(AN) CS.0.PCR.5883 (1931)

Agency and Abortion in Brazil

 

Two women’s deaths resulting from clandestine abortions recently shocked the city of Rio de Janeiro, Brazil. In August 2014, 27-year-old Jandira dos Santos Cruz died during an illegal abortion procedure. Her body was later found burned and dismembered to avoid identification. The following month in the nearby city of Niterói, 32-year-old Elizangela Barbosa died from a botched illegal abortion. While small protests occurred in São Paulo and Rio de Janeiro, public opinion remains galvanized against abortion. A 2010 poll found that nearly 74 percent of Brazilians oppose abortion.[1] Currently, abortion in Brazil is only legal in cases of anencephaly, rape, or to save the mother’s life. Even the family of dos Santos, members of Brazil’s growing evangelical movement, oppose the decriminalization of the procedure. As dos Santos’s sister told reporters: “Many people have been criticizing her and saying she deserved to die. I’m against abortion too, but she paid the price. Now those who did this to her have to pay too.”

Jandira Magdalena dos Santos (Together! Juntos.org CC BY-SA)
Jandira Magdalena dos Santos (Together! Juntos.org CC BY-SA)

Public condemnation of both women and providers has been met by silent yet implicit political support for abortion’s continued criminalization. In the first round of Brazil’s recent presidential elections, in which incumbent Dilma Rousseff of the leftist Workers’ Party (PT, Partido dos Trabalhadores) was reelected in a runoff vote, the three leading candidates — Rouseff, Aécio Neves of the center-right Brazilian Social Democratic Party (PSDB, Partido da Social Democracia Brasileira), and Marina Silva of the center-left Brazilian Socialist Party (PSB, Partido Socialista Brasileiro) — remained silent on the issue, although all three opposed any changes to criminal law. Rousseff had learned her lesson from the 2010 presidential elections during which she was forced to disavow her previous support for decriminalization in the second-round runoff vote in order to win the presidency.

While the three frontrunners avoided the issue in their campaigns, lesser-known candidates were more vocal. Eduardo Jorge of the left-leaning Green Party (PV, Partido Verde) defended the decriminalization of abortion, arguing that it would end a “Medieval law” and reduce the adverse health risks of clandestine abortions. Jorge argued that Brazil’s Unified Health System (Sistema Único de Saúde, SUS), which provides universal and free health care to anyone in Brazil, should provide the service.[2] Luciana Genro, of the leftist Socialism and Freedom Party (PSOL, Partido Socialismo e Liberdade), also argued for the decriminalization of abortion, contending that changes in legislation would eventually reduce the numbers of abortion in the country, currently estimated at nearly one million per year.[3]

Elizângela Barbosa (Thiago Freitas/Agência O Globo)
Elizângela Barbosa (Thiago Freitas/Agência O Globo)

The public’s vocal condemnation of abortion, the law’s prosecution of providers, and politicians’ silent disapproval of abortion has created a stigmatized environment in which millions of women seek abortions under dangerous conditions. Research estimates that one in five women in Brazil will have an abortion.[4] Nearly 200,000 women a year will be hospitalized for post-abortion complications.[5] Abortion remains the third highest cause of maternal death in the country.[6]

Despite public condemnation of both women and providers, law enforcement more often goes after the abortion provider. Police action and media reports focus on illegal clinics while remaining silent on the women who seek out illegal abortion services. The legal trend of deflecting blame away from women and onto the illegal provider dates back to the early-twentieth century. Brazil’s Penal Code of 1890, passed quickly after the end of slavery in 1888 and the founding of Brazil’s first democracy in 1889, first criminalized women who sought out or self-induced abortions. Despite this legal change, courts were more likely to prosecute providers rather than the women seeking the abortion. But if the state was preoccupied with the supposed increasing number of illegal abortions, why did they not prosecute both the woman and the provider?[7] Legal confusion probably influenced this decision. One section of the 1890 Code (Article 300§1 and §2) implied that the provider performed an abortion without the consent of the woman, while the second (Article 301 or 301§1) stated that the provider or the woman herself provoked the abortion with the woman’s consent. Because the prison sentence was harsher for Article 300, most prosecutors tried practitioners under its laws, and subsequently could not prosecute the woman.[8]

