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Commentary on abortion law and practice in Cuba
Ke~nords: Cuba; Abortion: Karly nbertioa
Law;
Services.
law and practice
Until the mid-1?39s, the restrictive concepts of the 1870 Spanish Psoa! Code, inherited from the Napoleonic Code, ,~evaiied. makin:: abortion and sterilization iZ:eual in Cuba. About 1Y36. a new ‘“Code of -Civil F’rctecdon,” &a& up by jurists and politicians, providedsome flexibility in the practice of abortion. Several articles in the Code established the prixiple that abortion was not a punishable offense under some conditions. One of these conditions was serious risk to the health of the woman. No official regulations were developed to define this risk, however. Nor acre procedures established for determining what other conditions made a woman eligib!e for abortion. In the absence of official guidelines, the physician’s judgement was relied and never upon qucstisncd. Nonetheless, officially, doctors opposed the enactment of iaws that would decriminalize abortion in specified cases. Despite restrictive laws, at Ieast from the beginoing of this century, eoortion has been widely known and practiced tbroughout Cuba. Until 1959, govemmect health
strrvices medicine
were
very
deficient
and
mivate
flourished, especially in tiavana and o:her cities. Modem contraccntives were hardly available. Traditional contraceptive aethcds and diaphragms were used only on a small scale, predominantly by the middle and professional classes. Most doctors neither knew nor were interested in knowing how and when women shouid use them, ar,d supplies of dia@ragms were, in any case. very short. As a result, abortion was ia high demand and physicians performed the procedure at a low price. Even poor women bad access to it.
In 1959, ihe Government instructed the Mitdstry of Public Health to take charge of the health of the population and to give priority to women and chiidrer.. A free national health system was established and. in little more &an 3 years, covered thd entire inc!uding 2nd country, IWhl rwuntain areas, making it possible to launch a program of comprehensive women’s health care. Contraceptives then available were distributed, with emphasis on the diaphragm. fn July 1963, we introduced the
94
Al”urer-LqionL%~re
intrauterine device; hormonal methods were introduced later, fortu”ate!y when the being reduced. The use of contrweption was never imposed or limited, except on sound medical grounds. Small farri!ies were never advocated. Early O”, WC z++od the .gap betwe& knowledne of contraceotives a”d effective dOSage was
yet
119P, 3 p;p ihat we have to bridge completely. We also began extensive sex educatiw progrkns. DuLng this same period, the government
sought to reduce home births and the dependence on traditional birth attendants, or “recogedoras” (literally, the one that “picks up” the baby). This was done by persuasion and in some cases, by owing a young relative of the traditional birth attendant as suooort staff in the local hospital. Ccxverti”; birth attendants into allies of the hospital was a crucial factor in the rapid decline of borne births. A Statistical Department was established to tmin staff located in the relevant areas of each hospit;al unit, large or small, to obtain on-going, comprehensive vital statistics. In 1962, o”ce hospitals had bee” established in rural areas and private medical institutions had been opened to the public at large, the Ministry of Public Health made it compulsory to report confidentially an) death related to pregnancy, childbirth or the puerperium. From 1965, these data enabled us to determine accurately bow many women were dying as a result of ab0rti0II.
With improved maternity care from 1962 onwards, overall maternai mortality began to decline. Maternal deaths as a result of illegal abortions, however, increased until abortion wad almost the “lain ,:aase of matema: mortalitv in 1965. One explanaiio” ‘es ma& emigration of doctors after Fidel Castro crune to power in 1959. Many women who had not planned to have more children were foxed by &es: circumstances to carry pregnancies to term; others, far whnrn a”other child was a”
impossible burden. resorted to abortion. They risked, and often lost, their lives. The Ministry of Public Health therefore decided that safe abortion services should be made available through properiy equipped hosla!s. They asked IF.Cwhether an abortion law was neehed to reduce the deaior. : SuggeSted the Penal Code was sufficient, if interpreted, PrOpcrlY particularly the pwfisic” for abortion in the case of risk to ihe woman’s he&h. That is to say, aborxion is justified for most women who need it, if one uses the WHO definition of health, which em~ompasscs a total state of well-being. The Ministry ultimately justified hospital services not by .?ww legislation but by rein~erpretirtg the old code. It the” remained to persuade doctors to use the WHO detinit61 of health. As we gradually extended abortion services to ail gynecology/obstetric hospitals, we stoppd usbig the word abortion to eliminate the emotional baggage that generally encumbers abortion. Insted we used the berm “interruption of unplasmcd pregnancies.” Although safe services were extensively provided from 1965 under a flexible interpretation of the old Penal Code, a more solid interpretation of the law was needed to prevent misinterpretation. When a new Penal Code was evmtually drayted and approved in 1979, we took a differe”t approach than that taken earlier. WC suggested that the Code specify when the practice of abortion was punishabie, rather than the more usual approach of srxcifying when abortion is legal. Thus, abortion was determined to be iUegal when carried out without the woman’s consent. If the woman is justifiabl-j unable to give or refuse valid consent, this inability must be legally established. Abortion is also illegal when it is carried out on other thax hospital premises. As free hospital facilities exist throughout the counrry, including rural areas, this did not impose obstacles to access. Abortion is illegal if the provider fails to
comply with established norms. This point is deiibuateiy vague: gestational age, specific techniques and other details that are subject to scientific progress arc not aefined. This leaver a margin oi discretion for the director of the hospital and his or her colleagues. Abortion for profit is illegal. which is only reasonable in a country where all medical ULIDis free. Forthermorc, menstrual regulation (MR) is not equivalent to abortion. The delay in menses hay be due to causes other than pregnancy. The distinction between MR and abortion may provide an option in other countries with restrictive laws on abortion. From I%8 onwards, tk number of interruptions of pregnancy increased yearly and some people wanted restrictions to be imposed. 1 WBS aware that the number of abortions would increase for a member of years, declining only when we were better able to educate ,pur population and to provide more accessible and effective contraception. Indeed, after the number of abortions peaked in 1974, *he number of abortions and also the number of births declined every year behveen 1974 and !OW [l], without any restrictive measures.
