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V. Obstructing Access to Legal Abortion after Rape

What caused me the most desperation is that [public prosecutors] show you the law.  They say: “She has every right in the world [to have a legal abortion].”  And then they deny her access.
—“Marcela Gómez,” mother of adolescent rape victim¹¹⁶

Despite recent improvements in some states, substantial obstacles continue to restrict women’s and girls’ access to legal abortion after rape in Mexico.  While obstacles were present in all eight jurisdictions Human Rights Watch researched for this report, they not surprisingly were most pronounced in states without policies regulating access to safe and legal abortion services.  In the following sections, we examine those obstacles, beginning with issues women and girls face in states with no guidelines on access to legal abortion after rape, and subsequently in states (and the Federal District) where guidelines do exist.

States with No Administrative Guidelines for Abortion after Rape

Twenty-nine of thirty-two independent jurisdictions in Mexico do not have clear legal or administrative guidelines to guarantee access to safe and legal abortions for rape victims.  Human Rights Watch interviewed public officials, experts, as well as rape victims and their families from seven of these twenty-nine states: Baja California Norte, Guanajuato, Jalisco, Nuevo León, San Luis Potosí, and Yucatán. 

In these states, rape victims who request a legal abortion effectively face stone-walling by public officials.  This was illustrated by the testimony of Hilda Chávez Díaz, a social worker in Mérida, Yucatán.  Chávez was head of social work at the state Integrated Family Services (DIF) agency in Yucatán for more than a decade and saw dozens of underage rape victims suffer through unwanted pregnancies.  She told Human Rights Watch:

There were several cases where I went back and forth [to try to procure a legal abortion for an adolescent client]. … [The authorities] said: “For this you need an authorization from such-and-such.”  Someone it would take me a long time to get hold of. … If I went to someone from the justice system, they would say that [legal abortion after rape] is in the law, but that there are no procedures [to guarantee it]. … If I went to doctors, [they said] that it would be dangerous for the life of the underage girl [for her to have an abortion]. … There are several male lawyers [in the Integrated Family Service agency] who say: “Have them get married, have the boy be responsible.” … [In one specific case,] in the Integrated Family Service agency they wanted her to have the child by any means. … [The authorities finally] said to me that she was many months pregnant now [so the abortion was impossible], and I said: “That’s because you have told me no for so many months.”¹¹⁷

Non-existing or Inaccurate Information on Legal Abortions

Doctors and representatives for NGOs say that lack of information is the number one reason pregnant rape victims do not ask the authorities for a legal abortion.  “Women don’t have the information,” said Laura Miranda Arteaga, program director for an NGO providing family planning services in Chiapas. “They know perfectly well that they are pregnant, but not that they should have access to an interruption of the pregnancy.”¹¹⁸  Laura Gutiérrez López, from a women’s rights organization in Baja California Norte, agreed: “Many women think that it is illegal, even in the case of rape. … So to start with, there should be more information.”¹¹⁹  Indeed, a 2000 national survey found that 44 percent of all Mexicans are unaware that abortion is legal in some circumstances, including after rape.¹²⁰ 

Public officials acknowledged to Human Rights Watch that some doctors in the public health system also are not aware that abortion is legal for rape victims.  Francisco Uicab Alonzo, responsible for the maternal health policy unit at the health ministry in Yucatán, said: “Many doctors at the operational level don’t even know the penal code.  [They say:] ‘What does the penal code have to do with me?’”¹²¹  This lack of legal knowledge by public health officials influences rape victims’ ability to access legal abortion because it directly conditions the treatment rape victims receive when they seek assistance.

Our interviews reveal that almost no abortion-related information is provided to pregnant rape victims either before or after they file a report with the justice system.  Few state governments have invested in campaigns to inform the general public of the content of the law in this respect.  Moreover, where rape victims do file a report and find that they are pregnant as a result of the rape, they are seldom presented with the three possibilities that are lawfully before them: 1) to carry the pregnancy to term and keep the infant; 2) to carry the pregnancy to term and give the infant up for adoption; or 3) to have a legal abortion. 

Human Rights Watch interviewed rape victims and their family members from eight cases that were reported to the authorities in states without a clear policy framework for access to legal abortion.  In only two of those eight cases did the public prosecutors provide information on legal abortion after rape, and in both of these cases, the rape victims received no information on how and where to procure an abortion should they so wish.  In one of those two cases, the public prosecutor informed the mother of an adolescent rape victim that she was within her right to demand the service, but that no one would perform it.¹²²  In the other, the underage rape victim ended up procuring a back-alley abortion, only to be chastised later by the public prosecutor for not waiting for the legal authorization for this abortion—though he had never told her such authorization was forthcoming or even necessary.¹²³ 

Amelia Ojeda, from an NGO working with victims of sexual violence in Yucatán, lamented: “[Public prosecutors] leave the woman with the burden of figuring it out . … There are a lot of cases of adolescents impregnated by family members and the public prosecutors don’t even tell them [about the possibility of having a legal abortion]; that is, the people with whom they file the complaint don’t tell them.”¹²⁴

Despite the admitted absence of public information campaigns and individual counseling on legal abortion that could inform victims of their rights, many public officials told Human Rights Watch that the only way for rape victims to access legal abortion services would be for the rape victim herself to make such a request directly to the public prosecutor assigned to investigate the rape.  These same officials generally confirmed that access to abortion services after rape is a legally protected right, and did not seem to have thought through (or did not care) how a rape victim would actually exercise a right that she may not know exists.  The reasons public officials gave for not providing information on the right to abortion after rape can be divided into two main categories: denial that unwanted pregnancies after rape exist, and opposition to anything that might hint at promoting abortion. 

Denial that Cases of Unwanted Pregnancy after Rape Exist

Public officials from various states told Human Rights Watch that access to legal abortion services after rape was mostly a theoretical issue since few, if any, rape victims had ever petitioned for such services.  “In terms of rape victims that want to have an abortion, or that ask the authorities for an abortion, we haven’t had any cases,” said Concepción Tovar Monreal, deputy attorney general from San Luis Potosí, in a comment repeated by public officials in Jalisco, Guanajuato, and Yucatán.¹²⁵  Tovar Monreal explained that the state government of San Luis Potosí had not informed the public of the possibility of legal abortion, and that access essentially would require each rape victim to know and understand the applicable penal code provisions and demand their implementation without prompting from the public prosecutor.¹²⁶ 

In a few states, officials seemed at best willfully blind to the existence of the problem.  In Guanajuato, for example, Attorney General Daniel Chowell denied repeatedly that any pregnant rape victims had wanted a legal abortion during the past five years,¹²⁷ despite ample evidence to the contrary.  This evidence included legal files from three cases,¹²⁸ Human Rights Watch interviews with past and current public officials in Guanajuato,¹²⁹ as well as with rape victims and their families who requested legal abortion within this period.¹³⁰  Further, the former attorney general authored a set of draft procedures to facilitate access to legal abortion only two years earlier, in the midst of a very public controversy over a mentally disabled woman who had been denied access to legal abortion after rape.¹³¹  In another state, Human Rights Watch spoke to a rape victim who was only granted access to public abortion services under the dual conditions that the case not appear in hospital and other records as a legal abortion after rape, and that the rape victim and her family did not divulge information about the case to the public.¹³²

Some public officials doubted the sincerity not only of rape victim testimony, but also of their request for voluntary legal abortions.   With reference to the case of a mentally disabled woman who had been raped by a neighbor, and whose mother had petitioned for a legal abortion in Guanajuato, Manuel Vidaurri Arechiga, human rights ombudsman for that state, told Human Rights Watch: “The mother got advice from some women’s group. … That’s when it suddenly was an issue that she [the rape victim] should have an abortion, because that is what the woman’s group had said [to the rape victim and her mother].”¹³³  Meanwhile, Martha Macias, the mother of the rape victim to whom Vidaurri made reference, recalled that she had been unambiguous in her petition to the state from the very beginning: “I said I can’t feed another person.  And maybe this child will keep reminding [my daughter] of what happened.”¹³⁴  In this case, authorization for the legal abortion was not granted or denied because the rape victim’s pregnancy had advanced too far for an abortion to be carried out.  The delay occurred in part because the public prosecutor had provided inaccurate information to the mother: “[The public prosecutor] said to me ‘Abortion is a crime.’ I said that it was rape.  She said ‘It doesn’t matter.’”¹³⁵

Despite the lack of reliable data, it is most likely true that the vast majority of girls and women who have gotten pregnant as the result of rape and wish to have an abortion have not petitioned the authorities for access to legal abortion services—in fact, as noted, most victims do not even report the rape itself. 

