**5. Final notes: the deleterious effects of criminal law and the right to health**

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 and society. The Brazilian Criminal Code from 1940, on its article 128, which proscribes abortion, was promulgated on Getúlio Vargas' government, in full dictatorship, and with inflexible gender traditions: few women worked outside home, had a college degree, could choose about having or not having children or even voted.

**225**

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

Nations on the decade of 1990 in conjunction with feminist activism.

In 1945, the country resumed the redemocratization process and decades later, in 1964, suffered a new coup d'etat orchestrated by the military, that 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

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

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

However, the inequalities between men and women are still significant in Brazil. 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

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 that seek to restrict women's 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

The laws, roughly written by men, do not escape gender representations inserted

in long term history. Fausto [17], on the literary work "Crime and Routine," a study about criminality in São Paulo city between 1880 and 1924 considers that 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,

Therefore, 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. This question highlights the police convenience with social mentality in the process of naturalization of violence against women, including there the denial to

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

self-determination.

policies for women [21].

drugstores, among others.

work developed when comparing to men.

homosexuals and women who opted for abortion.

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

In 1945, the country resumed the redemocratization process and decades later, in 1964, suffered a new coup d'etat orchestrated by the military, that 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 self-determination.

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 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].

However, the inequalities between men and women are still significant in Brazil. 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 that seek to restrict women's 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.

The laws, roughly written by men, do not escape gender representations inserted in long term history. Fausto [17], on the literary work "Crime and Routine," a study about criminality in São Paulo city between 1880 and 1924 considers that 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.

Therefore, 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.

This question highlights the police convenience with social mentality in the process of naturalization of violence against women, including there the denial to

*Education, Human Rights and Peace in Sustainable Development*

and, in that way, absolve the defendants.

and the defense thinks."

year and Cantagessi two.

**to health**

As it was, there would be no proof of Simone's participation in any case since there was no material proof, Siufi concluded saying that "to judge you peer is not something easy" and asked the jury to vote "no" on all the first accusation question

*"They even say that this is the only power that men took from God's hand, because there's the power to convict and the power to absolve. I know that the late hour is tiring, but I want to say to Your Excellencies, I'll ask Your Excellencies to say no to that […] if Your Excellencies understand the condemnation and have any doubt in your mind, when it's time to cast the vote, say no to the first question […] Say no to this here, which is the portrait of hypocrisy, because it cannot be the fight between the rock and the sea and make the seashell suffer the consequences. No. But I wish that Your Excellencies say no to all the first questions: No. And after Your Excellencies leave this Court, after all the work and love given to the justice's cause, I wish the regret of having convicted four innocents do not keep you company" [29, 30].*

The judge notifies that he finished the discussions and grants the prosecutor the right to a replica, but he does not use the contestation. After that he relates to the jury that he will explain about the accusation questions on the secret room and how the procedures will take place, when he will also answer questions about "the matter of facts." The meeting was finished with "more than 600 questions," highlighted the judge, concluding to the jury: "about the questions we'll explain what the prosecutor

The trial decision happens on the next day. On April 9, 2010, 2:50 pm, the magistrate publicly advertised the decision of the jury to convict the defendants. The result of the sentence presented a negative balance for the clinic's workers: Maria Nelma was convicted to 4 years on semi-open regime; Libertina to 1 year and 3 months on semi-open regime; Rosângela de Almeida to 7 years on semi-open

regime; Simone was condemned to 6 years and 4 months on the semi-open.

the judgment. But something unusual happens, because there would still be a manifestation against the decision of the Jury closing with golden keys the scenario of "the case of the ten thousand" as a miraculous movie story. Undismayed by the final sentence, Simone Cantagessi's husband (who is also a judge) makes a touching plea and public protest, but without obtaining a favorable result, since the case had already been judged and decreed finished by the judge. On October 8, 2010, the employees from the former doctor Neide Mota Machado's clinic had their penalty reduced by the Justice Court of MatoGrosso do Sul: Maria Nelma had her penalty reduced to 2 years, Libertina was limited to 10 months, Rosângela's was reduced to 1

**5. Final notes: the deleterious effects of criminal law and the right** 

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 and society. The Brazilian Criminal Code from 1940, on its article 128, which proscribes abortion, was promulgated on Getúlio Vargas' government, in full dictatorship, and with inflexible gender traditions: few women worked outside home, had a college degree, could choose about having or not having children or

To finish, the judge thanks the jury, the lawyers, the prosecution and concludes

**224**

even voted.

women of their faculty of reproductive choice, on the domestic and family scope throughout history. It became evident on the case of the women criminalized for abortion in Campo Grande, when police, a prosecutor from the Prosecution Office and a judge from the Jury Court made a task-force for the massive indictment of ten thousand women who went to the Familiar Planning Clinic from Neite Mota over the 20 years it operated.

