**Abstract**

The deleterious effects of the criminal law, which deals with abortion in Brazil, the restriction of reproductive rights and their impact on women's health will be the subject discussed in this chapter from an analysis of the "case of the ten thousand," as it became known the emblematic reproductive rights violation of a universe of almost ten thousand, women, occurred in Campo Grande, Mato Grosso do Sul (MS), in 2007, when a doctor's office was invaded by the police after a television report denouncing the establishment for abortion practices. This chapter discusses this paradigmatic case of violation of privacy and disrespect to reproductive health by making critical considerations about the implications of the criminalization of abortion on the physical and emotional integrity of women, highlighting the discursive contradictions between the Brazilian law and the United Nations Documents that deal with the consequences of unsafe abortion in the female population worldwide.

**Keywords:** criminal law, abortion, reproductive rights, reproductive health

## **1. Introduction**

The criminal law that deals with abortion on the Brazilian territory walks against the progress of reproductive rights on the international board, of scientific evidences that highlight health risks caused by the criminalization and the positive experiences of safe abortion services on countries where it is legalized. It is a police assumption, a crime normalized by justice, a sin for many people and a serious public health problem, a controversial field of discussion, delicate and prickly.

On this conflicted combat ring I present the "ten thousand case," as it became known a Dantesque episode of reproductive rights' violation in an universe of almost ten thousand (9896) women, that took place in Campo Grande, capital of Mato Grosso do Sul (MS), provoking controversy between, on one side, the defenders of embryonic cells' life since conception and, on the other, the ones who defend the dignity of life and autonomy of women.

Mato Grosso do Sul is a state in the Midwest region of the Brazilian territory considered one of the country's granaries in planting grains and raising cattle. In this state with agrarian characteristics and conservative norms of gender perseveres the contrasts of concentration of income, of the power of the oligarchies and of the large rural properties that reinforce the bases of Coronelismo and Machismo, besides the oppression of the women in the city, countryside, indigenous villages, border regions and Quilombola communities.

It was in this hostile environment that the greatest act of violation of women's rights occurred in the history of the Midwest region, with the accomplishment of the journalistic material on the Family Planning Clinic, of the former doctor Neide Mota Machado, in the largest television network of the region that denounced abortion practice without obtaining convincing evidence.

Remembering, on the 10th day of April in the year 2007, a medical clinic named "Familiar Planning Clinic," owned by an anaesthesiologist named Neide Mota Machado, was invaded by police after the exhibition of the news report that reported the place for performing abortions. On the occasion, police confiscated the medical records of ten thousand women, violating their right to privacy and medical confidentiality about health questions which concerned only them.

In Brazil, the juridical instrument that deals on abortion is the Criminal Code, dated from 1940, where, on its articles 124–128, condemns abortion in every case, with or without the pregnant' consent; excluding two exceptional situations: if the pregnancy results from rape or presents real risks to the woman's life. There is still a recent measure promulgated that allows the therapeutic anticipation of child-birth when it presents anencephalic fetus.1

Despite the severe criminalization of abortion (excluding the three cases mentioned above) the prison sentence has weak application in the country, due to the expressive numerical proportion of women that resort, daily, to this popularly used practice, unable to be imprisioned in a system that is already overcrowded and deficient. But it looms upon them the fear of being discovered, the threat of being denounced to police, stigmatized by society and the risk of punishment by justice [1–6].

About one in every five Brazilian women around 40 years old already interrupted a pregnancy at least once. In 2015 alone, the estimatives pointed 416 thousand abortions in all country. The clandestine abortion entails, frequently, countless sequels on health or even death, and imposes an expressive factor of mortality among women: it is the fifth biggest cause of maternal death, in its vast majority preventable if abortion was legalized, free and safe.2

Even before imminent risks, there are many women who dribble the law and exercise the right to choose to interrupt an unplanned, unwanted and rejected pregnancy, generally, clandestinely and without proper medical assistance. The restrictive criminal law, thus, fulfil a misogynistic pedagogical objective: the maintenance of compulsory maternity and the male guardianship over the feminine governability of their own body and destiny.

It is a disciplinary correction device that punishes legally and symbolically women that dare to enjoy the freedom of choice and self-care, with discernment and ethic authonomy, on the most intimate, hard, painful and delicate decision for abortion. "In practice, the laws concerning abortion has less prescriptive function

**209**

or master's decision.

the masculine's interests and will [7, 9].

*Abortion, Criminal Law and the Ten Thousand Women: Portraits of the Inquisition…*

culminated with the inquisition of four women before a Popular Jury.

insecure abortions among the female population around the world.

**2. Juridical devices, disciplining of bodies: two-way street?**

Themes like abortion, maternity and law devices on the reproductive scope cannot be dissociated from gender conventions immersed on the historical context of each period, culture and society. On Classical Antiquity, for instance, many philosophers believed that men were transmitters of humanity oriented by the understanding that semen generated life in the receptacle of the female body. Women were conceived as a territory to seed and the ones at fault in case of sterility [7]. Women's anatomy was defective and deficient, said Aristoteles. Men, on the other side, were endowed with the creation act by the qualities inherent to their sex, of their breath and fertility of their seed when fertilizing the cold vessel of the women made life sprout, superiodr dimension of the masculine (omni)potence [8]. However, on the Greco-Roman world the decision for abortion did not suffer moral or legal condemnation. But the apparent freedom and autonomy of women on the control of their body was subordinated to the meticulous appraisal of the husband's

Thereby, abortion was only allowed when it did not go against the will of progeny and many were the men that accused women of denying them this right. On those cases, the crime was not about the abortion of the fetus, but to contradict

On the Middle Ages, the Christianization of the West by the roman caused the collapse of the ancient pagan traditions, cults, belief and the rich pharmacopeia became stigmatized, hunt down and condemned. The women's knowledge became a heresy and a threat to the know-power of the first herbalists (doctors), proof of witchcraft and union with the devil in consequence of their weak and diabolical personality. The evil and vile inclination of the feminine character is highlighted on Malleus Maleficarum, the most important known guide of identification and fight against

then symbolic disciplinary function; although not effective, it makes a normative environment that punishes the women psychologically socially" ([2], p. 38).

