Sexual and reproductive health and rights in Latin America: an analysis of trends, commitments and achievements

Abstract

The Programme of Action of the International Conference on Population and Development (ICPD) in 1994 defined strategies and goals for advancing reproductive health and rights that are still far from being reached in Latin America. This paper will use elements of a framework developed by Gruskin et al¹ that analyses the interconnected factors affecting the sexual and reproductive health of people living with HIV. We use and adapt some of these elements to examine the extent to which sexual and reproductive rights have been realized in Latin America since 1994. Specifically, we consider the rights, needs and aspirations of people; the socioeconomic context; national and international law and policy; health systems, services and programmes; the opposition; the perceived high costs of political support; the role of civil society, NGO networks and coalitions; and development aid, donor policy and government funding. There are a growing number of progressive regional and national bodies, organizations, groups and individuals with a commitment to sexual and reproductive health and rights in the region, and many gains have been made in the realization of these rights. However, these gains are only partial, given the acute inequality across ethnic, socioeconomic and geographic lines, and there is evidence of widening gaps. Given the breadth of the subject and the number of countries involved, this paper can cite only a few of the enormous number of examples from the literature. We hope the paper will stimulate further in-depth, critical reviews of these issues at the country and regional level.

Résumé

En 1994, le Programme d'action de la Conférence internationale sur la population et le développement a défini des stratégies et des objectifs pour faire progresser la santé et les droits génésiques que l'Amérique latine est encore loin d'avoir réalisés. Cet article emprunte des éléments d'un cadre élaboré par Gruskin et al ¹ qui analyse les facteurs interdépendants qui touchent la santé génésique des personnes vivant avec le VIH. Nous utilisons et adaptons certains de ces éléments pour déterminer dans quelle mesure l'Amérique latine a réalisé les droits génésiques depuis 1994. Concrètement, nous examinons les droits, les besoins et les aspirations des individus ; le contexte socioéconomique ; les législations et politiques nationales et internationales ; les systèmes, services et programmes de santé ; l'opposition ; les coûts élevés du soutien politique tels qu'ils sont perçus ; le rôle de la société civile, des réseaux d'ONG et des coalitions ; et l'aide au développement, les politiques des donateurs et le financement gouvernemental. Un nombrecroissant d’organismes nationaux et régionaux,d’organisations, de groupes et d’individusprogressistes sont engagés en faveur de la santéet des droits génésiques dans la région, etbeaucoup de progrès ont été accomplis dans laréalisation de ces droits. Néanmoins, les progrèsne sont que partiels, étant donné les profondesinégalités entre les différents groupes ethniques,socio-économiques et géographiques, et il estmanifeste que les écarts se creusent. Compte tenu de l'ampleur du sujet et du nombre de pays concernés, nous ne pouvons citer que quelques-uns des multiples exemples tirés des publications. Nous espérons que l'article encouragera la réalisation de nouvelles études approfondies et critiques de ces questions au niveau régional et national.

Resumen

El Programa de Acción de la Conferencia Internacional sobre la Población y el Desarrollo, celebrada en 1994, definió estrategias y metas para promover la salud y los derechos reproductivos, que aún falta mucho por alcanzar en Latinoamérica. En este artículo se utilizan elementos de un marco creado por Gruskin et al¹, el cual analiza los factores interconectados que afectan la salud sexual y reproductiva de las personas que viven con VIH. Utilizamos y adaptamos algunos de estos elementos para examinar hasta qué punto se han realizado los derechos sexuales y reproductivos en Latinoamérica desde 1994. Específicamente, consideramos los derechos, las necesidades y las aspiraciones de las personas; el contexto socioeconómico; las leyes y políticas nacionales e internacionales; los sistemas, servicios y programas de salud; la oposición; los percibidos altos costos del apoyo político; la función de la sociedad civil, redes de ONG y coaliciones; y la ayuda financiera para el desarrollo, políticas de donantes y fondos gubernamentales. Existe un creciente número deorganismos, organizaciones, grupos y personasprogresistas, tanto a nivel regional comonacional,con un compromiso a la salud y los derechossexuales y reproductivos en la región, y se hanlogrado muchas ganancias en la realización deestos derechos. Sin embargo, estas gananciasson solo parciales, dada la aguda desigualdadentre diversos grupos étnicos, socioeconómicos ygeográficos, y hay evidencia de que las diferenciasse están acentuando. Debido a la amplitud del tema y al número de países implicados, en este artículo podemos citar sólo unos pocos del gran número de ejemplos de la literatura. Esperamos estimular más revisión crítica a fondo de estos asuntos a nivel nacional y regional.

