Brazil: Submission to the UN Committee on the Rights of the Child

We write in advance of the 98th pre-session of the Committee on the Rights of the Child and its review of Brazil. This submission focuses on access to abortion services; the right to education, including comprehensive sexuality education, government-endorsed online learning, and the protection of education from attack; the rights of children with disabilities; and treatment of children in conflict with the law.

Access to Abortion Services (articles 6 and 24)

Abortion in Brazil is criminalized except in cases of rape, risk to the pregnant person's life, and, following a 2012 Supreme Court ruling, cases of anencephaly.[1] People who want to access legal abortion require approval from a doctor and a multidisciplinary team. Girls, women, and pregnant people who have abortions through other means face up to three years in prison. People convicted of performing illegal abortions face up to four years in prison.[2]

Limited access to abortion disproportionately affects the well-being of adolescent girls. Research from the Pan American Health Organization reveals that complications arising from pregnancy and childbirth rank as the second leading cause of death worldwide among girls aged 15 to 19.[3] The United Nations Population Fund (UNFPA) underscores that pregnancies impose significant physical, emotional, and socio-economic risks on girls, with the severity of these risks escalating with higher legal, social, and economic barriers to abortion access.[4]

According to the Brazilian Public Security Forum, there were 74,930 registered cases of rape in 2022, with over 60 percent of the survivors being under 14 years old.[5] Even though survivors of rape who become pregnant are entitled to legal abortion, it can be nearly impossible to access. According to the Brazilian Health Ministry there were 14,265 births in girls aged 14 and under in 2022.[6]

In 2015, the Committee on the Rights of the Child expressed concern about the high rates of pregnancy in Brazil, particularly among girls aged 10 to 14 years who are in low socio-economic situations. The Committee also called on Brazil to decriminalize abortion “in all circumstances” to ensure access to safe abortion practices and post abortion care.[7]

In September 2023, the Brazilian Supreme Court began voting on a lawsuit regarding the decriminalization of abortion up to 12 weeks of gestation.[8] Then-Chief Justice Rosa Weber, who was nearing retirement, voted in favor of decriminalization. However, the hearing was promptly adjourned following her vote, postponing further discussion to an unspecified date. This continued delay has impeded efforts to bring Brazilian legislation in line with international human rights norms, hindering girls’ rights to access legal and safe abortions. 

Human Rights Watch recommends that the Committee ask the government of Brazil:

• What steps is the government taking to reduce morbidity and mortality due to unsafe abortion?
• What steps is the government taking to combat stigma around abortion?

Human Rights Watch recommends that the Committee call on the government of Brazil to:

• Decriminalize abortion and ensure it is safe, legal, and accessible for girls and pregnant adolescents.
• Ensure access to post-abortion care without discrimination, mistreatment, or fear of prosecution, including in cases of self-managed abortion.
• Provide comprehensive sexuality education in all schools, including a focus on destigmatizing abortion.

Right to Education (articles 2, 3, 16, 17, 24, 28, and 29)

Comprehensive sexuality education

Lawmakers and other public officials at the federal, state, and municipal levels in Brazil have used pernicious legal and political tactics to undermine and even prohibit gender and sexuality education. Human Rights Watch analyzed 217 bills and laws presented between 2014 and 2022 designed to explicitly forbid the teaching or sharing of gender and sexuality education, or ban so-called “gender ideology” or “indoctrination” in municipal and state schools.[9] We also documented a political effort to discredit and restrict gender and sexuality education, bolstered by the administration of former President Jair Bolsonaro, who personally amplified this message for political effect. While the administration of President Luiz Inácio Lula da Silva has changed tack, such political efforts still occur in the federal legislature, as well as at state and municipal levels.[10]

Human Rights Watch interviewed 56 public school teachers, education experts, representatives of state departments of education, and civil society organizations. Interviews with 32 public school teachers from 8 states in Brazil revealed that they were hesitant or fearful to address gender and sexuality in the classroom due to the legal and political efforts to discredit such material. Teachers said they were harassed for addressing gender and sexuality, including by elected officials and community members. Some teachers faced administrative proceedings for covering such material, while others were summoned to provide statements to the police and other officials.

In 2018 and 2022, 80 education and human rights organizations published and updated a manual to protect teachers against censorship in the classroom.[11]

Human Rights Watch recommends the Committee ask the government of Brazil:

• What steps is the government taking to ensure that school administrators, teachers, and other school staff understand and feel supported in teaching and holding activities aimed to expand knowledge on comprehensive sexuality education (CSE)?
• What steps is the government taking to compile and evaluate data on teachers and other educational staff suffering harassment for addressing comprehensive sexuality education in the classroom?

