Abortion as a human right: possible strategies in unexplored territory. (Sexual Rights and Reproductive Rights).

Abortion as a human right was the focus of the meeting "Aborto: Derechos de las mujeres frente a la conyuntura mundial" (Abortion: Women's Rights in Today's World) held in Rio de Janeiro, Brazil, December 4-12, 2001, by the Coordinating Committee of the September 28 Campaign for the Decriminalization of Abortion in Latin America and the Caribbean. Brazil's Rede Nacional Feminista de Satide, Direitos Sexuais e Direitos Reprodutivos (National Feminist Network for Health, Sexual Rights and Reproductive Rights) was the regional coordinator of the Campaign during the period 2000-2002. For the years 2003 to 2005, the campaign will be coordinated by the Centro de la Mujer Peruana "Flora Tristan" (Flora Tristan Peruvian Women's Center) in Lima, Peru.

During a roundtable on legal issues at this meeting, Susana Chiarotti, Regional Coordinator of the Comite Latinoamericano y del Caribe para la Defensa de los Derechos de la Mujer (CLADEM, Latin American and Caribbean Committee for the Defense of Women's Rights), offered a provocative presentation listing the challenges in addressing the abortion issue given the current terms of debate. The following summary of Ms. Chiarotti's original paper was prepared by Angela Freitas, sociologist and communications specialist from Brazil and past coordinator of the September 28 Campaign (2000-2002). This summary was prepared with the permission of Ms. Chiarotti and incorporates additional information provided by networks of groups in the region which act as focal points for the campaign.

Introduction

Women's struggle for the right to terminate an unwanted or mistimed pregnancy through access to safe, dignified abortion services is currently at a crossroads. Today, we need empowered actions based on effective strategies, permanent coordination of our efforts and a great deal of political will. Towards the end of the 1970s and through the early 1980s when the feminist movement unfurled this political banner, our discourse focused on criticizing the criminalization of abortion which leads to the inhumane treatment of women who have resorted to clandestine abortions. This approach led to a criticism aimed at governments for failing to fulfill their obligation to respect women's rights to life, liberty, and to control their own bodies, a perspective not yet explored by in formal jurisprudence.

But mounting a formal, legal challenge was (and is) impossible in such a limited period of time. Indeed, this did have an impact on the strategic decision of the women's movement to address the issue of abortion as a public health problem. Despite a lack of official data on clandestine abortion, estimates for Latin America and the Caribbean indicate that consequences from unsafe abortions are one of the leading causes of maternal mortality and morbidity.

Today, the women's movement stands out among a wide range of social actors working on a democratic project for national and global development whose agenda focuses on the World Social Forum. Bringing the issue of abortion to this arena might be understood as an attempt to restate the issue of abortion more vigorously as a problem of social justice and women's rights--the right to make free and autonomous decisions about their sexuality and reproduction- and to demand legislative changes that would reflect this recognition. In her presentation, entitled "Estrategias para la Despenalizacion del Aborto desde el Marco Legal a la Luz de la Conyuntura Mundial" (Strategies for the Decriminalization of Abortion within the Legal Framework in the Current World Situation), Susana Chiarotti examines the difficulties in addressing the issue of abortion within the current terms of debate, stressing that women are designing strategies based on a discourse that does not belong to us.

The "Public Health" Argument: An Anachronism 

Bearing in mind the regional trends of legislative changes with the symbolic power to block or, on the contrary, to promote the liberalization of abortion--such as the criminal treatment of abortion or the laws that protect "the unborn"--Chiarotti explains the importance of taking into consideration certain elements of the current political situation and the roles various actors are playing in it.

This era of the redefinition of the model of the State--the result of the neoliberal reform of the economy and the reduction of the responsibilities and attributions of government--has been permeated by a crisis of governability, with the accompanying loss of legitimacy of the political system, both State institutions and political actors, especially political parties, are discredited. Nonetheless, in almost all countries, traditional parties continue to hold power.

The rift between civil society and the political system is due to high levels of political exclusion affecting most of the population accompanied by a growing demand for democratization, especially by new political actors, such as the movements of women, indigenous peoples, African-descendant peoples and environmentalists. On the other hand, the hierarchy of the Catholic Church also has increased its influence and plays an important role in mediating certain conflicts, becoming an obligatory point of reference in the field of reproductive rights.

