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Ignoring The Anguish

An Eleven-year-old Girl, Article 266, and Abortion in Bolivia

By Teresa Lanza Monje and Anna M. DeNicolo
Autumn 1999

In a suburb of the city of Santa Cruz, Bolivia, called Villa Nueva Esperanza—Town of New Hope—there is little hope for one young girl of eleven. Developmentally disabled and with the appearance of a seven-year-old, she was raped by her step­father, Vicente Vallejos, and became pregnant. When her neighbors reported the rape to the police in late June of this year, her pregnancy had already advanced to approximately fifteen weeks.

The Children’s Defense Office of the Santa Cruz state government asked the Juvenile Court, which prosecutes both juvenile offenses and crimes against children, to authorize an abortion. But despite a law authorizing abortion in just such a case, the girl was denied an abortion. Limitations of Bolivian law left her vulnerable to the personal opinions of doctors and a judge, and she was forced to carry her pregnancy to term.

The Bolivian Penal Code classifies abortion as a crime, but states in Article 266 that, in certain extreme cases, abortions are “not punishable.” This article is little known in Bolivia, even less understood, and has only been enforced once since the Penal Code was adopted in 1973. But Article 266 was the only hope for the Santa Cruz girl.

Article 266 (unpunishable abortion). When the abortion is the consequence of rape, abduction for sexual purposes not followed by marriage, statutory rape, or incest, there will be no sanction as long as legal action has been initiated.

Neither shall an abortion be punishable if it is performed to protect the woman’s life or health and the threat cannot be avoided through any other means.

In either case, the abortion must be performed by a doctor, with the woman’s consent and judicial authorization.1

After a police report and a medical examination, a suit is filed with a penal judge, who accepts the coplaint and asks the public prosecutor for an evaluation of whether there are grounds for a trial. Then the penal judge can authorize the abortion under Article 266, or deny it if there is insufficient proof of rape or danger to life or health.

 

THE PENAL CODE IS NOT ENOUGH

Article 266 seems to apply perfectly to the Santa Cruz case. What happened? First, there were procedural problems and mistakes. The Children’s Defense Office asked for authorization of an abortion on the grounds that the girl’s health and life were at risk (the second clause of Article 266), not because she had been raped, which would have limited the scope of the case. In addition, the case was tried in a juvenile court, which cannot order a hospital to perform an abortion, instead of a penal court, which has jurisdiction in rape cases.

But most importantly, the justice  system did not uphold Article 266 ­and thus did not protect the interests of the Santa Cruz girl—because it didn’t have to. Since there is no law enforcing the implementation of Article 266, the decision to authorize an abortion is left to a single human being, subject to personal opinions and external influences.

For the Santa Cruz girl, the decision maker was Juvenile Court Judge Gaby Sudrez. She took on the case, and ordered doctors at the Percy Boland Maternity Institute, a public hospital, to evaluate the physical and psychological health of the girl and the fetus. She requested numerous physical examinations and three psychological evaluations.

Psychologists agreed that the girl suffered from severe depression and should be attended at all times. However, the doctors stated that both the girl and the fetus were healthy, and the pregnancy was normal and could proceed.

But the doctors of the Percy Boland Maternity Institute went fur­ther. They unilaterally refuse to perform an abortion, even it if were ordered by the judge. The director of the institute, Dr. Hugo César Chávez, said, “The institute is a teaching hospital. How can we teach our students that they can kill? We want the students to learn to defend life, not to perform clandestine abortions.”2

The Bolivian Medical College supported the analysis of the institute. The college’s president, Gerardo Rios, said that his premise was respect for life, regardless of the circumstances of conception. “No one is obligated to commit a murder,” he said.3 By this time, four sonograms had been conducted, each with a different estimate of the advancement of the pregnancy—ranging from fifteen to twenty weeks. The president of the Santa Cruz Medical College, Víctor Hugo Parada Rossell, said the abortion would be more dangerous for the girl at this stage of the pregnancy than to carry it to term.4

But many others disagreed. Minister of Health Guillermo Cuentas stated that the girl should be able to have an abortion, based on a legal analysis and an interpretation of Article 266 of the Penal Code.5 Juan Carlos Saavedra of the Lawyers College said, “The pregnancy is the consequence of a crime. The law states that there will be no penalty for an abortion authorized by a judge. In addition to the moral damage, the girl is not equipped to handle the consequences.6 Psychologist Sandra Silveira stated that the girl is “too immature to assume responsible motherhood,” and juvenile Prosecutor Wilma Ribera asserted that the abortion should be performed.7

Meanwhile, the Catholic church, which owns radio stations, television stations, and a newspaper, worked with its allies—”pro vida” and conservative groups, such as the Cámara junior (a conservative elite club), to oppose the abortion. Church leaders wrote letters to doctors and judges, published opinions in the media, and organized marches. The papal nuncio expressed his support for the judge’s decision. Priests and bishops publicly opposed the abortion, the vicar of the archdiocese of Cochabamba even said that God might work a miracle so that the rapist would accept the baby. The Maria Auxiliadora Association published the statement, “Let us save an innocent life.”8

