publications

V. Obstacles to Therapeutic Abortion

There are many obstacles to accessing therapeutic abortion in the public health sector in Peru, but they are not insurmountable. Some of those barriers are administrative and legal, including the absence of standard definitions, protocols, and medical guidelines; unpredictable approval procedures; lack of accountability; vague and restrictive laws that pit the provider’s professional obligations against misguided legal reporting requirements; and lack of social security (public health insurance) coverage for the procedure. Other barriers are attitudinal, based on fear of reprisals and confusion about the legal exceptions to abortions. Most of these obstacles can be attributed to the government’s failure to adequately inform women and girls of their right to therapeutic abortion, and the failure to inform medical personnel of their protection under the law and their professional obligation to provide these services to women and girls who need them.

Vague and restrictive laws and definitions

While abortion is generally criminalized in Peru, the Peruvian penal code of 1924 established that therapeutic abortion to save the life and protect the health of a pregnant woman would not be criminalized. In subsequent reforms the penal code has always allowed an exception to protect the interests of the woman. Article 119 of the present penal code, from 1991, states, “Abortion practiced by a physician with the consent of the pregnant woman or her legal representative, if applicable, is not punishable when it is the only means to save the life of the woman or to avoid serious and permanent damage to her health.”34 In 1989 a draft penal code was proposed to further decriminalize abortion in cases of sexual violence, non-consented artificial insemination, and fetal abnormalities incompatible with life (also referred to as eugenic abortion). The draft was approved by the Peruvian Congress, but was never promulgated by the executive office. Therefore, the revised code with the expanded exemptions never went into effect, nor did subsequent discussions on this topic ever yield concrete penal code reform for those additional exceptions.35

The current penal code imposes sanctions, in theory, for women who procure an abortion and those who provide the services.36 For the pregnant woman the maximum penalty is two years in prison or 104 days of community service. For the doctor, midwife, pharmacist, or other healthcare professional who performs an abortion with the woman’s consent, the maximum penalty is four years in prison. In aggravating circumstances, the practitioners can lose their licenses and any other military or police rankings or honorary titles or distinctions.37

Abortions performed without the woman’s consent carry stiffer penalties: five years if the woman survives, 10 years if she dies. Death also means the practitioner will lose his or her professional license.38

The penalties are reduced if the abortion is performed for “sentimental or eugenic” reasons, explained as reported rape outside of marriage, reported artificial insemination outside of marriage, or grave physical or mental defects with a medical diagnosis. In these cases, imprisonment is prescribed for no more than three months, although the penal code does not stipulate if for the woman, the abortion provider, or both.39

Although article 119 clearly provides exceptions to criminalization of abortion for the woman’s life and health, the law does not clarify (nor does any official regulation or protocol) exactly what circumstances entitle women to therapeutic abortion.

A key unanswered question is to what degree damage to mental health is contemplated as a ground for non-criminalized abortion under Peru’s penal code. The World Health Organization (WHO) defines health as “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.”40 But in those rare cases where some form of legal abortion has been practiced in Peru, the medical grounds cited referred to the threats to a woman’s physical health only. Dr. Luis Távara explains that the penal code “doesn’t specify what is meant by the term ‘health.’ It only looks at the imminence of death or [potentially fatal] problems of physical health without considering mental health repercussions.”41 According to Dr. Wilifredo Vázquez of San Bartolomé Hospital, “there is no consensus on the emotional aspect [legal exceptions for mental health]… A woman who gives birth to an anencephalic baby will suffer emotional damage…. We hope we always act within medical discretion.”42

Article 30 of the Peruvian General Health Law (number 26842) is very clear in requiring healthcare providers to report women who are suspected of inducing an unauthorized abortion to the police. The law establishes that: “the physician who gives medical attention to a person wounded by a knife, bullet, or traffic accident, or due to any type of violence that is punishable by law, or when there are indicators of criminal abortion, is obligated to report that information to the appropriate authorities.” Such an obligation requires physicians to violate women’s basic rights to health and privacy.43 The Medical College of Peru (Colegio Médico de Perú) issued a statement calling for the immediate repeal of article 30 in a national workshop held in Lima in March 2007.44

Absence of protocols on therapeutic abortion

The state is doing nothing to ensure that healthcare providers give women access to legal abortions. A major impediment to complying with existing law is the lack of a national protocol on therapeutic abortions or any regulation to clarify the law, despite Peru’s obligations under human rights law to ensure such clarity exists.45

The UN Human Rights Committee (HRC) in the decision of K.L. v. Peru ordered Peru to “adopt measures to avoid committing similar violations in the future.” Nongovernmental organizations and medical societies have called on the Ministry of Health to issue a national-level protocol on therapeutic abortion, as one of the most efficient ways to avoid such violations and to regulate and standardize this medical care. But progress has been very slow. Below we describe the evolution of the discussions on therapeutic abortion protocols at the national, regional, and local institutional levels.

