Written by Carlos Joaquín Méndez Quan[1]
I. INTRODUCTION
The scope of the right to life has been theorized on by the International Law of Human Rights (ILHR). This admits the possibility of a multiplicity of intellectual processes that could claim to explain and analyze the different phenomena that occur around this right in concrete realities. Abortion is one of the main issues that lend tension to the legal, social and cultural dialectic of our country in relation to the right to life, since it involves not only a debate on public health issues such as welfare services, it has also been approached from the perspective of human rights as the main focus to claim its decriminalization. In this way, it is a topic that generates not only ideological divisions but has even led to the polarization of our society. This article aims to elucidate the panorama of the right to life in Honduras, based on the legal and social events that have occurred around the right in recent times, employing an informative-analytical technique will be used.
II. LEGAL FRAMEWORK THAT PROTECTS THE RIGHTS OF THE UNBORN IN HONDURAS
The normative hierarchy on which legal provisions are based is a model of ambivalent[SA1] supremacy that places the Constitution of the Republic and international treaties on human rights as the foundation of the entire internal legal system.[2]
The Honduran legislation regarding the rights of the unborn is comprised as follows:[3]
a) National Regulations
Honduran legislation has given the right to life a protection that radiates from the rest of the normative provisions existing in the country, clearly and precisely delimiting that the will of the legislator seek the inviolability of this right. The Constitution of the Republic establishes in its article 65 that “the right to life is inviolable.” An affirmation that implies, on the one hand, the obligation of the State not to do as far as the respect of this prerogative is concerned; and on the other hand, the imposition of an obligation to do, since article 61 of the same legal statute contains a constitutional mandate that requires the State as guarantor of this right, having to adopt all the necessary measures to ensure its inviolability. Likewise, it defines the scope of the right to life – for purposes of a mostly civil nature – as article 67 establishes that “a person who is about to be born in all that favors him shall be considered born.”
In this regard, articles 51 and 52 of the Civil Code seem to contain provisions that could generate at first sight a certain degree of confusion regarding the right to life. Article 51 recognizes that “the legal existence of every person begins at birth.” And then article 52 affirms that “the law protects the life of the one about to be born,” which compels the judge to take all necessary measures to protect the existence of the unborn whenever he considers that he is in danger. However, in light of the method of literal-grammatical interpretation, by contrasting both provisions, it is possible to determine that the legal recognition of the birth of a person does not presuppose the denial of the thesis that recognizes the existence of human life from before one’s birth.
The Childhood and Adolescence Code agrees in its provisions with the foundations of this premise, since it stipulates in its article 12 that “every human being has the right to life from the moment of conception,” while at the same time it ratifies the State’s obligation to “adopt the measures that are necessary so that the gestation, birth and subsequent development of the person are carried out in conditions compatible with human dignity.” This is an extensive duty that not only covers the stages prior to birth, but also includes the subsequent responsibility to ensure the full development of the human person in society. This has an intrinsic relationship with what is established in article 59 of the Political Constitution: “the human person is the supreme goal of society and the State.” In view of this, the Regulation of the Social Security Law provides in Article 81 that the State of Honduras “… will not pay the subsidy in the event of intentionally induced abortions.”
For its part, the Code of Ethics for Public Officials protects the individual right to conscientious objection in article 32, by virtue of which “public servants may not be forced to perform functions and tasks contrary to their convictions, principles and values. moral, ethical, religious and philosophical .” Likewise, the Code of Ethics of the Medical College of Honduras recognizes this right in article 74, stating that “the doctor may declare conscientious objection when forced to perform actions or omissions that are contrary to his principles related to life.” In addition to this,its article 72 refers to one of the fundamental points that, on a daily basis, are part of the discussion about the figure of abortion in Honduras, since it provides that “it is not ethical to admit the existence of a period in which human life lacks of value, so that every doctor must dedicate his best efforts to protect life and at no time should have the right to dispose of it”.
