Aborto y legislación: opinión de magistrados y promotores de justicia brasileros
Graciana Alves Duarte; Maria José Duarte Osis; Anibal Faúndes; Maria Helena de Sousa
Departamento de Pesquisas Sociais. Centro de Pesquisa em Saúde Reprodutiva de Campinas. Campinas, SP, Brasil
OBJECTIVE: To analyze the opinion of judges and prosecutors concerning Brazilian abortion law and situations in which the abortion should be allowed.
METHODS: A cross-sectional study was performed with 1,493 judges and 2,614 prosecutors in Brazil between 2005 and 2006. Participants completed a structured questionnaire approaching sociodemographic characteristics, opinions about abortion law, and circumstances in which abortion is considered lawful. Bivariate and multivariate analyses of data were carried out through Poisson regression.
RESULTS: The majority of participants (78%) found that the circumstances in which abortion is considered lawful should be broadened, or even that abortion should not be criminalized. The highest rates of pro-abortion opinions resulted from: risk to the life of the mother (84%), anencephaly (83%), severe congenital malformation of fetus (82%), and pregnancy resulting from rape (82%). Variables related to religion were strongly associated to the opinion of participants.
CONCLUSIONS: There is a trend in considering the need of changing the current abortion law, in the sense of widening the circumstances in which abortion is considered lawful, or even toward decriminalizing abortion, regardless of the circumstances in which it takes place.
Descriptors: Abortion, Legal. Abortion, Criminal. Criminal Law, legislation & jurisprudence. Public Attorneys. Social Perception.
OBJETIVO: Analizar opiniones de jueces y promotores de justicia sobre la legislación brasilera y las circunstancias en que el aborto inducido debería ser permitido.
MÉTODOS: Estudio transversal realizado con 1.493 jueces y 2.614 promotores en Brasil entre 2005 y 2006. Los participantes llenaron un cuestionario estructurado sobre características sociodemográficas, opiniones acerca de la legislación que trata el aborto y circunstancias para permitirlo. Se realizaron análisis bivariado y multivariado por regresión de Poisson.
RESULTADOS: La mayoría (78%) de los participantes opinó que las circunstancias en las cuales no se castiga el aborto deberían ser ampliadas, o más aún que el aborto no debería ser considerado crimen. Las mayores proporciones de opiniones favorables para que el aborto sea permitido se refirieron a riesgo para la vida de la gestante (84%), anencefalia (83%), malformación congénita grave (82%) y gravidez resultante de violación (82%). Las variables relativas a la religión fueron las más frecuentemente asociadas a tales opiniones.
CONCLUSIONES: Se observó una tendencia a considerar la necesidad de cambios en la actual legislación brasilera en el sentido de ampliar las circunstancias en las cuales no se castiga el aborto y hasta dejar de considerarlo un crimen, independientemente de la circunstancia en que es practicado.
Descriptores: Aborto Legal. Aborto Criminal. Derecho Penal, legislación & jurisprudencia. Ministerio Público. Percepción Social.
