The "double discourse" on sexual and reproductive rights in Latin America: The chasm Between public policy and private actions

Health and Human Rights

Volumn 4, Issue 2, 2000, Pages 111-143

  Shepard, Bonnie ^a  

^a HARVARD UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

HUMAN RIGHTS;

ARTICLE; FEMALE; HUMAN; HUMAN RIGHTS; LEGAL ASPECT; PATIENT ADVOCACY; POLICY; PREGNANCY; RELIGION; REPRODUCTION; SEXUALITY; SOCIAL CONTROL; SOUTH AND CENTRAL AMERICA; THERAPEUTIC ABORTION;

ABORTION, LEGAL; CHRISTIANITY; FEMALE; HUMAN RIGHTS; HUMANS; LATIN AMERICA; PATIENT ADVOCACY; PREGNANCY; PUBLIC POLICY; REPRODUCTION; SEXUALITY; SOCIAL CONTROL POLICIES;

CHILE; COLOMBIA;

EID: 0033513535     PISSN: 10790969     EISSN: None     Source Type: Journal    
DOI: 10.2307/4065198     Document Type: Article

References (72)

1. Programme of Action of the International Conference on Population and Development, Report of the International Conference on Population and Development, 5-13 September 1994, UN Doc. A/CONF.171/13, para. 7.3. The reservations expressed by Argentina in the recent "Cairo+5" meetings coordinated by UNFPA represent an exception to the general consensus in Latin America.
2. The first quotation is from the ICPD Programme of Action (see note 1), para. 7.3.
3. The second is draft "bracketed" language for the Platform for Action of the Fourth World Conference on Women, September 1995, UN Doc. A/CONF.177/20 (October 17, 1995), note 22, para. 97.
4. Catholics for Free Choice, Catholics and Reproduction: A World View (Washington, DC: CFFC, 1994).
5. L. Haas, "The Catholic Church in Chile," in C. Smith and J. Prokopy (eds), Latin American Religion in Motion (New York and London: Routledge, 1999);
6. M. Htun, "Democracy, Dictatorship and Gender Rights: Divorce, Abortion and Women's Rights in Argentina, Brazil and Chile," unpublished Ph.D. dissertation, Harvard University, 1999.
7. See also Htun's chapter on divorce in Chile and M. Blofield, The Politics of Abortion in Chilean and Argentina: Public Opinion, Social Actors and Discourse, and Political Agendas, presented at Latin American Studies Association conference, Chicago, September 1998.
8. R. Petchesky, and K. Judd (eds) for the International Reproductive Rights Action Group (IRRRAG), Negotiating Reproductive Rights (New York and London: Zed Books, 1998), p. 17.
9. The author worked in these countries from 1992 to 1998 as the Program Officer in charge of the Ford Foundation's Sexual and Reproductive Health Program, based in the Andean Region and Southern Cone office in Santiago, Chile.
10. I am indebted to Mari Luz Silva, Director in the 5th Region of the Ministry of Education in Chile and one of the designers of the government's sex education program, for her thoughts on Catholic cultures and the double discourse.
11. The Philippines and the Vatican are other notable examples of states heavily influenced by Catholicism. It would be interesting to analyze whether the double discourse system operates in other countries with a hegemonic religion as well.
12. From the author's conversations with members of Católicos por el Derecho a Decidir (Latin American affiliates of Catholics for Free Choice) in six Latin American countries.
13. Koinonia [organization of theologians], Problemática Religiosa de la Mujer que Aborta (Bogota: Universidad Externado de Colombia, 1996).
14. Also presented at a World Health Organization meeting of Latin American researchers on abortion at the Universidad Externado de Colombia, Bogota, Colombia, November 1994.
15. For an excellent in-depth analysis of the issue of divorce in Chile, see M. Htun (note 4).
16. L. Haas (see note 4) describes how Church officials "collect the bill" [cobran la cuenta] in their lobbying of representatives of the Left who received protection from the Church (p. 60).
17. John Paul II's conservative appointments of bishops started during the military dictatorship, strengthening the faction of the Church that was allied with the military government even as progressive sectors of the Church led the efforts to protect human rights. See L. Haas (note 4) and M. Htun (note 4) for a full discussion.
18. The ownership of Chilean newspapers and television stations is concentrated in two large conglomerates and the Catholic Church, all of which tend to have socially conservative editorial policies. See M. Blofield (note 4), p. 22. Uca Silva of Sur Profesionales, Santiago, also analyzes the effect on public debates of this concentration in an unpublished 1996 report to the Ford Foundation's Andean and Southern Cone office.
