Angelica Ullauri

MPH
Public Health and Human Rights
Policy Critique
12 of May 2015
HUMAN RIGHTS AND PUBLIC HEALTH APPROACH TO ABORTION LAW IN
ECUADOR
What is abortion?
Abortion can be understood as the provoked or spontaneous termination of pregnancy before the
20-week of pregnancy (Neira & Narvaez, 2008). Provoked abortion is considered as the
intentional termination of pregnancy induced by drugs or medical procedures such as surgery
(Neira & Narvaez, 2008). On the other hand a spontaneous abortion is an abortion that has not
resulted being induced through any intervention (Neira & Narvaez, 2008). According to the
WHO, over the last decade approximately 50 to 40 million abortions have happened worldwide,
and according to the same study about half of these abortions are provoked in unsafe conditions
(hman & Iqbal, 2008).
The WHO has defined unsafe abortions as provoked abortions that are carried out under
unskilled supervision, in an environment that does not meet the standards of medical care.
Unsafe abortions usually have three characteristics in that they often occur without enough
information and support. They might be self-induced by women and often women are prevented
from seeking medical attention (hman & Iqbal, 2008).
Some of the reasons why women might seek unsafe abortions have to do with restrictive
national laws that prosecute women under the basis of abortion. Health systems that are
frequently not equipped to provide for womens health needs and social and cultural stigma
around abortion also contribute (World Health Organization, 2012).
There are various consequences of unsafe abortion ie. the need for emergency post-abortion
care, high cost to the health system, increased female mortality and morbidity rates and legal
prosecution (World Health Organization, 2012). Abortion is a complex reproductive health issue
that affects womens lives and health. It was estimated that in 2004 8.5 million women
worldwidesufferedfromcomplicationsofabortionand3millionofthemdidnotmanageto
receive medical care (hman & Iqbal, 2008). These numbers are mostly concentrated in
developingcountries,wherepoorwomenhavetheleastaccesstoreproductivehealthcareand
duetotheirlimitedeconomicresourcestheymightalsobemorelikelytosuffercomplication
relatedtoabortion(hman&Iqbal,2008)
Abortion in Latin American
Latin America is one of the regions in the world with the most restrictive abortion laws.
Chile, The Dominican Republic, El Salvador and Nicaragua criminalize any type of abortion,
whilst seventeen countries dont consider rape a sound reason for abortion. Most countries allow
abortion when the life of the mother is in danger and out of 32 countries only Uruguay, Guyana,
Cuba and Mexico City have completely decriminalized abortion under all circumstances (Ford
& Galatsidas, October 2014).
Restrictive laws on abortion push more women to seek unsafe and illegal abortion
methods (hman & Iqbal, 2008). According to a World Health Organization report on unsafe
abortion, around 95% of abortions in the region are unsafe. In contrast, the Caribbean sub
region reports a 45% rate and is the lowest in the whole region. This is directly related to Cuba s
legalization of abortion (World Health Organization, 2012). In Latin America its estimated that
31 out of a 1000 women undergo unsafe abortions, making this region second to Africa on this
matter (hman & Iqbal, 2008). Yet, the fact that women are seeking unsafe abortions also
means that they run the risk of being prosecuted under tight abortion laws. This puts women in a

Angelica Ullauri
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Public Health and Human Rights
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double place of vulnerability where they have to negotiate their reproductive health with their
rights/the law.
One of the reasons why abortion is so polemic and such a sensitive issue in the region is
due to the large influence of religion over regional politics (Morgan, 2015). For example, in
Mexico major lobbying from pro-life Catholic groups aims to stop the creation of laws that
would allow legal abortion (Shelley et al., October 2014). Along with the influence of
Catholicism, the influential presence of male voices in womens issues expose cases of sexism
that diminishes legislation towards the improvement of the reproductive and sexual rights of
women (Morgan, 2015). These issues shed light into some of the major barriers that legislation
has to overcome in order for womens needs to be addressed.
Abortion Laws in Ecuador
Ecuador has had three major changes to its penal code in the last century. The first
was in 1906 during the government of liberal and revolutionary president Eloy Alfaro. This
code abolished the death penalty as well as crimes against religion. For the first time, Ecuador
claimed itself as a lay country (secular state). The next major change in the penal code happened
under the dictatorial rule of General Alberto Enriquez in 1938 (Magallanes, 2006) This code
was the first one to refer to abortion as a punishable crime that is only accepted when the life of
the mother is in danger and when a dementedor idioticwoman is raped (Arana, October
2013).
In October 2011 a new draft for major changes to the penal code was submitted to the
National Assembly. In this new draft, new provisions against crimes on abortion were
contemplated. In the first debate in 2012, the draft decriminalized abortion under all instances of
rape (Human Rights Watch, 2013). Nonetheless, the debate around abortion took a sudden turn
in August 2013 when the Ecuadorian President Rafael Correa expressed his disagreement with
the new changes on abortion through twitter message s. He said he would veto any abortion laws
that were not already existent in the previous penal code (Arana, October 2013).
In an act of rebellion around twenty assembly women from the government put forward
a proposal and vote for the decriminalization of abortion in the case of rape (Arana, October
2013). President Correa called this an act of treason and once again warned that if this law on
abortion were to be passed he would resign his chair position. As a result of this presidential
mandate, three of the assembly women who publicly advocated for the change of the code were
sanctioned by the national party due to rebellious behavior.
Finally, in October of 2013 the new penal code was published and the abortion laws only
changed in terminology; instead of referring to demented and idiotic women, the new code
uses the term mental disability (Human Rights Watch, 2013). So, at the end of two years of
debate, the new penal code still considers abortion a crime with the two exceptions mentioned
below.
Thus, The Ecuadorian penal code as it stands stipulates through articles 147, 148, 140 and
150 four degree of punishable abortion:
1. When abortion results in death: If the abortion results in the death of the woman, the
person in charge of the abortion will be imprisoned for a period of 7 to 10 years, if
abortion was consented; and between 13 to 16 years if abortion was not consented.
2. When abortion was not consented: If the abortion was not consented by the woman,
then the person in charged of the procedure will be imprisoned for a period between 5
to 7 years, and if the procedure was unsuccessful the person would be charged under
tentative abortion.

