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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.
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By Dorothea Hilhorst
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Problematic assumptions related to women’s position and role in humanitarian crises are unpacked in a special issue of the journal Disasters on gender, sexuality and violence. The main lesson drawn from the special issue is that aid actors should tread carefully and seriously invest in their capacity to carefully monitor the intended and unintended effects of programming on gender relations.
At the United Nations (UN) World Humanitarian Summit (WHS) in May 2016, ‘achieving greater gender equality and greater inclusivity’ was identified as one of the five key areas of humanitarian action. The WHS wanted this to be a watershed moment that would spark a shift toward systematically meeting the needs of women and girls and promoting their role as active decision-makers and leaders.
After more than four decades of discourses on ‘gender in development’ and a substantive history of evolving international law and practice on women, peace, and security, the WHS marked an important declaration that the humanitarian aid field takes gender seriously. ‘Gender’ too often has been understood as synonymous with ‘women and girls,’ neglecting questions of agency, vulnerability, and the dynamic and changing realities of gendered power relations.
The focus on sexual violence has brought significant attention to some of the challenges that many women face, but has also reproduced a generalised image of women as victims. That idea was already well-embedded in classic views of conflict that see men as aggressors and combatants and women as non-combatant victims. While this depiction is grounded in sad empirical realities, it leads to a kind of tunnel vision that only centres on the suffering of women, viewing them as the primary victims and primarily as victims. The victim discourse furnishes a rationale for providing women with direly needed assistance, and in fact, women themselves are often keen to play the role of victim to become eligible for aid, backgrounding other aspects of their identity, including their (political) agency. Nonetheless, this focus is problematic in obscuring other realities in which men and women assume different and more complex roles.
Humanitarian programmes often seek the participation of women because they (we) are considered the more caring gender. Women are often targeted for aid as a proven means to improve the wellbeing of children, foster more peaceful conditions, and prevent the misdirection of resources. In the process, international aid often aims to also structurally improve the position of women. This is why UNICEF considers engaging women in service delivery as a positive step towards promoting women’s rights, and describes it as the ‘double dividend of gender equality’.
While well-intentioned, all of these assumptions pertaining to women’s position and role in humanitarian responses have problematic aspects. These dimensions are what we aimed to unearth and explore in our new special issue of the journal Disasters on gender, sexuality and violence in humanitarian crises.[1]
What about men?
The attention on women as aid recipients drowns out the voices that are asking: ‘What about men?’ (not to mention other marginalised gender categories like LGBT communities). Men also cope with specific vulnerabilities, often related to their gender. They are much more often at the receiving end of lethal violence than women, and are frequently victims of sexual violence. When aid is channelled through women, it can lead to a situation where men’s vulnerability is forgotten, or where men feel emasculated or disenfranchised from their traditional social roles (see, for example, the contribution by Holly Ritchie to the special issue). Such situations can have a variety of consequences, ranging from mental health problems among men to the (violent) re-assertion of men and masculinities.
Gender as relations of power
The articles in the special issue bring another layer to this discussion that all too often boxes men and women into stagnant categories. By prioritising these categorical issues that ascribe and assume particular traits as specific to men and women, debates may miss the mark regarding gender as relations of power that, like everything else, are cast into disarray during humanitarian crises. It is well-established that gender roles are interwoven with other social identity markers, and that these intersectional gender relations are, moreover, deeply ingrained in and reproduced by the working of all institutions in society, ranging from the personal between men and women to the working of cultural values, geopolitics, governance practices, and religion. In creating the special issue, we asked: how do humanitarian responses interact with these myriad aspects of gender and other interrelated social identities? And how do humanitarian responses thus affect gender relations?
Persistence and change
The special issue testifies both to the persistence of gender relations as well as their propensity to change. Julian Hopwood, Holly Porter, and Nangiro Saum found a drastic reported change in everyday gender relations in Karamoja, Northern Uganda, especially where women’s material resource bases were enhanced, but they raise questions about whether such change is enduring. The economic empowerment of women may spill over positively into other domains of life, or contrarily may undermine goodwill towards women’s positions and bring about a violent backlash against them (and against humanitarians)—or both. Likewise, well-meaning interventions can have adverse effects, as Luedke and Logan found in South Sudan, where a narrow focus on conflict-related sexual violence and recycled (although well-intentioned) responses thereto by international organisations were not only unhelpful, but also ran counter to and undermined local norms that might have protected women.
The instrumentalisation of gender
A final layer that complicates the analysis of and interventions in gender relations is that gender as an issue is often instrumentalised for different purposes. Gender has firmly become part of the high politics of international relations. More locally, an interest in the position of women can, for example, obscure attempts of a government to firm up its grip over local authorities, as Rebecca Tapscott found in another contribution to the special issue on Northern Uganda. Likewise, Hilhorst and Douma found that the responses to sexual violence in the DRC were instrumentalised for various purposes by a large range of actors.
Treading carefully
What do these different layers mean for humanitarian action, apart from standing as a reminder that paying attention to women should not result in turning a blind eye to vulnerability and agency of other gender categories? The special issue highlights the dynamic and entangled nature of gender relations, and how humanitarian and political attention to gender adds additional layers to the complexities of gender relations in crisis environments. Aid can often do lots of harm. This does not mean that gender objectives should be abandoned, but that aid actors need to tread carefully and seriously invest in their capacity to carefully monitor the intended and unintended effects of programming on gender relations.
[1] The issue is open access for the duration of 2018.
Picture credit: Kate Holt/Africa Practice