Finally, Legislative Decree No. 130-2017 containing the New Penal Code,[4] maintains the teleological essence of the figure of abortion regulated in the previous Penal Code; a virtue that allows it to preserve its coherence with the above-mentioned regulations, taking into account that the criminalization of abortion is maintained in an absolute way. However, certain changes in the wording of the articles allow differentiating – although in a reduced way – the content and scope of the provision in relation to the 1983 Penal Code. Thus, the new Penal Code regulates abortion as follows:
ARTICLE 196.- ABORTION. Abortion is the death of a human being at any time during pregnancy or during childbirth. Whoever intentionally causes an abortion should be punished:
1) With three (3) to six (6) years in prison if the woman has consented to it or causes her abortion;
2) With six (6) to eight (8) years in prison if the agent acts without the consent of the pregnant woman and without using violence or intimidation; and;
3) With eight (8) to ten (10) years in prison if the agent uses violence, intimidation or deception. In addition to the penalties indicated in the preceding paragraphs, health professionals who, by abusing their profession, cause or cooperate in carrying out the abortion, will also be imposed a fine of five hundred (500) to one thousand (1,000) days.
Who by acts of violence causes the abortion without the intention of causing it, but according to the state of pregnancy of the victim, must be punished with a prison sentence of eight (8) to ten (10) years, without prejudice to the penalty that corresponds for the acts of violence that he carries out.
Compared with the previous criminal regulations, there are two situations that are distinguished in the new Code: 1) The accessory penalty of fifteen thousand lempiras (L. 15,000.00) is replaced with thirty thousand lempiras (L. 30,000.00) for the accessory penalty of Fine-days, imposing a fine of five hundred (500) to one thousand (1,000) days and; 2) The penalty of imprisonment is increased in relation to the figure of pre-intentional abortion, being that the previous Penal Code stipulates a penalty of imprisonment from four (4) to six (6) years, while in this new normative body an abstract penalty is imposed between eight (8) and ten (10) years.
b) International Regulations
The criteria adopted within the Inter-American System for the Protection of Human Rights has acquired a primary role in the discussion on the problem of abortion in the region, both through the theorizations developed by the jurisprudential doctrine of the Inter-American Court of Human Rights (Inter-American Court) and through the recommendations made by the Inter-American Commission on Human Rights (Inter-American Commission) in the exercise of its quasi-judicial function. However, the incompatibility of the conception of abortion as a human right with the content of the American Convention on Human Rights (ACHR)[5] is notorious – at least prima facie. This, by virtue of Article 4.1 of the ACHR reads as follows: “Everyone has the right to have their life respected. This right will be protected by law and, in general, from the moment of conception“. On this line of thought, it would be possible to affirm that the right to life from conception is indeed a human right recognized by the ACHR that serves as the cornerstone of the inter-American corpus juris; conversely, the right to abortion is not recognized as a fundamental right, since its protection is not mentioned in the text of the ACHR or in the text of the rest of the international instruments that protect the human rights of women, such as for example, the Inter-American Convention to Prevent, Punish, and Eradicate Violence Against Women (Belém do Pará Convention).
Nevertheless, the discussion loses clarity when in the case of Artavia Murillo and Others vs. Costa Rica, the Inter-American Court restrictively redefines the term “conception”,[6] an action that according to the jurist Ligia de Jesús Castaldi violated the norms of interpretation established in Article 29 of the ACHR.[7] Thus, the Inter-American Court established that “it coincides with international and national courts, in the sense that there is no agreed definition on the beginning of life….”[8] On the other hand, it is necessary to remember that the Preamble to the Declaration of the Rights of the Child recognizes that “the child, due to his lack of physical and mental maturity, needs special protection and care, including due legal protection, both before and after the birth,” a provision which would reaffirm the obligation of the State to adopt all necessary measures to guarantee the right to life of the unborn.
Thus, Honduras’ statutory law is deeply characterized by its pro-life identity, adopting provisions of domestic law and international order to guarantee the right to life from the moment of conception.
III. HONDURAN CONTEXT
In this section we will study some contextual aspects that allow us to know the current situation in which the right to life is found in relation to the figure of the abortion in the country.
a) The dialectic on abortion in Honduran society
In the first instance, it is essential to remember that Honduran society is historically constituted on the roots of the Christian religion, which has led the debate on the issue of abortion to distinguish between two clearly defined positions: on the one hand, one that has been called pro-life whose struggle has been led especially by sectors of the Catholic Church and the Evangelical Church; and on the other hand, a pro-abortion vision that is promoted by different non-governmental organizations built on the basis of feminism. However, the discussion progressively takes on a more academic-scientific character with the passage of time, as arguments increasingly based on merely legal, social and political aspects are spun from both positions.