This article presents the history of the case of the ten thousand that was marked as a kind of contemporary witch hunt, with legal, symbolic and moral punishment and stigmatization of the feminine, that is, a methodology to condemn thousands of women using the sensationalism bonfire of mass communication vehicles, the religious dogmatism of the speech in support to life since conception, the coercive effects of a law about freedom of choice and the power of conservative forces that

On the next part of this essay the text explores the relationship between gender relations and legal devices and the legislator's perspective on the differential treatment of male and female in various historical moments, highlighting also the influence of dogmatic religious groups and other conservative forces that press Brazilian parliaments in contemporaneity, in an attempt to enact antiquated laws that weaken or even disregard human rights, especially with regard to sexual and reproductive rights. After this subitem, it will focus on the story of the Familiar Planning Clinic since the start and highlight the paths that employees of such establishment took to the Jury trial, as well as the events that resulted on the violation of privacy and disrespect of reproductive health of the ten thousand. On the next section I talk about the most striking moments of the Jury Court and, lastly, I weave critical considerations about the implications of abortion criminalization on the physical and emotional integrity of women, highlighting the discursive contradictions between the Brazilian law and United Nations documents that deal with the consequences of

*DOI: http://dx.doi.org/10.5772/intechopen.89014*

<sup>1</sup> In 2004, the National Confederation of Health Workers (Confederação Nacional dos Trabalhadores na Saúde/CNTS) filed a petition of an Argument of Fundamental Precept Violation (Arguição de Descumprimento de Preceito Fundamental (ADPF 54), arguing that the prohibition of child-birth anticipation of ananencephalic fetusis a violation of the mother's dignity. In 2012, the Federal Courtof Justice approved the permission for anticipation on this case.

<sup>2</sup> Information available at the electronic address (in Portuguese): https://www.huffpostbrasil. com/2018/07/31/aborto-no-brasil-como-os-numeros-sobre-abortos-legais-e-clandestinos-contribuemno-debate-da-descriminalizacao\_a\_23486575/ [Accessed on: July 2018].

#### *Abortion, Criminal Law and the Ten Thousand Women: Portraits of the Inquisition… DOI: http://dx.doi.org/10.5772/intechopen.89014*

then symbolic disciplinary function; although not effective, it makes a normative environment that punishes the women psychologically socially" ([2], p. 38).

This article presents the history of the case of the ten thousand that was marked as a kind of contemporary witch hunt, with legal, symbolic and moral punishment and stigmatization of the feminine, that is, a methodology to condemn thousands of women using the sensationalism bonfire of mass communication vehicles, the religious dogmatism of the speech in support to life since conception, the coercive effects of a law about freedom of choice and the power of conservative forces that culminated with the inquisition of four women before a Popular Jury.

On the next part of this essay the text explores the relationship between gender relations and legal devices and the legislator's perspective on the differential treatment of male and female in various historical moments, highlighting also the influence of dogmatic religious groups and other conservative forces that press Brazilian parliaments in contemporaneity, in an attempt to enact antiquated laws that weaken or even disregard human rights, especially with regard to sexual and reproductive rights. After this subitem, it will focus on the story of the Familiar Planning Clinic since the start and highlight the paths that employees of such establishment took to the Jury trial, as well as the events that resulted on the violation of privacy and disrespect of reproductive health of the ten thousand. On the next section I talk about the most striking moments of the Jury Court and, lastly, I weave critical considerations about the implications of abortion criminalization on the physical and emotional integrity of women, highlighting the discursive contradictions between the Brazilian law and United Nations documents that deal with the consequences of insecure abortions among the female population around the world.

### **2. Juridical devices, disciplining of bodies: two-way street?**

Themes like abortion, maternity and law devices on the reproductive scope cannot be dissociated from gender conventions immersed on the historical context of each period, culture and society. On Classical Antiquity, for instance, many philosophers believed that men were transmitters of humanity oriented by the understanding that semen generated life in the receptacle of the female body. Women were conceived as a territory to seed and the ones at fault in case of sterility [7].

Women's anatomy was defective and deficient, said Aristoteles. Men, on the other side, were endowed with the creation act by the qualities inherent to their sex, of their breath and fertility of their seed when fertilizing the cold vessel of the women made life sprout, superiodr dimension of the masculine (omni)potence [8]. However, on the Greco-Roman world the decision for abortion did not suffer moral or legal condemnation. But the apparent freedom and autonomy of women on the control of their body was subordinated to the meticulous appraisal of the husband's or master's decision.

Thereby, abortion was only allowed when it did not go against the will of progeny and many were the men that accused women of denying them this right. On those cases, the crime was not about the abortion of the fetus, but to contradict the masculine's interests and will [7, 9].

On the Middle Ages, the Christianization of the West by the roman caused the collapse of the ancient pagan traditions, cults, belief and the rich pharmacopeia became stigmatized, hunt down and condemned. The women's knowledge became a heresy and a threat to the know-power of the first herbalists (doctors), proof of witchcraft and union with the devil in consequence of their weak and diabolical personality.

The evil and vile inclination of the feminine character is highlighted on Malleus Maleficarum, the most important known guide of identification and fight against

*Education, Human Rights and Peace in Sustainable Development*

border regions and Quilombola communities.

when it presents anencephalic fetus.1

justice [1–6].

tion practice without obtaining convincing evidence.

preventable if abortion was legalized, free and safe.2

governability of their own body and destiny.