Key Words:

• reproductive and sexual health and rights
• law and policy
• health policy and programmes
• advocacy and political process
• donor funding and assistance
• Latin America

The Programme of Action of the ICPD defines reproductive health as a “state of complete physical, mental and social well-being and not merely the absence of disease or infirmity, in all matters relating to the reproductive system and to its functions and processes.”² The Plan of Action spells out that people have the right to “a satisfying and safe sex life” and should have the “capability to reproduce and the freedom to decide if, when and how often to do so.”²

Individual rights, needs and aspirations

By these definitions, the rights, needs and aspirations of people in relation to sexual and reproductive rights in Latin America are far from being fulfilled. There are 9,200 maternal deaths in the region each year and 110,000 newborn deaths.³⁴ Unmet need for family planning is high and over 10 million unwanted pregnancies occur each year.⁵⁶ Twenty-two per cent of pregnancies end in abortion, with the vast majority of these being unsafe, due to their illegality. Abortion is legal on broad grounds and safe services accessible only in Mexico City, Puerto Rico and Cuba.⁷⁸ While Africa and Asia have the highest absolute numbers of abortions each year, Latin America has the highest unsafe abortion ratios in the world, with 31 unsafe abortions per 1,000 women aged 15 to 44, and 39 unsafe abortions per 100 live births.⁹ Each year in Latin America, some 2,000 women die from abortion complications, 45% of whom are under the age of 24.⁶¹⁰¹¹ Overall maternal mortality for the Latin American region was estimated in 2008 to be 85 deaths per 100,000 live births.⁵ This represents a 41% reduction in maternal mortality since 1980, with Bolivia showing the most impressive drop of 65%.¹² Knowledge of fertility in relation to the menstrual cycle, an indicator of sexual and reproductive health education, remains relatively low in the region. In Colombia, Peru and Bolivia, in 2008, only 38% of women between 15 and 49 years of age knew when conception was most likely during the menstrual cycle, and less than 15% in Haiti and Guatemala.¹²

Adolescent sexual and reproductive health indicators and trends are particularly worrying. Latin America is the region with the second highest rates of adolescent motherhood after sub-Saharan Africa, with 30–50% of sexually active unmarried women aged 15 to 24 not using any contraceptive method.⁶ While total fertility rates in most countries have been declining, adolescent pregnancy has remained high, such as in Peru, or is increasing, such as in Argentina and Brazil.¹³ Even in countries with lower than average adolescent pregnancy rates, great disparities often exist within the country. In Chile, for example, 15% of nationally registered births are to adolescent mothers, but in Santiago, the capital, adolescent pregnancies represent only 4% of the total, compared to 10–20% in more disadvantaged areas.¹⁴ Maternal mortality, including from unsafe abortion, is one of the main causes of death in adolescent girls in Latin America.¹⁵ Young people, especially young women, represent an increasing proportion of people living with HIV and AIDS.¹⁵

Despite approximately 50% of adolescents under 17 being sexually active, public policies often deny the reality of adolescent sexuality, such as in Peru, where all sexual intercourse between 14–18 year olds is illegal, even when consensual.¹⁶ This law contradicts other Peruvian laws that recognize the sexual capacity of adolescents, and cause some young people to avoid sexual and reproductive health services for fear of legal sanction.¹⁶ In Chile, school bylaws to prevent discrimination on grounds of sexuality, pregnancy and HIV are commonly absent, despite being mandatory, and sexual education has not been fully implemented due to the denial of teenage sexuality.¹⁴ Also in Chile, a 2004 modification to the criminal code raised the age of statutory rape from under 12 to under 14, with the intention of protecting girls.¹⁷ But this law also requires health professionals to report any adolescent under the age of 14 who requests contraceptives or is found to be sexually active, and has led to violations of adolescents' right to confidentiality, information, health, equality and non-discrimination.¹⁷ Such policies are in disaccord with the ICPD Programme of Action, which directs States to provide sexual and reproductive services to all individuals, including adolescents.²

Aspirations are difficult to quantify and measure; however, in 2011, cross-national public opinion research on abortion in Brazil, Chile, Mexico and Nicaragua found that individual perspectives on whether abortion should be legal did not support current restrictive policies and that the characterization of the abortion debate as polarized between two positions was too simplistic.¹⁸ People did not necessarily identify themselves as unequivocally for or against abortion. Rather, there was a third position, whereby most study participants preferred to see more liberal abortion legislation than currently exists in their countries, and favoured the legalization of abortion under certain circumstances. The study also revealed an aspiration for a more open and participatory debate about abortion in their respective countries.