In 2017, feminist organizations introduced an initiative to reform the Penal Code, which sought to decriminalize abortion. It was then, an opportunity to reaffirm the pro-life identity of Honduran society, or instead, a paradigmatic transformation of the culture of life in the country. In this sense, awareness campaigns were started by both sides, which included discussion forums in the legislative chamber (which allowed the arguments to be contrasted) to marches that had their meeting point on the outskirts of the National Congress.
As part of this debate, substantial statements were issued that allowed us to know the ideological foundations that guide the actions of the country’s political class. Thus, who holds – in a highly questioned and controversial way – the Executive Branch, Juan Orlando Hernández, clearly specified his position and that of the ruling party on abortion, by totally rejecting its decriminalization.[9] Likewise, the Liberal Party, which is one of the three major political forces in the country, spoke out against therapeutic abortion, appealing to its ideological commitment as defenders of life and the dignity of the human being[10]. Finally, with 79 votes against, the initiative was rejected.[11] Subsequently, feminist organizations have continued to fight for this legal modification to be approved, so that the deputy of the Libertad y Refundación Party, Beatriz Valle, presented a motion to approve the use of the Emergency Contraceptive Pill after rejecting the initiative to reform the Penal Code.[12]
Then, the Honduran College of Physicians has strongly rejected the legalization of abortion. And so, explains its president, Dr. Suyapa Figueroa: “From the College of Physicians of Honduras we are against the legalization of abortion in any case. When a woman is detected with abortifacient substances, the medical staff has to make a report to the legal advice of the hospital.”[13] This position is essential, since it expresses the will of the professional union authorized to make medical-scientific judgments on situations related to the health of the population.
In this way, the positions that guide the discussion of abortion in society have been clearly defined, both from the union level (micro level) and from the political perspective (macro level).
b) Statistical data
For several years, the institutional fragility of the National Institute of Statistics and the strict regulation of abortion in Honduras, has made it difficult to obtain unequivocal data that allow us to know exactly the specific situation of this figure in the country. However, among the most relevant data used and cited by organizations such as the Women’s Rights Center[14] in their newsletters, we find that according to the Ending Eclampsia Project founded by USAID, abortion represents 12% of maternal deaths in Honduras.[15]
However, the behavior of the maternal death ratio during the period from 1990 to 2015 has had a significant trend towards reduction without legalization of abortion (182 to 61 per 100,000 nv)[16]. This situation is intrinsically linked to the approach of reducing maternal mortality that countries have adopted when committing to goal 3 of the Sustainable Development Goal, which consists of reducing the world maternal mortality ratio to less than 70 per 100,000 live births and ensure that no country has a maternal mortality rate that exceeds twice the world average.
This proposal contains four strategic areas that have been shown to be beneficial for maternal and perinatal health and that are part of the “Plan of Action to accelerate the reduction of Maternal Mortality and Serious Maternal Morbidity:”[17]
• Prevention of unwanted pregnancies and the complications derived from them.
• Universal access to affordable and quality maternity services.
• Qualified human resources.
• Strategic information for action and dissemination of the results achieved.
c) Persecution of the crime of abortion in Honduras
One of the most controversial aspects in the country is the material justification for the criminalization of voluntary abortion. Despite the strict regulation of voluntary abortion, its prosecution has been limited and not very effective. The total criminalization of abortion has been questioned by the sectors that promote this figure as a human right of women, arguing the lack of a deterrent effect of the penalty imposed for the commission of this crime.
On this matter, the jurist Castaldi reminds us that the Criminal Procedure Code of Honduras, in its article 25, stipulates that the crime of abortion is prosecutable ex officio, that is, without the need for the intervention of a complaint or complaint, the Public Ministry can prosecute those responsible for the criminal act. However, Article 28 empowers the Public Ministry to “limit itself in the prosecution of the crime, when the penalty applicable to the crime does not exceed five (5) years, the effect on the public interest is minimal, and the background and personal circumstances of the accused, its lack of danger is inferred.” For this reason, the prosecution of the crime of voluntary abortion by public authorities has been relatively weak. However, such judicial discretion does not exist in all cases of abortion, since article 445 of the same Code establishes that crimes whose penalties are greater than 5 years are considered “serious”, as is the case of forced abortion.[18]
In this same line of thought, according to the feminist organization Somos Muchas, from the analysis of the frequency of reported cases, it was determined that between 2006 and 2012 only 5.55% of them were prosecuted; while between 2013 and 2018 10.73%[19] were prosecuted.
