Article updated on April 18, 2012
Brazil’s Supreme Court (STF) decided, on April 11, to accept the Allegation of Violation of a Fundamental Precept (ADPF) No. 54, filed by the National Confederation of Health Workers (CNTS), on therapeutic pregnancy termination for anencephalic fetuses. As a result of the decision, the court determined that criminalizing the abortion of anencephalic fetuses is unconstitutional.
In the legal action, which was filed on June 17, 2004, and prepared by Justice Marco Aurélio, the CNTS requested that the court declare unconstitutional the interpretation of the law that considers the termination of an anencephalic pregnancy performed by a qualified doctor with the woman’s consent to be a crime.
According to the CNTS, “therapeutic termination of pregnancy” is a medical indication for the treatment of the pregnant woman in cases when it has been confirmed that there is no possibility of life outside the womb. This is because anencephaly is an irreversible deformity that prevents the survival of the fetus outside the womb. Although nothing that can be done to secure the survival of the anencephalic fetus, it is possible to improve the medical condition of the mother, even more so because the continued presence of the fetus in the uterus lends the pregnancy a degree of risk, since these conditions cause high intrauterine death rates. In other words, the case contests the interpretation of the Criminal Code that classifies “therapeutic termination of pregnancy” as the “crime of abortion”, since it claims that, in cases of anencephaly, death would not be the direct result of the medical procedure, but instead the result of congenital deformity.
In 2004, Justice Marco Aurélio granted an injunction authorizing therapeutic pregnancy terminations for pregnant women who wanted to undergo this procedure. This decision, however, was overturned three months later in a full session of the court.
A survey conducted in Brazil by IBOPE, at the request of the organization “Catholics for the Right to Choose”, revealed that 71% of respondents consider it a form of torture to force a mother to carry to term a fetus without a brain. A recent survey by the Brazilian Institute of Bioethics, Human Rights and Gender (ANIS) with gynecologists and obstetricians showed that, over the past 20 years, among those interviewed, 85% of patients whose fetuses had been diagnosed with anencephaly had preferred to terminate the pregnancy (Source: ANIS and Catholics for the Right to Choose).
According to a 2008 report by the World Health Organization (WHO), therapeutic pregnancy termination in cases in which the condition of the fetus is incompatible with life is guaranteed in 46% of the 193 United Nations member states. Among the countries considered developed, 85% permit the termination of the pregnancy.
The UN Report on Criminalization of Reproductive and Sexual Health, published in 2011, expressly recommends member countries not only to decriminalize abortion performed with the consent of the woman, but also to formulate public policies to guarantee accessibility and services that prevent post-abortion complications in the public health system.
Position of Conectas
In 2008, a public hearing was held in the STF on the case. On the occasion, Conectas and the Center for Human Rights were represented by the sociologist Eleonora Menecucci de Oliveira. The two organizations, which also appeared as amicus curiae at the hearing, argued that carrying an anencephalic fetus for nine months to term seriously affects a woman’s psychological and physical health, not to mention her dignity and intimacy. According to the two organizations, “the forced continuation of an anencephalic pregnancy, besides exposing the mother to a process of torture, suffering and fear, since she has to wait for the birth and live with the diagnosis of an unviable fetus, it also places her at risk of death”.
About the ADPF
The Allegation of Violation of a Fundamental Precept (ADPF) is a legal tool used in Brazil to avoid or repair harm to fundamental rights as a result of action by government, or when there is a violation of a fundamental constitutional rule. If no other legal avenue is available, the case should be filed exclusively with the STF, and the decision of the court shall be adopted by the judiciary across Brazil.