Social and economic context

The extent of attainment of sexual and reproductive health and rights reflects the pattern of inequality in the Latin American region, where the top 10% of the population control half the region's wealth, compared to the poorest tenth, who receive only 1.6% of the income.^19–21 While total fertility rates have fallen on average, great differences exist between countries. Cuba had the lowest levels of fertility at 1.5 births per woman in 2009,¹²²²²³ while Chile and Uruguay had rates of 1.9 and 2.1 births per woman, respectively, in 2009.²³ Great disparities exist between states and cities in the same countries, between urban and rural areas, between those who have and do not have access to education, and along ethnic lines.^20,24–26 For example, total fertility rates in the region persist in being 20–80% higher in rural compared to urban areas, and most deaths from cervical cancer are concentrated in women from lower socio-economic groups.¹²²⁷ In Guatemala, indigenous women are twice as likely as non-indigenous women to die due to pregnancy-related causes.²⁸ Indigenous women across the region face triple discrimination based on gender, ethnicity and socio-economic factors.²⁹ Women in general often lack control over their sexual and reproductive lives due to gender-based inequalities, exacerbated by high levels of gender-based violence.²⁷

National and international law and policy

The history of reproductive health policy in Latin America has in many ways mirrored and been influenced by external and global developments. During the Cold War, Latin American governments were pressured to implement and given foreign aid for population reduction policies, particularly by the US, which was concerned that growing populations could threaten political stability and create conditions conducive to the spread of Communism.³⁰³¹ The US heavily subsidized new contraceptive methods, such as birth control pills and intrauterine devices, which were thus made accessible to more Latin American women.³⁰ The Catholic Church in Latin America was often complicit in these policies at the time, such as in Peru, where the Church actively promoted family planning as a means to promote responsible families.

At the international ICPD+5 meeting five years after Cairo, countries from the Latin American region were split on the issues of induced abortion, family planning and sexual education. Argentina, Guatemala and Nicaragua supported the more conservative stance of the Vatican, while Brazil and Mexico were recognized for having invested significantly in the ICPD Programme of Action.²⁷

Millennium Development Goal 5 (MDG5) on maternal health incorporated universal access to reproductive health as a separate indicator in 2006. Measuring achievement of MDG5 has been contentious, and most Latin American countries are not projected to reach the goal of reducing maternal mortality by 75% by 2015. According to a more optimistic report, the closest exception is Bolivia, where the maternal mortality ratio fell from 439 to 180 maternal deaths per 100,000 live births between 1990 and 2008.³² Overall, maternal mortality across the region fell from 140 to 85 deaths per 100,000 live births between 1990 and 2008.⁵ Intermediary targets nevertheless show progress at the regional level. For example, the proportion of deliveries attended by skilled health personnel in Latin America increased from 72% to 86% between 1990 and 2008. The percentage of women in the region, married or in union, who were using any method of contraception increased in the same period and since 1970 the total fertility rate has decreased in the region as a whole from about 5 to 2.8 children per woman, slightly below the global average of 3, but with great differences between and within countries.¹²²⁴³³

Some of the reductions in total fertility have been achieved in ways that violate human rights. For example, Fujimori's government in Peru embarked on an aggressive programme between 1995 and 2000 in which 250,000 women, mostly poor and indigenous women from rural areas, were sterilized without their full and informed consent.²⁶ A case relating to this policy was presented against the state of Peru to the Inter-American Commission on Human Rights in 1999. The Commission found the Peruvian government to be in breach of the right to life of María Mamérita Mestanza Chavez after she was forced to undergo sterilization in 1996 and then died after post-operative complications were ignored.³⁴ As part of the settlement, the government agreed to change discriminatory legislation and reform other policies in favour of reproductive rights. In the region as a whole, the Inter-American Commission and Court of Human Rights have increasingly provided an important last resort for advocates seeking policy change and redress for individual violations of sexual and reproductive health rights in their own countries.³⁴

When examining progress on national laws and policy in relation to reproductive rights in the region, it is important to recognize that the relationship between law and policy on paper and its implementation can be extremely tenuous. National legislation is commonly comprehensive on any given issue, but implementation often lags behind or is completely absent. This situation is by no means unique to reproductive health laws or to Latin America, but these laws are no exception either. Mauricio García Villegas chronicles this culture of normas de papel (rules on paper), the origins of which he traces back to colonial times.³⁵

Notwithstanding these caveats, national laws, policies and jurisprudence have led to important improvements in the realization of sexual and reproductive health rights in Latin America. Sustained advocacy by women's and reproductive health groups has been a major factor in ensuring that the new constitutions of Ecuador, Bolivia and Venezuela recognize sexual and reproductive rights, for example.²⁹ In these cases, the momentum of important structural and societal changes was also critical in overcoming opposition, such as in Bolivia. However, many Latin American constitutions have been interpreted by lawmakers as protecting the right to life from conception, such that abortion laws remain restrictive, with Nicaragua, Chile, El Salvador, Honduras and the Dominican Republic banning abortion outright.³⁶ In Colombia, where abortion is legal under certain circumstances, such as for rape victims, the right to conscientious objection on the part of service providers was eroding the right to health of women, prior to an important Constitutional court decision in 2008.³⁷ The case involved a 13-year-old rape victim who was denied an abortion in five successive hospitals in 2006. The Court found that the girl's right to a lawful abortion had been violated and ordered reparations. It also ruled that hospitals did not have the right to conscientious objection and must make doctors available who were willing to perform abortions if other doctors objected on conscience grounds, which they had to explain in writing. This and similar cases in Peru in 2003 and Mexico in 2007 make evident how conscientious objection, if not regulated, can lead to violations of women's rights.³⁷ Another series of court cases regarding the conflict between the duty of confidentiality of doctors and their duty to report illegal activities, have shown patchy progress in ensuring that women have access to treatment for abortion complications without fear of criminal repercussions.³⁸ In Argentina in 2008, a criminal court ruled that if a medical professional reports an abortion under the professional code of conduct, no criminal charges can be brought against the woman.³⁹ In Peru, in contrast, legislation still explicitly requires health professionals to report illegal abortions to the police.³⁸

