<<previous  |  index  |  next>>

VI. Obstacles to the Right to Decide in Matters Concerning Abortion

An estimated half a million women undergo illegal and therefore generally unsafe abortion every year in Argentina, representing 40 percent of all pregnancies. ¹⁶¹  Some public officials told Human Rights Watch that, in the public health system in their provinces, for every woman giving birth, approximately one other woman is hospitalized with health complications as a consequence of an illegal abortion.¹⁶²  Unsafe abortions have constituted the leading cause of maternal mortality in the country for decades.¹⁶³  The extraordinarily high proportion of pregnancies ending in abortions bears testimony to women’s lack of access to effective family planning information and services.  This chapter documents the tragic personal consequences of Argentina’s restrictions on women’s human rights in this area. 

Argentina’s penal code stipulates that abortion is a crime in all circumstances, though the penalty may be waived if the life or health of the pregnant woman is in danger or if the pregnancy results from the rape of a mentally disabled woman.  In practice, such “nonpunishable” abortions are rare because there are no clear policies regulating access. 

The criminalization of abortion leads women to take desperate measures, such as attempting to abort with knitting needles, rubber tubes, parsley sprigs, or the use of abortive medicines without adequate medical assistance.  It also enables clandestine abortion “clinics” to operate with little regard for women’s health and lives.  When women hemorrhaging or suffering from life-threatening infections or injuries caused by botched abortions show up at public hospitals, health care personnel sometimes scorn them and deny them treatment.  Doctors performing post-abortion curettage—the highly painful scraping of a woman’s uterus with a sharp instrument—sometimes do so without anesthesia.  Women who fear criminal proceedings are discouraged from seeking necessary post-abortion care, often to the serious detriment of their health.  Some women who have had abortions are sentenced to prison, in a further assault on their human rights.

Failure to Implement the Existing Abortion Law

People have demonized abortion, that’s what has happened.  [They say] that it is the position of the feminists, the communists, the radicals.  This has closed the possibility for serious discussion to the extent that where the penal code allows [for abortion] it is not known.  It is as if it were completely criminalized.
—Head of Maternal-Infant Health at Jujuy Welfare Ministry¹⁶⁴

Argentina’s penal code declares abortion illegal in all circumstances, though the penalties are suspended in two circumstances: 1) where a doctor decides that the pregnant woman’s life or health¹⁶⁵ is in danger and cannot be saved in any other way than by inducing an abortion; and 2) where a mentally disabled and pregnant woman is pregnant as a result of a rape and her guardian or legal representative allows the abortion. ¹⁶⁶  However, there are no national regulations to ensure women’s access to such non-punishable abortions.  In fact, some provincial government officials Human Rights Watch interviewed were not aware that any exceptions existed in the law.¹⁶⁷ 

Confusion and fear about the legal consequences of abortion prevent women from accessing what is their right: a nonpunishable abortion when their health or life is in danger, or when the pregnancy is the result of the rape of a mentally disabled woman.  “There is a lot of fear,” said Juliana Weisburd, coordinator of the National Program on Sexual Health and Responsible Procreation at the Santa Fe Province ministry of health.  Weisburd noted that while the penal code does not require judicial authorization for an abortion, judicial authorization had become a de facto requirement because most doctors would not carry out the procedure without it.¹⁶⁸ 

Walter Barbato, a reproductive health expert with years of public health experience, told Human Rights Watch that it is very difficult for women to access nonpunishable abortion: “It is practically impossible, because the [Penal] Code does not leave you any possibilities, because of the resistance from the doctors, and because they [doctors] are afraid of sanctions.”¹⁶⁹ 

Another reproductive health expert, the head of a maternity ward at a public hospital, told Human Rights Watch that he did not believe that judicial authorization was required to carry out abortions, and therefore never sought it.  Yet he regularly consulted a judge privately to get an informal go-ahead for abortions, more for his own peace of mind than out of legal necessity.¹⁷⁰  Either way, an additional and arbitrary level of approval is added to a woman’s access even to abortions that are not punishable under Argentine law.

