On Tuesday, a judge in the province of Mendoza declared that an abortion to be performed on a twelve-year-old girl, who’d been raped by her stepfather, would be illegal.
The child was taken by her mother to hospital in late August, after discovering she was pregnant. There, the mothers told medical staff that her daughter had been raped, was pregnant, and wanted an abortion. With strict exceptions (which are nonetheless open to interpretation) abortion is illegal in Argentina. So the doctors sent the matter to a judge to consider.
Article 86 of Argentina’s penal code says that abortion is illegal and cannot be performed unless (a) it’s necessary to avoid placing the mother’s life or health in danger or (b) the pregnancy is the result of a rape or an “assault on the purity” of a female who is mentally retarded or an “idiot.” This translation is direct and the statute’s antiquated language is evident. The first exception is clearly open to interpretation by doctors (for example – does the mother’s health include her mental health?), while the second is open to plenty of confusion. Does it say that abortion can be legally performed on any woman whose pregnancy is the result of rape, as well as on any woman whose mental condition places in doubt her capacity to consent to sex and/or raise a child? Or does clause B simply offer two ways of describing a rape, creating an exception only for raped/seduced women of diminished mental capacity?
In any case, it’s for the doctor to decide, and if the doctor sees fit, the abortion under these exceptions can be performed without referring the case to a judge.
Well, the judge in Mendoza decided that while he decided what to do, the child should be held at the hospital, and denied access to her mother, who he thought would unduly influence her in favour of the abortion. Meanwhile, the child received an unexpected visit from anti-abortion activists who showed her gorey pictures of aborted foetuses, begged her to go through with the pregnancy, and even offered the family (the girl and her family are very poor) money if the girl would agree to bear the child.
By the time the judge came to deliver his decision, the girl declared she no longer wanted an abortion.
The case has opened up debate in this country, where teenage pregnancies are common and sex education patchy. Some 15 percent of births registered in 2005 were to mothers aged between 15 and 19, and more than 3000 babies are born each year to mothers under the age of 14. A study by the Argentine Society for Paediatric and Adolescent Gynaecology showed 34 percent of female teenage respondents didn’t use any contraceptive method the first time they had sex, while 7 percent opted for the dicey withdrawal method.
Virtually banned by the dictatorship and still opposed by the church (most Argentines are Catholic), sex education has been slow to arrive in Argentina. Only in 2006 did congress pass a law enforcing all schools to follow an established sex education curriculum – but the curriculum has not yet been established and the church is still claiming the right to teach about sex as it sees fit in Catholic schools.
But while abortion is banned, it’s readily available. Those who can afford an abortion can easily access a safe, albeit illegal one at a private clinic, while the poor are forced to opt for dangerous, unsanitary procedures. Around 500,000 abortions are performed in Argentina each year, while around 750,000 babies are born each year – that’s 1.5 babies for every abortion. Meanwhile, each day, 188 women are treated at public hospitals for complications arising from abortion procedures. It’s estimated that 20 Argentine women die for every 100,000 abortions performed (or roughly 100 women per year). To put these figures in context, Argentina has a total population of around 38 million – which, at a guess, includes under 9 million fertile women.
Last year, members of congress forming part of the “National Campaign for the Right to a Legal, Safe, and Free Abortion” presented a bill that would decriminalise the procedure (making it unpunishable in private clinics) as well as legalise it (making it permissible – and free- in public hospitals). The president, Cristina Fernandez de Kirchner, has said “I’ve always been against abortion,” but added “I don’t think that those who lobby for the decriminalisation of abortion are in favour of abortion itself – that would be a simplification.”