In Uruguay, where abortion legislation is restrictive, the “harm reduction model” was developed, whereby physicians provide women with information on self-administration of misoprostol, an abortifacient drug, and post-abortion care for any complications if needed. In 2004 the Uruguayan Ministry of Health enacted guidelines to implement this model in all public facilities.⁴⁰ This approach, while falling short of the full realization of women's abortion rights, may represent a move in the right direction.⁴⁰

Health systems, services and programmes

The evolution of health systems in Latin America has had an impact on access to sexual and reproductive health services. The complete sexual and reproductive health services package should include: family planning and safe abortion; antenatal, delivery and post-partum care; emergency obstetric care; newborn care; reproductive and breast cancer screening and treatment; screening and treatment for sexual health problems, including sexually transmitted infections and HIV; screening and treatment for infertility; sexual health education and counselling; and promotion of gender equality and empowerment in general.²⁷⁴¹

Structural adjustment programmes in the 1980s–90s had debilitating effects on the health sector in many Latin American countries, as governments were pressured by international financial institutions to lower public expenditure at all costs.²⁶ The common trend of health sector reform in the region, often part of these structural adjustment packages, has had mixed results in terms of promoting sexual and reproductive health services.²⁷ An emphasis on efficiency and revenue generation was translated into the contracting out of services and the introduction of user fees, further segmenting access to services along socioeconomic lines. Decentralization, intended to allow more autonomy and control at the local level, has been problematic for the health sector as a whole in many countries when not accompanied with the commensurate transfer of financial resources and technical and managerial capacity, such as in Peru, where a 2010 fact-finding mission questioned the capacity of local authorities to implement sexual and reproductive health policies in the absence of better funding and training.⁶²⁴ Service provision has also been hindered because traditional vertical structures remain centralized, such as family planning programmes, while responsibility has been transferred to the local level. Decentralization can, however, be advantageous for creating services that are locally appropriate and managed.⁴² These advantages have been evidenced in Brazil, where policy accountability mechanisms have helped to ensure the success of decentralized management of sexual and reproductive health services at state, departmental and local levels.⁴³ For large NGOs, decentralization has translated into greater opportunities to capture contracts, as in the case of International Planned Parenthood Federation affiliates BENFAM in Brazil and Profamilia in Colombia.⁴⁴ However, smaller NGOs cannot take advantage of these opportunities, given common delays and complex systems for repayment by government agencies. In Mexico, where the government began to establish policies for collaborating with civil society in 1995, a qualitative study found that NGO involvement has been critical for filling gaps in service delivery not provided by the public or for-profit sectors.⁴⁵ In spite of the benefits of the social engagement created by NGO community networks, however, this model is under threat due to lack of external funding.⁴⁵

Drawing conclusions about health systems, services and programmes across Latin America is difficult because of the great variation between and within countries, but some trends and particular country examples are worth mentioning. Overall contraceptive prevalence in the region has risen from 54% in 1980 to 73% in 2008, but this regional average hides a higher than average contraceptive use in Brazil and Mexico and lower rates elsewhere, e.g. 32% in Haiti.²¹³³ Age also has a large effect: only 54% of young married women aged 15–19 use modern contraception compared to 83% of married women over 35.⁴¹

Inadequate response on the part of health care systems, though important in and of itself, is symptomatic of larger structural barriers. Socioeconomic status is an important determinant of use of services, for example. Thus, 97% of the wealthiest quintile of women deliver their babies in hospital, compared to only 67% of the poorest quintile.⁴⁶ In Honduras, 99% of the richest quintile deliver with a skilled attendant compared to 33% of the poorest quintile.²¹ Extending reproductive health service coverage to poorer populations has been aided in Bolivia and Peru through national health insurance schemes which target the poorest and prioritize sexual and reproductive health care, including antenatal, post-partum and delivery services, which are free of charge.²¹ Guatemala has followed a different model, using conditional cash transfers to reach the poorest, although this has left the Ministry of Health with depleted resources for specific sexual and reproductive health programmes, as funds were diverted from Ministries to finance the presidential initiative on conditional cash transfers.²¹

