Amnesty International delegates visited Nicaragua in June 2008 to carry out research into the impact of the prohibition and criminalisation of abortion on the progressive realisation of the right to health and the right to life for women and girls of reproductive age. The delegates held meetings with various representatives of the medical profession, health workers and women’s rights groups. This submission highlights Amnesty International’s concerns in relation to the complete ban on abortion, with no exceptions, even when the life of the woman is at grave risk from continuation of the pregnancy or she is a victim of rape. The submission contains recommendations for improvement, in accordance with the Nicaraguan States’ obligations under the United Nations Covenant on Economic Social and Cultural Rights.

Background

In October 2006, members of the Nicaraguan Congress voted in favour of a law revoking the right of women to therapeutic abortion. Nicaragua had for over 100 years before that recognised therapeutic abortion as a legitimate medical procedure in cases where the life of the mother was at grave risk from continuation of the pregnancy.¹

Therapeutic abortion is an emergency medical procedure that to that point had been carried out by medical professionals in hospitals. Nonetheless, consultation on the proposed amendments to the law by members of Congress did not include relevant experts or patients and was limited in favour of ecclesiastic representatives, whose views contrast with the Nicaraguan Ministry of Health’s own procedural guidelines on obstetric emergencies and do not correspond with relevant international human rights standards on the issue.

Allegedly, the same rights of audience were not extended to the medical profession, health rights, patients’ rights or women’s rights groups, despite the relevance of their opinion and expertise in the area.²

Since October 2006, amendments have also been made to the Nicaraguan Penal Code to include provisions that criminalise all forms of abortion. The new provisions came into effect on 9 July 2008.³ The new laws mean that both doctors and pregnant women, who carry out or obtain an abortion, may be tried and given lengthy prison terms, even where the life of the woman is at grave risk as a direct result of the pregnancy, or the woman is pregnant as a result of rape or incest.

The previous Penal Code in Nicaragua criminalized all forms of abortion except those carried out for therapeutic reasons (abortions performed to save the life of the pregnant woman). Article 165 of the Penal Code established that the circumstances for access to therapeutic abortion, for legal purposes, would be determined based on medical evidence, with the intervention of three physicians and the consent of the spouse or the nearest relative of the woman.⁴

According to the Nicaraguan Ministry of Health in 2002, some 6 legal (therapeutic) abortions were performed in hospitals in Nicaragua.⁵ This figure contrasts with the figure of 7,488 women who were admitted to hospitals in 2005 requiring treatment for abortion related complications.⁶ Haemorrhage, incomplete abortion, injury to internal organs, infection, uterine perforation and pelvic inflammatory disease are all such post-abortion complications which if left untreated can result in serious injury, infertility or death.⁷

Maternal Mortality in Nicaragua

In accordance with the United Nations Millennium Development Goal number 5 (MDG 5), Nicaragua has committed to reducing maternal mortality by 75 percent by the year 2015 from its baseline of 230 per 100,000 in 2000.⁸

Amnesty International is concerned that the ban of therapeutic abortion and the criminalisation of abortion constitute an obstacle to the reduction of maternal mortality in Nicaragua. Globally, the World Health Organisation estimates that death from complications due to unsafe abortion account for 13% of maternal deaths worldwide⁹and a concern of the medical profession in Nicaragua is that there will be a rise in women dying unnecessarily in hospitals as a result of the change in the criminal law on abortion.¹⁰ In 2007, the number of maternal deaths for that year was given by the State as 115 in total across the whole country. One study carried out by a doctor and expert in sexual and reproductive health of the case notes of each of the 115 deaths in 2007 found that 12 of the deaths might have been prevented if the women concerned had been able to access therapeutic abortions safely.¹¹

According to the United Nations Population Fund, the Nicaraguan State method for registration of maternal deaths is lacking and the annual figures provided are unreliable.¹²The Nicaraguan state in paragraph 499 of its 2007 report to the Committee on Economic Social and Cultural Rights also recognises there are flaws in the registration of maternal deaths, stating that in rural areas women may die in childbirth and be buried without having had any contact with the authorities including access to skilled personnel.¹³Their deaths are not included in the official maternal death statistics.

Further, Amnesty International was informed by several specialists on maternal affairs, that the Ministry for Health does not explain how it sources the figures: they expressed concern that the figures do not take into account, for example, the rising number of suicides among women of reproductive age since the introduction of the new abortion law. Based on the Tenth International Classification of Diseases of the World Health Organization (ICD-10), maternal death is “the death of a woman while pregnant or within 42 days of termination of pregnancy, irrespective of the duration and the site of pregnancy, from any cause related to or aggravated by the pregnancy or its management but not from accidental or incidental causes.”¹⁴ Using this classification as a guide, Amnesty International is concerned that, in some cases, unwanted pregnancy may have been a factor in the woman’s decision to end her life and this is not currently reflected in information gathered in Nicaragua.