(Arquivo Nacional (AN) CS.0.PCR.5883 (1931))
(Arquivo Nacional (AN) CS.0.PCR.5883 (1931))

In one 1931 Rio de Janeiro court case, 20-year-old Lina Navarro filed an official complaint against a doctor who was supposed to perform her abortion.[9] Initially, Lina had given the doctor half of the payment as a deposit but never returned for the procedure. Instead, she found another physician who performed the abortion free of charge. Wanting her money back, Lina went to the police, who prosecuted the second doctor who had performed the abortion. The police never investigated or charged Lina, despite her admission of guilt. The Brazilian public also condemned providers. One 1923 denunciation note alerted the police that a female neighbor was “abusing [Brazilian] laws,” by operating an illegal abortion clinic. The writer, asserting himself “as a Brazilian and a Christian,” wanted to notify officials that many women’s lives were in danger. He never condemned the “numerous” women who allegedly went to the midwife for help.[10]

(Tribunal de Justiça do Estado do Rio de Janeiro (TJRJ) Cx.00.502.624-6 Pos. Recall (1923))
(Tribunal de Justiça do Estado do Rio de Janeiro (TJRJ) Cx.00.502.624-6 Pos. Recall (1923))

While the 1890 Penal Code criminalized women for abortion, the application of the law proved more irregular in its understanding of responsibility. Women were not held accountable because Brazilian courts viewed them as juridical children without full legal responsibility. Scholars have argued that Brazil’s first Civil Code of 1916 described women as “inactive citizens,” who lacked the right to vote or to participate in civic life, while the Penal Code had prosecuted women as “active” citizens.[11] Yet court cases demonstrate that in the case of abortion, criminal law considered women deficient of full juridical responsibility. Perhaps juxtaposing pregnant women’s civil rights to those of the fetus, described as existing “from conception” in the 1916 Code, provides a more apt representation of how Brazilian law viewed female citizens. Predating U.S. “personhood” and “fetal rights” movements by nearly a century, Brazilian legal and public attitudes towards women who had abortions did not condemn them for the practice, as do many laws in the United States today. Rather, they disavowed women’s full agency in their decisions, convinced they were influenced by outside “seducers,” malevolent midwives, or strong emotions, and thus could not be held responsible for their wayward actions.

While the 1940 Penal Code, in effect today, clarified the language in abortion law, legal practice continued to focus on providers. Historian Joanna Pedro has demonstrated that mid-to-late-twentieth-century abortion cases targeted midwives, while simultaneously portraying women as “victims.”[12] In part, this was because some cases were prosecuted due to the death of the woman from abortion-related complications. But by criminalizing midwives in all cases, the justice system came to the “defense” of the women who had sought out an abortion.

The recent deaths of Jurandira and Elizangela demonstrate that despite the danger illegal abortion poses to Brazilian women, they continue to “actively” seek out the procedure. While the state has often prosecuted abortion providers and not women, women do not always walk free from abortion-related accusations. Recent research has demonstrated that the state is beginning to arrest women. In Rio de Janeiro, the police handcuffed one young teenager to a hospital bed when she was admitted after presenting with post-abortion complications. Additionally, the medical profession often denounces women to the police.[13] A culture of stigma and fear surrounds abortion, violating women’s “health-related rights.”[14] But the most dangerous consequence of the combined criminalization and condemnation of abortion is the continued deaths of women across Brazil.


[1] Relatório síntese: pesquisa de opinião pública nacional, rodada 100 (Brasília: Confederação Nacional do Transporte and Sensus, 2010).

[2] Interestingly enough, a recent amendment that required SUS to provide and pay for all legal abortion procedures lasted only seven days before being revoked due to pressure from the Christian right.

