Written by: Juan Diego Condori Saavedra[1 ,Jaqueline Mariela Rojas Ayque[2]
Coordinated by: Andrés Delgado Cáceres[3]
SUMMARY:
The authors analyze the Peruvian situation in recent years in relation to the protection of the right to life. This right, which the state is obligated to protect, has been diminished on different occasions by external and internal influences that the authors seek to analyze from the legislative, judicial and political contexts. Thus, different contemporary events are examined, such as the presentation of bills, lawsuits and media campaigns, which, in the authors’ opinion, would cause a direct violation of the protection currently enjoyed by the right to life.
KEY WORDS: Right to life, abortion, therapeutic abortion, euthanasia, reproductive rights, sexual rights, right to a dignified death, Peruvian Legislation, Judicial Process, Organizations.
SUMMARY: 1. INTRODUCTION 2. LEGISLATIVE ASPECT 2.1 Abortion 2.2 Therapeutic abortion 2.3 Euthanasia 2.4 Death penalty 3. JUDICIAL ASPECT 3.1 Legal proceedings concluded 3.2 Legal proceedings in progress. 4. ACTIVIST-POLITICAL INFLUENCE 5. CONCLUSIONS
1. INTRODUCTION
During the COVID-19 global pandemic, IPSOS Global conducted a survey involving 25 countries on the population’s support for the legalization of abortion. Peru was ranked 23rd. The statistical research had a sample of 17,497 adults aged 16-74 years. The results affirm that 48% of those surveyed were in favor of the legalization of abortion. Of them, 16% believe that abortion should be allowed anytime the woman wants to do it. Meanwhile, 32% think that abortion should be conditioned on an exceptional situation, such as rape[4].
The Peruvian State recognizes the protection of the right to life from the moment of conception to the moment of natural death. In this sense, the national and international legislation that binds Peru is aimed at this end.
On the other hand, there is the emergence of new trends that favor the recognition of certain so-called “rights”, such as the right to a “safe abortion” and the right to a “dignified death.” Thus, at the legislative level, bills have been proposed that seek the death penalty as the maximum penalty for crimes such as femicide and rape of minors. Such circumstances certainly conflict with the norms that currently protect the right to life.
This article will analyze the legal, judicial and political aspects directly related to the right to life that have arisen during the last few years in Peru. The authors will discuss whether these contexts have a direct impact on the right to life, from the moment of conception to the natural death of the human person. Abortion (with exception for therapeutic ones), euthanasia and the death penalty are illegal in Peru. However, it is clear that both social and political sectors–whether of national or international origin– are continually pushing for the legalization of these acts, through the presentation of bills, lawsuits and media campaigns, which would certainly cause a direct violation of the protection of the right to life in Peru.
2. LEGISLATIVE ASPECT
2.1. Abortion
The abortion agenda in contemporary Peru has its beginnings in Bill 3839-2014-CR,[5] which marked a media milestone represented in the phrase “Let her decide.” However, this was disapproved by the Justice and Human Rights Commission (2015) and by the Constitution and Regulation Commission (2016) of the Congress of the Republic.
This served as the basis for Bill 387-2016-CR, filed on October 12, 2016 by Congressmen Indira Huilca and Marissa Glave, from the political party “Frente Amplio”. The bill proposes to modify articles 119 and 120 of the Criminal Penal Code, in order to decriminalize abortion when it is the result of an act of non-consensual sex/rape, artificial insemination or egg transfer, and abortion in case of fetal malformations incompatible with extra-uterine life. It is worth mentioning that to date (Aug. 20, 2020) this proposal has not yet been debated in the Plenary of Congress.[6] It should also be noted that this proposal was supported by pro-abortion organizations, which will be discussed later.
2.2. Therapeutic abortion
This has been regulated since 2014 through Ministerial Resolution No. 486-2014-MINSA, and by virtue of it, on June 28, 2014 the “National Technical Guide for the Standardization of the Procedure for the Comprehensive Care of the Pregnant Woman in the Voluntary Interruption by Therapeutic Indication of Pregnancy under 22 Weeks with Informed Consent” (hereinafter “National Technical Guide”), within the framework of the provisions of Article 119 of the Criminal Code.
