Anencephaly in Brazil: a new decision, old issues.

Photo by Jose Cruz, of Agencia Brasil

Yesterday, the Brazilian´s Supreme Court established that the abortion of anencephalic fetus is allowed under the Brazilian Constitution. This was a long battle, and it´s far from a definitive end.

Three years ago, this same Court issued a provisional ruling conceiving possible this kind of abortion (under the strict interpretation of Law, abortion is only possible in Brazil if the pregnancy was resulted by rape or if the pregnancy will endanger the woman´s life), but it lasted for weeks until other Ministers voted against it.

A writer and movie director was then filming the drama of Severina (a name which is commonly associated to suffering and poverty in Brazil), a woman who was pregnant to her anencephalic fetus.

Should she have money, she would simply enter a high-level illegal clinic, often even a hospital, and pay prices that range from 400 to 2.400 dollars to have a safe illegal abortion with a qualified doctor. But this wasn´t the scenario: Severina, as all Severinas, was analphabetic and poor. Yet, she knew her fetus was dead, and wanted to resume her pregnancy through the Public Health For that, she had to file a petition before a court. It took her seven months to get the positive result. She then had to find a doctor who was morally comfortable with her decision, another hard task. When she finally stepped into the hospital, the doctor left her there, saying he would operate her in the next day. The next day, the provisional decision that was permitting the possibility of this abortion was outvoted, and she couldn´t do it.

Finally, she waited nine months to give birth to her dead baby. It was torturing.

For unknown reasons, Brazil is the fourth country in number of cases of anencephalic fetus. The drama of our Severinas is widespread. As so, this decision, although not having the power of Legislation, will provide a safe and erga omnes case Law for women in this situation.

However, a significant figure of doctors still refuses to do the procedure. Furthermore, for the lack of Legislation, access to Justice will still be a condition to get a permission to abort, and this can go on for months. Usually, for a flaw on the confidentiality level this cases should hold, radical religious groups find out about them, and immediately start filing petitions in the name of the anencephalic fetus, asking for his right to live.

Even if the Judge is contrary to the arguing of these petitions, he is forced by Law and by the premises of the due process of Law to analyze and value them, which takes a time the pregnant woman shouldn´t be burnt with.

The symbolical level also play a role: as said, this problem hardly affects well-educated women with resources, who can simply walk into a private doctor or clinic, sometimes even her gynecologist, and undergo a safe and quick procedure (yet illegal). So, the woman who have to be granted Public Health, these Severinas, usually  have low levels of education, this having to search for answers in non-scientific fields, in the supernatural field. As so, an anencephalic fetus could be a God´s punishment, or even worse: a Satan´s baby – a monster! That makes it still harder to assimilate the pregnancy of a dead damned monster.

So, while the Legislative barriers any advancement in this area and the Judiciary has its own time of procedure, the Brazilian Severinas end up too often forced to give birth to a dead fetus. The bellies grow as their hearts break down.

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