A 2007 Reproductive Health Matters.
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Reproductive Health Matters 2007;15(29):208–214
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ROUND UP
Law and Policy
The Mexican Supreme Court and abortion
In August 2000, under the lead of the Demo-
cratic Revolutionary Party (PRD), the Legislative
Assembly of Mexico City reformed the Penal
Code and related procedures to admit new forms
of legal abortion and to create a procedure for
the provision of legal abortion following rape. The
reformed law provided that a pregnant woman
must decide to terminate her pregnancy in a ‘‘free,
informed and responsible’’ way, the same terms
used in the formula of the right to reproduction
under the national Constitution. The amendments
were the most progressive adopted to date, and
established for the first time, a relationship between
the Penal Code and the Constitutional right to
reproduction. In September 2000, the National
Action Party (PAN) called for the National Supreme
Court of Justice to rule on the constitutionality
of the reforms. In January 2002, the Court issued
its declaration (the first decision on abortion in
the Court’s history) upholding the constitution-
ality of the reforms.
On 14 February 2002, the Court affirmed that
the Mexican Constitution protects the right to
life of the products of conception,e.g. that mater-
nity protection in the field of labour rights is
intended to protect that life; and that some inter-
national treaties, as well as the penal and civil
codes of Mexican states and the Federal District,
grant the same protection. The Court resolved the
seeming contradiction between the Constitutional
protection of the right to life of the products of
conception and the legality of abortion. It rea-
soned that the exceptions to the illegality of
abortion under the Penal Code (fetal impair-
ment, woman’s health) do not change the fact
that in the law the criminal nature of abortion
survives and is considered as a crime, but the
State ‘‘refuses to apply the penalty’’ for political or
social reasons.
In Mexico, as in other countries, the Supreme
Court sought to de-politicise the issue of abor-
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www.rhmjournal.org.uk
tion and adopted a compromise position that
satisfied all parties in at least some important
respect. The issue was moved from the legis-
lative arena, where it was an explosive matter,
to the (apparently) neutral confines of a judicial
body. This understanding of the Court’s role may
explain the paradoxical reactions to the Court’s
decision. On the one hand, more than 20 NGOs
who advocated for reproductive and abortion
rights in Mexico celebrated the affirmed consti-
tutionality of the reforms, which were suffi-
cient to ensure real change in the Federal District
and to develop procedures to ensure women’s
access to abortion following rape. More impor-
tantly, the constitutionality of the reforms con-
firmed that other local legislatures could adopt
similar reforms.
Yet PAN and Catholic church leaders applauded
the Court’s acceptance of the right to life of the
products of conception, and its recognition that
abortion is still to be understood as criminal in
nature. It is unclear whether either party under-
stood the authentic meaning of the decision, which
was exclusively juridical. Nevertheless, this author
thinks it is clear that the Mexican Court sought
to eliminate, once and for all, the possibility of
a right to legal abortion, and the political con-
sequences of such a rights-based construction.1
1. Prof Eduardo Barraza. For a detailed version of this
paper, please contact him at: beduardo.barraza@
utoronto.caN.
STOP PRESS: New abortion law in
Mexico City
Mexico City passed a new abortion law on
24 April 2007 by 46–19 votes that permits
abortion on request in the first 12 weeks
of pregnancy.
 Round Up: Law and Policy / Reproductive Health Matters 2007;15(29):208–214
Confidentiality owed to adolescents:
UK case law
In the 2006 UK court case Axon v. Secretary of
State1,2 the high court judge affirmed health pro-
fessionals’ obligation to protect the confidential-
ity of patients under the age of 16 in relation to
advice and/or treatment on contraception, sex-
ually transmitted infections (STIs) and abortion.