Aversion to Facilitating Legal Abortion after Rape

Some public officials considered the very suggestion that they might present all legal options to the rape victims as synonymous with promoting abortion.  “Really, in San Luis Potosí, no state institution will ever suggest to a woman that she might have an abortion,” stated Beatriz Grande López, head of the state women’s institute in San Luis Potosí.¹³⁶ 

Insofar as access to abortion is a rape victim’s right, public authorities are in fact duty-bound to enable women to exercise this right, including by providing all necessary information on how to claim it.  The U.N. Human Rights Committee clarified in 1981 that state obligations under the International Covenant on Civil and Political Rights (including the rights to physical integrity and equality before the law) “call[s] for specific activities by the States parties to enable individuals to enjoy their rights.”¹³⁷

At times, opposition even to the legality of abortion after rape was voiced from the highest officials in the public agencies most responsible for enforcing the right to legal abortion after rape. “In my understanding … [abortion] even in the case of rape is a bit debatable [clarifying that he meant it was immoral]” said Armando Villarreal, Attorney General of Yucatán. “I don’t agree with abortion … but well, it’s in the law.”¹³⁸  José de Jesus Becerra, Health Minister of Jalisco, expressed a similar view: “Of course women have a right [to abortion after rape] … [but] let’s not give them access!  Life should be protected from the moment of conception. … That’s my personal opinion.”¹³⁹  While public officials are entitled to hold and express personal opinions, opposition from highly placed officials can contribute to the existing stigma related to abortion, in particular when combined with a failure to effectively assist rape victims in exercising their right to legal abortion as is the case in Jalisco and Yucatán. 

Actively Discouraging Abortion after Rape

With little information to guide them, some pregnant rape victims in Mexico still ask the authorities for assistance in terminating their imposed pregnancy.  In practice, there are three public institutions rape victims can turn to for information and assistance:

1) state Integrated Family Services (Sistema para el Desarrollo Integral de la Familia, DIF);

2) public health centers or hospitals; and

3) state public prosecutors’ offices. 

Human Rights Watch found that in each of these institutions pregnant rape victims were at times actively discouraged from seeking legal abortion services.  While a limited number of individual prosecutors, doctors, and social workers had attempted to help rape victims voluntarily terminate their pregnancies, the standard practice—and sometimes the institutional policy—was to discourage abortions.  Instead of receiving much needed support and information, pregnant rape victims often encountered indifference and disregard. 

A common manner of discouraging rape victims from filing a complaint, thus in effect closing the door to legal abortion, was to suggest that the rape victims should marry the perpetrator.  “I send them on to the public prosecutor,” said a lawyer from the local DIF agency in Pénjamo, Guanajuato, “It’s not my responsibility, so I can’t say to the guy: ‘Just marry her [the rape victim] so that it is resolved.’  That’s for the public prosecutor to do.”¹⁴⁰  Hilda Chávez Díaz, cited above, mentioned a similar prevailing attitude in the DIF agency in Mérida, Yucatán.¹⁴¹ 

Some public officials provided misinformation about the health consequences of abortion, in particular for adolescent rape victims.  Asuzena Leal, from the DIF agency in Jalisco said: “We emphasize a lot how dangerous an abortion can be for an adolescent, because we already know what risk the pregnancy puts them in.”¹⁴²  Human Rights Watch interviewed several rape victims and their families from various states who had been told that even an early abortion could be lethal.¹⁴³ 

In fact, medical studies show that abortions carried out under adequate medical conditions are ten times safer than childbearing up to the sixteenth week of pregnancy, and that the risk of death from abortion remains lower than the risk of death from childbirth throughout most of the second trimester.¹⁴⁴  In particular for adolescent girls, carrying a pregnancy to term can be dangerous.¹⁴⁵  NGO representatives confirmed that public officials often tell even adult rape victims that abortions generally are life-threatening, regardless of the medical conditions in which they are carried out.¹⁴⁶

Public officials in some states at times expose rape victims, directly or indirectly, to anti-abortion materials and organizations.  “[Public prosecutors] send [the rape victim] to organizations … where they convince her to have the child,” said Amelia Ojeda, a lawyer from Yucatán who works directly with victims of violence.¹⁴⁷  Ector Jaime Ramírez Barba, health minister of the state of Guanajuato, said that the public authorities routinely send rape victims to VIFAC,¹⁴⁸ an organization that provides assistance for pregnant women on the condition that they do not seek to procure an abortion.¹⁴⁹  “Mariana Guerrero,” a fifteen-year-old girl in Guanajuato who was raped and made pregnant by a neighbor when she was twelve, told Human Rights Watch that the public prosecutor told her that she could give birth at VIFAC.  Guerrero said that no one at the public prosecutor’s office or the public hospital had told her she could have terminated the pregnancy.¹⁵⁰ 

In Jalisco, the state program for pregnant adolescents employed aggressive anti-abortion strategies to change the minds of those girls who ask for assistance in obtaining a legal abortion, including anti-abortion psychological counseling and exposure to anti-abortion video-tapes.  Asuzena Leal relayed to Human Rights Watch the “success” of this approach:

In the last case we had, we showed a video of how an abortion really is,¹⁵¹ because the [thirteen-year-old] girl came to us with every intention of having an abortion, and the psychological counseling didn’t help [i.e. didn’t convince her otherwise].  And she ended up deciding to keep the child. … We also had the case of an eleven- or twelve-year-old girl who had been raped by her brother. … She came here wanting to have an abortion, but we worked with her psychologically, and in the end she kept her baby.  Her little child-sibling.¹⁵²

No Legal Abortion for Incest and “Estupro”

If you talk to a girl [who was raped by her father], the first thing that passes through her head is that she wants to have an abortion.  But there is nowhere to go.
—Head of program for adolescent mothers at a public hospital in Jalisco¹⁵³

Only women or girls who have become pregnant as the result of a rape—as defined in the law—have the right to access a legal abortion.¹⁵⁴  “Incest” and “estupro” are defined as wholly or partially voluntary forms of sexual intercourse and therefore less serious crimes than rape. ¹⁵⁵  These legal provisions contribute to minimize the seriousness of sexual assaults by providing public prosecutors with an opportunity not to classify involuntary sex against underage victims as rape.  Moreover, they deny some underage victims access to essential health services—such as legal abortion—that should be universally available.  Further, these provisions have the intended or unintended effect of supporting the myth that many rape victims are lying and in fact were not raped at all. 