The ten thousand women from Campo Grande and a million more that perform abortions every year on the Brazilian society reveal that the prohibitive criminal law is innocuous and detrimental in case of the voluntary intervention of pregnancy. Either because it does not prevent thousands of women to perform an insecure abortion, at large, precariously and onerously, opting for illegal clinics, midwives, with the help of people without proper qualification or even in a solitary way, using medicines from the clandestine market, the consumption of teas or introducing objects in the genital tract intending to pierce the uterus, often without any professional guidance, sterilization processes, emotional support or the minimal hygiene and safety conditions. Either because it does not respect the dignity and autonomy of women as ethical beings capable of mature and conscious choices about their lives.

It is known that the condition of illegality makes it difficult to quantify accurately the number of abortions practiced in Brazil. According to research developed by the National Feminist Network for Health and Reproductive Rights, in 1991, based on a methodology developed by the Alan Guttmacher Institute, which calculates the data by the use of surveys of hospitalizations for abortion in the health services, pointed out the occurrence of 700,000–1.4 million abortions in the country. More recent studies identify that this estimate remains the same.19

If in one hand, the advent of the birth control pills on the decade of 1960 contributed to the exercise of a sexuality unlinked to reproduction, on the other, the existence of contraceptive methods with low hormonal dosage or compatible with organisms of different women are not always available by the public politics on Mato Grosso do Sul and the whole country.

According to the "Dossier on insecure abortion for advocacy: the impact of abortion illegality on women's health and quality of reproductive health care in Campo Grande and Corumbá, Mato Grosso do Sul," published in 2010, there are deficiencies in the Family Planning Programs, the distribution of medicines and the quality of care provided to women in the local public health system, which make it difficult for women to acquire contraceptives, as well as seeking and adhering to routine medical treatments and appointments. The failures are mainly "related to the quality of medical care, maintenance of the stock of medicines and consequently the continuity of the supply of contraceptive methods" ([32, 33], p. 4). One of the health managers interviewed by the research team of this Dossier, who was then responsible for following the Family Planning Program of the capital, openly exposes the problem:

*"…we don't have the monthly injectable contraceptive in the system, there's no implant, levornogestrel IUD, vaginal ring and contraceptive patch. The SUS (Health Unic System) still cannot get even close of a bold and modern familiar planning. We also don't have the proper "provision" of the IUD short stock (for women with hysterometry smaller than 7 cm); and of the quarterly injectable. Frequently there's no appropriate provision of the stock; many women discontinue the use because of the lack of the quarternal."*

**227**

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

Add to this the difficulties that many women feel when negotiating the condom use with their partners and the fact that any contraceptive can fail. That is, women and men do not have the same power, risks and benefits on the sexuality and

reproduction scope. It is upon the feminine body that falls the damage caused by the continuous use of birth control pills and there is no fair distribution of the risks if

Furthermore, the differences on the social conditions of the feminine population affects the greater or lesser access to quality of life, information, medicines and health care. And they are the ones who get pregnant and are given most of the responsibility for care and education of children–in most cases, without the help of the father. It is also little emphasized the male responsibility on the administration of fertility and contraceptive medicines that are efficient for men lack in the

*On the other side, it is important to rethink that the fact that the gestation develops inside the feminine body has particular relevance. If the right to privacy involves the power to exclude heteronomous interventions on the owner's body, it is hard to conceive an intrusion so intense and severe upon someone's body, like the imposition on pregnant women to keep a pregnancy, for 9 months, against their will [5, 6].*

Although the male participation on an undesired pregnancy is an elementary evidence, the onus of an illegal abortion falls upon the feminine population's organism, including the risk of damage to health and of death, as well as criminalization by justice, weakening the right to health disposed on the Article 6° of the Brazilian Federal Constitution and the recommendations of international agreements from

According to the document formulated by the UN Special Rapporteur for the Right to Health in 2011 [34], named "The right of every person to experience the highest level of physical and mental health," the prohibitive criminal laws about abortion contradict the human dignity, a fundamental principle of Human Rights, because it affects the mental and emotional health of women and interfere on the

Still according to the document, when criminal law is used to regulate and restrain sexual and reproductive conducts, the State imposes itself forcefully submitting and canceling the desire, conscience, autonomy and the life project of the individual. Like this, the penalization of abortion represents a violation of the right to sexual and reproductive health and a severe interference of the state on women's life. "The criminal laws that punish and restrict the induced abortion are the paradigmatic example of the unacceptable barriers that prevent women from exercising their right

It is relevant to remember that the case of the ten thousand was structured based on the medical reports seized at the Clinic. However, the police order did not authorize the seizure of the medical records, which violated the right to medical confidentiality of the patients, their intimacy and privacy. On this subject please note that the Federal Constitution of 1988, on its article 5°, subsection X, underlines: "Inviolable are the intimacy, the private life, the honour and image of people, and is guaranteed the right to indemnity for material or moral damage derived from

Additionally, the expertise examination on the seized medical records did not prove the abortion practice, even so around 1500 women were sued by justice and four employees condemned by the institution of the Jury. The judge, prosecutors and the police detective declared at various times to the press the fact that abortion

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

we consider the organisms of men and women.

the United Nations signed by the country.

its violation" ([36], art. 5°, subsection X).

freedom to make decisions without the state's intervention.

to health and, consequently, should be eliminated" ([35], p. 9).

research field [2].