Angelica Ullauri
MPH
Public Health and Human Rights
Policy Critique
12 of May 2015
3. When abortion was consented: If the woman has consented to the abortion, the person
in charged of the procedure will be punished with 1 to 3 years of imprisonment. Whilst
the woman who was allow for someone to perform the abortion or who has selfinflicted the abortion will be imprisoned between a period of 6 months to 3 years.
4. Exceptions: Abortion will only be accepted if performed by a health care provider and
with the consentient of the mother, her partner or family under two instances: when the
life of the mother is in danger and if abortion is the only way forward; and if the
pregnancy of a woman with mental disabilities is the result of rape (Appendix 1).
Why is this an issue in Ecuador?
Maria is a 20 years old woman from working class neighborhood in one of the cities of
Ecuador. She works from 8:00 am to 20:00 pm and even then does not manage to reach the
minimum salary1. Maria did not finish her secondary education and has to provide for both her
mother (who suffers from schizophrenia) and her three-year-old child. One morning before
going to work Maria fell and after this she started bleeding, she thought it was her menstrual
cycle. Yet three days later, the bleeding continued and she felt pains that she had never felt
before. She went to the hospital to receive medical attention and a nurse informed her they had
to do a uterine cleansing - this was the moment when Maria first learnt she was pregnant.
Soon after the medical intervention, police came to interrogate Maria about her abortion, this
happened without the presence of a lawyer. Next day after being discharged from the hospital
but without enough time for nurses to give her medication she was taken to a court where based
on the police report she was accused of self-induced abortion. Marias defence and testimony
were not accepted and she was sent to jail. She spent four months in prison before her lawyer
managed to revoke the punitive measures (Plan V, February 2015)
The Ecuadorian constitution in article 45 stipulates that the Ecuadorian government will
protect and support the life of the child from the moment of conception. This consideration
gives personhood to the foetus and because as a foetus is unable to claims its rights, the State is
under the obligation to protect them. Thus the Ecuadorian penal code and its abortion provisions
try to make sure that the life of the foetus is protected by the State. Yet this raises larger issues
regarding the life of the mother who might find herself in the position of seeking an abortion.
The Ecuadorian provision on abortion pushes women to seek unsafe abortions and puts them in
the dangerous position of being prosecuted by the State (The Ecuadorian Front for Sexual and
Reproductive Rights, 2013). In that sense abortion laws in Ecuador impact womens access to
health as well as limit their personal rights and freedoms.
Abortion then is not an issue of treason, morals or political interest; it is a human rights issue
that puts women life into stake (Morgan, 2014). Abortion is about human rights and basic access
to health care.
The drafting of abortion laws in Ecuador was not advised nor designed by public health
officials taking into account a human rights framework, it was forcefully put in place by the
threats and orders of the Ecuadorian president, thus diminishing the voice of feminists, women's
rights groups or the legislative power (Arana, October, 2013). The case of Maria exposes the
consequences of the current abortion provisions to one of the most vulnerable groups of the
population: poor women who might not have access to health care (Ecuadorian Front for
Sexual and Reproductive Rights 2015), who might have experienced sexual violence and who
might not have the resources to take upon the responsibility of a child.
Marias story raises various issues around the current abortion law in Ecuador. The first
one is that it seems difficult for health professionals to judge whether or not the abortion was

1 In Ecuador the minumun salary by law is USD 360, around R4000

Angelica Ullauri
MPH
Public Health and Human Rights
Policy Critique
12 of May 2015
spontaneous or induced (Human Rights Watch, 2013). The second issue is that health
practitioners are breaching their professional confidentiality (Klasing, 2013 . The third issue is
that Maria was taken away from the hospital without completing her medical treatment and the
final issue is the court decision to imprison Maria by using only the police report as evidence. In
light of these issues, we can clearly see how the criminalization of abortion as stipulated in the
current penal code affect both the health and civil rights of women.

USING AN ANALYSIS TOOL TO ASSESS THE PUBLIC HEALTH AND

HUMAN RIGHTS IMPACT OF ABORTION LAWS IN ECUADOR: Using the framework
of the International Federation of Red Cross and Red Crescent Societies and the FranoisXavier Bagnoud Centre for Health and Human Rights, The Public Health - Human Rights
Dialogue (Maan et al. 1999)
Ecuador signed and ratified Human Right conventions related to women:
International Covenant of Civil and Political Rights (ICCPR)
International Covenant of Socio Economic and Cultural Rights (ICSECR)
Convention on the Elimination of all forms Discrimination Against Women (CEDAW)
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (CDTP)
Convention on the Rights of the Child (CRC)
American Convention of Human Right (IACHR)
American Convention of Socio Economic and Political Rights
American Convention on the Prevention, Punishment and Eradication of Violence
Against Women.

What is the public health problem?