In most developed countries, abortion is considered lawful to save the life of the mother, to preserve the mother's mental or physical health, in the event the pregnancy resulted from rape or incest, in cases of fetal anomaly, for economical or social reasons, and at the request of the mother.10,ª In Latin America and the Caribbean, abortion is only considered a legal practice in reduced circumstances, and the most accepted reasons are connected to situations involving the life and health of the mother. As a result of the laws against abortion, almost all abortions are carried out illegally, thus presenting risks to the health and lives of women and contributing to the high maternal mortality rate.21
In Brazil, the Criminal Code establishes, since 1940, that abortion practiced by a physician is not punishable by law when there is no other way of saving the life of the mother or when the pregnancy resulted from rape.8,19 All other cases are punishable by Brazilian law, with sentencing varying from one to ten years in prison for the mother and for the person who performed the abortion. The latter may be sentenced to twice the time in prison in the event of maternal death.b Despite the law against the practice, it is estimated that illegal abortions in Brazil in 2005 totaled 1,054,242.18
In practice, despite the Brazilian legislation in the above-mentioned circumstances, access to lawful abortion faces many obstacles.8,b,c For a long time, only abortions in situations in which the life of the mother was at risk were performed in hospitals, whereas rape victims were rarely admitted to public hospitals, thus leading them to resort to illegal abortion clinics.8
As the public health services become more sensitive to admitting abortion patients in the cases already provided for in Brazilian law,9 there is a growing need to deal with the abortion in cases of fetal abnormalities which are incompatible with live births. Technological developments has enabled the early diagnosis of such abnormalities, and this has given rise to a paradoxical situation: it is possible to detect intra-uterus anomalies incompatible with a live birth, but it is not legally possible to offer the parents the alternative of mitigating the pain and suffering resulting from this diagnosis.14 This situation has resulted in a growing demand for court orders allowing interruption of pregnancy in these cases.21 Frigério et al14 (2004) in a study carried out between August 1996 and June 1999 identified 263 lawsuits involving selective abortion and suggested this figure to being underestimated.
In April 2004, the Brazilian Supreme Court granted an injunction to the Confederação Nacional dos Trabalhadores na Saúde (CNTS - National Confederation of Health Workers) authorizing them to interrupt a gestation if the event of anencephalic babies. In the same year, the injunction was lifted and the Argüição de Descumprimento de Preceito Fundamental (ADPF - Defense of Non-compliance to Fundamental Constitutional Principle), submitted by the CNTS has still not been heard.6
In this dynamic scenario, where society pressures for changes to the law, the induced abortion issue has mobilized several sectors of Brazilian society, such as lawyers, healthcare professionals, congressmen and women's groups.17 The courts have played an important role in this process, since it is the Judiciary that enforces the laws - and their amendments - passed by the Legislature. These entities, therefore, can be seen as essential actors in the process of discussing laws which address the challenge of changing the principles behind reproductive rights in statutes.5
The objective of this study was to analyze the opinion of judges and prosecutors about the current Brazilian legislation and the circumstances in which induced abortion should be allowed.
A cross-sectional descriptive study was carried out based on a pre-tested structured questionnaire, answered by judges members of the Associação dos Magistrados Brasileiros (AMB - Brazilian Magistrates' Association) and by prosecutors associated to one of the 29 Associações do Ministério Público do Brasil (Public Ministry Associations) (26 in the states and three in the Federal District).
The questionnaire and a covering letter, together with a prepaid response envelope, were sent out to 11,286 judges and 13,592 prosecutors through their respective association's mailing list. The judges received the pack in the end of 2005 and prosecutors in the beginning of 2006. The pack was sent a second time in an attempt to increase the response rate of both categories. It was necessary to send the whole pack to all potential participants again since it was impossible to verify those who had responded from those who had not due to the confidentiality treatment given to responses.
The response rate was 14% (1,550) for questionnaires sent out to judges, 50 of which were sent back in blank, and seven with the explanation that the judge was deceased. Therefore, 1,493 was the number of questionnaires answered by judges included in the study. The response rate for prosecutors was 20% (2,716), out of which 101 were returned in blank and one with the information the potential respondent was deceased. As a result, 2,614 questionnaires answered by prosecutors were included in this study and the sample totaled 4,107 participants. The questionnaires answered were reviewed, numbered and double entered.