<sup>19</sup> On that, consult the 2016 National Research on Abortion (PNA 2016). Available from: http://www. scielo.br/pdf/csc/v22n2/1413-8123-csc-22-02-0653.pdf [Accessed on: December 18, 2012].

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

Add to this the difficulties that many women feel when negotiating the condom use with their partners and the fact that any contraceptive can fail. That is, women and men do not have the same power, risks and benefits on the sexuality and reproduction scope. It is upon the feminine body that falls the damage caused by the continuous use of birth control pills and there is no fair distribution of the risks if we consider the organisms of men and women.

Furthermore, the differences on the social conditions of the feminine population affects the greater or lesser access to quality of life, information, medicines and health care. And they are the ones who get pregnant and are given most of the responsibility for care and education of children–in most cases, without the help of the father. It is also little emphasized the male responsibility on the administration of fertility and contraceptive medicines that are efficient for men lack in the research field [2].

*On the other side, it is important to rethink that the fact that the gestation develops inside the feminine body has particular relevance. If the right to privacy involves the power to exclude heteronomous interventions on the owner's body, it is hard to conceive an intrusion so intense and severe upon someone's body, like the imposition on pregnant women to keep a pregnancy, for 9 months, against their will [5, 6].*

Although the male participation on an undesired pregnancy is an elementary evidence, the onus of an illegal abortion falls upon the feminine population's organism, including the risk of damage to health and of death, as well as criminalization by justice, weakening the right to health disposed on the Article 6° of the Brazilian Federal Constitution and the recommendations of international agreements from the United Nations signed by the country.

According to the document formulated by the UN Special Rapporteur for the Right to Health in 2011 [34], named "The right of every person to experience the highest level of physical and mental health," the prohibitive criminal laws about abortion contradict the human dignity, a fundamental principle of Human Rights, because it affects the mental and emotional health of women and interfere on the freedom to make decisions without the state's intervention.

Still according to the document, when criminal law is used to regulate and restrain sexual and reproductive conducts, the State imposes itself forcefully submitting and canceling the desire, conscience, autonomy and the life project of the individual. Like this, the penalization of abortion represents a violation of the right to sexual and reproductive health and a severe interference of the state on women's life. "The criminal laws that punish and restrict the induced abortion are the paradigmatic example of the unacceptable barriers that prevent women from exercising their right to health and, consequently, should be eliminated" ([35], p. 9).

It is relevant to remember that the case of the ten thousand was structured based on the medical reports seized at the Clinic. However, the police order did not authorize the seizure of the medical records, which violated the right to medical confidentiality of the patients, their intimacy and privacy. On this subject please note that the Federal Constitution of 1988, on its article 5°, subsection X, underlines: "Inviolable are the intimacy, the private life, the honour and image of people, and is guaranteed the right to indemnity for material or moral damage derived from its violation" ([36], art. 5°, subsection X).

Additionally, the expertise examination on the seized medical records did not prove the abortion practice, even so around 1500 women were sued by justice and four employees condemned by the institution of the Jury. The judge, prosecutors and the police detective declared at various times to the press the fact that abortion

*Education, Human Rights and Peace in Sustainable Development*

the 20 years it operated.

choices about their lives.

Mato Grosso do Sul and the whole country.

*the use because of the lack of the quarternal."*

women of their faculty of reproductive choice, on the domestic and family scope throughout history. It became evident on the case of the women criminalized for abortion in Campo Grande, when police, a prosecutor from the Prosecution Office and a judge from the Jury Court made a task-force for the massive indictment of ten thousand women who went to the Familiar Planning Clinic from Neite Mota over

The ten thousand women from Campo Grande and a million more that perform abortions every year on the Brazilian society reveal that the prohibitive criminal law is innocuous and detrimental in case of the voluntary intervention of pregnancy. Either because it does not prevent thousands of women to perform an insecure abortion, at large, precariously and onerously, opting for illegal clinics, midwives, with the help of people without proper qualification or even in a solitary way, using medicines from the clandestine market, the consumption of teas or introducing objects in the genital tract intending to pierce the uterus, often without any professional guidance, sterilization processes, emotional support or the minimal hygiene and safety conditions. Either because it does not respect the dignity and autonomy of women as ethical beings capable of mature and conscious

It is known that the condition of illegality makes it difficult to quantify accurately the number of abortions practiced in Brazil. According to research developed by the National Feminist Network for Health and Reproductive Rights, in 1991, based on a methodology developed by the Alan Guttmacher Institute, which calculates the data by the use of surveys of hospitalizations for abortion in the health services, pointed out the occurrence of 700,000–1.4 million abortions in the

