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Abortion: Brazil

Approximately one to four million abortions are performed in Brazil every year. The National Health System, SUS (Sistema Único de Saúde), estimates that 250,000 women enter emergency rooms every year with health problems that are a direct consequence of unsafe abortions. Unsafe abortion is the fourth leading cause of maternal mortality in the country, after hypertension, hemorrhaging (which could also include abortion-related hemorrhaging), and post-birth infections.

Under Brazil’s penal code, abortion is only permitted to save the pregnant woman’s life or where the pregnancy is the result of rape or incest. Over the past decade, Brazil’s health system has increased the number of health clinics and hospitals where abortions are available for women who fit the penal code’s exceptions. Nevertheless, very few women obtain such non-punishable abortions, since doctors and hospitals have generally required a judicial authorization to carry out the abortion. Indeed, the vast majority of abortions in Brazil are performed under unsafe medical conditions in illegal clinics or other clandestine settings.

Brazilian women’s groups have been pressing for the right to safe and legal abortion for years, and in 2005 launched the “Brazilian Campaign for the Rights to Legal and Safe Abortion” (Jornadas Brasileiras pelo Direito ao Aborto Legal e Seguro).

In an encouraging development in 2005, the Brazilian Ministry of Health implemented a new set of norms that do away with some of the most onerous procedural requirements that until now have prevented women who are pregnant as the result of rape from getting access to legal abortion. Notably, the new norms do not require women to present a police report to the public hospital in order to obtain a legal abortion or post-abortion care. The norms have been vehemently opposed by the Catholic Church and by some doctors.

History of Brazil’s Law on Abortion

Abortion has constituted a crime in Brazil since the late nineteenth century. The penal code from 1890 criminalized abortion in all circumstances. In 1940, the penal code provisions on abortion were amended to waive punishment on two grounds:

  • where the pregnancy is the result of rape or incest; and
  • where the pregnant woman’s life is in danger.

In addition, a presidential decree from 1941, as amended in 1979, prohibits the advertising of a process, substance, or object designed to cause an abortion or to prevent pregnancy. These provisions are still in force.

In 2004, several bills were pending in Brazil’s congress, all of which seek to amend the current penal code provisions to expand or limit the situations where penalties for abortion may be waived. In 2003, President Lula da Silva made a commitment to prioritize access to safe abortion during his term. In 2005, the government set up an eighteen-member tripartite (civil society, executive, and legislative) committee, with six representatives from civil society, to discuss the legalization of abortion in Brazil.

Full penal code provisions on abortion currently in force

1940 Penal Code, Articles 124-128, as amended in 1998 (Human Rights Watch translation)

Abortion induced by the pregnant woman or with her consent
Article 124. Induce an abortion on herself, or consent to another person inducing it: Punishment – detention of 1 (one) to 3 (three) years.

Abortion induced by a third party
Article 125. Induce an abortion, without the consent of the pregnant woman: Punishment – imprisonment of 3 (three) to 10 (ten) years.

Article 126. Induce an abortion with the consent of the pregnant woman: Punishment –reclusion of 1 (one) to 3 (three) years. First para. The punishment of the prior article [article 125] will be applied if the pregnant woman is not older than 14 (fourteen) years, or if she is disturbed or mentally ill, or if her consent was obtained through fraud, serious threats, or violence.

Article 127. The punishment established in the two prior articles will be augmented by a third if, as a consequence of the abortion or the measures taken to induce it, the pregnant woman suffers serious physical harm; the punishment will be doubled if, for any of these reasons, she dies.

Article 128. An abortion carried out by a medical doctor will not be punished:

Necessary abortion

  • I – if there is no other way to safe the life of the pregnant woman;
  • Abortion in the case of pregnancy resulting from rape
  • II – if the pregnancy is the result of rape and the abortion is preceded by the consent of the pregnant woman, or, if she is unable, by her legal representative.

Relevant Statistics

  • Brazil’s population is approximately 180 million, of which 28 percent is under 15 years old (2002).
  • The fertility rate is 2.2 children per woman, and the annual population growth is 1.1 percent (2002).
  • Reported maternal mortality rate is 45.8 per 100,000 live births (2000), down from a recent high of 68 in 1998.
  • Unsafe abortion is the fourth leading cause of maternal mortality in the country (2004).
  • An estimated one to four million illegal abortions occur in Brazil annually (2004).
  • The most recent data available (from 1996) shows that contraceptive use in women of childbearing age was 77 percent.

More information on women’s reproductive rights in Brazil

The organizations listed may or may not support legal reform to make abortion safer and more accessible. The opinions voiced by these organizations do not necessarily reflect the position of Human Rights Watch.