Just over two weeks ago, an 11-year-old rape survivor in Tucumán underwent a C-section after being denied a legal interruption of pregnancy (ILE, Interrupción Legal de Embarazo) by the provincial government.
You probably have questions. I know I do.
There are three main parts to this story.
1. What actually happened?
2. Why was it illegal for the government to compel her to give birth?
3. Why did the government do it anyway?
So let’s begin.
Part 1: What actually happened?
An 11-year-old girl named “Lucía” (not her real name) was raped last year by her grandmother’s 66 year-old partner, who at the time was one of her primary caregivers, in northeastern Tucumán. After her mother took her for medical attention in January due to stomach pains, it was discovered that she was 16 weeks along. Weeks later, on February 27th, Lucía was forced to undergo a C-section, despite herself and her mother both requesting a legal abortion.
You’re probably wondering why she wasn’t allowed the procedure when Argentina’s laws actually protects victims who end up in a situation like this.
Well, as it turns out, the provincial health system, according to Tucumán media, said it had ordered the hospital’s director Dr. Elizabeth Avila to perform “the necessary procedures to save both lives.”
How was that their decision? Lucía, according to Noticias Argentinas, personally told a psychologist that she wanted a termination, saying: “I want them to take out what the old man put in me.” However, the procedure to request an abortion took seven weeks, and some say that delay was intentional. That seven weeks was longer than the girl had before health complications required a C-section.
What’s worse, the doctors at the hospital declared themselves conscientious objectors. Under this clause, medical professionals have a constitutional right to not perform certain practices, be it for personal, religious, or moral reasons. However, health institutions are still required to guarantee safe and legal access to these procedures. This means that while doctors can declare themselves objectors, hospitals cannot.
Gynecologist Cecilia Outsset, who was present in the hospital at the time of the birth, said “you can’t expect a vaginal delivery because her body wasn’t developed, and she wasn’t in the proper psychological condition because of the abuse.” Outsset was accompanied by doctor José Gigena, who also happens to be her husband, during the procedure.
When born, the baby was in the twenty-fifth week of gestation and weighed just 660 grams. The baby passed away ten days after spending time in the hospital’s neonatal intensive care unit, according to an announcement made by hospital authorities on Friday, March 8th.
What’s more, the doctors involved in the procedure are facing both backlash from anti-choice activists and the possibility of criminal charges.
Estamos juntando firmas para apoyar a lxs médicxs que le practicaron la interrupción del embarazo a la niña tucumana de 11 años y que hoy son perseguidos con una denuncia penal. Pueden adherir acá ??? #NiñasNoMadres https://t.co/PjEaa6Nye8
— ? Ingrid Beck ? (@soyingridbeck) March 11, 2019
Photo via The organization in favor of legal and free abortion in Tucumán (Facebook)
Part 2: Was it legal to deny Lucía an abortion?
(TL;DR version: No it’s not entirely, but in practice, in some provinces, it basically is.)
No, it wasn’t. You may understand that abortion in Argentina is still illegal, but the country’s criminal code states that any woman who has become pregnant by rape is allowed to access a legal abortion.
The “legal interruption of pregnancy” clause can be found in Article 86 of the Criminal Code (in there since 1921), but specifically was defined in the “FAL ruling” by the Supreme Court in 2012. In this ruling, a case where a 15 year-old girl was raped by her stepfather, the Supreme Court decided that it was not in violation of Article 88, which establishes the criminality and punishment of abortions. It was decided that the case fell instead under Article 86, which establishes the need for one of two precursors to a legal abortion.
Either there must exist “a danger to the life or the health of the mother,” or “if the pregnancy comes from a violation or an attack on an idiot or demented woman.”
Now. Let’s reflect for a second. Before 2012, a pregnant rape survivor, here in Argentina, would have had to stand in front of a court and explain how she is either an “idiot” or “demented” just to have an abortion allowed by law. However, in 2012 the Supreme Court decided that any woman who has become pregnant as a product of rape is allowed an abortion at her request.
But how can women access abortions if there aren’t clinics or infrastructure because all other abortions are illegal?