Justice approved the permission for anticipation on this case.

no-debate-da-descriminalizacao\_a\_23486575/ [Accessed on: July 2018].

the contrasts of concentration of income, of the power of the oligarchies and of the large rural properties that reinforce the bases of Coronelismo and Machismo, besides the oppression of the women in the city, countryside, indigenous villages,

Remembering, on the 10th day of April in the year 2007, a medical clinic named "Familiar Planning Clinic," owned by an anaesthesiologist named Neide Mota Machado, was invaded by police after the exhibition of the news report that reported the place for performing abortions. On the occasion, police confiscated the medical records of ten thousand women, violating their right to privacy and medi-

In Brazil, the juridical instrument that deals on abortion is the Criminal Code, dated from 1940, where, on its articles 124–128, condemns abortion in every case, with or without the pregnant' consent; excluding two exceptional situations: if the pregnancy results from rape or presents real risks to the woman's life. There is still a recent measure promulgated that allows the therapeutic anticipation of child-birth

Despite the severe criminalization of abortion (excluding the three cases mentioned above) the prison sentence has weak application in the country, due to the expressive numerical proportion of women that resort, daily, to this popularly used practice, unable to be imprisioned in a system that is already overcrowded and deficient. But it looms upon them the fear of being discovered, the threat of being denounced to police, stigmatized by society and the risk of punishment by

About one in every five Brazilian women around 40 years old already interrupted a pregnancy at least once. In 2015 alone, the estimatives pointed 416 thousand abortions in all country. The clandestine abortion entails, frequently, countless sequels on health or even death, and imposes an expressive factor of mortality among women: it is the fifth biggest cause of maternal death, in its vast majority

Even before imminent risks, there are many women who dribble the law and exercise the right to choose to interrupt an unplanned, unwanted and rejected pregnancy, generally, clandestinely and without proper medical assistance. The restrictive criminal law, thus, fulfil a misogynistic pedagogical objective: the

maintenance of compulsory maternity and the male guardianship over the feminine

It is a disciplinary correction device that punishes legally and symbolically women that dare to enjoy the freedom of choice and self-care, with discernment and ethic authonomy, on the most intimate, hard, painful and delicate decision for abortion. "In practice, the laws concerning abortion has less prescriptive function

<sup>1</sup> In 2004, the National Confederation of Health Workers (Confederação Nacional dos Trabalhadores na Saúde/CNTS) filed a petition of an Argument of Fundamental Precept Violation (Arguição de Descumprimento de Preceito Fundamental (ADPF 54), arguing that the prohibition of child-birth anticipation of ananencephalic fetusis a violation of the mother's dignity. In 2012, the Federal Courtof

com/2018/07/31/aborto-no-brasil-como-os-numeros-sobre-abortos-legais-e-clandestinos-contribuem-

<sup>2</sup> Information available at the electronic address (in Portuguese): https://www.huffpostbrasil.

cal confidentiality about health questions which concerned only them.

It was in this hostile environment that the greatest act of violation of women's rights occurred in the history of the Midwest region, with the accomplishment of the journalistic material on the Family Planning Clinic, of the former doctor Neide Mota Machado, in the largest television network of the region that denounced abor-

**208**

witchcraft. This document became something like a churchman Criminal Code indispensable to the catholic judges on the race against the witches. Born from a crooked rib, women are mysterious beings, of fragile sex, treacherous and cunning that distill the damnation above everyone, imperfect animals and liars worse than death. "Without the malignancy of women, not to mention the witchcraft, the world would keep existing immune to numerous hazards," speculates the bull of the inquisitors ([10], p. 53).

Essentially related to sexuality and the mysteries of the universe, to the limits between life and death, like abortion, witches were nothing more than the peasants, lovers, prostitutes, midwives, healers, mourners, women that defied the church dogmas by holding knowledge and power about diseases relief and control of the body [11], like phytotherapeutic knowledge of medicinal teas, passed on from generation to generation through oral tradition, which united women, because the herbs were cultivated on the backyards, close to the kitchen, denoting a familiar and intimate knowledge of the feminine, highlighted Del Priore [12].

From Plato to Aristotle, going through the church philosophers, to the example of Saint Augustine and Thomas Aquinas3 , many are the treaty that reaffirm the inequality of women in relation to men, highlights the historian Mary Del Priore [13]. According to her, the philosophical thinking of centuries XVIII and XIX justified the masculine domination in various ways.

Even the illuminists from the French Revolution (1789), carriers of new ideologies in the name of reason, freedom and equality and opponents to the church dogma when proclaiming the quality of rights to men, excluded women equating in some aspects to the conservatism and intolerance of the medieval catholic morality. Remember the french feminist Olympe de Gouges, that when elaborating the Declaration of the Rights of Woman and of the Female Citizen, in counterpoint to the Declaration of the Rights of Man and Citizen, was criminalized, condemned to death and decapitated in a public square under the accusation of subverting the designs of nature. The principles of Human Rights were, notoriously, erected grounded on the masculine [14, 15].4

Despite the resistance and women's fights for civil and politic rights, the secondary place delegated to them in the family and society ruled expressively on the Victorian Age. It was evident, so, that abortion was not allowed. With the ascension of social medicine there is a reinforcement of binary representations of gender versed as a science threshold. The fragility, the pudency, the affective characteristics in detriment of the rational ones and the subjection of sexuality to the maternalism constituted the medical normalizations for the feminine [14, 15].

The association of women to maternity, considered an innate biological instinct, built the normality parameters to the feminine sex prescribed by the masculine

**211**

*Abortion, Criminal Law and the Ten Thousand Women: Portraits of the Inquisition…*

gaze. The will to generate, give birth and motherhood were preponderant facts on the definition of a healthy and balanced organism settling the natural fate of women: get married, give birth, raise children, take care of the house, the husband

Such aspects also influenced the juridical world, because the definition of crime and offense followed a stereotype vision of the proper conduct to men and women. Cesare Lombroso, Italian doctor and criminologist and one of the most famous exponents of the racist and mysoginist thinking of this phase of history, believed that women with outstanding erotism and intelligence did not have the maternal feeling, there so, were abnormality and dangerous creatures composing the group of the criminal, prostitutes and crazy that should be banished from society

In general lines, those gender norms disseminating a world order unequal to men and women enrolled in Latin America from the European colonization remaining along the XIX century. In the scope of social relations, the masculine privileges on the field of economy, culture, politics and sexuality were backed by law, church recommendations and medical corporations that timidly were emerging [16]. The gender conventions dictated the life rules of men and women as outlined by the Civil Codes of the past centuries, drawn under the inspiration of Spanish and Portuguese law, heavily based on canonical principles. In them, women were banned from acting in the public scope and their rights to property, property management, inheritance, and decision making in marriage remained limited. In addition, criminal law judged the crimes committed by the male and the female sex differently, whose judgments involving human rights honesty and male honor

