Miscarriages of Justice: Latin America is failing its Women and Girls

The right to seek an abortion that is safe, legal and accessible is a human rights imperative. Despite this, abortion laws in many countries are severe; jeopardising not only the sexual and reproductive rights of women and girls, but often, blighting lives. Latin America is a bastion of restrictive abortion statutes; arguably among the most notorious, with seven countries in the region imposing blanket bans.[i] While other countries permit abortions when life is threatened by pregnancy or where pregnancy is the result of rape or incest;[ii] across the staunchly Roman Catholic territories, such exceptions are narrowly defined and scarcely granted.

International human rights law supports the right of a woman or girl to decide independently on matters relating to her personhood and intimate life, without interference from the state.[iii]  In K.L. v Peru for example, the Human Rights Committee held that the government’s failure to ensure legal abortion services amounted to a violation of, inter alia, the right to privacy as well as the freedom from cruel, inhuman and degrading treatment.[iv]

Repressive and punitive abortion laws imperil the health and lives of women and girls around the world, driving them into the unsafe hands of clandestine abortion providers.[v] Because of this, legalising abortions is pivotal to guaranteeing security and equality for women and girls across the socially-conservative hemisphere. This article thus calls for the liberalisation of abortion laws and the provision of contraceptive and reproductive health services that are safe and accessible in practice.

A Case for Children and Victims of Rape, Incest and Abuse

While many Latin American countries permit abortion in cases where it is absolutely necessary to save a woman’s or girl’s life, [vi] the availability of this necessity defence is highly questionable with governments more often than not opting to gamble with death. In Paraguay for example, abortion is permitted in cases where it endangers life. Despite this, the stigmatisation of abortion frequently results in denial of the right. Earlier this year for example, a case which prompted a global groundswell of criticism was that of a 10-year-old Paraguayan girl, routinely raped by her stepfather, who was denied an abortion despite considerable health risks.[vii] Pleads by the child’s mother and international condemnation all proved fruitless. Among the critics was Guadalupe Marengo, Amnesty’s Americas deputy director, who denounced the forced pregnancy as being ‘tantamount to torture’.[viii] In the end, the Paraguayan authorities upheld the denial of her the right to an abortion, groundlessly insisting that even in this case – despite the fact that she was a rape victim and a child – permitting an abortion would amount to a violation of national law.

The case of a raped child forced into pregnancy, however, is not an isolated case but a regional phenomenon of alarming proportions. Last year alone, according to health statistics, over 680 girls between the ages of 10 and 14 gave birth in Paraguay.[ix] Most of them, victims of sexual abuse. This failure of the law to protect some of the most vulnerable in society, is one which stains the region.

In Nicaragua, to set another gruelling example, sexual violence against girls is a major contributor to the high rate of child pregnancies. In fact, over 6000 cases of sexual violence were reported in 2013, with 88% of the victims being young girls and teenagers.[x] And in Argentina, where rape victims have the right to abortion under national law, the struggle of obtaining a legal abortion is sometimes unavailing.[xi] Conservative opposition is stiflingly ferocious, with avowedly pro-life activities insisting on forcing pregnant mothers to endure unwanted pregnancies.

Forcing women and girls to carry a pregnancy to term causes physical and mental suffering. The dangers and consequences of child pregnancies are severe. In Latin America, around 16 women die every day from maternity-related complications (Pan-American Health Organisation, 2015[xii]). Young girls particularly face higher risks of complications and death resulting from pregnancy.[xiii] Indeed, as affirmed by the WHO, the risk of maternal mortality is highest among girls under the age of 15.[xiv] On top of this, girls who become mothers at the age of 14 years or younger suffer long-term health and social consequences, such as obstetric fistula.[xv]  Despite all this, young girls are routinely forced to carry unwanted and unintended pregnancies to term.

Akin to torture, denial of a potentially life-saving abortion amounts to a human rights violation. Furthermore, forcing children to have children is equally traumatic. Child mothers are rarely able to exercise their basic human rights to education, health, among many others. Respect must be given to the wishes of the pregnant child or woman. As for victims of sexual violence, the physical and psychological consequences that flow from a rape or incest-related pregnancy are traumatic, long-lasting and potentially life-shattering. Women and girls must be given the choice whether to give birth to a baby violently conceived. They must be supported in whatever decision they make rather than being stripped of voice and subjected to further physical and psychological torment. Foremost, women and girls must never be persecuted by the law and incarcerated for taking control of their lives and defending their right to bodily integrity.

