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A 2007 Reproductive Health Matters.

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Reproductive Health Matters 2007;15(29):208–214
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Law and Policy

The Mexican Supreme Court and abortion tion and adopted a compromise position that
In August 2000, under the lead of the Demo- satisfied all parties in at least some important
cratic Revolutionary Party (PRD), the Legislative respect. The issue was moved from the legis-
Assembly of Mexico City reformed the Penal lative arena, where it was an explosive matter,
Code and related procedures to admit new forms to the (apparently) neutral confines of a judicial
of legal abortion and to create a procedure for body. This understanding of the Court’s role may
the provision of legal abortion following rape. The explain the paradoxical reactions to the Court’s
reformed law provided that a pregnant woman decision. On the one hand, more than 20 NGOs
must decide to terminate her pregnancy in a ‘‘free, who advocated for reproductive and abortion
informed and responsible’’ way, the same terms rights in Mexico celebrated the affirmed consti-
used in the formula of the right to reproduction tutionality of the reforms, which were suffi-
under the national Constitution. The amendments cient to ensure real change in the Federal District
were the most progressive adopted to date, and and to develop procedures to ensure women’s
established for the first time, a relationship between access to abortion following rape. More impor-
the Penal Code and the Constitutional right to tantly, the constitutionality of the reforms con-
reproduction. In September 2000, the National firmed that other local legislatures could adopt
Action Party (PAN) called for the National Supreme similar reforms.
Court of Justice to rule on the constitutionality Yet PAN and Catholic church leaders applauded
of the reforms. In January 2002, the Court issued the Court’s acceptance of the right to life of the
its declaration (the first decision on abortion in products of conception, and its recognition that
the Court’s history) upholding the constitution- abortion is still to be understood as criminal in
ality of the reforms. nature. It is unclear whether either party under-
On 14 February 2002, the Court affirmed that stood the authentic meaning of the decision, which
the Mexican Constitution protects the right to was exclusively juridical. Nevertheless, this author
life of the products of conception,e.g. that mater- thinks it is clear that the Mexican Court sought
nity protection in the field of labour rights is to eliminate, once and for all, the possibility of
intended to protect that life; and that some inter- a right to legal abortion, and the political con-
national treaties, as well as the penal and civil sequences of such a rights-based construction.1
codes of Mexican states and the Federal District,
grant the same protection. The Court resolved the 1. Prof Eduardo Barraza. For a detailed version of this
seeming contradiction between the Constitutional paper, please contact him at: beduardo.barraza@
protection of the right to life of the products of utoronto.caN.
conception and the legality of abortion. It rea-
soned that the exceptions to the illegality of
abortion under the Penal Code (fetal impair-
ment, woman’s health) do not change the fact STOP PRESS: New abortion law in
that in the law the criminal nature of abortion Mexico City
survives and is considered as a crime, but the Mexico City passed a new abortion law on
State ‘‘refuses to apply the penalty’’ for political or 24 April 2007 by 46–19 votes that permits
social reasons. abortion on request in the first 12 weeks
In Mexico, as in other countries, the Supreme of pregnancy.
Court sought to de-politicise the issue of abor-

