Abortion in Brazil
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Abortion in Brazil is a crime, with penalties of 1 to 3 years of imprisonment for the pregnant woman, and 1 to 4 years of imprisonment for the doctor or any other person who performs the abortion on someone else. In three specific situations in Brazil, induced abortion is not punishable by law: in cases of risk to woman's life; when the pregnancy is the result of
rape Rape is a type of sexual assault usually involving sexual intercourse or other forms of sexual penetration carried out against a person without their consent. The act may be carried out by physical force, coercion, abuse of authority, or ...
; and if the fetus is
anencephalic Anencephaly is the absence of a major portion of the brain, skull, and scalp that occurs during embryonic development. It is a cephalic disorder that results from a neural tube defect that occurs when the rostral (head) end of the neural tube fail ...
. In these cases, the
Brazilian government The politics of Brazil take place in a framework of a federal presidential representative democratic republic, whereby the President is both head of state and head of government, and of a multi-party system. The political and administrative o ...
provides the abortion procedure free of charge through the ''
Sistema Único de Saúde The ''Sistema Único de Saúde'' (, ''Unified Health System''), better known by the acronym SUS, is Brazil's publicly funded health care system. Created in 1989, the SUS is the largest government-run public health care system in the world, by nu ...
'' (Unified Health System). This does not mean that the law regards abortion in these cases as a right, but only that women who receive abortions under these circumstances, and the doctors, will not be punished. The punishment for a woman who performs an
abortion Abortion is the termination of a pregnancy by removal or expulsion of an embryo or fetus. An abortion that occurs without intervention is known as a miscarriage or "spontaneous abortion"; these occur in approximately 30% to 40% of pre ...
on herself or consents to an abortion performed by another outside these legal exceptions is one to three years of detention.Brazilian Criminal Code
(in Portuguese), art. 124.
The base penalty for a third party that performs an illegal abortion with the consent of the patient, ranges from one to four years of detention, with the possibility of increase by a third if the woman comes to any physical harm, and can be doubled if she dies.
(in Portuguese), arts. 125 and 127.
Criminal penalties fixed at four years or less can be converted to non-incarceration punishments, such as community service and compulsory donation to charity.
(in Portuguese), arts. 43 and 44.
Brazil Brazil ( pt, Brasil; ), officially the Federative Republic of Brazil (Portuguese: ), is the largest country in both South America and Latin America. At and with over 217 million people, Brazil is the world's fifth-largest country by area ...
is a signatory of the American Human Rights Convention, also called the Pact of San José. The Convention grants the right to life to human embryos, "in general, from the moment of conception", and has a legal status on a par with the
Constitution A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed. When these princ ...
in
Brazilian Law The law of Brazil is based on statutes and, partly and more recently, a mechanism called ''súmulas vinculantes''. It derives mainly from the civil law systems of European countries, particularly Portugal, the Napoleonic Code and the Germanic l ...
. The Civil Code of Brazil also provides rights to fetuses and embryos. In a 2008 case, however, the Supreme Federal Court ruled, by a 6–5 vote, that the right to life applies only to
intrauterine The uterus (from Latin ''uterus'', plural ''uteri'') or womb () is the organ in the reproductive system of most female mammals, including humans that accommodates the embryonic and fetal development of one or more embryos until birth. The uter ...
embryos, and that frozen embryos not eligible to a uterus transfer do not hold
fundamental rights Fundamental rights are a group of rights that have been recognized by a high degree of protection from encroachment. These rights are specifically identified in a constitution, or have been found under due process of law. The United Nations' Susta ...
and may be used for research purposes. In 2012, the Supreme Court also authorized the abortion of anencephalic fetuses. On November 29, 2016, the Supreme Court in Brazil ruled in a non-binding decision that "abortion should not be a crime when performed in the first three months of pregnancy". This ruling was controversial, due to the fact that the Brazilian government had passed a bill earlier in 2016 which aimed to make Brazilian law on abortion even stricter.