And in spite of the cultural atmosphere instituted by the bourgeois revolutions (Industrial and French Revolution) in Europe to have influenced the revision of canon law in Latin societies in the mid-XIX century, the new legal body processed to reiterate the family model already prescribed in the Canonical Code: religious, heterosexual, monogamous and undissolvable marriage, as well as the

Regarding Brazil, in 1830, in the Criminal Code of the Empire, a device that considers abortion a crime that jeopardized security and human life itself, with the exception of non-punishment when abortion was committed by the pregnant woman herself. The Criminal Code of the Republic of 1890 also did not punish women, but presaged punishment for the practice of abortion performed by third parties, with or without the consent of the pregnant woman, with aggravation if

Later in time, the Brazilian Criminal Code of 1940, which deals with abortion in Articles 124–128, allowed abortion only in cases of risk to the woman's life or due to rape and criminalized it in other situations. Concerning the permission of abortion involving sexual violence, the conception of jurists in general pointed out that the rape severely damaged male honor and dignity and tainted the offspring of the man who did not accept to support illegitimate children and pass on his inheritance. Therefore, it was a mentality that followed patriarchal period customs and not

Although dated from 1940, the provisions of the Criminal Code concerning abortion remain in force, but are obsolete and anachronistic for the contemporary society. It is important to say that this legislation was promulgated in the government of Getúlio Vargas, president who took over the country through a coup. That is, the law that governs abortion in Brazil was drawn in full dictatorial regime, in a socio-cultural context of rigid gender customs: few women worked outside home, drove cars, had a college degree, could choose whether or not to have

husband's authority over his wife and children (Patria potestas) [16].

necessarily a concern for women, their physical and emotional health.

*DOI: http://dx.doi.org/10.5772/intechopen.89014*

(Lombroso and Ferrero apud Soihet, [15]).

highlighted these sexist distortions [16].

this resulted in her death.

and the children [9].

<sup>3</sup> However, it is important to note: the Catholic Church has not always considered abortion a sin or a crime and it cannot be said that there was consensus on the subject over time. St. Augustine in the fourth century and Thomas Aquinas, a thousand years later, for example, considered the embryo a life only after 40 days of gestation (6 weeks). We can also cite the encyclical Apostolicae Sedis (1869), promulgated by Pope Pius IX, in Italy, which came to condemn abortion radically. But the reasons were not so much humanitarian as politics. It was the time of the unification war of Italy, and the pope needed Napoleon's army. In exchange, Bonaparte asked Pius IX to declare that the soul and human life were given from the conception, since the French low birth rate was a hindrance to the French emperor. See the article "The Catholic Church has not always been against abortion." Available from: https://www.revistaforum.com. br/igreja-catolica-nem-sempre-foi-contra-o-aborto/ [Accessed on: December 19, 2018].

<sup>4</sup> Even under this hostile atmosphere, women have claimed a different position in society claiming the right to education, work, political participation and full citizenship through a series of manifestations and protests.

*Abortion, Criminal Law and the Ten Thousand Women: Portraits of the Inquisition… DOI: http://dx.doi.org/10.5772/intechopen.89014*

gaze. The will to generate, give birth and motherhood were preponderant facts on the definition of a healthy and balanced organism settling the natural fate of women: get married, give birth, raise children, take care of the house, the husband and the children [9].

Such aspects also influenced the juridical world, because the definition of crime and offense followed a stereotype vision of the proper conduct to men and women. Cesare Lombroso, Italian doctor and criminologist and one of the most famous exponents of the racist and mysoginist thinking of this phase of history, believed that women with outstanding erotism and intelligence did not have the maternal feeling, there so, were abnormality and dangerous creatures composing the group of the criminal, prostitutes and crazy that should be banished from society (Lombroso and Ferrero apud Soihet, [15]).

In general lines, those gender norms disseminating a world order unequal to men and women enrolled in Latin America from the European colonization remaining along the XIX century. In the scope of social relations, the masculine privileges on the field of economy, culture, politics and sexuality were backed by law, church recommendations and medical corporations that timidly were emerging [16].

The gender conventions dictated the life rules of men and women as outlined by the Civil Codes of the past centuries, drawn under the inspiration of Spanish and Portuguese law, heavily based on canonical principles. In them, women were banned from acting in the public scope and their rights to property, property management, inheritance, and decision making in marriage remained limited. In addition, criminal law judged the crimes committed by the male and the female sex differently, whose judgments involving human rights honesty and male honor highlighted these sexist distortions [16].

And in spite of the cultural atmosphere instituted by the bourgeois revolutions (Industrial and French Revolution) in Europe to have influenced the revision of canon law in Latin societies in the mid-XIX century, the new legal body processed to reiterate the family model already prescribed in the Canonical Code: religious, heterosexual, monogamous and undissolvable marriage, as well as the husband's authority over his wife and children (Patria potestas) [16].

Regarding Brazil, in 1830, in the Criminal Code of the Empire, a device that considers abortion a crime that jeopardized security and human life itself, with the exception of non-punishment when abortion was committed by the pregnant woman herself. The Criminal Code of the Republic of 1890 also did not punish women, but presaged punishment for the practice of abortion performed by third parties, with or without the consent of the pregnant woman, with aggravation if this resulted in her death.

Later in time, the Brazilian Criminal Code of 1940, which deals with abortion in Articles 124–128, allowed abortion only in cases of risk to the woman's life or due to rape and criminalized it in other situations. Concerning the permission of abortion involving sexual violence, the conception of jurists in general pointed out that the rape severely damaged male honor and dignity and tainted the offspring of the man who did not accept to support illegitimate children and pass on his inheritance. Therefore, it was a mentality that followed patriarchal period customs and not necessarily a concern for women, their physical and emotional health.