Round Up: Law and Policy / Reproductive Health Matters 2007;15(29):208–214

Confidentiality owed to adolescents: in this case. On the contrary, the Court recog-
UK case law nised that a failure to guarantee confidentiality
In the 2006 UK court case Axon v. Secretary of would likely deter young persons from seeking
State1,2 the high court judge affirmed health pro- advice or treatment on sexual matters. It is
fessionals’ obligation to protect the confidential- good practice for health professionals to seek
ity of patients under the age of 16 in relation to to persuade an adolescent who is competent to
advice and/or treatment on contraception, sex- consent to treatment to inform his or her parents
ually transmitted infections (STIs) and abortion. or to allow the health professional to do so,
In 2004, the UK Department of Health issued but disclosure is permissible only in exceptional
Best Practice Guidance for Doctors and other circumstances. Strong public policy reasons mili-
Health Professionals on the Provision of Advice tated against parental disclosure. The decision
and Treatment to Young People under 16 on Con- was not appealed.
traception, Sexual and Reproductive Health.3 This
provided minors with the same right to confi- 1. R (Axon) v. Secretary of State for Health & Another
dentiality as those over 16. The guidance was [2006]. EWHC 37 (Admin).
challenged by Sue Axon, a mother of two, who 2. Full judgment: bwww.bailii.org/ew/cases/EWHC/
claimed that confidentiality between minors and Admin/2006/37.htmlN.
health professionals jeopardised a parent’s ability 3. 2004 Best Practice Guidance at: bwww.dh.gov.uk/
to fulfil their responsibility to their children and assetRoot/04/08/69/14/04086914.pdf N.
fails to give ‘‘practical and effective protection’’
to their right to respect to family life under Arti- Women compensated for cost of private
cle 8(1) of the European Convention on Human abortions in Quebec, Canada
Rights. While accepting the importance of family
life, the Court dismissed Axon’s claim and rea- A court in Quebec has ruled that 45,000 women
soned that a logical relationship exists between should be reimbursed for money they spent
the legal capacity of a minor to consent to medi- paying for abortion services at private clinics.
cal treatment and his or her right to do so in pri- Under the Quebec Health Insurance Act the gov-
vacy. Even if Article 8(1) was infringed, the Court ernment is responsible for funding abortion, but
held that ensuring adolescents’ access to repro- chose to ignore the fact that women were turn-
ductive and sexual health care justifies interfer- ing to private clinics because the public system
ence with parents’ right to respect for family life. could not provide sufficient services. The class
The Court held that providing only a limited duty action on behalf of the women was brought by
of confidentiality would contradict a previous the Association for Access to Abortion.1 Women
ruling – Gillick v. West Norfolk and Wisbech are now guaranteed abortions free of charge in
Area Health Authority [1985]. In that ruling a Quebec following the passage of an amendment
majority of the House of Lords held that health to the province’s law guaranteeing free access
professionals can lawfully provide contraceptive to health services. The amendment proposed by
advice and/or treatment to a girl under the age of the Minister for Health Philippe Couillard ensures
16 without parental consent provided she under- that women requesting an abortion at a women’s
stands fully the nature and implications of the health clinic or public hospital will either be pro-
advice and proposed treatment. In addition, the vided the abortion there or if that is not possible
Court ruled that a duty of parental disclosure is within the legal time limit, the procedure will be
inconsistent with ‘‘the keener appreciation of the paid for in a private clinic.2
autonomy of the child and the child’s conse-
quential right to participate in decision-making 1. Ann Carroll A, Dougherty K. Province to refund
processes that fundamentally affect his family abortions. The Gazette (Canada). 19 August 2006.
life’’ evidenced in the European Convention on 2. At: bwww.cybersolidaires.typepad.comN.
Human Rights and the Convention on the Rights
of the Child. Human rights law supports a high
duty of confidentiality to competent young per- Fetal pain: a review of the evidence, UK
sons which should not be overridden except for In a review of evidence on fetal pain, the writer
very powerful reasons. No such reasons applied finds that the existing evidence is scientifically

