required to file a police report of sexual assault before a pregnancy can be terminated on these grounds.

Dulce Xavier, from the non-governmental organisation Catholics for the Right to Decide (CDD), told IPS that this debate represents an implicit "lack of faith in a woman’s word, and the assumption that she is lying."

The chief justice of the Federal Supreme Court, Nelson Jobim, issued a warning that doctors who provide abortions to rape victims without a police report could be subject to legal prosecution, even though the procedure is authorised by the health authorities.

Jobim was responding to an announcement from the Ministry of Health, which is planning to adopt a resolution that would permit women to seek abortions in public hospitals in the case of a pregnancy resulting from rape without the need for police documentation.

The executive of the Brazilian Medical Association, which represents some 250,000 doctors, supports the measure, but the Brazilian bar association maintains that the resolution as announced will not protect physicians from criminal charges.

Although the 1940 Penal Code does not stipulate the need to file a police report, most hospitals and doctors will not perform abortions without one, and some even require explicit legal authorisation in addition.

The women’s rights movement, however, has succeeded in getting around this unwritten rule, and there are currently 46 hospitals in Brazil that will assist pregnant women in this situation without demanding the involvement of the law enforcement authorities, according to the CDD.

Xavier, who is in charge of public relations for the CDD and is the coordinator of the Feminist Health Network in the southern Brazilian city of Sao Paulo, said that the proposed Health Ministry resolution will simply reaffirm an already recognised right, while eliminating the inherent suspicion that women who seek abortions on the grounds of rape are lying.

"When police find somebody wounded, they take them to the hospital first, not to the police station, and the same principle should apply in the case of sexual violence," she noted.

Moreover, many women will not or cannot file a report against the perpetrator, because it is someone close to them or because they have been threatened with death if they do so, she added.

The argument that a pregnant woman can "fool" the hospital by falsely claiming that she was raped is what most angers Xavier. When women turn to the public health care system to terminate a pregnancy, "they are extremely vulnerable and frightened, they don’t lie," she maintained.

Women in this situation are attended by a team made up of a doctor, nurses, a psychologist and a social worker, who are perfectly capable of determining if an allegation of rape is false, said Xavier.

Doctors in Brazil are divided in their reaction to the proposed resolution. Edmundo Baracat, president of the Brazilian Gynaecology Federation, said that any step towards cutting back on red tape and providing more humane treatment for women who are victims of violence is an advance.

In the meantime, however, Isac Jorge, president of the Medical Council in the state of Sao Paulo, echoed the opposition raised by Catholic Church representatives, accusing the Health Ministry of opening the doors to widespread access to abortion.

Given this resistance and the opinions voiced by legal experts, the Ministry resolution is unlikely to allay the fears of doctors, most of whom will continue to demand proof that a police report of rape has been filed before they will agree to terminate a pregnancy, according to many observers.

The controversy sparked by the resolution reflects the obstacles that will face any efforts to legalise abortion, which was one of the demands put forward by the National Conference on Policies for Women, held by the government last July.

The addition of a third exception to the law penalising abortion – in the case of foetuses born without brains – has been the subject of protest since July, when Federal Superior Court judge Marco Aurelio Mello authorised the termination of pregnancies in situations like these without the need for a prior court ruling.

The support of the National Health Council – which directs government policy in this area – and the Council for the Defence of Human Rights has not sufficed to quell the fierce opposition of the Catholic Church, conservative political sectors and even Attorney General Claudio Fonteles.

As a result, the right to abort a foetus without a brain (anencephalic infants are usually stillborn or die within hours of birth) will now have to be decided by a Supreme Court ruling, although no date has been set for consideration of this issue.

Moreover, according to women’s rights activists, there are also efforts underway to roll back some of the progress already achieved. For example, a bill currently making its way through the Chamber of Deputies would oblige hospitals to provide an "orientation programme" to women seeking legal abortions on the methods used and potential side effects.

The underlying goal is to influence women to decide against going through with an abortion by inspiring "fear and guilt", according to the Feminist Studies and Advisory Centre (CFEMEA), which has launched a campaign calling on lawmakers to oppose the bill.

An estimated 750,000 to 1.4 million abortions are carried out annually in this country of 182 million. The vast majority are unsafe clandestine abortions. As a consequence, the public health care services are faced with providing treatment for over 250,000 women suffering from problems arising from improperly handled terminations every year.

According to the U.S.-based Alan Guttmacher Institute, despite the highly restrictive abortion laws in most of Latin America and the Caribbean, roughly 20 percent of pregnancies are terminated in the region, which translates into close to four million abortions a year.