In this context, the issues linked to the broadening of sexual rights and reproductive rights are tinder boxes in the volatile terrain of internal political negotiation. In preparing an agenda, these issues are easy to postpone, trade off or negotiate away for others that seem more important. A political and cultural double standard operates in many sectors of our society. On the abortion issue, this double standard is particularly evident in the differences between public discourse or political practice and individual actions. People who publicly declare themselves against abortion may not find it so difficult to terminate a pregnancy when they themselves face an unwanted pregnancy. Thus, an aura of hypocrisy permeates the issue. Abortion is today a crucial issue both for women's reproductive rights and for governments that tend to crumble under the pressures of conservative sectors battling to keep abortion criminalized.

Trying to squeeze legitimate legal arguments for the decriminalization of abortion out of the public health paradigm may be a futile task. Even though this paradigm is a powerful instrument, today it tends to limit the scope of reproductive human rights and block the progress of concepts that justify reproductive self-determination. Chiarotti believes that it is inconsistent to rally around abortion as a public health problem in a context in which this procedure is criminalized since, in these circumstances, women will continue to resort to clandestine abortions.

Designing Strategies with an Alien Discourse

In order to think strategically about the issue of abortion, Chiarotti argues, the human rights paradigm must be used. However, great care must be taken to ensure that this perspective is not reduced to merely denouncing the abuses of women's rights (in this respect Chiarotti cites Alice Miller). (1) Rather, we must move towards positive declarations, which sets before us a series of concrete problems.

Women's sexuality and reproduction have been controlled for thousands of years. This control is one of the cornerstones of the holy books and codes of all monotheistic religions. Later, with the birth of the modern State, the separation of law and religion was not enough to prevent religious norms from influencing criminal and civil codes. In this sense, it is a great challenge to transform the repressive norms and the control mechanisms into a positive right.

Defending already legitimated rights is different from creating a new field of rights, which is currently the task of the women's movement in the arena of sexuality and reproduction. Sexual and reproductive rights are still not completely formulated, and Chiarotti stress that the characteristics, contents, scope and limitations of these rights have not yet been clearly outlined. Still taking place today, these legal changes--both national and international--remain isolated. They are "band-aids on a right that does not yet reflect the experiences and needs of women and others who do not fit the paradigm of the 'average' citizen." Our efforts in this field are either unsuccessful or are turned against us.

One example is the opinion of most judges in our region regarding laws against violence, which the women's movement have drafted, overseen, or monitored. "Legal aberrations;" "a confusion of legal interpretations with procedural matters;" "a mix of criminal law with civil law and family law" are some of the criticisms to which we are obliged to respond. As currently formulated, these laws will not solve our problems since they "leap from the public to the private, mix finances with the kitchen, politics with the bedroom. Law was not designed to examine the private realm ... but to consider sexuality as something that doesn't exist, except when privacy, the wall of silence, comes tumbling down."

In an attempt to deconstruct the symbols of the patriarchy, the women's movement is trying to modify the values that are inscribed in the same universe in which the patriarchy was forged. This results in an certain philosophical incongruence. "The normative discourse that we use to advance our complaints is steeped in Greco-Roman tradition, which was perfected with the creation of the Nation-States and the image of a social contract which does not include us." Chiarotti asserts that even though we are attempting to deconstruct the codes, the meanings, trying to change the symbols, even debunking all the meta-narratives of modernity (universal justice, universal peace, equality)--which according to Lyotard (2) make us exemplary postmodernists--we do not hesitate to jump on any modernist bandwagon in our fervor to legitimize our calls for action: "to pursue equality, liberty, the idea of progress towards a just and peaceful society with universal rights," etc. This "philosophical tossed salad" does not make our task of creating a discourse with clear precepts and precise terms any easier.

National Laws on Abortion: Maintaining the Status Quo 

The Comite Latinoamericano y del Caribe para la Defensa de los Derechos de la Mujer (CLADEM, Latin American and Caribbean Committee for the Defense of Women's Rights) undertook a diagnostic evaluation (3) of sexual rights and reproductive rights as part of the Campaign for the Inter-American Convention on Sexual Rights and Reproductive Rights. (4) In regards to abortion, this evaluation revealed the following trends in our region:

* Statistical data are still insufficient, and the estimates available are based on calculations from hospital admissions, which primarily include cases of legal abortion and only incorporate clandestine abortion in a very marginal fashion. In any case, these estimates give some idea of the "monstrous magnitude of the problem."

* The right to abortion as a reproductive right is not clearly defined in national laws; the evaluation reveals that abortion is assumed to be socially undesirable and not as a health problem that should receive appropriate care.

* Abortion, like sexual violence, is broadly and traditionally addressed in criminal law, and its incorporation into public policy is fairly recent.

Growing Conservatism. CLADEM's evaluation also found that the region does not demonstrate a trend towards the decriminalization of abortion, despite the fact that some countries have expanded legal justifications for abortion (i.e. rape), and others have decreased the punishment for resorting to abortion. On the contrary, there is a strong movement to turn back what rights we have already won, for example, by supporting the right to life of the unborn fetus.