In 2004, the UK Department of Health issued
Best Practice Guidance for Doctors and other
Health Professionals on the Provision of Advice
and Treatment to Young People under 16 on Con-
traception, Sexual and Reproductive Health.3 This
provided minors with the same right to confi-
dentiality as those over 16. The guidance was
challenged by Sue Axon, a mother of two, who
claimed that confidentiality between minors and
health professionals jeopardised a parent’s ability
to fulfil their responsibility to their children and
fails to give ‘‘practical and effective protection’’
to their right to respect to family life under Arti-
cle 8(1) of the European Convention on Human
Rights. While accepting the importance of family
life, the Court dismissed Axon’s claim and rea-
soned that a logical relationship exists between
the legal capacity of a minor to consent to medi-
cal treatment and his or her right to do so in pri-
vacy. Even if Article 8(1) was infringed, the Court
held that ensuring adolescents’ access to repro-
ductive and sexual health care justifies interfer-
ence with parents’ right to respect for family life.
The Court held that providing only a limited duty
of confidentiality would contradict a previous
ruling – Gillick v. West Norfolk and Wisbech
Area Health Authority [1985]. In that ruling a
majority of the House of Lords held that health
professionals can lawfully provide contraceptive
advice and/or treatment to a girl under the age of
16 without parental consent provided she under-
stands fully the nature and implications of the
advice and proposed treatment. In addition, the
Court ruled that a duty of parental disclosure is
inconsistent with ‘‘the keener appreciation of the
autonomy of the child and the child’s conse-
quential right to participate in decision-making
processes that fundamentally affect his family
life’’ evidenced in the European Convention on
Human Rights and the Convention on the Rights
of the Child. Human rights law supports a high
duty of confidentiality to competent young per-
sons which should not be overridden except for
very powerful reasons. No such reasons applied
in this case. On the contrary, the Court recog-
nised that a failure to guarantee confidentiality
would likely deter young persons from seeking
advice or treatment on sexual matters. It is
good practice for health professionals to seek
to persuade an adolescent who is competent to
consent to treatment to inform his or her parents
or to allow the health professional to do so,
but disclosure is permissible only in exceptional
circumstances. Strong public policy reasons mili-
tated against parental disclosure. The decision
was not appealed.
1. R (Axon) v. Secretary of State for Health & Another
[2006]. EWHC 37 (Admin).
2. Full judgment: bwww.bailii.org/ew/cases/EWHC/
Admin/2006/37.htmlN.
3. 2004 Best Practice Guidance at: bwww.dh.gov.uk/
assetRoot/04/08/69/14/04086914.pdf N.
Women compensated for cost of private
abortions in Quebec, Canada
A court in Quebec has ruled that 45,000 women
should be reimbursed for money they spent
paying for abortion services at private clinics.
Under the Quebec Health Insurance Act the gov-
ernment is responsible for funding abortion, but
chose to ignore the fact that women were turn-
ing to private clinics because the public system
could not provide sufficient services. The class
action on behalf of the women was brought by
the Association for Access to Abortion.1 Women
are now guaranteed abortions free of charge in
Quebec following the passage of an amendment
to the province’s law guaranteeing free access
to health services. The amendment proposed by
the Minister for Health Philippe Couillard ensures
that women requesting an abortion at a women’s
health clinic or public hospital will either be pro-
vided the abortion there or if that is not possible
within the legal time limit, the procedure will be
paid for in a private clinic.2
1. Ann Carroll A, Dougherty K. Province to refund
abortions. The Gazette (Canada). 19 August 2006.
2. At: bwww.cybersolidaires.typepad.comN.
Fetal pain: a review of the evidence, UK
In a review of evidence on fetal pain, the writer
finds that the existing evidence is scientifically
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 Round Up: Law and Policy / Reproductive Health Matters 2007;15(29):208–214
unsound and and that it is inaccurate to claim
that fetuses can feel pain. Legal or clinical man-
dates for the prevention of such pain during
abortion procedures would expose women to
unnecessary interventions, risks and distress.1
1. Derbyshire SWG. British Medical Journal
2006;332:909–12.