The dependent variables analyzed were: opinion on current abortion laws (increasing the number of situations in which abortion is legal/decriminalizing versus limiting the number of situations in which abortion is legal/criminalizing it permanently/not changing it) and opinion on the circumstances in which abortion should be allowed (risk to the life of the mother; anencephaly diagnosis; severe congenital malformation incompatible with life outside the uterus; pregnancy resulting from rape; pregnancy poses danger to the physical health of the mother; pregnancy poses danger to the mental health of the mother; in any circumstance; under no circumstance). The independent variables were: age (in years), gender (male; female), marital status (single; with partner), number of children (up to two; three or more), unwanted pregnancy, and abortions of women respondents (never experienced unwanted pregnancy/experienced unwanted pregnancy and never had an abortion versus experienced unwanted pregnancy and had an abortion), occupation (judge; prosecutor), geographical area (North/Northeast/Central-West/Southeast/South of Brazil), work experience (in years), jurisdiction (capital city and inner state, or only inner state), instance (appellate court; trial judge/retired), court of law (criminal; other courts: civil law, labor law, child and juvenile courts and retired judges), level of court (federal and state court; only state); religion (religious; intermediary/non religious); importance of religion (very important; of little importance/unimportant/not religious) and importance of personal religious views on the answers given (very important; of little importance/unimportant/not religious).
Concerning the religiousness variable, respondents were classified according to a score created based on the combination of the answers to both questions in the questionnaire that addressed the aspects of belief, religious practice, and self-perception on how much religion affects respondent's professional activity. The choice of these dimensions to measure religiousness was based on the model proposed by Glock & Starkd (1965) to assess to what extent commitment to religion interferes in the conduct and attitude of individuals.4,16,21
Respondents' opinion on abortion laws and circumstances in which abortion should be allowed was described. A bivariate analysis was carried out through the distribution of the frequencies of each one of the dependent variables (opinions) according to the categories of the independent variables. A specific chi-square test1 was performed for each dimension of the tables (Pearson's chi-square for general tables, and chi-square with Yates correction for 2x2 tables). For the age and working experience variables the linear trend test was performed.1
Nine Poisson regression models3 were developed concerning the dependent variables: opinion on current abortion laws (increasing the number of situations in which abortion is legal/decriminalizing versus limiting the number of situations in which abortion is legal/criminalizing it permanently/not changing it) and opinion on the circumstances in which abortion should be allowed (risk to the life of the mother; anencephaly diagnosis; severe congenital malformation incompatible with life outside the uterus; pregnancy resulting from rape; pregnancy poses danger to the physical health of the mother; pregnancy poses danger to the mental health of the mother; in any circumstance; under no circumstance).The independent variables were: age (in years), gender (male; female), marital status (single; with partner), number of children (up to two; three or more), unwanted pregnancy, and abortions of women respondents (never experienced unwanted pregnancy/experienced unwanted pregnancy and never had an abortion versus experienced unwanted pregnancy and had an abortion), occupation (judge; prosecutor), geographical area (North/Northeast/Central-West/Southeast/South of Brazil), work experience (in years), jurisdiction (capital city and inner state, or only inner state), instance (appellate court; trial judge/retired; court of law (criminal; other courts: civil law, labor law, child and juvenile courts and retired judges), level of court (federal and state court; only state); religion (religious; intermediary/non religious); importance of religion (very important; of little importance/unimportant/not religious) and importance of personal religious views on the answers given (very important; of little importance/unimportant/not religious).
This study was carried out in compliance with Brazilian norms for research on human beings and the protocols received the approval of the Research Ethics Committee from the Faculdade de Ciências Médicas at the Universidade Estadual de Campinas (Reviews 596/2004 and 081/2005).
In the sample approximately two fifths (41%) of respondents were 50 years of age or above, most of them (69.9%) were male, and reported living with a partner (76.6%), and having up to two living children at the time of response (69.9%). Twelve percent of respondents answered that when faced with an absolutely unwanted pregnancy they had chosen to have an abortion done. Concerning their professional activities, 63.6% of respondents were prosecutors and 36.4% judges. A little over three fifths worked in the Southern and Southeastern regions of Brazil (65%). Only 8.7% had been working for more than 25 years, and 62.5% had worked or were currently working in innerstate courts. A little under half of the respondents (48.9%) worked in criminal courts. Only 14.8% worked at Appellate Courts and 7.7% at the Federal level. Most participants were classified as not religious or of intermediary religiousness (86.5%), only 21.5% answered that their religion played an important role over the answers they provided; 24.4% gave the same answer concerning the importance of their personal religious beliefs (Data not shown on table).