According to the "Dossier on insecure abortion for advocacy: the impact of abortion illegality on women's health and quality of reproductive health care in Campo Grande and Corumbá, Mato Grosso do Sul," published in 2010, there are deficiencies in the Family Planning Programs, the distribution of medicines and the quality of care provided to women in the local public health system, which make it difficult for women to acquire contraceptives, as well as seeking and adhering to routine medical treatments and appointments. The failures are mainly "related to the quality of medical care, maintenance of the stock of medicines and consequently the continuity of the supply of contraceptive methods" ([32, 33], p. 4). One of the health managers interviewed by the research team of this Dossier, who was then responsible for following the Family Planning Program of the capital, openly exposes the problem:

*"…we don't have the monthly injectable contraceptive in the system, there's no implant, levornogestrel IUD, vaginal ring and contraceptive patch. The SUS (Health Unic System) still cannot get even close of a bold and modern familiar planning. We also don't have the proper "provision" of the IUD short stock (for women with hysterometry smaller than 7 cm); and of the quarterly injectable. Frequently there's no appropriate provision of the stock; many women discontinue* 

<sup>19</sup> On that, consult the 2016 National Research on Abortion (PNA 2016). Available from: http://www.

scielo.br/pdf/csc/v22n2/1413-8123-csc-22-02-0653.pdf [Accessed on: December 18, 2012].

country. More recent studies identify that this estimate remains the same.19 If in one hand, the advent of the birth control pills on the decade of 1960 contributed to the exercise of a sexuality unlinked to reproduction, on the other, the existence of contraceptive methods with low hormonal dosage or compatible with organisms of different women are not always available by the public politics on

**226**

is a crime in Brazil, therefore, they should obey the law. However, this plea was not utilized in respect to the lack of materiality of the crime, which makes the trial before a popular Jury, in a country where the population is mostly catholic, strategic to condemnation.

After all, the role of the judge in the Jury Court is to basically police and preside over the tasks, falling upon the juries the verdict without the need of legal justification on the decision [37]. Another aggravating factor to the situation is the fact that we live in a culture strongly influenced by religious dogmas that are contrary to abortion. Moreover, the disclosure of the case by mass communication vehicles informed and misinformed, cultivated judgments and helped to shape a sentence in the consciousness of each citizen, aspect that needs attention for the fact that the judgment was submitted to decision of a popular jury [37].

The ballyhoo of the press around the abortion commerce on the Familiar Planning Clinic highlighted the financial gain over the women's suffering evoking the idea of social selectivity. The commodification of abortion is a point that tends to weigh on the balance in many cases of clinics taken to the judiciary, notes Oliveira (2010). It was one of the pleas used by the prosecution during the Jury trial, as if the charge of financial honorariums was something even more inhuman in the context of a voluntary interruption of pregnancy.

The health market was not invented by doctor Neide's clinic. Just see how much it costs the obstetric follow-up during the 9 months of pregnancy, the price of medical exams, the value of child-birth charged by private doctors, the room rate in the maternity ward and the corporative interests linked to the powerful medicine market. In our society, the solution for pain, the treatment and cure of patients becomes, many times, a merchandise as any other inscribed in the trade and consumption circuit.

A little addressed challenge by the local press was the perception of sexual and reproductive rights comprehensively. For Corrêa and Petchesky [2], it is necessary to consider the relation between power and resources available to women concerning the decision-making on the sexual and reproductive scope. These authors highlight the necessity to understand these rights beyond the "particular freedoms" or "individual choices," but related to social, cultural, economic, gender, class, race, ethnicity conditions and the public policy devices available for each woman particularly and jointly and, like this, seek to understand the specifications of the decision for abortion.

The right to health needs to be understood interconnected to the other rights considering the body of the individual, its subjectivity, relation, material and economic conditions and the whole existence of its life in society, including there, the structural transnational violence and the world around them. According to the World Health Organization (WHO), health does not mean absence of diseases, but envelops comprehensive bio-psycho-social aspects that affect the quality of life and well-being of people.

Therefore, the abortive itineraries cannot be treated for the criminal aspect, as determined by many international conferences, pacts and conventions on the field of human rights of which Brazil is a signatory, among them the documents deliberated on the International Conference on Population and Development (ICPD) and in the IV World Conference on Women, that reiterates the commitments of the ICPD and highlights that abortion is a public health problem and not a crime [21].