However, in 2016 this protocol was revised in collaboration with the organization Catholics for the Right to Decide Peru, without showing substantial differences from the base guide. It is important to note that there is a lack of transparency due to the number of therapeutic abortions that have been performed. To know such figures, a request for information must be made through the Law of Transparency and Access to Information.
According to the data collected in 2016 by the Promsex organization, since the protocol’s regulation in 2014, at least seven therapeutic abortions have been performed in three of the main hospitals in Lima[7].
2.3. Euthanasia
In 2015 a group led by Congressman Angulo Álvarez and Roberto Edmundo presented Bill No. 4215-2014-CR.[8] This bill would decriminalize the so-called “pious homicide,” in addition to declaring the implementation of Euthanasia as “public necessity and national interest.” It is worth mentioning that, to date this project has not yet been debated in the Plenary of Congress[9].
2.4. Death Penalty
In the last 4 years there has been a great trend toward the production of bills that seek to admit the death penalty, coinciding with opposition to the large number of sex crimes that have been statistically registered in recent years. This becomes evident when analyzing the 7 proposed bills,[10] since 5 of them have this objective. However, this outcome is unlikely due to the various international human rights treaties to which Peru is a party, which prohibit the death penalty.
3. JUDICIAL FIELD
3.1 Concluded processes
Judicial actions related to the right to life are almost non-existent, since the Peruvian legislation still safeguards the ban on issues such as abortion and euthanasia. However, there are two decisions that are instructive.
The first of these, File No. 30541-2014-0-1801-JR-CI-01, was processed in the First Constitutional Court of the Superior Court of Lima. The lawsuit that gave rise to this amparo (a summary proceeding) was filed by citizen Violeta Cristina Gómez Hinostroza, who requested that the Ministry of Health be ordered to inform and distribute the emergency oral contraceptive free of charge – “the day after” pill (Levonorgestrel) – in all State Health Centers.[11]
In 2009 the Constitutional Court, in File No. 02005-2009-PA / TC, determined the existence of “reasonable doubt” because there was no certainty regarding the abortive effects of Levonorgestrel (active ingredient in the pill). Consequently, its free distribution was prohibited; however, its sale was not prohibited.
Both in the precautionary measure requested by the plaintiff and in the final decision, the plaintiff urged the Ministry of Health to initiate free distribution of the “day after pill” in all State Health Centers, primarily promoting the development and execution of an information, distribution and orientation policy for the national population, which would have allowed members of society and especially those sectors with fewer resources to be adequately instructed regarding all the characteristics and effects produced by the use of emergency oral contraceptives (Levonorgestrel), as an emergency and exceptional mechanism.”[12][SA1] [SA2] [RG3]
The second judicial action, File No. 31583-2014-0-1801-JR-CI-01, was processed in the First Constitutional Court of Lima. This amparo was filed by the NGO Action for the Fight Against Corruption “Sin Componenda” against the Ministry of Health. Its main claim was that the Ministry of Health refrain from implementing, disseminating and monitoring at the national level in all divisions, regions, managements and health establishments, the National Technical Guide for therapeutic abortions”[13] within the framework of the provisions of article 119 of the Penal Code.
After an analysis of suitability and conventionality, the ruling held that the “National Technical Guide” does not contravene article 119 of the Penal Code, and should be applied in cases in which there must be a medical diagnosis according to which it is possible to verify that the continuation of the pregnancy constitutes a risk to the physical integrity of the woman. Likewise, it reaffirmed that this protocol contributes to improvement in the quality of life and seeks to save the life of the pregnant woman.[14]
However, the implementation of a protocol of this nature, especially cause No. 11,[15] opens the door unnecessarily to disguised abortions under the argument of “health” that are, actually, abortions at will.