Argentina, Bolivia, Colombia, Chile, Peru, Ecuador, Honduras, Guatemala, Costa Rica and Nicaragua have taken such steps in their Constitutions, civil law and/or codes on children and adolescents. Prisoners of their own fears, the ruling classes of these countries are trapped in a contradiction: even though they maintain the criminal status of abortion, they are required to gradually eliminate abortion as a cause of maternal mortality in keeping with the international commitments they have made.

International Instruments and the Issue of Abortion

Basic References

Bearing in mind the national and international challenges to the right to safe and legal abortion, especially the risk of backlash, Chiarotti highlights some tactical opportunities offered by the international human rights instruments. Chiarotti presents a table of reference of these instruments and the monitoring efforts of the UN Human Rights Committee, pointing out the paragraphs or articles that may be useful in defending the issue of abortion as a right.

Programmes of Action: Not Legally Enforceable

To varying degrees, different sectors of the women's movement took part in the international conferences that produced the Platforms or Programmes of Action. At the Vienna, Cairo and Beijing Conferences, tremendous effort was invested in negotiating the final texts of these documents that would define and recognize reproductive rights, some of which are directly related to abortion (see sidebar, p. 71).

While Chiarotti recognizes these gains, she also points out that by asserting that reproductive rights are based on "certain rights" already recognized in national laws and international documents (without mentioning international laws), the Cairo Programme of Action relegates reproductive rights to a vague realm. Are these "certain rights" civil and political rights that are immediately enforceable? Or are they social, economic and cultural rights which are more difficult to enforce? Are they some sort of hybrid of these two categories? Or a totally different type of right that we have yet to classify? The Cairo Programme of Action lists the components of reproductive rights but does not define them. By Chiarotti's standards, this task is left unfinished. In the Beijing Platform for Action, neither the definition of reproductive rights nor the description of the components of sexual rights are included in the chapter on human rights but rather are placed in the chapter on health.

Human Rights Treaties: Legally Enforceable

According to Chiarotti, reproductive rights are not defined in the international treaties on human rights that are obligatory. However, some components of reproductive rights have been included in two such treaties: the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

The Convention on the Rights of the Child (adopted in 1989 and in force since 1990) obliges States Parties "to develop preventive health care, guidance for parents and family planning education and services" (Article 24 f).

The CEDAW (adopted in 1979 and in force since 1981) mentions "safeguarding of the function of reproduction" (Article 11 f); "access to health care services, including those related to family planning" (Article 12); and "access to adequate health care facilities, including information, counselling and services in family planning" (Article 14.2 b). The CEDAW also guarantees women "the same rights [as men] to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights" (Article 16 e).

Other Important Instruments: The International Covenant on Civil and Political Rights and the Rome Statute

In force since 1976, the International Covenant on Civil and Political Rights is monitored by the UN Human Rights Committee. This Covenant protects most of the rights that are violated when abortion is criminalized, especially the right to life (Article 6) and the right to not be subjected to torture or to cruel, inhuman or degrading treatment or punishment (Article 7). In addition, in order to evaluate compliance with Article 7 of the Covenant, the Human Rights Committee must be provided with information on whether or not the States Parties provide access to safe abortions for women who become pregnant as the result of rape. Also, the Covenant requires that States Parties respect these rights without distinction of any kind, including religion.

The Rome Statute of the International Criminal Court (adopted in July 1998 and in force since July 2002) is a treaty that establishes, for the first time in the history of humanity, a permanent international criminal court, based on the adhesion or ratification of 60 States Parties. This is an important instrument for our cause because it incorporates the concept of forced pregnancy, an age-old practice that was finally recognized by the international community as a human rights violation and a war crime (as well as a gender-based crime since it affects only women). Taking into consideration the physical and psychological pain and suffering endured by women, the text of the Rome Statute defines forced pregnancy as torture committed with the intention of punishing, intimidating and discriminating against women. The Rome Statute includes forced pregnancy among those "grave crimes [that] threaten the peace, security and well-being of the world." However, pressure from conservative sectors resulted in the addition of a special clause to the definition of forced pregnancy as a crime against humanity which ensures that this definition will not affect national laws regarding pregnancy: "'Forced pregnancy' means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy" (Article 7, Para. 2, item f).