National-level protocols

The Peruvian Ministry of Health (Ministerio de Salud, MINSA), under the guidance of then-Minister of Health Dr. Pilar Mazetti, started to discuss the development of a national therapeutic abortion protocol in January 2006. That year civil society organizations, human rights officials, conservative legislators, medical societies, high-level government employees in various ministries, intersectoral working groups, reproductive rights networks, and journalists battled publicly and privately on the theme of therapeutic abortion and the need for a protocol.

In May 2006 a group of civil society organizations sent letters to the National Human Rights Ombudsman Office, congressional representatives of various parties, MINSA, and the then-President of Peru Alejandro Toledo, expressing their profound concern about the lack of implementation of the recommendations in the case of K.L. v. Peru regarding therapeutic abortion. In response to one of those letters, the deputy ombudsperson for women’s rights wrote to the vice-minister of health, emphasizing the lack of implementation and all of the corresponding commitments the state had with respect to these types of services. The vice-minister of health, Jose Gilmer Calderón Ybérico, then charged the Ministry’s working group (estrategia sanitaria) on sexual and reproductive health with developing a protocol for national dissemination. The working group did so, then convened a meeting with a group of outside experts, revised the protocol, and returned it to the vice-minister of health in a matter of months.

In 2007, after a series of queries about the protocol’s status and with the clamor from civil society organizations ongoing, the minister of health notified concerned legislators on June 1 that the “technical guide project,” as it was known, had been channeled to the Presidential Council of Ministers (la Presidencia de Consejo de Ministros, PCM) for review by a multisectoral committee.46 Later that month Dr. Daniel Robles, a medical doctor and legislator for the ruling party, convened a public meeting for discussion on therapeutic abortion in the Congress in response to the persistent and urgent petition for public participation. Two days before the event, Dr. Robles canceled the meeting. Nearly a year later, it had not been rescheduled in spite of the ongoing attention to and importance of developing a protocol with input from civil society.

Human Rights Watch learned that the PCM returned the national protocol to MINSA in December 2007 with the observation that the protocol is unconstitutional. The PCM did not convene a multisectoral committee. The general legal counsel from the Ministry of Justice advised against convening a multisectoral committee for deliberation based on the observation that the contents of the protocol “contravene the constitutional and legal normative framework by affecting the fundamental right to life of the conceived [fetus].”47

At the time of writing, no national protocol on therapeutic abortion has been adopted.48 The protocol is again in limbo at MINSA.

In the absence of national guidance, a few hospitals and one regional government established protocols or technical guides on therapeutic abortions themselves, but in the process have faced great pressures and setbacks.

Hospital-level protocols

As part of the original vice-ministerial review and input for the draft national protocol, the National Materno-Perinatal Institute (Instituto Nacional Materno Perinatal, INMP), the oldest maternity hospital in Lima, was consulted for its expert opinion and comments. After months of uncertainty, waiting for a national protocol to be released, the INMP took matters into its own hands. In February 2007 Dr. Enrique Guevara, INMP director, issued a directive for the “integral management of therapeutic interruption for gestations of less than 22 weeks (therapeutic abortion).”49 INMP (known locally as the “Maternity of Lima”) sent a copy to the Ministry of Health for its records. On April 19, 2007, Calderón Ybérico of MINSA overrode the INMP’s directive and declared it null and void, for failure to adhere to proper administrative procedures.50 Shortly after that, the Ministry of Health removed Dr. Guevara from his leadership position for “exceeding his authority.”51 Dr. Esteban Chiotti, then the director of the General Directorate for People’s Health within the Ministry of Health, told Human Rights Watch that the hospital’s protocol “had flaws… and didn’t adhere to the established norms…. A [hospital] directive cannot regulate a medical act.”52

 