In this context, to judge an equal in the face of such dramatics, intimacies and human vicissitudes that mark the existence of thousands of women in all country is an act of disrespect of human rights, aggravated by the time limitation for reflection of the high numerical proportion of question appreciated by the juries in the case of

**229**

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

Campo Grande. It is not enough to emphasize the legal particularities of the process and the importance of individualization of cases for each of the employees on the defendants' bench, as indicated by the prosecutor during the trial. It is difficult to understand the reasons that took many women to interrupt a pregnancy, the intense physical and emotional suffering lived with the maintenance of a forced pregnancy, the paths, sensitivities, consciousness and reasons that lead four salaried workers to

*Each citizen is a stand-alone agent capable of making decisions based on personal values, ideologies, beliefs and reasons, specific life situations and plans for the future, using freedom as guide. However, to the extent that women and men are differently affected by the impact of reproduction on the organism, to force women into unwanted pregnancy violates integrity, hurts the dignity and reduces their bodies to mere reproduction instruments. This creates the necessity of legal guarantees that protect the individuality and decision of women. The restrictive criminal law, however, is a punishment for women. On the "case of the ten thousand," for* 

That way, what was observed on the case of the ten thousand was a mass criminalization of the feminine gender, once only a few men were sued by justice. This shows the gender inequality on the field of right to health and on the juridical treatment on the abortion matter, damaging the fundamental right to freedom, equality and the guarantee of the principle of reproductive self-determination to the female

The secularism of the State, the freedom of conscience and beliefs are premises defended by the Federal Constitution of 1988 that, in its article 5°, subject VI, disposes: "It is inviolable the freedom of conscience and beliefs, being assured the free exercise of religious cults and guaranteed, in the form of the law, protection of places of cult and its liturgies." And Article 19, subsection I, of the mentioned Constitution, prohibits the Union, the States, the Federal District and the Cities to "establish religious cults or churches, subside them, impair their operation or keep with them or their representatives dependency relationships or alliance, excepted, in the form of the law, the collaboration of public interest." The Brazilian State is secular, thus, the country cannot legislate nor build universal public policies guided by moral or religious beliefs. In regard to the principle of equality, as established by the Article 5°, subsection I, of the Magna Carta, the prohibition of abortion leads to a context of gender discrimination, because it imposes greater onus on women than men, as well as among women themselves depending on their social conditions, since the consequences of clandestine abortion reach more drastically women in situations of economic

Still on this premise, we must remember that the condemnation for the women

One may conceive that the poor majority left their homes at dawn to provide the community service and, lately, went to work, usually poorly paid domestic work, and at night they still took care of their own home and family, a strenuous journey. Punished by their social condition, deficient services of juridical defense and precarious services of familiar planning, women from the popular layers and employees from Dr. Neide Mota's clinic, were the most penalized. This is an example of how the gender, ethnicity, race and class categories pass through the

from the Familiar Planning Clinic was uneven. The richer could convert their sentence to a fine, but the poorest, considering black women together, in general, had to provide community services at schools and daycare centers where they lived

with children and a likely feeling of guilt and emotional suffering.

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

service at the Familiar Planning Clinic.

*instance, only five men were indicted [24].*

population [24].

vulnerability.

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

Campo Grande. It is not enough to emphasize the legal particularities of the process and the importance of individualization of cases for each of the employees on the defendants' bench, as indicated by the prosecutor during the trial. It is difficult to understand the reasons that took many women to interrupt a pregnancy, the intense physical and emotional suffering lived with the maintenance of a forced pregnancy, the paths, sensitivities, consciousness and reasons that lead four salaried workers to service at the Familiar Planning Clinic.

*Each citizen is a stand-alone agent capable of making decisions based on personal values, ideologies, beliefs and reasons, specific life situations and plans for the future, using freedom as guide. However, to the extent that women and men are differently affected by the impact of reproduction on the organism, to force women into unwanted pregnancy violates integrity, hurts the dignity and reduces their bodies to mere reproduction instruments. This creates the necessity of legal guarantees that protect the individuality and decision of women. The restrictive criminal law, however, is a punishment for women. On the "case of the ten thousand," for instance, only five men were indicted [24].*

That way, what was observed on the case of the ten thousand was a mass criminalization of the feminine gender, once only a few men were sued by justice. This shows the gender inequality on the field of right to health and on the juridical treatment on the abortion matter, damaging the fundamental right to freedom, equality and the guarantee of the principle of reproductive self-determination to the female population [24].

The secularism of the State, the freedom of conscience and beliefs are premises defended by the Federal Constitution of 1988 that, in its article 5°, subject VI, disposes: "It is inviolable the freedom of conscience and beliefs, being assured the free exercise of religious cults and guaranteed, in the form of the law, protection of places of cult and its liturgies." And Article 19, subsection I, of the mentioned Constitution, prohibits the Union, the States, the Federal District and the Cities to "establish religious cults or churches, subside them, impair their operation or keep with them or their representatives dependency relationships or alliance, excepted, in the form of the law, the collaboration of public interest." The Brazilian State is secular, thus, the country cannot legislate nor build universal public policies guided by moral or religious beliefs.