IV. NATIONAL AND INTERNATIONAL POLITICAL INCIDENCE ON ABORTION
We provide a list some of the actions undertaken by national and international organizations that are attempting to impact the direction that Honduran legislation can take regarding the issue of abortion and protection of the right to life.
The national entities that influence the political, legal and social debate of the abortion issue are organized as follows:
• Pro-life institutions
As mentioned above, the Catholic Church and the Evangelical Church have played a fundamental role in the discussion. During the attempt to decriminalize abortion in 2017, the same front was formed by both denominations to reject any claim that had as a result the impairment of the right to life.[20]
Likewise, there are groups such as the Obra de María Association – Focolare Movement that works for helpless children, single mothers, families with problems, and other vulnerable situations[21]. At the same time, through the Pastoral Social / Cáritas, a campaign has been launched that aims to promote a culture of peace and respect for life.[22]
It is important to note that religious institutions have legitimacy in the debate for the defense of life to be born, for two reasons. In the first place, because its foundations are not limited to those of a religious nature that may not be shared by the whole of Honduran society, but rather have philosophical, anthropological and human rights motivations, which, as clarified above, are defenders of life to be born. And secondly, because they have extensive experience in the care and promotion of the human person in an integral way, without hidden economic interests, but because of the simple conviction that each human person in whatever situation they find themselves deserves all the care and attention that they need.
Likewise, the non-governmental organizations that maintain the preponderant role in the fight against abortion in the country are the Honduras Pro-Life Committee[23] and the Alianza por la Familia Association. The projection of the Pro-life Committee has been fundamental in the defense of life, since within its main activities are the assistance, orientation and free support to pregnant mothers in crisis, donations to centers of shelters for children in social risk, to public hospitals in the country, to homes of girls who have been victims of sexual abuse, to asylums of people in their old age, participation in public debate forums, courses and training on issues related to the rights of women and the unborn in educational centers, and so on.
• Non-Governmental Organizations that promote abortion in Honduras
Without a doubt, there are many pro-abortion organizations in the country. Without prejudice to their particular lines of action, the majority are dedicated to promoting abortion from a human rights perspective. Likewise, they carry out investigative work and provide legal assistance to those women who intend to have or have had an abortion. Among these organizations we can mention the following: Center for Women’s Rights (CDM), Latin American and Caribbean Committee for the Defense of Women’s Rights (CLADEM), Center for Reproductive Rights, Marie Stopes Honduras, Lesbian Network Cattrachas, Center for Women’s Studies – Honduras (CEM – H), Center for Studies and Action for Development of Honduras (CESADEH), Young Women’s Network (REDMUJ), Visitation Padilla, Actions for Population Development (ADP), Adult Women Network (REDMUCR), University Women’s Collective (COFEMUN), World March of Women, Honduras National Committee, Socialist Women’s Movement, Las Lolas, Comision de Mujer Pobladora, Convergence of Women of Honduras, Center for Prevention, Treatment and Rehabilitation of Victims of Torture (CPTRT), among others.
• National government agencies promoting abortion
Despite the prohibition of abortion in Honduran legislation, there are some state agencies that ignore the mandates established in the law and promote, from a governmental position, certain actions aimed at legalizing abortion. Currently, these organizations include: National Women’s Institute (INAM), the Honduran Family Planning Association (ASHONPLAFA), the Committee for the Defense of Human Rights in Honduras (CODEH) and the National Commissioner of Human Rights (CONADEH). Even the Secretary of State in the Office of Health has implemented various action plans or strategies that contravene the conception of the right to life established in Honduran legislation, namely: the National Policy on Sexual and Reproductive Health,[24] the National Policy of the Woman and II Plan of Equality and Equity of Gender of Honduras,[25] the Policy of Maternal and Child Health,[26] and the Manual of Norms and Procedures of Integral Attention to the Woman. However, these public policies continue to be exercised with great weakness due to the lack of resources of the governing bodies.