History

Abortion was criminalized in all circumstances in the penal code from 1890. In 1940, the penal code provisions on abortion waived punishment on abortion in the case of rape or incest, or if the pregnant women's life was in danger. A presidential decree in 1941, as amended in 1979, banned the advertising of a process, substance, or object designed to prevent pregnancy or cause an abortion.


Statistics

The number of clandestine abortions taking place in Brazil is a controversial subject which divides anti-abortion and
abortion rights Abortion-rights movements, also referred to as pro-choice movements, advocate for the right to have legal access to induced abortion services including elective abortion. They seek to represent and support women who wish to terminate their pre ...
activists. A study published by the
International Journal of Women's Health The ''International Journal of Women's Health'' is a peer-reviewed healthcare journal focusing on all aspects of women's health care, including obstetrics, gynecology, and breast cancer. The editor-in-chief is Elie D. Al-Chaer (University of Arkan ...
in 2014, estimated that in Brazil about 48 thousand clandestine abortions occurs annually. Abortion rights institutes like Anis - Bioethics Institute, however, estimate a much higher number. More recent studies published in the International Journal of Gynaecology and Obstetrics suggest that, despite Brazil's severe legislation, 500,000 illegal abortions are estimated to occur every year among women aged 18–39 years – or one in five Brazilian women.


Impact to women's health

In 2010, it was reported that 200,000 women a year were hospitalized for complications due to abortion (which includes both miscarriages and clandestine abortions). More recent figures estimate that around 250,000 women are hospitalized every year due to illegal abortion complications, or 50% of all illegal abortions estimated per year. Those figures contrast with 2–5% of women requiring medical care after an abortion in countries where abortion is legal. The majority of women admitted at hospital after an illegal abortion are uninsured, representing a government cost of more than US$10 million every year. More than 200 women die every year in Brazil, as a direct consequence of unsafe abortions. The prevalence of reproductive complications and other negative health consequences associated with illegal abortion is unknown.


Methods

In a 2005 survey, one third of the Brazilian doctors who reported having performed abortions, used
dilation and curettage Dilation (or dilatation) and curettage (D&C) refers to the dilation (widening/opening) of the cervix and surgical removal of part of the lining of the uterus and/or contents of the uterus by scraping and scooping (curettage). It is a gynecolog ...
. They have little experience with
vacuum aspiration Vacuum or suction aspiration is a procedure that uses a vacuum source to remove an embryo or fetus through the cervix. The procedure is performed to induce abortion, as a treatment for incomplete spontaneous abortion (otherwise commonly known as ...
but they are aware of it as a method. They have a general awareness of
medical abortion A medical abortion, also known as medication abortion, occurs when drugs (medication) are used to bring about an abortion. Medical abortions are an alternative to surgical abortions such as vacuum aspiration or dilation and curettage. Medical ...
using
misoprostol Misoprostol is a synthetic prostaglandin medication used to prevent and treat stomach and duodenal ulcers, induce labor, cause an abortion, and treat postpartum bleeding due to poor contraction of the uterus. Misoprostol is taken by mouth w ...
(Cytotec) or other prostaglandins to induce abortion but less experience with it. Few know of newer and more effective regimens using
mifepristone Mifepristone, also known as RU-486, is a medication typically used in combination with misoprostol to bring about a medical abortion during pregnancy and manage early miscarriage. This combination is 97% effective during the first 63 days of ...
or methotrexate. The 2005 survey also found considerable ignorance of Brazil's law on abortion, with only 48% of the physicians knowing that it is legal to save a woman's life and widespread confusion about fetal age limits. An earlier survey found that two-thirds of Brazilian OB-GYNs incorrectly believed that a judicial order is required to obtain a legal abortion and only 27% knew that the woman needed to make a written request to obtain a legal abortion. Those doctors cannot give accurate information to their patients. In non-hospital settings, women's folk medicine allegedly brings on the menstrual flow rather than causing an abortion. "Two folk medical conditions, "delayed" (atrasada) and "suspended" (suspendida) menstruation, are described as perceived by poor Brazilian women in Northeast Brazil. Culturally prescribed methods to "regulate" these conditions and induce menstrual bleeding are also described, including ingesting herbal remedies, patent drugs, and modern pharmaceuticals." Some women, if financially able, will travel abroad to have abortions, with Cuba, Mexico, Guyana, Aruba, Curacao, French Guiana, and the United States being some of the countries women travel to.