Abortion ban passed; first pregnant
woman dies, Nicaragua
The Nicaraguan Parliament passed a law ban-
ning all abortions, including those to save the
woman’s life. The bill allows for jail sentences of
6–30 years for women and providers who termi-
nate their pregnancies. It has been condemned
by human rights and medical organisations, with
obstetricians and gynaecologists expressing fear
of treating women presenting with vaginal bleed-
ing in case of prosecution.1 Even before the bill
was signed into law, the first pregnant woman
had died in Nicaragua. She presented at a hospital
with a high fever and a five-month pregnancy,
but because of the new law and the lack of ultra-
sound the doctors were afraid to treat her. A team
is investigating whether a therapeutic abortion
would have saved her life. The Ministry of Health,
doctors’ associations and hospitals are now work-
ing together to track and investigate each case
that arises, in order to assess the impact of the
law on maternal morbidity and mortality. Mean-
while, activists in Mexico and Costa Rica demon-
strated in front of the Nicaraguan embassies in
their capitals and handed in letters of protest. A
constitutional challenge is likely to be made to the
law, ultimately appealing to an international
human rights court.2
1. Guardian (UK). 27 October 2006.
2. Ipas. 10 November 2006.
Global control of sexually
transmitted infections
Health policy and practice needs to prioritise
effective control of sexually transmitted infec-
tions (STIs) alongside HIV, according to the authors
of this article in this special Sexual and Repro-
ductive Health series. Combating HIV is now
a Millennium Development Goal, but STIs get
little attention or funding despite the high levels
210
of morbidity and mortality they cause globally.
Effective tests and treatments are often unavail-
able to individuals in resource-poor settings.
The writers have reviewed current literature on
the epidiomiology of STIs, and on the effective-
ness of interventions to control STIs, screening
and partner notification. They find that a public
health approach which addresses the impact of
STIs on networks and communities, not just
individuals, can be effective. Better evidence needs
to be available to policymakers on prevalence,
cause, antimicrobial resistance patterns, the nat-
ural history of STIs, how infections are trans-
mitted through sexual networks and the relative
benefits of proactive and opportunistic screening
programmes. Concerted advocacy and strong
leadership with evidence-based arguments on the
cost-effectiveness of combating STIs will help to
overcome cultural and political resistance to
adopting and implementing public health poli-
cies aimed at tackling STIs.1
1. Low N, Broutet N, Adu-Sarkodie Y, et al. Global
control of sexually transmitted infections. Lancet
2006;368:2001–16.
Family planning: an urgent global priority
The international agenda on family planning
urgently needs to be revitalised. Family plan-
ning with its potential to bring enormous
benefits including reductions in poverty, child
and maternal mortality, empowerment of
women and increasing environmental sustain-
ability needs to become more of an international
development priority. Currently human and
financial resources that would have been allo-
cated to family planning are being diverted to
HIV/AIDS, even in areas, like Ghana, where the
risk of death from unsafe abortion is greater
than the risk of dying of AIDS. There is plenty of
evidence for successful family planning models
and Asian and Latin American countries have
made some progress in providing family plan-
ning and reducing fertility, though some poor
populations are still under-served. However,
there is still a great unmet need for family
planning and a high fertility rate in many
African countries, which have family planning
policies in place but lack support from develop-
ment agencies to implement them. Advocacy is
needed to address cultural resistance to smaller
 Round Up: Law and Policy / Reproductive Health Matters 2007;15(29):208–214
families and to modern contraceptive methods
and to provide reassurance that reproductive
rights are consistent with pro-active family
planning policies.1
1. Cleland J, Bernstein S, Ezeh A, et al. Family planning:
the unfinished agenda. Lancet 2006;368:1810–27.
Legal abortion for mental health indications
Where legal systems allow therapeutic abortion
to preserve women’s mental health, abortion pro-
viders often lack access to mental health profes-
sionals for making diagnoses regarding mental
health effects of unwanted pregnancy in par-
ticular cases. Practitioners themselves must then
make clinical assessments of the impact on their
patients of continued pregnancy or childcare. The
law requires only that practitioners make assess-
ments in good faith, and by credible criteria.
Mental disorder includes psychological distress
or mental suffering due to unwanted pregnancy
and responsibility for childcare or, for instance,
anticipated serious fetal impairment. Account
should be taken of factors that make patients
vulnerable to distress, such as personal or family
mental health history, loss of personal relationships,
poor education and marginal social status. Charac-
teristics such as poverty and lack of social support
may act as both precipitating and maintaining
factors of negative effects on mental health.1
1. Cook RJ, Ortega-Ortiz A, Romans S, et al. Legal abortion
for mental health indications. International Journal of
Gynecology and Obstetrics 2006;95:185–90.
