Abortion in Paraguay

October 3, 2019

BY Mirta Moragas Mereles

Abortion is criminalized in Paraguay in almost every circumstance except for when the life of the woman is at risk. As a result, maternal mortality due to unsafe abortion is the cause of at least 25% of maternal deaths. Besides, the application of the decriminalized ground has some issues both in terms of the drafting of the definition and in the way in which it is applied. In a conservative context with high influence of the Catholic Church, social discussion regarding abortion faces a lot of opposition.

Legal framework

Abortion is criminalized in Paraguay, with the only exception of the risk of death.[1] The penalties range from 5 to 8 years of imprisonment. In the case of the woman who aborts, the punishment of imprisonment is up to 2 years. The legal definition has several issues. First, the drafting of the decriminalized ground is intricate. The phrasing states that it is not unlawful to “indirectly” produce an abortion. In practice, this phrasing and the lack of a protocol make the application of this ground difficult. For example, there was a case of a woman with an ectopic pregnancy in 2011. Doctors denied her legal abortion, and she filed judicial protection to ask a judge to order doctors to perform the procedure. The judge delayed the decision, and ultimately the Minister of Health and Social Welfare ordered the abortion. So, the application of this ground in many cases rests on the willingness of doctors.

The second issue with the definition is that the application of the law violates human rights. In  the Paraguayan Criminal System, in the process of crimes with up to two years of imprisonment, it is possible to apply “alternative exits to the procedure” (salidas alternativas al procedimiento) such as the conditional suspension of the procedure (suspensión condicional del procedimiento).[2] This option requires that the defendant accepts her responsibility. In several abortion cases, the prosecutor used this possibility to push women to plead guilty. Also, the procedure itself is a punishment for women because the prosecutor does not gather enough evidence to process women, only using alternative outputs to make women confess. Furthermore, researchers found that this entails a  violation not just to the right to a due process of law but also to the right to not suffer cruel, inhumane and degrading treatment. In many cases, women were forced to explain where the fetus was to get health care.

The feminist movement and abortion in Paraguay.

The feminist movement in Paraguay advocating for the decriminalization of abortion presented a proposal of a bill to decriminalize abortion on demand until twelve weeks and after on specific grounds.  In 2014, the Paraguayan Chapter of the Campaign September 28 for the decriminalization of abortion in Latin America and the Caribbean presented a proposal that includes decriminalization of abortion on demand until 12 weeks and that after 12 weeks, abortion should be permitted under the following circumstances: risk to life and health, rape, incest, fetal impairment and in the case of pregnancies of girls and adolescents up to 17 years old. The parliament did not consider the proposal and no change in the law has happened since then. However, inspired by the “Ni una menos” movement (not one woman less) in Latin America, the conversation about abortion increased in Paraguay. Socially, voices demanding the decriminalization of abortion are active in social media and younger feminists are taking the lead on this issue. Paraguay suffers from an increase in religious fundamentalism and social conservatism. Even so, public expressions favorable to abortion are also increasing. We hope that soon we can translate the conversation into more significant victories for the feminist movement and for the rights of all women and people with the ability to gestate in Paraguay.

[1] Paraguayan Penal Code. Article 109. Abortion 1º. – Whoever kills a fetus will be punished by imprisonment for up to five years. The attempt will also be punished.  2º. – The penalty may be increased up to eight years when the author:1. Work without the consent of the pregnant woman; or 2. with your intervention will cause the serious danger that the pregnant woman will die or suffer a serious injury. 3 °. – When the act is carried out by the pregnant woman, acting alone or facilitating the intervention of a third party, the custodial sentence will be up to two years. In this case, the attempt will not be punished. In the measurement of the penalty, it will be considered, especially, if the fact has been motivated by the lack of guaranteed support to the child in the Constitution.  4 °. – It does not act unlawfully who indirectly produced the death of a fetus, if this, according to the knowledge and experiences of medical art, was necessary to protect the life of the mother from a serious danger.
[2] Articles 21 and 22 of the Paraguayan Criminal Procedure Code.