In some cases investigated by Human Rights Watch, public prosecutors opted to file charges for crimes less serious than rape, thus closing the possibility for a legal abortion, even when rape charges were entirely appropriate.  This was the case for “Graciela Hernández,” a sixteen-year-old girl from the state of Guanajuato, who was raped repeatedly by her father for more than a year.  Hernández and her mother reported the rapes to the authorities in 2002 when Hernández found she was pregnant.  The legal file contains graphic testimony of the abuse, and an unequivocal petition to the authorities for help in terminating the unwanted pregnancy: 

And I want to declare that I don’t want to have the child that I am expecting, because I will not be able to love it. Because it is my father’s, I will not be able to love it.  And I also don’t know how it will come about, if it [the pregnancy] will go wrong.  And I also don’t want it because I didn’t want to be pregnant, and that’s why I want you to help me to have an abortion, because as I already said, I don’t want to have this child, because it is my father’s and I don’t want it. ¹⁵⁶

Verónica Cruz, director of an NGO that worked directly with Hernández and her mother in their efforts to obtain a legal abortion, explained to Human Rights Watch that the public prosecutors, after ignoring Hernández for weeks, took advantage of the girl’s official testimony that she did not want her father to be detained or incarcerated because she “still love[d] him as a father,”¹⁵⁷ to change the charge from rape to incest:

The mother supported [Hernández] in wanting to have an abortion … Her lawyer accompanied her daily for a month [to the prosecutor’s office] so that they would give her the authorization. … The prosecutor made a comment that the girl might have wanted to [have sex with her father]. … That was one of those cases where [the prosecutors] changed the charge from rape to incest, because for incest there is no access to legal abortion, and also it’s less [prison] time for the rapist.¹⁵⁸

Hernández ended up carrying the pregnancy to term, and as of December 2005 was living with her parents, siblings, and child.  The Attorney General of Guanajuato denied that this, or any other cases of women or girls asking for a legal abortion after rape during the past five years, existed at all:

Having conducted a review of our archive, I am in a position to be able to reiterate that the Government of Guanajuato does not possess any files from the past five years in which a woman expressly has asked for an authorization to interrupt a pregnancy that was the result of rape.¹⁵⁹

Undue Delays

In several states, it can take months to get legal authorization for abortion after rape, effectively ruling out the possibility of a safe abortion.  An abortion is not a medical procedure that can be put off for an indefinite period.  In many cases, as rape victims deal with objections from public prosecutors, public health personnel, social workers, and family members, their pregnancies progress, sometimes to the point of making medical intervention impossible.

In some states, delays are required before legal authorization for abortion after rape can be granted.  The attorneys general for Guanajuato, Jalisco, and Yucatán told Human Rights Watch that decisions on access to legal abortion can be made only after full legal investigation of the rape, which typically take months.  In some places, officials even implied that the rape trial would need to be completed and there would need to be a conviction before a woman could seek an abortion. “The judge is the only one who can determine if there has been a crime,” said Daniel Chowell, attorney general of Guanajuato.¹⁶⁰  He continued: “Our doubt is if we can authorize [an abortion] during the investigation phase [related to the rape case].”  Salvador González, attorney general from Jalisco, agreed:  “One would have to be certain that [the pregnancy] was the result of a rape. ... There has got to be some kind of [judicial] sentence [establishing that the pregnancy is the result of rape].”¹⁶¹  Armando Villarreal, attorney general of Yucatán, insisted further that the suspected rapist would need to be arrested and the criminal investigation would need to be completed before a woman or girl could seek abortion after rape.¹⁶² 

All three public officials declined to give an average or median time for a typical rape investigation, but other public officials and NGO representatives told Human Rights Watch that investigations take at least three months and generally more.  Claudia Salas Rodríguez from the state Women’s Institute in Jalisco, which closely follows legal cases on sexual violence, explained that in her experience the minimum time frame for a typical rape case was three months.

Some state penal code procedures include a time limit of gestation for when a legal abortion may be carried out.¹⁶³  Other states do not have a codified time limit, but in practice apply a limit of ten to twelve weeks’ gestation.  Since most rape victims do not know they are pregnant until at least one full month into the pregnancy (defined in obstetric terms, and therefore legally, as a six-week pregnancy ), waiting for the legal investigation to be completed can in practice make legal abortion impossible.

Meanwhile, rape victims who request a legal abortion with a public prosecutor are often not told that they have to wait for an authorization or denial until the end of the legal investigation.  As a direct consequence of the lack of guidelines on the implementation of the right to access legal abortion after rape, rape victims who request an abortion are often sent from one public authority to another, as most officials claim ignorance or a lack of mandate to deal with the issue. 

“Abortion is like a hot potato: they pass it from one to the other, and no one wants to have it in the end, ” said Salvador Díaz Sánchez, a forensic doctor from the state Institute of Forensic Science in Guadalajara, Jalisco.¹⁶⁴  Laura Gutiérrez López, from a grassroots and advocacy women’s organization in Baja California Norte, agreed: “It doesn’t have to do with a lack of resources but rather with the fact that the public prosecutors don’t authorize [the abortions]. … Despite the fact that it is legal, they keep putting women off. ... They keep hiding behind the fact that there is nowhere to send the women [for actual services].”¹⁶⁵ José Manuel López, an NGO representative who has worked directly with rape victims for years, added: “The public prosecutors say that they can’t authorize it because [abortion] is not within their mandate, and the doctor says that he needs an authorization.  They pass the ball from one court to the other. … We have cases where the women have asked for an authorization, and they don’t grant it, and they don’t deny it.”¹⁶⁶   

This was Sandra Rodríguez’ experience in Guanajuato: the legal abortion she asked for was neither authorized nor denied, it was simply declared impossible.  Rodríguez, mentally disabled, was twenty-nine years old when she was raped by a neighbor in late 2002.  Rodríguez’s mother, Martha Macias, discovered that Rodríguez was pregnant a month later, and filed a complaint with the public prosecutor in February 2003.¹⁶⁷  Also in February, when Rodríguez was fifteen-weeks pregnant, the state psychological expert witness noted in her report to the public prosecutor that Rodríguez had a mental development equivalent to that of a ten-year-old girl, and that Macias, as Rodríguez’ legal guardian, was asking for assistance in obtaining a legal abortion for her daughter.  This request was formalized in a letter from Macias to the public prosecutor’s office that same month.  The state forensic doctor did not send an evaluation of the medical feasibility of an abortion until twenty-two days later.  At this point, Rodríguez was nineteen-and-a-half weeks pregnant.  The forensic report concluded that an abortion should not be attempted after twelve weeks’ gestation; that Rodríguez already was thirteen weeks pregnant when she filed the complaint in the beginning of February; and that the second trimester of the pregnancy (between twelve and twenty-eight weeks) is considered a period of very high maternal morbidity and mortality if a woman has an abortion.¹⁶⁸  Rodríguez had to carry the pregnancy to term and ended up giving the infant up for adoption.¹⁶⁹

In another case, in which the rape victim was accompanied by social worker Hilda Chávez Díaz in Mérida, Yucatán, a twelve-year-old pregnant rape victim was passed from one agency to another despite the fact that a medical doctor from a public health facility had recommended a “therapeutic abortion”¹⁷⁰ when the girl was only one-month pregnant.  Chávez recalled:

It was a twelve-year-old girl, she came from the rural part of the state. ... The first doctor had seen her [when she was only] one month pregnant. ... The next clinic at eight weeks. ... When she came to Mérida, she was twelve weeks pregnant. ... I went to [the health centers linked to] social security, I went to [the public hospital].   I went to the offices of those in charge. ... Everyone turned their back.   They said: “It is not possible.”  I brought the article [of the state penal code] where it says that [abortion after rape] is within the provisions. ... In the family services agency [where I worked] they wanted her to have the child by any means. ... They said to me that she was many months pregnant now, and I said: “That’s because you have told me no for so many months.”¹⁷¹

Intimidation in the Justice Sector

Several rape victims or family members of underage rape victims described direct intimidation in the justice sector as they sought access to legal abortion for themselves or their loved ones.  Marcela Gómez, mother of an adolescent rape victim, told Human Rights Watch that a public prosecutor had told her abortion was criminal even in cases of rape: “The [special prosecutor] answered me in an insulting manner that: ‘If you are coming here for me to authorize [a legal abortion], I am not going to authorize anything.  I don’t agree with it, and if you want to do it, that’s your business, but it’s a crime’.”¹⁷²  Martha Macias, whose daughter had been raped, had a similar experience: “I went to the special prosecutor for the victims of sexual violence. … She threatened me, she said: ‘Abortion is a crime.  We will be watching you.  If you have [your daughter] have an abortion, it is a crime.’ … She threatened me: ‘If [your daughter] has an abortion, you are going to jail.’”¹⁷³

Hilda Chávez, the social worker from Yucatán who personally accompanied many rape victims in their dealings with the justice and health sectors, said threats, in her experience, were common: “[A] thing [doctors and prosecutors] say is that you are risking the life of the underage girl, and that her mother could go to jail [for asking for an abortion for her daughter].”¹⁷⁴

States with Administrative or Legal Guidelines for Abortion after Rape

Specific procedures on abortion after rape can and at times do lead to better access.  In fact, in Morelos and the Federal District (Mexico City), the two jurisdictions Human Rights Watch visited that had legal and policy guidelines on access to legal abortion, access was more available than in states with no legal guidelines or procedures.  Moreover, Human Rights Watch found public authorities in these jurisdictions to be considerably more open to dialogue than in other states we visited.  In fact, continuous legal and administrative reforms, in particular in the Federal District, indicate a certain amount of political will to address the issue.

Isabel Ocotl, a social worker in Morelos, told Human Rights Watch that the existence of the procedures and of an institutional policy to accompany women and girls through the process had made a very concrete difference: “I have been working for fourteen years in the municipality, and just as long as a social worker … and I had never before worked on abortion. … Never, in all of those years, did we work on the right to abortion.  That’s only since February [2005], and we are still learning. … In August [2005] we had a workshop … we are only just learning about it.”¹⁷⁵  Asa Christina Laurell, health minister for the Federal District commented: “It has helped a lot [on access] that it is an institutional policy.”¹⁷⁶

Nevertheless, the existence of the formal procedures has not guaranteed unobstructed access to safe and legal abortion for all pregnant rape victims.  Human Rights Watch documented three main reasons for this.

1) The procedures are long and complicated, involving multiple experts tests and intervention by at least three different state offices;

2) They have not been implemented with a view to overcoming the deep-seated societal stigma attached to both rape and abortion; and

3) Public officials who do not follow the guidelines or applicable law (including in particular those who ignore or misinform rape victims) are not sanctioned.

The result is a lack of information, dismissive attitudes, confusion, and delay, often to the detriment of women’s and girls’ health and choices.  Thus legal abortion continues to be generally inaccessible to rape victims who seek to maneuver through the convoluted process without accompaniment by NGO volunteers or legal advisors who know the procedures well and are able to stand up to obstructive justice officials and service providers. 

Our interviews with girls and women confirmed that obstacles in accessing abortion after rape start with a general reluctance to report rape in the first place, a reluctance that is based on prevailing impunity and the presumption—sometimes accurate—that public prosecutors, police officers, and public health providers will require payment in excess of what most rape victims and their families have.  Until these underlying issues are addressed, the most diligently implemented guidelines on access to abortion after rape will not lead to unobstructed and equal access.

A medical doctor in Mexico City summed up the obstacles pregnant rape victims continue to face there, despite the specific procedures established in 2002 for abortion after rape:

[After a rape], at first [the pregnant victims] panic, then they are afraid, and then they are completely alone, because they can’t tell the family. … The family says: “You provoked it.” … [Public prosecutors] tell them that they went out in short skirts or “you are to blame because you left work late.” … And secondly, women have to face the Mexican judicial system, where everything has to go through [bribes]. … And when she goes to the hospital with a situation that is somewhat solved, that is: with an authorization, the doctors themselves don’t have an appropriate attitude.  They say: “This is very dangerous.  You will bleed to death.  You won’t be able to have children.” … There is also the possibility of conscientious objection.  The doctors say: “It may be legal, but I am not doing it.”¹⁷⁷

Unduly Complicated Procedures

All procedures for access to legal abortion in the three jurisdictions¹⁷⁸ that have issued such a procedure require the rape victim to report the crime to the authorities. While this provision is not inherently objectionable or necessarily onerous, the procedures further stipulate that the public prosecutor cannot authorize a legal abortion until the basic elements of the crime are proven, or until it can be presumed that the pregnancy is the result of the reported rape.¹⁷⁹  It is these further legal requirements, which are directly related to the general criminalization of abortion in Mexico,¹⁸⁰ that often cause undue delay.

On the positive side, the criminal procedure codes in the Federal District and Morelos establish an obligation on the part of the public health system to provide both pregnancy tests and—where appropriate—abortion services for rape victims that fall within the codes’ criteria.  The codes also stipulate that the doctors who would carry out the interruption of the pregnancy must provide information about the risks of abortion, but in a manner that in no way could compel a pregnant woman to avoid having an abortion.¹⁸¹  

Another positive requirement is the tight timeline for issuing an authorization for the termination of the pregnancy.  In all three jurisdictions, the public prosecutor must give his or her authorization for a legal abortion to the pregnant rape victim within twenty-four hours from the moment the victim asks for an abortion, if the requirements established in the code are all complied with.¹⁸² 

The procedures include additional requirements that the rape victim declare herself to be pregnant and that the pregnancy be confirmed by a health provider; and that the pregnant rape victim has asked for an abortion.  Morelos adds a final requirement: that two specialized medical doctors have issued a clinical report on the health of the pregnant woman and the “product” of the rape.¹⁸³  While it is essential to ensure informed consent and evaluate the general health of a patient before any medical intervention, these reports are not necessary for the public prosecutor to authorize the abortion and often cause delays.  Counseling, ensuring informed consent, and evaluating the patient’s health prior to the abortion could (indeed should) in all cases be a routine part of carrying out the intervention in public hospitals.

The justice and health authorities in Mexico City have issued their own regulations that add to the requirements of the criminal procedure code.  These regulations are of binding character within their respective institutions, though such regulations must always comply with the requirements and obligations set out in the law.  In the justice system, guidelines from 2002 give the public prosecutor twenty-four hours to authorize a legal abortion from the moment all requirements in the criminal procedure code are complied with.¹⁸⁴  The guidelines emphasize the public prosecutor’s obligation to ensure that the rape victim receive “impartial, objective, accurate, and sufficient information” about the “procedures, risks, consequences, and effects” of an abortion “as well as about existing alternatives [to an abortion], so that the pregnant woman can make her decision to interrupt or not her pregnancy in a non-coercive, informed, and responsible manner.”¹⁸⁵  This information can be provided by the attorney general’s specialized agency for sexual crimes or by any health institution in Mexico City.