19. Chile, Malta, and Andorra are the only countries with no divorce law. See M. Htun (note 4). The Universal Declaration of Human Rights, G.A. Res. 217A (III), UN GAOR, Res. 71, UN Doc. A/810 (1948), art. 16.1 states that "Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution," thus implicitly recognizing dissolution as part of the right to marriage.
20. Articles 23.2 and 23.4 of the International Covenant on Civil and Political Rights, G. A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, at 49, UN Doc. A/6316 (1966) contain similar language. Applying the logic of implicit recognition, the most recent report of the UN Committee on Human Rights on Chile (CCPR/C/79/Add.104, para. 17) said that the lack of a divorce law might constitute a violation of Article 23. Thanks to Luisa Cabal of the Center for Reproductive Law and Policy and Gaby Oré Aguilar of the Ford Foundation for thoughts and references.
21. Grupo Iniciativa Mujeres, "Encuesta Nacional: Opinión y Actitudes de las Mujeres Chilenas sobre la Condición de Género," January 1999, carried out by Quanta Sociología Aplicada, using a nationally representative urban sample of 1,800 women in 22 cities.
22. M. Aylwin and I. Walker, The Chilean Family: Aspirations, Realities, and Challenges (1996), p. 121, quoted in M. Htun (see note 4).
23. This provision has its basis in canon law, in which it was assumed priests would know the situation of couples residing in the same neighborhood well enough to prevent them from being married if there were important impediments, such as too close a relation or an existing spouse. The opinion in the Supreme Court case of Sabioncello con Haussman (March 28, 1932) reads: "It is legitimate to prove the lack of competence of the Official of the Civil Registry by means of the witnesses' testimony [that neither of the spouses lived within the jurisdiction of that official] during the annulment proceedings." Quoted in H. Corral, "Iniciativas Legales sobre Familia y Divorcio," in Controversia sobre Familia y Divorcio (Santiago: Ediciones Universidad Católica de Chile, 1997), p. 172.
24. This high rate is explained by both nonformalized unions and adolescent pregnancies. A new law giving children born inside and outside of marriage equal rights and benefits took effect in 1999; see C. Gutierrez, "46% de niños chilenos nacen fuera del matrimonio," 27 October 1999, La Tercera [newspaper].
25. M. Htun (see note 4).
26. Meeting with Instituto de la Mujer in Chile in 1996, reporting on research on pensión alimenticia.
27. As established in Article 23.2.4 of the ICCPR (see note 15).
28. There is definitely less stigma attached to advocating for a divorce law, however, than for a law on "therapeutic" abortion, which in current debates in Chile would include legality of abortion in cases of rape, incest, and severe fetal problems.
29. L. Haas (see note 4), p. 60, and M. Htun (see note 4). Htun's chapter on divorce in Chile provides an in-depth analysis of the "reformist coalitions" promoting divorce in the 1990s and of the dynamics within the corps of Christian Democrat legislators.
30. See C. Kraus, "Victoria Would Not Be Amazed by Chile Today," 24 October 1999, New York Times. The new law abolishing legitimacy and a resolution abolishing the law against sodomy were both passed recently. L. Haas (see note 4) also agrees with this assessment, quoting several rightist deputies to document her perception that members of the political right are defecting from their formerly uniform support for the Church's lobbying efforts.
31. María Antonieta Saa, deputy to the Congress, quoted in an unpublished 1997 study by Peruvian sociologist Maruja Barrig, "De Cal y Arena: ONGs y Movimiento de Mujeres en Chile," p. 17.
32. M. Barrig (see note 26), p. 16.
33. Many personal communications from Chilean colleagues between 1992 and 1999.
34. The main sources for this section on Colombia and Chile are the NGO shadow reports for the 20th session of the CEDAW Committee for both countries. Both are available in English and Spanish. For Colombia, see Center for Reproductive Law and Policy (CRLP) and Corporación Casa de la Mujer, Derechos Reproductivos de la Mujer en Colombia: Un Reporte Sombra (New York and Bogota: CRLP and Corporación Casa de la Mujer, 1998).
35. The Chilean NGO shadow report, The Rights of Women in Chile (New York and Santiago, 1999) was co-written by CRLP, the Comité Latinoamericano y del Caribe para la Defensa de los Derechos de la Mujer (CLADEM), the Foro Abierto de Salud y Derechos Sexuales y Reproductivos, and the Corporación de la Mujer, La Morada.
