Abortion Law in Transnational Perspective: Cases and Controversies

12. Bringing Abortion into the Brazilian Public Debate: Legal Strategies for Anencephalic Pregnancy

C h a p t e r 1 2 Bringing Abortion into the Brazilian Public Debate: Legal Strategies for Anencephalic Pregnancy Luís Roberto Barroso In October 2003, Gabriela de Oliveira Cordeiro, a poor nineteen-year-old living in the town of Teresópolis, in the outskirts of Rio de Janeiro, was four months into her second pregnancy when she learned that she was carrying an anencephalic fetus. She wanted to terminate the pregnancy. Over the next several months a grim and painful legal battle ensued to obtain a court order to carry out the procedure. Her request was first denied by a judge then granted by a state court, only to be revoked before it could go into effect, and then be granted once again. An organized Catholic anti-abortion group, galvanized to stop the medical procedure from taking place, fought against its authorization all the way to a higher federal court. The case eventually reached the Brazilian Supreme Court. Five days before the Justices were set to hear her case, Gabriela went into labor and delivered a full-term anencephalic child, Maria Vida, who was pronounced dead seven minutes after birth. The Court dismissed the case. This is Gabriela’s story. The case gained attention throughout the entire country and was featured on several media outlets. It gave a face and a name to so many other similar stories of women who, pregnant with anencephalic fetuses, were unsuccessfully knocking on every door of the judicial system to get access to a therapeutic premature delivery. The case also made clear to human Bringing Abortion into the Brazilian Debate 259 rights advocacy groups linked to the Gabriela case that they needed to devise a litigation strategy that could elicit from the Supreme Court a broader decision that could affect the entire country rather than one restricted to a specific case. Less than four months after Maria Vida’s birth—and death—a Claim of Noncompliance with a Fundamental Precept (ADPF 54, ADPF being its Portuguese acronym) was filed before the Supreme Court. In Brazil , provided certain conditions are met, some institutional actors can bring a direct constitutional lawsuit before the Supreme Court, to discuss in abstract a certain constitutional matter. The Claim of Noncompliance asserted the right to terminate pregnancies involving anencephalic fetuses; a month later, on July 1, 2004, a request for immediate injunction was granted by the Justice presiding over the case. Suddenly, women carrying anencephalic fetuses all over the country could just go to a public hospital and ask for a lawful termination. In October 20, 2004, Severina Maria Leôncio Ferreira, resident of the miniscule town of Chã Grande, Pernambuco who was carrying an anencephalic fetus, was admitted to a hospital in the capital, Recife, to terminate her pregnancy. That very same day, the majority of the Brazilian Supreme Court lifted the injunction; Severina was sent home with her bags, the fetus inside her womb, and nowhere else to turn to for relief. Her only option was to pursue the usual and tortuous path of filing a request in her own name for a court order to perform the procedure. That road led her to three months of agony, going from courts to hospitals, and back to courts, until she was finally granted permission to terminate the pregnancy (or rather to induce labor, since she was seven months pregnant by then). The hardship of the very situation she found herself in—carrying a fetus she knew could not and would not live—was compounded by the struggle with judges and health care professionals during the months that followed the dissolution of the injunction. Severina’s story is documented in a short movie.1 These are two snapshots of the battleground regarding reproductive rights in Brazil, around which the debate over abortion has recently been framed. They depict the comings and goings of a moment of transition from a debate on abortion purely centered on moral or religious beliefs to a legal framework , based on the ideas of women’s rights and the legal status of the fetus. The hardiness of the opposition they stirred also offers a glimpse of the deeprooted taboo against abortion that has ingrained itself not only in Brazil but in most of Latin America as well, especially because of the strong political influence of the Catholic Church within the region. 260 Framing and Claiming Rights This chapter outlines the legal...