The Federal District’s Health Ministry’s internal guidelines, also from 2002, require hospital personnel to provide the abortion procedure within ten days of the pregnant rape victim’s first visit to the hospital.¹⁸⁶  Apart from a formal authorization from the attorney general’s office, the health system also requires the informed consent of the patient.¹⁸⁷  These guidelines were developed in coordination with, and under pressure from, NGOs with experience in working with victims of sexual violence. 

In 2003, a reform of the health law in the Federal District established tighter deadlines, requiring public health authorities to provide free legal abortion services within five days of the rape victim, or other entitled pregnant woman, presenting herself at a hospital.¹⁸⁸  Similar provisions were approved for Baja California Sur in December 2005.¹⁸⁹ 

The Federal District health ministry’s guidelines have been criticized for imposing an additional requirement on the rape victim in that it sets the time limit for a legal abortion at twenty weeks of gestation,¹⁹⁰ a requirement that is not included in the Federal District’s criminal procedure code or the health law.  “When more than three months have passed [of pregnancy], [the health system workers] don’t want to do it,” said Bárbara Yllán Rondero, the head of the attorney general office’s deputy office on services to victims.  “But the law does not say that.”¹⁹¹  Asa Christina Laurell, health minister for the Federal District, defended the additional requirement as a necessity to ensure the provision of services:

The guidelines … were developed by a group of authorities and NGOs, so that it would represent a consensus. … The only thing that was really the focus of discussion around the guidelines was the time limit of twenty weeks. … Some of the participants [in the drafting process] did not want to have any time limits. … [We included the limit] first of all because [abortion] becomes more dangerous for the woman … and also because of resistance from our personnel, even those who were in favor [of legal abortion for rape].  [Resistance] increases noticeably [the further along a pregnancy is].¹⁹²

The administrative guidelines include reasonable provisions that should be part of standard health procedures, such as confirming the existence of a pregnancy and ensuring the rape victims’ informed consent to the abortion procedure.  Moreover, the fact that the guidelines are so detailed potentially reassures public officials who otherwise could be afraid that they were not operating within the limits of the law.

However, as currently stated and implemented the procedures create a maze of sometimes duplicate requirements that can cause delays, despite the specific time limits they include.  Moreover, our research indicated that rape victims of all ages found it difficult to navigate the requirements by themselves—and they are often alone.

Illegal Delays

The guiding principle that rape victims’ request for legal abortions be approved in timely fashion is at times infringed even when the law or administrative guidelines establish a clear timetable.  “[Rape victims] go straight for an illegal [i.e. unofficial] abortion, because the legal process is very slow, and so when, in the end, they are told ‘yes,’ [then] they can’t have the abortion [anyway, because the pregnancy is too advanced],” said Juliana Quintanilla, head of a human rights organization in Cuernavaca, Morelos. “We know, because we have had to [physically] accompany [rape victims].”¹⁹³

Some public prosecutors appear not to understand the time-sensitive nature of these cases.  “Gloria Jiménez,” who was raped in Mexico City, went through all the preliminary tests and medical reviews required by the law before she was told that the public prosecutor in charge of her case would not make a decision on it until he was back from vacation, three weeks later.¹⁹⁴  “Lidia Muñoz,” a twenty-five-year-old woman who was drugged and raped by strangers in Mexico City, was sixteen weeks pregnant when a public prosecutor told her to wait two weeks for the authorization for a legal abortion.  The NGO representative who was with Muñoz at the time recalled:

Then I said: ‘Listen, you can’t tell her to wait two weeks.  That girl is sixteen weeks pregnant, and later they are not going to want to do the interruption [abortion].’  The public prosecutor answered: ‘That’s not my problem.  She should have thought about that.  I am going to set up a meeting for her in two weeks.  Now, please go away, because you have nothing to do here.’¹⁹⁵

Some public prosecutors acknowledged their failure to comply with the law’s time limit, but sought to justify the delay by saying that not all legal requirements had been fulfilled: a medical report had not been filed, for example, or there were not enough elements for the public prosecutor to presume rape. “The law gives me twenty-four hours, but I can’t comply with the law because I am not given all the elements I need to authorize [the abortion],” explained María de los Angeles Rosales Grahanda, head of the attorney general’s specialized agency on crimes against family order in Cuautla, Morelos. “It is not my function as public prosecutor to follow-up on all those procedures.”¹⁹⁶ 

NGO representatives say the delays reflect confusion among public prosecutors who do not know the law and do not inform the rape victims.  María Luisa Becerril, who has personally accompanied several rape victims to public hospitals and in the justice system, said public prosecutors continued to provide faulty information and assistance to rape victims, even after Morelos implemented the detailed guidelines in 2000.  She continued: “The public prosecutors could give the authorization, before they arrest the rapist, before they do anything else. ... The law is quite flexible, but they don’t understand it.”¹⁹⁷  Indeed, the procedures do not require the rape to be fully investigated before the legal abortion is authorized: they require the public prosecutor to establish sufficient elements to presume that the pregnancy is the result of rape.

In some cases public prosecutors added requirements not included in the law, causing more delays.  Marisol Martínez, a social worker in Cuautla who had accompanied almost all girls and women seeking legal abortion in that city over the two years prior to the Human Rights Watch visit, referred to several specific cases where the authorities had added such requirements.  In one specific case, Martínez recalled:

The same day [the adolescent victim and her mother came to me] I went with them to report the crime with the public prosecutor. … They ask for five things: first, that you report the crime with the justice system.  Second, a psychological witness report [not mentioned in the law]. … Third, the report of a forensic doctor.  Fourth, that of a social worker [also not in the law]. … Fifth, and this was a mess, they sent us somewhere else for her clinical history, her blood sample, her pregnancy test. … It was very tiring. … And it wasn’t until [twenty-two days after they filed the report] that they finally did the procedure.¹⁹⁸

Social workers and NGO representatives from both Morelos and Mexico City said that they had witnessed several cases of illegal delay both in the justice and the health system.  “When they [rape victims] come here, they are already five [or] six weeks pregnant, sometimes even eleven,” said Leslie Alonzo Pérez, legal advisor for the state agency for the defense of minors in Cuautla, Morelos.  She noted that rape victims in her experience must wait at least four days for an authorization for a legal abortion, four times more than the twenty-four hours stipulated by law.  Alonzo continued:  “And then there is the bureaucracy [in the health system] of ‘Oh, the [hospital] director did not come in today. … He will be there tomorrow.’ … Or that no one wants to do it. …. So between all that, at least two weeks go by [after the authorization].”¹⁹⁹

A medical doctor from Mexico City who provided abortions to rape victims at low cost without official authorization, told Human Rights Watch that his commitment to do so sprung from the fact that the legal process often was too drawn out:

Time is an obstacle.  If you have a pregnancy that is two weeks along, in obstetric terms it is a four-week pregnancy. Then you file a complaint, and there goes another three-four weeks. ... The public prosecutor issues the authorization and the girl goes to the hospital, and they send her to the Ethical Committee, and that’s where she loses time. ... And to top it off, if [the hospital] says yes, you have to look for a provider, because now  doctors are expressing their conscientious objection [to performing the procedure]. ... This implies that in the end the woman may not be able to get [the abortion].²⁰⁰

In the health system, doctors and hospital directors admitted that delays were common, but sought to justify them with reference to a generalized resistance to carrying out abortions.  “The problem is … well, it’s a personal issue, a question of education, or culture,” said Francisco Sánchez Martínez, deputy director for a General Public Hospital in Cuautla, Morelos.  He continued: “I can’t force a gynecologist to carry out an abortion.”²⁰¹  This kind of explanation highlights the inherent problem in placing the essential decision-making power for abortion after rape with medical doctors and public prosecutors, and not with the rape victims themselves: in this system, the procedures and formalities have more legitimacy than the rape victim’s right to a legal abortion.