On the other hand, the subjection to international organizations with supranational powers and characteristics has allowed an increasing acceptance of the decisions adopted in this context, and with it, a greater sense of obligation in their compliance. Likewise, within the framework of international cooperation, there is a direct influence of international entities that include the promotion of abortion among their main lines of action. These actions of interference framed within the international sphere are briefly described below.
• International cooperation agencies
Today at the international level there are various entities that support and promote the legalization of abortion. Among those with the greatest presence in our country are organizations such as the U.S. Agency for International Development (USAID),[27] United Nations Population Fund Honduras (UNFPA), the European Union, the United Nations Development Program (UNDP), the World Health Organization (WHO) and the Panmerican Health Organization (PAHO).
• Recommendations made by international organizations to the State of Honduras
At the same time, different organizations have recently made a series of recommendations[28] to the State of Honduras that conceive abortion as a human right.
The Committee for the Elimination of Discrimination against Women has recommended that the Honduran State reform the regulations on abortion. Likewise, the Human Rights Committee for the Eradication of Violence Against Women recommends ensuring access to legal abortion and eliminating the prohibition of the contraceptive pill. In the same sense, the United Nations (UN) establishes in the Universal Periodic Review that withdrawing the prohibition of abortion in the criminal law stands as an act aimed at fulfilling its obligation to eliminate discrimination against women in their legislation and promote their sexual and reproductive rights.
In conclusion, although there is great political pressure both at the national and international levels to force the decriminalization of abortion in the country, the nation’s pro-life identity seems to remain unscathed throughout the various levels of Honduran society.
[1] Intern of the 6th year of the Law career at the Faculty of Legal Sciences of the National Autonomous University of Honduras. Representative of the Pro-Life University Youth Honduras. Member of the Moot Court UNAH Program on Human Rights since 2018. Technical-Legal Advisor in the Security and Justice Directorate at the Association for a More Just Society, International Transparency Chapter in Honduras.
[2] Article 18 of the Constitution of the Republic confers a constitutional rank to all the provisions that emanate from the international treaties that have been ratified by Honduras. In turn, article 63 of the same legal body recognizes the character of numerus apertus to the recognition of fundamental rights and freedoms, which has been understood by the Constitutional Chamber of the Supreme Court of Justice as the “Block of Constitutionality.” This figure allows the positivization of human rights and fundamental freedoms that emanate from the IHL, even when they are not expressly set forth in the 1982 constitutional text.
[3] It is important to mention that the order in which the regulatory texts are presented does not respond to their relationship of normative hierarchy, since the wording used undertakes to structure a logical sequence that allows textual fluidity and contributes to a better understanding of the regulations.
[4] Numerous dilemmas arise on this particular regulation that have caused confusion and uncertainty in the Honduran population and put its validity into question. This new substantive criminal law only came into force on June 25, 2020; it is a Penal Code that has suffered from different vices of illegality and illegitimacy, which involve from the procedural terms on which it was carried carried out its approval in the Legislative Power until its lack of socialization with the different sectors of the Honduran population; which have generated a state of deep legal insecurity. This, taking into consideration that even extraordinary sessions have been held in which the repeal of said regulations has been decided by the deputies of the country’s political opposition.
[5] Ratified by the State of Honduras in 1977.
[6] I / A Court HR. Case of Artavia Murillo et al. (“In Vitro Fertilization”) v. Costa Rica. Judgment of November 28, 2012 (Preliminary Objections, Merits, Reparations and Costs). Paragraph 181.
[7] Castaldi, Ligia de Jesús. The Case of Artavia Murillo et al. V. Costa Rica: Proposals for its Refutation and Commentary on its Possible Effects in Latin America and the Caribbean. Accessed June 22, 2020. Retrieved from: https://aul.org/wp-content/uploads/2019/01/El-caso-Artavia-Murillo-y-otros-vs.-Costa-Rica-Propuestas- for-its-refutation% C3% B3n-and-comment-on-its-possible-effects-in-Latin-America% C3% A9rica-y-el-Caribe.pdf
[8] Op. Cit. Paragraph 185.
