Can the Outbreak of Zika Virus Change Brazil’s Strict Abortion Laws?

After the World Health Organization (WHO) declared the spread of Zika virus a ‘public health emergency of international concern’ on 1 February, the world’s attention has been focused on the most affected countries in Latin America. The organisation’s decision to announce an emergency was explained by the potential connection of the virus with the spike of microcephaly cases in Brazil and French Polynesia. Brazil has experienced the most significant rise in the number of infants born with the condition associated with cerebral damage, from five cases per 100,000 live births before the outbreak of the virus to 200 cases per 100,000 live births reported only in the second half of 2015. In her recorded television message, Brazilian president Dilma Rousseff stated 3 February that her government was working on eradicating the Aedes aegypti mosquito, which carries the virus and sent out a message to mothers, promising to support families with children affected by microcephaly. However, she remained silent about offering any help to women who wish to terminate their pregnancies after receiving the diagnoses. In the world’s largest Catholic country, this may not come as a surprise, but activists are fighting for a change; they hope that the outbreak of Zika will serve as a catalyst to change the country’s strict abortion legislation.

Image courtesy of Agência Brasil Fotografias © 2016, some rights reserved.

Image courtesy of Agência Brasil Fotografias © 2016, some rights reserved.

The Brazilian penal code rules abortion as illegal, except for three cases: if the life of the mother is in danger, if she was a victim of rape, or if the foetus has anencephaly, a condition where parts of the brain and skull are missing. The latest factor was added to the list of exceptions in 2012, making it the only amendment to abortion regulations since 1940. It was a significant achievement considering the political climate at the time; in the 2010 elections, the highly conservative ‘Evangelical Bloc’ gained 50 per cent more seats, with sixty-eight federal deputies and three senators. The rise of this informal political grouping continued in 2014, when more than eighty Evangelicals were elected to Congress. In 2015, one of its members, Eduardo Cunha, who also serves as President of the Chamber of Deputies, lead a bill to toughen access to abortion with a stricter screening process in case of rape, meaning that victims would have to prove that they experienced sexual violence before they can undergo a pregnancy termination procedure. In addition, the bill would also threaten access to the morning-after pill and make it a crime to assist in an abortion, or encourage a woman to have one. It is not only Cunha and his political front that share these views; during the 2010 presidential campaign President Rousseff (of the Workers’ Party) claimed that abortion consisted ‘violence against women’.

Given the circumstances, the current outbreak of Zika virus will likely result in a clash of the United Nations with the Brazilian government. Zeid Ra’ad Al Hussein, the UN High Commissioner for Human Rights, released a statement calling for the repeal of laws and policies restricting access to sexual and reproductive health services, including contraception and abortion, in Latin American countries. These demands were welcomed by activist groups within the country. Sonia Corrêa, co-chair of Sexual Policy Watch, hopes that the political passion against Cunha’s proposed bill, which prompted widespread public repudiation, will be reactivated in the fight for legalising abortions in Zika-infected cases. Débora Diniz, a researcher at the feminist bio-ethical research institute Anis, said that the outbreak of Zika is creating favourable conditions to present a case to the Supreme Court about legalising abortion in case of foetal abnormalities. Anis was also the group behind the 2012 lawsuit that resulted in the legalisation of abortion in case of anencephaly and hope to initiate a similar change again.

However, there are factors that make it more complicated for Zika-infected cases to be judged the same way as a foetus with anencephaly. Firstly, while there is believed to be a link between Zika and microcephaly, the correlation has not been proven yet – UN and US health officials blame the Brazilian government for not sharing enough information and samples to determine whether there is a connection between the two. Secondly, microcephaly is a complex, non life-threatening disease. Even when noticed before birth, it is difficult to say what its long-term effects will be. Indeed, as the term simply means that an infant’s head is abnormally small, a diagnosis does not necessarily indicate the existence of any neurological problems. While anencephaly was accepted as justifying an abortion in 2012 due to its incompatibility with human life, this argument cannot be used for Zika. Thirdly, microcephaly can only be detected during the twenty-fourth week of pregnancy, which makes many Zika-infected women want to have an abortion during the earlier stages of pregnancy as a preventative measure. Anti-abortion campaigners argue that if women waited until the condition could be detected, they would suffer more by having to abort their foetus at such a late stage. The role of the church cannot be understated either. A Catholic Archdiocese in Brazil explicitly refused to consider the possibility of looser legislation, ‘just because a foetus has microcephaly’. However, the Vatican has not commented on the situation yet. If the Pope supported looser abortion legislations in case of detected Zika infections, it would certainly affect the stance of Brazilian Catholic leaders too.

To conclude, the pressure put on Brazilian politicians by the UN and the political upheaval caused by Cunha’s proposed bill may help activists fighting for more liberal abortion laws. However, due to the strong influence of the Church and religious groups, in addition to the complexity of determining the effect of Zika on a foetus, it is unlikely that the legislation will be changed soon. For women infected with the disease, there is a chance that petitioning individual judges to allow their abortions will lead to success (one judge has already expressed his sympathy for the families in such cases), but it is not a viable option for those living in precarious conditions. Without the resources to hire an attorney, many women have to resort to illegal abortions carried out without proper medical expertise, leaving many of them infertile. Without a change in legislation, Zika is likely to cause a rise in the number of these clandestine procedures.