Lack of Information or Biased Information

Many girls and women continue to have limited access to accurate information—and thus to informed decision-making—even in states where access to legal abortion is regulated.  A 2003 independent survey concluded that 74 percent of low-income women in Mexico City (where procedures exist) did not know that abortion is legal in some circumstances.²⁰² The value of public information on the legality and availability of abortion after rape cannot be overestimated.  On the most basic level, it legitimizes to the rape victims themselves the very difficult choice they make regarding an imposed pregnancy, and as such it contributes to the de-stigmatization of both abortion and rape. 

More readily available information on access to legal abortion after rape would likely stimulate increased reporting of rapes more generally, which would be an important step toward overcoming impunity.  This is illustrated by the testimony of “Blanca Valdés.”  A cabdriver raped Valdés in Mexico City in the beginning of 2005, resulting in a pregnancy.  Valdés told Human Rights Watch that she had not known that she could have asked the authorities for a legal abortion.  She did not file a complaint after the rape because she some years earlier had met with a dismissive attitude when she had tried to file a complaint against her violent husband.  With the help of a friend, she identified a clandestine clinic where she could get an abortion.  It was at that clinic she found out that abortion after rape is legal in Mexico City:

Then the [clinic’s] psychologist told me that the law had changed, and that if I had reported the rape then I would have had a right to do this. ... And then you tell yourself: perhaps it is not such a bad thing I am doing. ... And it would be true to say that I wouldn’t be able to love that child. ... That’s when I thought: I wish I had reported the rape, but it was too late. ... Today, if you were to ask me now: “Would you report the case?”  I would say yes, because it would have allowed me to decide [about the abortion] without fear.  Because that is how I felt: afraid.  Afraid to die, afraid to bleed to death.²⁰³

Unfortunately, Human Rights Watch’s research indicates that Valdés might not have met with an understanding attitude had she reported the rape and tried to obtain a legal abortion through official channels.  As Marta Gómez Silva, a psychologist from an NGO that works directly with victims of violence in Mexico City, put it: “In may cases, we found that women don’t get the necessary information.  They are pressured into keeping the product [of the rape].”²⁰⁴  Bárbara Yllán Rondero, head of the state’s office for victim services, agreed: “It is a topic that has been ideologized. ... [In the justice system] there is ... a lot of trying to get women to withdraw their request [for an abortion] with criteria that are not very ethical, not very professional.”²⁰⁵

The lack of public information and continued stigmatization of the issue at times result in the denial of a legal abortion in the health system, even when a rape victim had obtained an authorization.  Aurora del Rio Zolezzi, from the national health ministry, told Human Rights Watch that women continued to be turned away from health centers in Mexico City, despite the procedures, because hospital directors still fear administrative sanctions:

There have been situations where women come to the hospital with the authorization [from the public prosecutor’s office], and still the hospital director gets his lawyers to analyze if the person signing the authorization is really mandated to do so. … But if [the hospital] complies and it is not the right person [who signed the authorization], then the sanction is not on [the hospital] but on the person who signed the authorization.²⁰⁶

“Covert” Provision of Abortion Services and Continued Stigmatization

The guidelines on access to legal abortion have, in both the Federal District and in Morelos, been implemented in a manner that creates additional obstacles for rape victims.  Both in Mexico City and Morelos, the actual provision of legal abortion after rape departs from the written procedures in that it is carried out largely “underground.” In fact, public officials in these jurisdictions have chosen to “hide” legal abortion services as much as possible, with only a small handful of people knowing where, when, and how the procedures are carried out.  Public officials told Human Rights Watch this “covert” provision of legal health services was necessary to avoid anti-abortion protests.  However, the result of the “covert” provision of a legal health procedure is further confusion for rape victims who are not told whom to approach.  Moreover, hiding away legal abortion after rape does nothing to overcome persisting stigmatization of the issue.

In Mexico City, despite guidelines that give rape victims a free choice between adequately equipped public health centers and hospitals, very few doctors actually carry out legal abortions.  Moreover, the locations are not disclosed to the public.  Asa Christina Laurell, health minister of the Federal District (Mexico City), explained: “We now have two teams in two hospitals.  We haven’t really put out there too much where, because there are groups that are militantly opposed [to abortion].”²⁰⁷  This system only works where pregnant rape victims arrive from the attorney general’s office with very specific instructions to go directly the health minister’s office.  Laurell acknowledged that the “covert” approach has led to confusion and delay for rape victims: “Sometimes, the public prosecutors send the women directly to the hospital without letting us know, and that can create a mess.  They could get sent away again.”²⁰⁸

In Morelos, the health ministry has organized available health personnel in trained teams of professional health personnel, called “commandos,” that can carry out legal abortions in hospitals in cities where they otherwise do not work, in order to avoid potential protests and harassment in their communities.²⁰⁹ 

Blanca Estela Gutiérrez Amar, a gynecologist at a public hospital in Morelos, confirmed that legal abortions for rape are performed covertly: “The [hospital director] has always demanded from us that we do it with maximum discretion. … We practically don’t do any paperwork [on those cases]. … We don’t admit them like other patients.”   Gutiérrez felt the hidden nature of the services helped to avoid problems, though she acknowledged that abortion-related stigma continued:  “There are people who are too wedded to their ideas. … People do make [negative] comments.”²¹⁰

Social workers and NGO representatives told Human Rights Watch that the existence of the commandos created confusion, because it was unclear, in each case, if a commando or local health professional would carry out the abortion.²¹¹  Furthermore, Marisol Martínez, a social worker from the state Integrated Family Services agency in Cuautla, Morelos, said that the commandos were less likely than local doctors to provide post-abortion care: “I have followed all the cases in Cuautla since 2003. … [The commandos] are all doctors that I don’t know. … And they just do the intervention and then they leave. … After that, it’s ‘You take care of it!’  I prefer to [send my clients] to local doctors.”²¹²  Rosalena Cabañas, nurse at the public hospital in Cuautla, confirmed that the commandos are used—somewhat successfully—to avoid protests, but that they do not follow up on cases: “They do it very privately.  She [the rape victim] arrives, the team comes, it is done, and they leave again.  To avoid morbid questions.”²¹³

Intimidation in the Health Sector

The failure of public officials to adequately address the stigma related to abortion and rape has contributed to perpetuate the pervasive intimidation of rape victims and even health professionals, even where access to abortion after rape supposedly is guaranteed by codified procedures.  Claudia Moreno, an NGO representative who has carried out research on access to legal abortion in Mexico, said: “In the public hospitals, you should see what they say to the women: … ‘If [the aborted fetus] weighs more than 500 grams [just over a pound], you’ll need a coffin.’ … And they make [the rape victims] wait. … There are even resident doctors who scream at the doctors [who carry out the abortions]: ‘Murderer!’ and so on.”²¹⁴

Sometimes, the intimidation seems directed at discouraging the rape victim from going through with a legal abortion that has already been authorized.  A medical doctor in Mexico City who unofficially performs abortions for rape victims told Human Rights Watch that many of his patients relayed to him the difficulties they had faced in procuring a legal abortion through the public health system: “They put [the women] through the Holy Inquisition.  They review your sins and decide about your life.  Even when the woman has an authorization.”²¹⁵  An NGO representative was present when “Lidia Muñoz,” a twenty-five-year old rape victim, was intimidated by medical personnel in a public hospital:

When she got the authorization and went to the hospital to have the [abortion] done, the doctor in charge of her care said to her: ‘We are going to have many problems, because we are going to have to do a death certificate [for the aborted fetus].  You are going to have to bring a hearse, [and] to buy a coffin to take away the body, because we can’t have the body here.²¹⁶

Sometimes, the intimidation continues even as the legal abortion is taking place.  In Mexico City, for example, some public prosecutors insist on taking photos of rape victims before and after a legal abortion, of the health personnel that participate, and of the fetal remains.  This happens “in a sort of logic of intimidation,” said Noemí Ehrenfeld, expert of psychology with the Autonomous University of Mexico, who studies access to legal abortion in Mexico City.  “Some people see this as a good thing so that women don’t lie,’” she continued.²¹⁷  José Luis Fernández Silva, advisor to the health minister in the Federal District in charge of making access to legal abortions run smoothly in Mexico City, told Human Rights Watch that the presence of the public prosecutors during the medical procedure was necessary to collect evidence for the rape cases.  While Fernández acknowledged that it could be intimidating to rape victims and health personnel, he believed this issue could be dealt with by providing better information regarding the purpose of the photos and other collected “evidence:”

[The public prosecutors] come.  They have to take photos of our personnel, of the patient, of the product [the aborted fetus]. … They do not explain very well what it is all about, and that generates discomfort. … We have an obligation to tell the public prosecutor when the procedure will happen so that they can send their expert witness.  That’s when we have this problem that they don’t explain what they have to do: take photos, etc.²¹⁸

It is unclear in law how the photos taken immediately before and after a legal abortion would further a legal investigation for rape or be necessary to prove that an abortion had taken place.  It is, however, clear that this procedure—which is mentioned neither in the justice system nor the health system guidelines—can discourage health personnel from carrying out abortion procedures and rape victims from requesting them.

Health personnel and other public officials also are often discouraged from facilitating access to legal abortion directly by their peers, with little support from the heads of their institutions.  In Morelos, some public officials acknowledged that they had been the focus of negative comments and harassment.  Leslie Alonzo Pérez, a lawyer from the state agency for the defense of children who had accompanied several pregnant rape victims throughout the process to obtain a legal abortion, declared to Human Rights Watch: “We have some problems with people, they say: ‘stork-killers’ or ‘there go the abortionists’. … Even a guy who was detained for beating up his wife said that to me.”²¹⁹

The longer and more openly legal abortion services are provided, the fewer comments and protests public officials and service providers seem to encounter.  Rosalena Cabañas, a nurse at a public hospital in Morelos who has worked with several pregnant rape victims on their emotional health, confirmed this:

I did hear, in fact, with the first couple of cases, that some people [health personnel] said: “I am not going to do any of that.  Is it my fault [that she was raped]?  And what if I am thrown to jail?” … [Now] they hold their comments.  Sometimes they say: “The doctor [who carries out the abortions] probably doesn’t like children.”  But mostly they keep silent.²²⁰

Need for Accompaniment

Legal abortion is particularly inaccessible for rape victims who do not have sustained support from NGOs or volunteer legal advisors.  María Luisa Becerril, an NGO expert on access to legal abortion in Morelos, said: “What we have noticed is that it is [only] the cases that we monitor and accompany that get to the end [i.e. where the rape victim gets a voluntary abortion].  With the other cases: don’t even dream about it.”²²¹  In Mexico City, an NGO representative recalled a case in which a rape victim was initially told to wait three weeks for an authorization until the public prosecutor came back from his vacation: “In this case, [the rape victim and her NGO accompanier] decided to mention that they belonged to a nongovernmental organization which works on these issues [access to legal abortion] and surprisingly everything got much faster, and the authorization was granted on that same day.”²²²

Often, social workers and NGO representatives did more than accompany the victims.  They paid, out of their own pocket, for local transport, meals for the victims, and photocopies required by the authorities.  “More than being their lawyer, I have become their accompanier: I pay their ticket [for bus transportation], their food,” said Leslie Alonzo Pérez, a judicial advisor from Morelos.²²³  In some cases, the accompaniers even provided the medical necessities required for the legal abortion procedure to take place at all.  “All the Cytotec²²⁴ they use, I have given them, because they don’t have that at the hospital,” said Marisol Martínez Bautista, a social worker in the state agency for the defense of children, who has offered accompaniment in almost all the cases of legal abortion in Cuautla, Morelos.²²⁵  

In Mexico City, some accompaniment for rape victims is provided by the Federal District’s Institute for Women, a government agency.  Luz Rosales Esteva, director of the institute, said that she felt the accompaniment was part of the government’s commitment to fulfill women’s rights: “We channel [pregnant rape victims] to the health system and tell them what to expect, also with regard to legal abortion. … We accompany them … so that all obligations are fulfilled. … As government, our role is to fulfill the law.”²²⁶   Margarita Vásquez, responsible for the sexual crimes unit at the attorney general’s office of the Federal District, told Human Rights Watch that this office also provides some accompaniment, based on their assessment of the victim’s needs: “If it is necessary to accompany, we will accompany … especially if it is a minor or someone from a low socio-economic level. … Sometimes, [we] just place a phone call, and that is enough.”²²⁷

The accompaniment in the specific cases Human Rights Watch examined often proved essential to ensure that rape victims were treated with respect or, indeed, at all.  The need for accompaniment highlights weaknesses in the procedures that are meant to guarantee the right to legal abortion for rape victims.  “I worry about what will happen when I am not here anymore,” said Marisol Martínez.  “When people ask for an authorization [in Cuautla], they send them to me.”²²⁸  In fact, all other public officials Human Rights Watch spoke to in Cuautla on this issue referred us to Martínez.  One colleague said:  “I [was] doing the paperwork to see if [a sixteen-year-old girl] could get an abortion because she was raped. … And [the doctors are the public hospital] said: ‘Where is Marisol, she is the one who knows what to do’. … The social worker didn’t know [what to do] either.”²²⁹

Adolescent rape victims are often most acutely in need of accompaniment, because law and practice require that a family member consent to the abortion for them.²³⁰  This consent requirement is particularly problematic for two reasons.  First of all, the perpetrator may be the father or guardian who is asked to consent to the abortion.  Secondly, social workers and NGO representatives told Human Rights Watch that many pregnant adolescent rape victims are left emotionally and physically alone to deal with the imposed pregnancy, generally because the pregnancy is seen to bring shame on the family.²³¹  Leslie Alonzo Pérez, a lawyer from the state agency for the defense of minors in Morelos, told Human Rights Watch: “Sometimes [underage rape victims] don’t come with their family. … And for them to get the operation, there has to be a family member who signs. … And often, the father does not want to sign.”²³²

In order to effectively protect children’s human rights, Mexico needs to address this issue of consent, including by giving due weight to children’s own decisions in this regard.  The Convention on the Rights of the Child (CRC), ratified by Mexico in 1990, requires States Parties to “assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, [such views] being given due weight in accordance with the age and maturity of the child.”²³³  The CRC further stipulates:

States parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsibly for him or her, and, to this end, shall take all appropriate legislative and administrative measures.²³⁴

In its handbook on the implementation of the CRC, UNICEF analyzes these notions in the context of medical counseling:

The child’s right to receive medical counseling without parental consent is vital in cases in which the child’s views and/or interests are distinct from, or may be in conflict with, those of parents—for example in cases of violence and abuse by parents and other family members.²³⁵

The UNICEF handbook adds that a child may have a right to receive independent medical counseling before he or she is deemed capable of consenting independently to medical treatment, but that, in any case, the child’s best interest and provision of the necessary protection and care should be central guiding principles.²³⁶

In light of these interpretations, it is unquestionable that Mexico should provide full, comprehensive, and confidential medical counseling for adolescent rape or incest victims, including regarding the possibility of obtaining a legal abortion.  The provision of one-sided or medically inaccurate information decidedly does not fulfill this obligation. 