In 2000, the U.N. Human Rights Committee expressed concern about Argentina’s restrictive abortion laws:  “the Committee is concerned that the criminalization of abortion deters medical professionals from providing this procedure without judicial order, even when they are permitted to do so by law, inter alia when there are clear health risks for the mother or when pregnancy results from rape of mentally disabled women.”  The Committee recommended that Argentina remove all obstacles to obtaining abortion procedures where not punishable by law.¹⁷¹

Illegal and Unsafe Abortions

I became pregnant again. … I tried to get it out by any possible means.  I even took rat poison.  I hid this [from my husband] because he wanted more children. …  I took the [poison] pills for three months in a row, always at the same time, and always at the time of my period I had a bleeding.  I did everything possible to lift heavy things. … I tried with the parsley sprig, and I made my child walk on top of my stomach [but I did not miscarry]. … That is the worst pregnancy I have had, because on top of this I was very alone, I couldn’t tell my husband any of this.  All the guilt fell on me.  I thought this was God’s punishment.
—Julia Reina, thirty-four years old¹⁷²

As a direct consequence of the criminalization of abortion, women have severely limited access to safe abortions, with harmful and sometimes fatal consequences.¹⁷³  The consequences of unsafe abortions have long been the leading cause of maternal mortality in Argentina, causing 30 percent of maternal deaths.¹⁷⁴  “In twenty years, there has been no progress.  Ever since we have had statistical data for this country [on maternal mortality], the biggest cause of maternal mortality has been abortion,” said Elida Marconi, director of the state office on health information and statistics, during a meeting of reproductive health officials in September 2004.¹⁷⁵

Human Rights Watch interviewed women who underwent abortions in precarious and illegal circumstances to the detriment of their health.  “You get overwhelmed by desperation,” said Paola Méndez, a thirty-six-year-old woman who became pregnant with the first of her ten children at age seventeen. “You seek all the ways out, pills, anything.  But if there is no way out, then you take a knife or a knitting needle.”¹⁷⁶ 

As with access to contraceptives, the quality and therefore the health consequences of illegal abortions seemed to depend on the economic standing of the women.  This situation is not limited to Argentina.  The World Health Organization has warned that poor women and those living in isolated areas worldwide are at particular risk for unsafe abortions performed by unskilled providers when abortion services are legally restricted.¹⁷⁷  The U.N. Human Rights Committee has expressed concern about this situation in Argentina specifically, noting its “concern over discriminatory aspects of the laws and policies in force, which result in disproportionate resort to illegal, unsafe abortions by poor and rural women.”¹⁷⁸  Notwithstanding the relatively safer services in the more expensive clandestine abortion clinics, the illegal nature of these clinics means that their operations escape government regulation and oversight.  Such regulation and oversight are crucial to protect women’s health and lives. 

Methods Commonly Used to Induce Abortion in Argentina

Some women Human Rights Watch interviewed believed they could abort by drinking specific teas or juices, in particular potato or parsley tea.  Julia Reina recalled: “I got pregnant and I did everything humanly possible in order not to have it during the first three months.  I took liquids, potato juice, parsley juice, tea.  I didn’t work up the courage to go to a place [an illegal abortion clinic] and I also didn’t have the money.”¹⁷⁹ 

Other women told Human Rights Watch that they introduced foreign objects into their cervixes, such as rubber tubes, parsley sprigs, knitting needles, or pieces of wood.  “You cannot even imagine what people end up putting into their uterus,” said a community worker from Tucumán Province.¹⁸⁰  This was confirmed by Human Rights Watch’s interviews with medical doctors from public hospitals.¹⁸¹ 

Introduction of a foreign object into the cervix carries a high risk of infection when the object is not sterile.  In physiological terms, the introduction of an object into the cervix generates contractions and sometimes punctures the amniotic sac, which may result in an abortion.¹⁸²  However, self-induced abortions are often incomplete, which further heightens the need for life-saving post-abortion care.  A guide to abortion methods for medical doctors notes:

This Knitting Needle Method is a well known back street method.  It seldom leads to an early abortion so that the treatment has to be repeated several times, increasing largely the complication-rate.  Main complications: infection, blood loss (if the placenta is penetrated), perforation of the uterine wall eventually with bowel damage resulting in peritonitis.  Clostridium infection is particularly dangerous and mostly fatal.¹⁸³

Another popular method in Argentina is for a woman to self-induce abortion by ingesting one or several pills containing misoprostol,¹⁸⁴ with or without medical supervision.  This method in theory carries a lower risk of infection than the “knitting needle method,” though the relative safety requires access to medical services before and after taking the pills.¹⁸⁵  Some doctors Human Rights Watch interviewed said they recommended misoprostol to low-income women seeking abortions, considering that the alternative would be a rubber tube or knitting needle.¹⁸⁶  One doctor told Human Rights Watch that he routinely told women with unwanted pregnancies to use misoprostol in order for them not to use rubber tubes.  Regardless of his personal opinion about abortion, he felt that, as a doctor, he was obligated to tell women how to avoid a deadly infection.  “I can’t stop her from aborting,” he said, “but I can at least tell her what not to do.”¹⁸⁷

Health Consequences

Whether induced by foreign objects or pills, the health consequences of illegal and unsafe abortions can be dire.  Teresa Mariani, twenty-four, experienced this first hand.  Mariani was raped repeatedly by her husband, resulting in five abortions and one full-term pregnancy and birth over four years.  She was only able to pay for an assisted abortion once, otherwise resorting to misoprostol.  She told Human Rights Watch:

The first time, I did it with pills.  I don’t know how I didn’t die. … The second time I was afraid, and I went to a private clinic. … The other three times, with pills. … [The first time] there was a guy who sold the prescriptions, and I went to buy the pills. … Then I had my daughter in 2000. … Then I had an abortion again in 2001, and in 2003 twice in a row, and then again not long ago in 2004. … My husband is sexually violent and he doesn’t let me protect myself. … [The first time] I had my period twenty days in a row, at first normal, then with big clots, and then it stopped. … Then after a month the hemorrhaging begins, and then a bag of blood. … It was a two month pregnancy. … [The next time] I gathered 200 pesos [U.S.$200]¹⁸⁸… The other times I did it with pills. … I ended up hospitalized with a very low blood count. … Also this year with pills, and badly. … I think he did it [wanted to get me pregnant] to tie me down with another child, and I did not want to.¹⁸⁹

The health consequences of an illegal abortion may be both physical and mental.  In addition to the physical health consequences of her abortions, Marisa Rossi, thirty-six, told Human Rights Watch that the illegal and clandestine nature of the procedure made it even harder for her to heal: “[O]n top of the fact that I felt really bad [physically], I had to try to forgive my partner for leaving me alone in this, and forgive myself. … And on top of this, with no psychological help.  You do it, and you have to forget it.”¹⁹⁰  Ana Sánchez, forty-three, had contemplated having an abortion after her sixth unwanted pregnancy, but was too scared of the health consequences.  She noted the strain women who undergo illegal abortions suffer because of the illegality: “The woman [who aborts] is alone, because maybe her boyfriend knows, but with the rubber tube inside her, she still has to cook, she still has to wash the clothes.”¹⁹¹

The ultimate health consequence of illegal abortion is, of course, death.  It happens all too often in Argentina.  Yanina Carlotto accompanied a friend to have an abortion at an  illegal clinic where the friend died under anesthesia.  She recalled:  “Abortion, personally I have not experienced it, but I accompanied a woman who died. ... She went into [the illegal clinic] and she never came out.  They said that it was a problem with the anesthesia.  She died in that very place. ... They said that she died of a heart attack. ... I only went to accompany her, and I stayed outside. ... Legally, it was like nothing had happened.”¹⁹²