Guidelines for providing abortion for
medico-legal indications in Uruguay
In 2004, Uruguay’s Ministry of Public Health
issued Ordinance 369/04 to adopt a health care
protocol developed by Iniciativas Sanitarias
contra el aborto provocado en condiciones de
riesgo (Health Initiatives against Unsafe Abor-
tion) as an official national standard, with the
objective of reducing mortality and morbidity
from unsafe abortion. Within the constraints of
Uruguayan law, which since 1938 has criminalised
abortion, there are three types of medico-legal
indications for abortion: 1) to save the woman’s
life, to preserve her health and when the preg-
nancy is the result of rape, 2) conditions which
allows a judge to waive penalties under certain
circumstances, for example, due to economic dis-
tress or for reasons of ‘‘honour’’ and 3) situa-
tions where legal permission for termination of
pregnancy may be controversial, as well as situ-
ations of ethical and medico-legal dilemmas. The
guidelines also outline both general and specific
interventions in cases where pregnancy termi-
nation is medically and legally indicated. Their
harm reduction strategy is based on three pillars:
addressing the public health problem of unsafe
abortion, respecting the legal status of abortion
and protecting doctor–patient confidentiality.
Likewise, they call respect for the woman’s right
to make her own decisions and to receive accurate
and relevant information on which to base those
decisions. Endorsed by the School of Medicine of
the University of the Republic and by the country’s
major medical societies, the protocol is increasing
women’s access to quality counselling and treat-
ment appropriate to their individual circumstances.1
1. Pautas para la práctica institucional del aborto por
indicación médico-legal. Revista Médica del Uruguay
2006;May. At: bwww.rmu.org.uy/revista/2006v2/
art11.pdf N.
Guidance on providing legal abortion
in Peru
In 2005, a 17-year old girl in Lima, Peru, was
14 weeks pregnant when ultrasound diagnosed an
anencephalic fetus. An obstetrician-gynecologist
found danger to the girl’s life and, with the sup-
port of her mother, recommended abortion. A
psychiatrist also found danger to the girl’s mental
health from continuation of the pregnancy. The law
in Peru permits abortion on evidence of danger
to a woman’s life or continuing mental health.
Nevertheless, the director of the hospital, with sup-
port of the national Ministry of Health, refused
approval. The girl was compelled to deliver the
child, and to breast feed it for four days before it
died, leaving the young girl with severe depres-
sion. The Human Rights Committee, in proceed-
ings the government of Peru did not defend,
found Peru responsible for multiple violations of
the UN International Covenant on Civil and Polit-
ical Rights as regards cruel, inhuman or degrading
treatment, and arbitrary or unlawful interference
with a person’s privacy arising from the denial
of access to a lawful, therapeutic abortion, as well
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 Round Up: Law and Policy / Reproductive Health Matters 2007;15(29):208–214
as denial of health protection required for minors.
The Human Rights Committee required Peru
to provide the girl with a remedy, including
compensation, and to adopt measures to prevent
future violations, including publishing clear regu-
lations specifying women’s rights to lawful abor-
tion and ensuring means of effective access to
medical services.1
The Instituto Nacional Materno Perinatal
(National Maternal-Perinatal Institute) in Lima
has just published such guidance for legal abor-
tion services, which could become the normative
guidance for the rest of the country. This report
summarises some of the main clauses of the guid-
ance. It states that although the General Health
Law does not contain regulations on the process of
obtaining an abortion, a woman’s rights as a user
of health services take precedent. In accordance
with Article 12 of that law, religious or conscien-
tious objection may not be invoked to deny an
abortion; rather, a referral or replacement provider
must be arranged within 48 hours. As regards con-
sent issues, a woman is entitled to decide whether
to have an abortion that is deemed legal, as her
own life and health may be at risk. In the case
of adolescents, in line with already established
guidance on adolescent health, parental or legal
guardians’ authorisation is needed if the girl is
under age 16, but girls aged 16-18 and teenager
mothers under age 16 may take their own deci-
sion. Lastly, if abortion is the only means to save
the woman’s life or to avoid morbidity, this is
enough to provide access to an abortion. It is
not necessary that death is an imminent danger,
it is enough that a threat to the woman’s health
is present.2
A recent study sponsored by PROMSEX and the
Peruvian Society of Obstetrics and Gynecology
considered the legality of Article 30 of Peru’s Ley
General de Salud No.26842 (General Health Law),
which requires physicians to report to the appro-
priate authorities cases where there are indications
that an illegal abortion has taken place. As a result
of this regulation, physicians often refuse to treat
women who arrive at emergency rooms or private
clinics, even with life-threatening complications
from unsafe abortions. Conversely, providers who
do opt to treat a woman may be left feeling guilty
that they are disobeying the law. What most women
and physicians do not know is that by treating
the woman and not reporting her, physicians
would be complying with Article 2, Paragraph 18
212
of the Peruvian Constitution, which states that
every individual has the right to professional con-
fidentiality. The study highlights the conflict of
rights and duties as represented in these two legal
instruments: the duty to collaborate with law
enforcement authorities vs. the right of provider–
patient confidentiality. The authors call on the
Peruvian government to amend Article 30 to pro-
tect professional confidentiality, and hence the
lives and futures of women who seek treatment
for unsafe abortion complications.3
1. Cook RJ, Dickens B, Erdman J. Emergency
contraception, abortion and evidence-based law.