In regard to the principle of equality, as established by the Article 5°, subsection I, of the Magna Carta, the prohibition of abortion leads to a context of gender discrimination, because it imposes greater onus on women than men, as well as among women themselves depending on their social conditions, since the consequences of clandestine abortion reach more drastically women in situations of economic vulnerability.

Still on this premise, we must remember that the condemnation for the women from the Familiar Planning Clinic was uneven. The richer could convert their sentence to a fine, but the poorest, considering black women together, in general, had to provide community services at schools and daycare centers where they lived with children and a likely feeling of guilt and emotional suffering.

One may conceive that the poor majority left their homes at dawn to provide the community service and, lately, went to work, usually poorly paid domestic work, and at night they still took care of their own home and family, a strenuous journey. Punished by their social condition, deficient services of juridical defense and precarious services of familiar planning, women from the popular layers and employees from Dr. Neide Mota's clinic, were the most penalized. This is an example of how the gender, ethnicity, race and class categories pass through the

*Education, Human Rights and Peace in Sustainable Development*

of a voluntary interruption of pregnancy.

to condemnation.

consumption circuit.

for abortion.

well-being of people.

is a crime in Brazil, therefore, they should obey the law. However, this plea was not utilized in respect to the lack of materiality of the crime, which makes the trial before a popular Jury, in a country where the population is mostly catholic, strategic

After all, the role of the judge in the Jury Court is to basically police and preside over the tasks, falling upon the juries the verdict without the need of legal justification on the decision [37]. Another aggravating factor to the situation is the fact that we live in a culture strongly influenced by religious dogmas that are contrary to abortion. Moreover, the disclosure of the case by mass communication vehicles informed and misinformed, cultivated judgments and helped to shape a sentence in the consciousness of each citizen, aspect that needs attention for the

fact that the judgment was submitted to decision of a popular jury [37]. The ballyhoo of the press around the abortion commerce on the Familiar Planning Clinic highlighted the financial gain over the women's suffering evoking the idea of social selectivity. The commodification of abortion is a point that tends to weigh on the balance in many cases of clinics taken to the judiciary, notes Oliveira (2010). It was one of the pleas used by the prosecution during the Jury trial, as if the charge of financial honorariums was something even more inhuman in the context

The health market was not invented by doctor Neide's clinic. Just see how much

A little addressed challenge by the local press was the perception of sexual and reproductive rights comprehensively. For Corrêa and Petchesky [2], it is necessary to consider the relation between power and resources available to women concerning the decision-making on the sexual and reproductive scope. These authors highlight the necessity to understand these rights beyond the "particular freedoms" or "individual choices," but related to social, cultural, economic, gender, class, race, ethnicity conditions and the public policy devices available for each woman particularly and jointly and, like this, seek to understand the specifications of the decision

The right to health needs to be understood interconnected to the other rights considering the body of the individual, its subjectivity, relation, material and economic conditions and the whole existence of its life in society, including there, the structural transnational violence and the world around them. According to the World Health Organization (WHO), health does not mean absence of diseases, but envelops comprehensive bio-psycho-social aspects that affect the quality of life and

Therefore, the abortive itineraries cannot be treated for the criminal aspect, as determined by many international conferences, pacts and conventions on the field of human rights of which Brazil is a signatory, among them the documents deliberated on the International Conference on Population and Development (ICPD) and in the IV World Conference on Women, that reiterates the commitments of the ICPD and highlights that abortion is a public health problem and not a crime [21]. In this context, to judge an equal in the face of such dramatics, intimacies and human vicissitudes that mark the existence of thousands of women in all country is an act of disrespect of human rights, aggravated by the time limitation for reflection of the high numerical proportion of question appreciated by the juries in the case of

it costs the obstetric follow-up during the 9 months of pregnancy, the price of medical exams, the value of child-birth charged by private doctors, the room rate in the maternity ward and the corporative interests linked to the powerful medicine market. In our society, the solution for pain, the treatment and cure of patients becomes, many times, a merchandise as any other inscribed in the trade and

**228**

institutional, medical and legal structures. The social construction of the feminine is, like that, indispensable to think about the differential treatment that women had if compared to men in the case of the Familiar Planning Clinic. As explained by Corrêa:

*Because the social construction of the feminine and of the feminine bodies is strongly associated to the signs of guardianship, they are constructions that conceive the feminine as "out of order," like bodies and subjects that has no capacity of taking care of themselves. They are bodies destined to give birth to children for the State, the capital, the job market, the family and, because of that, women should be protected. The poorer and financially dependent the person, heavier are the protection and vigilantism rules on them.*

During the Jury Court, the defense of life was a plea used by the prosecution to condemn the women. However, defense of life is not compatible with the option for abortion. Within the sciences the concept of life has many meanings. In biology, to exemplify, a line of research identifies life in the origin of cells. Other biologists seek to investigate the essence of what determines the entity of the being or even speculate whether life resides in the transmission of hereditary traits through genes. There are still those who consider life a relational process between organisms and the environment. "The organism subjectively interprets the world and itself and, in so doing, constructs its environment" ([38], p. 21).