The case filled headlines across Bolivia. A majority of the public supported the abortion. Out of 300 people surveyed by El Deber, 57 percent favored an abortion for the girl.9 There was significant public support for the abortion in the press, radio, and television, and in informal media interviews “on the street,” confirming the results of a 1998 public opinion survey in which approximately half of the respondents disagreed with church teachings on contraception and abortion, and 82 percent believed that abortions that are permitted by the Penal Code should be made accessible.10

Women’s groups from across Bolivia urged the judge to apply Article 266. Representatives from seven Latin American countries came to Bolivia to express their support. The Casa de la Mujer, a women’s rights group, and Colectivo Rebeldía, a feminist NGO in Santa Cruz that works on women’s rights and sexual violence issues, worked with the Children’s Defense Office to gain authorization for the abortion.

The September 28 Campaign for Decriminalization of Abortion in Latin America and the Caribbean organized demonstrations and a press conference at the National Parliament that was attended by more than forty journalists. The September 28 Campaign is a coalition of reproductive rights organizations from across Latin America that is based in Bolivia. The campaign stated that the professional ethics argument of the doctors and prosecutors reveals “the double morality of a society that, through silence or omission, is complicit with the sexual crimes committed against all of the women of our country.”11

CFFC’s Bolivian partner organization, Católicas por el Derecho a Decidir, sent briefing packets to the media, doctors, and judges on prochoice Catholicism, wrote letters to the editor, and issued press releases. Staff distributed flyers and posters, led a signature drive, and were inter­viewed widely in the media. Many Bolivian women’s rights groups pressed for the implementation of Article 266, including the Centro de Información y Desarrollo de la Mujer, the Red Nacional de Trabajadoras de la Información y Comunicación, Instituto de Formación Femenina Integral, Plataforma de la Mujer, and the Articulación Política Feminista.

But these efforts were to no avail. With multiple medical and psychological reports in hand, the doctors’ refusal to perform the abortion ringing in her ears, and after hearing from women’s groups, Catholic groups, and other interest groups, the judge made her decision. On July 10, 1999, Judge Sudrez denied the girl an abortion, stating at a press conference in her office, “I want Santa Cruz to know that I believe I have fulfilled my duty. I am at peace with my conscience. I will not carry on my conscience the death of a child. I am at peace with myself.”

In his July 11 homily, the auxiliary bishop of Santa Cruz, Monseñor Nino Marzoli supported the judge’s decision, saying he was surprised that so many Catholics were “against life.” “They don’t recognize that both lives, regardless of age, have the same value. We are teaching the law of Christ. We’re not ignoring the anguish of an abused person.”12

But attorneys and women’s rights advocates expressed their outrage at the judge’s ignorance of the law and disregard for the girl’s rights. As Carmen Elena Sanabria S., a feminist lawyer, said in an op-ed in La Razón, “Judge Sudrez’s ruling was inconsis­tent and against the law. . . . She said that the crime was not within the bounds of Article 266, interpreting, ‘in her own way,’ that it relates only to the abortions that have already taken place. We ask ourselves, then, so what is the reason for 266? Who defends us from our defenders?”13

 

THE PROBLEM WITH ARTICLE 266

Although abortion is illegal in Bolivia, the estimated number of clandestine abortions ranges from 40,000 to 60,000 every year. Six hundred and fifty women die for every 100,000 live births, the worst maternal mortality rate in Latin America except for Haiti.14 Official estimates indicate that one third of these deaths are caused by unsafe abortions.15

Abortion is a crime according to the Bolivian Penal Code regardless of the circumstances. The penal code outlines the penalties for both the woman who “gives consent” to have an abortion and the person who performs the abortion procedure. The penalties range from one to three years of imprisonment for both the woman and the abortion provider. If the woman has not given her consent, or if she dies as a result of the procedure, the maximum penalty for the provider is significantly higher.16

However, in Article 266, the penal code clearly outlines the cases in which abortions can be performed without legal punishment. Yet Article 266 has only been implemented once in the twenty-five years it has been on the books, and that was in 1998. Why? Because although the penal code is a law, it is not sufficient for enforcement. Another law, called a reglamento, must be passed specify­ing how the articles of the penal code must be implemented and requiring judges and doctors to apply the law. There is no reglamento for Article 266. The lack of this legislation leaves women at the mercy of those in power—police, doctors, and judges—and their personal opinions or ignorance of the law. In addition, most are Catholic and refuse to publicly defy the church’s teaching on abortion because they need support from the Catholic hierarchy in order to be successful in future public office or high profile positions. The hierarchy is seen as “owning the truth,” so taking a public position that counters the church is risky for ambitious careers.

