In a historic move this week, Uruguayan President José Mujica has signed into law a bill that waives criminal penalties for abortion in the first 12 weeks of gestation, with certain procedural requirements, and in the first 14 weeks of gestation in the cases of rape.
The law marks a significant development in realizing women’s human rights and preventing unsafe, clandestine abortions in the region.
“This bill is an important step forward to prevent the life-threatening risks of clandestine abortion,” said Amanda Klasing, women’s rights researcher at Human Rights Watch. “Uruguay’s neighbors should take note of this progress. As sensitive an issue as abortion is, governments can and should pass laws that save women’s lives.”
Latin American countries have some of the most restrictive abortion policies in the world. Several countries, such as Chile, El Salvador, and Nicaragua have absolute bans on abortion with no exceptions whatsoever. These highly restrictive laws fuel unsafe, clandestine abortions, putting women’s lives at risk. The United Nation’s World Health Organization estimates that approximately 13 percent of maternal deaths in the region are from unsafe abortion.
Mujica had promised he would sign the bill passed by the Senate to waive penalties for abortion with few restrictions in December 2011. However, it took until September 2012 for the bill to pass through the Chamber of Deputies, the lower house of Uruguay’s legislature. The lower house made significant changes to the Senate bill, adding procedural requirements that must be met for women to access abortions. The bill passed by a margin of just one vote, with 50 deputies in favor and 49 against. In October, Uruguay’s senate ratified the Chamber of Deputies’ version of the bill, clearing the way for the president’s signature. The final version retains abortion as a crime under the criminal code, but waives penalties.
The law requires women seeking abortions to inform a doctor of the circumstances of the conception and the economic, social, or family hardships which would prevent her from continuing the pregnancy. The same or next day, the doctor is required to consult an interdisciplinary team of at least three professionals, including at least one gynecologist, one mental health professional, and one specialist in social support. The interdisciplinary team must meet with the woman to inform her about the law, the process of abortion, and any inherent risks of the procedure. It will also inform her of alternatives to abortion and offer psycho-social support and information.
After the woman meets with the team, the law requires a five-day reflection period before she can reassert her choice to continue with the abortion. Upon her informed consent, a doctor can perform the procedure. The decision to have the abortion remains solely with the woman. These requirements do not apply for victims of rape or incest. The only requirement in those cases is the filing of a criminal complaint.
While the new law represents an advance in the region, the procedural provisions – in particular the mandatory five-day reflection period and consultation with the panel – could amount to an arbitrary barrier to accessing abortion services. The United Nations Special Rapporteur on the Right to Health has found that legal restrictions can make legal abortions inaccessible. Examples of abortion restrictions that the Rapporteur criticized in a 2011 report include: “requirements of counselling and mandatory waiting periods for women seeking to terminate a pregnancy” and “requirements that abortions be approved by more than one health-care provider.”
Uruguay’s Ministry of Public Health is now charged with developing regulations to implement the law. These regulations should ensure that any woman who seeks an abortion within the legal time frame is not denied the procedure as a result of delays caused by the law’s procedural requirements. Civil society organizations should have the opportunity to participate in developing these regulations.
“Having taken this positive step, Uruguay should now ensure that in practice women seeking this essential medical service can do so without arbitrary interference,” Klasing said.