Abortion in Argentina
Abortion in Argentina, when understood as induced, is considered a crime against a life and a person, and it can be punished with one to fifteen years of prison for anyone that induces an abortion. The same penalty is incurred by doctors, surgeons, midwives and pharmacists that induce or cooperate in the induction of an abortion, with the addition of a special disqualification for two times the length of their sentence. And any woman that intentionally causes her own abortion or consents to another person performing one on her, is faced with one to four years of prison.
However, abortion can be performed legally by a certified doctor if:
- The abortion has been made to avoid danger to life or health of the mother and whether this danger cannot be avoided by other means.
- The pregnancy results from rape or an attempt against the purity of a feeble-minded or demented woman.
Legal and political debate
The Constitution of Argentina does not establish specific provisions for abortion, but the 1994 reform added constitutional status for a number of international pacts, such as the Pact of San José, which declares the right to life "in general, from the moment of conception". The interpretation of the expression "in general" in certain cases of abortion is still subject to debate.In 1998, after a visit to the Vatican and an interview with Pope John Paul II, President Carlos Menem passed a decree declaring 25 March the Day of the Unborn Child. The date was due to the Catholic Holy Day of the Annunciation. The Menem administration had already aligned with the Holy See in its complete rejection of abortion and contraception. During the first celebration of the new holiday, in 1999, the President stated that "the defense of life" was "a priority of foreign policy".
President Fernando de la Rúa was not outspoken about its Catholic belief and its influence in government policies, but effectively kept them unchanged.
President Néstor Kirchner professed the Catholic faith but was considered more progressive than his predecessors. In 2005, Health Minister Ginés González García publicly stated his support for the legalization of abortion. Kirchner did neither support nor criticize González García's opinion in public. In a private interview, later, he assured that the law regarding abortion would not be changed during his term. In any case, harsh criticism from the Catholic Church soon shifted the focus to a "war of words" between the religious hierarchy and the national government.
Carmen Argibay, the first woman ever to be appointed to the Supreme Court of Argentina by a democratic government, also caused great controversy as she admitted her support for abortion rights. Pro-life organizations, led by the Catholic Church, expressed their opposition to the appointment for this cause.
In May 2006 the government made public a project to reform the Penal Code, which includes the de-criminalization of abortion. A commission studied the issue and produced a draft, intended to be presented to Congress. The project was signed by the Secretary of Criminal Policy and Penitentiary Affairs, Alejandro Slokar. On 28 May 2007, a group of 250 NGOs forming the National Campaign for Legal, Safe and Free Abortion presented a draft legislative bill to the Argentine Chamber of Deputies that would provide unrestricted access to abortion on demand up to the 12th week of pregnancy, and allow women to abort after that time in cases of rape, grave fetal malformations and mental or physical risk to the woman.
In March 2012 the supreme court has ruled that abortion in case of rape or threat to women's life is legal and that an affidavit of being raped is enough to allow a legal abortion. It also ruled that provincial governments should write protocols for the request and treatment of legal abortions in case of rape or life threat
2018 bill
In early 2018, after years of lobbying by different groups, the Argentine Congress began working towards a draft project to legalize abortion and to potentially provide it free of charge in all national clinics. Opinions remained divided, with different points of view in all parties. President Mauricio Macri encouraged the discussion of an abortion law during the 2018 opening of regular sessions of the National Congress of Argentina. and has stated that he would not veto a legalization if Congress passed it and has proposed to debate the policy alongside other laws aimed at gender equality. On June 14, 2018 the Chamber of Deputies gave preliminary approval to the law with 129 votes in favor, 125 against and 1 abstention.The proposal divided both the legislators of Cambiemos and the Justicialist Party. However, on 9 August 2018 the bill was rejected by the Senate with 31 ayes, 38 nays and 2 abstentions.
Abortion protocols
It is often the case that women who may have sought an abortion under the legal provisions of the Penal Code are not appropriately informed of this possibility by the attending physicians, or are subject to long delays when they request a legal abortion. Physicians, due to lack of knowledge of the law and fearing legal punishment, often demand that the patient or her family request judicial authorization before terminating a pregnancy, which sometimes can extend the wait beyond the time when it is advisable to abort.In March 2007, Buenos Aires Province health authorities released a protocol addressing the provision of legal abortion procedures without delays or need for judicial authorization. The main change regarding previous treatments of abortion was the explicit recognition that any case of rape can be a threat to the psychic health of the victim and thus justify an abortion request.
An abortion protocol drafted by the National Institute Against Discrimination, Xenophobia and Racism was presented, starting in May 2007, to provincial health ministers and legislatures for consideration. This protocol includes a series of procedures to be conducted in order to assess an abortion and the maximum permissible time spans for them. It also features a proposal to create a national registry of conscientious objectors.
In June 2007, the legislative body of Rosario, Santa Fe Province, adopted a protocol similar to that of Buenos Aires. Physicians assisting a woman covered by Article 86 of the Penal Code are obligated to explain her condition to the patient, offering the choice of terminating the pregnancy, as well as counseling before and after the abortion. The protocol explicitly forbids the judicialization of the procedure and warns that physicians who delay a legal abortion are liable to administrative sanctions and civil or penal prosecution.
In November 2007, the legislature of La Pampa Province passed an abortion protocol law which included provisions for conscientious objectors and dictated that public hospitals would have to comply with an abortion request in any case. This would have made La Pampa the first district in Argentina to have an abortion protocol with the status of provincial law.
