Argentina: UN Special Rapporteur on violence against women welcomes the change in legal approach, from criminalisation to the legalisation of abortion

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GENEVA (11 January 2021) – The passing of a bill legalising abortion in Argentina and ending with the criminalisation of women who undergo abortion represents a historic milestone in the country and the world towards the protection of women’s reproductive rights and the elimination of  violence against women that result from the criminalisation of abortion, Dubravka Šimonovic, the UN Special Rapporteur on violence against women, its causes and consequences, said today. The Special Rapporteur calls all States with similar legislation criminalising abortion to abandon it and adopt a legalisation approach.

Welcoming  this important change , and In light of the observations and recommendations in her country report issued after the visit to Argentina in 2016 (A/HRC/35/30/Add.3) , the Special Rapporteur issues the following statement:

“I congratulate the Government of Argentina, members of Congress, civil society organisations, feminists and people in general, and particularly the tireless activists for women’s rights for the adoption of a new Law on 30 December 2020 regulating access to universal and free access to the voluntary interruption of pregnancy until 14 weeks and post-abortion care. This is a significant change from the previous legislation that criminalised abortion in way that made it in practice unavailable, even in cases of rape. Restrictive regulation of abortion in criminal law that allowed it only exceptionally (in cases of rape, or to protect the life or health of the woman) was not implemented in practice, as many doctors required judicial authorisation to conduct the procedure even though it was not legally required. The restrictions to the interruption of pregnancy led to clandestine abortions and high maternal mortality, as well as incarcerations of women in some cases. Legalising abortion is an important legislative step towards ensuring compliance with the international human rights obligations of Argentina, as set out in the Convention on the Elimination of Discrimination against Women and the Belém do Pará Convention, and highlighted by my mandate following my country visit and by other international human rights mechanisms.

In my 2016 visit and report, I found:

"Abortion is criminalized under article 85 of the Criminal Code. Both the person performing the abortion and the woman who causes her own abortion or gives her consent for the abortion to be performed may be sanctioned. However, article 86 provides that an abortion performed by a qualified medical doctor with the consent of the pregnant woman is not punishable if it is done in order to avoid danger to the life or health of the mother and if the danger cannot be avoided by other means; or if the pregnancy is a result of rape or assault to a woman with a mental disability or mental illness, and her legal representative consents to the abortion. The general criminalization of abortion, with certain unclear and narrowly defined exceptions, coupled with the practice of medical practitioners of seeking judicial authorization before performing an abortion, rendered abortions unavailable, even under the exceptions.

The Supreme Court of Argentina, in a landmark ruling on 13 March 2012, stated that prior judicial authorization was not necessary for an abortion to be performed in cases of rape and that provincial governments should ensure access to legal abortions in such cases. Based on that ruling, in June 2015, the Ministry of Health issued the “Protocol for the comprehensive care of persons with the right to the legal interruption of pregnancy”. However, to date, only 8 of the 24 provincial jurisdictions had issued protocols on non- punishable abortions. In October 2015, the Office of the Ombudsman issued resolution No. 65/1527 recommending that the provincial health authorities issue protocols compliant with the national protocol.

The absence of protocols in the majority of the provinces, coupled with the frequent refusal of doctors to perform abortions based on conscientious objection, resulted in a high number of unsafe abortions and contributed to high maternal mortality in Argentina. According to some estimates, half a million illegal abortions took place every year in Argentina, representing about 40 per cent of all pregnancies. The Special Rapporteur received reports of women who had miscarried and sought help in public hospitals and who had been reported to the police as having undergone illegal abortions and subsequently faced criminal prosecution. Such legislation prevents women from seeking necessary medical care and assistance and contributes to maternal mortality.

The Special Rapporteur was concerned that, every year, over the past five years, more than 3,000 girls under the age of 15 had given birth in Argentina and the majority of the pregnancies were the result of rape or abuse. Pregnancy and motherhood at such an early age, in particular if unwanted, has profound consequences on the lives of girls, not least because pregnancy usually results in drop out from the education system and condemns the girls and their babies to a life of poverty and marginalization."

I have recommended:
“(a) In the short term, as a matter of urgency, the provincial authorities should adopt the necessary protocols regulating legal abortions in line with the current Criminal Code and the Supreme Court interpretation on the matter, and in line with general recommendation No. 24 (1999) on women and health of the Committee on the Elimination of Discrimination against Women.”

As a long-term measure, I have recommended:
“(b) The punitive measures criminalizing women who undergo abortions be removed and a law regulating legal abortions be adopted, at least for pregnancies resulting from rape or incest; pregnancies in which the life or health of the pregnant woman is at risk; pregnancies in which there is severe foetal impairment;
(c) Strict justification requirements be defined and applied to prevent the blanket evocation of conscientious objection by medical practitioners refusing to perform abortions;
(d) The federal and provincial Ministries of Health collect and disseminate information regarding public health facilities that provide access to safe legal abortions and post-abortion services.”

Through the adoption of the Law regulating access to the voluntary interruption of pregnancy and post-abortion care, Argentina has implemented these recommendations at the legislative level and changed the nature of the law from criminalisation to legalisation.

Therefore, I welcome the passing of this legislation, expressly framed in international human rights law, which represents a milestone for the Latin American region and a model for countries that also criminalise abortion. The new law legalises the procedure until the 14th week of pregnancy, ensuring universal and free access to it. It establishes the rights to information and contraceptive methods, ensures the necessary post abortion care and promotes policies of comprehensive sexual education and sexual and reproductive health. It is noteworthy that the law adopts an inclusive language that makes it expressly applicable to trans and gender diverse people. Another law, aimed at providing comprehensive health care during pregnancy and early childhood, was also passed. Combined, both laws support women in their reproductive decisions.

This achievement was the result of significant efforts by the Government, members of Congress, civil society organisations and particularly the mass mobilisation of women, which finally succeeded after several efforts over the last few years.

Changing the restrictive criminalisation of abortion is an important step towards the elimination of discrimination against women. Women and girls must enjoy the right to make autonomous decisions about their reproductive rights and pregnancies, in connection to their rights to equality, dignity, autonomy, physical and mental integrity, privacy and the highest attainable standard of health, including sexual and reproductive health, without any discrimination. Women also have to right to be free from torture and not to be subjected to cruel, inhuman or degrading treatment.

Other countries that still have restrictive legislations based on criminalisation of abortion should follow Argentina’s example and promote similar changes. There is evidence worldwide that the criminalisation of abortion does not impede it from occurring, but rather leads to unsafe abortions and maternal mortality, as well as the prosecution and incarceration of women.

Argentina must now promote the effective implementation of the new law, ensuring health care facilities are equipped and prepared to conduct the procedure, and that the conscientious objection clause does not hinder access to services. Women must be ensured timely, dignified and safe access to abortion services, while the prevention of abortion though education and availability of contraception should lead to the decrease of abortions in general.”

Dubravka Šimonovic, is the Special Rapporteur on violence against women, its causes and consequences. 

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Note by the Minister of Women, Gender and Diversity of Argentina to the Special Rapporteur on violence against women, 8 January 2021.