Although dated from 1940, the provisions of the Criminal Code concerning abortion remain in force, but are obsolete and anachronistic for the contemporary society. It is important to say that this legislation was promulgated in the government of Getúlio Vargas, president who took over the country through a coup. That is, the law that governs abortion in Brazil was drawn in full dictatorial regime, in a socio-cultural context of rigid gender customs: few women worked outside home, drove cars, had a college degree, could choose whether or not to have

*Education, Human Rights and Peace in Sustainable Development*

inquisitors ([10], p. 53).

of Saint Augustine and Thomas Aquinas3

grounded on the masculine [14, 15].4

justified the masculine domination in various ways.

witchcraft. This document became something like a churchman Criminal Code indispensable to the catholic judges on the race against the witches. Born from a crooked rib, women are mysterious beings, of fragile sex, treacherous and cunning that distill the damnation above everyone, imperfect animals and liars worse than death. "Without the malignancy of women, not to mention the witchcraft, the world would keep existing immune to numerous hazards," speculates the bull of the

Essentially related to sexuality and the mysteries of the universe, to the limits between life and death, like abortion, witches were nothing more than the peasants, lovers, prostitutes, midwives, healers, mourners, women that defied the church dogmas by holding knowledge and power about diseases relief and control of the body [11], like phytotherapeutic knowledge of medicinal teas, passed on from generation to generation through oral tradition, which united women, because the herbs were cultivated on the backyards, close to the kitchen, denoting a familiar

From Plato to Aristotle, going through the church philosophers, to the example

Even the illuminists from the French Revolution (1789), carriers of new ideologies in the name of reason, freedom and equality and opponents to the church dogma when proclaiming the quality of rights to men, excluded women equating in some aspects to the conservatism and intolerance of the medieval catholic morality. Remember the french feminist Olympe de Gouges, that when elaborating the Declaration of the Rights of Woman and of the Female Citizen, in counterpoint to the Declaration of the Rights of Man and Citizen, was criminalized, condemned to death and decapitated in a public square under the accusation of subverting the designs of nature. The principles of Human Rights were, notoriously, erected

Despite the resistance and women's fights for civil and politic rights, the second-

The association of women to maternity, considered an innate biological instinct,

ary place delegated to them in the family and society ruled expressively on the Victorian Age. It was evident, so, that abortion was not allowed. With the ascension of social medicine there is a reinforcement of binary representations of gender versed as a science threshold. The fragility, the pudency, the affective characteristics in detriment of the rational ones and the subjection of sexuality to the maternalism

built the normality parameters to the feminine sex prescribed by the masculine

<sup>3</sup> However, it is important to note: the Catholic Church has not always considered abortion a sin or a crime and it cannot be said that there was consensus on the subject over time. St. Augustine in the fourth century and Thomas Aquinas, a thousand years later, for example, considered the embryo a life only after 40 days of gestation (6 weeks). We can also cite the encyclical Apostolicae Sedis (1869), promulgated by Pope Pius IX, in Italy, which came to condemn abortion radically. But the reasons were not so much humanitarian as politics. It was the time of the unification war of Italy, and the pope needed Napoleon's army. In exchange, Bonaparte asked Pius IX to declare that the soul and human life were given from the conception, since the French low birth rate was a hindrance to the French emperor. See the article "The Catholic Church has not always been against abortion." Available from: https://www.revistaforum.com.

<sup>4</sup> Even under this hostile atmosphere, women have claimed a different position in society claiming the right to education, work, political participation and full citizenship through a series of manifestations

constituted the medical normalizations for the feminine [14, 15].

br/igreja-catolica-nem-sempre-foi-contra-o-aborto/ [Accessed on: December 19, 2018].

the inequality of women in relation to men, highlights the historian Mary Del Priore [13]. According to her, the philosophical thinking of centuries XVIII and XIX

, many are the treaty that reaffirm

and intimate knowledge of the feminine, highlighted Del Priore [12].

**210**

and protests.

children or even participated in movements, unions or actively on the political life of the nation. But it could be said that, paradoxically, it was advanced for the time, especially if we consider the countless bills, contrary to sexual and reproductive rights, that are currently being processed in the National Congress and the more flexible achievements, values and customs and from the point of view of gender relations that we find today.

The laws, roughly written by men, do not escape gender representations inserted in long term history. As remembered by Fausto [17], on the literary work "Crime and Routine," a study about criminality in São Paulo city between 1880 and 1924, the efficiency of the criminal action is not only technical, but is related to social discrimination working as a repressive practice that can even criminalize behaviors apparently nonchalant to criminal law, like the imprisonment of prostitutes, homosexuals and women who opted for abortion.

That is, the inappropriate behavior according to sex within the family and society, as well as ethnic-racial characteristics influence the conception and definition of the offense and on the application of punishment on the transgression scope. Furthermore, Fausto [17] signaled the existence of criminal behavior that did not draw police's attention, like assaults practiced by husbands and certain sexual crimes.

In 1945, the country resumed the redemocratization process and decades later, in 1964, suffered a new coup d'etat orchestrated by the military, which overlapped the Democratic State and initiated a period of strong censorship, political persecution, torture and death. Even in this context, feminists denounced the oppressions of a patriarchal society, raised the flags of "personal is political," preached the end to domestic violence, of defense of sexual freedom, of the non-demonization of contraceptive methods, of the right to control their own body and reproductive selfdetermination. Those discussions were also influenced by the emergence, on 1960, of the contraceptive pills.

The politization of the body, sexuality and reproduction gets special attention on the women's movements. The slogan "our body belongs to us" was fundamental to think the diverse forms of subjugation of women and target of political action fundamental on a conception of citizenship that retrieved the autonomy and freedom of women in the experience of sexuality and reproduction [18, 19]. The search for economical, subjective and social autonomy also became essential to this feminine body in the process of emancipation and the existence of the feminist movements that insurged, which also helped to delimit a self-fight field concerning other social movements [18].

Since then Brazilian women obtained a series of achievements, like more space and participation in society, public politics and specific laws to prevent and reduce violence against women and changes on the conservative mentality on the field of gender relations in the sense of more equality. Many of these achievements were driven by International Conferences related to women rights promoted by United Nations (UN) on the decade of 1990 in conjunction with feminist activism.