The first and only unpunished abortion was performed in Sucre, Bolivia, in 1998. When a fourteen-year -old -girl became pregnant after having been raped by her father, appropriate procedures ‘were followed and the judge authorized an abortion under Article 266. However, doctors refused to perform the procedure, claiming that abortion was not ethical and not permitted by the Hippocratic oath. Only when the judge gave a second order did the director of the hospital perform the abortion himself—after the doctors had delayed the procedure for an entire week.

Journalist Isabel Mercado explained the problem clearly in La Raz6n: “If the victim’s circumstances are clear and protected within the law, implementation of the law shouldn’t be subject to controversy nor the interference of opinions of any kind, no matter how honorable they might be. By establishing a debate instead of a sentence, what prevails is personal and moral opinion, which in addition to inserting a strong portion of hypocrisy and active imagination, distorts the very character of a process that should be far from publicity and strictly linked to the implementation of the law.”17

 

LOOKING TO THE FUTURE

Women’s rights groups from across Bolivia have supported Colectivo Rebeldía of Santa Cruz, which filed a complaint against Judge Suárez with the Counsel of Judges for obstruction of justice and interfering with the girl’s constitutional 1: rights and guarantees.

They have also redoubled their efforts to work for a reglamento en­forcing Article 266. In 1998, they made an initial attempt to introduce a bill regulating the application of Article 266. On September 28 of this year, the Latin American and Caribbean Day for Decriminalization of Abortion, the September 28 Campaign presented a revised version of the bill to the Chamber of Deputies in collaboration with lawyers, parliamentarians, and other nongovernmental organizations. The bill describes in detail how Article 266 1 should be implemented—including which hospitals can provide “unpunishable” abortions, what is the process for obtaining authorization, how long the process should take, and in which cases abortion is unpunishable. The bill must first be approved by the Chamber of Deputies, then the Senate, and finally signed into law by the president of the Bolivian Congress. The law would ensure that personal opinions would no longer come into play—doctors and judges will be required to carry out the law correctly.

As for the Santa Cruz girl, she remains in the care of the state. Her stepfather was arrested and now faces ten to twenty years in prison. Ironically, after the judge refused to authorize the abortion, the doctors announced that the girl’s pregnancy was of “high psychological and social risk” and that they would observe her closely until she has car­ried her pregnancy to term. However, according to Colectivo Rebeldía, she is cared for only by a medical student, and the doctor responsible for high risk pregnancies has not been permitted to see the girl. And although her assigned doctor is the director of the Maternity Institute that refused her abortion, he never sees her.18

 

NOTES

1. Bolivian Penal Code, Article 266.
2. El aborto encierra más peligro que el parto,” El Mundo, Santa Cruz, July 9, 1999.
3. Colegio nacional apoya decisión de la matemidad,” El Nuevo Día, Santa Cruz, July 9, 1999.
4. El aborto encierra más peligro que el parto,” El Mundo, Santa Cruz, July 9, 1999.
5. Ministro de Salud: Aborto es viable,” La Prensa, La Paz, July 9, 1999.
6. El Juez del Menor decidirá si la niñia vio­lada por su padrastro debe abortar,” El Deber, La Paz, July 6, 1999.
7. Informe forense decidirA si se hace el aborto,” El Nuevo Dia, Santa Cruz, July 9, 1999.
8. Salvemos una vida inocente,” Estrella del Oriente, Santa Cruz, July 9, 1999.
9. Qué opina la sociedad?” El Deber, La Paz, July 6,1999.
10. Public opinion survey conducted by CIDEM in 1998 among 1,836 people in 14 of the largest cities, a sample representa­tive of 80% of urban dwellers in Bolivia. Una Encuesta Nacional de Opinion sobre Aborto en Poblaci6n Urbana, CIDEM, La Paz, 1998, pages 15-16.
11. Una violación ignorada en un mar de opiniones,” El Mundo, Santa Cruz, July 11, 1999.
12. La lglesia Catolica apoya dedsion judi­cial en el caso de la niña violada,” El Mundo, Santa Cruz, July 12,1999.
13. El delito de la violacion no impacta a la justicia, la iglesia, y la medicina,” La Razon, La Paz, July 29, 1999.
14. Population Reference Bureau, Women of Our World, 1998.
15. CIDEM, p. 15
16. Women of the World: Laws and Policies Affecting Their Reproductive Lives Latin America and the Caribbean, The Center for Reproductive Law and Policy and DEMUS, New York, 1997, page 41.
17. Adonde va el debate,” La Razon, La Paz, July 25,1999.
18. Telephone conversation, September 6, 1999, between Teresa Lanza and Madela Sainz of Colectivo Rebeldía.

 

Teresa Lanza Monje is coordinator of Catolicas por el Derecho de Decidir/Bolivia and Anna DeNicolo is former director of development for Catholics for a Free Choice.