Studies from several countries have shown that restrictive abortion laws do not reduce the number of abortions, but only diminish their safety and increase maternal mortality.  In Romania, the number of abortion-related deaths increased drastically after 1966 when the government tightened a previously liberal abortion law.  This number fell again after Romania relaxed its abortion laws in December 1989.¹⁹³  In Guyana, where abortion was legalized in 1995, admissions for septic and incomplete abortions in the capital’s largest maternity hospital declined by 41 percent within six months after the law went into effect. ¹⁹⁴

In fact, restrictive abortion laws may actually increase the number of abortions by denying women access to counseling and services that may reduce repeat abortions.  A community educator in Buenos Aires Province noted that it is only the clandestine clinics that stand to gain from criminalizing abortion: “There is one [I know], they have been doing it [abortions] for thirty years.  They charge 500 pesos [U.S.$168.35] up until three months. … Then up until eight months, they charge 1,000 pesos [U.S.$336.70].”¹⁹⁵

Lack of Medical Accountability

As a direct consequence of the penal code provisions prohibiting abortion in Argentina, there is no regulation or medical ethic guiding the treatment women receive when they pay for an abortion at an illegal abortion clinic.  As a result, while doctors and midwives who practice illegal abortions can be and occasionally are convicted under penal code articles 85-87 for causing a woman to abort,¹⁹⁶ they have no legal responsibility toward the woman if the procedure is badly done.  Such regulation and accountability, which are a necessary part of guaranteeing women’s rights to life and the highest attainable standard of health, are only possible where abortion is not illegal. 

The women Human Rights Watch interviewed said that this lack of regulation and accountability had both physical and mental health implications.  Romina Parma, forty-two, was living with her sexually and physically abusive partner when she got pregnant for the sixth time.  Parma sought out an abortion provider who asked her to choose between an abortion with or without antibiotics—an option that would be unthinkable if abortion were legal:

I wanted to do it.  … She said to me that she had to examine me.  She pushed on my stomach, and she felt the fetus in there, it was very small.  I sat down, and she told me: “It will cost you 250 pesos without antibiotics and 300 pesos with antibiotic [U.S$250 and U.S.$300, respectively].¹⁹⁷

Parma told Human Rights Watch that the illegality and clandestine nature of the procedure made her decide not to have the abortion for fear of the health consequences. 

An acute lack of regulation and “medical” accountability was common to the experience of most women Human Rights Watch interviewed, even those who had managed to pay for an abortion at a more expensive clinic.  Women Human Rights Watch interviewed said that when things went wrong with their abortions, there was nowhere to turn, another reflection of how the clandestine nature of the procedure undermines women’s health.  Marisa Rossi, thirty-six, told Human Rights Watch about her own and her sister’s experience, which she witnessed firsthand:

I had two abortions of two-month pregnancies.  He [my partner] decided [on the abortions], but he didn’t take any responsibility, and I felt very alone.... They don’t do any kind of analysis, on whether or not you are going to be all right or not. [For example, the “clinic” did not check the blood-pressure or carry out other generally accepted medical safeguard before the operation]... They anesthetize you, and they do the curettage¹⁹⁸ directly. ... Afterwards I had problems with my [subsequent pregnancies], I think because of this.  Many problems, above all to retain [the pregnancies].  It was really hard, I was nine months in bed. … My sister went to have one and they did it without anesthesia.  I was there, I heard her scream. … Afterwards I checked out what they had done. … They do a well-done curettage, but she suffered a lot. … And you can’t go there to ask before [what the procedure is].¹⁹⁹

A community educator in Santa Fe Province who accompanied women to abortions for many years said that the illegality of the procedure also prevents the development of any kind of relationship between the doctor and the patient, which can have its own adverse health consequences.  The worker told Human Rights Watch about an illegal clinic members of the grassroots group accompanied women to: “They put us in a van and drove us away from [name of place withheld].  It was like a horror movie. … The doctor did not have any relationship with the patients.  He was a butcher, and that was that.”²⁰⁰