When asked to express their opinion concerning the Brazilian laws that address the abortion issues, 78% of respondents considered that the circumstances in which abortion is considered lawful should be widened or that Brazilian laws should decriminalize all kinds of abortion. To 9% of respondents abortion should always be considered illegal or there should be a limited number of lawful abortion situations, and 13% were of the opinion that the law should remain as is (Data not shown on table).
In the bivariate analysis there were no significant differences concerning the opinion of respondents about the law in the following variables: occupation, region, instance and jurisdiction. However, the opinion that circumstances should be widened/abortion should be decriminalized was associated to: being under 40 years of age (82.3%), being a female (83.5%), not living with a partner (80.8%), having up to two children at the time of response (81.2%), having undergone an abortion in an unwanted pregnancy situation (88%), shorter work experience in the field (83.7%), working in the capital city of the state (79.9%), working at federal and state levels (83.6%), intermediary religiousness/not religious (83.7%), little or no importance of religion or not having a religion (86.6%), and little or no importance or not having individual religious views (86.3%). It was found that there was a linear association trend between age and work experience with the opinion that the situations in which abortion is considered lawful should be widened/decriminalize abortion: this opinion was more frequent as age and work experience decreased (Table 1).
When Poisson regression analysis was performed the association between the importance of religion to the responses provided and religiousness, and the opinion that the circumstances in which abortion is not considered a crime should be widened/decriminalize abortion was confirmed (Table 2).
The circumstances in which abortion should be considered lawful receiving the highest responses in favor were: risk to the mother's life (84%), anencephaly diagnosis (83.1%), severe fetal congenital malformation incompatible with life outside uterus (81.8%), pregnancy resulting from rape (80.6%), pregnancy poses severe danger to maternal physical health (59%), and when pregnancy poses severe danger to maternal mental health (41.9%). Only 4.7% of participants considered that abortion should never be considered a lawful practice (Data not shown on table).
In the bivariate analysis, it was found that variables concerning religion were associated to the opinion favoring lawfulness of abortion in all circumstances presented. The highest favorable opinion rates came from participants considered non-religious or of intermediary religiousness and from those whose personal religious beliefs played no significant role. In the same way, a previous abortion experience and number of living children (up to two) at the time of the interview were associated to being in favor of abortion in the several circumstances presented. When linear trend test was applied for variables age and work experience, it was found that work experience in years was not associated to a favorable opinion in two circumstances concerning pregnancy posing severe risk to maternal mental health and in any circumstance. Age was associated to favorable opinion in all the circumstances presented: younger participants tended to be more in favor of abortion (Table 3).
In the multivariate analysis, the importance given to religion during response was confirmed to be associated to the opinion about decriminalizing abortion in all circumstances presented. Religiousness was only not associated to the opinion concerning abortion when the mother's life is at risk. A lot of importance attached to religion had a prevalence rate (PR) of 8.69 in relation to the opinion that abortion should never be considered lawful, and the classification of respondents as religious resulted in PR = 2.61. Age on the occasion of response was found to be associated to the opinion in favor of abortion in the event of risk to life of mother, severe damage to maternal physical health, and to decriminalizing abortion in all circumstances. Working in the state capital/inner state was associated to the opinion in favor of abortion in the event the pregnancy poses risk to maternal physical health, and to decriminalizing abortion in all circumstances.
Marital status was associated to the opinion in favor when the pregnancy poses severe risk to maternal mental health and to decriminalizing abortion in all circumstances. In addition, gender of respondents, geography, and instance of court were all associated to the opinion that abortion should be considered lawful in all circumstances. The occupation associated to the opinion that abortion should never be permitted was that of being a judge: PR = 1.84 (Table 4).
