Protegendo a saúde das m ulheres
Prom ovendo os direitos reprodutivos das mulheres
Rio de Janeiro, November 25th 2009
Melinda Ching Simon
Human Rights Officer
Women's Rights and Gender Unit
Office of the United Nations High Commissioner for Human Rights
Ave Giuseppe Motta 48, Office 2.06
UNOG CH 1211 Geneva 10
Switzerland
Fax: +41 22 917 9008
registry@ohchr.org
Ref: Information regarding Resolution 11/8 on Preventable maternal mortality
and morbidity and human rights
Dear Commissioner,
This document is intended to provide additional information on the situation of maternal
mortality and morbidity due to unsafe abortion in Brazil aiming to contribute to the
Office of the United Nations High Commissioner for Human Rights thematic study on
this regard.
Very sincerely,
Beatriz Galli
Policy Associate
1
Ipas Brazil
gallib@ipas.org
(55) (21) 2532-1930
Av.Presidente Wilson 165/1101
Castelo
Rio de Janeiro 20.030-020
Brazil
2
Protegendo a saúde das m ulheres
Prom ovendo os direitos reprodutivos das mulheres
Effects of abortion criminalization in Brazil: lack of access, lack of good quality of
health care and increased risk of morbidity and maternal mortality
Beatriz Galli, Ipas Brasil
Maternal mortality as one of the main causes of women’s premature death and
disablement in developing countries indicates a severe picture of multiple violations of
women’s human rights. In a society where maternity is utterly valued, but high rates of
maternal deaths due to preventable causes are contradictorily accepted, it is imperative
to seriously consider the “challenge of breaking up with the culture of naturalization of
maternal death, that sees this kind of death as a natural event and a part of women’s
inexorable fate, instead of detecting a serious violation of human rights” 1 .
Since 1990 the Brazilian government has endeavored to reduce maternal death rates,
which according to the Health Ministry are currently estimated at 54 deaths per 100,000
live births.
2
According to Lago, there is no decline on maternal mortality rates from
1996 to 2006.3 The conditions in most regions are half way between the African
countries with precarious healthcare access, and the ones in more developed countries.
On the other side, the South and Southeastern Regions present better levels of statistical
records and quality healthcare. 4
In Brazil, maternal morbid-mortality risks vary according to geographic regions,
race/ethnic groups and social-economic situation. In 2009, the CESCR expresses its
1
Mortalidade Materna e direitos humanos: as mulheres e o direito de viver livre de morte materna
evitável (Maternal Mortality and human rights: women and the right to live free from preventable
maternal death). Maria Beatriz Galli (coord.), Flávia Piovesan, Valéria Pandjiarjian. Rio de Janeiro:
ADVOCACI, 2005, p. 14
2
Health Ministry, Health Vigilance Secretary, Brasilia: Health in Brazil,2006.
3
Lago T., Panorama da Mortalidade Materna: desafios persistentes, Seminar Maternal Mortality and
Human Rights Report May 27-28 2009, available at www.ccr.org.br.
4
Valongueiro S., Mortalidade Materna em Pernambuco, Brasil: o que mudou em dez anos? (“Maternal
Mortality in Pernambuco, Brazil: what changed in ten years?”) Reproductive Health Matters 2007; 15
(30):134-144.
