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Women’s Rights: Why is legal abortion in a rape victim child being questioned?

In recent weeks, many Brazilians have followed the sad and difficult journey of a rape victim child in search of the realization of his right to legal and safe abortion. Although she was protected by legislation, the 10-year-old girl, who became pregnant after being raped by her own uncle in the city of São Mateus, in the north of Espírito Santo, needed judicial authorization to have access to the pregnancy interruption procedure.

The case gained wide repercussion in the press and circulated massively in the social networks, rekindling the debate on the abortion issue in Brazil. The pregnancy was discovered in early August, when the child, accompanied by his grandmother, came to the Roberto Silvares State Hospital complaining of abdominal pain and revealed that he had been suffering sexual abuse since he was 6 years old, practiced by his uncle. However, instead of referring her to an abortion in an accredited hospital, the medical team suggested the prenatal exam, which motivated the Public Ministry of the State of Espírito Santo to file a lawsuit aiming at protecting the rights of the minor.

Even when the decision that determined the immediate interruption of pregnancy was made, the girl’s suffering was not yet near its end. The Cassiano Antônio Moraes University Hospital (HUCAM), in Vitória, refused to perform the procedure, alleging that it had no technical conditions to perform the abortion and that the gestational age – 22 weeks and 4 days – would be out of that which would allow legal abortion.

Faced with this new factor, the girl, accompanied by her grandmother and a social worker, was forced to travel from Vitória to Recife, in Pernambuco, to get adequate care. The child’s identity, as well as her location, was being kept confidential, in compliance with the norms established in the Statute of the Child and Adolescent (ECA).

However, Sara Giromini (known as Sara Winter), a former employee of the Ministry of Women, Family and Human Rights, disclosed the victim’s details and the address of the hospital where she would be admitted on her social network, calling for demonstrations against abortion. Quickly, a group of religious fundamentalists and evangelical parliamentarians gathered in front of the Amaury de Medeiros Integrated Health Center, causing uproar.

The procedure was carried out the same day, amid protests and shouts of “murderer” and “murderer” against the girl who was raped, as well as the doctor responsible for her care. On the other hand, soon after there was a mobilization of a collective of women who, in defense and support of the child and the medical team, managed to expel the group from the site.

The victim in the focus of the discussion

“Never forget that a political, economic or religious crisis is enough to question women’s rights. These rights are not permanent. You will have to remain vigilant throughout your life”. This, perhaps one of Simone de Beauvoir’s most famous phrases, has increasingly represented the reality of women’s rights in Brazil. In spite of considering the category of women from all its intersectional dimension, the recent discussion around abortion rights demonstrates how women’s rights, especially those related to their reproductive and sexual health, are in constant dispute.

It is important to point out that the debate that took place around the issue ─ is a debate that can hardly be called public, since it was not based on the propositive presentation of ideas in favor of some decision of the community, but the propagation of religious dogmas ─ had as its center the blame of the 10-year-old child, victim of rape, and the medical team responsible for the pregnancy interruption procedure. The social media were not occupied by a discussion about the crime of rape, but by the questioning of the possibility of abortion in case of rape – which has been provided for in the Brazilian Penal Code since the 1980s.

This discussion thus represents a step backwards in the discussion about women’s sexual and reproductive rights and, more specifically, about the possibility of abortion. Previously the debate revolved around the legalization of the practice, see the discussion about ADPF 442, about the decriminalization of abortion, which is yet to be judged by the STF. And now the discussion on the responsibility of the victim, a 10 year old child, for the sexual violence suffered inside the home is resumed.

This step backwards is located in a broader context of precarious women’s rights promoted by a Ministry of Women, Family and Human Rights that seems more concerned with discussing who wears pink or blue, than facing public health issues. This Ministry, in face of the diverse challenges in human rights in Brazil, maintains an ideological alignment with specific religious groups and intends to launch a Guide on how to strengthen marriage.

The agenda headed by Minister Damares Alves refuses to promote sexual and gender education policies ─ that are so fundamental in combating the abuses suffered by children and adolescents on a daily basis in Brazil and to encourage dialogue on the subject. She intends to deal with the problem of unwanted pregnancy in adolescence through campaigns, such as the one focused on discouraging sex among youth.

The minister has contributed to publicize the case narrated here by showing astonishment and regret for the violence suffered by the child in publications in her social networks, where she claims to have sent an entourage to “help” the victim and her family. Damares’ surprise at the cases of child sexual abuse makes clear the distance from the Brazilian reality present in her ministry, considering that, according to data from the Brazilian Yearbook of Public Safety of 2019, every hour four girls up to 13 years old are raped in the country.