Brazil has shown strong government leadership in several aspects of sexual and reproductive health, including maternity care and family planning, and is one of a handful of countries globally that offers free access to HIV antiretroviral treatment.²¹ Thanks in large part to the work of NGOs and university hospitals since the late 1980s, reducing maternal mortality has been a priority in Brazil, and 95% of deliveries now take place in hospitals.²¹⁴³ Despite this, maternal mortality from unsafe abortion remains high, with over 700,000 illegal and unsafe abortions annually. Many Brazilian women pay for clandestine abortion services by unskilled professionals or self-medicate with misoprostol and then turn to public hospitals for post-abortion care.⁴³

In countries with large indigenous populations, some progress has been made on integrating culturally sensitive reproductive health policies, particularly at the sub-national level.²⁹ The 1998 Constitution in Ecuador specifically recognized the inter-cultural nature of health rights, and paved the way for health sector modernization in 2002, which established guidelines for such models.²⁹ The new Bolivian constitution explicitly guarantees the exercise of sexual and reproductive rights, and intercultural health norms have been enacted that include access to contraception.²⁹ In Peru two culturally appropriate measures have been adopted since 2005, to try and address inequality in maternal health along ethnic lines: vertical delivery options have been established that are congruent with indigenous beliefs that a woman should push downwards during delivery, and waiting rooms have been created that allow accompaniment of family members during childbirth.²⁹

The opposition

A powerful, diverse, well-organized and financed opposition to sexual and reproductive health and rights has a strong presence in Latin America, and the relationship between governments and conservative forces has frequently held these issues hostage. The Catholic Church currently plays a central role in this opposition in many Latin American countries, censuring more open and honest debate,⁴⁷⁴⁸ often in conjunction with other churches and conservative actors.

The Catholic hierarchy have sometimes been overt in putting pressure, e.g. in influencing reproductive health legislation to limit women's rights and access to services in Uruguay and Bolivia, and at other times more nuanced, as seen in Brazilian jurisprudence relating to abortion of non-viable pregnancies.⁴⁹ In Uruguay, they put heavy pressure on senators to hold up the process of approving a new reproductive health law in 2004 and again in 2008. Due to coordinated efforts by women's and reproductive health pressure groups, this law was initially passed by one house but rejected in the other in 2004, due to counter-lobbying.⁴⁹ A broad-based social movement in Uruguay supporting reproductive rights, including trade unions, academics and international allies, saw the passing of a comprehensive reproductive health law in both houses in November 2008, which would have decriminalized abortion in the first trimester, only to have it vetoed by the President.⁵⁰ A month later, however, the President was forced to resign as head of his own party, as his party had supported the bill. In Bolivia, conservative ecclesiastical forces intervened once a sexual and reproductive health rights law had already been passed by the congress in 2004, directly pressuring the President to veto the law.⁴⁹ Except in one case in 2005, Brazilian courts have generally based their decisions on the Catholic claim of the right to life from conception, even if moral and religious language is not apparent in the judgements.⁵¹

Advocacy by the Catholic Church against emergency contraception, falsely describing it as abortifacient, has also influenced politicians and judges.⁵² The dominance of this stance is evident in jurisprudence on emergency contraception in Chile in 2008 and Argentina in 2002.⁵³ Courts in both instances, rather than basing their rulings on scientific evidence and women's right to determine the spacing of children, focused on Catholic doctrine on when the right to life begins.⁵³ This is unconstitutional in itself, as it prioritizes the views of one religion over another in what are meant to be secular democracies. In Chile in 2008, the Catholic Archbishop of Santiago supported local mayors who took it upon themselves to deny rape victims emergency contraception on the grounds of conscientious objection, contrary to directions from the Ministry of Health.⁵⁴ Perhaps the most glaring example of Catholic influence on this issue was when the Peruvian state requested that the Catholic Church, and not any other religion, give its opinion on the matter. The Catholic Church obliged by threatening women with excommunication if they used emergency contraception.⁵³

It is important to note that this influence regarding emergency contraception is not universal in Latin America, and that not all the effects of Catholic attention to this issue are negative. For example, in Colombia in 2008, distribution of emergency contraception was upheld by the highest administrative court.³⁹ All in all, the opposition to emergency contraception has conspired to make the method more familiar and probably contributed to its wider use.⁴⁴⁵²

The ultra-conservative Catholic Opus Dei has been particularly strategic in occupying influential cabinet positions in national governments and using their positions to advocate against sexual and reproductive health services.⁵⁵ Since so much of the political debate goes on behind closed doors, it is impossible to know fully the extent of their influence. However, Opus Dei member and Minister of Education Marta Lorena Alvarado successfully blocked the implementation of sexual education in Honduras in 2006.