3
concern on Brazil in the sense “that maternal mortality rates remain extremely high and
that the risk of maternal death disproportionately affects marginalized communities,
particularly Afro-Brazilians, indigenous women and women from rural areas. Maternal
mortality in Brazil indicates omission and lack of diligence by the State, since the
majority of maternal deaths in the country result from causes that can be prevented
inside health centers.5”
Unsafe abortion: Violations of the right to life, the right to liberty and security of
the person, the right to equality and non-discrimination and the right to health in
Brazil
Abortion is a major public health and human rights issue in Brazil. Despite the Penal
Code’s criminalization of abortion, an estimated 1,054,243 abortions occur annually.6
Unsafe abortion ranks among the main causes of maternal mortality. The link between
illegal abortion and maternal mortality has been increasingly acknowledged by
researchers and a consensus is emerging among policy makers and health providers that
providing access to safe, legal abortions reduces maternal mortality. 7 The practice of
unsafe abortion is directly related to the high incidence of maternal mortality in Brazil.8
Brazil’s social inequalities are reflected in women’s inability to access safe reproductive
health care.9 Low-income women of Afro descent with little education and poor access
to family planning services are most likely to die or suffer from complications due to
unsafe abortions. A recent report reveals that 100 percent of maternal mortality resulting
from unsafe abortion in Recife and Petrolina in 2005 could have been prevented had
GALLI, M.B. A Human Rights Approach to Maternal Mortality in Brazil, 2002. Master’s Degree
Thesis, Law College, Toronto University, Toronto, Canadá. 2002.
6
Adesse, Leila e Monteiro, Mario. 2007. Magnitude do aborto no Brasil: aspectos epidemiológicos e
sócio-culturais. IPAS Brasil/IMS/UERJ.
7
Ministério da Saúde. 2005. Norma Técnica para Atenção Humanizada ao Abortamento, Ministério da
Saúde. Brasília, Ministério da Saúde.
8
In the northeast city of Salvador, the capital of Bahia, abortion is the leading cause of maternal
mortality. At the same time, unsafe abortion ranks as the third cause of maternal mortality in the city of
São Paulo. Ministério da Saúde. 2005. Norma Técnica para Atenção Humanizada ao Abortamento,
Ministério da Saúde. Brasília, Ministério da Saúde.
9
Ministério da Saúde. 2005. Norma Técnica para Atenção Humanizada ao Abortamento, Ministério da
Saúde. Brasília, Ministério da Saúde.
5
4
safe abortion care been available.10 Approximately 250,000 women are treated annually
in Brazilian hospitals for complications arising from unsafe abortions.11
Women of color especially suffer a greater proportion of deaths due to easily
preventable pregnancy-related causes, such as edema, proteinuria, hypertensive
disorders, problems during childbirth and in the puerperium, and unsafe abortions. In
Brazil, in comparison with white women, black women’s mortality risks from these
causes are approximately three times greater.12
The Brazilian government has ratified the main international treaties on human rights,
within the United Nations’ spectrum, which can be applied to the context of sexual and
reproductive health.13 Moreover, the Brazilian government has ratified the main
international treaties within the Inter-American System of Protection of Human
Rights.14 The Brazilian government also adheres to international consensus documents
which resulted from International Conferences, which include references to the
government’s obligations concerning sexual and reproductive health.15
Among government’s effort to reduce maternal mortality and morbidity is the launching
in March 2004 of the National Pact for the Reduction of Maternal and Neonatal
10
Ipas Brazil, Curumim, CFEMEA and IMS/UERJ, The Reality of Unsafe Abortion in Pernambuco
report, 2008, forthcoming.
11
Ministério da Saúde. 2005. Norma Técnica para Atenção Humanizada ao Abortamento, Ministério da
Saúde. Brasília, Ministério da Saúde.
12
Monteiro M., Black women and maternal mortality in Brazil, , Seminar Maternal Mortality and Human
Rights Report May 27-28 2009, available at www.ccr.org.br.
13
The International Covenant on Civil and Political Rights (ICCPR), the International Covenant on
Economic, Social and Cultural Rights (ICESCR), the Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW), the Covenant for the Elimination of all Forms of Racial
Discrimination (CERD), the Convention on the Rights of the Child (CRC) and the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
14
The American Convention on Human Rights, the Inter-American Covenant to Prevent and Punish
Torture, the Inter-American Convention on the Prevention, Punishment and Eradication of Violence
against Women (Convention of Belém do Pará), the Inter-American Convention on Human Rights in the
area of Economic, Social and Cultural Rights – Protocol of San Salvador, and also recognized the
competence of the Inter-American Court of Human Rights.
