Gracie Willis, Associate Editor, Michigan Journal of International Law

In October 2012, Uruguay passed into law a regionally unique system providing for women to have access to abortive services.  In June 2013, the law withstood a call for repeal by referendum.  To repeal the law, a full quarter of the population would have been required to vote.  In the end, not even one-third of that number turned out.  With the law withstanding the challenge and secure from repeal, abortions during the first trimester are currently legally accessible for women in Uruguay.  Uruguay’s law is considered a victory for advocates of reproductive justice and access to reproductive health within the conservative region of Latin America.  In that way, it is useful to situate it in comparison to other Latin American countries to evaluate the extent of the difference and the character of the law itself. The Uruguayan Law Prior to the passage of the abortion bill in October 2012, abortion in all forms was criminalized in Uruguay.[1]  The primary function of Law 18.987, Interrupción Voluntaria Del Embarazo, was to decriminalize first trimester abortions for Uruguayan women.[2]  In addition, the law sets out requirements for the decriminalized procedure along with exceptions to criminalization after the twelfth week of gestation.  For a woman to obtain an abortion, she must first seek medical advice from a physician within the National Integrated Free Health System (“the System”).[3]  The physician will take into consideration her circumstances: economic hardship, social and family issues, and other issues preventing the continuation of her pregnancy.  Following the consultation, the physician will provide a same or next-day consultation with an interdisciplinary team of at least three professionals.[4]  The team will consist of a gynecologist, a mental health specialist and a social worker.  The role of the interdisciplinary team is to provide the woman with information on this new law, make sure she is aware what it means to terminate the pregnancy and inform her of all risks associated with termination.[5]  The team will also inform her about alternatives, such as adoption, and about available social and economic support.[6]  Following the woman’s meeting with the team, she is required to take a five-day “reflection period.”[7]  If the woman decides after five days to terminate her pregnancy, the physician will immediately coordinate it subject to available resources.[8]  During the meeting with the team, everything is to be recorded and added to the woman’s medical record along with her informed consent should she decide to terminate the pregnancy.[9] The law also carves out three exceptions to criminalization of abortion after twelve weeks.  Termination of a pregnancy after twelve weeks is lawful if continuation of the pregnancy would involve serious risk to the health of the woman.[10]  Similarly, the law contains an exception when there is a pathological process in the fetus that will result in verified “malformations” incompatible with life outside the womb.[11]  Lastly, there is an extension of the twelve-week limit in the case of pregnancy resulting from rape, legalizing abortion until fourteen weeks of gestation.[12]  The physician is required by the law to record the history regarding any of these issues. Informed consent is required for all procedures falling under the Article 6 exceptions, as with the standard first-trimester procedures, except when the health of the woman is at risk and the severity of her health prevents her from being able to give informed consent.[13]  When the woman is declared incapable of giving consent, a guardian and court must give consent on her behalf.[14]  Abortion is not legal for women below 18 years of age without the consent of her guardians.  In place of parental consent, the minor may attempt to present medical and circumstantial records produced by the team to a judge, who must grant or deny permission within three days.[15] To increase awareness and education, physicians have the duty to guide and advise their patients on preventing pregnancy and compare different family planning options.[16]  The physician must also ensure that the woman is free from pressure from third parties in her decision to either continue or terminate the pregnancy.[17]  The physician shall not authorize the termination without providing a consultation with the interdisciplinary team, and has no power to refuse the termination on his or her own.[18]  The physician may, however, choose to conscientiously object from the abortion-services system.[19]  To do so, the physician must alert the institution where he or she practices, and the objection must be explicit.  The objection must be to the entire system of abortive services so that the physician is not involved in any abortion counseling at any institution.  Should the physician take part in an abortive procedure, except one for the purpose of preserving the health or life of the mother, the physician’s conscientious objection is considered revoked.[20] The duties ascribed to the National Integrated Health System give insight to the character of the law.  The System is required to promote a lifelong learning program for the interdisciplinary team of professionals on sexual and reproductive health, and provide decision support to women regarding termination of pregnancy.[21]  The System will also promote public awareness of the new law and of different support programs available.  Finally, the System is charged with ensuring that the interdisciplinary team is free from discrimination.[22] Legalization and exceptions in Latin America Compared to other states in Latin America, Uruguay has one of the most liberal laws in existence.[23]  Exceptions fall into the broad categories of health-based for the woman and fetus, and rape-based.  Mexico, Costa Rica, Guatemala, Panama, Argentina, Brazil, Paraguay, Bolivia, Peru, Ecuador and Venezuela criminalize abortion at any gestational age, yet provide an exception to save the woman’s life or prevent permanent harm to her health.  Colombia broadens the exception, permitting abortion to protect a woman’s mental health, as well.  Pregnancy resulting from rape is the second most common exception; Mexico, Panama, Colombia, Brazil, Bolivia and Ecuador all recognize the permissive circumstance.  Ecuador specifically allows termination in the event of a rape of a woman with a mental disability.  Another common exception, fetal impairment, is recognized in Mexico, Belize, Panama and Colombia.  Peru allows for a reduced sentence for abortion in the event of physical and psychological defects in the fetus as well as pregnancy caused by rape.  Similarly, while Honduras has not expressed an exception to save the life or health of the woman, it is often argued that the defense of ‘necessity’ is available in that case. Several Latin American countries have refused to recognize any exceptions to criminalization of abortion: El Salvador, Nicaragua and Chile have eliminated all exceptions so that the criminal defense of ‘necessity’ to save the life of the woman is unlikely.  Although Costa Rica’s law reads that abortions necessary to save the life of the woman are legal, women are often denied abortions; there is legislation pending in the Inter-American Commission on Human Rights pertaining to this issue.[24] Conclusion Uruguay certainly establishes one of the most accessible systems in Latin America.  The exception in the case of pregnancy by rape—extending access to fourteen weeks—is more restrictive than the few countries that permit the exception without respect to gestational age.  The duties of the Uruguayan National Integrated Health System to provide education and support and also to ensure that the interdisciplinary team be educated and unbiased indicate a system grounded in safety and respect for the woman’s decision.  On the other hand, the five-day period of reflection required to obtain abortive services could impede woman’s access to services.  The five days impose a burden on the woman who may have to travel long distances at considerable expense.  The woman may not be able to be away from home for five consecutive days, requiring her to make the trip twice in order to fulfill this requirement, increasing the cost of an abortion to an unmanageable amount.  Additionally, the law is not a guarantee that the procedure be available; instead, it subjects scheduling to available resources.  This raises the concern of what those resources are and how much discretion a physician has to create barriers for the woman to schedule a procedure. The infrastructure that the law establishes—the interdisciplinary team and requirement for physicians to conscientiously object, and the denial of the power to physicians to refuse the service—has all the trappings of a supportive system that is respectful of and empowering to women, especially with adherence to the guideline that physicians should determine if the woman is being influenced by a third party to either continue or terminate her pregnancy.  It remains to be seen whether the mandatory meetings with a physician and the interdisciplinary team will become a hurdle over which many women in need of abortive services simply cannot jump.

[3] Decriminalization of Abortion at Art 3.  While there are private health care facilities in Uruguay, Article 9 states that abortions “shall be considered a medical act without commercial value.”  Nevertheless, Article 11 provides that a physician conscientiously objecting is implicitly objecting within “all public or private institutions that provide professional services.”  This seems to leave open the possibility of abortion in private spheres free of cost.

[5] Id. The law states, “[i]n particular, the interdisciplinary team must become a field of psychological and social support to women, to help overcome causes that can induce the abortion and ensure the availability of information for making a conscious and responsible decision.”