Human Rights Watch recommends the Committee call on the government of Brazil to:

• Continue to promote age-appropriate CSE, including by expanding programs like the Health in Schools Program (Programa Saúde na Escola, PSE), so that all children in Brazil have access to CSE. Such policies should explicitly address safe and informed practices when it comes to sexual development, relationships, and safer sex; increase awareness to prevent intolerance, gender-based violence, gender inequality, sexually transmitted infections, and unintended pregnancies; and affirm sexual and gender diversity. Those policies should be developed in consultation with education experts and young people.
• Urge federal and state lawmakers, city council members, and public officials to stop politicizing gender and sexuality education, including by repealing or withdrawing any laws or pending bills that aim to ban “gender ideology,” censor the terms “gender” or “sexual orientation,” or otherwise infringe upon the right of students to comprehensive sexuality education.
• Compile and evaluate data on teachers facing harassment for teaching CSE, including those facing spurious allegations of “indoctrination,” promotion of “gender ideology,” or discussion of gender, gender identity, or sexual orientation in schools. Such compilation could be done in part through Brazil’s national hotline Dial 100 (Disque 100), which could help with evaluating the number of complaints filed, the accusations made, the subject the teacher was teaching, the age of the students, and other contextual information about the incident.

Government-endorsed online learning

In April 2023, Human Rights Watch found that educational websites directed at Brazilian students, including two created by state education secretariats, from São Paulo and Minas Gerais, surveilled children online and harvested their personal data.[12] Seven educational websites extracted and sent children’s data to third-party companies, using tracking technologies designed for advertising.[13]

The Minas Gerais and São Paulo education secretariats originally authorized these websites for children’s use during Covid-19 school closures, without having checked whether they were safe for children to use. During this time, it was impossible for many children to opt out of such surveillance without giving up on formal learning altogether. After schools reopened, the government’s dissemination of these websites paved the way to their continued use by students and schools today.

Human Rights Watch found that five websites deployed particularly intrusive tracking techniques to invisibly surveil children in ways that were impossible to avoid or protect against. One such technique is session recording, which allows a third party to secretly watch and record a user’s behavior on a webpage, or the digital equivalent of logging video surveillance each time a child scratches their nose or grasps their pencil in class. Typically, the third party would then scrutinize the data on behalf of the website to guess a user’s personality, their preferences, and what they are likely to do next.

From 2021 to 2023, educational websites owned and operated by the education secretariats of Minas Gerais and São Paulo sent children’s personal data to advertising technology companies.

Seven websites harvested vast amounts of children’s data and sent it to companies that specialize in behavioral advertising, which entails analyzing a child’s data to predict what the child might do next, or how they might be influenced. Advertisers might use these insights to target the child with personalized content and ads that follow them across the internet. Four of these websites tracked children more intensely than the average adult browsing the internet.

Profiling, targeting, and advertising to children in this way impermissibly infringes on their privacy, as it is neither proportionate nor necessary for these websites to function or deliver educational content. It also risks violating other rights if this information is used to guide them toward outcomes that are harmful or not in their best interest.

In response to the investigation, the education secretariat of Minas Gerais removed all ad tracking from its website. At least two companies took steps to shield children from its data surveillance.[14] These are welcome developments and demonstrate that online providers can deliver educational services to children in ways that do not compromise their data and privacy.

However, Brazil’s children should not face state-by-state variation in protection and cannot rely on individual providers to do better. Brazil’s data protection law—the Lei Geral de Proteção de Dados Pessoais—does not provide sufficient protections for children, as written. It does not explicitly prohibit actors from exploiting children’s information or require them to provide high levels of safety and security for children.

Human Rights Watch recommends that the Committee:

• Call on the government of Brazil to require the EdTech companies identified in Human Rights Watch’s investigation to identify and immediately delete any children’s data collected during or since the pandemic, to prevent the further processing of this data for commercial or other purposes unrelated to providing education.
• Call on the National Authority Data Protection (ANPD) to consider proactive, realistic steps to protect children’s and adolescents’ data privacy, taking action to identify specific instances of data processing that are never in a child’s best interest.
• Call on the government to ensure that education websites just collect and process data that is strictly necessary to deliver education. Brazil does have established case law and Supreme Court rulings protecting children’s rights in educational settings, which the ANPD can build upon for online education.
• Call on the government of Brazil to amend the data protection law to establish comprehensive child data protection rules, including bans on behavioral advertising and the use of intrusive tracking techniques on children. These rules should also require all actors offering online services to children—including online learning— to provide the highest levels of protection for children’s data and their privacy.

Protection of education from attack

The Safe Schools Declaration[15] is an inter-governmental political commitment that provides countries the opportunity to express political support for the protection of students, teachers, and schools during times of armed conflict; the importance of the continuation of education during armed conflict; and the implementation of the Guidelines for Protecting Schools and Universities from Military Use during Armed Conflict.[16] Brazil endorsed the declaration in May 2015.[17]

Human Rights Watch recommends that the Committee:

• Ask the government of Brazil whether explicit protections for schools from military use are included in Brazilian laws, policies, or trainings, including pre-deployment training of peacekeeping troops.
• Congratulate Brazil for endorsing the Safe Schools Declaration; and recommend that the government incorporate the declaration’s commitments in domestic policy, military operational frameworks, legislation, and pre-deployment trainings, and encourage other regional states to endorse the declaration.