International Journal of Obstetrics and Gynecology
2006;93:191–97.
2. Instituto Nacional Materno Perinatal. Protocolo de
Atención del Aborto Legal. Lima, 2007. Report by
Susana Chávez, PROMSEX, 7 February 2007.
3. Kresalja B. Arto.30, Ley No.26842. La República.
1 March 2007. Summarised by Susana Chávez.
Promoting motherhood in Estonia
Estonia has a low fertility rate and one of the
world’s fastest ageing populations. Financial incen-
tives provided by the Estonian government to
boost the fertility rate have achieved an increase
from 1.3 to 1.5 since 2004. The government has
paid women’s salaries for up to 15 months after
delivery and provided grants to those not pre-
viously in work. The aim is to increase the birth
rate to two births per woman in order to maintain
the current population. They are considering fur-
ther measures, such as pre-abortion counselling,
aimed at deterring women choosing abortion.1
1. Women are paid for giving birth. Astra Bulletin
2006;10(4).
Oocyte donation, ethical issues
An increase in oocyte donation from poorer to
more affluent countries creates a number of ethical
issues. Transnational oocyte donation can result
in cost savings, shorten waiting lists and solve
the shortage of donor eggs in Western countries.
However, there is concern that donors in less afflu-
ent countries (especially students) may be ‘‘willing’’
but might be motivated into donating oocytes
in exchange for financial reward. Over-exposure
to the super-ovulatory drugs necessary to har-
 Round Up: Law and Policy / Reproductive Health Matters 2007;15(29):208–214
vest oocytes can have adverse effects. Normally
a recipient’s physician has some responsibility
for the health of the donor, but in the case of
transnational donation responsibility is abdicated
to the donor’s physician. It is also not clear
which physician would be responsible for a fail-
ure in screening, if hereditary or transmitted dis-
eases or congenital defects were to emerge during
pregnancy or after delivery. Fees paid to donors
do not reflect high prices charged to recipients,
resulting in large profits for physicians and clinics.
The writers argue for local and international bodies
such as the European Commission, the European
Society for Human Reproduction and Embry-
ology and the American Society for Reproductive
Medicine to design and implement a coherent
regulatory framework providing for mandatory
counselling and informed consent for donors;
appropriate monetary compensation; health insur-
ance for donors; accountability of physicians to
donor and recipient; and sharing of cost-savings
with oocyte recipients.1
1. Heng BC. Ethical issues in transnational dmail orderT
oocyte donation. International Journal of Gynecology
and Obstetrics 2006;95:302–04.
Regulation of assisted reproductive
technology as regards embryos: UK
and Australia
This exploratory discussion paper looks at the
possibility of reframing regulation of assisted
reproduction away from its focus on the embryo.