Elsewhere in the country, three hospitals still retain their individual protocols: the San Bartolomé Maternal-Child National Teaching Hospital in Lima (protocol issued in 2005),53 the Hospital Belén in Trujillo (protocol issued in 2006),54 and the Hipólito Unanue National Hospital (protocol issued in 2007) of Lima.55

These evidence-based hospital protocols, framed within the scope of existing laws, responded to an immediate need and were formulated with assistance from the Peruvian Society of Obstetrics and Gynecology, and in one case, with the technical support of the Sexual and Reproductive Rights Committee of the Latin American Federation of Obstetric and Gynecological Societies (Federación Latinoamericana de Sociedades de Obstetricia y Ginecología, FLASOG).56 Unfortunately, rather than supporting their implementation overtly or using them as a basis for a more inclusive national protocol, the Ministry of Health has remained silent about these existing protocols.

Regional-level protocols

At the regional level, only the health ministry of Arequipa has acted to regulate therapeutic abortion, citing 24 clinical conditions that are grounds for legal pregnancy interruption. The regional government published a protocol in December 2007 and in February 2008, publicly announced that the protocol would go into effect immediately for all public and private hospitals in the region. The counterattack was immediate and well-publicized in the newspapers and periodicals. Under direct pressure from the Archbishop of Arequipa,57 the highest regional authority of the Roman Catholic Church, the regional president suspended the protocol, stating that regional officials had not followed the appropriate constituent consensus process or sought the endorsement of the Ministry of Health or the Pan American Health Organization.58

Dr. Mercedes Neves, a public health specialist and 16-year employee of the Ministry of Health of Arequipa, noted that the unprecedented action is clearly “political maneuvering on behalf of the regional government” as a result of “a very aggressive campaign by the Archbishop” and goes “against their professional competence … [and] against decentralization.”59 The national Ministry of Health has not publicly announced its position on the regional protocol. At the time of writing, the regional health ministry of Arequipa is still waiting for MINSA’s pronouncement on the regional protocol. According to Dr. Neves, for the Catholic church hierarchy, “the protocol’s suspension is a triumph … and is a major setback for us.”60

The Bar Association (Colegio de Abogados) in Arequipa issued a statement to clarify the legal exceptions to the criminalization of abortion, claiming that the protocol is valid as stands.61 According to the president of the bar association, Hugo Salas, who spoke to Human Rights Watch, “the religious campaign [led by the Archbishop of Arequipa] is confusing therapeutic abortion with generalized abortion … [which] goes against the legal code.”62 He explained that this is the first time the Church has intervened in medical matters and opponents of the protocol are “confusing faith with medical and judicial matters…. The president of the regional government has dealt us a major blow in order to avoid confrontation with the Church…. [In response] we are preparing a lawsuit so that the protocol remains in force” in order to protect and defend the health and lives of women in the region.63

Ad hoc approval and referral procedures / lack of accountability  

There is neither administrative nor legal clarity on how women can obtain approval for therapeutic abortion in the public health system. Regardless of ambiguity, the principles of medical ethics dictate that healthcare professionals should act in accordance with the maximum benefits for the health and life of the person under their care, while always respecting the patient’s informed consent.

A staff obstetrician at the Maternity Hospital of Lima described the arbitrariness of individual physician decision making: “it depends on each shift, on what each doctor decides.”64 Dr. Miguel Gutierrez, the former president of the Peruvian Society of Obstetrics and Gynecology and a practicing gynecologist, said, “We are only beginning to learn how to streamline the procedure [for therapeutic abortion]…. We can’t really talk about a routine system.” A director at a public hospital where approximately 120,000 obstetric procedures take place each year acknowledged that “there have been very few cases [of therapeutic abortion]…. They are subject to the logic of each service provider.”65 Dr. Daniel Robles López, a trained physician and congressional legislator from the province of La Libertad said, “There are a lot of medical [conditions] that justify a therapeutic abortion … Why do we have to make the mother suffer when the fetus is not going to live?... But there should be some form of regulation surrounding this.”66

Ad hoc committees convened by hospital staff to approve therapeutic abortion have the final say. They work with no guidelines or concrete timelines, and by accounts from those interviewed by Human Rights Watch, approve relatively few abortions.67 Human Rights Watch was not able to obtain any written documentation on the formation or procedures of ad hoc medical committees for therapeutic abortion. As the name implies, the committees are convened spontaneously with the available physicians on call at the time of the procedure. According to Dr. Wilifredo Vázquez, director of the San Bartolomé National Mother-Child Teaching Hospital, the committee normally follows the decision that the attending physician has already made, and therefore serves as legal safeguard for the decision.68 Human Rights Watch was also told that it was only in exceptional circumstances that a committee is convened to debate a controversial case, which may require multiple meetings.69