From Victim to Criminal

In Latin America, there are a handful of countries that have imposed total, unremitting bans on abortion. In Chile, El Salvador, the Dominican Republic, Haiti, Honduras, Nicaragua and Suriname, abortion is illegal under all circumstances.[xvi] On top of this, the criminalisation of abortion in these countries creates a climate of fear, forcing women and girls to resort to dangerous, desperate measures. Bereft of choice, women and girls thus face a hopeless conundrum: terminate an unwanted pregnancy and potentially face imprisonment, or continue with an unwanted pregnancy and expose themselves to potentially long-lasting health risks or even death.

Countries with spiralling levels of sexual violence, crimes of rape are rarely reported, and routinely go unprosecuted and unconvicted. In Nicaragua for example, 40% of rape victims have no access to justice.[xvii] By contrast however, the rape victim who terminates an unwanted pregnancy could face decades behind bars. In Chile, women are routinely imprisoned for having illegal abortions. And in El Salvador, having a miscarriage constitutes a crime resulting in lengthy jail terms.

The case of “Las 17” is comparable to a dystopian novel. It it the story of 17 women who face sentences of up to 40 years for allegedly murdering their foetuses after suffering stillbirths, miscarriages and other life-threatening complications. Among them is Carmen Guadalupe Vásquez who, after being raped by a neighbour of her employer, gave birth to a stillborn. Despite suffering from life-threatening bleeding and nearly loosing her own life, the 18-year-old was sentenced to 30 years in prison.[xviii] After regaining consciousness, she was handcuffed to her hospital bed and soon after charged with aggravated homicide.

Carmen’s miscarriage of justice, however, is not an abstract example. Between 2000 and 2011, 129 Salvadoran women and girls were persecuted for abortion-related crimes and many others were accused of having an abortion.[xix] Carmen was ultimately granted pardon earlier this year, but only after being robbed of almost a decade of her life. While her victory gives hope to those still incarcerated for no fault of their own, some fear a backlash from the Salvadoran Assembly.[xx] In the country, most of the media is governed by conservative groups who have publicly condemned the 17 as criminals and have accused the government “of not punishing women who kill their babies.”[xxi] Indeed, Carmen’s pardon was rather unique; the only time since 1998 that a Salvadoran woman has walked free.[xxii]

These draconian abortion laws are a serious violations of international human rights law. They violate human rights on many levels; from the right to life, health, equality, to reproductive self-determination, the freedom from discrimination and from cruel, inhuman, or degrading treatment. Such repressive statutes unjustly target vulnerable females as well as put the lives and wellbeing of numerous women and girls on the line. El Salvador is home to the highest rate of teenage pregnancies in Latin America. Shockingly but unsurprisingly, of the pregnant girls aged 19 and under, half commit suicide.[xxiii]

The Catholic Church and the Rise of Clandestine Abortions

Latin America is home to half the worlds’ Roman Catholics.[xxiv] Up to this day, catholic church influence has a massive impact on political decision-making. Pointing to the sacredness of life, the Roman Catholic Church has always condemned abortion as wrong. Despite international clamour, the Church maintains that any reform of the existing abortion laws, including decriminalising abortions in cases where pregnancy is life-endangering, would open the floodgates to softer laws that will slowly give way to legalisation altogether.[xxv]

Quite on the contrary however, as a study by the WHO spotlights, abortion rates remain consistent and unaffected by the legality of the procedure.[xxvi] Women and girls, wealthy or poor, will both continue to seek abortions but are affected in different ways. In fact, more than 85% of abortions worldwide take place in countries where abortion laws are detrimentally restrictive.[xxvii] The illegality and criminalisation of abortion services thus only serves to push the industry underground, dragging the lives of innumerable girls and women with it.

