Written By Harine Raaj and Valentina Menendez Ron
Argentina created history after becoming one of the largest Latin American countries to legalise abortion as the senate approved the new law change by 38 votes in favour to the 29 against. Women across Argentina became joyful and cried with pride after a victorious night. This victory came after a lengthy period of protests by many women and journalists across various social media platforms in Argentina using the hashtag #NiUnaMenos (“Not One Less”) advocating both the prohibition of gender-based violence and the legalisation of abortion.
Argentina’s approach to reproductive rights had always been “pro natalist”, habitually abiding by the doctrines of Catholicism and had often supported measures that promoted the birth rates of the country.
Thus, the fight for the legalization of abortion is not a current phenomenon, since the debate on its establishment as part of the the human rights of women has been going on for two decades. However, it is since 2005, with the creation of the Campaña Nacional por el Derecho al aborto Legal, Seguro y Gratuito (La Campaña), that the movement has been able to carry more weight in society.
With the slogan of educación sexual para decidir, anticonceptivos para no abortar, aborto legal para no morir (sex education to decide, contraceptives to not abort, legal abortion to not die), the Campaign separates itself from the conservative position that the country has held since 1921 and their work has demonstrated that having acces to a safe abortion goes beyond the beliefs, opinions and ideologies of the individuals involved. And it requires immediate and urgent solutions by the National State since the existence of the drama suffered by women who have abortions, whose health and lives are at risk, is a serious social problem.
In 1987 a judgement was created which enabled the right to create responsible and open decisions pertaining to reproduction. However, despite recognizing and guaranteeing women's reproductive rights, the concept of abortion was still viewed as a controversial subject, often not even considered a human rights.
Prior to the legalisation of abortion, Article 19 of the Civil Code of the Republic of Argentina, clearly stated that the existence of a human being initiates at the moment of conception. This meant that abortion remained illegal under the Argentine Penal Code 1997 as it was deemed to be “a crime against human life”, even if the mother was 14 weeks pregnant. This legislation had long existed since 1921. As a result, the act of abortion was only legal in instances where either the pregnancy was a result of rape or the mother’s life or health is in danger.
This criminalization of abortion perpetuated the gender stereotype of women as mothers, denying them reproductive autonomy and the right to make decisions about their own lifes. Moreover, it discriminates against women, as only they can become pregnant, and it disproportionately affects poor, young, black, and indigenous women. Thus, it violates the right to equality and non-discrimination on the basis of sex, age, race, and socio-economic conditions.
Legalisation of abortion
Although Argentina’s formidable Catholic Church including the evangelical community were thoroughly against the new bill, this historic moment was however a result of the joined work of La Campaña and la marea verde - a feminist movement that started in 2018 and whose name is in recognition of the green scarves worn by the supporters of the movement - formulated a bill on the Proyecto de Ley de Interrupción Voluntaria del Embarazo (IVE project), which was presented to Congress twice, the last time being supported by President Alberto Fernandez and finally approved by Congress as a law in 2020. This bill proposed that abortions are permitted to be conducted up to the 14th week of pregnancy.
The steps that Argentina took on December to legalise abortion can be seen as a manifestation of a wave of change that has been pressing Latin Amercia as shown in the case of Artavia Murillo et al. v Costa Rica. Here, the Inter-American Court of Human Rights (IACHR), established that there is no absolute right to life during the prenatal stage. Thus, the right to privacy and family life, personal autonomy and reproductive rights of the pregnant woman should not be neglected.
Essencially, it is just to state that abortion can be perceived as a necessity for many women who wish to opt for the procedure, though having an abortion is not an unequivocal right for the majority of the continent. Nevertheless, seeing as restrictions to abortion means that more people will opt to have an unsafe abortion which can ultimately result in death, a mixture of judicial and non judicial systems such as the United Nations, European Courts of Human Rights, and various other organisations can implement thoughts and recommendations in adherence with the existence of legislations to protect the individuals and human rights as a whole. Documents such as the Universal Declaration of Human Rights can also be applied to circumstances to ensure that rights of individuals are protected when having access to abortion.
The legalisation of abortion in Argentina had been a historic moment, for women, for Argentina and for Latin America as a whole. For both human and women’s rights, it is another huge step as the country has decriminalised a basic human right.