By Eva Oeverhaus, a graduate in International Human Rights Law from the University of Groningen. She currently works at the secondment agency USG Legal, where she takes on various legal assignments for the Dutch government. At present, she is seconded to the Dutch Ministry of Finance, working for the Surcharges Recovery Organization (UHT). eva-alexandre hotmail.com

“We don’t do abortions here, this is a baby-friendly hospital”.[1] This is the answer given by a Portuguese hospital in 2023.[2] Even though abortion has been legal in Portugal since 2007, recent studies have shown that 30% of public hospitals do not provide this service.[3] The main reason given is due to the right of health professionals in Portugal to conscientiously object abortion, which flows from one’s right to freedom of thought, conscience and religion.[4] As a human right, abortion should be accessible for all, whilst at the same time protecting health professionals’ right to conscientiously object. Portugal must thus take further steps to ensure that all persons have access to safe abortion.[5]

Abortion rights: essential to realise the right to sexual and reproductive health

On the international plane, termination of a pregnancy is not an independent right in itself, but has been linked to other recognized human rights, namely the right to health enshrined in article 12 of the International Convention on Economic, Social and Cultural Rights (ICESCR). The right to health is consequently linked to one’s right to sexual and reproductive health.[6] The right to reproductive health consists of a person’s right to make free and responsible choices with regards to their own body.[7] This freedom must be free of violence, oppression and discrimination.[8] Moreover, reproductive health has been described as the capability of a person to reproduce and the freedom to do so, through informed and responsible decisions, in addition to facilities and services that enable this.[9] Abortion should therefore be first and foremost seen as the pregnant person’s own freedom of choice and autonomy of their own body.

Additionally, it is proven that the lack of access to a safe abortion can have negative consequences for the pregnant persons’ health .[10] Considering that the right to sexual and reproductive health is included within the right to health, abortion can and must be interpreted as a human right.[11] State Parties to the ICESCR are obliged to make the sexual and reproductive health services and facilities available, accessible, acceptable and of quality.[12] These elements are part of the AAAQ framework as interpreted by the Committee on Economic, Social and Cultural Rights (CESCR) in General Comment No. 14 on the right to the highest attainable standard of health. Taking into account that Portugal is a party to the ICESCR, it is legally bound to uphold these requirements.[13]

The legal regulation of abortion in Portugal

In Portugal, as per the legislation on voluntary termination of pregnancy, abortion is not punishable when it meets certain requirements.[14] First of all, it must be performed by a doctor, or under the doctor’s direction, in an official or officially recognised health establishment.[15] Termination of pregnancy is possible within 10 weeks, if there are no health risks for the woman or foetus, or if the pregnancy is not a result of sexual assault for instance. If one of these latter are the case, the time limit to terminate the pregnancy is extended .[16] The pregnant woman’s consent is required under any circumstance, including if the woman's life is at risk.[17] In addition, a waiting period of three days is necessary if the termination of pregnancy is the woman’s own choice. The exclusion of illegality in cases of abortion modified article 142 of the Portuguese criminal code, by making the act not punishable.[18]

Even though abortion is legally available and seems to be theoretically possible, it is important to note that health professionals do have the right to conscientiously object to it.[19] Taking these two rights into consideration, practice shows that there is still a lot of work to be done. In order to fulfil the right to sexual and reproductive health, services and facilities need to fulfil the AAAQ elements. [20] In this feature, the focus will lie on the accessibility of abortion in Portugal, or the lack thereof, and the right to conscientious objection. A balance must thus be struck between the right to abortion on the one hand, and the right to conscientious objection on the other.

Abortion and conscientious objection in Portugal: in accordance with human rights?

Conscientious objection means that a person can refuse to participate in an activity that is incompatible with that person’s morals, religion or ethical beliefs.[21] This right is based on one’s right to freedom of thought, conscience and religion and explicitly mentioned in several human rights treaties.[22] When national legislation - such as the Portuguese Law No. 16/2007 on the Exclusion of illegality in cases of voluntary termination of pregnancy - prescribes one’s right to invoke conscientious objection, States are obliged to regulate this practice to make sure that everyone has access to the required health care.[23] According to the World Health Organization (WHO), conscientious objection should not put women’s abortion rights at risk and timely resolutions should be put in place.[24] The CESCR shares this statement in General Comment No. 22, and further dictates the requirements for sexual health accessibility: health facilities, goods, services and information linked to sexual and reproductive health - such as abortion - must be physically and financially accessible, and provided for without discrimination. [25] The needs of the specific individual are paramount to ensure access to abortion, which does not seem to be fulfilled in Portugal.[26]

Firstly, abortion does not seem to be physically accessible to all. According to the Portuguese General Directorate of Health (DGS), 30% of public hospitals do not terminate pregnancies, with most of them being in the countryside of Portugal.[27] On the two island clusters of Madeira and Açores, home to nearly half a million people, there is only one public hospital available for abortion.[28] This hospital’s abortion services, located in Madeira, depend entirely on whether a medical specialist is available and able to travel to the hospital.[29] If the doctor is not available, then the pregnant person is transferred to a private abortion clinic in mainland Portugal.[30] The forced move to different hospitals or to travel abroad can arguably be seen as a violation of a person’s right to health - and thus their right to abortion - but also to non-discrimination.[31] This latter can for instance be seen in the case before the European Committee of Social Rights, namely International Planned Parenthood Federation - European Network v Italy .