Where abortion services are inaccessible and illegal, “safe abortion has become a privilege of the rich, while poor women have little choice but to resort to unsafe providers”[xxviii] Without fail, repressive abortion laws disproportionally affect and marginalise women and girls of low socioeconomic status. In the words of Dennis Muñoz, Carmen Guadalupe Vásquez’s lawyer, El Salvador’s abortion ban is a ‘witch hunt against poor women.’ And the costs of clandestine abortions are considerable. According to PAHO, half of all maternal deaths are due to unsafe abortions, mostly in countries were abortion is illegal.[xxix]

Barriers to abortions only serve to fuel clandestine and dangerous practices. In order to reduce the number unplanned pregnancies and abortions, the only solution is therefore to provide contraceptive services which are legal and accessible to all economic classes. Establishing contraceptive services and improving its quality and availability, along with a stable support infrastructure especially for those with physical and psychological injuries, will significantly empower women and girls, enabling them to take control over their lives and bodies.  In the longer term, especially while the region remains blemished by stains of crime and violence, meeting the contraceptive needs of women will contribute significantly to empowerment and gender equity.

Conclusion: The Fight for Abortion Access

Abortion statutes in many Latin American countries remain ingrained and governed by patriarchal culture, along with the conservative forces of the Catholic Church ideology. Today, it is time to rectify these illiberal, out-dated laws. Not only must abortion be decriminalised, it is also crucial that states render abortion and contraceptive services safe and accessible. Abortion must be treated as a public health crisis, not a criminal matter.

Of course, the debate is one of much greater complexity and the provision of contraceptive services will only remedy the situation if other key empowerment tools, such as education and economic independence, are added to the formula. Reproductive health being a necessary precondition to a woman’s or girl’s autonomy, the provision of safe contraceptive and abortion services constitutes a critical dimension on the path to empowerment. Because of all this, any restriction on abortion that represses a woman’s or girl’s full enjoyment and exercise of their human rights, should be denounced.

Reproductive rights are central to achieving gender equality. ‘As women thrive, so will we all.’ (Secretary-General Ba Ki-moon, 2015).

 

[i] Chile’s President Bachelet proposes end to total abortion ban. (2015). BBC. [online] Available at: http://www.bbc.com/news/world-latin-america-31076838.

[ii]The World’s Abortion Laws. (2014). Center For Reproductive Rights. [online] Available at: http://worldabortionlaws.com/.

[iii] See e.g. KL v. Peru (United Nations Human Rights Committee). (2009). Center For Reproductive Rights. [online] Available at: http://www.reproductiverights.org/case/kl-v-peru-united-nations-human-rights-committee.

[iv] Ibid.

[v] Banning Abortion Endangers Women’s Health. (n.d.). Guttmacher Institute. [online] Available at: http://www.guttmacher.org/media/infographics/banning-abortion-endangers.html.

[vi] The World’s Abortion Laws. (2014). Center For Reproductive Rights. [online] Available at: http://worldabortionlaws.com/.

[vii] Girl, 10, raped by stepfather, denied abortion in Paraguay. (2015). The Telegraph. [online] Available at: http://www.telegraph.co.uk/news/worldnews/southamerica/paraguay/11575694/Girl-10-raped-by-stepfather-denied-abortion-in-Paraguay.html.

[viii] Ibid.

[ix] Ibid.

[x] Nicaragua: Latin America’s Teen Pregnancy Capital. (2015). Plan International. [online] Available at: https://plan-international.org/news/2015-08-04-nicaragua-latin-americas-teen-pregnancy-capital.

[xi] Rape victims struggle to get legal abortions in Argentina. (2012). Reuters. [online] Available at: http://www.reuters.com/article/us-argentina-abortion-idUSBRE89B16B20121012.

[xii] Pregnancy and Childbirth Still Kill Too Many Women in Latin America. (2015). Inter Press Service. [online] Available at: http://www.ipsnews.net/2015/05/pregnancy-and-childbirth-still-kill-too-many-women-in-latin-america/.

[xiii] Maternal mortality Fact sheet N°348. (2015). World Health Organization. [online] Available at: http://www.who.int/mediacentre/factsheets/fs348/en/.

[xiv] Ibid.