Round Up: Law and Policy / Reproductive Health Matters 2007;15(29):208–214

unsound and and that it is inaccurate to claim of morbidity and mortality they cause globally.
that fetuses can feel pain. Legal or clinical man- Effective tests and treatments are often unavail-
dates for the prevention of such pain during able to individuals in resource-poor settings.
abortion procedures would expose women to The writers have reviewed current literature on
unnecessary interventions, risks and distress.1 the epidiomiology of STIs, and on the effective-
ness of interventions to control STIs, screening
and partner notification. They find that a public
1. Derbyshire SWG. British Medical Journal
health approach which addresses the impact of
STIs on networks and communities, not just
individuals, can be effective. Better evidence needs
Abortion ban passed; first pregnant to be available to policymakers on prevalence,
woman dies, Nicaragua cause, antimicrobial resistance patterns, the nat-
The Nicaraguan Parliament passed a law ban- ural history of STIs, how infections are trans-
ning all abortions, including those to save the mitted through sexual networks and the relative
woman’s life. The bill allows for jail sentences of benefits of proactive and opportunistic screening
6–30 years for women and providers who termi- programmes. Concerted advocacy and strong
nate their pregnancies. It has been condemned leadership with evidence-based arguments on the
by human rights and medical organisations, with cost-effectiveness of combating STIs will help to
obstetricians and gynaecologists expressing fear overcome cultural and political resistance to
of treating women presenting with vaginal bleed- adopting and implementing public health poli-
ing in case of prosecution.1 Even before the bill cies aimed at tackling STIs.1
was signed into law, the first pregnant woman
had died in Nicaragua. She presented at a hospital
1. Low N, Broutet N, Adu-Sarkodie Y, et al. Global
with a high fever and a five-month pregnancy, control of sexually transmitted infections. Lancet
but because of the new law and the lack of ultra- 2006;368:2001–16.
sound the doctors were afraid to treat her. A team
is investigating whether a therapeutic abortion
would have saved her life. The Ministry of Health, Family planning: an urgent global priority
doctors’ associations and hospitals are now work- The international agenda on family planning
ing together to track and investigate each case urgently needs to be revitalised. Family plan-
that arises, in order to assess the impact of the ning with its potential to bring enormous
law on maternal morbidity and mortality. Mean- benefits including reductions in poverty, child
while, activists in Mexico and Costa Rica demon- and maternal mortality, empowerment of
strated in front of the Nicaraguan embassies in women and increasing environmental sustain-
their capitals and handed in letters of protest. A ability needs to become more of an international
constitutional challenge is likely to be made to the development priority. Currently human and
law, ultimately appealing to an international financial resources that would have been allo-
human rights court.2 cated to family planning are being diverted to
HIV/AIDS, even in areas, like Ghana, where the
risk of death from unsafe abortion is greater
1. Guardian (UK). 27 October 2006.
2. Ipas. 10 November 2006.
than the risk of dying of AIDS. There is plenty of
evidence for successful family planning models
and Asian and Latin American countries have
Global control of sexually made some progress in providing family plan-
transmitted infections ning and reducing fertility, though some poor
Health policy and practice needs to prioritise populations are still under-served. However,
effective control of sexually transmitted infec- there is still a great unmet need for family
tions (STIs) alongside HIV, according to the authors planning and a high fertility rate in many
of this article in this special Sexual and Repro- African countries, which have family planning
ductive Health series. Combating HIV is now policies in place but lack support from develop-
a Millennium Development Goal, but STIs get ment agencies to implement them. Advocacy is
little attention or funding despite the high levels needed to address cultural resistance to smaller

