There are an estimated 450,000 illegal abortions in Colombia every year, and unsafe abortion is a leading cause of maternal mortality. Recent studies indicate that a higher proportion of adolescent girls than adult women undergo illegal abortions: 36 percent of adolescent pregnancies end in abortion, whereas 12 percent of other pregnancies do. Colombia’s penal code prohibits abortion in all circumstances, though the penalty is substantially lower where the pregnancy is the result of rape or non-consensual artificial insemination. In such cases, a judge may also waive the punishment altogether on a case-by-case basis, when the abortion occurs in “extraordinary situations of abnormal motivation” and where he or she considers the punishment "unnecessary."
Since the early 1970s, several bills have been introduced that would have expanded, at least theoretically, the possibility for women to have a legal abortion. However, many of these bills have included the explicit requirement that the pregnant woman’s husband give her consent to the procedure. The result of this requirement is that women’s human rights, including the rights to nondiscrimination, health, and health care services, would still be in jeopardy. Most of these bills were not passed.
Over the years, the Colombian Constitutional Court has issued opinions on various penal code provisions related to abortion. In 1994, the court found that the general prohibition on abortion was constitutional, and in 1997 it added that it also was constitutional to legislate for mitigating circumstances that lower the penalty imposed for abortion.
In 2001, the court held that the possibility of waiving the punishment for abortion was constitutional because it was limited to certain “strictly outlined” circumstances. In a clarifying statement attached to this 2001 decision, four constitutional court judges, who had voted in favor of the decision, clarified the law relating to women’s criminal responsibility for abortion where the pregnancy is the result of rape or non-consensual artificial insemination. In such cases, argued these judges, “the exceptional and admirable thing would be for the woman to decide to continue the pregnancy until she gives birth. … But she cannot be required to procreate, nor can she be the object of penal sanctions for having exercised her fundamental rights and for having tried to minimize the consequences of the rape [by having an abortion].”
In 2005, a Colombian lawyer challenged the constitutionality of the principal prohibition of abortion (article 122 of the penal code), charging that this provision runs counter to women’s rights to life, health, and physical integrity. This constitutional case drew the support of human rights groups across the region, including Human Rights Watch. In a landmark decision for the region, in May 2006 Colombia’s Constitutional Court handed down a decision on the case, declaring the country’s blanket criminalization of abortion in violation of women’s constitutional rights. The court declared that neither women nor doctors can be penalized for procuring or providing abortions where one of three conditions is met: 1) the pregnancy constitutes a grave danger to the pregnant woman’s life or health; 2) the fetus has serious genetic malformations; or 3) the pregnancy is the result of rape or incest.
History of Colombia’s Law on Abortion
Abortion has constituted a crime in Colombia at least since the implementation of the penal code of 1936, which criminalized abortion in all circumstances, though it permitted reduced penalties where the abortion was performed to protect the honor of the pregnant woman. In the penal code currently in force (Law 599 of 2000) abortion continues to be illegal in all circumstances. The penal provisions establish a substantially lower punishment where the pregnancy is the result of non-consensual conception (rape or artificial insemination without consent), noting that a judge may wish to waive the punishment altogether in the case of such non-consensual conception and in “extraordinary situations of abnormal motivation” where he or she considers the punishment “unnecessary.”
Full penal code provisions on abortion
Article 122. Abortion. The woman who causes her own abortion or permits another person performing it will be punished with imprisonment from sixteen (16) to fifty-four (54) months. This same sanction will be applied to he who, with the consent of the woman, carries out the action noted in the prior sentence.
Article 123. Abortion without consent. He who causes an abortion without the consent of the woman will be punished with imprisonment from sixty-four (64) to one-hundred-eighty (180) moths.
Article 124. Mitigating circumstances. The punishment indicated for the crime of abortion will be lowered by three fourths were the pregnancy is the result of a conduct constituting abusive or non-consensual carnal or sexual access, or non-consensual artificial insemination or transfer of a fertilized ovum.
Paragraph: In the events of the prior paragraph [article 124], when the abortion is carried out in extraordinary situations of abnormal motivation, the judicial officer may forego the punishment when it is unnecessary in the concrete case at hand.
More information on women’s reproductive rights in ColombiaThe 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.
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