The objective of the penalization of abortion in Ecuador seeks to decrease the number
of abortions as well as to protect the health and life of the foetus (Cardenas, 2009). The
Ecuadorian government states that abortion is illegal and that reproductive and sexual education
as well as the delivery of emergency contraception would help decrease the burden of the
abortion law (Cardenas, 2009).
Yet, the present penal code penalizes abortion in the case of rape, which raises larger issues
related to sexual violence, maternal morbidity and mortality, lack of representative
demographics and a high cost to the public health system. On a different note, the penal code
provides protective measures for women who are forcefully put into an abortion, or who died in
the hands of illegal providers.
Feasibility:
The feasibility of the law from a public health perspective needs to take into consideration the
costs as well as the likelihood that the law decreases the number of abortions in the country.
According to global studies on the cost of criminalization of abortion, the emergency care
required by post-abortion complications due to unsafe abortions raises the costs of public health
services. It is estimated that in Latin American in 2013 the cost per treatment was USD126 per
patient vs. USD 23 that costs to treat abortions legally through the health system (Human Rights

Angelica Ullauri
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Public Health and Human Rights
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Watch, 2013). It is argued that this cost could be lowered if abortion was decriminalized; in a
study that compared health system burdens between countries in Africa and Latin America it
was found that the costs from post-abortion treatment puts an extra burden of 490 million
dollars per year (Vlassof et al., 2009). It has also been argued that the costs of post-abortion
treatment put a burden on women because they need to spend extra money in transport and
many times have to leave work due to abortion complications that need hospitalization (World
Health Organization, 2012). Economically speaking, criminalizing abortion increases the costs
for the health system and the individual.
Impacts to Public health assessing harms and benefits:
Sexual violence
In one of the hospitals of Ecuador a doctor tells the story of a little girl who had been in the hospital three
times in the year with complications from abortion practices. The doctor does know that the abortions could only be
the result of sexual violence yet because of the present laws she fears that denouncing the case under sexual violence
would have legal consequences for herself and the little girl (Human Rights Watch, 2013).

This story sheds light on a major public health issue related to the consequences of the
illegality of abortion in the case of rape. Health professionals who adhere to keep patient
confidentiality must silence deeper issues such as violence if they want to protect the patients
and themselves. This is particularly problematic given that official government numbers suggest
that 1 out 4 women in Ecuador experience some form of sexual violence (The Ecuadorian Front
for Sexual and Reproductive Rights, 2015; INEC 2011). Health professionals have mentioned
that sometimes women or girls who would seek post-abortion services would disclose their
pregnancy as result of rape and due to the illegality of abortion many health practitioners keep
quiet to protect their patients (Human Rights Watch, 2013). This is troublesome given that
women or girls who have suffered from rape are two times more likely to seek abortion (World
Health Organization, 2013). The issue with underreported sexual violence is a public health
issue closely linked with abortion laws because it means that women or girls who suffer from
sexual crimes dont have access to the right support by psychologists, social workers and health
services such as abortion and post-abortion treatments.
Maternal deaths
In 2007 a 24-year-old woman was admitted in a hospital in Quito due to abortion complications. She had a
uterine perforation that resulted in internal bleeding which lead to her death. Health practitioners at the hospital did
not get to hear what happened to this woman (Human Rights Watch, 2013).

In Ecuador as well as many other countries where abortion is illegal its difficult to
know whether an abortion had resulted in death due to its illegality. Most hospitals change the
terminology under which they report deaths due to the sensitivity of the issue (hman & Iqbal,
2008; Human Rights Watch, 2013). The example presented of the 24-year-old girl clearly
demonstrates that many women die from abortion complications and health practitioners
wouldnt ever be able to hear their stories or clearly define if their death were caused by unsafe
abortion. In an analysis of the maternal death rates in hospitals, at least 15 of those deaths in
2013 were due to abortion related issues (Human Rights Watch, 2015). This is a high number
given that in that same year in Ecuador the maternal death rate was 47.5 for every 100.000 live
births (The Ecuadorian Front for Sexual and Reproductive Rights, 2015). Yet the number of
women dying due to unsafe abortion could be higher given that most health professionals
categorize these deaths under sepsis, hemorrhages and other complications (INEC, 2013). Even
though there are not official numbers for maternal deaths caused by abortion, the existing data
does show that strict abortion laws pushes women to deadly situations. This corroborates
UNICEFs data which states that in Latin America, at least 12% of maternal deaths are due to
complications of unsafe abortions (Unicef, 2009).

Angelica Ullauri
MPH
Public Health and Human Rights
Policy Critique
12 of May 2015
Maternal Morbidity
A woman from the town Latacunga in Ecuador became pregnant from her abusive partner who did not consented on
the use of family planning methods. She went to a private clinic to request an abortion and she was told that it was
illegal but that after giving birth she should come back for family planning services. Regardless this advice the
woman found a clandestine clinic in a nearby city and underwent an abortion. Several months later the woman fell
pregnant again but this time she climbed up a tall tree and jumped off hoping to end her pregnancy. She was
unsuccessful and was taken to the local hospital where they performed X-rays which did made possible for her to get
an abortion, yet the womans injuries affected her spine and now she is disabled (Human Rights Watch, 2013).