Stands out the International Conference on Human Rights, held in Vienna in 1993 [20]; that states in its article 18 that rights of women and girls are inalienable; the International Conference on Population and Development, in Cairo in 1994, asks the Estates for investment on familiar planning politics, the reduction of maternal mortality and the review of punitive laws that concern abortion; and the IV World Conference on Women, at the city of Beijing in China in 1995, that requested to the government the use of gender perspective on the development of policies for women [21].

These UN meetings also helped to transpose the generic parameter of man (western, white, heterosexual) as a synonym for humanity, marking the liberal

**213**

the Lay State.6

*Abortion, Criminal Law and the Ten Thousand Women: Portraits of the Inquisition…*

conception of the text of the Universal Declaration of Human Rights of 1948 [22], extending the horizon of human rights for the inclusion and visibility of new subjects. They also revealed that the specifications, diversities and differences between men and women and among women themselves must be integrated into the discourse of human rights as factors of inequality and discrimination [23, 24]. However, the inequalities between men and women are still significant in Brazil. The voluntary abortion is not allowed by law yet, the participation of women on parliaments is minimal, the rates of domestic violence, of feminicide and maternal mortality are very high and, broadly, they still have the lower wages in the market

In the last decades, the reversal has been enormous. On the field of reproductive self-determination it can be highlighted the dozens of legislative proposals (written under strong influence of conservative, fundamentalist sectors and dogmatic religious groups) that seek to restrict women's sexual and reproductive rights on process in the National Congress, like the Legislative Proposal 478/2007–called Statute of the Unborn (Estatuto do Nascituro), which prohibits abortion in all cases, even rape, and turns the insecure abortion into a heinous crime; the Legislative Proposal 3748/2008, which provides child support to the mother for giving birth to children conceived through a rape crime; the Legislative Proposal 1413/2007, which prohibits the distribution of emergency contraceptive (known as morning-after pill by SUS–the Health Unic System (Sistema Único de Saúde)) and its commercializa-

Thus, there are many initiatives in parliaments throughout the country that try to stop achievements in the field of human rights when it involves sexuality and reproduction. To be more emphatic, they are bills that try to prohibit emergency contraception, which strengthen the obstacles to the criminalization of homophobia and the recognition of rights to the homosexual population, as well as opposing the reformulation of restrictive legislation regarding abortion and of sex education

From the religious field to the government policy scope there is a resurgence of fundamentalism and conservative forces that threaten the rights and lives of women. One of the strategies of the conservative groups is to keep the National Congress always on the agenda of discussing abortion as a crime and incompatible with human values in defense of life. An example of this is the numerous appealing projects cited above. The actions of conservative groups, such as the appealing projects cited above, generate tensions and wear and tear on the allied fronts of feminists, but are part of a well-orchestrated strategy by self-entitled "pro-life" for

The pressure and interests at stake are so many that even in relation to the so-called "allied politicians," the expected result and compromise are not always achieved. Former President Luiz Inacio Lula da Silva (PT), a progressive force, for example, who has already spoken publicly about the right of women to decide, signed the agreement with the Vatican in 2008, which preaches religious teaching in schools, financial support and a number of other measures in the countercurrent of

<sup>5</sup> We cannot forget the bill "School Without Party", that seeks to suppress discussions of gender, religion, sexuality and politics in the classroom and in the school space as a whole, setting a censorship and limitation of content to be teached mode, with punishment to the teacher if denounced by the student. <sup>6</sup> The agreement between the Government of the Federative Republic of Brazil and the Holy See concerning the Legal Status of the Catholic Church in Brazil, signed in the Vatican City on November 13, 2008, was ratified by Decree No. 7107 of February 11, 2010. Available from: http://www.planalto.gov.br/

*DOI: http://dx.doi.org/10.5772/intechopen.89014*

tion in drugstores, among others.

the strengthening of their ideals.

ccivil\_03/\_ato2007-2010/2010/decreto/D7107.htm

programs in schools.5

for the same work developed when comparing to men.

#### *Abortion, Criminal Law and the Ten Thousand Women: Portraits of the Inquisition… DOI: http://dx.doi.org/10.5772/intechopen.89014*

conception of the text of the Universal Declaration of Human Rights of 1948 [22], extending the horizon of human rights for the inclusion and visibility of new subjects. They also revealed that the specifications, diversities and differences between men and women and among women themselves must be integrated into the discourse of human rights as factors of inequality and discrimination [23, 24].

However, the inequalities between men and women are still significant in Brazil. The voluntary abortion is not allowed by law yet, the participation of women on parliaments is minimal, the rates of domestic violence, of feminicide and maternal mortality are very high and, broadly, they still have the lower wages in the market for the same work developed when comparing to men.

In the last decades, the reversal has been enormous. On the field of reproductive self-determination it can be highlighted the dozens of legislative proposals (written under strong influence of conservative, fundamentalist sectors and dogmatic religious groups) that seek to restrict women's sexual and reproductive rights on process in the National Congress, like the Legislative Proposal 478/2007–called Statute of the Unborn (Estatuto do Nascituro), which prohibits abortion in all cases, even rape, and turns the insecure abortion into a heinous crime; the Legislative Proposal 3748/2008, which provides child support to the mother for giving birth to children conceived through a rape crime; the Legislative Proposal 1413/2007, which prohibits the distribution of emergency contraceptive (known as morning-after pill by SUS–the Health Unic System (Sistema Único de Saúde)) and its commercialization in drugstores, among others.

Thus, there are many initiatives in parliaments throughout the country that try to stop achievements in the field of human rights when it involves sexuality and reproduction. To be more emphatic, they are bills that try to prohibit emergency contraception, which strengthen the obstacles to the criminalization of homophobia and the recognition of rights to the homosexual population, as well as opposing the reformulation of restrictive legislation regarding abortion and of sex education programs in schools.5

From the religious field to the government policy scope there is a resurgence of fundamentalism and conservative forces that threaten the rights and lives of women. One of the strategies of the conservative groups is to keep the National Congress always on the agenda of discussing abortion as a crime and incompatible with human values in defense of life. An example of this is the numerous appealing projects cited above. The actions of conservative groups, such as the appealing projects cited above, generate tensions and wear and tear on the allied fronts of feminists, but are part of a well-orchestrated strategy by self-entitled "pro-life" for the strengthening of their ideals.