15
The main ones are: the Program of Action of the International Conference on Population and
Development (1994), the World Development Summit (1995), the Platform for Action from the IV World
Conference on Women (1995), the Special General Assembly of the United Nations on the International
Conference on Population and Development (1994), the Resolution of the Declaration of the Millennium
of the United Nations adopted by the General Assembly (2000).
5
Mortality. Despite these efforts, women are still facing morbidity and dying due to
preventable maternal mortality causes, such as unsafe abortion.
With regard to these different regional realities in the country, in May 2003 the
Committee on Economic, Social and Cultural Rights expressed its concern about the
high ratio of maternal mortality due to illegal abortions, especially in the North region
where women have poor access to the public health system apparatus. (Paragraph
27 – emphasis added). The Committee recommended that the State take legislative and
other measures, including revision of its current legislation, in order to protect women
from the effects of unsafe and illegal abortions and to guarantee that they do not need to
resort to such procedures.
The CEDAW Committee also expressed in 2007, Paragraph 29: “The Committee is
further concerned at the high number of unsafe abortions, the punitive provisions
imposed on women who undergo abortions and the difficulties in accessing care for the
management of complications arising as a result.”16
Brazil has an advanced legal framework for the protection of the right to health, with
rules and standards of the SUS, to guide its main reproductive health policies.17 The
Constitution regulates the right to health and protection of motherhood in the section on
social rights.18
The supervisory and monitoring UN bodies have expressed their concern about unsafe
abortion. For example, General Comment28 of the Human Rights Committee states that
women’s right to life implies States’ duty to take measures to keep them from having to
16
CEDAW Comittee , CEDAW/C/BRA/CO/6, 2007
http://www.un.org/womenwatch/daw/cedaw
17
Article 8 of the Federal Constitution states that: “Everyone is equal according to law, without any
whatsoever distinction, and it is warranted to any Brazilian and foreigners residing in Brazil the inviolable
right to life, to liberty, to equality, to security and to property”. : I – men and women are equal as to
rights and obligations, under the terms of this Constitution; (...). III-nobody will be submitted to neither
torture nor inhuman or degrading treatment; (...); XLI – the law will punish any discrimination against
the fundamental rights and liberties. ““.
Article 6. “The following are considered social rights: education, health, employment, leisure,
security, social security, protection of maternity and infancy, assistence to the abandoned,in the form of
this Constitution.” Article 196 states that „everyone has the right to health and it is the State’s
resposibility, by warrnting social and economic policies, the reduction of the risk of diseases and other
injuries and the universal and equalitarian access to actions and services for its promotion, protection
and recovery.”
18
6
resort to clandestine and unsafe abortions which put their health and lives at risk,
especially poor and ethnic minority women.
Article 12(1) of the CEDAW Convention establishes the State’s responsibility to “take
all appropriate measures to eliminate discrimination against women in the field of
health care in order to ensure, on a basis of equality of men and women, access to health
care services, including those related to family planning.”
Article 2 of CEDAW Convention establishes that countries must abolish penal
provisions which entail discriminatory criminalization of women, such as those which
criminalize abortion and consequently violate women’s right to health without
discrimination. The CEDAW Committee’s General Recommendation 24, paragraph
31(c), establishes that: “When possible, legislation criminalizing abortion should be
amended, in order to withdraw punitive measures imposed on women who undergo
abortion.”
The detrimental effects of unsafe abortions imply that an entirely preventable health
problem has become one of the top five causes of women’s pregnancy-related deaths in
Brazil.19 In addition, the percentage distribution of mortality due to abortion
complications shows that their negative impact is greater on women of certain races:
white women: 7.62%; black women: 14.19%; and women of mixed race: 11.04%.20
The illegality of these procedures means that women feel constrained and fearful to
access health services to treat eventual complications; this in turn means that the
phenomenon is under-reported. Contrastingly, however, cases have also occurred in
which health-care providers have reported women suspected of having an induced
abortion to law enforcement authorities. In some instances, women have subsequently
been reported to the police and in few cases imprisoned.21
On April 13, 2007, police in the central-western Brazilian state of Mato Grosso do Sul
raided a family planning clinic and confiscated the medical records of nearly ten
thousand women who have been under investigation. The state further violated
19
Research on mortality among women aged 10-49 years, with an emphasis on maternal mortality. Draft
Final Report Draft. Ministry of Health, Brasília, DF, 2006.