Round Up: Law and Policy / Reproductive Health Matters 2007;15(29):208–214

families and to modern contraceptive methods allows a judge to waive penalties under certain
and to provide reassurance that reproductive circumstances, for example, due to economic dis-
rights are consistent with pro-active family tress or for reasons of ‘‘honour’’ and 3) situa-
planning policies.1 tions where legal permission for termination of
pregnancy may be controversial, as well as situ-
ations of ethical and medico-legal dilemmas. The
1. Cleland J, Bernstein S, Ezeh A, et al. Family planning:
the unfinished agenda. Lancet 2006;368:1810–27.
guidelines also outline both general and specific
interventions in cases where pregnancy termi-
nation is medically and legally indicated. Their
Legal abortion for mental health indications harm reduction strategy is based on three pillars:
Where legal systems allow therapeutic abortion addressing the public health problem of unsafe
to preserve women’s mental health, abortion pro- abortion, respecting the legal status of abortion
viders often lack access to mental health profes- and protecting doctor–patient confidentiality.
sionals for making diagnoses regarding mental Likewise, they call respect for the woman’s right
health effects of unwanted pregnancy in par- to make her own decisions and to receive accurate
ticular cases. Practitioners themselves must then and relevant information on which to base those
make clinical assessments of the impact on their decisions. Endorsed by the School of Medicine of
patients of continued pregnancy or childcare. The the University of the Republic and by the country’s
law requires only that practitioners make assess- major medical societies, the protocol is increasing
ments in good faith, and by credible criteria. women’s access to quality counselling and treat-
Mental disorder includes psychological distress ment appropriate to their individual circumstances.1
or mental suffering due to unwanted pregnancy
and responsibility for childcare or, for instance,
1. Pautas para la práctica institucional del aborto por
anticipated serious fetal impairment. Account indicación médico-legal. Revista Médica del Uruguay
should be taken of factors that make patients 2006;May. At: bwww.rmu.org.uy/revista/2006v2/
vulnerable to distress, such as personal or family art11.pdf N.
mental health history, loss of personal relationships,
poor education and marginal social status. Charac-
teristics such as poverty and lack of social support Guidance on providing legal abortion
may act as both precipitating and maintaining in Peru
factors of negative effects on mental health.1 In 2005, a 17-year old girl in Lima, Peru, was
14 weeks pregnant when ultrasound diagnosed an
anencephalic fetus. An obstetrician-gynecologist
1. Cook RJ, Ortega-Ortiz A, Romans S, et al. Legal abortion
found danger to the girl’s life and, with the sup-
for mental health indications. International Journal of
Gynecology and Obstetrics 2006;95:185–90.
port of her mother, recommended abortion. A
psychiatrist also found danger to the girl’s mental
health from continuation of the pregnancy. The law
Guidelines for providing abortion for in Peru permits abortion on evidence of danger
medico-legal indications in Uruguay to a woman’s life or continuing mental health.
In 2004, Uruguay’s Ministry of Public Health Nevertheless, the director of the hospital, with sup-
issued Ordinance 369/04 to adopt a health care port of the national Ministry of Health, refused
protocol developed by Iniciativas Sanitarias approval. The girl was compelled to deliver the
contra el aborto provocado en condiciones de child, and to breast feed it for four days before it
riesgo (Health Initiatives against Unsafe Abor- died, leaving the young girl with severe depres-
tion) as an official national standard, with the sion. The Human Rights Committee, in proceed-
objective of reducing mortality and morbidity ings the government of Peru did not defend,
from unsafe abortion. Within the constraints of found Peru responsible for multiple violations of
Uruguayan law, which since 1938 has criminalised the UN International Covenant on Civil and Polit-
abortion, there are three types of medico-legal ical Rights as regards cruel, inhuman or degrading
indications for abortion: 1) to save the woman’s treatment, and arbitrary or unlawful interference
life, to preserve her health and when the preg- with a person’s privacy arising from the denial
nancy is the result of rape, 2) conditions which of access to a lawful, therapeutic abortion, as well

