Overview of the legality and prevalence of abortions in Brazil
Abortion in Brazil is a crime, with penalties of 1 to 3 years of imprisonment for the pregnant woman, and 1 to 4 years of imprisonment for the doctor or any other person who performs the abortion on someone else. In three specific situations in Brazil, induced abortion is not punishable by law: in cases of risk to woman's life; when the pregnancy is the result of rape; and if the fetus is anencephalic.[1][2] In these cases, the Brazilian government provides the abortion procedure free of charge through the Sistema Único de Saúde (Unified Health System). This does not mean that the law regards abortion in these cases as a right, but only that women who receive abortions under these circumstances, and the doctors, will not be punished.[3] The punishment for a woman who performs an abortion on herself or consents to an abortion performed by another outside these legal exceptions is one to three years of detention.[4] The base penalty for a third party that performs an illegal abortion with the consent of the patient, ranges from one to four years of detention, with the possibility of increase by a third if the woman comes to any physical harm, and can be doubled if she dies.[5] Criminal penalties fixed at four years or less can be converted to non-incarceration punishments, such as community service and compulsory donation to charity.[6]
Brazil is a signatory of the American Human Rights Convention, also called the Pact of San José. The Convention grants the right to life to human embryos, "in general, from the moment of conception", and has a legal status on a par with the Constitution in Brazilian Law. The Civil Code of Brazil also provides rights to fetuses and embryos. In a 2008 case, however, the Supreme Federal Court ruled, by a 6–5 vote, that the right to life applies only to intrauterine embryos, and that frozen embryos not eligible to a uterus transfer do not hold fundamental rights and may be used for research purposes. In 2012, the Supreme Court also authorized the abortion of anencephalic fetuses.
On November 29, 2016, the Supreme Court in Brazil ruled in a non-binding decision that "abortion should not be a crime when performed in the first three months of pregnancy".[7] This ruling was controversial, due to the fact that the Brazilian government had passed a bill earlier in 2016 which aimed to make Brazilian law on abortion even stricter.[8] As of September 2023, the Court is considering a case that could decriminalise abortion up to twelve weeks; in one of her final statements before retiring as the Court's President, Rosa Weber, made a public statement stating that motherhood should be a choice and not an obligation.[9]
^Senado Federal, Brasil (2014). "Código Penal" (PDF). Brasil. pp. 50–51.
^SELIGMAN, Felipe e NUBLAT, Johanna (12 April 2012). "Maioria do STF é favorável ao aborto de anencéfalos". Folha de S. Paulo. Retrieved 12 April 2012.{{cite web}}: CS1 maint: multiple names: authors list (link)
^Lemos da Silva, Rosângela (2010). DIREITO À JUSTIÇA E A LEI MARIA DA PENHA: uma análise na visão da isonomia material e forma. doi:10.24824/978856248092.8. ISBN 9788562480928.
^Brazilian Criminal Code (in Portuguese), art. 124.
^Brazilian Criminal Code (in Portuguese), arts. 125 and 127.
^Brazilian Criminal Code (in Portuguese), arts. 43 and 44.
^"BRAZILIAN SUPREME COURT TAKES STEP TOWARDS DECRIMINALIZING ABORTION". plus55. Archived from the original on 2016-12-02. Retrieved 2016-12-01.
^"A new bill aims to make Brazil's abortion law even tougher". Public Radio International. Retrieved 2016-12-01.
^"Aborto no STF: os detalhes do voto de Rosa Weber pela liberação; 'Fomos silenciadas!'". BBC News Brasil (in Brazilian Portuguese). 22 September 2023. Retrieved 28 October 2023.
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