In this relational perspective the notion of life and its sacredness is perceived as communication. Thus, biological science must invest in researches that are capable of capturing the signs relations more than, purely, the relations between molecules. That is, "life is not something possessed or donated to a given entity" (Coutinho et al. 2008, p. 22) or just something of a material substance. It is, above all, a continuous process of semiotic relations between organisms and the environment. "In reality, the name 'life' is merely the reification of the process of being alive. It does not exist as an independent reality" ([38], p. 2).

Thus the theoretical, philosophical, or metaphysical speculative search for the concept of life, more emphatically about which moment can be considered as living, does not seem to be so relevant to biology in the face of the pressing need for empirical research. The author of this text also believes that it is not primordial to sociology to lean on studies to identify the exact moment in which one begins the life before the necessity of the empirical investigation, that, in the case of the abortion, must analyze and understand each concrete and particular case of the experiences of the women involved and their relationships with the environment.

*"If we can understand the controversy about abortion as a discussion linked to other differences of religious and philosophical opinions, we'll understand better in what and why we diverge. We will also be in better condition of emphasizing the points in which we agree and of noticing in which way our divisions, however profound and painful they may be, are still rooted to a fundamental unity of humanitarian conviction. What we share is more fundamental that our divergences about your better interpretation"* [39]*.*

Therefore, in many countries where abortion is legalized, that is, more than half of the world, the constitutions protects the life of the fetus and allow the voluntary interruption of pregnancy [5, 6]. And in those countries, it is not too much to highlight, the abortion and mortality by abortion rates go down if compared to the period of zero tolerance of the punitive prohibitionism.

**231**

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

In many of these legislations that allow abortion and ponder about the life of the fetus and the pregnant woman, the resource to abortion is foreseen in cases of risk to physical and emotional women health. And also due to economic, social and varied familiar issues, sexual violence and fetus with incurable anomaly, besides the recommendation of dialogs with the pregnant woman in search for alternatives before abortion, teaching us the necessity to ponder with respect, wisdom and sensibility how to equate the reasonableness of rights between the life of the fetus and of the women without maculating our most precious good: the

Like this, the life of women, complete human beings, that have histories, families, friends, feelings, desires, pains, joys, projects, frustrations and dream, it is preponderant, in many laws of the nations that allow abortions, in relation to the intrauterine life. In life inside the uterus there is no person or complete subject capable of enjoying the fundamental rights. That is, the embryonic cells are not an integral person yet, a human being that suffers, lives, toil, has problems, yearnings, realizations and difficulties. There are also various other laws in which there is no primacy between the right of women and the life of the unborn, but an equivalence between the two, that in the impossibility of harmony it is necessary to admit the prevalence of only one right based on the context and on the delicate relation established between the pregnant woman and the fetus [5, 6]. It is necessary to consider the stories and life experiences, the paths, the present conditions and projects for the future, the power imbalances in relationships between women and men, the assorted economic, physical and emotional conditions, the masculine subtle coercion modes to engage sexual relations without the use of preservatives, among a series of situations, reason and the most intimate and inviolable feelings that provokes certain behaviors and the choice for abortion, to think about such a delicate and controversial theme. The scarcity of familiar planning services, the high number of insecure abortions in the Brazilian society and the public health problem generated by the punitive prohibitionism of the law, are necessary contexts, moreover, for the reflection about the need to revise or dispose

Women health cannot be put at risk by an antiquated legislation, a religious morality, misogynist conventionalisms, biopolitics interests in the population control or by the coercive power of the State on the restriction of freedom and interference in the individual privacy. The tutelage over their bodies and consciousness, be it by men, the church, the judiciary, the medics, on the intimate and essential decision-making for their bio-psycho-social well-being, life quality and project for the future, prevents women for being acknowledged as subjects, whole people with ethical capacity and autonomy of making choices by themselves that are better or less harmful to them and their environment. Democracy and the exercise of full citizenship will only be possible with a law that guarantees human, sexual and reproductive rights of women in detriment to the preconceptions embedded in society. It is time to change a situation that stigmatize, penalize, mistreats and reap life of thousands of women every year in Mato Grosso do Sul

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

human life [40–45].

of such legislation.

and all over Brazil.

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

In many of these legislations that allow abortion and ponder about the life of the fetus and the pregnant woman, the resource to abortion is foreseen in cases of risk to physical and emotional women health. And also due to economic, social and varied familiar issues, sexual violence and fetus with incurable anomaly, besides the recommendation of dialogs with the pregnant woman in search for alternatives before abortion, teaching us the necessity to ponder with respect, wisdom and sensibility how to equate the reasonableness of rights between the life of the fetus and of the women without maculating our most precious good: the human life [40–45].