At the same time, in the same ruling, the Court charged all provincial and national health authorities with the responsibility of “the concrete attention to non-punishable abortions and the responsibility to remove of all the administrative or factual errors to the access of medial services.”
So then if the law applied to her, what happened to Lucía? Why wasn’t she allowed the abortion?
Tucumán has never adhered to this law. The law is national, and thus applies to every citizen of Argentina, but alas, Tucumán’s provincial court doesn’t follow it and has none that is similar. In November, a bill failed to pass the Tucumán provincial legislature because of withdrawn support from the Family and Women’s Rights committees, respectively.
Has this happened in other pro-life provinces?
Yes, this almost same case occurred earlier in 2019, in Jujuy. A 12 year-old girl was raped in San Pedro by a 60 year-old man. Like in Tucumán, she and her family requested a “legal interruption of pregnancy,” which wasn’t heard by the Ministry of Health or Jujuy Governor Gerardo Morales, and delivered a stillborn child (via C-section).
How can the government of Tucumán get away with violating federal law?
This is where the fault of the government of Tucumán comes into play. Consider even just two basic facts from this case:
1. A pregnant 11 year-old rape victim wants an abortion,
2. It’s not only legal, but federal law dictates that provincial health ministries must comply with abortion requests of rape victims.
Lucía’s is the case of a girl to whom the legal abortion law must apply. Not only had she and her family asked repeatedly for permission, but she also is below the age of consent, eliminating any gray areas about whether her pregnancy was a result of rape or not.
Part 3: Why didn’t the government allow the abortion?
Or rather, what does it mean that the government of Tucumán denied the girl her rights under federal law? It’s not necessarily a secret there is a strong pro-life contingent not only within Tucumán, but specifically within the government.
Ousset, the gynecologist present during the delivery, said to Radio Nacional: “I believe that Juan Manzur [Governor of Tucumán], due to an electoral issue, prevented the legal interruption of the pregnancy, and forced the child to give birth.” She explicitly described the situation as torture.
Soledad Deza, from the NGO Católicas por el Derecho a Decidir (“Catholics for the Right to Choose”), said there had been a “meticulously directed […] conservative political action, initiated by the Executive branch, and validated by the public prosecutor, to try to walk back rights in Tucumán.”
Clarín reported there were even pro-life advocates posing as doctors that were allowed access to Lucía and her mother immediately prior to the birth.
What has the government said about all of this? Have they admitted to breaking the law?
There have been several statements from the Ministry of Health, the minister herself, and the government of Tucumán that all amount to a whole lot of empty rhetoric surrounding the girl’s well-being. It can be summed up in the one direction given to the hospital, to do what they must to “save both lives.”
Under law, a fetus that is a product of rape is permitted to be legally terminated. The law even includes cases not only of rape, but where the mother’s life is potentially in danger as well. To hear the “save both lives” statement from the government of Tucumán as the official direction to the hospital is concerning because they’re putting the safety of the girl on equal footing with the importance of her pregnancy, which the law specifically exists to prevent.
Where does that leave us?
It was a violation of a federal law to deny Lucía the abortion she wanted. The Tucumán government was looking to promote its own policy goals; not only is denying a rape victim an abortion illegal, it’s also immoral for the government to take control of this girl’s life and body because it doesn’t agree with the choices she’s made.
With the criminal charges filed against José Gigena and Cecilia Ousset, only time will tell how this story ends. According to Fernanda Marchese, Executive Director of ANDHES (Human Rights and Social Studies Legislators from Northwest Argentina), “This clearly has no legal basis, we’re talking about a procedure that has been legal for 100 years: an [abortion] that falls within the criminal code, given both the rape and the health of the girl in question. We’re facing both an extremely dire situation and a government that is trying to install a criminal policy. They can’t get off scot-free with this.”
An 11-year-old girl in #Argentina was denied her right to an abortion after being raped by her grandmother's partner. This tragic case is yet more evidence that Argentina's draconian abortion legislation needs to change. We need to keep up the fight. pic.twitter.com/qHoCV8Wk7y
— Amnesty International (@amnesty) March 11, 2019