There is a concern that under-reporting of crimes of sexual violence is extensive in Nicaragua and there is a lack of official data on the number of pregnancies as a result of rape.¹⁶ In an attempt to combat this deficit of information, a local organization working on sexual and reproductive rights carried out a survey of the local press to analyse the number of crimes of rape and incest reported in the media. The results show that between 2005 and 2007, 1,247 young girls were reported in newspapers to have been raped and or to have been the victims of incest. Of the 1,247 girls, some 198 were reported to be pregnant as a result of the rape. 172 of those 198 pregnant girls were between the ages of 10-14 years.¹⁷ Other local and international NGO’s working to provide support to the victims say that this survey does not demonstrate the full extent of the problem, particularly in rural areas.¹⁸

Teenage pregnancy

The Nicaraguan State report to the Committee on Economic, Social and Cultural rights outlines in paragraph 501 that one of the initiatives it has planned to combat maternal mortality is the increase access to information about contraception and contraceptives amongst the population of reproductive age.¹⁹However, recent studies carried out by the Alan Guttmacher Institute and the United Nations Population Fund respectively indicate that Nicaragua has the highest teenage pregnancy rate in Latin America and the Caribbean, with some 1 in every 4 births occurring to females between the ages of 15 and 19 years.²⁰ In the rural areas in Nicaragua, teenagers account for a third of all births.²¹

International human rights law, maternal health and abortion

The Nicaraguan Constitution states in article 46:

In the national territory every person enjoys State protection and recognition of the inherent rights of the human person, the unrestricted respect, promotion and protection of human rights and the full exercise of the rights enshrined in the Universal Declaration of Human Rights, in the American Declaration on the Rights and Duties of Man, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights of the United Nations, and in the American Convention on Human Rights of the Organization of America States.²²

The obligation on States to realise progressively the right to the highest attainable standard of health is enshrined in a number of international and regional instruments to which Nicaragua is party. Nicaragua has ratified the International Covenant on Economic Social and Cultural Rights (ICESCR), which in article 12 (1) provides that state parties must “recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”

In paragraph 21 of General Comment 14 the Committee on Economic, Social and Cultural Rights explains, “The realization of women's right to health requires the removal of all barriers interfering with access to health services, education and information, including in the area of sexual and reproductive health.” The Committee has further clarified in paragraph 29 of General Comment 16

Article 12 of the Covenant requires at a minimum, the removal of legal and other obstacles that prevent men and women from accessing and benefiting from healthcare on a basis of equality. This includes, inter alia, addressing the ways in which gender roles affect access to determinants of health, such as water and food; the removal of legal restrictions on reproductive health provisions; the prohibition of female genital mutilation; and the provision of adequate training for health care workers to deal with women’s health issues.

The Committee also clarifies in paragraph 54 of General Comment 14

The formulation and implementation of national health strategies and plans of action should respect, inter alia, the principles of non-discrimination and people's participation. In particular, the right of individuals and groups to participate in decision-making processes, which may affect their development, must be an integral component of any policy, programme or strategy developed to discharge governmental obligations under article 12.

Further, as noted in article 46 of the Nicaraguan Constitution, Nicaragua is party to the American Convention on Human Rights and the Charter of the Organisation of American States. Cecilia Medina Quiroga, the current President of the Inter-American Court of Human Rights has commented that when interpreting the obligations of the State parties to the convention:

In certain cases, such as when continuing the pregnancy would endanger the life of the woman, or when the pregnancy is as a result of rape, the criminalisation of abortion would cause a violation of the obligation of the State to protect the life of the woman.²³

Nicaragua has ratified the “Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, ‘Convention of Belém do Pará’ which in article 4 a) protects the right of women “to have her life respected” and further in 4 b) The right to have her physical, mental and moral integrity respected. The Convention “Belém do Pará” also enshrines the rights of women to be free from torture article 4 d) and to be free from discrimination in article 6 a).

Nicaragua has signed the Protocol of San Salvador (“Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, ‘Protocol of San Salvador’”) which contains relevant provisions on non-discrimination (art. 3), health (art. 10) and, further the obligation to adopt measures necessary to achieve the rights enshrined in the protocol (art. 1). Under article 18 of the Vienna Convention on the Law of Treaties the signature of a treaty obliges the respective State to “refrain from acts which would defeat the object and purpose” of the instrument, therefore requiring respect for all the rights contained therein.