Inadequate or Inhumane Post-Abortion Care

A woman [we work with] went to the hospital in a very bad state with an abortion and she was infected and hemorrhaging.  A doctor started to examine her, and when he started to see her and realized, he threw down his instruments on the floor.  He said: “This is an abortion, you go ahead and die!”
—Social worker, Santa Fe Province²⁰¹

Human Rights Watch interviewed women who avoided necessary post-abortion care to the detriment of their health for fear of being reported to the police.²⁰²  Others received inadequate or even inhumane treatment.  Agustina Silveira, forty-six, explained: “When they [the doctors] see that the women have done something [to abort], they don’t care very much.  They leave them with fever.”²⁰³  As this report was being finalized, the government has started implementing reform that, if effective, could overcome many of the abuses laid out in this subsection.

A community educator working on access to contraception in a low-income neighborhood in Buenos Aires Province told Human Rights Watch that the deterrent effect of the criminalization of abortion can be deadly: “Here, the most common thing [abortion method] is the rubber tube. … It is the most risky because they get infected and they don’t go to the hospital because they are afraid of going to prison. … Some die at home, because they don’t want to go to the doctor. … There should be a poster at every hospital … that says that a woman who has had an abortion can come to the doctor [without fear of prosecution].”²⁰⁴ 

In May 2005, the National Health and Environment Ministry announced the publication of a guide aimed at improving post-abortion care in the public health system.²⁰⁵

Post-Abortion Care without Anesthesia

Some women who overcame their fear of prosecution and sought out post-abortion care in Argentina were subject to inhumane or inadequate treatment, including being subjected to curettage without anesthesia.  “The doctors themselves say that they do it [perform post-abortion curettage] without anesthesia. … We already know this from the health centers,” the director of a public hospital who worked as a consultant to the National Health and Environment Ministry told Human Rights Watch.²⁰⁶  An NGO-directed study on reproductive health care in Santa Fe Province published in 2003 confirmed that some doctors perform post-abortion curettage—a painful procedure—without anesthesia.²⁰⁷ 

A psychologist who worked as a social worker at a public hospital in Tucumán Province told Human Rights Watch that, at her hospital, doctors carried out curettage without anesthesia as a form of vigilantism until very recently, and that she believed they still would do so if she did not act as a watchdog:

A small victory for me was to have achieved that they don’t do the curettage without anesthesia anymore. ... I went to the director and I told them that I knew [that doctors don’t administer anesthesia before performing curettage].  They pretended they were stupid and said: “Really? You don’t say so?” And nothing changed. ... I had to threaten them with the ombudsman. ... Now they administer anesthesia.  Maybe one or two at night slip by me.²⁰⁸

In some cases, government officials and doctors told Human Rights Watch that women were denied anesthesia due to limited resources.  “We don’t give them anesthesia because we have neither personnel nor material for it,” said Luís Robles, head of the maternity program at the health ministry of Formosa Province.²⁰⁹  Stella Carrido, the coordinator of the mother-child health program in Jujuy Province told Human Rights Watch that anesthesia was sometimes replaced by cheaper painkillers because of resource concerns: “Where there is no anesthesia, they put [painkillers] in the IV [intravenous line].”²¹⁰  Carrido noted that the painkillers used were not as effective as anesthesia.

Denial of Post-Abortion Care

Angelica Grimau, thirty-one, told Human Rights Watch that she had personally witnessed doctors at her local public hospital denying medical services to a woman who told her she was hospitalized for post-abortion care: “She was left until the end. … The woman had blood all over, but they just put her in a bed. … They did not treat her.”²¹¹  Julia Reina had a similar experience when she was hospitalized due to an incomplete self-induced abortion.  Reina witnessed a nurse saying to another woman: “You liked killing your child, here you will see how you will suffer.”  Reina continued: “I was lucky. I said that I had come from Buenos Aires by train, and they thought [my condition was due to] a natural interruption of the pregnancy.”²¹²