Like this, the life of women, complete human beings, that have histories, families, friends, feelings, desires, pains, joys, projects, frustrations and dream, it is preponderant, in many laws of the nations that allow abortions, in relation to the intrauterine life. In life inside the uterus there is no person or complete subject capable of enjoying the fundamental rights. That is, the embryonic cells are not an integral person yet, a human being that suffers, lives, toil, has problems, yearnings, realizations and difficulties. There are also various other laws in which there is no primacy between the right of women and the life of the unborn, but an equivalence between the two, that in the impossibility of harmony it is necessary to admit the prevalence of only one right based on the context and on the delicate relation established between the pregnant woman and the fetus [5, 6].

It is necessary to consider the stories and life experiences, the paths, the present conditions and projects for the future, the power imbalances in relationships between women and men, the assorted economic, physical and emotional conditions, the masculine subtle coercion modes to engage sexual relations without the use of preservatives, among a series of situations, reason and the most intimate and inviolable feelings that provokes certain behaviors and the choice for abortion, to think about such a delicate and controversial theme. The scarcity of familiar planning services, the high number of insecure abortions in the Brazilian society and the public health problem generated by the punitive prohibitionism of the law, are necessary contexts, moreover, for the reflection about the need to revise or dispose of such legislation.

Women health cannot be put at risk by an antiquated legislation, a religious morality, misogynist conventionalisms, biopolitics interests in the population control or by the coercive power of the State on the restriction of freedom and interference in the individual privacy. The tutelage over their bodies and consciousness, be it by men, the church, the judiciary, the medics, on the intimate and essential decision-making for their bio-psycho-social well-being, life quality and project for the future, prevents women for being acknowledged as subjects, whole people with ethical capacity and autonomy of making choices by themselves that are better or less harmful to them and their environment. Democracy and the exercise of full citizenship will only be possible with a law that guarantees human, sexual and reproductive rights of women in detriment to the preconceptions embedded in society. It is time to change a situation that stigmatize, penalize, mistreats and reap life of thousands of women every year in Mato Grosso do Sul and all over Brazil.

*Education, Human Rights and Peace in Sustainable Development*

*protection and vigilantism rules on them.*

by Corrêa:

institutional, medical and legal structures. The social construction of the feminine is, like that, indispensable to think about the differential treatment that women had if compared to men in the case of the Familiar Planning Clinic. As explained

During the Jury Court, the defense of life was a plea used by the prosecution

Thus the theoretical, philosophical, or metaphysical speculative search for the concept of life, more emphatically about which moment can be considered as living, does not seem to be so relevant to biology in the face of the pressing need for empirical research. The author of this text also believes that it is not primordial to sociology to lean on studies to identify the exact moment in which one begins the life before the necessity of the empirical investigation, that, in the case of the abortion, must analyze and understand each concrete and particular case of the experiences of the women involved and their relationships with the

*"If we can understand the controversy about abortion as a discussion linked to other differences of religious and philosophical opinions, we'll understand better in what and why we diverge. We will also be in better condition of emphasizing the points in which we agree and of noticing in which way our divisions, however profound and painful they may be, are still rooted to a fundamental unity of humanitarian conviction. What we share is more fundamental that our divergences* 

Therefore, in many countries where abortion is legalized, that is, more than half of the world, the constitutions protects the life of the fetus and allow the voluntary interruption of pregnancy [5, 6]. And in those countries, it is not too much to highlight, the abortion and mortality by abortion rates go down if compared to the

to condemn the women. However, defense of life is not compatible with the option for abortion. Within the sciences the concept of life has many meanings. In biology, to exemplify, a line of research identifies life in the origin of cells. Other biologists seek to investigate the essence of what determines the entity of the being or even speculate whether life resides in the transmission of hereditary traits through genes. There are still those who consider life a relational process between organisms and the environment. "The organism subjectively interprets the world and itself and, in so doing, constructs its environment" ([38], p. 21). In this relational perspective the notion of life and its sacredness is perceived as communication. Thus, biological science must invest in researches that are capable of capturing the signs relations more than, purely, the relations between molecules. That is, "life is not something possessed or donated to a given entity" (Coutinho et al. 2008, p. 22) or just something of a material substance. It is, above all, a continuous process of semiotic relations between organisms and the environment. "In reality, the name 'life' is merely the reification of the process of being

alive. It does not exist as an independent reality" ([38], p. 2).

*about your better interpretation"* [39]*.*

period of zero tolerance of the punitive prohibitionism.

*Because the social construction of the feminine and of the feminine bodies is strongly associated to the signs of guardianship, they are constructions that conceive the feminine as "out of order," like bodies and subjects that has no capacity of taking care of themselves. They are bodies destined to give birth to children for the State, the capital, the job market, the family and, because of that, women should be protected. The poorer and financially dependent the person, heavier are the* 

**230**

environment.

*Education, Human Rights and Peace in Sustainable Development*
