Brazil Supreme Court Allows Abortion in Cases of a Severe Fetal Condition

Country’s highest court rules to decriminalize abortion for women carrying fetuses with anencephaly
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(PRESS RELEASE) Brazilian women now have a right to access abortion if they are carrying pregnancies suffering from anencephaly—a severe fetal anomaly causing the fetus to lack parts of the brain and to have no chance of survival after birth—and the state is obligated to provide them with medical care, according to a ruling handed down today by the Brazilian Supreme Court.
Today’s ruling amends Brazil’s current law— which criminalizes abortion completely, with only narrow exceptions in cases of rape or to save a woman’s life—to allow abortion in cases where a fetus has been diagnosed with anencephaly.
“While Brazil’s restrictive abortion laws are still extremely dangerous to women, today’s decision to decriminalize abortion in the tragic circumstance of anencephaly is an important step in the right direction,” said Lilian Sepúlveda, director of the global legal program at the Center for Reproductive Rights. “This is a vital advance in establishing and protecting the reproductive rights of women as fundamental human rights under the law.”
The case was filed in 2004 by the National Confederation of Health Workers and ANIS: Institute of Bioethics, Human Rights and Gender. While an initial injunction was granted by then-Chief Justice of the Supreme Court shortly after the case was filed, that injunction was later overturned in October 2004, forcing women to carry anencephalic pregnancies to term. Today’s long-awaited decision finally resolves the issue by permanently decriminalizing abortion in these circumstances.
According to the World Health Organization, Brazil has the fourth highest rate of anencephaly cases in the world. In cases of anencephaly, if the pregnancy is not terminated at the time of diagnosis, the fetus will either die in utero—forcing a woman to suffer a stillborn birth—or the baby will die within hours or days after birth.
In today’s landmark ruling, Minister Luiz Fux said, “To impede the interruption of pregnancy under penal threat effectively equates to torture, prohibited by the Federal Constitution.”
In 2002, the Center brought a case from Peru before the United Nations Human Rights Committee on behalf of K.L., a young woman who was forced to carry an anencephalic fetus to term and even forced to breast-feed for the four days her infant survived. K.L.’s case, which was brought in partnership with the Latin American and Caribbean Committee for the Defense of Women’s Rights (CLADEM) and the Counseling Center for the Defense of Women’s Rights (DEMUS), resulted in a 2005 victory for women in Peru—and the first time an international human rights body has held a government accountable for failing to ensure access to legal abortion services.
“More and more, Latin American courts are recognizing that health care institutions have a responsibility to be a place where women’s rights are protected and promoted, not a place where women suffer mistreatment,” said Luisa Cabal, vice president of programs at the Center for Reproductive Rights.