Advances in Jurisprudence

Gradually, CLADEM is undertaking the systematic monitoring of jurisprudence in UN Human Rights Committees with regard to those decisions affecting women's rights, including both the Recommendations or General Comments drafted by the members of these committees as well as the Final Observations directed at States Parties in reaction to the countries' periodic reports. These documents represent an "official interpretation of the contents of the treaties" and, as such, are of potential use. For example, many countries in our region have received recommendations from the Human Rights and CEDAW Committees that encourage them to revise their national legislation on abortion and to decriminalize abortion in the case of rape. Such reforms should be implemented during the four-year period between country reports; however, governments continue to ignore this requirement.

Chiarotti provides several examples in which the Human Rights and CEDAW Committees directly address reproductive autonomy in their General Recommendations.

Women's reproductive autonomy. On "Equality in marriage and family relations": "... Decisions to have children or not, while preferably made in consultation with spouse or partner, must not nevertheless be limited by spouse, parent, partner or Government" (Committee on the Elimination of Discrimination against Women, General Recommendation No. 21/ 13th session, 1994).

Against laws applying only to women. Interpreting CEDAW's Article 12 on women and health: "Other barriers to women's access to appropriate health care include laws that criminalize medical procedures only needed by women and that punish women who undergo those procedures" (Committee on the Elimination of Discrimination against Women, General Recommendation No. 24/20th session, 1999). This means that the Penal Codes of the States Parties should not criminalize medical procedures applicable solely to women.

Condemnation of the practice of granting special privileges to Catholic institutions. Monitoring the International Covenant on Civil and Political Rights (CCPR), the Human Rights Committee made observations regarding a number of Latin American countries. In the case of Argentina, the Committee indicated that national subsides for Catholic schools violate the article on freedom of religion, since these subsidies privilege those of one particular faith to the detriment of those of other faiths and those who belong to no religion.

On the criminalization of abortion in cases of rape. The Human Rights Committee "... is also concerned that abortion gives rise to a criminal penalty even if a woman is pregnant as a result of rape and that clandestine abortions are the main cause of maternal mortality. These provisions not only mean that women are subject to inhumane treatment but are possibly incompatible with Articles 3, 6 and 7 of the Covenant" (Concluding Observations of the Human Rights Committee: Peru, 18/11/96, CCPR/C/79/ Add.72).

Concern regarding high number of suicides of pregnant adolescents. "The Committee expresses its concern about the very high number of suicides of young females referred to in the report, which appear in part to be related to the prohibition of abortion. In this regard, the Committee regrets the State Party's failure to address the resulting problems faced by adolescent girls, in particular rape victims, who suffer the consequences of such acts for the rest of their lives. Such situations are, from both the legal and practical standpoints, incompatible with Articles 3, 6 and 7 of the Covenant, and with Article 24 when female minors are involved. The Committee recommends that the State Party adopt all necessary legislative and other measures to assist women, and particularly adolescent girls, faced with the problem of unwanted pregnancies to obtain access to adequate health and education facilities" (Concluding Observations of the Human Rights Committee: Ecuador, 18/08/98, CCPR/C/79/Add.92).

Measures to prevent unwanted pregnancy and clandestine abortion. "When reporting on the right to life protected by Article 6, States Parties should ... give information on any measures taken by the State to help women prevent unwanted pregnancies and to ensure that they do not have to undergo life-threatening clandestine abortions" (General Comment No. 28/Human Rights Committee 29/03/2000).

Recommendations for Future Strategies

In the International Arena

Demand that all countries ratify the Rome Statute. This will allow adherence to an international text that recognizes forced pregnancy as a crime, which is symbolic but very powerful.

Coherence between international law and national law would then require that those States party to the Rome Statute would also have to incorporate the concept of forced pregnancy as an autonomous crime.

Closely monitor the actions of the UN Human Rights Committees. Demand that these committees maintain a level of coherence in their recommendations by constantly and systematically monitoring the actions of the States Parties to the international treaties on human rights and sanctioning as violators of human rights those countries that do not fulfill their commitments to these treaties. Systematically inform the committees about the countries' failure to fulfill their obligations as per the committees' recommendations, presenting data on human rights violations for alternative reports.

Seek support from other monitoring committees. For example, the Committee on Torture could be provided with reports or requests for the investigation of inhumane, cruel or degrading treatment of women who seek care in hospitals for the consequences of clandestine abortion.

Present feminist candidates to these committees. It has been shown that the presence of women has produced substantial changes in the interpretation of the International Covenant on Civil and Political Rights.

In the National Arena

Demand the separation of Church and State. The constitutional norms that guarantee the separation of Church and State and the constitutional and international norms on freedom of religion must be complied with, preventing one religion from having undue influence. Respect for those individuals who are not members of this faith must be ensured.