The law, however, was vetoed by governor Oscar Mario Jorge as one of his first acts of government, less than three weeks later, with the argument that its new interpretation of previous legislation could be deemed unconstitutional. The protocol had been attacked with the same argument by the bishop of Santa Rosa, Rinaldo Fidel Bredice, on the day it was first passed.
On December 12, 2019, the Argentina Ministry of Health issued a protocol expanding hospital abortion access to pregnancies which resulted from rape. In addition, the protocol provides that girls as young as 13 years of age can have abortions in such cases without the consent of either of their parents. The protocol also weakens a doctor's ability to refuse to perform such abortions due to personal objection as well.
. Embryogenesis is marked in green. Weeks and months are numbered by gestation.
Social debate
Argentina has a robust network of women's organizations whose demands include public access to abortion and contraception, such as the Women's Informative Network of Argentina and Catholic Women for the Right to Choose. The National Women's Meeting, held annually in different cities, gathers these and other feminist and pro-choice groups. The 20th Women's Meeting, held in October 2005 in Mar del Plata, included a 30,000-people demonstration asking for unrestricted abortion.The opposition to abortion is centered on two fronts: the religious one, led by the Catholic Church, and voiced by the ecclesiastical hierarchy and a number of civil organizations, which consider abortion the murder of an innocent person; and the legal one, represented by those who understand that abortion is forbidden by the Constitution.
A survey conducted in early 2005, commissioned by the Argentine branch of the Friedrich-Ebert Foundation, showed that 76% respondents were in favour of legalizing abortion for cases of rape, and that many also wanted abortion legalized when the fetus suffers from a deformity that will make it impossible for it to survive outside the womb. A December 2003 Graciela Romer y Asociados survey found that 30% of Argentines thought that abortion should be allowed "regardless of situation", 47% that it should be allowed "under some circumstances", and 23% that it should not be allowed "regardless of situation".
In a more recent survey conducted in September 2011, nonprofit organization Catholics for Choice found that 45% of Argentineans are in favor of abortion for any reason in the first twelve weeks. This same poll conducted in September 2011 also suggests that most Argentineans favor abortion being legal when a woman's health or life is at risk, when the pregnancy is a result of rape or the fetus has severe abnormalities.
It is a common belief in Argentina that, the higher the economic status of the pregnant woman, the easier it is for her to get a safe abortion, while poorer women often cannot afford a clandestine procedure under sanitary conditions or post-abortion care.
Recent cases
Several cases of pregnancy resulting from rape and one involving a nonviable fetus have sparked debate about abortion in Argentina since the beginning of the 21st century. In 2001, 25-year-old Luciana Monzón, from Rosario, Santa Fe, discovered that the fetus in her womb, at 16 weeks of gestation, was anencephalic. There was virtually no chance of survival for the baby once it left the womb. Four weeks later she asked for judicial authorization to terminate the pregnancy. First one judge and then another excused themselves from dealing with the request, and the case went to the Supreme Court of Santa Fe, which dictated that the first judge should decide. By that time, however, Monzón had decided to take it to term, because of the delay. The baby was born spontaneously, weighing only 558 grams, and died 45 minutes after birth.In 2003, a 19-year-old rape victim from Jujuy Province, Romina Tejerina, had a baby in secret and killed her, according to tests, in a psychotic episode. In 2005 she was sentenced to 14 years in prison. She had not accused the rapist, and had managed to conceal her state. Townspeople, public figures and some politicians expressed her support for Tejerina as a victim, and many pointed out that she should have had the chance to resort to abortion. Most notably, the sentence prompted Health Minister Ginés González García to state his support for legal abortion for rape victims.
The 2006 cases
In 2006, two cases of rape of mentally disabled women became subject of extensive media coverage and debate. One of them involved 19-year-old L.M.R., from Guernica, Buenos Aires Province. Her mother noticed the pregnancy, guessed what had taken place, and went to the public San Martín Hospital in La Plata to request the abortion, allowed under the provisions of the Penal Code. The Ethics Committee of the hospital studied the case, as usual, but the prosecutor of the rape case alerted judge Inés Siro about the upcoming abortion, and Siro blocked it, based on "personal convictions". The block was appealed, and the Supreme Court of Buenos Aires overruled Siro, but the physicians at the hospital excused themselves saying that the pregnancy was now too advanced. The family of the victim was approached by a non-governmental organization that collected money and paid for the mentally disabled woman to have the abortion performed in a private context, by an undisclosed physician.The other case, which came into the public light at about the same time, was that of a 25-year-old rape victim in Mendoza Province with an acute mental and physical disability. The mother of the victim requested and was granted judicial authorization, but as the pre-surgical tests were being performed at the Luis Lagomaggiore Hospital, the abortion was blocked by a judicial request interposed by a Catholic organization. On appeal, the injunction was rejected by the Supreme Court of Mendoza, and the abortion was performed as originally planned.
As a result of both cases, all but two of the provincial Health Ministers issued a joint statement supporting the medical teams and health authorities responsible for the abortions, and expressing their commitment to the law. Minister González García further stated that "there are fanatics that intimidate and threaten" and that "tolerance to fanatical groups must be ended".
On 23 August 2006 the Argentine Episcopal Conference issued a document titled "A Question of Life or Death", stating the Church tries to protect life "moved by the deep love of God... the desire of giving value to each of the lives that are conceived", and pleading not to "seed the culture of death in our society."