Brazil: Supreme Court Makes Abortion Legal in Cases of Anencephaly

On April 11th, our colleagues in Brazil celebrated an important victory in the long battle toward safe legal abortion in the country. The Brazilian Supreme Court passed a vote eight to two in favor of making abortion legal in cases of anencephaly, a condition in which the fetus is developing without a brain and is not viable.

The case known as ADPF 54 was filed in 2004 by the National Confederation of Health Workers (CNTS) along with IWHC partner ANIS (Institute of Bioethics, Human Rights and Gender). CNTS and ANIS argued that forcing a woman to carry to term an anencephalic fetus amounts to a human rights violation and terminating a pregnancy under those circumstances should not be considered a crime.
Brazil´s Penal Code, adopted in 1940, criminalizes abortion in all circumstances except in cases of rape and when the life of the woman is at risk. ADPF 54 was filed in June 2004 and an injunction was granted in July 2004 by then Chief Justice Marco Aurélio Mello3, allowing women pregnant with an anencephalic fetus to obtain an early termination of their pregnancy and health professionals to perform this medical procedure without judicial authorization. In October 2004, the Supreme Court revoked the Chief Justice’s decision and many women were again forced to carry these pregnancies to term.

Debora Diniz, founder of ANIS and now a member of the IWHC Board of Directors, shared her perspective with us: “The Justices who voted in favor justified their votes on women’s reproductive rights, which expands the understanding of the right to abortion beyond the case of anencephaly.”

Although this may seem like a tiny bit of progress in a larger struggle for the right to safe and legal abortion, after either years in the court system it is both a symbolic and actual shift toward greater reproductive rights.

On April 12, the Secretariat of Policies for Women issued a note saying the Government will ensure that the decision of the Supreme Court is enforced in the public health system.

Here’s what some of the Supreme Court judges had to say during the hearing:

“Being a martyr must an option. If anyone wants to carry the pregnancy to term, she can do it. Nobody will prohibit it… However, being forced to carry to term a pregnancy of an anencephalic fetus puts a women in a prison in her own body.” -Justice Marco Aurelio de Mello

“The lack of an appropriate institutional model contributes to this physical and psychological torture, causing harm (sometimes irreparable) to the lives of the women who are affected”  -Justice Gilmar Mendes

“Why punish this woman who is already going through a human tragedy?” -Justice Luis Fux

5 responses to “Brazil: Supreme Court Makes Abortion Legal in Cases of Anencephaly

  1. I can not believe that there would be such a debate over granting women with anecephaly in their pregnancy right to abortion. When the right to abortion for women in these circumstances was first granted it should have stayed in place. It's tragic enough to find that your unborn child has this condition where they are lacking a brain but to be forced to give birth to that child and perhaps solidify the nature of your fetus causes even more distress to the pregnant woman who is under heightened emotion as it is. Hopefully this new law passed is here to stay.

  2. I am sure that many people will have their own opinion and reaction regarding abortion but still, it is essential to know the reason why they agreed with abortion and this issue should not be taken for granted.

  3. Why an abortion? Inducing labor early if the mom’s life or health is jeapordized, knowing anencephalic babies aren’t going to survive labor (or long thereafter) is quite enough. There’s no need to do the terrible things abortions require like causing heart attacks, burning skin (saline abortions), or dismemberment. Delivering the baby and giving the parents time with their precious little one to grieve and hold them grants all of them the dignity they need to process this very real loss of a 100% human. Any mom who carries to term is also leaving room for an ultrasound error to be corrected (maybe the baby is fine!) or for God to intervene and heal. Abortions– with all their gruesome pain & refusal to admit the humanity of the child being “terminated” (aka killed)– are not needed, even here.

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