Discrepancy in Constitutional Rights and Abortion Practices in Ecuador: Adolescent Pregnancy
Ecuador has some of the most restrictive abortion laws in Latin America. Under the current laws, abortion is illegal in all but two scenarios. First, when the life or health of the pregnant woman is threatened and cannot be averted by any other means. Second, when the pregnancy is the result of the rape against a mentally disabled woman, and her legal representative has consented to the abortion[5,6,7,10]. These laws are at odds with amendments made to the 1998 Ecuador Constitution, which recognizes the constitutional right to self-determination, the right to make informed sexual and reproductive health decisions, and the right to access sexual and reproductive health care. Ecuador has high rates of adolescent pregnancy, due in large part to sexual violence, and the criminalization of abortion has detrimental effects on adolescent populations. This briefing will address the question of whether Ecuador should honor women’s sexual and reproductive rights delineated in the Constitution and legalize abortion in the instances of rape, and fetal malformation.
The 1998 revision of Ecuador’s Constitution contains articles that strengthened the institutional status of gender equality and women’s rights by establishing fundamental principles of non-discrimination and equal protection of the law, and explicitly guaranteeing sexual and reproductive health rights[3,7]. The revisions include elements such as the right to personal integrity (Article 32), the freedom to decide one’s sexual life (Article 66), the right to receive information and education on sexuality (Article 66), and the right to decide when and how many children to procreate (Article 66 and 363). Additionally, Article 35 states that victims of domestic and sexual violence have a constitutional right to receive priority and specialized care in public and private health sectors [3,7].
On paper it appears that Ecuador has made strides towards health equality and women’s sexual and reproductive health, there are still massive disparities between the rights laid out in the Constitution, and the legal framework, and the day-to-day practices in Ecuador. This is particularly true in the instance of abortion. For one, Article 45 of the Constitution recognizes the right-to-life as beginning at the moment of conception, thus criminalizing all forms of induced abortion.
From 1837, when the first Penal Code of Conduct was published in Ecuador, to January of 2014, all forms of induced abortion were criminalized. The code stated that abortions could not be requested by women for any personal, social, or economic means, and that abortion was illegal regardless of the well-being of the fetus or mother. Though Article 45 of the Constitution states that right-to-life begins at the moment of conception, in January of 2014 Article 150 of the Organic Comprehensive Criminal Code (COIP) was ratified to allow the practice of “therapeutic induced abortion” under two specific circumstances: in instances where pregnancy threatens the life or health of a woman and the danger cannot be averted by any other means, or when a pregnancy is the result of sexual crimes against a mentally disabled woman and her legal representative has consented to the abortion[6,7].
Any individual caught performing or receiving an abortion outside of said circumstances are subject to imprisonment of various durations. A woman who undergoes an abortion, whether self-induced or consenting to inducement is subject to between one and five years in prison; if she obtains the procedure to “hide her dishonor” she is subject to 6 months to two years imprisonment. Anyone caught providing an abortion with the consent of the pregnant woman is subject to two to five years imprisonment, and three to six years if the procedure is fatal. If medical or paramedical personnel are found to perform illegal abortions, they face harsher penalties and longer prison sentences[7,10].
There have been several instances of motions to create more progressive abortion policies in Ecuador, but strong political and religious opposition has prevented much progress. Most notably, in 2013 when the National Assembly debated changing the COIP to decriminalize abortion in the instance of rape, then-president Rafael Correa threatened to resign from office if abortion were decriminalized[2,7]. In 2015, the United Nations General Assembly’s Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) urged Ecuador to decriminalize abortion in all cases of rape and incest, not just for women who are mentally disabled, and for cases of severe fetal impairment[1,7]. In January of 2019, The National Assembly of Ecuador opened debates to draft reforms to the COIP to analyze the decriminalization of abortion in instances of rape, incest, and non-consensual insemination for all women, and in cases of severe fetal impairment. The debates have not yet concluded.
Because abortion is so stigmatized, and the criminal penalties associated with abortion, there is a dearth of data on abortion prevalence and associated maternal mortality from abortion in Ecuador[4,5,6,7]. However, global studies and data from similar environments have demonstrated that the criminalization of abortion does not reduce the number of abortions performed. Instead, criminalization drives women and girls to seek unsafe abortions, which contributes to maternal mortality and morbidity.
A major concern is the number of adolescent girls affected by abortion complications, as Ecuador has some of the highest rates of adolescent pregnancy in the Andean region, due in large part to incidence of sexual assault. According to statistics from the 2010 National Statistics and Census Institute of Ecuador, 44.1% of mothers had their first child between the ages of 15 and 17, and 2.4% had their first child between 12 and 14 years old. In 2011, Human Rights Watch estimated that there were 260 cases of abortion-related morbidity in Ecuador among girls ages 10-14, and over 4,000 cases in girls aged 15-19.
Adolescent pregnancies and births are associated with negative and lasting health and socioeconomic outcomes, and according to the WHO, adolescents are more likely to have unsafe abortions than adults, and are less likely to seek important medical care in the event of complications. Research in similar environments has demonstrated that providing access to safe and legal abortions not only reduces the maternal morbidity and mortality from abortion, but also morbidity and mortality from obstetric, labor, and post-partum complications[4,5,6,7,9]. The provision of abortions is essential in improving adolescent sexual and reproductive health and health outcomes in Ecuador.
My recommendation is to start small and push first for decriminalization rather than legalization of abortion, following CEDAW’s 2015 recommendations to allow decriminalization of abortion in instances of rape and fetal malformation, and add decriminalization of abortion among adolescents, due to evidence that the majority of adolescent pregnancies result from sexual violence. I believe that a strong case would be made that abortion services constitute priority and specialized care for victims of sexual violence, and thus are a constitutional right under Article 35.
Though legalization of abortion and the provision of safe abortion care in all contexts is the ultimate goal, it is not something that can be forced in a short period of time in such a resistant political and religious climate. Decriminalization of abortion in specific contexts would serve as a stepping stone, allowing for the collection and provision of better data, to further inform policies and demonstrate the benefits of legalizing abortion in all contexts. In gathering evidence on the benefits of safe abortion provision and reduction of maternal mortality and morbidity, health and socioeconomic outcomes, and medical costs, we will be able to build a more convincing argument and increase the likelihood of changing restrictive abortion laws.