Additionally, the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), which is also binding on the Nicaraguan state, asserts in article 12 (1) that “States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning.”

In the context of women’s right to non-discrimination and equality relating to the right to the highest attainable standard of health, the CEDAW Committee has stated that “laws that criminalize medical procedures only needed by women and that punish women who undergo those procedures” form “barriers to women's access to appropriate health care” which contravene the state’s obligation to respect women’s human rights. The Committee has expressly called on states to amend legislation criminalizing abortion “in order to withdraw punitive measures imposed on women who undergo abortion.”²⁴

Nicaragua is also a state party to the International Covenant on Civil and Political Rights (ICCPR), which enshrines the right to life in article 6 (1). The Human Rights Committee, which gives authorized interpretations on the rights contained in the Covenant, has addressed pregnancy- and childbirth-related deaths of women as a concern regarding women’s equal enjoyment of the right to life and stated that states must help women prevent unwanted pregnancies and “to ensure that they do not have to undergo life-threatening clandestine abortions.”²⁵ Further in article 7 of the covenant the state is obliged to ensure that no one is “subjected to torture or inhuman degrading treatment or punishment.” Interpreting Article 7, the Human Rights Committee has asked states parties to the ICCPR whether women pregnant as result of rape have access to safe abortion, indicating that lack of such access raises concerns regarding women’s enjoyment of their right to freedom from torture and cruel, inhuman or degrading treatment.²⁶

Violations of the right to health under the ICESCR

The CESCR has clarified, in paragraph 48 of General Comment 14 that a breach of the Covenant can occur through “The adoption of any retrogressive measures incompatible with the core obligations under the right to health….” Further,

Violations through the acts of commission include the formal repeal or suspension of legislation necessary for the continued enjoyment of the right to health or the adoption of legislation or policies which are manifestly incompatible with pre-existing domestic or international obligations in relation to the right to health.

The same General Comment in paragraph 50 further clarifies that

Violations of the obligation to respect are those State actions, policies or laws that contravene the standards set out in article 12 of the covenant and are likely to result in bodily harm, unnecessary morbidity and preventable mortality.

In paragraph 51, the CESCR has asserted “Violations of the obligation to protect follow from the failure of a State to take all necessary measures to safeguard persons within their jurisdiction from infringements of the right to health by third parties.”

Further, in paragraph 52, violations of the obligation to fulfil

occur through the failure of States parties to take all necessary steps to ensure the realization of the right to health. Examples include the failure to adopt or implement a national policy designed to ensure the right to health for everyone; …the failure to adopt a gender sensitive approach to health; and the failure to reduce infant and maternal mortality rates.

Interpretation and implementation of these obligations in relation to access to safe abortion and de-criminalization of abortion

The Committee on Economic Social and Cultural Rights repeatedly has expressed concern at the introduction of restrictive abortion laws and the serious impediment they represent to women’s right to the highest attainable standard of health and their right to life.²⁷

The Committee has requested state parties to the Covenant to reform their laws and legalize abortion on a number of occasions, for example in its concluding observations the Committee has urged Chile, a country with abortion legislation as restrictive as Nicaragua’s current legislation, to “reform its abortion legislation and to consider exceptions to the general prohibition of abortion, in cases of therapeutic abortion and pregnancy resulting from rape or incest.”²⁸

The United Nations Human Rights Committee has interpreted and applied article 6 [right to life] of the ICCPR to the restrictive abortion law in Mauritius:

The Committee notes with concern that section 235 of the Penal Code penalizes abortion even when the mother’s life is in danger, and thus may encourage women to resort to unreliable and illegal abortion, with inherent risks for their life and health (article 6 of the covenant).²⁹

Interpretation of state obligations in relation to victims of rape or incest

The CESCR has recommended on several occasions the reform of restrictive abortion laws to ensure victims of rape or incest are not compelled to carry the pregnancy to term.³⁰

The Committee on the Rights of the Child also has expressed concern at the illegality of abortion for young girl victims of rape in Palau:

The Committee notes that abortion is illegal except on medical grounds and expresses concern regarding the best interests of child victims of rape and/or incest in this regard. The Committee recommends that the State party review its legislation concerning abortion, with a view to guaranteeing the best interest of child victims of rape and incest.³¹

When commenting on similar abortion laws in Sri Lanka the United Nations Human Rights Committee has stated

