Legal abortion, a term used by medicine, is the pregnancy termination procedure authorized by Brazilian legislation and which must be offered free of charge by the Unified Health System (SUS).
experts heard by g1 SC claim that, according to the law, the procedure does not require court authorization and occurs only in cases where the pregnancy is due to rape, when the life of the pregnant woman is at risk or when there is a diagnosis of fetal anencephaly.
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However, women face difficulties in having an abortion in hospitals. The most recent case is an 11-year-old girl who, pregnant after being a victim of rape, was denied the procedure in a hospital in Florianópolis. She was 22 weeks and two days pregnant and, in that unit, the procedure is carried out when when the pregnancy is in up to 20 weeks.
According to Anne Teive Auras, a lawyer and public defender from Santa Catarina, the hypotheses of cases in which there is sexual violence or when there is a risk to the life of the pregnant woman are in the Brazilian legislation since 1940.
In the third case, when there is a diagnosis of fetal anencephaly, abortion has been allowed since 2012, according to a decision of the Federal Supreme Court (STF).
“In those circumstances, no need for court authorization. It is what is meant. Speaking specifically of sexual violence, as is the case with the girl, if she goes to a health service and reports that she was a victim of sexual violence, that she was raped, she has the right to be treated”, she says.
Nonetheless, the technical standard of the Ministry of Health that regulates the practice in the country says that pregnancy interruption is possible up to 22 weeks of pregnancy.
Lawyer Rodrigo Fernandes highlights that the protocol is a recommendation and must not override the law.
“It is a set of guidelines and important information for the best quality of care for pregnant women, including victims of rape. However, the Penal Code does not establish a gestational period for carrying out voluntary abortion”, he highlights.
Fernandes recalls that, when claiming to be a rape victim, “it is the doctor’s duty, observing the conditions for preserving the health of the pregnant person, to perform an abortion”, he says. When the pregnant person is a minor, however, consent from a legal guardian is required.
The lawyer explains that many women who have suffered sexual violence only find out about the pregnancy when the pregnancy is in an advanced stage, beyond the 22 weeks of gestation provided for by the regulation.
“We know that, after rape, many women do not even seek help. They prefer to remain silent, because they are ashamed, feel guilty, afraid. They simply want to erase that from their heads. They want to take a shower and erase that page”, adds the lawyer .
Pregnancy resulting from rape encompasses all cases of sexual violence, that is, any situation in which a sexual act was not consented, even if no aggression occurs. This includes, for example, sexual intercourse in which the partner removes the condom without the woman’s consent.
“Because of this protocol of the Ministry of Health, which says that abortion would be possible up to 22 weeks in case of rape, there is a series of understandings that later there would be some kind of extrauterine infeasibility. But this is controversial, because there is no such limit in the law.”informs.
For cases of pregnancy resulting from sexual violence, it is not necessary to present a police report or any exam that attests to the crime of rape, such as a report from the Legal Medical Institute (IML). For service, just report the victim to the medical team.
All necessary documents are completed at the hospital itself. In them, the woman officially opts for abortion and takes responsibility for the facts narrated to the medical team.
For high-risk pregnancies and anencephaly, a medical report is required to prove the situation. In addition, an ultrasound diagnosis of anencephaly may also be required for abortion caused by fetal malformation.
Who to turn to when the right is denied?
Defender Flávia Nascimento guides women who were denied the right to seek public defenders, whether state or federal.
According to her, in general, it is not necessary to go to court to ensure that a woman who is a victim of rape is attended to in order to have a legal abortion. “Most of the time, we officiate the health unit, informing about the law, that there is no provision in the law requiring Occurrence Report”, she comments.
g1 special on abortion
O g1 published articles that better explain what legal abortion is, providing details on the procedure for terminating a pregnancy authorized by Brazilian legislation. It must be offered free of charge by the Unified Health System (SUS) and is allowed in cases where the pregnancy is the result of rape, when the life of the pregnant woman is at risk or when there is a diagnosis of fetal anencephaly.
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