Injuries caused by unsafe abortions are quite high in Ecuador, even if statistics do not
label them as such. In 2013 government data found that abortion was the second leading cause
of morbidity in women with around 17,000 reported cases. Most of the time and as presented in
the example above, maternal morbidity caused by unsafe abortion leads to disability or physical
harm (Centro de Derechos Reproductivos, 2010). Yet, these numbers could be higher since most
health professionals are wary of categorizing unsafe abortions as such because they fear to be
prosecuted by the law (Human Rights Watch, 2013). Maternal morbidity also affects girls and
adolescents and according to official numbers in 2011, hospitals reported 286 cases of morbidity
in girls between 10 to 14 years old. This number is very large and also of big preoccupation
given that in Ecuador any sexual act had before the age of 14 years is considered non-consented
sex or rape. According to the WHO, adolescents and girls are more likely to seek unsafe
abortions than older women (WHO, 2012). Therefore, in Ecuador illegal abortion has
consequencesnot only on women but also for girls and adolescents.
Lack of actual numbers on unsafe abortions
In an interview with health practitioners, Human Rights Watch found that women who
seek abortion are most of the time turned away by health practitioners, which makes it difficult
for public health statistics to actually record the number of maternal deaths or the number of
abortions in the country accurately (Human Rights Watch, 2013). Many cases of unsafe abortion
are disguised under different levels that allow health professionals to protect their patients
confidentiality and judicial safety. Yet, without accurate numbers it is difficult to expose the
problematic and consequences related to abortion laws.
Protecting the life of the mother
The public health implications of allowing abortion when the life of the mother is in
danger are a big step towards the improvement of womens lives. This provision can result in
the decrease of maternal deaths by making sure that the life of the mother is protected. Yet there
a not numbers to correlate the two of them.
Is the law justified?
No. Given the public health evidence shown, there are more burdens to the public health system
than benefits. Studies have shown that the penalization of abortion does not reduce abortion
seeking behavior, in fact it forces women to seek clandestine care or self-inflicted mechanisms,
which put their life in danger (Center for Reproductive Rights, 2010). Throughout this analysis
it was found that unsafe abortion actually increases numbers of morbidity and mortality rates
and it instigates sexual violence by not providing mechanisms that allow health professionals to
support their patients.
In terms of fulfilling the main objective of anti-abortion laws decreasing the number of illegal
abortions and the protection of the life of the foetus it has been argued that women who want to
terminate their pregnancy are more likely to seek unsafe abortions regardless the provision.
Is it sustainable?
In order for the law to be sustainable it should show that there are lasting health benefits to the
population. Thus in the case of anti-abortion laws, it has been demonstrated through

Angelica Ullauri
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Public Health and Human Rights
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epidemiological data tha the law might influence mortality rates but that also generates burdens
to the general state of womens well being. Unsafe abortions might reduce the ability of women
to work due to hospitalizations which is a burden for family economy and it can generate long
lasting problems such as infertility or disabilities (World Health Organization, 2012). Thus the
law is neither sustainable nor effective on its aim of reducing abortion and maternal death rates.
The human rights implication:
Several international human rights instruments have called countries to reconsider abortion
laws. Instruments such as the CEDAW, CCPR, CRC and the CCSCR have in different general
recommendations mentioned the importance for countries to provide unrestrictive reproductive
health services. According to the special report on torture and other cruel, inhumane or
degradingtreatmentorpunishmentfromtheCommitteeonCivilandPoliticalRightstheactof
denyingwomenwithaccesstoreproductivehealthservicescancreate lastingemotionaland
physicalsufferinginflictedinthebasesofharm (Mndez,2006). Inthatsensetheabsenceof
lawsthatallowwomenaccesstosafeabortionscanbeunderstoodasaformoftorturebasedon
gender,whichgoesagainstmanyofthesubscribedhumanrights.
Positive Right

Right to life of the fetus

Protect the right of mentally disable women
to a life without violence
Protect the life of expectant mother in case
of emergency
Prosecute unsafe abortion practices

Negative Rights

Right to life
of the woman or girl
Right to self-determination to decide on
their body and their reproductive lives

Right to privacy
Right to a life free of torture
Right to highest attainable standards of
health

Right to fair trial

Right to the enjoyment of scientific
progress
Right to equal treatment
Dual loyalty principles

Positive Rights Implications

Right to life of the foetus: One of the arguments used by pro-life movements is the idea
that abortion infringes on the right to life of the foetus by using article 1 of the covenant on
rights of the child where its stated that a child is anyone 18 years or younger. Due to the lack of
specification on the limits of personhood, many pro-life activists advocate that under this
provision the foetus needs to be considered a child whose life need to be protected (Irrazbal,
2011). Another human right instrument making use of the right of life from conception is article
4.1 of the American Convention of Human Rights. Under these grounds the Ecuadorian
constitution also states that its the duty of the State to protect life from the moment of
conception. In this regard, the Ecuadorian Penal code protects the life of the fetus by
criminalizing abortion, which under the Ecuadorian constitution protects the right to life. Prolife activists enforce these views.
Right of the person with disabilities: The Ecuadorian penal code provides the statute to
protect women with intellectual disabilities who have been impregnated as a result of rape. In
this sense the laws respect the right of freedom of torture or to cruel, inhuman or degrading

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Public Health and Human Rights
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treatment or punishment. The law also makes sure that people with disability have access to the
highest attainable standards of health by providing safe legal abortions. Finally the law respects
disabled womens rights to life and dignity by allowing them to terminate a pregnancy that was
a result of abuse in a protective environment.
Protect the life of expectant mother in case of emergency: The Ecuadorian penal code
allows abortion when the life of the mother is in danger which respects womens right to access
health facilities according to point 12.2 (a) of general comment 14 from the ICSECR, have
access to emergency obstetrics interventions. In that sense the life of the woman is protected
from poor treatment.
Prosecute unsafe abortion practices: Point 12 (d) of general comment 14 mentions that
the importance of health care goods and services must be medically and scientifically
appropriate and of good quality. Through the criminalization of abortion, the State have the
legal mechanism to ensure that the person who performs an abortion under poor and unsafe
clinics conditions be prosecuted. Thus protecting womens rights to access the highest attainable
standards of health.
Negative Right Implications:
Right to life: Several human rights frameworks mention the right to life as a
fundamental and non-derogable right. The International Covenant on Civil and Political rights
(ICCPR) on article 6 states that every human being has the inherent right to life. This provision
under general comment 28 also adds that even though the right to life is inherent, States must
undertake positive actions to increase life expectancy. It also states that governments should
provide information on maternal and child deaths as well as developing mechanisms that can
inform women to prevent unwanted pregnancies and in that way avoid life-threatening
clandestine abortions. Similarly, the Convention on the Right of the Child in article 6 of its
covenant states that the life of the child is an inherent right that must be protected. On another
hand, the regional Inter American Covenant of Civil and Political Right also protects the right to
life, whit the difference that this statute includes life from conception. This conflicts with other
international instruments that have refused to include the right to life from conception due to the
fact that the foetus does not yet have personhood and cannot exert its rights (Irrazbal, 2011).
What is even more problematic is that due to this consideration, countries like Ecuador have
included this statement in their constitution, through which they can push for the criminalization
of abortion.
The Ecuadorian penal code conflicts with the inherent rights of women to life because it
denies them the access to safe medical procedures that could assure their levels of survival. This
provision is therefore very intrusive to basic human rights and in particular those of women.
According to the Syracuse principles, breaching non-derogable rights can only be limited when
all other instances have been exhausted and only for limited time. In the case of abortion laws in
Ecuador, the right to life is permanently threatened unless new changes are done to the current
law. Yet, it is important to mention that due to the presence of right to life from conception in
the ACHR, there is conflict on whether the right to life from the mother is more or less
important than the one of the unborn fetus.
Right to the highest attainable standards of health: Penalization of abortion causes
women to seek clandestine and unsafe abortions, especially women who had been victims of
sexual abuse (Centro de Derechos Reproductivos, 2010). According to general comment 14 of
ICSECR, women have the right to quality, accessible, acceptable and availability health care
including sexual and reproductive services. If looking at issues of accessibility we can see that
in Ecuador most women do not have access to abortion services that are acceptable and of high
quality because most of the time they have to use clandestine and unsafe methods. What is even

