Laws and regulations are policy tools that are seen as strong and effective in securing rights, but should we assume that this is always the case? Looking at therapeutic abortion, evidence from Peru leads us to believe otherwise. Legislation of protection laws often fails to be translated into practice.
In 1924, a therapeutic abortion law was passed in Peru. Ninety-five years later, this law, which allows for legal abortions when the physical or mental health of the mother is at stake, only exists on paper. There are many reasons why this law has not been implemented, ranging from a lack of awareness of the existence of the law to ambiguity when it comes to the law’s contents. While progress of some sort has been made over the last five years with the introduction of guidelines for abortion providers, it is important to understand that much more progress is needed for these women in Peru and elsewhere, as access to safe therapeutic abortion is still limited.
K.L and L.C: Keystone cases in the struggle for safe therapeutic abortions
The Human Rights Watch indicates that women across the world often opt for unsafe procedures because legal abortions are seldom provided in public healthcare facilities. Additionally, due to the uncertainties in the circumstances under which abortion is legal, healthcare providers fear punishment if they were to carry out a therapeutic abortion. Women are also often unaware of their right to therapeutic abortion, and in the cases they are, they’re refused the abortion due to the fear carried by healthcare providers. In other cases, women are refused legal abortions due to the bias carried by some healthcare professionals, who may not always agree that the mother’s life is in danger, and would thus see the abortion as unnecessary. Additionally, due to the social stigma attached to abortions, women may not want to get an abortion due to the fear of being judged.
Two cases were particularly relevant for discussion in Peru. In 2001, K.L., a 17-year-old Peruvian girl, was forced to carry an anencephalic fetus to term, a condition that made unviable the life of the fetus after being born. She gave birth and was forced to breastfeed the baby for four days until it finally died. These events caused her severe depression that required psychiatric help.
In another case in 2006, L.C. was a 14-year-old girl that fell pregnant after being raped repeatedly, which led her to attempt suicide. She survived, but woke up quadriplegic. Her mother requested a therapeutic abortion in order for her spinal column to be operated on to try and regain mobility of her body, but it was denied. Doctors claimed it was prohibited because the pregnancy no longer posed a threat to her physical health, so she was forced to continue the pregnancy.
After the cases of the K.L. and L.C., the Peruvian state was internationally condemned by the ONU´s Human Rights Committee for denying therapeutic abortion to these teenagers. As a response, in June 2014, the Peruvian Ministry of Health published the “Guía Técnica Nacional para la interrupción del embarazo por indicación terapéutica”, or the National Technical Guide for the Pregnancy Interruption by Therapeutic Indication, approved by a Ministerial Resolution Nº 486-2014/MINSA. This guide was looking to standardise the procedure and give more information to the health practitioners about it.
Despite its approval, there are still a lot of medical practitioners that refuse to implement it. As an example of this, in 2017 the Committee on Consumer Protection had to sanction a private healthcare facility with a fine for not approving a therapeutic abortion request, despite the evidence of mental health damage.
Persisting barriers (read: failures)
Despite the clarity of the law, it has not been implemented to the extent it should have. Often, people assume that passing a law and putting it in the penal code is enough to implement it. But when those responsible for implementing it don’t know enough about it, how is it supposed to protect those it aims to safeguard?
Even after the introduction of the guidelines, it is evident that the application of the law is scarce. Additionally, there isn’t much knowledge to be found on the application after the guidelines were created. The state is not taking the responsibility it should by ensuring medical facilities fully implement the law. Even though the discussion has been opened again, it’s clear that it’s not enough. A transformation in the norms and values that surround the topic of abortion must be addressed if the application of such laws is to be successful.
This article is part of the series `Women´s Month 2019´, in which members of the ISS gender committee reflect on women´s issues on Bliss. Other articles of this series can be read here.
Image Credit: openDemocracy. The image has been cropped.
About the authors:
Zoya Waheed is a Pakistani SJP student at ISS. She is the secretary of the Gender committee and is committed to women empowerment.
Romina Manga Cambria is a Peruvian GDP student at ISS. She’s inherited her feminism from her mother. She’s part of the Gender committee.