There are also problems with referrals from physicians in other specialties. For example, several cancer specialists described how important it may be for women with cancer to interrupt pregnancies, but sometimes referrals from specialists to obstetricians and gynecologists for therapeutic abortion are delayed or not made at all. One cancer specialist explained that “in general, we don’t talk about pregnancy [with our female patients, but] ... it wouldn’t be advisable for a woman with breast cancer to get pregnant [because of hormone fluctuations].… For women with aggressive cervical cancer, they often have to interrupt their pregnancy because the radiation treatments will affect the pregnancy.”70 A gynecological oncologist at the same National Cancer Institute said that if a pregnant woman needs radiation treatments or chemotherapy, the attending physicians would first determine fetal viability. If the fetus were close to viability, the medical staff would withhold the woman’s treatment until she could have a Cesarean section delivery and begin treatment afterwards. Dr. Oscar Barriga recalls very few cases where they have referred women for therapeutic abortions. He said that some doctors in other hospitals “stalled and didn’t perform the procedure on time, so the fetus kept growing,” a situation that created more health problems for the patient and further delayed her treatment.71

In part due to the lack of standardized approaches to physician or committee approvals for therapeutic abortion, there is little, if any, accountability for healthcare providers who unjustly deny women therapeutic abortions. Human Rights Watch was not able to obtain any information about disciplinary actions against providers who failed to provide such abortions.

Fear of prosecution or malpractice lawsuits

An important obstacle to physicians’ performing therapeutic abortions in public hospitals is the risk of facing lawsuits, either medical malpractice suits or criminal prosecution. The lack of explicit policies and procedural guidelines can leave healthcare providers uncertain, unprotected, and less apt to apply the necessary medical exemptions to the penal code. The “chilling effect” the legal situation has on doctors when deciding whether the requirements of legal abortion are met in an individual case makes it all the more important that “provisions regulating the availability of lawful abortion should be formulated in such a way as to alleviate this effect.”72 Successful medical malpractice suits are practically non-existent in Peru, but one hospital director interviewed feels they may be on the rise.73 In addition, public hospitals do not provide malpractice insurance for their medical staff; each doctor is responsible for his or her own insurance and fees in the event of a lawsuit.74

According to information provided by the Lima Superior Court, there have been 108 arraignments involving 125 men and 111 women in the period between 2000 and 2007, 27 of which were for self-induced abortion, 20 for abortion without consent, and 10 for “eugenic” abortion.75 However, there is no information provided to identify the case numbers, exact years, charges, ages, circumstances, or outcomes of these cases.76 From this data alone it is impossible to determine how many of the total people arraigned were healthcare providers, how many were formally charged, or how many were obliged to serve prison time or perform community service.

There are no official statistics from the Ministry of Justice that indicate how many physicians and how many women have actually been sanctioned with community service or imprisoned for committing or submitting to an abortion. Anecdotally, too, according to many of the health officials and civil society representatives that we interviewed, there are few known cases of actual criminal prosecutions against medical care providers, and prosecutions of women seem to be rare. Nonetheless, physicians report risk of prosecution as a major deterrent to providing legal abortions. 77

Cost of abortion procedures and lack of social insurance coverage

There are no official cost data on therapeutic abortion procedures, whether costs to the institution or to the patient. But in theory therapeutic abortion, like any other medically necessary and time-sensitive surgery to save a life or protect health from lasting and permanent damage, should be made accessible to women regardless of ability to pay.78 Costs could create barriers to access care when women are expected to pay for such services.