Secondly, abortion does not seem to be financially accessible to all. Abortion is cost-free in Portugal, if it is conducted by a public hospital or an authorised private clinic.[32] Currently only one private health centre is authorised to carry out terminations of pregnancy with costs being covered by the State.[33] This private clinic is located in Lisbon. The lack of contracts between public hospitals and private clinics clearly show the barriers faced by people with less financial means who are unable to go to a public hospital that actually carries out abortions. There have been cases where the person wanting to terminate the pregnancy does not receive timely information from the National Health Service (SNS), forcing them to go directly to a private clinic.[34]

Thirdly, access to information regarding safe abortion seems to be lacking too, and can arguably be linked to Portuguese health workers’ right to conscientiously object. , I f a doctor chooses to do so, certain requirements need to be met. First of all, a referral must be made to the appropriate health facilities.[35] Doctors are also required to report all services, to which one conscientiously objects, to the Order of Doctors.[36] Unfortunately, practice has shown that these rules are not followed, as the Portuguese Ministry of Health does not have information or estimate on the number of conscientious objectors in the SNS.[37] The main reason has been attributed to the unawareness of health professionals of this rule.[38]

The way forward

The abovementioned findings lead to the conclusion that the Portuguese authorities do not fulfil their obligations under article 12 ICESCR - the right to health - as abortion related services and facilities are not accessible to all. The place of residence of the abortion seeker and its financial situation greatly impact abortion accessibility - factors that Portugal is not taking sufficiently into account. To ensure both health professionals’ right to freedom of conscience and the right to seek abortion , health personnel should receive training on the abortion procedure and its regulation.[39] This way, the government will receive a better overview of which health personnel are conscientious objectors and thus take the appropriate steps to ensure proper abortion rights for all. For instance, provide this service – free of charge - through private clinics in a timely manner.

[1] Fernanda Câncio, 'Acesso ao aborto no SNS. Entre 2009 e 2023, sete hospitais deixaram de fazer IVG' (Diário de Notícias, 3 March 2023) <https://www.dn.pt/sociedade/acesso-ao-aborto-no-sns-entre-2009-e-2023-sete-hospitais-deixaram-de-fazer-ivg-15934182.html> accessed 14 November 2023.

[2] Ibid.

[3] Ibid.

[4] Ibid; Luisa Cabal, Monica Arango Olaya and Valentina Montoya Robledo, 'Striking a Balance: Conscientious Objection and Reproductive Health Care fromthe Colombian Perspective' (2014) 16/2 Health and Human Rights Journal <https://www.hhrjournal.org/2014/09/striking-a-balance-conscientious-objection-and-reproductive-health-care-from-the-colombian-perspective/> accessed 14 November 2023.

[5] Note: The term “woman” will be used when I write about legislation orregulation but, whenever possible, I will use inclusive words such as “person thatcan get pregnant”.

[6] Committee on Economic, Social and Cultural Rights, 'General Comment No. 22 (2016) on the right to sexual and reproductive health (article 12 of the International Covenant on Economic, Social and Cultural Rights)' (2 May 2016) E/C.12/GC/22, para 10; Audrey Chapman, 'An Explicit Right to Abortion is Needed in International Human Rights Law' (2023) Health and Human Rights Journal <https://www.hhrjournal.org/2023/06/an-explicit-right-to-abortion-is-needed-in-international-human-rights-law/>accessed 14 November 2023.

[7] Ibid para 5.

[8] Ibid.

[9] Ibid para 6.

[10] Merhawi Gebremedhin et al, 'Unsafe abortion and associated factors among reproductive aged women in Sub-Saharan Africa: a protocol for a systematicreview and meta-analysis' (2018) 7/130 Systematic Review Journal <https://systematicreviewsjournal.biomedcentral.com/articles/10.1186/s13643-018-0775-9> accessed 14 November 2023.

[11] UN CteeESCR, General Comment No. 22 (n 10) para 1.

[12] Committee on Economic, Social and Cultural Rights, 'General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12 of the Covenant' (11 August 2000) E/C.12/2000/4, para 12.

[13] Office of the High Commissioner for Human Rights, , ‘Status for Portugal -Portugal’ (OHCHR, unknown)<https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?CountryID=139> accessed 17 August 2024.