Appropriation of the new interpretations of the right to life (as per Art. 6 of the International Covenant on Civil and Political Rights). Under this perspective, the death of women due to abortion and the situation of women who become pregnant as the result of rape and who do not have access to abortion should be incorporated as offenses which fall under Article 7 (the right to be free from torture or inhuman, cruel or degrading treatment).

Apply gains in the international arena at the local level Coherence between international law and national law should be demanded.

Notes

(1.) Miller, Alice (2001). "Sexual no Reproductive: Explorando la conjuncion y disyuncion de los derechos sexuales y reproductives," in Derechos Sexuales y Reproductives. Programa de Estudios de Genero. Lima, Peru: Gruskin Sofia Editora.

(2.) Lyotard, Jean-Francois (1994). La condicidn postmoderna. Madrid: Ediciones Catedra.

(3.) Vazquez Sotelo, Roxana (2001). "Diagnostico sobre los Derechos Sexuales y los Derechos Reproductivos." Paper presented at the International Seminar on Sexual Rights and Reproductive Rights, held in Lima, Peru, November 5-8, 2001.

(4.) On-line at http://www.convencion.org.uy

Programmes and Platforms: In Action?

Vienna Programme of Action, 1993

* Includes forced pregnancy among the serious violations of women's human rights (Para. 38).

Cairo Programme of Action, 1994

* Defines reproductive rights as embracing "certain human rights that are already recognized in national laws, international human rights documents and other consensus documents."

* Asserts that these rights are based on the "recognition of the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so, and the right to attain the highest standard of sexual and reproductive health ... free of discrimination, coercion and violence" (Para. 7.3).

Beijing Platform for Action, 1995

* Reaffirms the text of the Cairo Programme of Action (Paras. 216 and 223).

* Defines reproductive rights and adds: "The ability of women to control their own fertility forms an important basis for the enjoyment of other rights" (Para. 97).

* Explicitly addresses the issue of unwanted pregnancy and recommends safe abortion services for the termination of pregnancy as permitted by law: "Women who have unwanted pregnancies should have ready access to reliable information and compassionate counselling ... In circumstances where abortion is not against the law, such abortion should be safe" (Para. 106 k).

* Addresses unwanted pregnancy as an effect of sexual and sexist violence and reaffirms the Vienna text in this regard and in regard to forced pregnancy as a violation of fundamental human rights and international humanitarian law (Paras. 132, 135, 145 c; 145 e; 114)

Resistance to the CEDAW

The approval of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) some 23 years ago was an unprecedented gain for the feminist movement. But it took an additional seven years for the approval of the Optional Protocol, which establishes procedures for denouncing violations and investigating States' failure to fulfill the Convention. Today, the UN Commission on the Status of Women (CSW) is responsible for receiving and analyzing the reports prepared every four years by the States Parties.

However, resistance to the Optional Protocol still persists: in order for this mechanism to enter into force, it must be approved and ratified by the legislative and executive branches of the signatory states. In numerous countries throughout our region, the Catholic Church has undertaken an embattled campaign against the protocol. In El Salvador, representatives of the Church hierarchy argued that the protocol "could lead to the legalization of abortion." In Argentina, bishops from throughout the country met in Buenos Aires to lobby members of the Senate, demanding that the Optional Protocol not be ratified "because it would hobble our sovereignty and lead to the legalization of abortion." Similar arguments were presented by the bishops of Brazil in a letter campaign to the Brazilian Senate. This campaign called the protocol a threat to national sovereignty and declared that its ratification by '1he National Congress would allow tremendous external interference in internal affairs." The letters also accused the Commission monitoring the implementation of the CEDAW of "having practiced considerable abuses in the defense of abortion, lesbianism and prostitution, all in the name of ending discrimination against women." However, despite these lobbying efforts, and thanks to the constant vigilance of the women's movement, the Brazilian Senate approved the Optional Protocol on June 5, 2002. Ratification of the protocol in El Salvador and Argentina is still pending.

Debate on the Rome Statute (1998)

The Women's Caucus (see sidebar, p. 12) was present at the diplomatic conference that gave rise to the Rome Statute, and while they did not succeed in incorporating a gender perspective into the final document, the text does classify crimes against sexual and reproductive rights as war crimes and crimes against humanity. Chiarotti considers the latter particularly important as it also applies during peacetime.

During this conference, the Vatican--with the support of numerous Arab nations--attempted to re-open debate on this classification, arguing that considering forced pregnancy a crime could invalidate national laws against abortion and oblige States to legalize abortion or require Catholic hospitals to prove abortion services for women victims of rape. The result of this pressure was an addendum clarifying that the Statute's definition should not be interpreted as a motive for changing a country's laws regarding pregnancy.