Payment for medical services happens in four ways in Peru: through an employment-based health insurance system called Seguro Social de Salud, or EsSalud; through private insurance plans; through military health insurance; or through subsidized public health services managed and largely paid for by MINSA.79

The absence of a national protocol means that government-dependent insurance schemes do not cover therapeutic abortions explicitly, nor do the private insurance plans that a small fraction of the Peruvian population can afford.80

Women seeking therapeutic abortions in the public health system pay for some aspects of the service. Human Rights Watch interviewed several women, medical practitioners, and researchers in Lima who confirmed reports that patients are often required to pay for emergency transportation to the hospital, and medicines and hospital supplies required before, during, and after the operation. Interviewees also reported that patients are required to reimburse the hospital for various expenses, and knew of patients not being released from the hospital until payment was made.81 (Although this is not the focus of our report, Human Rights Watch is concerned about these serious allegations that could represent the violation of the human rights principle of no imprisonment for debt.82)

Women who can afford to, may pay out-of-pocket for a therapeutic abortion performed by a private physician. Many physicians work in both the public and private sector, for financial reasons: the public sector provides stability, a government pension, and a sense of social service, but the private sector provides a greater income on average for physicians. Abortions in private clinics in Lima vary greatly, but cost at least 300 soles (US$107) and often more, and are thus out of reach for many poorer women.

Low levels of awareness about exceptions to the criminalization of abortion

Public knowledge is very low about legal exceptions to criminalized abortion, and the government has done virtually nothing to raise public awareness.83 Many women and girls, as well as healthcare providers, are unaware of the fact that abortions in some circumstances are legal. With so little information available, potentially eligible candidates are uncertain about what they are entitled to and where to go. It is likely that the general legal prohibition on abortion means they also fear incarceration.

Dr. Luz Monge Talavera, former deputy ombusman for women’s rights, laments that most women are not aware of their rights and that the government does little to disseminate the information: “They think that if the state does not provide services, it is normal. That’s not a reason to complain because they’re not expecting it.”84

Medical doctors and other professional healthcare workers seem to be unaware of exceptions for non-punishable abortion, or feel unprotected from the legal ambiguity and possible negative repercussions within the public healthcare system.85 Numerous interviewees revealed this sentiment to Human Rights Watch throughout the course of this investigation. 86




34 Peruvian Penal Code, Legislative Decree no. 635, published April 3, 1991, ratified April 8, 1991 (Código Penal de Perú, Decreto Legislativo No. 635, Promulgado 03.04.91, Publicado 08.04.91), http://www.cajpe.org.pe/rij/bases/legisla/peru/pecodpen.htm (accessed November 14, 2007), art. 119.

(Original text “No es punible el aborto practicado por un médico con el consentimiento de la mujer embarazada o de su representante legal, si lo tuviere, cuando es el único medio para salvar la vida de la gestante o para evitar en  su salud  un mal grave y permanente.”)

                       

35  Ibid.,  art. 120, para. 2.

36 Ibid., arts. 114 and 120.  Article 114: “Self-induced abortion: The woman who causes her abortion, or consents to letting someone else practice it, will be punished with detention of no longer than two years or with community service from 52 to 104 days.” (Original text: Artículo 114. “Autoaborto: La mujer que causa su aborto, o consiente que otro le practique, será reprimida con pena privativa de libertad no mayor de dos años o con prestación de servicio comunitario de cincuentaidós a ciento cuatro jornadas.”])

37 Ibid., arts. 115-117, 36.4 and 36.8  “Article 115.- Consented abortion: He who causes abortion with the consent of the pregnant woman, will be punished with imprisonment not less than one nor greater than four years. If the woman dies and the abortion provider could have prevented it, the punishment shall be no less than two nor greater than five years.

Article 116.- Abortion without consent: He who causes a woman to abort without her consent shall be imprisoned for no less than three nor greater than five years. If the woman dies and the abortion provider could have prevented it, the punishment will be no less than five nor greater than 10 years.

Article 117.- Increased penalties according to the status of the perpetrator: The physician, obstetrician, pharmacist, or other health professional that misuses his science or art to cause an abortion will be punished according to articles 115 and 116 and restricted from practicing according to article 36, clauses 4 and 8.”

“Article 36: Disqualification—Effects: Disqualification will produce, according to the sentence: Clause 4. Inability to exercise personally or through a third party one’s profession, business, art or industry, which should be specified in the sentence; [or] Clause 8. Stripping of military or police credentials, honorary titles or other distinctions that correspond to the rank, profession or trade that would have enabled the abortion provider to commit the crime.” (Original text in Spanish: “Artículo 115.- Aborto consentido: El que causa el aborto con el consentimiento de la gestante, será reprimido con pena privativa de libertad no menor de uno ni mayor de cuatro años. Si sobreviene la muerte de la mujer y el agente pudo prever este resultado, la pena será no menor de dos ni mayor de cinco años.