[3] Ministério da Saúde, Aborto e saúde pública no Brasil: 20 anos (Brasília, DF: Ministério da Saúde, 2010).

[4] Debora Diniz and Marcelo Medeiros, “Aborto no Brasil: uma pesquisa domiciliar com técnica de urna,” Ciência & Saúde Colectiva 15, no. 1 (2010): 959–66.

[5] Ministério da Saúde, Aborto e saúde pública.

[6] Greice Menezes and Estela M. L. Aquino, “Pesquisa sobre o aborto no Brasil: avanços e desafios para o campo da saúde coletiva,” Cadernos de Saúde Pública 25, no. 2 (2009): S193–204.

[7] See for example, Manoel Mendes Campos, Aborto criminoso (Rio de Janeiro, 1911); Archmimo Martins de Mattos, Aborto criminoso (Rio de Janeiro: Typ. do Jornal do Commercio de Rodrigues & C., 1923).

[8] The Brazilian law’s focus on doctors was similar to the increased criminalization of abortion in the nineteenth-century United States. The condemnation of abortion became a central platform in the American Medical Association’s (AMA) professionalization campaign, which was built upon the persecution of non-licensed providers and not women. Janet Farrell Brodie, Contraception and Abortion in Nineteenth-Century America (Ithaca, NY: Cornell University Press, 1997), Chapter 8; Carroll Smith-Rosenberg, Disorderly Conduct: Visions of Gender in Victorian America (New York: Oxford University Press, 1985), 217–244. See also Leslie J. Reagan, When Abortion Was a Crime: Women, Medicine, and Law in the United States, 1867-1973 (Berkeley: University of California Press, 1998).

[9] Arquivo Nacional (AN) CS.0.PCR.5883 (1931).

[10] Tribunal de Justiça do Estado do Rio de Janeiro (TJRJ) Cx.00.502.624-6 Pos. Recall (1923). For other neighborly denunciations of midwives as “abortionists,” see (AN) CS.0.IQP.237 (1908); and (AN) CQ.0.IQP.626 (1909).

[11] Fabiana Cardoso Malha Rodrigues, “Os crimes das mulheres: Aborto e infanticídio no direito na passagem à modernidade no Brasil, 1890-1916″ (master’s thesis, Universidade Federal Fluminense, 2004), 136–137.

[12] Joana Maria Pedro, Núcia Alexandra Silva de Oliveira, and Maristela Moreira de Carvalho, “Corpos femininos em debate: Aborto e infanticídio na imprensa de Florianópolis, uma história de controle e normatização (1950-1996),” in Práticas proibidas: práticas costumeiras de aborto e infanticídio no século XX, ed. Joana Maria Pedro (Florianópolis: Cidade Futura, 2003), 235, 239.

[13] Gillian Kane, Beatriz Galli, and Patty Skuster, When Abortion Is a Crime: The Threat to Vulnerable Women in Latin America (Chapel Hill, NC: Ipas, 2013).

[14] Beatriz Galli, “Negative Impacts of Abortion Criminalization in Brazil: Systematic Denial of Women’s Reproductive Autonomy and Human Rights,” University of Miami Law Review 65 (2010): 11.

Further Reading

Diniz, Debora. “Aborto e contracepção: tres gerações de mulheres.” In Nova história das mulheres, edited by Carla Bassanezi Pinsky and Joana Maria Pedro, 313–32. São Paulo: Editora Contexto, 2012.

Rohden, Fabíola. A arte de enganar a natureza: contracepção, aborto e infanticídio no início do século XX. Rio de Janeiro: Editora Fiocruz, 2003.

Roth, Cassia. “Angelica’s Baby: Pregnancy Narratives in Twentieth-Century Rio de Janeiro.” The Appendix 2, no. 2 (April 2014): NP.

Feature image: Arquivo Nacional (AN) CS.0.PCR.5883 (1931).

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