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more worrisome is that in Ecuador abortion services are not even available for the vast majority
of women. The general comment mentions that States should remove all barriers so that women
can enjoy these services. Article 12 of the CEDAW states that women should have nondiscriminatory access to health care services and also that these services include those of
pregnancy, confinement and the post-natal period. In its general comment 24, the CEDAW
mentions the importance for states to make sure that its policies and laws affecting women
should be addressed from womens needs, specifically those needs that pertain only to women.
In light of these provisions, the Ecuadorian penal code does not grant access to abortion
services to all women, this is discriminatory and it does not provide abortion services, which
limits women ability to enjoy access to quality health care services. Instead women are forced to
seek clandestine clinics where there is not safety or quality care. The right to the highest
attainable standards of health is a non-enforceable right and requires the progressive realization
of the states to fulfill it and they must, as they are under the obligation to move towards the
fulfillment of this right (Lutz & Sikkink, 2000). In that sense the Ecuadorian government does
not have to immediately provide these rights but at least it should be leading laws towards
addressing womens health. Since the present abortion law were just passed two years ago, it
seems very unlikely that this realization will happen any time soon.
Right to self-determination: According to article 16(1) of the CEDAW, women have the
right to decide upon the number of children and the spacing between them and its the states
obligation to make available the necessary provision for these decisions to take place. The
ICSECR in its general comment 14 also mentions that the right to health is directly lined with
the individuals ability to control their own health and body - this must also include those of
sexual and reproductive nature. In that sense the laws that dont allow women to seek safe
abortions restrict their right to self-determination to the extent that they are not capable of
deciding upon their reproductive lives. Thus, by criminalizing abortion, women are forced to
carry out unwanted pregnancies, which is particularly problematic when pregnancy is a result of
sexual abuse.
Right to privacy: According to the Ecuadorian legal code in article 422 its the
obligation of the health provider to disclose information regarding crimes in the health facility.
This article plus the fear of being associated as co-author of the abortion, pushes health
professionals to disclose information related to abortion. Article 12 (d) of general
recommendation 24 from the CEDAW states that the disclosure of medical information can
affect women more than men because it deters women from seeking medical attention,
especially those related to contraception. Thus, abortion laws in Ecuador threaten womens
rights to privacy and non-disclosure of information by allowing health practitioners to breach
their professional confidentiality.
Right to freedom of torture: The Ecuadorian legal code does not allow abortion in the
case of rape, and this can put women and girls under physical and emotional pain (Human
Rights Watch, 2013). Article 7 of the covenant of civil and political states that no one should be
treated to torture or to cruel, inhuman or degrading treatment or punishment. In a special report
made by the same committee it was stated that countries forcing women to have children who
have suffered rape breaches the right to a life free of torture or inhumane treatment, due to the
double victimization of women. In that regard, the criminalization of abortion forces women to
undergo unwanted pregnancies which in many cases would leave life long harm.
Right to a fair trail: It is difficult for a health practitioner to denounce a self-induced
abortion because they have not physically observed women or have not performed the
procedure themselves. This makes it difficult when judging women who have committed illegal
abortions. In 2013, there were six women being prosecuted in courts in Ecuador for abortion in

