Among other measures in the August 27, 2020 regulation that could discourage women and girls from accessing legal abortion, it requires medical personnel to report to the police anyone who seeks legal termination of a pregnancy after rape, regardless of the rape survivor’s wishes. The Ministry of Family, Women, and Human Rights has also announced it will create a hotline for medical personnel that could be used to report women and girls whom they suspect had an illegal abortion.
“Instead of ensuring that rape survivors have access to legal abortion, the government is adopting policies that could discourage women and girls from seeking support and medical care after sexual violence,” said Tamara Taraciuk Broner, acting deputy Americas director at Human Rights Watch. “Brazilian authorities should urgently revoke these new regulations, which increase the risk that women and girls will resort to unsafe abortions that could endanger their lives and health.”
Media reported that Health Minister Eduardo Pazuello said at a September 17 closed-door meeting with senators that he is willing to change some articles in the regulation. He should revoke it all, Human Rights Watch said.
The Supreme Court could temporarily suspend the regulation and then revoke it, in response to two petitions it is scheduled to examine on September 25. The federal Public Defender’s Office and 11 state Public Defender’s Offices have also asked a federal court in São Paulo to revoke the regulation. Brazil’s Congress could approve one of several bills introduced to revoke the regulation.
The new regulation orders doctors and other health professionals to collect evidence and report to the police when a woman seeks to terminate a pregnancy that is the consequence of sexual violence. The regulation maintains a previous requirement for medical personnel to question women and girls to obtain a detailed account of the type and form of violence they suffered and, when possible, to identify witnesses and describe the rapist.
The regulation says the information should be treated as “confidential,” but at the same time, it requires medical personnel to hand over that supposedly confidential information to the police, Human Rights Watch said. Medical personnel would have to report all rape cases to the police, without asking for the survivors’ consent.
It also requires doctors to offer rape survivors who seek a legal abortion to see the fetus through an ultrasound exam. Given the emotional distress that even receiving such an offer, let alone seeing the fetus, can cause rape survivors, the requirement seems designed to dissuade them from having a legal abortion and to delay their care, Human Rights Watch said.
The regulation maintains a requirement for rape survivors seeking a legal abortion to sign a statement of responsibility with an “express warning” that if it “does not correspond to the truth” they could be prosecuted for fraud and illegal abortion, punishable with up to five and three years in prison, respectively.
Abortion is legal in Brazil in cases of rape, when necessary to save a woman’s life, or when the fetus has anencephaly–a condition that makes it difficult for the fetus to survive. To have a legal abortion, a woman or girl needs approval from a doctor and at least three members of a multi-disciplinary team–made up of an obstetrician, anesthetist, nurse, social worker and/or psychologist.
Human Rights Watch has repeatedly urged the authorities to expand access to safe and legal abortion in Brazil, saying that the country’s harsh abortion restrictions are incompatible with its obligations under international human rights law. The new regulations, by making access to legal abortion even more difficult, further threatens the rights to life, health, privacy and medical confidentiality, nondiscrimination, and to be free from cruel, inhuman or degrading treatment.
In a country of 210 million people, only 42 hospitals are performing legal abortions during the Covid-19 pandemic, according to a study by the nonprofit group Article 19 and the news websites AzMina and Gênero e Número. In 2019, it was 76 hospitals.
Lack of access to a hospital that performs legal abortions, denials of access to legal abortion at those hospitals, stigma, and fear of criminal prosecution can push women and girls who would have a right to a legal abortion – and those whose pregnancies fall outside the narrow exceptions included in Brazilian law and regulations – to have potentially life-threatening illegal abortions. Those factors can also keep them from seeking post-abortion care when they experience complications from unsafe procedures or miscarriages.
An estimated one in five women in Brazil has had an abortion by age 40 – the overwhelming majority outside the health system. Every year, an estimated 200 women die from complications from unsafe abortions, according to the Health Ministry.
Women, Family, and Human Rights Minister Damares Alves announced the new hotline for medical personnel to report “violations of human rights” on July 13. A director at the ministry told Human Rights Watch that while the hotline, which is not yet operational, is intended for reporting violence against children, medical personnel could also report suspected illegal abortions.
The ministry should ensure that the hotline does not become a means for medical personnel to report women they suspect had an unsafe and illegal abortion, Human Rights Watch said.
In Rio de Janeiro, health personnel reports to police led to almost a third of all prosecutions of women for illegal abortion between 2005 and 2017, according to the Rio Public Defender’s Office.
President Jair Bolsonaro, and Minister Alves frequently speak against sexual and reproductive rights. In June, Minister Pazuello removed two public servants after President Bolsonaro misrepresented a technical note they had signed as a proposal meant “to legalize abortion.” The note did not advocate changing Brazil’s abortion laws but called for maintaining sexual and reproductive health services during the Covid-19 pandemic, such as services for victims of sexual violence and access to contraception and to “safe abortion in the cases contemplated by Brazilian law.”
The new regulation will also compound the problem of gender-based violence by intimidating rape survivors and limiting their access to health services, Human Rights Watch said.
“Forcing doctors to act as criminal investigators does not address Brazil’s failure to adequately enforce laws to prevent, prosecute and punish gender-based violence,” Taraciuk Broner said. “Instead, it creates an additional risk of trauma for rape survivors, compromises medical confidentiality and is one more barrier to accessing lawful abortion services.”