[9] El Heraldo newspaper. Journalistic Note of April 26, 2017. Consulted on June 24, 2020. Retrieved from: https://www.elheraldo.hn/pais/1065766-466/presidente-juan-orlando-hern%C3%A1ndez-se-pronuncia-sobre-el-aborto-solo-dios-tiene
[10] TIEMPO Digital Newspaper. Journalistic Note of April 26, 2017. Consulted on June 24, 2020. Retrieved from: https://tiempo.hn/pronunciamiento-partido-liberal-del-aborto/
[11] Hondudiario Digital Newspaper. Journalistic Note of May 04, 2017. Consulted on June 24, 2020. Retrieved from: https://hondudiario.com/2017/05/04/79-diputados-votaron-contra-la-despenalizacion-del-aborto-en-el-congreso/
[12] El Heraldo newspaper. Journalistic Note of May 04, 2017. Consulted on June 24, 2020. Retrieved from:https://www.elheraldo.hn/pais/1068167-466/honduras-congreso-nacional-aprob%C3%B3-seguir-con-la-penalizaci%C3%B3n-del-aborto
[13] El País Digital Newspaper. Press release February 06, 2018. Accessed June 25, 2020. Retrieved from: https://elpais.com/elpais/2018/01/30/planeta_futuro/1517352626_964103.html
[14] Center for Women’s Rights (CDM). Newsletter for the month of November 2018. Accessed on June 26, 2020. Retrieved from: https://derechosdelamujer.org/documentos/boletin-2017-observatorio-de-derechos-humanos-de-las-mujeres/
[15] Ending Eclampsia Honduras. Newsletter. Accessed June 26, 2020. Retrieved from: http://www.endingeclampsia.org/wp-content/
[16] Pan American Health Organization (PAHO). Informative Note on the Website. Accessed June 26, 2020. Retrieved from: https://www.paho.org/hon/index.php?option=com_content&view=article&id=1504:honduras-redobla-esfuerzos-para-la-reduccion-acelerada-de-la-mortalidad-materna&Itemid=225
[17] Secretary of State in the Office of Health (SESAL). Press release of July 04, 2018. Accessed on June 27, 2020. Retrieved from: http://www.salud.gob.hn/site/index.php/component/k2/item/1080-salud-define-plan-de-accion-para-acelerar-la-reduccion-de-la-mortalidad-materna-y-la-morbilidad-materna-grave
[18] Castaldi, Ligia de Jesús. The protection of the right to life of the unborn in Honduras: a reflection of the strong pro-life identity of Central America. Accessed June 27, 2020. Retrieved from: https://aul.org/wp-content/uploads/2019/02/Honduras-ES.pdf
[19] Non-Governmental Organization WE ARE MANY. Research article published in January 2020. Accessed June 28, 2020. Retrieved from: https://issuu.com/lisamariesheran/docs/criminalizacion-mujeres-delito-aborto-final03
[20] El Heraldo newspaper. Journalistic note of April 21, 2017. Accessed on June 28, 2020. Retrieved from: https://www.elheraldo.hn/pais/1064660-466/honduras-iglesia-evang%C3%A9lica-y-cat%C3%B3lica-se-unen-en-contra-de-la-despenalizaci%C3%B3n
[21] Pan American Health Organization (PAHO). Informative Note on the Website. Accessed June 28, 2020. Retrieved from: https://www.paho.org/hon/index.php?option=com_content&view=article&id=296:apoyo-poblacion-indigena-mosquitia&Itemid=225
[22] CARITAS from Honduras. Website blog note. Accessed June 28, 2020. Retrieved from: https://www.caritas.hn/?p=125
[23] It is a civil, non-political and non-profit association that has accepted the challenge and commitment of today’s Honduran society to proclaim and defend the dignity and inviolability of human life, from its conception to its natural death and death. all its intrinsic values.
[24] See in: https://oig.cepal.org/sites/default/files/hon_politica_nacional_ssr_2016.pdf
[25] See in : https://www.tse.hn/WEB/documentos/equidad_y_genero/II%20PIEGH.pdf
[26] See in : http://www.bvs.hn/E/pdf/PoliticaSMI.pdf
[27] This international cooperation organization has recently been partially hampered in achieving this objective based on the mandates established by the government of President Donald Trump, who since 2019 ordered the suspension of any type of financing of actions aimed at promoting of abortion.
[28] National Commissioner for Human Rights (CONADEH). 2018. Basic Aspects of Public Service and Enjoyment of the Human Right to Health, by the Inhabitants of Honduras. Pages 109-110.
[SA1]I’m not sure what this means: “co-equal supremacy?”