[14] Lei n.º 16/2007 Exclusão da ilicitude nos casos de interrupção voluntária dagravidez (17 de abril 2007) (Law No. 16/2007 on the Exclusion of illegality incases of voluntary termination of pregnancy), art 1.

[15] Ibid.

[16] Ibid.

[17] Decreto-Lei n.º 48/95 Código Penal (15 de março 1995) )Law No. 48-95 onthe Penal Code), art 142.

[18] Ibid.

[19] Lei n.º 16/2007 Exclusão da ilicitude nos casos de interrupção voluntária dagravidez (17 de abril 2007) (Law No. 16/2007 on the Exclusion of illegality incases of voluntary termination of pregnancy), art 6.

[20] Committee on Economic, Social and Cultural Rights, 'General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12 of theCovenant' (11 August 2000) E/C.12/2000/4, para 12; UN CteeESCR, GeneralComment No. 22 (n 10) para 11-21.

[21] Wendy Chavkin, Laurel Swerdlow and Jocelyn Fifield, 'Regulation ofConscientious Objection to Abortion: An International Comparative Multiple CaseStudy' (2017) 19/1 Health and Human Rights, 56.

[22] Wendy Chavkin, Liddy Leitman and Kate Polin, 'Conscientious objection and refusal to provide reproductive healthcare: A white paper examining prevalence, health consequences, and policy responses' (2013) The International Journal of Gynaecology and Obstetrics 123/41, 2.

[23] Lei n.º 16/2007 Exclusão da ilicitude nos casos de interrupção voluntária da gravidez (17 de abril 2007) (Law No. 16/2007 on the Exclusion of illegality in cases of voluntary termination of pregnancy), art 6; UN CteeESCR, General Comment No. 22 (n 11) para 43.

[24] World Health Organization, Abortion care guideline (Chapter 3.3.9. Conscientious objection or refusal by health workers to provide abortion care 2022) <https://srhr.org/abortioncare/chapter-3/pre-abortion-3-3/law-policy-recommendation-22-conscientious-objection-3-3-9/> accessed 14 November 2023.

[25] UN CteeESCR, General Comment No. 22 (n 10) para 154.

[26] Ibid para 16-19.

[27] Sociedade Portuguesa da Contracepção, 'Estabelecimentos de saúde oficiais e - oficialmente reconhecidos para realização da interrupção da gravidez por opção da mulher (artigo 142 do Código Penal)'<https://www.spdc.pt/images/IVG_Portugal_1.pdf> accessed 14 November 2023.

[28] Instituto Nacional de Estatística (2023) <https://www.ine.pt/xportal/xmain?xpid=INE&amp;xpgid=ine_indicadores&amp;contecto=pi&amp;indOcorrCod=0008273&amp;selTab=tab0> accessed 14 November 2023.

[29] Unknown, &#39;Um em cada três hospitais públicos não realiza abortos. Cenário piora no interior&#39; (CNN Portugal, 9 June 2022)<https://cnnportugal.iol.pt/aborto/hospitais/um-em-cada-tres-hospitais-publicos-nao-realiza-abortos-cenario-piora-no-interior/20220609/62a197ed0cf2f9a86ea872a6>

[30] Ibid.

[31] International Planned Parenthood Federation - European Network v Italy, Complaint No. 87/2012, ECSR (10 September 2013), para 191.

[32] SNS, ‘Interrupção voluntária da gravidez’ (SNS, 20 April 2024)<https://www.sns24.gov.pt/tema/saude-da-mulher/interrupcao-voluntaria-da-gravidez/#strong-styleuser-select-textnos-hospitais-privados-e-possivel-interromper-voluntariamente-a-gravidezstrong>

[33] Ibid.

[34] Fernanda Cancio, ‘Aborto. Portugal viola direitos sociais europes’ (Diário de Notícias, 21 May 2023) >https://www.dn.pt/sociedade/aborto-portugal-viola-direitos-sociais-europeus-16396508.html/> accessed 21 September 2024.

[36] Portaria n.º 741-A/2007 (21 de junho 2007, no. 118) (Ordinance No. 741-A/2007), art 12.

[37] Wendy Chavkin, Laurel Swerdlow and Jocelyn Fifield, 'Regulation of Conscientious Objection to Abortion: An International Comparative Multiple Case Study' (n 26) 62.

[38] Fernanda Câncio, ‘Ministério da Saúde não sabe quantos objetores há no SNS’ (Diário de Notícias, 30 March 2023) <https://www.dn.pt/sociedade/-ministerio-da-saude-nao-sabe-quantos-objetores-ha-no-sns-16099686.html/> accessed 19 July 2024.

[39] Ibid.

[40] Zoe L Tongue, 'On conscientious objection to abortion: Questioning mandatory referral as compromise in the international human rights framework'

(2022) 22/4 Medical Law International, 369-370.