Round Up: Law and Policy / Reproductive Health Matters 2007;15(29):208–214

as denial of health protection required for minors. of the Peruvian Constitution, which states that
The Human Rights Committee required Peru every individual has the right to professional con-
to provide the girl with a remedy, including fidentiality. The study highlights the conflict of
compensation, and to adopt measures to prevent rights and duties as represented in these two legal
future violations, including publishing clear regu- instruments: the duty to collaborate with law
lations specifying women’s rights to lawful abor- enforcement authorities vs. the right of provider–
tion and ensuring means of effective access to patient confidentiality. The authors call on the
medical services.1 Peruvian government to amend Article 30 to pro-
The Instituto Nacional Materno Perinatal tect professional confidentiality, and hence the
(National Maternal-Perinatal Institute) in Lima lives and futures of women who seek treatment
has just published such guidance for legal abor- for unsafe abortion complications.3
tion services, which could become the normative
guidance for the rest of the country. This report
1. Cook RJ, Dickens B, Erdman J. Emergency
summarises some of the main clauses of the guid- contraception, abortion and evidence-based law.
ance. It states that although the General Health International Journal of Obstetrics and Gynecology
Law does not contain regulations on the process of 2006;93:191–97.
obtaining an abortion, a woman’s rights as a user 2. Instituto Nacional Materno Perinatal. Protocolo de
of health services take precedent. In accordance Atención del Aborto Legal. Lima, 2007. Report by
with Article 12 of that law, religious or conscien- Susana Chávez, PROMSEX, 7 February 2007.
tious objection may not be invoked to deny an 3. Kresalja B. Arto.30, Ley No.26842. La República.
abortion; rather, a referral or replacement provider 1 March 2007. Summarised by Susana Chávez.
must be arranged within 48 hours. As regards con-
sent issues, a woman is entitled to decide whether Promoting motherhood in Estonia
to have an abortion that is deemed legal, as her
own life and health may be at risk. In the case Estonia has a low fertility rate and one of the
of adolescents, in line with already established world’s fastest ageing populations. Financial incen-
guidance on adolescent health, parental or legal tives provided by the Estonian government to
guardians’ authorisation is needed if the girl is boost the fertility rate have achieved an increase
under age 16, but girls aged 16-18 and teenager from 1.3 to 1.5 since 2004. The government has
mothers under age 16 may take their own deci- paid women’s salaries for up to 15 months after
sion. Lastly, if abortion is the only means to save delivery and provided grants to those not pre-
the woman’s life or to avoid morbidity, this is viously in work. The aim is to increase the birth
enough to provide access to an abortion. It is rate to two births per woman in order to maintain
not necessary that death is an imminent danger, the current population. They are considering fur-
it is enough that a threat to the woman’s health ther measures, such as pre-abortion counselling,
is present.2 aimed at deterring women choosing abortion.1
A recent study sponsored by PROMSEX and the
Peruvian Society of Obstetrics and Gynecology 1. Women are paid for giving birth. Astra Bulletin
considered the legality of Article 30 of Peru’s Ley 2006;10(4).
General de Salud No.26842 (General Health Law),
which requires physicians to report to the appro-
priate authorities cases where there are indications Oocyte donation, ethical issues
that an illegal abortion has taken place. As a result An increase in oocyte donation from poorer to
of this regulation, physicians often refuse to treat more affluent countries creates a number of ethical
women who arrive at emergency rooms or private issues. Transnational oocyte donation can result
clinics, even with life-threatening complications in cost savings, shorten waiting lists and solve
from unsafe abortions. Conversely, providers who the shortage of donor eggs in Western countries.
do opt to treat a woman may be left feeling guilty However, there is concern that donors in less afflu-
that they are disobeying the law. What most women ent countries (especially students) may be ‘‘willing’’
and physicians do not know is that by treating but might be motivated into donating oocytes
the woman and not reporting her, physicians in exchange for financial reward. Over-exposure
would be complying with Article 2, Paragraph 18 to the super-ovulatory drugs necessary to har-

