De crime a direito humano: uma Crítica à Criminalização do Aborto

Abstract

Most cases of voluntary abortion are criminalized in Brazil, with only a few exceptions. The abortion law's explicit goal is to protect the foetus' life inside the uterus. However, the criminalization does not translate into a reduction in the numbers of clandestine abortions, which frequently result in serious consequences for the woman's physical and mental health and life, as well as the violation other human rights. Based on the literature of International Human Rights Law, this work has as object analyzes the possibility of changing the abortion law in Brazil, as a way of guaranteeing women's human rights. It then explores the issue of criminalization of abortion, analyzing based on the analysis of the National Abortion Survey and the magnitude of abortion in Brazil. It then reveals the contrast between the number of accusations and the dimension of abortion in Brazil and in the world. Moreover, it suggests the possibility that abortion is a social fact subject to decriminalization, exploring the Criminal Law's selectivity, symbolic use and non-declared goals, all based on the premises of Critical Criminology and Feminism. The conclusion is that the criminalization of abortion is illegitimate, not only because it is inadequate to fulfill its explicit goal of protecting the feotus' expectancy life, but also because it threatens other rights that are not explicitly mentioned in the criminal norm, but are directly affected by it, such as the women's right to dignity, to life, health, non-discrimination and to live free of inhumane, cruel or degrading treatment. It affirms that decriminalizing abortion is not only possible, since there are no obstacles in the Brazilian Constitution, but it is also necessary, in order to achieve women's human rights and so that Brazil can make up to the various international human rights treaties and conventions it has ratified.