Causal Salud: Interrupción Legal de Embarazo, Ética y Derechos Humanos

Exceptions to the criminal prohibition of abortion based on risk to life and health are available for women to terminate a pregnancy legally in most Latin American countries. However, inconsistencies in countries’ interpretation and implementation of the health indication and, depending on where women live, the medical practitioners they consult and their ability to defend themselves before public officials, can result in discrepancies in practice and discrimination. These inconsistencies translate into obstacles that prevent women from exercising fundamental rights and freedoms enshrined in national constitutions and international human rights treaties and violate their right to equal protection before the law.

It is this legal context that inspired the publication whose title in English is The Health Indication: Legal Termination of Pregnancy, Ethics and Human Rights. This book is the result of the committed work of legal and medical experts throughout the Latin American region who strongly believe that consistent interpretation and application of the health indication would diminish the unequal impact of the law on women. The group was convened in Mexico in 2007 by the Alianza por el Derecho a Decidir (Alliance for the Right to Decide) in Mexico and La Mesa por la Vida y la Salud de las Mujeres de Colombia (Colombian Working Group for Women's Lives and Health). The process of development of the book lasted two years. The meeting was followed by virtual discussions of papers and ended with a second meeting in Colombia. At that second meeting, the Federación Lationamericana de Sociedades de Ginecología y Obstetricia (the Latin American Federation of Obstetric and Gynaecological Societies (FLASOG)) agreed to co-publish it.

This book brings women's rights into the discussion of the health indication for legal abortion, on the basis of national constitutions and international human rights treaties, as well as medical expertise and bioethical principles. It frames the health indication as a strategy to protect women's fundamental rights, especially their right to health, life, dignity and privacy.

The book suggests operational criteria like a broader interpretation of the right to health to include physical, mental and social well-being, and the legal understanding of risk as a possibility rather than an actuality, and provides an analysis of risk factors, instead of a set list of medical conditions, to guide physicians' assessment of risk to the woman's health. The aim is to overcome discrimination in the application of this indication. The book also proposes an interpretation of the right to health to include protection of health. This places a duty on the State to enact health care regulations that will remove unwarranted obstacles to the provision of abortion services that are legal on health grounds.

The authors propose an understanding of health based on the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights (Protocol of San Salvador)¹ and on the International Covenant on Economic, Social and Cultural Rights.² They call for a more woman-centred risk assessment procedure in order to increase women's access to safe and legal abortion services and protect and guarantee women's fundamental rights effectively.

Although clinical judgment tends to prevail in the assessment of health risk, there are some ethical and legal considerations that should be raised in order to guide health professionals to better meet both the legal requirements and the specific needs of women. Particular attention should be paid to three aspects. First, health risk is not equivalent to risk of death. In the criminal law in Latin America and elsewhere, risk to the life of the woman, which is another way of saying risk of death, is a separate indication.³ Health risk encompasses a range of circumstances in which a woman's life may not be imminently threatened, but in which her health is at stake. Second, the legal concept of risk entails the possibility of damage to physical and mental health following pregnancy if the pregnancy is not terminated, not just an existing clinical condition. Third, a pregnancy-related health risk should be assessed by taking into account the definition of health as defined by the World Health Organization to include physical, mental and social well-being.⁴

Traditionally, health care providers have assumed that therapeutic abortion is necessary and also legally permitted only when a pregnant woman's life is in imminent danger. In cases where the threat is considered to be less “dramatic”, they have tended to assume that abortion is not permitted.⁵ However, a broader and more comprehensive interpretation of health could help to identify a greater number of circumstances in which a woman's well-being is endangered due to pregnancy. Accordingly, if any impairment – physical, mental or social – appeared or worsened during the pregnancy that was directly or indirectly related to the pregnancy, a legal abortion under the health indication could be considered. To guide this assessment, the book offers criteria for different risk factors, including vulnerability, precipitating factors and continuing factors.⁶ It calls for an assessment of the woman's particular situation and supporting medical evidence – before forming an opinion as to whether a therapeutic abortion is needed.

This book is both a practical tool for providers and an advocacy tool for women's rights organisations. It has been discussed in various conferences, such as the Population Council's Annual Congress on Safe Abortion and the Regional Meeting of FLASOG in Mendoza, Argentina. It has also been disseminated to health networks and health associations, non-governmental organisations and individual providers throughout the Latin American region.

Acknowledgement

We would like to thank Emily Barcklow for her support in the translation of this article into English. The book is available at <www.andar.org.mx> and <www.despenalizaciondelaborto.org.co>.