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some of this cases health practitioners reported the case to the police, who subsequently arrested
women and charged them on abortion without the right legal procedures. Article 14 (2) of the
covenant on civil and political rights states that everyone has the right to a fair hearing and
everyone has the right to be innocent until found guilty by law. In that sense the criminalization
of abortion can lead to unfair trials and accusatory statements against women before a fair
hearing.
Right to the enjoyment of scientific progress: Scientific progress can be linked to the
access to medical technologies of drugs for the improvement to reproductive and sexual rights
(Lutz & Sikkink, 2000). In the case of abortion in Ecuador, the availability of misprostrol a drug
used currently for stomach ulcer has been recognized by the WHO and Pan-American Health
Organization as safe and unobtrusive methods for abortions (Human Rights Watch, 2013).
Around 82% of unwanted pregnancies are due to the lack of modern contraceptives or
reproductive and sexual education (hman & Iqbal, 2008). The penalization of abortion means
that many girls and women cannot access this drug legally. This breaches articles 15(1) from the
ICCECR and 14 from the ACHR, who state that everyone has the right to enjoy from scientific
progress.
Right to equal treatment and non-discrimination: Since the early 1990s, multiple
human right instruments have included in their covenants the importance of generating equality
between women and men by not negating women's health services that are relevant to their
well-being such as family planning, reproductive education and safe and legal abortions. The
penalization of abortion means that the government is not generating the necessary instrument
to make sure that women are not discriminated in the access to health care services, and while
not providing legislation that protect abortion in the case of rape, government is not providing
the same opportunities to women regardless their mental status to access abortion.
The law is also discriminatory against people with disabilities because by allowing abortion
only in the case of rape of women with mental disabilities they are stating that this group of
women is less fit to be mothers than women without disabilities. Thus the provision of
penalizing abortion is both discriminatory and does not build on equality as stated by the
covenants of the CEDAW, ACHR, CHR, CRPD and CHR.
Information: General comment 4 of the Covenant on the Rights of the Child states that
countries are under obligation to provide teenager girls with the right information regarding
reproductive services. Similarly, the Ecuadorian constitution in article 72 states that women
should have the right to make informed decisions, including decisions that pertain to their
reproductivity. Women who are being forced to commit unsafe abortions due to the
criminalization of abortion are forced to make unformed decisions and are unsupported by the
health care system.
Dual loyalty principles: The human right consequences of abortion do not only apply to
women but also to health professionals. According to article 20 of the Ecuadorian Constitution,
the government will provide all the mechanisms for professional silence yet in the Ecuadorian
Penal code under article 422, health professionals are obliged to denounce cases of crime. In
that sense health professionals are put under a difficult position where they have to weigh
whether to be loyal to their patients or to the State. In most cases it has been demonstrated that
health professionals chose not to disclose patients abortions to protect themselves and the
patient but there are also cases where health professionals denounce women who go to hospitals
in search of post-abortion treatment.
Is the law justified?

Angelica Ullauri
MPH
Public Health and Human Rights
Policy Critique
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According to the Syracuse principles government should not infringe on the nonderogable rights such as those of life, freedom of torture, cruel or inhumane or degrading
treatment. The Ecuadorian law on abortion has major impacts on women who might need to
access abortion health care services or pushes them away from seeking emergency post-abortion
treatment due to the risk of being prosecuted. This issue puts womens lives in very dangerous
positions, which can result in their death. Even though the right does not explicitly deter
womens right to life it generates structural forces that pushes them to seek life threatening
health services. In that sense the law is under-inclusive and affects non-derogable rights of
women who might be in vulnerable situations due to sexual abuse and violence. In that sense
the law is not justified because it breaches non-derogable rights and does not provide alternative
exits for women who seek abortions. The rights infringements are long-term due to the
difficulty of changing penal codes in Ecuador.
How does the policy address both public health and human rights concerns?
Abortion laws in Ecuador affect all women who find themselves in the position of
having to cope with an unwanted pregnancy. It particularly affects women who have been
victims of rape and sexual violence, and who might not want to continue with a pregnancy that
puts them in the compromising space of coping with motherhood and the emotional and
psychological trauma of sexual violence (Human Rights Watch, 2013). In that sense the law is
under inclusive because it only takes into account specific cases for abortion. Even though the
law potentially discriminates against all women, it particularly affects poor women (hman &
Iqbal, 2008). It has been found that women from higher socio-economic backgrounds are able to
access safe abortions through contacts or by travelling to countries where abortion is legal. Poor
women on the other hand tend to be marginalized and forced to seek any available method to
end their pregnancy, or dont have enough tools to defend themselves in case of legal
prosecution (The Ecuadorian Front for Sexual and Reproductive Rights, 2015). Thus the
penalization of abortion in Ecuador causes discrimination, deprives women from accessing the
highest standards of health and puts them in situation of torture or inhumane treatment.
According to UNICEFs report in 2009, in Latin America maternal deaths due to
abortion related complications represented 12% of total deaths in the region and 21% were
listed as other causes. Given the illegality and lack of formal records on the number of abortion,
the 12% could be much higher. Latin America in comparison to regions like Africa and Asia
(where many countries have de-penalized abortion in case of rape) has a higher percentage of
maternal deaths due to abortion (Ford & Galatisida, October 2014). These numbers are
particularly important when trying to assess the consequences of the penal code in relation to
abortion in case of rape because provide significant epidemiological evidence on the public
health implications of the law.
According to the assessment of whether or not the present law allows for good public
health practice, it is clear that the penalization of abortion causes issues regarding maternal
deaths, maternal morbidity, and sexual violence. Yet these health issues are also tightly
connected to human rights issues. Maternal deaths compromise the right to life, issues with
morbidity compromise right to access to quality health care, issues with sexual abuse raise
issues with rights against torture and in-humane treatment.
It can also be argued that the Ecuadorian law on abortion does address both issues of
human rights and public health. The fact that abortion is allowed to save a womans life
demonstrates that its not denying emergency medical attention and respecting women rights to
life. The right to life is an inherent right which cannot be taken away from people under any
circumstance. The issue with not providing abortion health services falls under the category of
general comment 14 of the covenant in socio economic and cultural rights where it is stated that
countries should provide services through progressive realization. Thus, providing abortion
services might not be a priority for the government and by allowing abortion on the grounds of

