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September 28, 2019

On International Sexual and Reproductive Rights Day, the Justice Studies Center of the Americas (JSCA) affirms the importance of recognizing and protecting these rights in every country in the Americas without exception. We believe that the violation of these rights affects individuals’ dignity and health, particularly that of all women who face restrictions on access to information and the full exercise of their freedoms. This is a day for making statements about and reflecting on our justice systems and their legislation and practices. It is also a day for remembering that our work must be based on efforts to promote a more just region in order to benefit all people.

We at JSCA form part of the commitment made by the countries and agencies of the international community. This text highlights the main legal frameworks and instruments.

Voluntary interruption of pregnancy is part of sexual and reproductive rights. Though there is no specific binding instrument related to these rights, they are included in others, such as personal freedom, private and family life, human dignity and the prohibition against torture. As such, they are protected under the International Covenant on Economic, Social and Cultural Rights, the International Pact on Civil and Political Rights and the 1984 Convention against Torture.

The International Conference on Population and Development established that sexual and reproductive rights are based on the recognition of individuals’ basic right to freely and responsibly make decisions regarding the number of children they wish to have and the timing of their births, along with their right to have information and the means to access it and to enjoy the highest level of sexual and reproductive health. The latter concept is understood as the general state of physical, mental and social wellbeing in all aspects related to the reproductive system and its functions and processes. It thus also involves the capacity to enjoy a satisfactory sex life without the risk of procreation and the freedom to decide whether or not to engage in it and how frequently to do so.   

However, this right is not recognized for all women in many places around the world. UN experts have stated that restrictions on access to safe abortion are the result of social concepts that do not recognize women as equal subjects of law. Abortion is criminalized in many countries and strongly limited in many others.[1]

This has led to pronouncements such as General Recommendation 35 of the 2017 CEDAW Committee, which categorically states that typifying abortion as a crime, denying or delaying the provision of safe abortion and subsequent care, forced continuation of pregnancy and mistreatment of women and girls who seek information are forms of gender violence that can constitute torture or cruel, inhumane or degrading treatment.

The situation is even more concerning in Latin America and the Caribbean, where the state of legislation on the subject, statistics on mortality due to unsafe abortions and the criminalization of women suspected of having abortions create a landscape of systemic violation of women’s sexual and reproductive rights:

  • Abortion is only legal in 3 of the 49 countries in Latin America: Cuba, Uruguay and Guyana.[2]
  •  Interrupting a pregnancy is illegal in all cases in the Dominican Republic, Haiti, El Salvador, Honduras, Nicaragua and Suriname.[3]
  • The Criminal Code of Honduras establishes that women who cause or consent to an interruption of their pregnancy may be sentenced to 3 to 6 years in jail. By law, they do not have access to emergency contraception.[4]
  • Decree No. 2848, which reinforces the Criminal Code of Paraguay, states that abortion is an attack on the good morals of the country and goes against moral sense.[5]
  • In El Salvador, the crime of abortion carries a sentence of 2 to 8 years in prison. However, it is common for prosecutors to charge women who suffer miscarriages or whose fetuses are stillborn with aggravated homicide, carries a sentence of up to 40 years in prison.[6]
  • Chile has decriminalized abortion in three types of cases and instituted strong protections for professionals’ conscientious objections. Nearly 50% of obstetricians who work in the public health system identify as conscientious objectors in cases in which the patient seeks an abortion following a rape.[7]

The main argument for legally consecrating the prohibition of abortion is a supposed protection of the embryo or fetus, which is considered to be a human being and thus deserving of the right to life, which would take precedence over the mother’s right to health, integrity and self-determination. The Inter-American Court of Human Rights clarified the protected status of the fetus in light of the American Convention on Human Rights in the “Artavia Murillo v. Costa Rica” ruling, establishing the following:

  • The Court determined that “conception” cannot be understood as a moment or process exclusive of the woman’s body and found that the term “conception” is understood as beginning when the fertilized egg is implanted.[8]
  • It established that the analysis of the expression “all people” in the various articles of the Convention does not justify the argument that an embryo has or exercises the rights consecrated in each one of those articles. In fact, in regard to Article 4.1 of the Convention, one can conclude that the direct object of protection is fundamentally the pregnant woman given that the defense of the fetus is essentially achieved through the protection of the woman.

NOTES

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