Artículo 116.- Aborto sin consentimiento: El que hace abortar a una mujer sin su consentimiento, será reprimido con pena privativa de libertad no menor de tres ni mayor de cinco años. Si sobreviene la muerte de la mujer y el agente pudo prever este resultado, la pena será no menor de cinco ni mayor de diez años.

Artículo 117.- Agravación de la pena por la calidad del sujeto: El médico, obstetra, farmacéutico, o cualquier profesional sanitario, que abusa de su ciencia o arte para causar el aborto, será reprimido con la pena de los artículos 115º y 116º e inhabilitación conforme al artículo 36º, incisos 4 y 8.”

“Artículo 36.- Inhabilitación-Efectos: La inhabilitación producirá, según disponga la sentencia: 4. Incapacidad para ejercer por cuenta propia o por intermedio de tercero profesión, comercio, arte o industria, que deben especificarse en la sentencia; [o] 8. Privación de grados militares o policiales, títulos honoríficos u otras distinciones que correspondan al cargo, profesión u oficio del que se hubiese servido el agente para cometer el delito.”)

38 Ibid., arts. 114-118.

39 Ibid., art. 120: “Abortion will be punished with detention of no longer than three months: 1) when the pregnancy is the product of rape outside of marriage or artificial insemination without consent that also occurred outside of matrimony, as long as the facts have at least been reported to or investigated by the police; 2) when it is probable that the fetus has congenital malformations with serious physical or mental manifestations, as long as there is a medical diagnosis.” (Original text: Artículo 120. “Aborto sentimental y eugenésico. El aborto será reprimido con pena privativa de libertad no mayor de tres meses: 1.Cuando el embarazo sea consecuencia de violación sexual fuera de matrimonio o inseminación artificial no consentida y ocurrida fuera de matrimonio, siempre que los hechos hubieren sido denunciados o investigados, cuando menos policialmente; o 2. Cuando es probable que el ser en formación conlleve al nacimiento graves taras físicas o psíquicas, siempre que exista diagnóstico médico.”)

40 World Health Organization (WHO), Preamble to the Constitution of the WHO as adopted by the International Health Conference, New York, 19 June - 22 July 1946; signed on 22 July 1946 by the representatives of 61 States (Official Records of the World Health Organization, no. 2, p. 100) and entered into force on 7 April 1948, http://www.who.int/suggestions/faq/en/ (accessed November 10, 2007).

41 Human Rights Watch interview with Dr. Luis Távara, Lima, June 16, 2007.

42 Human Rights Watch interview with Dr. Edgardo Wilifredo Vázquez Perez, Lima, June 8, 2007.

43 It also seems incompatible with the provider-patient professional oath of secrecy provided for in article 199 of the Peruvian criminal code, which states, “1) He who reveals the secrets of others, gained through professional or work relations, will be punished with a prison sentence of one to three years and a fine of six to 12 months [of salary]. 2) The professional who, by not fulfilling his obligation of secrecy and reserve, divulges the secrets of another person, shall be punished with a prison sentence of one to four years, a fine from 12 to 24 months [of salary], and a revocation of his professional license for a period of two to six years.” (Original text of Article 199:  “1. El que revelare secretos ajenos, de los que tenga conocimiento por razón de su oficio o sus relaciones laborales, será castigado con la pena de prisión de uno a tres años y multa de seis a doce meses. 2. El profesional que, con incumplimiento de su obligación de sigilo o reserva, divulgue los secretos de otra persona, será castigado con la pena de prisión de uno a cuatro años, multa de doce a veinticuatro meses e inhabilitación especial para dicha profesión por tiempo de dos a seis años.”)

44 National Council of the Medical College of Peru, First Workshop on Sexual and Reproductive Rights, Lima, March 21 and 22, 2007, May 2007 (Colegio Médico de Perú, Consejo Nacional, 1 Taller Nacional sobre Derechos Sexuales y Reproductivos, Lima, 21 y 22 de marzo de 2007, impreso en mayo de 2007).