Angelica Ullauri
MPH
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the life of the mother and in the case of rape of a woman with mental disabilities it starts
working towards its realization. Yet the fact that this law has not changed since 1938
demonstrate that the Ecuadorian Government is for now, not interested in changing the law.
Therefore the existing law on abortion does not completely address concerns to public health
and human rights.
How can we achieve the best possible balance between public health and
human rights?
The present law does not present a balanced synergy between public health and human
rights. It is under inclusive of women. The Ecuadorian Penal Code was reformed in 2013 and it
is very unlikely that new changes would be included, and given the influence of the presidential
voice in the National Assembly it will be difficult to think of new inclusions in the new penal
code. Thus, the burdens on human rights and public health might be prolonged until new
revisions take place.
In March 2015, the CEDAW presented recommendations to Ecuador in matters relating
to abortion legislation and stated that Ecuador needs to ensure professional confidentiality by
providing health practitioners with basic human rights training; it also advices government to
consider decriminalizing abortion in cases of rape, incest and fetal impairment. Finally it
recommends that Ecuador enable the services of therapeutic abortion in hospitals by training
health professionals in this matter.
According to these recommendations, the Ecuadorian penal code should allow for
broader inclusion criteria on the access to abortion. Thus, by including rape, incest and fetal
impediment the law would be embracing the needs of vulnerable women. In that regard, the
rights to life, the access to quality health care services, the rights to non-discrimination and right
to a life without torture or inhumane treatment would be respected for this group of the
population. The law would still not include all women but it will still maintain its objective,
which is to protect life from conception.
Yet, in order for these procedures to take place it is necessary that the law is revised and
changed according to the burgeoning human rights and public health needs of women. It might
also be necessary for government to close legislation gaps with respect to professional
confidentiality, in order to assure that women who seek emergency care can freely access these
services. The government should take the matter to a national vote, letting people decide if they
think abortion should be allowed in the three respects recommended by the CEDAW. According
to national surveys, 65% of Ecuadorians agree that abortion should be decriminalized in the
case of rape.
Is it still the best solution?
The alternative provided by CEDAW might mean that more women who have suffered
from rape can make informed and safe decisions upon their bodies, yet the law would still leave
behind the voices of the rest of women who might be in the position of having to decide upon an
abortion. The optimal option should be for the penal code to allow abortion in all cases and
enforce better access to sexual education so that abortion does not become a family planning
mechanism.

Angelica Ullauri
MPH
Public Health and Human Rights
Policy Critique
12 of May 2015
CONCLUSION
The criminalization of abortion as its stated in the Ecuadorian penal code generates
conflicts between public health and human rights. In comparison to other Latin American
countries, Ecuadorian laws on abortion are more permissive and inclusive that other countries
where abortion is illegal under all grounds. In Ecuador, a woman can have an abortion if her life
is in danger and in case of rape of a woman with mental disabilities. These two considerations
pose positive advances in the progressive realization to the rights of women to access inclusive,
non-discriminatory and quality health care. In terms of human rights, it provides women
emergency abortion when their lives are in danger, which protects their rights to life. The
Ecuadorian constitution stipulates that the State has the obligation to protect life from
conception, which makes the current abortion law sound and coherent to what the constitution
says. Yet there are also weaknesses with the law as its stated in the sense that it does not take
into consideration various issues related to womens health and human rights and is under
inclusive because it only benefits certain groups of women. The law limits the access to abortion
services, which pushes women to seek unsafe and clandestine alternatives. The law states that
the person who performs the abortion has to be prosecuted but because abortion is illegal it
might make it difficult for government to regulate and prosecute those in charge. This law also
puts women in vulnerable situations due to the prosecution side tending to affect woman who
had made a decision and not those who have performed abortion in unsafe and illegal manners.
In conclusion, the law does not represent good public health and does not protect human
rights. The Ecuadorian abortion law impacts the decisions and rights of the most vulnerable
women in the population; it denies the opportunity for progressive realization toward protect ing
womens physical and mental health, according to general comment 14 and; it directly violate s
their inherent right to life.
RECOMMENDATIONS AND FINAL THOUGHTS
Throughout this assessment of abortion laws in Ecuador, I encountered a different
perspective on this issue. I have found that anyone can make a good argument pro or against
abortion depending on which side of the spectrum you locate yourself. Abortion in Latin
America is a very polemic issue because it brings up many different perspectives and notions of
what is, a right. Many of the decisions around reproductive and sexual rights are based on the
voice of morality from a catholic church that has its hands in the politics of almost every Latin
American country (Morgan, 2014). In Ecuador, the abortion laws remained unchanged in 2013
due to the moral views of President Correa, who considers himself a fervent Catholic. In his
discourse he mentions that he represents the voice of the Ecuadorian predominant Catholic
population and yet in national polls it was demonstrated that 65% of Ecuadorians agree abortion
should be decriminalized in all instances of rape.
Another instance under which President Correa has used his catholic morals to make
decisions on women rights was by dissolving the ENIPLA (National Strategy for family
planning and the prevention of teenage pregnancies) and replacing it by Plan Familia
(Ecuadorian Family Plan), thus shifting the aim from providing contraceptives, medical support,
and an education based on gender principles to one where family values and abstinence are the
basis for the control of sexual and reproductive education. In that sense it is visible how a
conservative catholic undertone is pushed through government programs that are aimed at
improving womens lives. In his discourse Correa said that ENIPLA was promoting hedonistic
principles that were teaching a disproportionate focus on sexual pleasure (Plan V, February
2015). These statements are particularly problematic given that Ecuador is a secular country
since 1906, and can be seen as backward steps towards the full realization of women s sexual
and reproductive rights. Correas actions only highlight the growing influence of Catholic
morals on political issues in Ecuador.

