Trends in Reproductive Rights Jurisprudence in Latin America
All Latin American countries have ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women. Yet despite the incorporation of international human rights standards at the highest levels of the legal system, the judiciary continues not to apply them.
Legal protection for reproductive rights has been circumvented by judges that privilege procedure over substance or incorporate moralistic criteria in their interpretation of laws.
Women’s bodies continue to be territory controlled by the state through the courts’ perpetuation of social norms that either disregard women’s rights or extend paternalistic protection to them.
Enormous progress has occurred in the area of women’s rights in Latin America in the last few years. These rights, established by international and regional treaties and reinforced by international conference documents, have been codified through legal and constitutional reforms in most Latin American countries. A study of five countries—Argentina, Chile, Colombia, Mexico and Peru—revealed, however, that there is a tremendous gap between the laws and their application. The judicial tendency to make decisions and interpret the law through moral and religious filters maintains the discrimination against, and inequality of, women.
Judicial Trends and Decisions
1. The Right to Health, Reproductive Health and Family Planning
States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those relating to family planning.
CEDAW, Art. 12.1.
Women’s rights to health and reproductive health services and information continues to be restricted by courts that take a moralistic approach to these issues. In Chile, for example, television commercials that contained information about the prevention of HIV/AIDS were ordered off the air because the courts felt the campaigns “encourage[d] promiscuity with the sole motive of promoting the use of condoms [and] with respect to the use of condoms there is no real certainty as to their efficacy [in preventing HIV transmission].”
In Colombia, the courts have required that medical insurance covers Viagra due to its direct connection with the right to sexual health. However, a court did not take the same approach to fertility treatments for women, ruling that they were not essential to the right to health.
2. Right to Security and to be Free from Violence
[V]iolence against women shall be understood as any act or conduct, based on gender, which causes death or physical, sexual or psychological harm or suffering to women, whether in the public or the private sphere.
Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, Art. 1.
The countries of the region have entered into the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women and a majority have instituted laws that indicate progress in this area. However, the state, and in particular the courts, continue to be reluctant to deal with violence that takes place within the home. This reluctance extends to the point of indifference to abuse and rape that take place in the private sphere.
In Chile, judges have ruled that they cannot intervene in domestic violence cases unless there is evidence of physical violence. In one case, the court found that violence within the home was not a crime and did not fall within the courts’ jurisdiction as it belonged to the realm of the reciprocal rights and obligations of spouses.
The courts’ conservative view of sexuality and their extreme formalism are also evident in how they deal with sexual violence. In Peru, for example, a victim’s sexual past is admissible evidence and is used to discredit her allegations of abuse. In a case involving a 14 year-old girl, the court found it relevant that “the medical certificate . . . appears to show that the victim had previously engaged in anal sex, which doctrinally speaking, evidences reprehensible behavior.”
3. The Right to Equality and to be Free from Discrimination
[Discrimination against women is] any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil and any other field.
CEDAW, Art. 1.
Latin American judiciaries continue to endorse discrimination on the basis of sex and sexual orientation through their application of religious and stereotypical social norms, rather than legal standards, in their interpretation of laws. In Argentina, for example, the court denied legal status to the organization Comunidad Homosexual Argentina on the basis that “any defense of homosexuality offends public morals and the common good, whose guardianship the Constitution delegates to the powers of the State and this Court, to guarantee the dignity of human beings created in the image of God, source of all reason and justice.”
In Chile, the courts upheld higher contributions for health insurance for women, ruling that it was not a discriminatory practice. They agreed with the insurance companies that the higher costs the plans bear, due to women’s statistical risk of maternity, justifies women paying more than men.
4. The Right to Marriage and to Form a Family
States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations.
CEDAW, Art. 16.
The courts treat divorce differently in each of the countries studied. In Chile, where divorce is not legal, the courts use interpretations of “annulment” to legalize de facto separations. In Peru, divorce is legal but the courts do not easily grant it. In Argentina, where divorce is legal, the courts have defended divorce against conservative groups that have asserted that it should be unconstitutional. The court stated “the distinction between civil and common law in regards to marriage is based on the protection of freedom of conscience, individual liberty and the values that form the fundamental principles of our constitutional democracy.”
Mexican jurisprudence favors legal matrimony over common law marriage as “the legal and moral form of marriage.” It also perpetuates gender stereotypes through its definition of women’s roles: “it is a well known fact that, in Mexican families, it is the woman who takes care of the house and the children, while it is the man who works outside the home in order to support it.” The court has also said that a man’s honor depends on the honor of his wife, which consists of “the good reputation that she acquires through her virtue and integrity, as well as the honesty and modesty of the woman, which is the foundation of the family.”
5. Reproductive Autonomy: The Right to Decide the Number and Spacing of Children
[Women have the right] to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights.
CEDAW, Art. 16, (l)(e).
The right to reproductive autonomy is systematically violated in all of the countries studied. Women’s bodies continue to be territory controlled by the state and third parties. In general, the decision to have children is protected. However, the courts assume the role of protector of women as mothers rather than as women with human rights.
For women that decide not to have children the situation is grave, due to the criminalization of abortion and the fact that emergency contraception is not generally an approved and accessible method of contraception.
In Chile, women’s reproductive autonomy is not protected, regardless of their decision. On one hand, safe abortion and emergency contraception are not widely available. On the other, women are faced with discrimination and the burden of bearing the social and economic costs of pregnancy, such as the expulsion of pregnant adolescents from school and greater health insurance costs.
6. The Right to Privacy
[The protection of privacy includes] the right to physical and moral integrity of the person and guarantees a sphere which no one can invade, a zone that belongs absolutely to each individual.
Inter-American Commission on Human Rights, X and Y vs. Argentina.
In the five countries studied, the courts have not applied the right to privacy to protect reproductive autonomy, although in Colombia they have used it to protect sexual autonomy. The Constitutional Court affirmed that the Colombian Constitution protects homosexuals from discrimination based on sexual orientation because it protects individuals’ right to self-determination.