Finally, we have the case in File No. 00058-2018-0-1801-SP-CI-01, which was processed in the First Civil Chamber of Lima. This proceeding began through a popular action, presented by the Santo Tomas Moro Legal Studies Association against the Ministry of Health. The main claim sought to declare the unconstitutionality of the National Technical Guide, since therapeutic abortion is itself deemed a crime, which, although not punishable, did not justify its regulation. The court held that due to the existence of treaties and other international sources that bind Peru, it is necessary to establish the parameters to be followed regarding a therapeutic abortion, with the ultimate goal of safeguarding the health and life of the pregnant woman.[16]
3.2 Ongoing legal proceedings
One of the most emblematic cases that is still pending a decision is the amparo filed by the Ombudsman’s Office against the Ministry of Health, Ministry of Justice and ESSALUD, which requested that the Peruvian State be required to recognize the right to a death in “dignified conditions” for citizen Ana Estrada. This lawsuit maintains that the affected person suffers from polymyositis, an incurable and degenerative disease that progressively deteriorates her motor skills, paralyzing almost all the muscles of the body, for which she requires that she beeuthanized because of the alleged existence of the right to a dignified death. It is worth mentioning that currently, “pious homicide” is penalized in art. 112 of the Penal Code of Peru. The lawsuit also calls for the implementation by MINSA of a euthanasia procedure and that professionals who intervene in the euthanasia procedure not be imprisoned.[17]
4. ACTIVIST-POLITICAL INFLUENCE
The pressure from international organizations or associations for the decriminalization of abortion is dynamic and energetic, as they join forces with national groups that are financing and promoting them. Campaigns like “Let her decide” are gaining strength and followers as time goes by.
International organizations such as Alianza por la Solidaridad, Latin American Consortium against Unsafe Abortion, International Campaign for Women’s Right to Safe Abortion, Campaign for an Inter-American Convention on Sexual Rights and Reproductive Rights – Peru Alliance, CEDAL – Center for Rights and Development – Peru, are some of the organizations which are promoting media campaigns in favor of abortion in our country. We also have national organizations that actively participate in political and social campaigns that defend abortion as a woman’s right, such as the Peruvian Women’s Center, Flora Tristan, Movimiento Manuela Ramos, PROMSEX and DEMUS. However, in spite of this situation, the issue of abortion has not been discussed or scheduled in Congress.[18]
5. CONCLUSIONS
Our research disclosed a lack of exact data on the numbers of therapeutic abortions performed after the implementation of the “National Technical Guide”, as well as the number of deaths caused by miscarriages and illegal abortions in Peru. We agree that the transparency of information regarding abortion needs to be, as far as possible, promoted by the State, while keeping a proportional confidentiality for the personal data of the people involved. The only way to monitor the effectiveness of a public policy is through reliable statistics, but in the face of a situation as precarious as this, it shows that the intention has not been precisely to address a solution, but to promote a measure by ideological imposition.
In recent years, the Congress of the Republic of Peru has suffered a very serious political crisis that led to the dissolution of Parliament. During this period of time, the legalization of both abortion, euthanasia and the death penalty has not been debated. Therefore, the main political challenge is to maintain a permanent coalition in defense of the right to life within the Legislative Power. Otherwise, the ideology promoted by the various civil organizations will constantly enter the parliamentary agenda.
The existence of national and international activism has had a great impact on the realization of political and social campaigns, which have influenced legislative proposals that aim to change the rules that prohibit abortion. The main challenge is to maintain the union between the various pro-life organizations in the country, so that information can be provided to the population and have a presence in the community.
We show the existence of few judicial cases related to abortion and euthanasia, because the Peruvian legal system still prohibits them. The decision in the case of Artavia Murillo vs. Costa Rica in the Inter-American Court of Human Rights has accentuated an argument based on the weighting of rights that is beginning to have effects in the ordinary jurisdiction[SA4] [RG5] , so it is necessary to reinforce the legal argument that defends the constitutional model in force in the country, which is the unrestricted right to life. The weighting does not protect the essential core of the right to life, which can generate various injustices and arbitrariness to people in a state of vulnerability.