Members of Catholics for Choice, active in Mexico, Brazil, Bolivia and other Latin American countries, represent an important dissenting voice within the Church hierarchy, with leaders often risking their own positions to support more liberal views.⁵⁶⁵⁷ In Peru, some of the Church leadership actively supported family planning programmes in the late 1960s and early 70s,³⁰ and significant financial support from USAID was critical in helping Dr Joseph Kerrins, a Catholic physician from the US, to set up a family education programme in Lima that included the provision of birth control pills to breastfeeding women. He also worked with local priests, on the basis of strengthening families rather than women's autonomy, with the explicit support of the local Cardinal. In those years, the concern for social justice among Catholic religious in the region trumped being faithful to the Vatican, and provides hope for resolving the current polarization on sexual and reproductive health issues today, at least at country level.³⁰

The Catholic Church is by no means the only Church that holds sway on issues of sexual and reproductive health. For example, in Argentina in September 2011, the Catholic, Orthodox and Evangelical Churches published a joint document on “commitment to life”.⁵⁸ While the Evangelical Church has not had as much political clout, it represents a significant and growing influence, particularly in rural areas.

The Toledo government in Peru showed that far-right conservative governments can implement policies that are repressive of reproductive rights, without having explicit religious alliances. Elected in 2001, Toledo assumed office and appointed ultra-conservatives to key Ministry posts, including a Health Minister⁵⁹ who worked with US anti-choice groups, a right-wing US congressman and national allies in the Peruvian legislature to implement sweeping changes to public policy on sexual and reproductive health.⁵⁹ Abstinence was promoted as the only way to avoid STI/HIV transmission, and a disinformation campaign informed the public that condoms were totally ineffective.⁵⁹ Women's role as mothers was emphasized and any mention of gender inequity was removed from health policy documents. Services for treating complications from unsafe abortions were curtailed.⁵⁹ In parallel, UNFPA and USAID were under attack in the US, and US foreign policy changed from focusing on human rights to the war on drugs.⁵⁹

The perceived high costs of political support

The perceived (if not actual) political costs of support for reproductive health and rights are usually extremely high. Among national legislators in Latin America, political calculations have often led at least the most controversial aspects of a policy being dropped, if not the majority of the sexual and reproductive health and rights agenda. A recent presidential debate in Guatemala, hosted by the Episcopalian Conference, is a case in point. All nine candidates agreed that the state should not be involved in sexual education, which they said was strictly a family affair.⁶⁰ Even large pharmaceutical companies in the region have succumbed to such pressure and, for example, have chosen not to produce emergency contraceptive pills in order to avoid opposition.⁵²

In a comprehensive examination of the obstacles to the realization of sexual and reproductive health and rights in Latin America, Shepard highlights several phenomena in relation to the political cost of action.⁵⁶ Those who suffer the most from restrictive laws and policies tend to be the poor, who are not an important lobbying group that politicians are concerned about pleasing. The political and economic elite have other options, such as private clinics offering clandestine abortions, which diminishes their need to support progressive policy changes. These “escape valves” undercut what might otherwise be strong constituencies for reform. Thus, a “double discourse” persists, whereby official policy is conservative and unquestioned publicly, and privileged individuals, who have choices, can ignore the problems.⁵⁶ A 2004 comment by then First Lady and now President of Argentina, Cristina Fernández, exemplifies this scenario. When asked by a French lawyer about legalizing abortion, she replied: “Societies have their moments, and I don't believe Argentina is ready for this. We were barely able to approve a sexual education and responsible reproduction law, and we have to see the price for that.”⁶¹

Another view is that political costs are not the real root of the problem, but rather a patriarchal society that constantly differentiates between the public, official world of men and the hidden, private spheres of women, and where the devastating effects of illegal abortion are suffered in silence.⁶¹

A case where the political costs of action were overcome, was in the progression of abortion law reform in Mexico City between 2000 and 2007. In 2000, the Robles Law expanded grounds on which abortion would no longer be punishable, such as risk to a woman's health, but it was not until 2004 that legislation actually decriminalized abortion on these grounds.⁶² In 2007, the shift towards women's autonomy was even clearer, with abortion being completely decriminalized in the first trimester. The factors that favoured this iterative approach are worth considering by advocates in other countries that have begun to liberalize abortion laws, such as Peru and Colombia,⁶² where organized women's groups were key in leading well-informed, momentum-garnering coalitions in a political atmosphere conducive to legislative change. Timing was important; all three reforms were pursued immediately following elections, when politics were more relaxed and in the case of Mexico, when the presidential aspirations of the governor of Mexico City were not critical, allowing slightly more leeway from his party for the pursuit of polemical issues, such as legalization of abortion, without fear of foiling a national election. The 2004 legislation received unanimous support, even from a party that was historically opposed to liberalizing the law, because it stipulated that health service providers could conscientiously object to providing abortion services. Finally, the city's legislature was led in 2007, at the time of the most dramatic reform, by a left-leaning coalition that was able to squeeze out the interests of the political right.⁶²

