(IPS) – For over 90 years, a law in Argentina has allowed women who become pregnant as a result of rape to have an abortion. However, hospitals often refuse to carry out the procedure, instead referring the women to the justice system.
Argentine law penalises doctors who carry out abortions and the women who have them, with certain exceptions.
The 1921 criminal code states that abortion is not punishable when a doctor performs it because the life or health of the mother is in danger, or “if the pregnancy is the result of rape or sexual assault of a feeble-minded or demented woman.”
Nevertheless, cases periodically crop up where sexually abused or raped girls, teenagers and women are referred to the justice authorities for a decision about a procedure that in fact does not require authorisation.
“Abortion is a medical procedure. Doctors, not judges, should decide whether it needs to be done,” Natalia Gherardi, a lawyer and head of the Latin American Group for Gender and Justice (ELA), told IPS.
In spite of the legal ban, between 460,000 and 600,000 abortions a year are performed in this country, according to NGOs, and an estimated 100 women die every year from clandestine abortions performed in unsanitary conditions.
Aware of the difficulties in obtaining approval of a law legalising abortion, women’s organisations have long campaigned for at least an effective right to abortion in cases in which it is already legal.
Gherardi said “there is great uncertainty among doctors on how to interpret the article” in the law that establishes which cases of abortion are not punishable. And their confusion is understandable, given what happens when cases are referred to the justice system.
Some judges authorise the abortion; others rule that authorisation is unnecessary; and some judges rule, against the law, to prevent the procedure.
To avoid the referral of these cases to the justice authorities, in 2007 the Health Ministry issued a Technical Guide for the Comprehensive Care of Non-Punishable Abortions.
The guide book acknowledges that “for many decades” women have been prevented from exercising their right, enshrined in the criminal code, “to have access to an abortion in authorised circumstances.”
“The state is obliged to guarantee the exercise of that right,” says the guide, which adds that hospitals “have the legal obligation to carry out the procedure, and are not required to call for judicial intervention and/or authorisation” before acting, even in cases of under-age girls.
Nevertheless, there are regular instances of girls attending a hospital with their parents and being denied an abortion. The most recent case to have come to light occurred in January, in the province of Entre Ríos, where an 11-year-old girl who had been sexually abused became pregnant.
Doctors at the public hospital insisted on judicial authorisation, and a judge refused permission for the procedure. Furthermore, the provincial health minister, Hugo Cettour, publicly said that if the girl was capable of conceiving, she was capable of being a mother.
In the face of this pressure, and even more pressure from both the Catholic and evangelical churches, families give up the right to legal abortions. “This almost always happens to women who are poor or marginalised,” Gabriela Filoni, a lawyer, told IPS.
Filoni is in charge of the regional litigation programme of the Latin American and Caribbean Committee for the Defence of Women’s Rights (CLADEM), which in conjunction with other organisations succeeded in taking one of these cases to the international arena.
As a result of their intervention, in 2011 the United Nations Human Rights Committee ordered the Argentine state to provide “reparations, including an indemnity” to a mentally disabled young woman who was denied an abortion.
“The time period allowed for the state to respond has expired. We know the government asked for an extension, but what we want is a public policy or a legal measure that would prevent a repeat of these cases,” said Filoni.
The 2006 case involved a 20-year-old woman identified in the records as LMR, in Guernica in the province of Buenos Aires, who has a mental age of between eight and 10 as certified by her physicians. The young woman was raped by her uncle, and became pregnant. But when her mother took her to the hospital for an abortion, the doctors refused and sent her to another facility.
At the second hospital, the bioethics committee met and referred the case to the justice system. A court denied permission for the abortion, and the ruling was upheld on appeal.
The provincial Supreme Court finally recognised the young woman’s right to a legal abortion. Furthermore, the court stated that judicial authorisation should not have been required in the first place.
But even then, the hospital refused to carry out the procedure, claiming this time that the pregnancy was too advanced. In the end, the family had to arrange an illegal abortion to terminate a 20-week pregnancy.
By this time, LMR’s mother and sister had both lost their jobs because they stayed by her side throughout the whole process, and they had been harassed by Catholic groups applying pressure to prevent the abortion.
“Authorisation was not necessary in this case, yet the health providers washed their hands of the matter, and the problem here is that referring the case to the justice system takes time, and the pregnancy continues to advance,” said Filoni.
In a survey carried out by Ibarómetro, a polling firm, seven out of 10 respondents asked about the case of the 11-year-old girl in Entre Ríos said she should have been given a legal abortion.
When asked about the legalisation of abortion, 60 percent of respondents said it should be a woman’s right, and access should be guaranteed by the state.