BIBLIOGRAPHY
1. Azabache, J. (August 18, 2020). Right to decide: four years ago the legalization of abortion was not included on Peru’s political agenda. La República newspaper. Available in:https://larepublica.pe/genero/2020/08/18/aborto-en-peru-dejala-decidir-la-ultima-campana-que-puso-en-la-agenda-politica-la-despenalizacion-de-la-interrupcion-voluntaria-del-embarazo-atmp/
2. Chapa-Romero, J., Guevara-Ríos, E., Gutiérrez-Ramos, M., Pérez-Aliaga, C., & Ayala-Peralta, F. D. (2019). Legal implications of the court ruling on emergency oral contraception. Peruvian Journal of Maternal Perinatal Research, 8 (3), 40-44.
3.Application for amparo action (January 31, 2020) Ana Estrada case. Constitutional Court of the Superior Court of Justice of Lima. Available in:https://img.lpderecho.pe/wp-content/uploads/2020/02/Demanda-de-amparo-del-caso-Ana-Estrada-LP.pdf
4. Survey (2019) Abortion in figures: Survey of women in Peru. PROMSEX. Available: https://promsex.org/wp-content/uploads/2019/02/EncuestaAbortoDiptico.pdf
5. Fernández Calvo, F. Azabache, J. (August 18, 2020). Ipsos Global Survey: 48% of respondents are in favor of the legalization of abortion in Peru. El Comercio newspaper. Available in: https://elcomercio.pe/peru/encuesta-de-ipsos-global-el-48-de-encuestados-esta-a-favor-de-la-legalizacion-del-aborto-en-el-peru-noticia/?ref=ecr.
6. Bill No. 387-2016 (December 12, 2016) “Law that decriminalizes abortion in cases of pregnancies as a result of rape, artificial insemination or non-consensual egg transfer and malformations not compatible with life.” Congress of the Republic of Peru. Available in: http://www2.congreso.gob.pe/Sicr/TraDocEstProc/CLProLey2016.nsf/9f4082845d6ec60e052578e100829cc3/ddfb9dd5756d81360525804a006032fe?OpenDocument
7. Bill No. 4215-2014-CR (March 4, 2015) “Law that decriminalizes pious homicide and declares the implementation of euthanasia of public necessity and national interest”. Congress of the Republic of Peru. Available in: http://www2.congreso.gob.pe/Sicr/TraDocEstProc/CLProLey2016.nsf/9f4082845d6ec60e052578e100829cc3/ddfb9dd5756d81360525804a006032fe?OpenDocument
8. Proyectos de Ley N° i) 02069/2017-CR, ii) 02330/2017-CR, iii) 02482/2017-CR, iv) 02584/2017-CR, v) 04957/2020-CR, vi) 04960/2020-CR, vii) 04961/2020-CR
9. Ministerial Resolution, N. Nº 486-2014 / MINSA. (June 27, 2014) National Technical Guide for the standardization of the procedure of the Comprehensive Care of the pregnant woman in the Voluntary Interruption for Therapeutic Indication of Pregnancy under 22 weeks. Ministry of Health of Peru.
10. Judgment (August 2, 2019) Resolution No. 47 of the First Specialized Constitutional Court of Lima. File 30541-2014-0-1801-JR-CI-01. Peru, 2019. Judiciary Branch.
11. Judgment (August 8, 2019) Resolution No. 19 of the First Specialized Constitutional Court of Lima. File N ° 31583-2014-0-1801-JR-CI-01. Peru. Judiciary Branch.
12. Judgment (December 10, 2019) Resolution No. 25 of the First Civil Chamber of Lima. File N ° 00058-2018-0-1801-SP-CI-01 Peru. Judiciary Branch.
[1] 10th semester student at the Professional School of Law, Universidad Católica San Pablo. 2020
[2] 10th semester student at the Professional School of Law, Universidad Católica San Pablo. 2020
[3] Lawyer from the San Pablo Catholic University, Master in American Law from the University of St Thomas. Blackstone Fellow 2014.