Nevertheless, the reforms in Mexico City have had their opponents and led to a substantial backlash. The 2000 Robles Law was challenged in the Supreme Court of Mexico, which ruled that it did not violate the Constitution because it maintained the criminality of abortion. Then, promptly on the heels of the 2007 legal reform, the President of Mexico's National Human Rights Commission and the Federal Attorney General both challenged the new law as unconstitutional, primarily because it denied the right to life of the fetus. However, in 2008 the Supreme Court upheld the law on the grounds of upholding women's right to health and autonomy. In reaction, 16 Mexican states amended their constitutions to make explicit that the right to life was protected from conception.⁶² In September 2011, GIRE (Grupo de Información en Reproducción Elegida), announced that the Mexican Supreme Court had received case briefs proposing the annulment of two of the amendments protecting life from conception that were introduced in Baja California and San Luis Potosí. The briefs argued that these amendments disregarded women's dignity and restricted their reproductive rights, and sexual and reproductive health.⁶³ On 28 September 2011, seven of the 11 Supreme Court judges voted to uphold the constitutional reforms in these two states.⁶⁴ This means that in Baja California, for example, women are still liable to be jailed for three years if they are found to have had an abortion.⁶⁵

The most egregious example of backtracking on abortion is probably that of the Nicaraguan government under Daniel Ortega which in July 2008 re-criminalized abortion on all grounds, when previously therapeutic abortion had been legal under certain circumstances.⁶⁶

The role of civil society, NGO networks and coalitions

The role of women's health and rights organizations in accomplishing national and regional advances in reproductive health and rights cannot be overstated.⁴⁴⁵⁶ In addition, NGO service providers, such as Orientame and Profamilia in Colombia, which respond to local population needs and work alongside advocacy and research organizations, have helped to make sure that sexual and reproductive health issues are raised.²⁷⁴⁴ During the most recent presidential election campaign in Guatemala, for example, health NGOs organized a forum about sexual health and called on presidential candidates to take on the issue of adolescent pregnancy and sexual violence in their platforms.⁶⁷ NGOs not only maintain pressure to ensure that certain already negative situations do not worsen, but also proactively file cases in the courts and with human rights bodies. For example, when a 19-year-old, mentally disabled Argentinian girl was raped by a relative and became pregnant, her mother was unable to obtain an abortion for her in the public health system, despite multiple attempts with the support of women's rights advocates and a favourable decision by the Buenos Aires Supreme Court. Three Argentinean rights organizations took the case to the UN Human Rights Committee in April 2011, which ruled that there had been multiple human rights violations.⁶⁸

Even now there is a paucity of precedents and normative content to help enforce the right to health. Latin American NGOs have helped to fill this gap, e.g. by submitting shadow reports to UN treaty bodies, for example in Mexico, Venezuela, Argentina, Chile and Peru.⁴² CLADEM (Latin American and Caribbean Committee for the Defence of Women's Rights) is a regional women's network that produced the Inter-American Convention on Sexual and Reproductive Rights. This important document, which has yet to be adopted, would help to clarify regional standards in relation to sexual and reproductive rights within the inter-American system.⁴²

Human rights NGOs have historically had limited experience working in the area of health, and health organizations have not always incorporated human rights approaches. Collaboration between these two types of organizations would strengthen both, in the form of hybrid NGOs, such as the NGO Health Defence Office in Chiapas, Mexico, which integrated human rights education into their health programming, and also broad-based, multidisciplinary coalitions, such as the Peruvian Permanent Assembly for the Protection of the Right to Health and Reproductive Rights.⁴²

Despite wide-ranging gains by NGOs and their advocacy networks, national and international forces and threats have sometimes debilitated their capacity for action.⁵⁶ Networks often rely on consensus decisions, which can hamper timely and decisive action, sometimes making them no match for the hierarchical, well-organized and well-financed conservative opposition, particularly in the current climate of decreased funding for NGOs. NGO members have experienced not only personal attacks but also the risks of igniting a backlash. In Chile and Colombia in the mid-1990s, for example, studies that exposed the existence of illegal abortion clinics were met with crackdowns and repression.⁵⁶ The dependency of NGOs on external financing also makes them vulnerable due to changing flows in donor support and when the only possibility for survival is to secure national funding, dependent on not being confrontational with national governments. In more ways than one, then, NGOs have to weigh up taking a stand against the risk of being cut off from funding and contracts.⁵⁶ The national philanthropic sector, which could potentially mitigate the reliance of NGOs on governments and international financial support, while expanding, has rarely supported advocacy efforts in sexual and reproductive health and rights.⁵⁶

Finally, NGOs are sometimes discouraged from playing a highly critical role with regard to reproductive and sexual health issues if they support other projects of their governments or religious leaders. For example, in Chile under Pinochet, feminist NGOs worked with the Church to protect the politically persecuted, and were reticent to break ranks with the Church on abortion.⁶⁹ The question now is whether NGOs in the increasing number of Latin American countries with centre-left leaders will be willing to risk their rapprochement with governments to make comprehensive proposals for advancing sexual and reproductive health rights as part of social investment platforms.