Several U.N. treaty bodies have expressed concern with the health consequences of illegal abortion, in particular where women are subject to criminal penalties and therefore are discouraged from seeking care.²¹³  In addition, the International Conference on Population and Development (ICPD), held in Cairo in 1994, resulted in a consensus document signed by 179 nations which insisted on the provision of post-abortion care.  The ICPD Programme of Action called upon all governments and intergovernmental and nongovernmental organizations to “deal with the health impact of unsafe abortion as a major public health concern,”²¹⁴ and stated that “[i]n all cases, women should have access to quality services for the management of complications arising from abortion.  Post-abortion counselling, education and family-planning services should be offered promptly, which will also help to avoid repeat abortions.”²¹⁵  Indeed, the U.N. Special Rapporteur on the Highest Attainable Standard of Health emphasized in his report to the U.N. Commission on Human Rights in 2004 that “[i]n all cases, women should have access to quality services for the management of complications arising from abortion.”²¹⁶ 

Excessive Scrutiny of Miscarriages

Human Rights Watch’s research indicated that the criminalization of abortion has contributed to an atmosphere at public hospitals where any “deviant” behavior with regard to childbirth—for example giving birth at home—was treated with suspicion and contempt.  Paula Gómez, thirty-six, said that she was questioned by police after a miscarriage, and later after she had given birth at home instead of the hospital:

I had a miscarriage, it happened by itself.  I was six months pregnant.  … The police came, they did an investigation. …  The midwife came, the doctor came, the police came.  They called my husband and he said no, that any child who came along would be welcome. … Because I hadn’t done anything. … [Later, my] daughter … was born at home. … They came again to investigate, to see if I had done something.  They thought it was an abortion, because she was born at home.²¹⁷

All of the women Human Rights Watch interviewed who had sought care whether after a miscarriage or after an induced abortion faced hostile questioning.  Norma Jiménez, thirty-five, who miscarried, recounted: “They [the doctors at the public hospital] said: ‘Did you put anything [in your uterus]? Did you do anything to yourself? Did you make any efforts? Tell us the truth!’”²¹⁸  Gladis Morello, thirty-two, who miscarried twice because her husband beat her, said she had not been asked about domestic violence or offered any counseling or assistance to help her with that.  Instead, she said, “the first thing they ask you is if you did something [to yourself], if you took something.”²¹⁹

Government Response

The national health ministry has started taking important steps toward addressing many of the abuses women face in the public health system when they seek post-abortion care.  In October 2004, the provincial health ministries signed an agreement with the national health minister, Dr. Ginés González García, laying out some essential steps to lower the maternal mortality in the country including ensuring women access to humane, fast, and effective post-abortion care without discrimination.²²⁰  In May 2005, the national health ministry promised to strengthen this agreement with a publication with technical recommendations for how public health providers can improve post-abortion care.²²¹

The publication provides guidance on a number of issues related to the abuse exposed in this report.  It repeatedly emphasizes the need for the use of general anesthesia where incomplete abortions are treated with curettage,²²² and recommends the less invasive use of manual vacuum aspiration (instead of curettage), medical conditions permitting.²²³  The guide also insists on the protection of doctor-patient confidentiality, and describes in detail what constitutes respectful treatment of women, including talking to them in a quiet and private environment about their choices.²²⁴

The publication of this guide and its distribution in public hospitals and health centers is a necessary and very positive step.  At the same time, Human Rights Watch interviews with medical doctors and heads of maternity wards in public hospitals in several provinces suggest a persistent fear of retribution related to this topic.  “All the heads of maternity wards will receive the guide,” said one head of a maternity ward. “But it is not an order, it is sent like a guide. … Until we have a real mandate to implement it, I would be putting my own neck out there to do it.”²²⁵

If fully and effectively implemented, the post-abortion care model recommended in the guide could overcome many of the abuses women face when they seek medical treatment after incomplete abortions.  Our research suggests that its effectiveness could be enhanced tremendously if backed by a legal mandate, such as a ministerial resolution, requiring the application of the model, or if accompanied by a sustained training program for public health providers.