36. ICPD Programme of Action (see note 1), para. 7.3.
37. Although hospital data on abortion are widely acknowledged to be under-reported, abortion still figures in official data as the first cause of maternal mortality in seven Latin American Countries, including Chile. See FLACSO (Chile) and Instituto de la Mujer (Spain), Mujeres Latinoamericanas en Cifras: Tomo Comparativo (Santiago, Chile: FLACSO, 1995), p. 131.
38. The list of countries and restrictions is available from the Center for Reproductive Law and Policy at http://www.crlp.org/icpdabortion1.html. In this list, Colombia is counted as a country allowing abortion in cases of threat to the woman's life or physical health, but in fact the law is ambiguous. No. 5, Article 29 in the Colombian Penal Code can be interpreted as depenalizing interruptions of pregnancy in "estado de necesidad" (state of necessity) to protect the life or health of the mother. Protection in these cases is open to interpretation by individual judges and thus is not guaranteed. For a full discussion of the legal situation of abortion in Colombia, see D. Arcila, "El Aborto Voluntario en Colombia: Urgencia de un Abordaje Jurídico Integral," in Perspectivas en Salud y Derechos Sexuales y Reproductivos (Medellín: CERFAMI, 1999), pp. 14-22.
39. Personal communication from Dr. José Barzelatto, Center for Health and Social Policy.
40. Alan Guttmacher Institute, An Overview of Clandestine Abortion in Latin America (New York: Alan Guttmacher Institute, 1996).
41. "Aborto: Informe Especial," Cambio 16, February 1997, 20-23, quoted in D. Arcila (see note 32).
42. L. Zamudio, presentations to the Meeting of Researchers on Induced Abortion in Latin America and the Caribbean at the Universidad Externado, Bogotá, November 1994,
43. and the Latin American and Caribbean Parliamentarians' Meeting on Abortion, Bogota, October 1998.
44. D. Arcila (see note 32), p. 8.
45. D&C stands for dilation and curettage - that is, the scraping of all remains of the fetus from the uterus in cases of incomplete abortion. The account of forced medication comes from a conversation with the Medellín, Colombia chapter of the National Network for Sexual and Reproductive Rights in the mid-1990s. In the author's experience, the accounts of hostile remarks are almost universal when talking with researchers and activists who work with the health sector and community groups on the issue of abortion.
46. January 29, 1997 survey by the Centro Nacional de Consultoría, quoted in D. Arcila (see note 32), p. 22.
47. See Grupo Iniciativa Mujeres (note 16).
48. I was first alerted to this issue in a conversation with anthropologist Monica Weisner, the researcher for the Alan Guttmacher study. Most informants in the Chilean women's movement believe that safe clandestine abortion services became scarcer after 1994 than they were previously, and now the clandestine referral networks often have no referrals to offer.
49. In Chile, the author's personal experience shows that a course on Catholic religion is mandatory in all schools, public and private, and can only be taught by instructors certified by a Catholic institute. Parents of children of other faiths must request to be excused from the class and cannot organize an alternative class on, say, world religions.
50. Examples of these ads can also be found in the article "Aborto: ¿Hora de legalizar?" Semana, 9-16 February 1993, 41.
51. "Aborto: ¿Hora de legalizar?" (see note 43).
52. The glaring exception to this trend has been the amnesty for the human rights abuses committed during the dictatorship. This amnesty is now, however, subject to serious legal challenges both within Chile and from abroad-most notably in England, where legal proceedings to extradite General Pinochet to Spain have set new precedents in the enforcement of international human rights standards.
53. Lidia Casas, Women Behind Bars (New York: Center for Reproductive Law and Policy and Santiago: Open Forum on Reproductive Health and Rights, 1998). A Spanish language edition is also available.
54. Personal communication from José Barzelatto.
55. 98% of all court cases do not result in a sentence. In cases of homicide, 95% of the cases are never solved. Source: Mauricio Rubio, Crimen sin sumario. Análisis Geoeconómico de la Justicia Colombiana (Bogotá: Centro de Estudios para el Desarrollo de la Universidad de los Andes (CEDE), 1996). The Consejo Superior de Judicatura disputes this figure and estimates impunity at 60%, which is still extremely high. Personal communication from Carmen Posada, lawyer and Executive Director of CERFAMI (Center of Integrated Resources for Families) in Medellín.
