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Abortion: Argentina

An estimated 500,000 abortions occur every year in Argentina, representing an estimated 40 percent of all pregnancies. The consequences of illegal and unsafe abortion have constituted the leading cause of maternal mortality in this country, in the words of a public official, “since we had statistics.” Access to abortion continues to be illegal though the penalty may be waived where the life or health of the pregnant woman is in danger, or where the pregnancy is the result of the rape of a mentally disabled woman. It is also largely a closed topic, despite the catastrophic effects of illegal abortion on women’s health and lives, including debilitating hemorrhaging, severe uterine infections that may impede future pregnancies, and sometimes death.

Across the South American region, many governments and legislators have historically declared their opposition to modern birth control methods, usually with reference to Catholic Church doctrine. However, in Argentina the government went so far as to prohibit the sale of all contraceptives for several decades in the late twentieth century—an extreme display of opposition to birth control even by regional standards. This position is only partially explained by reference to Catholic Church doctrine. Historically, a central part of the identity of the political elite in Argentina has been that of a frontier nation to be colonized and populated by Caucasian immigrants from Europe. Indeed, the Argentine Constitution charges the federal government with the active encouragement of European immigration. This pro-natalist approach has historically set Argentina apart from the rest of South America, so much so that Argentina in 1996 was the only country in the region to provide no public support of any kind for access to contraception, and in 2001 the only country to provide no direct support.

In a positive development, in 2002 the Argentine Congress passed a law (National Law on Sexual Health and Responsible Procreation) which contains important provisions for the advancement of women's rights and health. However, this law does not address women’s severely limited access to safe and legal abortion services.

History of Argentina's Law on Abortion

Abortion has constituted a crime in Argentina since the late nineteenth century. The current penal code entered into force in the 1880s, and abortion was included as a crime with no exceptions for punishment. In 1922, the penal code provisions on abortion were amended to allow for three exceptions for punishment:

where the pregnant woman's life or health was in danger;

where the pregnancy was the result of a rape; and

where the pregnant woman was mentally disabled.

During the 1976-83 military dictatorship, the penal code was changed to include further restrictions on abortion, requiring “grave” danger to a woman’s life or health, and, in the case of rape, the commencement of criminal proceedings. In 1984, after the reinstatement of the democratic government, the provisions on abortion were amended again to return to the 1922 wording, with one small but substantive difference: a comma in the text was moved. The effect of this change was that women whose pregnancies were the result of a rape, after the 1984 change, no longer were permitted a non-punishable abortion unless they were declared mentally disabled.

As a result, the current penal code provides for only two exceptions to punishment:

where the pregnant woman's life or health is in danger; and

where the pregnancy is the result of the rape of a mentally disabled woman.

In 2004, several bills were pending in Argentina’s Congress, all of which seek to amend the current penal code provisions to expand or limit the situations where penalties for abortion may be waived.

Full penal code provisions on abortion currently in force

Article 85. He who causes an abortion will be punished: 1. with detention or prison from three to ten years, if the operation was carried out without the consent of the woman. This punishment may be raised to fifteen years, if the woman died as a result; 2. with detention or prison of one to four years, if the operation was carried out with the consent of the woman. The maximum punishment is six years, if the woman died as a result.

Article 86. The doctors, surgeons, midwives or pharmacists who abuse their science or profession to cause an abortion or cooperate to cause it will be punished as established in the previous article and will, additionally, be prohibited from exercising their profession for twice the time than that which they will serve. An abortion carried out by a medical doctor with the consent of the pregnant woman is not punishable:

if it was done with the objective to avoid a danger to the life or health of the mother and if this danger could not have been avoided by any other means; if the pregnancy is the result of the rape or assault to the modesty committed against an idiot or demented woman. In this case, the consent of the legal representative is required for the abortion.

Article 87. He who causes an abortion with violence involuntarily will be punished with prison of six months to two years if the pregnant state of the patient was obvious or known to him.

Article 88. The woman who causes her own abortion or who consents to someone else causing it will be punished with one to four years of prison. The woman’s attempt [to abort] is not punishable.

Relevant Statistics

Argentina’s population is approximately 39 million, of which 27 percent is under 15 years old (2002).

The fertility rate is 2.4 children per woman, and the annual population growth is 1.1 percent (2002).

Reported maternal mortality rate is 46.1 per 100,000 live births (2002), up from 38.1 in 1997.

An estimated 30 percent of maternal mortality is due to consequences of illegal abortion (2004).

An estimated 500,000 illegal abortions occur in Argentina annually (2004), constituting approximately 40 percent of all pregnancies.

The most recent data available (from 1996) shows that contraceptive use in women of childbearing age was 75 percent.

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