Angelica Ullauri
MPH
Public Health and Human Rights
Policy Critique
12 of May 2015
The increasing use of the human rights discourse around the world as the framework to
lead constitutions, laws and policies has taken some power away from the Catholic Churchs
moral approach, and it is argued that this is one of the reasons why the church has taken over a
distorted concept of human rights to advocate for their moral positions (Irrazbal, 2011). It is
easy nowadays to find epidemiological research, human right analysis that serve as evidence to
back up a pro-life discourse (Morgan, 2014). This is increasingly challenging because it means
that the human rights discourse can be easily re-directed against womens rights. Yet, at the
same time this is result of an ambiguous language used by human rights instruments, which
allows for multiple interpretations that can completely take away the core element of their
discourse, which is to protect the life and dignity of individuals.
Uruguayan ex-president Pepe Mujica stated: I dont agree with abortion and yet it is a
social issue that needs to be addressed. As a leader I cannot leave women in vulnerable and
dangerous position and it is my responsibility to make sure that womens decisions are made in
a safe and supportive environment. In his words there are two important elements: one is that
governments are in the obligation to provide safe and sound public health services for women
who choose to terminate a pregnancy. The other element is the obligation of the State to
promote human rights such as those of life, self-determination and non-discrimination. Mujica,
points the importance of taking the best decision based on the needs of people. In based on the
arguments presented along this analysis there are four recommendations to provide to the
current abortion law.
Sexual Education to decide, contraceptives to stop abortion and safe abortion to stop
deaths Collective of womens rights: Salud Mujeres
1. - A basic element of a new penal code should be backed up by a rounded program on sexual
and reproductive education free from religious morals. According to the CEDAW, its
recommendation on decriminalization of abortion is not intended to see abortion as a method of
family planning. Sexual and reproductive education should strengthen the support to women
and girls so they can make informed and independent decisions upon their bodies (Grodin et al,
2013, p.410). In countries like Chile where abortion is illegal under all circumstances and where
levels of maternal deaths are as low as those of Canada and the United States, studies have
found that education is an important element influencing this trend (El Universo, November
2013).
2. - Access to contraceptives: Provide affordable and accessible contraceptives so that women
can prevent unwanted pregnancies
3. Decriminalization of abortion in the penal code would assure that women who are in
vulnerable situations could make decisions supported on high standard of health care. The
decriminalization of abortion needs to be supported through an intersectional dialogue between
education, public health and human right framework.
The Ecuadorian Penal Code should focus its attention at the prosecution of illegal
clinics and individuals who provide unsafe and dangerous abortions to women rather than
women who might be victims of abuses.
The Ecuadorian Penal Code should not push health professionals to denounce women in
situation of vulnerability, and its important that health professionals get trained on human right
frameworks as a base for their professional code.
The decriminalization of abortion would mean that all women are treated equally by
having the same rights to access health care services.

Angelica Ullauri
MPH
Public Health and Human Rights
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12 of May 2015
The Ecuadorian Penal Code should be providing explicit protection to women who have
suffered rape.
4. The Human Right treaties that protect womens reproductive and sexual rights should
generate enforcing mechanisms that push countries like Ecuador to attend the needs of women
accordingly.

Angelica Ullauri
MPH
Public Health and Human Rights
Policy Critique
12 of May 2015
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12 of May 2015

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12 of May 2015

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Angelica Ullauri
MPH
Public Health and Human Rights
Policy Critique
12 of May 2015

Angelica Ullauri
MPH
Public Health and Human Rights
Policy Critique
12 of May 2015
APPENDIX 1 ECUADORIAN PENAL CODE ON ABORTION
CODIGO PENAL ECUATORIANO

discapacidad mental.

CAPTULO II
DELITOS CONTRA LOS DERECHOS DE
LIBERTAD
SECCIN I
Delitos contra la inviolabilidad de la vida

ECUADORIAN LEGAL CODE

CHAPTER II

Artculo 147.- Aborto con muerte.- Cuando los

medios empleados con el fin de hacer abortar a
una mujer causen la muerte de esta, la persona
que los haya aplicado o indicado con dicho fin,
ser sancionada con pena privativa de libertad
de siete a diez aos, si la mujer ha consentido en
el aborto; y, con pena privativa de libertad de
trece a diecisis aos, si ella no lo ha
consentido.
Artculo 148.- Aborto no consentido.- La
persona que haga abortar a una mujer que no ha
consentido en ello, ser sancionada con pena
privativa de libertad de cinco a siete aos.
Si los medios empleados no han tenido efecto,
se sancionar como tentativa.
Artculo 149.- Aborto consentido.- La persona
que haga abortar a una mujer que ha consentido
en ello, ser sancionada con pena privativa de
libertad de uno a tres aos.
La mujer que cause su aborto o permita que otro
se lo
cause, ser sancionada con pena privativa de
libertad de seis meses a dos aos.
Artculo 150.- Aborto no punible.- El aborto
practicado por un mdico u otro profesional de
la salud capacitado, que cuente con el
consentimiento de la mujer o de su cnyuge,
pareja, familiares ntimos o su representante
legal, cuando ella no se encuentre en posibilidad
de prestarlo, no ser punible en los siguientes
casos:
1. Si se ha practicado para evitar un peligro para
la vida o salud de la mujer embarazada y si este
peligro no puede ser evitado por otros medios.
2. Si el embarazo es consecuencia de una
violacin en una mujer que padezca de

CRIMES AGAINST FREEDOM RIGHTS

SECTION I
Crimes against the inviolable right to life
Article 147.- Abortion with death.- When the
methods employed for a womans abortion
result in her death, the person responsible shall
be punished with imprisonment for seven to ten
years - if the abortion was consented. If the
abortion was not consented, it will be punished
with imprisonment from thirteen to sixteen
years.
Article 148.- Not consented abortion.- The
person who performs an abortion on a woman
without contentment, shall be punished with
imprisonment for a term of five to seven years.
If the methods employed werent sacksful, the
person will be sanctioned with tentative murder.
Article 149.- Consented abortion.- The person
who performs an abortion on a woman who has
consented to it, shall be punished with
imprisonment from one to three years.
The women that self-performs an abortion or
that allows another to perform it shall be
punished with imprisonment for six months to
two years.
Article 150.- Non-punishable abortion.abortion carried out by a physician or another
trained health professional, with the consent of
the woman or her spouse, partner, family
members or legal representative - when she is
not able to do so- shall not be punished in the
following cases:
1. If it has been performed to avoid danger to
the life or health of the pregnant woman and if
this danger cannot be avoided by other means.
2. If the pregnancy is the result of rape on a
woman suffering from mental disabilities.