56. In 1991, there were 137 court cases and 29 people imprisoned for abortion in Colombia; see "Aborto: ¿Hora de legalizar?" (note 43). In comparison, the Chilean study (see note 46) shows that 57% of the women who had abortions and whose cases were reviewed spent time in prison, and 36% were held for more than two weeks. The study also reports that 22 women in the small provincial city of Puerto Montt were in jail for abortion at the time of a visit by the Open Forum, a reproductive health NGO network (p. 21). Given that Colombia has 2.6 times the population of Chile, the level of repression in Chile is clearly much higher. Given the high levels of impunity for other crimes in Colombia, however, it is telling that so many women end up in jail for abortion.
57. Many personal communications from Colombian colleagues over the years, most recently from Carmen Posada (see note 48).
58. Author's personal experience through meetings with reproductive and sexual rights groups in Colombia, 1992-1998.
59. Preliminary finding from the author's study of reproductive and sexu-al rights networks.
60. This campaign took many forms in different cities, since the network is decentralized. The network in Medellín achieved much national press coverage and an outpouring of support from diverse sources for their campaign on the case of Alba Lucia, a poor peasant woman and the victim of a rape that was never proved in court, who accidentally killed her newborn while giving birth in a latrine. Unfortunately, the case suffered a defeat in the higher court, partially because she had never had access to a proper lawyer until the later stages of her case, and also because it was legally a homicide rather than an abortion or rape case. (Personal communications from the network members and Carmen Posada.)
61. Current proposals would allow abortion to save the woman's life and health or in cases of severe fetal defects or rape and incest, under the misnomer of "therapeutic abortion."
62. She regained her seat in the next elections in 1997, however. Mala Htun (personal communication) notes that other sponsors of the bill were not defeated. It would be interesting to analyze what circumstances made her more vulnerable.
63. M. Barrig (see note 26).
64. This was known as the Larrain bill. Personal communication from Josefina Hurtado of the Forum, October 1999.
65. The best-known example from Brazil is that of Sister Yvone Gerbara, who gave an interview to the national magazine Veja in which she advocated depenalization of abortion. In Colombia, Alberto Munera, a prominent Jesuit theologian, was deprived of his teaching post in 1995 after he defended ICPD principles on a national television program.
66. This was Dr. Horacio Croxatto from the Instituto Chileno de Medicina Reproductiva (ICMER). Personal communications from Dr. José Barzelatto and several other Chilean colleagues.
67. It would be important to conduct a follow-up study to the 1994 Guttmacher study to verify whether in fact there are fewer providers than before and whether, as a consequence, abortion-related morbidity and mortality has risen.
68. I am indebted to Dr. José Barzelatto for consistently pointing out the importance of this agreement. See "World Religions and the 1994 UN International Conference on Population and Development: A Report on an International and Interfaith Consultation" (Chicago: Park Ridge Center for the Study of Health, Faith, and Ethics, 1994). For a full discussion of increased religious diversity in Latin America, see C. Smith and J. Prokopy (note 4).
69. According to the 1992 census, about 13.4% of the Chilean population are Evangelical/Protestant, while 76.7% are Catholic. Atheists make up 5.8% of the population, and "other religions" (probably mainly Jewish and Muslim) make up 4.24%. See F. Kamsteeg, "Pentecostalistm and Political Awakening in Pinochet's Chile and Beyond," in C. Smith and J. Prokopy (note 4).
70. More recent studies show an increase in the percentage of Evangelicals to 16% and a decrease in the percentage of Catholics to 72%. See Diario El Segundo, 17 December 1998, quoted in a personal communication from Josefina Hurtado.
71. Personal communication from Luisa Cabal, staff attorney, Center for Reproductive Law and Policy.
72. Calandria, a communications NGO in Peru, promoted this strategy, which has also been adopted by the Grupo Impulsora in Peru and the Grupo Iniciativa in Chile, two post-Beijing NGO networks.