Laws and Polices in Brazil, Mauritania, Philippines and the United States

ISSUE 36 - 20 July 2004

This issue of the UNFPA Global Population Policy Update focuses on the creation of an enabling environment for the implementation of the International Conference on Population and Development (ICPD) Programme of Action (Cairo, Egypt, 1994).

Included in the issue are laws and policies passed within the last nine months in various countries addressing issues such as violence against women and children, sexual offences against minors, human trafficking and abortion.

Brazil Enacts Law on Violence Against Women

On 24 November 2003, Brazil enacted Law No. 10778 that requires both public and private heath services to notify the health authorities on cases of violence committed against women, which they have treated. Violence against women is defined as any action or conduct based on gender that causes death, harm, or physical, sexual, or psychological suffering, whether it occurs in public or private circumstances. The law includes domestic violence, trafficking, forced prostitution and sexual harassment in the work place, educational institutions and health establishments. The information given to the health authorities is to be kept confidential.

Brazil Amends Law on Sexual Offenses Againts Minors

On 12 November 2003, Brazil amended through Law No. 10764 its Law on Children and Adolescents to stenghthen the provisions protecting children and adolescents from sex- related crimes. The Law, among others, a) imposes increased penalties on persons who promote or assist in the illegal transfer of children and adolescents out of the country if they use violence, serious threats or fraud; b) broadens the definition of the crimes related to pornography involving children or adolescents to include producing or directing the production of pornographic photos and pornography in any visual medium and selling, furnishing, or distributing such pornography through any means of communication, including the internet; and c) make persons who are intemediaries in such pornography, who provide internet acess to such pornography or provide the means for storage of such pornography subject to criminal penalties.

Mauritania Enacts Law to Suppress Human Trafficking

On 17 July 2003, Mauritania enacted Law No. 025/2003 to suppress human trafficking. The Law defines trafficking as a number of different acts, including the enlistment, transport and transfer of persons by force or threat. It also provides that exploitation includes non-remunerated labour, forced services and labour, the removal of human organs for money, the exploitation of the prostitution of another person and other forms of sexual exploitation. The Law sets substantial penalties for engaging in human trafficking.

Philippines Enacts Law on Violence Against Women and Children

On 8 March 2004, the Philippines enacted Republic Act No. 9262, the Anti-Violence Act Against Women and Their Children of 2004. This Act commits the State to address violence committed against women and children in keeping with the fundamental freedoms guaranteed under the Constitution and the provisions of the Universal Declaration of Human Rights, the Convention on the Elimination of all forms of Discrimination Against Women, the Convention on the Rights of the Child and other international human rights instruments of which the Philippines is a party.

The Act defines violence against women as "any act or a series of acts committed by any person against a woman who is his wife, former wife, or against a woman with whom the person has or had a sexual or dating relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty."

The Act imposes penalties on persons who commit acts and violence against women and provides for the granting of protection orders for the purpose of preventing further acts of violence against a woman or her child. It contains provisions on persons who may apply for a protection order, where and how to apply for a protection order, the enforceability of protection orders, legal representation for persons who lack resources, violation of protection orders, the battered woman syndrome as a defense for women who commit crimes after suffering violence, the duties of public officials and health care providers when faced with acts of violence against women, the rights of victims and mandatory programs and services for victims, among others. http://www.ops.gov.ph/records/ra_no9262.htm.

United States Adopts First Federal Abortion Ban

On 5 November 2003, President Bush signed into law the Partial-Birth Abortion Ban Act of 2003, as enacted by the U.S. Congress in Public Law 108-105. "Partial-birth abortion" is defined as any abortion in which the person performing the procedure "deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered fetus." The Act could cover a range of abortion procedures performed as early as 12-15 weeks of pregnancy. While there is a limited exception where a woman's life is endangered, there is no exception for safeguarding a woman's health. A doctor would be prohibited from performing an abortion banned by the Act, even if a different procedure would pose a greater risk to the woman's health.

Criminal penalties include a fine or imprisonment of up to two years, or both. The Act additionally subjects providers to civil liability for damages. An action can be brought by the "father," if married to the woman who underwent the abortion, or by the woman's parents if she is not yet 18 years of age.

Shortly after passage of the Act, its constitutionality was challenged in three U.S. district courts, each of which blocked enforcement of the Act pending final decisions in each case. On 1 June 2004, a San Francisco federal court judge found the Partial-Birth Abortion Ban Act unconstitutional and permanently enjoined enforcement of the law. The district court struck down the law on three grounds: 1) it imposes an unconstitutional undue burden on a woman’s right to choose abortion before viability because it bans abortion procedures that use the most common second-trimester abortion methods; 2) it is unconstitutionally vague because it does not give physicians adequate notice of what abortion procedures are prohibited; and 3) it is unconstitutional because it lacks an exception for safeguarding a woman's health. Rulings are expected from the district courts in Nebraska and New York within the next few months.

In 2000, in the case of Stenberg v. Carhart, the Supreme Court struck down a state law similar to the current Partial-Birth Abortion Ban Act, both because the broad wording of the law would have prevented doctors from performing the most common procedures in the second trimester, and because the law contained no health exception.

All previous issues of the UNFPA Global Population Policy Update can now be found on UNFPA's website at: http://www.unfpa.org/parlamentarians/news/newsletters.htm

This newsletter is issued by the United Nations Population Fund (UNFPA) in its capacity as secretariat for the biannual International Parliamentarians' Conference on the Implementation of the ICPD Programme of Action (the first conference was held in November 2002, in Ottawa, Canada). These dispatches are intended to highlight important developments taking place around the world so that parliamentarians can be kept informed of and learn from the successes, setbacks and challenges encountered by their fellow parliamentarians in other countries and regions in their efforts to promote the implementation of the Programme of Action of the International Conference on Population and Development (September 1994, Cairo, Egypt). It should be noted that UNFPA does not necessarily endorse all of the policies described in this newsletter.

Thanks to Center for Reproductive Rights and Harvard University School of Public Health for their contributions to the content of this newsletter.

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