Understand the circumstances in which abortion is legal in Brazil

Ending a pregnancy in case of sexual abuse or when the woman’s life is at risk, has been the law of the land since 1940

August 19, 2020 by Brasil de Fato
Feminist movements have highlighted the need for legal abortions for decades - Fabio Rodrigues Pozzebom/Ag Brasil

The case of the 10 year old who became pregnant after being abused by her uncle, has intensified the debate about abortion over the past weekend. However, the subject surfaces with very outdated issues being discussed in relation to what feminist movements in Brazil consider urgent.

While human rights organizations have been trying for decades to consolidate the notion that abortion is exclusively a woman’s choice, religious fundamentalists contested the 10-year-old girl’s right to the procedure, though it has been guaranteed by a law passed 80 years ago.

Legal abortion

Under article 28 of the Legal Decree #2,848 of December 7, 1940, it is clearly stated that an abortion is legal in the case of sexual assault or when the woman’s life is at risk. Furthermore, a 2012 supreme court decision established that ending a pregnancy was also permitted if the fetus was anencephalic, meaning, with an undeveloped brain.

Patients in any of these three cases are guaranteed the right to a free, legal abortion procedure via the country’s public healthcare system, SUS.

When it comes to a pregnancy that puts the woman’s life at risk or of a fetus with anencephaly, there is no time restriction as to when the abortion can take place. In the case of sexual abuse that limit is 20 weeks, or 22 weeks if the fetus weighs less than 500 grams.

The legislation does not require women to present proof, nor a police report showing they were victims of sexual abuse in order to perform the abortion.

Beyond such cases, ending a pregnancy is a crime in Brazil. An illegal abortion can result in up to three years in prison for the woman, if self induced, and 1 to 4 years for the person who performs the procedure for her.

When an illegal abortion occurs without the mother’s consent, the person who caused it will get three to ten years in jail.

Latin America

In Latin America, unrestricted legal abortion is a right in only five countries, Cuba, Uruguay, Guiana, French Guiana and Puerto Rico, or in specific areas of certain countries, like in Mexico, where it is legal only in Mexico City or the state of Oaxaca.

In Argentina, feminist movements who organized the National Campaign for the Right to Legal Safe and Free Abortion continue mobilizing in order to keep the issue at the forefront of the political agenda, regardless of the temporary suspension of the massive protests they’d been holding since 2018.

Approximately 80% of victims of sexual violence are female and more than 50% are under the age of 13. According to data from the Pan-American Health Organization (PAHO), the Latin American regional office of the World Health Organization (WHO), teen pregnancy is a key public health problem in Brazil.

While the worldwide rate of teenage pregnancies is roughly 46 births per 1000 girls between 15 and 19, in Brazil, that rate is 68.4 births.

The WHO has recognized abortions as an essential health service since 2012.