This could more closely align biological and legal
understandings and ensure that the legislation
and regulation of assisted reproductive technolo-
gies address the needs of the child-to-be, parents,
public and health professionals. The author uses
a comparison of Australian and UK legal frame-
works to illustrate the difficulties in legal defi-
nition. Even scientists do not agree on a definition
of the embryo, which is one in a series of stages
in a process of continuous development, none of
which has a definite beginning or ending. Terms
such as ‘‘embryo‘‘ are also vulnerable to techno-
logical advance and open to legal challenge. An
alternative legal approach could be one which
is not tied to biological terminology, but which
states clearly the desired outcome of a medical
intervention and the requirements for intent to
reach such outcome, regulated through a system of
prohibitions and licences. The writers give exam-
ples of this approach in Australian law. Combining
this approach with one in which all the different
parts of the developmental process are united in a
single concept – as in the case of the UK’s Human
Fertilisation and Embryology Authority’s use of
the term ‘‘human genetic material’’ could bring
greater coherence to legislation.1
1. Johnson MH. Escaping the tyranny of the embryo?
A new approach to ART regulation based on UK
and Australian experiences. Human Reproduction
2006;21(11)2756–65.
Releasing identifying information about
sperm donors in Australia
In the context of new legislation permitting
mature donor offspring to obtain identifying infor-
mation about their donors, research was carried
out in Western Australia to assess the opinions of
potential sperm donors, recipients and partners
on issues relating to release of information about
sperm donors. 45 potential donors attending a local
fertility centre completed a questionnaire. Ques-
tionnaires were also completed by 33 women
undergoing donor insemination or IVF with donor
sperm, and 12 of their partners. 48.9% of donors
agreed that children born as a result of sperm
donation should be informed of the manner of
their conception, and a high proportion would con-
sider some form of contact with future offspring,
but more than half of potential donors indicated
that they would not donate if their identity was
revealed to future offspring. The vast majority of
recipients and partners plan to inform their off-
spring about the manner of their conception and
are in favour of providing identifying information
about the donor.1
1. Godman KM, Sanders K, Rosenberg M, et al. Potential
sperm donors’, recipients’ and their partners’ opinions
towards the release of identifying information in
Western Australia. Human Reproduction 2006;21:
3022–26.
Italians seek assisted reproduction
procedures abroad
A law passed in Italy in January 2004 restricting
assisted reproduction techniques and pre-
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 Round Up: Law and Policy / Reproductive Health Matters 2007;15(29):208–214
implantation genetic testing has led to a four-
fold increase in Italians travelling to access
procedures in clinics abroad. Clinics in European
countries and the United States report an increase
in Italian couples requesting treatment from 1,066
in 2003 to 4,173 in 2005 according to a report
by the Reproductive Tourism Observatory. Within
Italy success rates of treatments in women over
40 have fallen due to the limit of three fertilised
oocytes while the incidence of triplets in
younger women has risen since the law insists
that all fertilised embryos must be implanted in
the womb.1
1. Turone F. Italians are forced to go abroad for assisted
reproduction. British Medical Journal At: bbmj.comN.
12 December 2006.
Stop Press: Polish woman wins damages at
European Court of Human Rights
The European Court of Human Rights has awarded
Alicja Tysiac, age 35, of Poland =
C25,000 in dam-
PIOTR MALECKI / PANOS PICTURES
The Pope’s visit to Poland, May 2006
214
ages from the Polish government. She was refused
an abortion in 2000 despite warnings by three eye
specialists that continuing the pregnancy could
make her go blind. Neither the specialists nor her
GP would authorise an abortion. Ms Tysiac suf-
fered a retinal haemorrhage and her eyesight
worsened drastically after she had her third baby,
and she fears she may go blind. She now wears
glasses with thick powerful lenses but she cannot
see objects more than five feet away. As a disabled
single mother, she struggles to raise her three
children on a meagre state pension. The Strasbourg
court ruled that her human rights had been violated
when she was denied an abortion on therapeutic
grounds, which are legal. The case highlights the
difficulties Polish women have of obtaining even a
legal abortion. Polish women’s rights groups
estimate there are only 200 legal abortions per-
formed every year in the current situation.1
1. Easton A. Polish woman wins abortion case. BBC
News. 20 March 2007. At: bhttp://news.bbc.co.uk/go/
pr/fr/-/2/hi/europe/6470403.stmN.