Support for strengthening the right to free pre-primary and secondary education

In June 2023, Brazil joined a joint statement[18] co-led by Luxembourg and the Dominican Republic and delivered during the interactive dialogue with the Special Rapporteur on the right to education at the UN Human Rights Council. Joined by 70 other countries, the statement expressed support for “efforts to strengthen the right to education, including the explicit right to full free secondary and at least one year of free pre-primary education.”

Brazil also separately invited “all states to consider a new international legal instrument to formally recognize the right of every child to at least one year of preschool and to free inclusive public and quality secondary education.”[19]

Human Rights Watch encourages the Committee to:

• Welcome Brazil’s spirit of international cooperation in support of strengthening the right to education, including an explicit right to full free secondary education for all children and at least one year of free pre-primary education.
• Encourage Brazil to share good practices in domestic legislation providing free pre-primary and free secondary education with other countries at the global level.

Rights of Children with Disabilities (articles 2, 18, 19, 20, 23, and 26)

Thousands of children with different types of disabilities are still institutionalized, sometimes for life, in residential institutions of different types, including orphanages. Staff sometimes restrain children to chairs or beds.[20] The Brazilian government provides insufficient support for families to raise children with disabilities at home, which results in a reliance on institutionalization.[21] Brazilian legislation provides that only in exceptional situations and for the shortest possible time can a child be sent to an institution.[22] Research conducted by Human Rights Watch has found that some children spend their entire lives in institutions due to a lack of alternative policies.[23] Foster family programs that exist in some regions of Brazil are not designed to be inclusive of children with disabilities, often leaving them excluded and without the option of accessing this alternative form of care.

Likewise, the right to education of children living in institutions is compromised due to a lack of a robust policy for their inclusion.[24] Often, the education of children with disabilities depends on the beliefs of the staff managing these special institutions, so that based on considerations regarding the “severity of the disability,” they are excluded from any educational program. This is especially concerning for individuals who have high support requirements, such as children who are deaf, deaf-blind, or with autism.

Human Rights Watch recommends that the Committee call on the government of Brazil to:

• Initiate a programmatic plan for the deinstitutionalization of children so that progressively all have the possibility of living in the community under the same conditions as other children.
• Establish policies at the national and state levels to strengthen alternative programs for the upbringing of girls, boys, and adolescents, specifically those on foster families, to include children with disabilities.
• While the deinstitutionalization plan is being implemented, establish emergency programs to ensure that children living in institutions have access to a high-quality system of inclusive education.

Children in Conflict with the Law (article 37)

Brazil’s national juvenile justice law is found in the Statute of the Child and the Adolescent.[25] Under the statute, youths aged twelve through seventeen, whom it terms “adolescents,” are charged under Brazil’s juvenile justice law—though youths may be held in juvenile detention centers up to the age of twenty-one.[26] Children under the age of twelve are not criminally responsible.

Youths may be sentenced to any of six “socioeducational measures”[27]: warning, reparations, community service, probation (liberdade assistida), semiliberty (youth sleep in a facility but can leave during the day and on weekends), and confinement in a detention center (internação). The latter should be imposed only when individually warranted, in exceptional circumstances, and for the shortest possible time, according to the law.[28]

The number of children 12 to 17 years old and youth 18 to 21 years old in youth detention went up in absolute terms between 1996 and 2015, reaching 26,800 in 2015 according to available data. Since then, it has decreased to about 11,600 in June 2023—the lowest figure since 2004.[29]

The data was collected by the Brazilian Forum of Public Security (FBSP), a non-profit organization that compiles official data at the state level.[30] The federal government published an annual report on youth detention some years but did not do so from 2018 through 2022.[31] In 2023, the Lula administration resumed its publication.

Despite the progress, about 10 percent of the youth in detention (1,091 people) were out of school in June 2023, in violation of their right to education.[32] And those who have access to education may encounter important obstacles, such as dilapidated classrooms and a number of class hours that is lower than the minimum required by law.[33] In addition, the National Mechanism for the Prevention and Combat of Torture and other bodies monitoring the conditions in youth detention units routinely report other serious problems, ranging from poor infrastructure and unhealthy conditions to the use of less lethal weapons as disciplinary measures and ill-treatment (including torture) by staff.[34]

In Ceará state, for instance, 78 percent of the detention units do not have adequate infrastructure, according to local non-profit organizations.[35] The National Mechanism for the Prevention and Combat of Torture reported that youths in a detention center in Joinville, Santa Catarina state, had their hands and legs handcuffed together and then were beaten, a practice that the Mechanism considered a form of torture.[36]

Human Rights Watch recommends that the Committee call on the government of Brazil to:

• Ensure that conditions of confinement for youth meet all of the requirements of health, safety, access to education and training, and human dignity in compliance with Brazilian law and international standards.
• Seek alternatives to detention tailored to the needs and circumstances of children in conflict with the law and develop adequate systems of support and supervision.
• Continue to publish annual reports containing data on youth held in detention and access to services.
• Ensure all Brazilian states create or implement state Mechanisms for the Prevention and Combat of Torture.