Round Up: Law and Policy / Reproductive Health Matters 2007;15(29):208–214

vest oocytes can have adverse effects. Normally prohibitions and licences. The writers give exam-
a recipient’s physician has some responsibility ples of this approach in Australian law. Combining
for the health of the donor, but in the case of this approach with one in which all the different
transnational donation responsibility is abdicated parts of the developmental process are united in a
to the donor’s physician. It is also not clear single concept – as in the case of the UK’s Human
which physician would be responsible for a fail- Fertilisation and Embryology Authority’s use of
ure in screening, if hereditary or transmitted dis- the term ‘‘human genetic material’’ could bring
eases or congenital defects were to emerge during greater coherence to legislation.1
pregnancy or after delivery. Fees paid to donors
do not reflect high prices charged to recipients,
1. Johnson MH. Escaping the tyranny of the embryo?
resulting in large profits for physicians and clinics. A new approach to ART regulation based on UK
The writers argue for local and international bodies and Australian experiences. Human Reproduction
such as the European Commission, the European 2006;21(11)2756–65.
Society for Human Reproduction and Embry-
ology and the American Society for Reproductive
Medicine to design and implement a coherent Releasing identifying information about
regulatory framework providing for mandatory sperm donors in Australia
counselling and informed consent for donors;
In the context of new legislation permitting
appropriate monetary compensation; health insur-
mature donor offspring to obtain identifying infor-
ance for donors; accountability of physicians to
mation about their donors, research was carried
donor and recipient; and sharing of cost-savings
with oocyte recipients.1 out in Western Australia to assess the opinions of
potential sperm donors, recipients and partners
on issues relating to release of information about
1. Heng BC. Ethical issues in transnational dmail orderT sperm donors. 45 potential donors attending a local
oocyte donation. International Journal of Gynecology fertility centre completed a questionnaire. Ques-
and Obstetrics 2006;95:302–04. tionnaires were also completed by 33 women
undergoing donor insemination or IVF with donor
Regulation of assisted reproductive sperm, and 12 of their partners. 48.9% of donors
technology as regards embryos: UK agreed that children born as a result of sperm
and Australia donation should be informed of the manner of
This exploratory discussion paper looks at the their conception, and a high proportion would con-
possibility of reframing regulation of assisted sider some form of contact with future offspring,
reproduction away from its focus on the embryo. but more than half of potential donors indicated
This could more closely align biological and legal that they would not donate if their identity was
understandings and ensure that the legislation revealed to future offspring. The vast majority of
and regulation of assisted reproductive technolo- recipients and partners plan to inform their off-
gies address the needs of the child-to-be, parents, spring about the manner of their conception and
public and health professionals. The author uses are in favour of providing identifying information
a comparison of Australian and UK legal frame- about the donor.1
works to illustrate the difficulties in legal defi-
nition. Even scientists do not agree on a definition 1. Godman KM, Sanders K, Rosenberg M, et al. Potential
of the embryo, which is one in a series of stages sperm donors’, recipients’ and their partners’ opinions
in a process of continuous development, none of towards the release of identifying information in
which has a definite beginning or ending. Terms Western Australia. Human Reproduction 2006;21:
such as ‘‘embryo‘‘ are also vulnerable to techno- 3022–26.
logical advance and open to legal challenge. An
alternative legal approach could be one which
is not tied to biological terminology, but which Italians seek assisted reproduction
states clearly the desired outcome of a medical procedures abroad
intervention and the requirements for intent to A law passed in Italy in January 2004 restricting
reach such outcome, regulated through a system of assisted reproduction techniques and pre-

Round Up: Law and Policy / Reproductive Health Matters 2007;15(29):208–214

implantation genetic testing has led to a four- ages from the Polish government. She was refused
fold increase in Italians travelling to access an abortion in 2000 despite warnings by three eye
procedures in clinics abroad. Clinics in European specialists that continuing the pregnancy could
countries and the United States report an increase make her go blind. Neither the specialists nor her
in Italian couples requesting treatment from 1,066 GP would authorise an abortion. Ms Tysiac suf-
in 2003 to 4,173 in 2005 according to a report fered a retinal haemorrhage and her eyesight
by the Reproductive Tourism Observatory. Within worsened drastically after she had her third baby,
Italy success rates of treatments in women over and she fears she may go blind. She now wears
40 have fallen due to the limit of three fertilised glasses with thick powerful lenses but she cannot
oocytes while the incidence of triplets in see objects more than five feet away. As a disabled
younger women has risen since the law insists single mother, she struggles to raise her three
that all fertilised embryos must be implanted in children on a meagre state pension. The Strasbourg
the womb.1 court ruled that her human rights had been violated
when she was denied an abortion on therapeutic
grounds, which are legal. The case highlights the
1. Turone F. Italians are forced to go abroad for assisted
reproduction. British Medical Journal At: bbmj.comN.
difficulties Polish women have of obtaining even a
12 December 2006. legal abortion. Polish women’s rights groups
estimate there are only 200 legal abortions per-
formed every year in the current situation.1
Stop Press: Polish woman wins damages at
European Court of Human Rights 1. Easton A. Polish woman wins abortion case. BBC
The European Court of Human Rights has awarded News. 20 March 2007. At: bhttp://news.bbc.co.uk/go/
Alicja Tysiac, age 35, of Poland =
C25,000 in dam- pr/fr/-/2/hi/europe/6470403.stmN.

The Pope’s visit to Poland, May 2006