20
Ministry of Health/Secretary of Health Watch/Brazilian Health 2005; http://tabnet.datasus.gov.br
21
Report on Maternal Mortality and Human Rights, ADVOCACI, 2005. See also Abortion prosecutions
in Brazil: Denial of Women’s Reproductive Rights in Mato Grosso do Sul, available at www.ipas.org.br
7
women’s right to privacy in this case by publicly exposing information obtained
through the seized medical files.22
Access to abortion in cases permitted by law is not available equally throughout the
country. In 2008 just over 3,000 legal abortions were registered; this is a significant
increase from previous years.23 According to expert medical opinion and statistical
estimates, far fewer legal abortions are registered in Brazil than would be expected for a
country of its size.24 Brazil has a population of almost 200 million.
Research by Ipas Brazil in 2006 in a referral center in Rio de Janeiro found that among
40 physicians working at the specialized service to respond to sexual violence , only
two female doctors did perform legal abortions, or abortion allowed by existing
legislation. Sometimes patients had to wait at the hospital until a shift change as none of
the doctors on duty would carry out the procedure. This situation led to some women to
leave the service without obtaining a legal abortion. Clearly, the use of conscientious
objection is leading toward the violation of women’s rights to be treated without
discrimination, to self-determination, to freedom and personal safety.25
In Article 12.2, CEDAW stipulates that the State must take necessary measures to
eliminate discrimination against women in order to guarantee their access to health-care
services based on equal rights between men and women. In Brazil, the human right to
equality and non-discrimination in accessing health-care services has not yet been
reasonably guaranteed as shown by data on maternal morbidity and mortality; this is
particularly true for women belonging to certain social groups such as those of African
heritage, adolescents and women living in the poorer regions of the country.
Human Rights Watch has issued a statement on this case expressing concern that: “Safeguarding these
and other human rights is the way to ensure that women get access to the healthcare services they need to
enjoy the highest possible standard of health and well-being. Seizing medical records illegally,
intimidating patients, and threatening women with punishment for having sought medical services is not
only a violation of the basic human rights of those women of Mato Grosso do Sul, but an affront to the
basic dignity and humanity of women everywhere.”Human Rights Watch, Media Advisory, Brazil:
Abortion is a Human Right’s Issue, June 18, 2008.
23
Last year there was 43% increase in the number of legal abortions provided in the Universal Health
System (SUS). In 2008 hospitals provided 3,053 abortions, Jornal Zero Hora, No. 15915, March 22,
2009, http://tinyurl.com/q39qdb.
22
Heimburger A., “Brazil’s Mornings After,” The Huffington Post,
http://www.huffingtonpost.com/angela-heimburger; posted February 25, 2009.
25
Galli B.& Gomes E., Representações dos profissionais de saúde em relação ao aborto:entre direitos e
deveres na atenção, International Seminar Fazendo Gênero 7, Florianópolis, agosto 2006.
24
8
Final Considerations
Considering the challenges presented in most Latin-American countries regarding the
high prevalence of unsafe abortion and related morbidity and mortality, and the
conservative challenges in the Brazilian Congress to impede any efforts to expand legal
indications for abortion or reform the current criminal legislation, we hope that the High
Commissioner for Human Rights will adopt and strengthen the CEDAW and CSECR
Committees’ previous recommendations asking the Brazilian government to initiate
necessary reforms of the current abortion law so as to protect women’s rights to equality
and non-discrimination, the right to liberty and security of the person, the right to life
and the right to health.
9