The Committee is also concerned by the high number of abortions in unsafe conditions, imperilling the life and health of the women concerned, in violation of articles 6 [right to life] and 7 [prohibition of torture] of the covenant. The State party should ensure that women are not compelled to continue with pregnancies where this would be incompatible with obligations arising under the Covenant (article 7 and general comment No.28) and repeal the provisions criminalizing abortion.³²

Further, it is significant in this regard that the African Union Protocol on the Rights of Women in Africa guarantees the right to abortion in cases, inter alia, of sexual assault, rape and when the pregnancy endangers the mental or physical health of the mother.³³

Conclusions

The repeal of the law allowing therapeutic abortion in October 2006 and, further, the subsequent criminalization of abortion in all circumstances constitute a retrogressive measure and a serious breach of the states obligations under the United Nations Covenant on Economic Social and Cultural Rights. Amnesty International believes that this violation puts at risk the realization of the right to the highest attainable standard of health and the right to life in Nicaragua for women and girls.

The following key human rights concerns have been aggravated by the new restrictive laws relating to abortion:

• An atmosphere of fear and uncertainty now dominates the treatment of gynaecological emergencies. Medical practitioners’ fear of criminal prosecution, and confusion over the law as it contradicts with the protocols, has led to delays in treatment, particularly in hospitals in rural areas, of women who may require therapeutic abortion to save their lives.

• Doctors may feel compelled to disregard the medical protocols for gynaecological emergencies, which have been approved by the Ministry of Health, because they fear being prosecuted for performing a therapeutic abortion.

• Thousands of women across Nicaragua seek hospital treatment each year for complications resulting from spontaneous or induced abortions. The criminalization of abortion is likely to have made women more reluctant to approach hospitals for life-saving treatment because they fear criminal prosecution for abortion.

• The State party has not taken sufficient measures to support family planning or to help prevent unwanted pregnancies.

• Due to the criminalization of abortion, some health workers are fearful of consultation with peers over what procedure might be best to perform in cases where therapeutic abortion might be one course of action, even if they are detailed in the protocols that have been devised and approved by the Ministry of Health in Nicaragua.

• Women’s own wishes in relation to termination of pregnancy when their life is at risk from continuation of the pregnancy will not be taken into consideration due to the fear amongst the medical profession of prosecution. Women themselves maybe fearful of expressing their wishes due to the criminalization of abortion, even where it would be a life saving procedure.

• In a country with a high incidence of rape and incest, the criminalization of all forms of abortion is of particular concern.

• The lack of data available on young girls pregnant as a result of rape is also of serious concern, given the prevalence of rape and incest in the country. There are no figures available from the State as to the number of women and girls pregnant as a result of rape who have been compelled to carry their pregnancies to full term, or what the outcome of those pregnancies has been.

Amnesty International’s recommendations

• De-criminalize abortion in all circumstances and reform legislation to allow for therapeutic abortion in cases of pregnancy as a result of rape or incest and in circumstances where continuation of pregnancy would put the health or life of the woman or girl at risk.

• Following the de-criminalization of therapeutic abortion, the state should publically announce that all doctors should adhere to the protocols established for obstetric emergencies in Nicaragua and support the dissemination of the protocol to all hospitals and clinics in the country.

• Immediate steps should be taken to document maternal deaths and provide disaggregated statistics on maternal health. These statistics and the methods used to obtain them should be published and made widely available. In particular, information on reports of rising suicides, ensuring tests are carried out to see if unwanted pregnancy was a contributing factor.

• Detailed data on the number of rape and incest victims who have been compelled, or coerced by whatever means, to carry their pregnancy to full term should be collected and made available to the public.

• Measures are taken to ensure a nationwide plan of sexual health education is developed and implemented, particularly targeting the rural areas. The plan should be developed and tested by known experts in the field of sexual and reproductive health, in consultation with a wide range of stakeholders to ensure that the school curricula objectively and effectively addresses the subjects of sex education and family planning. Access to sexual health education must not be discriminatory and all pupils should have equal access to the programme in all schools.

• Steps are taken to ensure that services providing independent and objective advice on sexual and reproductive health are easily and equally accessible to all, including those in rural areas and to all girls of reproductive age.

• A formal, regular and open dialogue should be facilitated between the state authorities with the professional medical associations and women’s and children’s rights groups on issues of common interest such as the progressive realization of the right to health of women.

• All future laws relating to health matters should be preceded by a transparent and thorough consultation procedure with all those stakeholders and experts who will be impacted by the law, including representatives of the medical profession, a wide range of individual expert practitioners, relevant patient rights groups, amongst other interested parties.