The pressure and interests at stake are so many that even in relation to the so-called "allied politicians," the expected result and compromise are not always achieved. Former President Luiz Inacio Lula da Silva (PT), a progressive force, for example, who has already spoken publicly about the right of women to decide, signed the agreement with the Vatican in 2008, which preaches religious teaching in schools, financial support and a number of other measures in the countercurrent of the Lay State.6

*Education, Human Rights and Peace in Sustainable Development*

homosexuals and women who opted for abortion.

relations that we find today.

sexual crimes.

of the contraceptive pills.

other social movements [18].

policies for women [21].

children or even participated in movements, unions or actively on the political life of the nation. But it could be said that, paradoxically, it was advanced for the time, especially if we consider the countless bills, contrary to sexual and reproductive rights, that are currently being processed in the National Congress and the more flexible achievements, values and customs and from the point of view of gender

The laws, roughly written by men, do not escape gender representations inserted in long term history. As remembered by Fausto [17], on the literary work "Crime and Routine," a study about criminality in São Paulo city between 1880 and 1924, the efficiency of the criminal action is not only technical, but is related to social discrimination working as a repressive practice that can even criminalize behaviors apparently nonchalant to criminal law, like the imprisonment of prostitutes,

That is, the inappropriate behavior according to sex within the family and society, as well as ethnic-racial characteristics influence the conception and definition of the offense and on the application of punishment on the transgression scope. Furthermore, Fausto [17] signaled the existence of criminal behavior that did not

In 1945, the country resumed the redemocratization process and decades later, in 1964, suffered a new coup d'etat orchestrated by the military, which overlapped the Democratic State and initiated a period of strong censorship, political persecution, torture and death. Even in this context, feminists denounced the oppressions of a patriarchal society, raised the flags of "personal is political," preached the end to domestic violence, of defense of sexual freedom, of the non-demonization of contraceptive methods, of the right to control their own body and reproductive selfdetermination. Those discussions were also influenced by the emergence, on 1960,

The politization of the body, sexuality and reproduction gets special attention on the women's movements. The slogan "our body belongs to us" was fundamental to think the diverse forms of subjugation of women and target of political action fundamental on a conception of citizenship that retrieved the autonomy and freedom of women in the experience of sexuality and reproduction [18, 19]. The search for economical, subjective and social autonomy also became essential to this feminine body in the process of emancipation and the existence of the feminist movements that insurged, which also helped to delimit a self-fight field concerning

Since then Brazilian women obtained a series of achievements, like more space and participation in society, public politics and specific laws to prevent and reduce violence against women and changes on the conservative mentality on the field of gender relations in the sense of more equality. Many of these achievements were driven by International Conferences related to women rights promoted by United Nations (UN) on the decade of 1990 in conjunction with feminist activism.

Stands out the International Conference on Human Rights, held in Vienna in 1993 [20]; that states in its article 18 that rights of women and girls are inalienable; the International Conference on Population and Development, in Cairo in 1994, asks the Estates for investment on familiar planning politics, the reduction of maternal mortality and the review of punitive laws that concern abortion; and the IV World Conference on Women, at the city of Beijing in China in 1995, that requested to the government the use of gender perspective on the development of

These UN meetings also helped to transpose the generic parameter of man (western, white, heterosexual) as a synonym for humanity, marking the liberal

draw police's attention, like assaults practiced by husbands and certain

**212**

<sup>5</sup> We cannot forget the bill "School Without Party", that seeks to suppress discussions of gender, religion, sexuality and politics in the classroom and in the school space as a whole, setting a censorship and limitation of content to be teached mode, with punishment to the teacher if denounced by the student.

<sup>6</sup> The agreement between the Government of the Federative Republic of Brazil and the Holy See concerning the Legal Status of the Catholic Church in Brazil, signed in the Vatican City on November 13, 2008, was ratified by Decree No. 7107 of February 11, 2010. Available from: http://www.planalto.gov.br/ ccivil\_03/\_ato2007-2010/2010/decreto/D7107.htm

In the sowing of patriarchal values, fundamentalists, oligarchies and religious sectors are the groups that most represent the obstacles to advancing the fight for the decriminalization of abortion in Brazil. Generally, they have a conservative discourse from the point of view of biomedical science and the laity of the state. In the dispute for the concept of life, what prevails is the discourse of biological life from orthodox biomedicine and the mix of values of the State and Church, with strong articulation in the Executive.

And if in one hand reproduction and motherhood continue to be treated as the fated destiny of women, on the other, adoption is not yet a valued alternative to motherhood. In addition, the dispute in the field of reproduction also occurs through the market, with the industry of products for babies and pregnant women, new reproductive technologies, last generation ultrasonographies, etc.

Among this context, the neoliberal field advances in the Brazilian political culture, going through the health issue with the growth of foundations and private health plans to the detriment of the Unified Health System (SUS), It is also evident a scenario of high urban violence and at the same time indifference to this violence in most Brazilian urban centers. The marches that preach peace and not abortion, understood as a threat to life, start to appear, generally formed by the middle class who have a conservative vision of peace, since the fear of violence is what drives this kind of reaction by the average layers and other conservative groups, centered on their own navel.

There are also the strategies that the media has been adopting in relation to abortion, polarized by messages through soap operas and programs that are veiled or expressive against legalization and the frequent reports displayed in newspapers about the overflowing appearance of clandestine clinics in various regions of the country, as well as women leaving hospital in handcuffs for reports of unsafe abortion by doctors and other health professionals to the police.

A series of reports conducted by journalist Paula Guimarães, from the *Portal Catarinas*, named "From the emergency room to the penal system,"7 carried out all over the country, portrays cases of criminalization of patients attended at the Health Posts or in hospitals, due to complications by badly done or even spontaneous abortions, evidence that health professionals have often reported to the police the injured women who entrust their lives to them.8

A research carried out by the Public Defense of Rio de Janeiro points out that the delations made by health institutions and professionals during emergency care for women by the practice of self-medication are more common than one can imagine and one of the main means of entry of patients into the penal system. To get an idea, in 65% of cases they were reported during emergency medical care, and in 20% of cases, by relatives and neighbors.9

**215**

arms [25, 26].