[xv] Motherhood In Childhood. (2013). UNFPA. [online] Available at: http://www.unfpa.org/sites/default/files/pub-pdf/EN-SWOP2013-final.pdf.

[xvi][xvi] Chile: Extreme anti-abortion law creates climate of fear and substandard health care for women. (2015). Amnesty International. [online] Available at: https://www.amnesty.org/en/latest/news/2015/09/chile-extreme-anti-abortion-law-creates-climate-of-fear-and-substandard-health-care-for-women/;

El Salvador and ‘Las 17’. (2015). Amnesty International. [online] Available at: https://www.amnesty.org/en/latest/news/2015/03/el-salvador-and-las-17/.

[xvii] (Indignation: Statistics on Sexual Violence in Nicaragua 2011: America/Nicaragua – Alarm for the phenomenon of forced pregnancies of young girls and adolescents. (2012). Fides. Available at: source

[xviii]El Salvador’s Las 17: the women jailed for 30 years for losing their babies by miscarriage. (2015). The Telegraph. [online] Available at: http://www.telegraph.co.uk/news/worldnews/centralamericaandthecaribbean/elsalvador/11412928/El-Salvadors-Las-17-the-women-jailed-for-30-years-for-losing-their-babies-by-miscarriage.html.

[xix] Marginalized, Persecuted, and Imprisoned. (2014). Center For Reproductive Rights. [online] Available at: http://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/El-Salvador-CriminalizationOfAbortion-Report.pdf.

[xx] El Salvador and ‘Las 17’. (2015). Amnesty International. [online] Available at: https://www.amnesty.org/en/latest/news/2015/03/el-salvador-and-las-17/.

[xxi] In El Salvador, a pregnancy complication followed by a prison sentence. (2015). Aljazeera. [online] Available at: http://america.aljazeera.com/articles/2015/4/22/in-el-salvador-a-pregnancy-complication-followed-by-a-prison-sentence.html; Chile’s President Bachelet proposes end to total abortion ban. (2015). BBC. [online] Available at: http://www.bbc.com/news/world-latin-america-31076838.

[xxii] In El Salvador, a pregnancy complication followed by a prison sentence. (2015). Aljazeera. [online] Available at: http://america.aljazeera.com/articles/2015/4/22/in-el-salvador-a-pregnancy-complication-followed-by-a-prison-sentence.html

[xxiii] Ibid.

[xxiv] Rape victims struggle to get legal abortions in Argentina. (2012). Reuters. [online] Available at: http://www.reuters.com/article/us-argentina-abortion-idUSBRE89B16B20121012.

[xxv] In El Salvador, a pregnancy complication followed by a prison sentence. (2015). Aljazeera. [online] Available at: http://america.aljazeera.com/articles/2015/4/22/in-el-salvador-a-pregnancy-complication-followed-by-a-prison-sentence.html

[xxvi] International abortion laws: The six nations where it is still illegal to have an abortion. (2015). The Independent. [online] Available at: http://www.independent.co.uk/life-style/health-and-families/international-abortion-laws-the-six-nations-where-it-is-still-illegal-to-have-an-abortion-10229567.html.

[xxvii] Banning Abortion Endangers Women’s Health. (n.d.). Guttmacher Institute. [online] Available at: http://www.guttmacher.org/media/infographics/banning-abortion-endangers.html.

[xxviii] Safe abortion: technical and policy guidance for health systems. (2012). World Health Organization. [online] Available at: http://www.who.int/reproductivehealth/publications/unsafe_abortion/9789241548434/en/.

[xxix] Pregnancy and Childbirth Still Kill Too Many Women in Latin America. (2015). Inter Press Service. [online] Available at: http://www.ipsnews.net/2015/05/pregnancy-and-childbirth-still-kill-too-many-women-in-latin-america/ [Accessed 22 Dec. 2015].

About Caroline Schupfer

Caroline Schupfer is a Law with French graduate from the University of Sheffield. She is a member of the Human Rights Committee at the Montréal Holocaust Memorial Centre and a volunteer at Projets Autochtones du Québec, a non-profit organisation which provides social and professional development services to aboriginal communities. Her research interests centre around transitional justice, green criminology and the protection of vulnerable groups.

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