When asked about the ADPF, among those who already had an opinion on the issue (n = 2,223), 60.5% said the ADPF should become a Law, 25.1% said it was adequate, and 14.4% said it was inadequate. (Data not shown on table).
In the sample studied, it was possible to notice a trend in considering the need of changing current Brazilian abortion laws, be it to widen the number of situations in which abortion is considered legal and therefore doctors performing do not face punishment, or even to decriminalize abortion regardless of the circumstances in which it is performed. This trend has already been noticed in studies with physicians, as well as in population-based surveys.7,11,12,13, 19,e
From the possible circumstances in which abortion should be considered lawful, the population sampled was found to favor widening the list of situations permitted by statute, and 12.1% of participants were found to be in favor of not punishing abortion at all. Another point to be highlighted, and which reinforces the trend in expressing the need of changing current abortion laws, is the favorable opinion participants have of the ADPF, which has been waiting for a Brazilian Supreme Court hearing since 2005.
As observed in other studies, this survey also found a high agreement rate with abortion in situations that are medically justified.7,12,13,20,e Among the characteristics of participants that were found to be associated with a more favorable attitude towards changing abortion laws and in terms of accepting the several circumstances in which abortion should be considered lawful, are variables already pointed out in other studies, such as age, gender, place of residence, previous abortion, importance of religion and religiousness.15,f It is worthy of attention the constant presence of these latter variables as possibly representing obstacles to changes to the law, and this has frequently been object of debate. The media and the many forums in which this debate takes places show that religious arguments are the major hurdles faced by moving forward with the discussion about Brazilian abortion laws. To this effect, the results of this study show that religion is an aspect that should not be neglected in discussing the need of widening the statutory circumstances in which abortion is not considered lawful. In line with this, findings show that statutory changes that include medically justified abortion practices would be better accepted by the professionals surveyed. A finding that suggests this is the fact that religion was not found to be associated to opinions in favor of abortion in the event of risk to the life of mother, which is understood as a medically justified reason for a lawful abortion. This is coherent with the prevailing arguments in the healthcare sector in the fight for a more extensive liberalization of abortion. And this has been the main strategy in current debates on the matter. Among Brazilian gynecologists, for instance, it was found that abortion tended to be accepted whenever professionals found a moral justification to sacrifice a life (the fetus') in favor of another (the mother's), or because the fetus's life had a low expectancy rate (malformation of fetus).f
On the other hand, as has been observed among gynecologists,12 having experienced an abortion is rather significant in determining the opinion of the population sample toward abortion.
We understand that the findings herein do not apply to all judges and prosecutors members of their respective professional Association, since the response rate has been of 14% among judges and 20% among prosecutors. However, we can consider these response rates to be satisfactory if we consider the indirect method used and the known difficulties in obtaining responses through the postal services.2 On the other hand, it is also possible that the response rate may be slightly higher because we do not know the exact number of individuals who actually received the questionnaire pack, due to possibly outdated address information.
It is impossible to determine whether the sample was biased in the sense that those who responded were individuals with a more liberal view on abortion. The high absolute number of responses, however, suggests that it is unlikely the main findings suffer significant changes with a higher response rate. Additionally, it is very unlikely that the associations between the characteristics of participants and their opinions were affected by a sample bias. Previous studies carried out with gynecologists and obstetricians,11,15 as well as population-based surveys with men and women,7,20 have arrived at similar results, that is, have identified the same trends identified in this study.
Regardless of the above-mentioned limitations, the findings resulting from this sample of court professionals in Brazil, can be considered a subsidy to continuously striving to promote debates on changing Brazilian abortion laws, especially because such findings reinforce the perspective that there is an acceptance rate for change, and also show the boundaries inside which change could actually take place.
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This study was funded by the MCT/SCTIE/DECIT/MS/CNPq (Process # 403179/2004-1); by the São Paulo Research Foundation - Fapesp (Process 05/50267-7); and by the World Health Organization (A55045).
The authors declare that there are no conflicts of interest.
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