It is also unquestionable that, where adolescent rape or incest victims are abandoned or alone, Mexico must provide compassionate physical and psychological accompaniment throughout the legal and health process for the girls, as needed for their well-being. 

Moreover, international human rights law requires the state to ensure the protection of the best interests of all children.²³⁷  In those cases, the abandonment of the child by her family, or the family’s declared opposition to abortion, should not automatically result in the assumption that carrying the pregnancy to term is in the best interest of the child.  The state should in all cases set up adequate procedures to ensure adequate accompaniment and individual evaluation of each case.

Conscientious Objection by Medical Professionals

In Mexico City, the health ministry’s guidelines on the provision of legal abortion contemplates conscientious objection by doctors who are opposed to abortion, though there are limits on when such doctors can choose not to perform the procedure: “health professionals may abstain from particular in legal interruptions of pregnancies for reasons of conscience, except where the pregnant woman’s life is in imminent danger.”²³⁸ 

These guidelines were codified in law in 2003 when the health law of the Federal District was reformed to include similar provisions on conscientious objection.²³⁹  The guidelines and the law clarify that only individual health personnel may object, while institutions cannot, and also that the individual objector must refer the woman or girl to a doctor who does not object “in an immediate, responsible, and discreet manner.”²⁴⁰ The law further notes that the institution has an overarching obligation to ensure swift health assistance and the presence of non-objecting medical staff at all times.²⁴¹

In Morelos, no such guidelines exist.  Even so, Raúl Rangel Barrera from Morelos health ministry told Human Rights Watch that delays and denial of access to legal abortion procedures in the health system were somewhat arbitrary and related to doctors’ claims of conscience.²⁴²

Conscientious objection to performing abortions often is justified with reference to the human right to freedom of religion.  The right to freedom of thought, conscience, and religion is protected in the International Covenant on Civil and Political Rights (ICCPR) and the American Convention on Human Rights (ACHR).²⁴³  Freedom of religion includes freedom from being compelled to comply with laws designed solely or principally to uphold doctrines of religious faith.  It includes the freedom to follow one’s conscience regarding doctrines of faith one does not hold. 

The CEDAW Committee has explicitly stated in concluding observations that women’s human rights are infringed where hospitals refuse to provide abortions due to the conscientious objection of doctors and has expressed concern about the limited access women have to abortion due to conscientious objections of practitioners.  The committee has also expressly recommended that public hospitals provide abortion services.²⁴⁴

The International Federation of Gynecology and Obstetrics (FIGO) has, through its Committee for the Ethical Aspects of Human Reproduction and Women’s Health, issued ethical guidelines on conscientious objections for its members.  These guidelines clarify that the doctor’s duty to provide benefit and prevent harm to the patient must  at all times take precedence over any conscientious objection.²⁴⁵  The primacy of the provision of benefit and the prevention of harm requires all doctors to: 1) inform patients of all medically indicated options for their care, including options in which the practitioner declines to participate;²⁴⁶ 2) make every effort to achieve appropriate and timely referral;²⁴⁷ 3) give priority to patient’s life, health, and well-being, even it if means participating in procedures they normally would object to;²⁴⁸ and 4) respect patients’ choices within the medically indicated options for their care.²⁴⁹  The guidelines specifically note that “practitioners must provide timely care to their patients when referral to other practitioners is not possible and delay would jeopardize the patient’s health and well-being, such as by patients experiencing unwanted pregnancy.”²⁵⁰

Consequences of Limited Access to Abortion after Rape

Obstructing access to legal abortion after rape has severe consequences for the rape victims, for their families and communities, and for society as a whole.  The rape victims we interviewed mentioned many reasons they wanted to end the pregnancy that had been imposed on them, including mental health, physical health, poverty, and the possibility to get on with their lives after a traumatic experience.  In light of the obstacles noted in this report, many women and girls opt for clandestine abortions, with all the added risks such a course of action entails. “Blanca Valdés,” who was raped by a cabdriver in Mexico City, expressed how afraid she had been of dying from a botched abortion: “That’s how I felt.  Afraid to die, afraid to bleed to death.”²⁵¹

Valdés’ fear of the potential health consequences of undergoing an abortion under inadequate medical conditions is not unfounded.  Unsafe abortions constitute a grave threat to women’s health, and sometimes to their lives: worldwide, between 10 and 40 percent of women and girls who undergo unsafe abortions require post-abortion medical attention for complications such as incomplete abortion, infection, uterine perforation, pelvic inflammatory disease, hemorrhage, or other injury to internal organs.²⁵² 

Obstructing access to legal abortion after rape may have additional adverse consequences for girls.  Underage rape victims we interviewed who had not been able to procure an abortion told us that headmasters, teachers, or family members had pressured them to leave school without graduating.²⁵³  Other underage victims were thrown out of their homes, or threatened with eviction, often with nowhere to turn for help. 

The case of “Aurora Mejía,” a fourteen-year-old mentally disabled rape victim in Morelos, is illustrative, though Mejía, as opposed to many other girls in her situation, had the unwavering support of her mother and aunt.  Mejía’s mother, “Rocio Hernández,” told Human Rights Watch her husband had wanted to throw Mejía out when he found out she was pregnant.²⁵⁴  “Silvia Hernández,” Mejía’s aunt, said that her sister’s husband wanted to throw both Hernández and Mejía out: “Her father got very angry. [My sister] called me one night, she said: ‘Now he is throwing me and my daughter out, he says it is my fault [that she was raped.]’”²⁵⁵

In the context of continued rape-related stigma and limited public information on rape victims’ rights, abandoned underage pregnant rape victims are particularly vulnerable to clandestine and unsafe abortions.  María del Rocío García Gaytan, head of the state women’s institute in Jalisco, explained: “A girl who has been raped may or may not know that the law protects her. ... Her family may or may not support her in wanting to have an abortion. ... So if she decides to have an abortion, the last thing she is going to do is to look for the law to protect her.”²⁵⁶

Some rape victims told Human Rights Watch that the rape and pregnancy had left them with permanent or semi-permanent health consequences, including depression, internal scarring from botched clandestine abortions, and drug or alcohol addictions.²⁵⁷  In other cases, the additional mouth to feed constituted a real burden.  “What will I do with so many children, so many mouths,” asked “Andrea Sánchez,” mother to a mute adolescent rape victim.²⁵⁸  “Teresa Pérez,” also mother to a mute rape victim, acknowledged, ashamed, that she could not feed properly the child that resulted from her daughter’s rape: “He was only three or four months old when I had to take his milk away [because we had no money]. … Sometimes, he goes three days without milk.”²⁵⁹  Both Sánchez and Pérez had filed complaints on behalf of their daughters, and neither received a satisfactory response from the government regarding their daughters’ imposed pregnancies and the issue of justice more generally.  Sánchez recalled the public prosecutor’s response when she had asked if she could seek financial support for the child resulting from the rape: “[He] said to me ‘But if he [the rapist] does not have anything, what can we take from him?  He is just a poor guy.’”²⁶⁰