Development aid, donor policy and government funding

Many Latin American countries are said to have reached “middle-income” status, and overseas development aid is being diverted to low-income countries. As a result, support for sexual and reproductive health and rights is also being reduced, a trend that somehow needs to be reversed in order to avoid eroding the fragile base of past and future gains.

At the ICPD in 1994, global targets were set for donor assistance,⁷⁰ based on commitments by the wealthier countries to provide technical and development assistance to poorer countries under the auspices of international human rights agreements.¹⁷¹ In 2002, donors had mobilized only 46% of the global target for that year, and although by 2004, the 10th anniversary of ICPD, donor assistance met initial goals,⁷² it was discovered that the original estimates were too low:

“The HIV/AIDS pandemic has reached proportions that were never anticipated, and maternal and newborn mortality remain unacceptably high in many parts of the world. Health care costs have increased dramatically and the lack of progress on ICPD targets has been identified as being linked to… the lack of investment in the development and support of health systems and programmes.” ⁷³

Projected estimates did not originally include screening and treatment for reproductive cancers either.⁷⁴ Since the mid-1990s, funding for HIV and AIDS has dwarfed all other areas of sexual and reproductive health, particularly compared to family planning funding.⁷⁰ In Latin America, this represents a significant lost opportunity, as meeting the need for family planning and maternal and newborn health services would have dramatic effects. The Guttmacher Institute estimates that investments to meet these needs in Latin America would reduce annual maternal deaths from 9,000 to 4,000, newborn deaths from 110,000 to 49,000 and unintended pregnancies from 10 million to 3.3 million.⁴⁶

Of total international funding for population assistance in 2008, Latin America received 8%, or US$ 519 million. In contrast, donor funding for population issues in Latin America represented 14% of the global total in 2001 and 2002, dropping to 9% in 2004 and 2006, and finally to 8% in 2007 and 2008. Of 2008 funding for Latin America, 58% went to STIs and HIV/AIDS, 31% to reproductive health, 8% to family planning and 3% to research, data and policy analysis.^73–75

For advocates, these trends are particularly distressing. While funding for HIV/AIDS is obviously critical, the other aspects of the sexual and reproductive health package should not be neglected. The decision of USAID to “graduate” all but two Latin American countries from their population programme is particularly concerning, given their historic role in funding family planning and sexual and reproductive health services in the region.⁶ Their criteria for withdrawal include total fertility rates of 3 or less, but this indicator does not take into account government capacity or commitment to replace donor aid or massive disparities between sub-groups in society. A fact-finding mission to Peru in 2010 about this “graduation policy” found that national contraceptive procurement plans were weak, non-profit providers would have to increase service fees, and in the context of decentralization, not all local authorities had the capacity or funding to take over responsibility for reproductive health services.⁶

With notable exceptions in Latin America, such as Brazil's Family Health Programme, progress on health systems strengthening has been slow.⁷⁶ Regardless of the state of health care systems in Latin America, donors should reconsider retreating from a region where the gains in sexual and reproductive health and rights are beginning to succeed in many countries and yet remain fragile. In addition to programmatic and policy support, funding is needed for political analysis of how to move forward, given the complex political challenges that advocates for sexual and reproductive rights face.

Conclusion

The progressive realization of sexual and reproductive health and rights in Latin America is a pressing human rights and social justice issue, given the acute inequality in the region across ethnic, socioeconomic and geographic lines. Many of the gains made recently are only partial, and there is evidence of widening gaps between the haves and have-nots, e.g. in the extent of access to safe vs. unsafe abortions. The opposition to sexual and reproductive health and rights remains well-organized, well-financed and powerfully backed, and civil society networks urgently need increased and sustainable funding to carry on their work and devise strategies to convince political leaders that inaction or backtracking on sexual and reproductive rights is not an option, and to build broad coalitions with others working for human rights and social justice in the region. There are a growing number of progressive regional and national bodies, legal professionals, political parties, parliamentarians and governments, health professionals, civil society organizations and reproductive health and rights advocates with a commitment to sexual and reproductive health and rights. Given the relative economic stability in the region in recent years, and the surge of centre-left governments in Latin America with strong social investment platforms, the time may well have come for civil society to successfully advocate for investment in sexual and reproductive health and rights as part of mainstream social policy.

Acknowledgements

The authors are grateful to Nadine Gasman for advice and conceptual contributions; Mercedes Cavallo, Agustina Ramón Michel, and Rebecca Cook for providing relevant references; John Richardson and Suzanne Fish for help with referencing; and the Canadian Institutes for Health Research for financial support. Anne-Emanuelle Birn's input was partially supported by the Canada Research Chairs Program. They had no role in developing the content of the article or the decision to submit.