45 Kebriaei, “UN Human Rights Committee Decision in K.L. v. Peru,” pp. 151-2. By way of similar international precedent, the European Court of Human Rights in Tysiac v Poland also spelt out that states have an obligation to ensure clarity in the law relating to access to legal abortions, to the pregnant woman's legal position, and that there must be an effective and timely procedure in place to determine whether the conditions for obtaining a lawful abortion are met in an individual case so that the pregnant woman is protected from prolonged uncertainty, and any unnecessary distress and anguish. Tysiac v Poland, Judgment of March 20, 2007, paras. 116-124. Poland has similar restrictive laws on abortion but allows therapeutic abortion. In this case, a pregnant woman was unable to obtain an abortion, despite being eligible for one, and consequently, as a result of the pregnancy sustained serious damage to her eyes placing her at risk of blindness. The failure of the Polish government to provide an effective mechanism ensuring the pregnant woman could obtain a therapeutic abortion was found to be a violation of her right to physical integrity and private life protected under the European Convention on Human Rights.

46 The PCM is a group of presidential cabinet advisors and committees, led by the chief of staff, which coordinates and manages follow up with multisectoral policies and programs for the executive branch of government. Though not a standard administrative procedure, the PCM can solicit official documents for review at will and is not obliged to publicly disclose the status of the investigation.

47 “Formation of the Multisectoral Commission to evaluate the Technical Guide Project proposed by the Ministry of Health” (“Conformación de Comisión Multisectorial para evaluar el Proyecto de Guia Técnica por el Ministerio de Salud”), communiqué from the Ministry of Justice, General Office of Legal Assistance, reference H.E. No. 258-2007-JUS/VM, June 27, 2007 (stamped “received” December 11, 2007); Human Rights Watch telephone interviews with Dr. Milagros Nuñez, PCM, Lima, March 17 and 18, 2008.

48 PROMSEX, A right denied, a responsibility evaded: The behavior of the Peruvian State on therapeutic abortion (Un derecho negado, una responsabilidad eludida: Comportamiento del Estado Peruano frente al aborto terapéutico), (Lima: PROMSEX, August 2007), pp. 33-34.

49 National Materno-Perinatal Institute (Instituto Nacional Materno-Perinatal), Resolución Directoral No. 031-DG-INMP-07, Lima, February 7, 2007.

50 Ministry of Health, Republic of Peru (Ministerio de Salud, República del Perú), Vice-Ministerial Resolution (Resolución Vice Ministerial), No. 336, Lima,  April 19, 2007.

51 Human Rights Watch interview with Dr. Esteban Chiotti, Ministry of Health, Lima, July 5, 2007.

52 Ibid.

53 Hospital Nacional Docente Madre Niño San Bartolomé, “Protocol for Case Management of Legal Pregnancy Termination” (“Protocolo de Manejo de Casos para la Interrupción Legal del Embarazo”), Centro de la Mujer Peruana Flora Tristan, Lima, May 2005.

54 Departamento de Ginecoobstetricia del Hospital Belén de Trujillo, “Protocol for Case Management of Legal Pregnancy Termination” (“Protocolo de Manejo de Casos para la Interrupción Legal de Embarazo”), PROMSEX, Lima, February 2006.

55 Hospital Nacional Hipólito Unanue, Departamento de Ginecología y Obstetricia, “Guide for Case Management of Legal Pregnancy Interruption” (“Guía para el Manejo de Casos de Interrupción Legal del Embarazo”), Lima, December 2007.

56 Other reproductive health NGOs like the Population Council, Ibis Reproductive Health, and PROMSEX also provided technical assistance and held workshops for physicians to help formulate the standards. The Peruvian Society of Obstetrics and Gynecology, Sexual and Reproductive Rights Committee (Sociedad Peruana de Obstetricia y  Ginecología (SPOG), Comité de Derechos Sexuales y Reproductivos), “Medical Societies’ Workshop to identify the clinical profile for therapeutic abortion” (“Taller de Sociedades Médicas para identificar el perfil clínico para el aborto terapéutico”), Lima, August 13, 2005.

57 Enrique Chávez, “Holy Anger in the White City” (“Ira Santa en la Ciudad Blanca”), Caretas, February 21, 2008, pp. 48-51.

58 Human Rights Watch telephone interview with Dr. Mercedes Neves, Arequipa, Peru, March 17, 2008.

59 Ibid.

60 Ibid.

61Pronouncement by the Arequipa Bar Association (Pronunciamiento del Ilustre Colegio de Abogados de Arequipa), Arequipa, March 2008. Email communication from Hugo Salas, president, to Human Rights Watch, April 7, 2008.