Obligation to Report Women to the Authorities

Women’s fear of prosecution or of being reported to the authorities if they seek post-abortion care after an illegal abortion is well-founded.  Many doctors believe they have an obligation to report women who come to hospitals for post-abortion care because Argentina’s penal code penalizes anyone who “helps someone to avoid the authorities’ investigations … or who avoids denouncing a fact, where they are obligated to do so.”²²⁶

There is contradictory jurisprudence in Argentina as to whether or not the confidentiality of the doctor-patient relationship is overridden by an obligation, on behalf of the doctor, to inform the authorities of an alleged or suspected crime,²²⁷ but the prevailing belief among doctors and government officials is that doctors are obligated to report women who have had induced abortions to the authorities.  Indeed, an NGO-directed study concludes that a large proportion of doctors seem to believe not only that they are obligated to do so, but that it is the right thing to do.  In a study published in 2001 on the opinions of Argentine doctors regarding contraception and abortion, almost 60 percent of the interviewed doctors thought that they should report a woman with symptoms of a self-induced abortion to the authorities when she presented herself at a hospital for post-abortion care.²²⁸

Even so, according to some doctors and public health experts Human Rights Watch interviewed, doctors do not report women who come for post-abortion care unless the women are in imminent danger of dying, mostly to protect themselves from legal action.  Rodolfo Gómez Ponce de Léon, a medical doctor from Tucumán Province with years of experience in the public health sector told Human Rights Watch:

In the law, it is still like that [we have an obligation to report women]. The health system will obviously seek to ensure that there is no mal-practice or negligence going on, but generally only the serious cases are reported to the police.  Of all the deaths in public hospitals [in Tucumán Province] in 2002 where women had abortions, 90 percent were reported to the police.  I suppose some doctors seek to distance themselves from the problem cases by reporting them to the police.²²⁹

A public official from El Chaco Province Health Ministry agreed with this assessment: “We don’t report those that are not complicated.”²³⁰  In some public hospitals, there is a permanent police guard who records the name and address of any woman who may have had an illegal abortion, though apparently nothing further is done.²³¹

The national health ministry, through its May 2005 guide on the improvement of post-abortion care, has made quite clear that it considers the protection of doctor-patient confidentiality paramount for purposes of public health.²³²  However, the guide does not carry the force of law or ministerial resolution, and therefore does not necessarily overcome the ambiguity of the penal code provisions. 

Sentenced to Prison for Punishable Abortion

Argentina’s penal code provides that a woman’s decision to undergo an abortion is a crime, subject to imprisonment for one to four years, except where the penalty is suspended as provided by law.²³³  Although none of the women Human Rights Watch interviewed had been prosecuted for undergoing an abortion, the government confirmed that a small number of women have indeed been sentenced for this “crime.”²³⁴  In 2002 and 2003, nine women were convicted and sentenced for having had or consented to have an abortion, and four of them were under twenty-one years old.²³⁵  

Though the number of women sent to prison in Argentina for having caused or consented to an abortion has been minimal compared to the estimated number of abortions that are performed,²³⁶ the threat of a prison-sentence for undergoing an abortion is real and was perceived as such by women we interviewed.  Laura Passaglia, thirty-two, told us that she had been a character witness in criminal proceedings against a friend accused of having had an abortion: “A classmate of mine, I had to go declare [in her criminal case], she almost went to jail.”²³⁷ 

The implementation and enforcement of criminal sanctions—whether jail time or fines—against women who undergo illegal and unsafe abortions constitutes yet another assault on women’s human rights, as explained in the chapter on international law below.  Moreover, considering that women are unlikely to be prosecuted for abortion unless they seek medical care, the criminalization of abortion may add considerably to the detrimental health consequences of unsafe abortions by discouraging care.  Angel Bertuzzi, a seventy-two-year-old medical doctor from Rosario who by his own testimony had been performing abortions for forty years, told an Argentine newspaper in March 2005: “No one understands that decriminalization is for the woman, not for the doctor doing the abortion.  It is so that the woman can get to a doctor, to a hospital, and not get prosecuted for a crime.”²³⁸