Public opinion

. In a survey made in
Ribeirão Preto Ribeirão Preto (Portuguese pronunciation: ibejˈɾɐ̃w ˈpɾetu is a municipality and a metropolitan area located in the northeastern region of São Paulo state, Brazil. Ribeirão Preto is the eighth-largest municipality in the State wit ...
(SP) in 2004, 70% of the Brazilian doctors responded that they didn't support the decriminalization of abortion in the country. The survey also suggested that 77% of the doctors of this region rejected the opinion that abortion should be carried out solely because of the woman's desire. Furthermore it suggested that 82.5% of these doctors also reject the legalization of abortion due to socioeconomic difficulties. Finally, in the case of a possible legalization, only 17.5% of them would agree to carry it out professionally. A March 2007 Datafolha/''
Folha de S.Paulo ''Folha de S.Paulo'' (sometimes spelled ''Folha de São Paulo''), also known as simply ''Folha'' (, ''Sheet''), is a Brazilian daily newspaper founded in 1921 under the name ''Folha da Noite'' and published in São Paulo by the Folha da Manhã c ...
'' poll found that 65% of Brazilians believe that their country's current law "should not be modified", 16% that it should be expanded "to allow abortion in other cases", 10% that abortion should be "decriminalized", and 5% were "not sure". Another poll on this issue was made in December 2010, by the polling institute
Vox Populi ( )Vox Populi
. Oxford Diction ...
. This study revealed that 82% of Brazilians consider that the current law on abortion should not be modified, while 14% consider that abortion should be decriminalized, and 4% declare to have no position on the matter. In case of fetuses with microcephaly caused by
Zika Zika fever, also known as Zika virus disease or simply Zika, is an infectious disease caused by the Zika virus. Most cases have no symptoms, but when present they are usually mild and can resemble dengue fever. Symptoms may include fever, red ...
virus, 58% of the population expressed opposition. Following the impeachment of former leftist President Dilma Rousseff, A survey of the Instituto Patricia Galvão, in 2017, showed that 62% of Brazilians opposed the idea of the legalization of abortion, while 26% supported the measure, another 10% could not answer. The opinion polls carried out by the Paraná Research Institute in the same year also concluded that 86.5% of Brazilians were against the decriminalization. According to the
Ibope The Brazilian Institute of Public Opinion and Statistics (IBOPE based on the Portuguese language name, Instituto Brasileiro de Opinião Pública e Estatística) does market research to provide information regarding Brazilian and Latin American mark ...
(largest research institute in Brazil), in 2018, eight out of ten Brazilians oppose legalization. In a survey conducted in 2018, by the Datafolha Institute, 41% of Brazilians declared themselves in favor of a complete ban on abortion, 34% said they wanted to keep the legislation as it is, 16% said that they wanted to expand it to more situations and only 6% said they were in favor of legalizing abortion under any circumstances. The anti-abortion view is also followed by the majority of federal deputies, which makes it virtually impossible to attempt to legalize abortion through the Legislative Branch. All of this has led the small group of abortion supporters to appeal to the Supreme Court, claiming that criminalization of abortion, "violates fundamental human precepts". In 2021, a survey conducted by PoderData found that 58% of Brazilians are against the legalization of abortion in Brazil; those who are favorable of legalization add up to 31%. Another 11% did not know or did not respond. Another survey conducted in 2021 by Paraná Pesquisas, however, found that 79% of Brazilians remain against the legalization of abortion, and only 16.6% are favorable to it. In all the surveys carried out, in general, Brazilians are considered one of the peoples least in favor of legalizing abortion. Currently, Brazil is the biggest country in the world to ban abortion in the name of the recognition of the rights of the unborn.