[4] Fernández Calvo, F. Azabache, J. (August 18, 2020). Ipsos Global Survey: 48% of respondents are in favor of the legalization of abortion in Peru. El Comercio newspaper. Available in: https://elcomercio.pe/peru/encuesta-de-ipsos-global-el-48-de-encuestados-esta-a-favor-de-la-legalizacion-del-aborto-en-el-peru-noticia/?ref=ecr
[5] Bill No. 387-2016 (December 12, 2016) “Law that decriminalizes abortion in cases of pregnancies as a result of rape, artificial insemination or non-consensual egg transfer and malformations not compatible with life.” Congress of the Republic of Peru. Available in: http://www2.congreso.gob.pe/Sicr/TraDocEstProc/CLProLey2016.nsf/9f4082845d6ec60e052578e100829cc3/ddfb9dd5756d81360525804a006032fe?OpenDocument
[6] The Popular Force bench (conservative in color) had an absolute majority in Congress at the time that this bill was presented, for which it did not obtain the necessary political support for its treatment. Currently, the authors of that bill are no longer in the Congress to promote it.
[7] These data were obtained by a request for information from the Promsex Organization, based on the Law of Transparency and Access to Information.
[8] Bill No. 4215-2014-CR (March 4, 2015) “Law that decriminalizes pious homicide and declares the implementation of euthanasia of public necessity and national interest”. Congress of the Republic of Peru. Available in: http://www2.congreso.gob.pe/Sicr/TraDocEstProc/CLProLey2016.nsf/9f4082845d6ec60e052578e100829cc3/ddfb9dd5756d81360525804a006032fe?OpenDocument
[9] The political situation that accompanied this bill is similar to what happened with Bill 387-2016-CR explained in footnote number 6.
[10] Draft Law N ° i) 02069/2017-CR, ii) 02330/2017-CR, iii) 02482/2017-CR, iv) 02584/2017-CR, v) 04957/2020-CR, vi) 04960/2020 -CR, vii) 04961/2020-CR
[11] Judgment (August 2, 2019) Resolution No. 47 of the First Specialized Constitutional Court of Lima. File 30541-2014-0-1801-JR-CI-01. Peru. Judiciary.
[12] Chapa-Romero, J., Guevara-Ríos, E., Gutiérrez-Ramos, M., Pérez-Aliaga, C., & Ayala-Peralta, F. D. (2019). Legal implications of the court ruling on emergency oral contraception. Peruvian Journal of Maternal Perinatal Research, 8 (3), 40-44.
[13] Ministerial Resolution, No. 486-2014 / MINSA. (June 27, 2014) National Technical Guide for the standardization of the procedure of the Comprehensive Care of the pregnant woman in the Voluntary Interruption for Therapeutic Indication of Pregnancy under 22 weeks. Ministry of Health of Peru
[14] Sentence (August 8, 2019) Resolution No. 19 of the First Specialized Constitutional Court of Lima. File No. 31583-2014-0-1801-JR-CI-01. Peru. Judiciary Branch.
[15] Any other maternal pathology that puts the life of the pregnant woman at risk or generates a serious and permanent illness in her health, duly supported by the Medical Board.
[16] Judgment (December 10, 2019) Resolution No. 25 of the First Civil Chamber of Lima. File N ° 00058-2018-0-1801-SP-CI-01 Peru. Judiciary Branch.
[17] Application for amparo action (January 31, 2020) Ana Estrada case. Constitutional Court of the Superior Court of Justice of Lima. Available in: https://img.lpderecho.pe/wp-content/uploads/2020/02/Demanda-de-amparo-del-caso-Ana-Estrada-LP.pdf
[18] Azabache, J. (August 18, 2020). Right to decide: four years ago the legalization of abortion was not included in Peru’s political agenda. La República newspaper. Available in: https://larepublica.pe/genero/2020/08/18/aborto-en-peru-dejala-decidir-la-ultima-campana-que-puso-en-la-agenda-politica-la-despenalizacion-de-la-interrupcion-voluntaria-del-embarazo-atmp/
[SA2]Rocio – Is this a summary of the argument the plaintiff made? I’m not sure there’s enough concerning the actual decision of the court. Thanks.
[RG3]Yes, it is a summary of the complaint and the ruling. I can pass the request to the authors and ask more information about it.
- [SA4]I’m not sure what this phrase means – does it mean legislative policy?
…that is beginning to have effects over judges’ criterion and therefore its rulings, so it is…
