Access to safe legal abortion in developing countries
Anibal Faundes (Brazil)
Maternal Mortality is almost 100 times higher in some developing countries than in the developed world and unsafe abortion is one of the main contributors to maternal death in developing countries where abortion is not legal. Maternal Mortality due to unsafe abortion depends on the rate of induced abortion, the proportion of induced abortion that are unsafe and the severity of the risk. There are no major differences in induced abortion rate between developed and developing countries, except that the largest rates are observed in Eastern Europe and the lowest in western Europe. The large difference is in the rate of unsafe abortion, which is around 30 per 1000 women in fertile age or over in developing countries and negligible in Western Europe and North America. Even greater is the difference in the risk of dying as a consequence of unsafe abortion. While one out of every 130 women with induced abortion die in Eastern Africa and one out of every 120 in Western Africa, the risk of dying after an induce abortion is practically nil in developing countries.
The main determinants of unsafe abortion, apart of the rates of unplanned, unwanted pregnancies, are the legal situation of abortion in each country and the the access to safe abortion in the full extent of the law. While more than 90% of abortions are legal and safe in developed countries, less than 50% are legal in the less developed world. Moreover, even women who fulfill the requirement of restrictive laws do not have access to abortion due to administrative, professional economical and health system barriers. The lack of access to safe abortion and its social and health consequences for women in developing countries is one of the most unfair imbalances between rich and poor countries. The society in general cannot remain indifferent to the suffering of so many women and as physicians, it is our responsibility to fight against this injustice. FIGO is assuming its part through the Initiative for the Prevention of Unsafe Abortion, currently including 54 countries with high induced abortion and unsafe abortion rate.
Different strategies to legalize abortion: Successes and lessons from Colombia
Monica Roa (Colombia)
Sexual and reproductive rights have slowly been recognized as founded on mainstream human rights. There is no question regarding the recognition and legitimacy of these rights on paper; however, we have found that those in charge of applying rights to real life cases base reasoning and decisions on biases and prejudices when interpreting and applying the law. These intermediaries are the decision-makers at courts and tribunals (mostly judges). Our goal is to make gender equality an irrefutable measure by which law must be interpreted, applied and enforced.
Based on this premise, in April 2005, Women's Link Worldwide launched a bold and innovative challenge to the Constitutional Court of Colombia, asking the judges to liberalize the country's abortion law, which outlawed the procedure under all circumstances.
On May 10, 2006 the Constitutional Court issued a historic decision. The Court ruled that abortion should not be considered a crime under three circumstances:
The Women's Link's case was the first to challenge Colombia's abortion law using international human rights arguments. The Colombian Constitution explicitly states that international human rights treaties ratified by Congress take precedence over national laws. Not only is the decision historic for women’s rights but also the language utilized by the Court is groundbreaking in the acknowledgement of women’s reproductive rights and the implementation of international human rights standards in a national context.
The case of Colombia reactivated a regional debate which has shown a particular trend: "Whether you win or lose in parliament, the very next day, someone will go bring a challenge in court," she said, highlighting how the abortion battle has decamped from the political to legal arena”.
A 12 minute video with details on the different strategies developed in the case of Colombia will be shown by the presenter.
Monica Roa, Programme Director of Women’s Link Worldwide, Mexico
The legal regulation of abortion continues being a highly debated topic in Latin America. Even though the discussion did not move for years, two milestones in 2006 gave a renewed strength to those that want to promote or restrict access to legal and safe abortion in the region. One of the milestones takes place in Colombia on May 2006, when the Constitutional Court declared that the total criminalization of abortion is a violation of women’s rights to life, health, integrity, dignity and non-discrimination. The Court recognized women have the right to have an abortion performed at the public health system, when the woman’s life or health (physical or mental) is in danger, when pregnancy resulted from rape or incest, and when there is a diagnosis of a malformation incompatible with life outside the uterus.
The other milestone occurs in Nicaragua in October 2006 when the legislative assembly eliminated therapeutic abortion, leaving a complete ban on abortion in force. Since then, debates in favor and against abortion regained force and paved the road for advances and regressions that could be characterized in the following manner:
Revision of current laws and promotion of the Health exception:
- Case KL vs Peru at the Human Rights Committee
- Abortion on the ground of mental health
Using the health exception already existing in many latin american criminal codes:
-Processes to liberalize abortion on the woman’s demand during the third trimester
- Mexico City – law declared constitutional by the Supreme Court
- Uruguay – President Tabare Vasquez’ vetos a law approved by Congress
- Argentina – currently discussing a law at the national legislative
Processes to give constitutional protection to the right to life from the moment of conception:
- El Salvador: pioneering the movement to legally recognize the fetus as a human person
- Mexican states (18): the conservative reaction to the liberalization in Mexico City
- Republica Dominicana: the constitutional protection of life from the moment of conception
- Kenya: importing the strategy to Africa
- National laws to declare the day of the unborn
- El Salvador: women condemned to 30 years for homicide
- Guanajuato: women condemned to 30 years for homicide
- Brasil: process against 10.000 women whose medical records were removed without due process
- Argentina: judges and attorneys working to implement legal abortion are being prosecuted for promoting
the commission of crimes
Disrupting the implementation of legal abortion:
- Colombia: conscientious objection as a weapon to sabotage legal abortion
- Argentina: fetous ombudsmen try to impede the provision of legal abortions
- Peru: not adopting regulations and protocols for the provision of legal services
Interim measures at the Inter American System for HHRR:
- Case X and XX vs Colombia: protection for the physical and mental Health of a minor who was denied a
- Case Amalia vs Nicaragua: protecting the life of a woman who was denied treatment for cáncer due to
her 10 weeks of pregnancy.