*Abortion, Criminal Law and the Ten Thousand Women: Portraits of the Inquisition…*

surveillance and was released only after being interviewed.10

In Campo Grande, in the year 2017, a case of spontaneous abortion was reported

The sensationalism of the press regarding abortion strengthens the representations of women's biological determinism as mother (maternalisms). It is common the reports that disclose the cases of patients who provoked abortion, sought medical services resulting from complications, who leaves health institutions handcuffed after the care and are taken directly to the police station, in addition to the materials that denounce the clandestine clinics and their process of invasion by the police. The media spectacle on the news report that explore the closure of clandestine establishments that allegedly carry out procedures for intervention of unwanted pregnancies was evident in the case of women criminalized for abortion in Campo Grande, when the police, a public prosecutor and a judge of the jury created a task force for the massive indictment of the ten thousand women who passed through the Family Planning Clinic of Neide Mota over the 20 years of its operation, subject

**3. The case of the ten thousand: the criminal chase and the "witches"** 

Planning Clinic in function for over 20 years at the capital downtown.

doctor and anaesthesiologist Dr. Neide Mota Machado [25, 26].

izacaoo-das-mulheres-por-aborto/ [Accessed on: December 20, 2012].

but in a safe manner and with all appropriate medical care.

On April 11 the police started the investigation and on April 12 the state's General Prosecutor was visited by representatives of the National Congress' Mix Parliament Front on Life's Defense (against abortion) that put pressure on authorities for the establishment of a criminal process against the owner of the place, the

The pressure had effect. On April 13, 2007, policemen with a search warrant closed the clinic without the doctor being there, and confiscated surgical instruments, medicines, syringes, needles and patient's private documents. The medical reports of 9896 women were scrutinized by the police and, lately, by justice strong-

<sup>10</sup> To keep track of this reality, the Collaborative Map of Criminalization by Abortion was launched, which compiles information and journalistic material on the cases of patients reported to the police while receiving medical care in health centers throughout Brazil. The Abortion Criminalization Collaborative Map can be accessed at this electronic address: http://especiais.catarinas.info/mapa-colaborativo-da-criminal-

<sup>11</sup> Later, another report was made, this time with camera in sight, in which the medical anesthesiologist NeideMota Machado reported to the journalist HonórioJacometto the abortion requested by the clients,

Clandestine clinics of abortion in Brazil have been, frequently, target of media reports and spectacularization. One of the involvement marks of media on public revelation of places that supposedly performed pregnancy interruption surgeries was the case of the ten thousand. This story started on April 10, 2007, at Campo Grande city, when a news report made with a hidden camera,11 operated by a fake pregnant couple looking for abortion, denounced the existence of a Familiar

to the police by professionals from the Emergency Mobile Service (SAMU) and widely reported in the local press, suggesting that it was an intentional abortion and disseminated negative representations of the patient. Parts of a fetus were found in the toilet at the house of a married woman who requested emergency assistance from SAMU. The medical help turned into a police case. After receiving care at the residence by the SAMU team, she was taken by ambulance to Rosa Pedrossian Regional Hospital, where she received other medical care, but was kept under police

*DOI: http://dx.doi.org/10.5772/intechopen.89014*

of the last two sections of this text.

**exposition in Brazil**

<sup>7</sup> Consult the series "From the Emergency Room to the Penal System", produced by Paula Guimarães. Available at the electronic address: https://outraspalavras.net/outrasaude/do-pronto-socorro-ao-sistemapenal/ [Accessed on: December 20, 2012].

<sup>8</sup> To keep track of this reality, the Collaborative Map of Criminalization by Abortion was launched, which compiles information and journalistic material on the cases of patients reported to the police while receiving medical care in health centers throughout Brazil. The Abortion Criminalization Collaborative Map can be accessed at this electronic address: http://especiais.catarinas.info/mapa-colaborativo-dacriminalizacaoo-das-mulheres-por-aborto/ [Accessed on: December 20, 2012].

<sup>9</sup> To keep track of this reality, the Collaborative Map of Criminalization by Abortion was launched, which compiles information and journalistic material on the cases of patients reported to the police while receiving medical care in health centers throughout Brazil. The Abortion Criminalization Collaborative Map can be accessed at this electronic address: http://especiais.catarinas.info/mapa-colaborativo-dacriminalizacaoo-das-mulheres-por-aborto/ [Accessed on: December 20, 2012].

#### *Abortion, Criminal Law and the Ten Thousand Women: Portraits of the Inquisition… DOI: http://dx.doi.org/10.5772/intechopen.89014*

In Campo Grande, in the year 2017, a case of spontaneous abortion was reported to the police by professionals from the Emergency Mobile Service (SAMU) and widely reported in the local press, suggesting that it was an intentional abortion and disseminated negative representations of the patient. Parts of a fetus were found in the toilet at the house of a married woman who requested emergency assistance from SAMU. The medical help turned into a police case. After receiving care at the residence by the SAMU team, she was taken by ambulance to Rosa Pedrossian Regional Hospital, where she received other medical care, but was kept under police surveillance and was released only after being interviewed.10

The sensationalism of the press regarding abortion strengthens the representations of women's biological determinism as mother (maternalisms). It is common the reports that disclose the cases of patients who provoked abortion, sought medical services resulting from complications, who leaves health institutions handcuffed after the care and are taken directly to the police station, in addition to the materials that denounce the clandestine clinics and their process of invasion by the police. The media spectacle on the news report that explore the closure of clandestine establishments that allegedly carry out procedures for intervention of unwanted pregnancies was evident in the case of women criminalized for abortion in Campo Grande, when the police, a public prosecutor and a judge of the jury created a task force for the massive indictment of the ten thousand women who passed through the Family Planning Clinic of Neide Mota over the 20 years of its operation, subject of the last two sections of this text.