About Women’s Right to Integral Health

This case is especially delicate when we consider the constitutional previsions about the access to women’s integral health, which is the right of all Brazilian women. In this sense, article 6 of the Federal Constitution presents the right to health as a fundamental right, and from article 196 on, this right is detailed. Thus, the 1988 Constitution establishes the right to full health care to all citizens, which binds all Public Powers and cannot be removed from the Constitution, not even by constitutional amendment.

And this integral health care, which includes women’s sexual and reproductive health, requires a multifaceted approach, involving access to health information and education, the right to reproductive planning, and the use of technologies to guarantee full access to Women’s Health.

Therefore, it is crucial for the Unified Health System to ensure access to this comprehensive health system for all women, in order not to further deepen the scenario of inequality in the country. This is because the right to health – including sexual and reproductive health – cannot be available only to women who use the private health network. Hence, the need for public policies in line with the constitutional provision, where the right to health is recognized, making legal abortion feasible.

Besides the need to discuss the legalization of abortion, as an internationally recognized right to women, there are already three hypotheses in Brazil in which abortion is considered legal: when there is risk of life for the woman due to pregnancy (art. 128, I, of the Penal Code); when pregnancy is the result of rape (art. 128, II, of the Penal Code); and in cases of anencephalic fetus (according to STF decision in ADPF 54). Here, it is very clear that in the case of a 10-year-old child, abortion was legal, because it is a chance of rape and pregnancy that puts the pregnant woman’s life at risk.

However, in practice there are many obstacles and difficulties to the realization of the right to legal and safe abortion. A survey carried out last year by the Map of Legal Abortion, by the NGO Article 19, identified that, out of 176 hospitals registered with the SUS for the abortion service, only 76 actually performed the procedure. Furthermore, a new study carried out in the first semester of 2020 pointed out a worsening in the access to care during the coronavirus pandemic: in Brazil, only 42 hospitals continue providing the service of legal abortion.

As a consequence of the difficulties in accessing the constitutional right, as well as the criminalization of abortion, there is a scenario in which, in the first half of 2020, the number of procedures performed by SUS after unsuccessful abortions was 79 times greater than that of legal abortions. Thus, in reality, the public health system itself is burdened with the complications resulting from clandestine abortions, which reinforces the need to view the problem as a public health issue.

In this regard, Brazil is also obliged to guarantee effective access to women’s sexual and reproductive health due to the international treaties it has signed and for being part of the Inter-American System of Human Rights.

In this sense, the Inter-American Commission on Human Rights (IACHR), in its report on Violence and Discrimination against Women, Girls and Adolescents, highlights that gender stereotypes in the area of health, and in particular in relation to sexual and reproductive health, function as barriers for women to have access to this service, especially for maternal, sexual and reproductive health. Laws, policies, or practices that require women to obtain authorization from others to obtain medical care, for example, perpetuate stereotypes that consider women vulnerable and unable to make autonomous decisions about their health.

In addition, the Convention on the Elimination of All Forms of Discrimination against Women establishes that it is the responsibility of States Parties to ensure that women have access to specific information material that contributes to the health and well-being of the family, including information and advice on family planning. This point specifically concerns the pillar of sexual and reproductive education, which is one of the multidisciplinary elements involved in the concept of women’s sexual and reproductive health.

Thus, it is necessary that Brazil, as a Democratic State of Law, including here its public institutions, as well as organized civil society, act in such a way as not to allow setbacks in women’s rights. This, considering that it is essential for a rule of law to seek the inclusion of all citizens, both from a political perspective, but also from the protection and enforcement of their human and fundamental rights.

The verification of this framework of tension in relation to women’s rights, while already demonstrating a constant vigilance posture, also comes to demand the continuity of active surveillance. This vigilance is attentive to possible setbacks and requires the enhancement of the rights and guarantees provided for in the Constitution. It does this by recognizing the power of the constituent project begun in 1988 that is being carried out in current disputes for its meaning, as summarized by Raquel Gonçalves, Rayann de Carvalho and Jessica Holl.

By Jessica Holl [1] and Luísa Mouta [2].

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[1] Substitute Professor of Law at UFOP. Master’s Degree in Law from the Graduate Program in Law at UFMG. Graduated in Law at UFMG. Advisor Professor at the Legal Advisory Center of Ouro Preto (NAJOP/UFOP). Coordinator of the Group of Studies in Transitions and Authoritarianism (DEDIR/UFOP). Member of the Legal Study Group – COVID-19/UFOP. Researcher of the Center for Studies in Transition Justice of UFMG (CJT/UFMG). Legal Director of the Association Visibilidade Feminina. Lawyer.

[2] Law student at UFMG. Extensionist of the Center for Transitional Justice Studies (CJT/UFMG).

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