Brazil deems abortion of anencephalic fetuses legal

Written by Alexandre F. Shimono, News Team | 27 April 2012

Women celebrate when the results were announced.
“Crime is having no rights!” reads the banner. (Picture: AgBR/ CFêmea)

Anencephaly, according to Wikipedia, is a cephalic disorder that results from a neural tube defect that occurs when the cephalic (head) end of the neural tube fails to close, usually between the 23rd and 26th day of pregnancy, resulting in the absence of a major portion of the brain, skull, and scalp.

On 12 April Brazil took a true secular action by decriminalizing the abortion of anencephalic fetuses and assuring the rights of pregnant women in such cases. With eight votes for and two against, the result of the judgment may not have been as significant as the signaled Brazilian position regarding religion and State separation: minister Marco Aurélio Mello of the Supreme Court of Brazil (“Superior Tribunal Federal”), the highest judicial court, rapporteur of this process and first to vote pro-decriminalization, included a whole section in his speech to reinforce the fact that the constitution is laic, and no religious belief should interfere in the law.

Some interesting parts are transcripted below[1] (free translation):

“Gods and Caesars have separated places. The State is not religious, nor is atheist. The State is simply neutral.”

“Such theme affects crucifixes and other religious symbols on public buildings. This discussion was brought into attention again due to the recent decision by the Superior Court of Magistrature from Rio Grande do Sul in the sense of the removal of religious symbols from state Justice buildings. Contrary to the imperial times, today, the Federative Republic of Brazil is not a religious State tolerant to minority religions and atheists, but a secular State tolerant to all religions, what constrains it to display the message that it approves or disapproves any of them.”

“There is more. It causes perplexion the phrase ‘God be Praised’ on Brazilian paper money... At first, one might imagine this phrase was a remnant of portuguese colonization, or from imperial period habits. However, it actually was recommended by the National Monetary Council oriented by the president... So it seems that the separation between State and Church was omitted and something contrary to the Constitutional text was implemented. Evidently, the fact is against the neutral posture that State should adopt regarding religious matters. Although it does mean allusion to one specific religion, ‘God be Praised’ displays the message that the State supports at least a range of religions - those who believe in the existence of God, actually, one god only and venerate him (...).”

“If on one hand the Constitution, by establishing secularism, avoids interference in religious matters, be as arbiter, be as censor, be as defender, on the other hand, the guarantee of a secular State forbids religious dogmas to determine the content of state acts. Moral religious conceptions supported by majority or minority, cannot guide State decisions, remaining concealed in the private sphere. Religious and spiritual belief - or its absence, atheism - serves exclusively to dictate conduct and private life of the individual who has it. Religious passions should be put aside in State management. Faith and its concurrent moral orientations must not be imposed to anyone by no one.(...)”

Minister Marco Aurelio: rapporteur and first Demonstrators against abortion at the front of to vote pro decriminalization regarding the Supreme Court building. abortion of anencephalic fetuses. (Picture by: Gustavo Miranda / Ag. O Globo)

In 2004 a injunction signed by minister Marco Aurélio allowed abortion free of formal legal request in cases of anencephalic fetuses, but it was revoked three months later, forcing women in such cases to request a proxy signed by a judge in order to receive public medical assistance in the abortion procedure [2]. This measure had most impact on the lower social classes since they have neither the money to afford clandestine private clinics - which execute between 730,000 and 1.25 million abortions per year, according to an estimate of the Brazilian Ministry of Health [3] - nor education to seek legal advice, what led most of such women to endure the nine months of pregnancy to give birth to a child who would die hours, if not minutes, later.

Brazil is the country in the world with the fourth-highest number of anencephalic births, according to World Health Organization (data from 1993 to 1998) [2], numbers that show the urgency of this matter. Until 12 April, abortion was only allowed in cases where the health of mother was in danger or rape. While this is a significant step for Brazil, restrictions on abortion remain: punishment for an illegal abortion is 1 - 3 years in detention for the pregnant woman and 3 - 10 years for the person who did the procedure[3].
It should be noted that abortion is optional in case of anencephaly, not forced by State: should the mother choose to have the baby for any reason (including personal belief), she may to do so and will have full support of the State.

[1] - Transcription of Minister Marco Aurelio speech (Portuguese). [2] - G1 (Portuguese), Brazilian online newspaper, accessed on 15 April 2012. [3] - Wikipedia (Portuguese), accessed on 15 April 2012.