RUTH GREEN

Related Podcast: Legal, business and economic issues in Brazil IBA Family Law Committee IBA Latin American Regional Forum

The Zika virus outbreak in Latin America and the suspected dangers it poses for unborn babies have led to renewed calls to relax the region’s strict abortion laws.

The outbreak began in Brazil in April last year and spread to other countries across South America, Central America and the Caribbean. In February 2016, the World Health Organisation said there was growing evidence to suggest a causative link between the spread of the virus in Brazil and the country’s rising incidence of microcephaly – a rare condition which causes babies to be born with abnormally small heads and incomplete brain development.

Amid growing fears that Zika could spread as rapidly as the Ebola virus that ravaged West Africa in 2014, several Latin American countries reacted by issuing travel warnings. However, abortion remains illegal under any circumstances in seven countries across the region, including Chile and El Salvador. Eight others only permit abortion if the woman’s life is in danger or in the event of rape.

Prince Zeid

In February, the UN High Commissioner for Human Rights Prince Zeid Ra’ad Al Hussein said laws and policies restricting access to sexual and reproductive health services in Latin America should be ‘urgently reviewed’ to bring them in line with international standards and human rights obligations. 

The High Commissioner said some governments’ advice to simply delay pregnancy during the outbreak ‘ignores the reality that many women and girls simply cannot exercise control over whether or when or under what circumstances they become pregnant, especially in an environment where sexual violence is so common.’

Recent research by the Guttmacher Institute suggests that as many as 56 per cent of pregnancies in Latin America and the Caribbean are unintended and at least 10 per cent of all maternal deaths in the region in 2014 were due to unsafe abortions.

Statistics like these merely strengthen calls from the UN and women’s advocacy groups that countries in the region – where contraception is often hard to come by, abortion laws are restrictive and the unsavoury alternative of backstreet abortions poses innumerable health risks for both the mother and the unborn child – should relax their laws in light of the suspected health concerns linked to the virus.

Despite this, Anna Borring, a partner at Borring & Menezes Advogados in Rio de Janeiro and member of the IBA’s Family Law Committee, says the UN has no legal authority to compel countries in Latin America to alter their abortion laws, even for a temporary period.

‘I am not aware of any UN legal mechanism to compel countries to change their own laws,’ she says. ‘This is generally a matter of state internal autonomy and supremacy.’

However, as Borring notes, Brazil has already shown a strong willingness to relax its abortion laws in exceptional circumstances: ‘In Brazil we had a very similar precedent from our Supreme Court in April 2012 when it was ruled that in cases of anencephaly, in which the foetus has a fatal congenital brain disorder, abortion is exempt from criminal penalties, and a woman may opt to terminate a pregnancy under such circumstances without lengthy judicial review.’

Human rights groups hailed the 2012 decision as a positive step toward protecting human rights in Brazil, where previously abortion was a criminal offence except in the event of rape or when the woman’s life – but not that of the unborn baby – was deemed at risk.

‘The Supreme Court decision on 2012 was the major progress in this regard in Brazil,’ says Borring.

The same group of Brazilian lawyers, scientists and activists that brought the 2012 case is appealing to the country’s Supreme Court for greater protection for children that have microcephaly, as well as women who want to give up a baby or even abort a pregnancy affected by the condition.

The group says ‘the Brazilian State is responsible for the Zika outbreak’ through its failure to eradicate the Aedes aegypti mosquito, which carries the virus, and argues that women in the country should not be ‘penalised for failed public policies’.

Brazil isn’t the only predominantly Catholic country to temporarily modify laws in the wake of a health crisis. Although Italy only legalised abortion in 1978, the country was forced to introduce temporary measures in one particular incident just two years earlier, as Pancrazio Timpano, of counsel at CTM Avvocati in Milan and a member of the Family Law Committee, told Global Insight.

‘In Italy we had a case in 1976 known as the Seveso disaster – an industrial accident that occurred on 10 July in a chemical manufacturing plant north of Milan,’ he says. ‘An advice centre was set up for pregnant women in the area and 26 of them opted for an abortion.’

Timpano says at that time therapeutic abortions were only prescribed in Italy if the mother’s life was in danger, but a special exception was made for these women after a medical consultation.

Meanwhile, remarks by Pope Francis appearing to condone the use of contraception in areas affected by the Zika virus can be viewed as a positive sign for Latin America as it faces the ongoing challenges posed by the outbreak.

‘This is a welcome change of attitude by this Pope if not wholeheartedly supported by others within the Vatican,’ says Barbara Connolly QC, Vice-Chair of the Family Law Committee and a barrister at 7 Bedford Row in London.

‘I am sure it will go a long way to assist in Latin America, assuming contraception is readily and freely available as it is here in the UK. If the Vatican can relax its sanction against the use of contraception during this crisis, surely that is a powerful argument in any human rights claim to bring about a relaxation of abortion laws, even if it is limited to this situation.’