Excommunication controversy

In March 2009, after an abortion on a nine-year-old girl raped by her stepfather and pregnant with twins had been performed because of the rape exception clause in Brazil’s Penal Code, Archbishop
José Cardoso Sobrinho José Cardoso Sobrinho (born 30 June 1933, in Caruaru) is the Archbishop Emeritus of the Roman Catholic Archdiocese of Olinda e Recife in the Brazilian state of Pernambuco. He joined the Order of Our Lady of Mount Carmel in 1957 and was appo ...
of Olinda and Recife stated that automatic
excommunication Excommunication is an institutional act of religious censure used to end or at least regulate the communion of a member of a congregation with other members of the religious institution who are in normal communion with each other. The purpose ...
had been incurred by the girl's mother and the medical team. President Lula da Silva and Health Minister José Gomes Temporão decried his statement, and the
National Conference of Bishops of Brazil The National Conference of Bishops of Brazil (Portuguese: Conferência Nacional dos Bispos do Brasil, CNBB) brings together the Catholic Bishops of Brazil, as the Code of Canon Law, "jointly exercise certain pastoral functions on behalf of the fai ...
disowned it, saying that the mother was certainly not excommunicated and there was insufficient evidence to show that any member of the medical team was. The statement was criticized also on the Vatican newspaper by the President of the
Pontifical Academy for Life The Pontifical Academy for Life or Pontificia Accademia per la Vita is a Pontifical Academy of the Roman Catholic Church dedicated to promoting the Church's consistent life ethic. It also does related research on bioethics and Catholic moral the ...
. One of the doctors concerned said the controversy had drawn needed attention to Brazil's restrictive abortion laws.


Anencephaly exception

In July 2004, a Brazilian federal judge issued a preliminary ruling that waived the requirement for court authorization for abortions in cases of fetuses with
anencephaly Anencephaly is the absence of a major portion of the brain, skull, and scalp that occurs during embryonic development. It is a cephalic disorder that results from a neural tube defect that occurs when the rostral (head) end of the neural tube ...
. The Brazilian Council of Bishops lobbied against the ruling and the National Confederation of Healthcare Workers wanted to make the exception permanent. In October 2004, the full Brazilian Supreme Court convened and voted 7–4 to suspend the judge's ruling until the full tribunal had the opportunity to deliberate and rule on the matter. A 2005 study found that 53% of doctors had performed an abortion in the case of a severely deformed fetus, even though that was not allowed by Brazilian law without a court order. Doctors who thought that the law should be more liberal were more likely to have correct knowledge of abortion law and to be familiar with the abortion law regarding severe fetal malformations. On April 12, 2012, the Supreme Federal Court ruled by an 8–2 vote to legalize abortion in cases of fetuses with anencephaly, saying that children with anencephaly were biologically alive but that they were not a person, and therefore had no rights. The Catholic Church and Brazilian Pro-Life movements criticized the decision of the court, saying that even with a terminal illness, children with anencephaly also had the right to life.


See also

*
2009 Brazilian girl abortion case In 2009, a 9-year-old Brazilian girl was repeatedly raped by her stepfather and became pregnant with twins; the girl's mother helped her procure an abortion, and the pregnancy was terminated. José Sobrinho, a Catholic archbishop, said that th ...
*
Abortion by country Abortion laws vary widely among countries and territories, and have changed over time. Such laws range from abortion being freely available on request, to regulation or restrictions of various kinds, to outright prohibition in all circumstances ...
*
Abortion law Abortion laws vary widely among countries and territories, and have changed over time. Such laws range from abortion being freely available on request, to regulation or restrictions of various kinds, to outright prohibition in all circumstances ...


References

{{Abortion