62 Human Rights Watch telephone interview with Hugo Salas, president of the Arequipa Bar Association, March 19, 2008.

63 Ibid.

64 Human Rights Watch interview with Dr. Enrique Guevara, private office, Lima, July 9, 2007.

65 Human Rights Watch interview with Dr. Miguel Gutierrez, La Paz Apart Hotel, Lima, June 8, 2007.

66 Human Rights Watch interview with Dr. Daniel Robles Lopez, Congressional office, Lima, July 5, 2007.

67 Human Rights Watch interviews with various medical doctors and hospital administrators, Lima, June and July 2007.

68 Human Rights Watch interview with Dr. Edgardo Wilifredo Vázquez Perez, June 8, 2007.

69 Human Rights Watch interview with Dr. Julio Aguilar, Hospital Daniel A. Carrion, Callao, Lima, June 14, 2007.

70 Human Rights Watch interview with Dr. Felix Bautista, director of health promotion, National Cancer Institute (Instituto Nacional de Neoplasias), Lima, June 21, 2007.

71 Human Rights Watch interview with Dr. Oscar Barriga, National Cancer Institute (Instituto Nacional de Neoplasias), Lima, June 21, 2007.

72 Tysiac v Poland, para. 116.

73 Human Rights Watch interview with Dr. Edgardo Wilifredo Vázquez Perez, June 8, 2007.

74 Ibid.

75 Thanks to a petition from the Study for Women’s Defense and Rights (Estudio para la Defensa de los Derechos de la Mujer, DEMUS) under the Transparency and Access to Public Information Law, Human Rights Watch obtained a consolidated chart of women and men processed for the “crime of abortion” from 2000 to 2007 in 43 precincts in greater Lima.

76 Lima Superior Court, Table of Men and Women Arraigned for the Crime of Abortion between 2000 and 2007 (Corte Superior de Lima, Consolidado de Hombres y Mujeres Procesados por Delito de Aborto en el Periodo 2000 a 2007). Email communication from Jeannette Llaja of DEMUS to Human Rights Watch, October 4, 2007.

77 Susana Chiarotti, “Judicial and Legal Strategies for the Defense of Health and Sexual and Reproductive Rights” (“Las Estrategias Jurídico Legales para la Defensa de la Salud y los Derechos Sexuales y Reproductivos”), unpublished manuscript, 1999, p. 8.

78 Human Rights Watch interview with Raquel Cuentas, employee of the government health sector, Lima, June 15, 2007.

79 Stephanie Rousseau, “The Politics of Reproductive Health in Peru: Gender and Social Policy in the Global South,” Social Politics: International Studies in Gender, State & Society, vol. 14, no. 1, Spring 2007, p. 99-100; Human Rights Watch Interview with Raquel Cuentas, June 15, 2007.

80 Rousseau, “The Politics of Reproductive Health in Peru,” p. 99.

81 Human Rights Watch interviews with various individuals, Lima, June and July 2007.

82 For more information on and an analysis of the detention of indigent patients in healthcare facilities, see Human Rights Watch, A High Price to Pay: Detention of Poor Patients in Burundian Hospitals, vol. 18, no. 8(A), September 2006. An excerpt from the summary follows: “International human rights law provides that everyone has the right to liberty and security of person. Arbitrary detention of any kind is a violation of article 9 of the … ICCPR…. The detention of anyone for non-payment of a debt specifically violates ICCPR article 11, which states: “No one shall be imprisoned merely on the ground of inability to fulfill a contractual obligation.”… Article 12 of the … ICESCR … requires states to progressively realize the right to the highest attainable standard of health. The detention of hospital patients who cannot pay their bills has important implications for health care … [as h]ospital detention discourages indigent people from seeking health care in the first place, subjects patients to having their treatment curtailed or ended when it is apparent to doctors and hospital staff that the patient cannot pay, and incarcerates recovering patients in conditions that may exacerbate their health problems.” (http://hrw.org/reports/2006/burundi0906/3.htm#_Toc144258844)

83 Human Rights Watch interviews with various key stakeholders, Lima, June and July 2007; and PROMSEX, “Special Edition: Legal Abortion in Peru” (“Edición Especial: Aborto Legal en el Perú”), Sumando Voces, 2007, p. 4.

84 Human Rights Watch interview Dr. Luz Monge Talavera, Office of the Deputy Ombudsperson for Women’s Rights, Lima, July 2, 2007.

85 Human Rights Watch interviews with key stakeholders, Lima, June and July 2007.

86 Ibid.