Other
countries
whne
safe
abortion
services are
theCuban
still legally exlzsr;.el?ee
restricted tight
nrew in
t-mind
twcl w?zyys.
First, the period of I%§--1579 ckarly shows that sympathetic, progress;-:: and courageous physicians can encourage and act under restrictive laws to provide safe semces. In our c&e tlte specific mechanism was ?o define “health” very brcladly. becwse abortion was allowed when there was .isk to the woman’s health. Second. whe.1 a new Pond Code was even:ually drafted, we depertcd from more common iegal practice: Instead of defining when abortion is legal, which ~otomaticaliy impoais constraints on the scope of service provision. we simply lsted the conditions in which abortion is iUegal. This permits abortion in all but a few very sp8:cific. exceptional cases.
Law;
Services.
law and practice
Until the mid-1?39s, the restrictive concepts of the 1870 Spanish Psoa! Code, inherited from the Napoleonic Code, ,~evaiied. makin:: abortion and sterilization iZ:eual in Cuba. About 1Y36. a new ‘“Code of -Civil F’rctecdon,” &a& up by jurists and politicians, providedsome flexibility in the practice of abortion. Several articles in the Code established the prixiple that abortion was not a punishable offense under some conditions. One of these conditions was serious risk to the health of the woman. No official regulations were developed to define this risk, however. Nor acre procedures established for determining what other conditions made a woman eligib!e for abortion. In the absence of official guidelines, the physician’s judgement was relied and never upon qucstisncd. Nonetheless, officially, doctors opposed the enactment of iaws that would decriminalize abortion in specified cases. Despite restrictive laws, at Ieast from the beginoing of this century, eoortion has been widely known and practiced tbroughout Cuba. Until 1959, govemmect health
strrvices medicine
were
very
deficient
and
mivate
flourished, especially in tiavana and o:her cities. Modem contraccntives were hardly available. Traditional contraceptive aethcds and diaphragms were used only on a small scale, predominantly by the middle and professional classes. Most doctors neither knew nor were interested in knowing how and when women shouid use them, ar,d supplies of dia@ragms were, in any case. very short. As a result, abortion was ia high demand and physicians performed the procedure at a low price. Even poor women bad access to it.
In 1959, ihe Government instructed the Mitdstry of Public Health to take charge of the health of the population and to give priority to women and chiidrer.. A free national health system was established and. in little more &an 3 years, covered thd entire inc!uding 2nd country, IWhl rwuntain areas, making it possible to launch a program of comprehensive women’s health care. Contraceptives then available were distributed, with emphasis on the diaphragm. fn July 1963, we introduced the
94
Al”urer-LqionL%~re
intrauterine device; hormonal methods were introduced later, fortu”ate!y when the being reduced. The use of contrweption was never imposed or limited, except on sound medical grounds. Small farri!ies were never advocated. Early O”, WC z++od the .gap betwe& knowledne of contraceotives a”d effective dOSage was
yet
119P, 3 p;p ihat we have to bridge completely. We also began extensive sex educatiw progrkns. DuLng this same period, the government
sought to reduce home births and the dependence on traditional birth attendants, or “recogedoras” (literally, the one that “picks up” the baby). This was done by persuasion and in some cases, by owing a young relative of the traditional birth attendant as suooort staff in the local hospital. Ccxverti”; birth attendants into allies of the hospital was a crucial factor in the rapid decline of borne births. A Statistical Department was established to tmin staff located in the relevant areas of each hospit;al unit, large or small, to obtain on-going, comprehensive vital statistics. In 1962, o”ce hospitals had bee” established in rural areas and private medical institutions had been opened to the public at large, the Ministry of Public Health made it compulsory to report confidentially an) death related to pregnancy, childbirth or the puerperium. From 1965, these data enabled us to determine accurately bow many women were dying as a result of ab0rti0II.
With improved maternity care from 1962 onwards, overall maternai mortality began to decline. Maternal deaths as a result of illegal abortions, however, increased until abortion wad almost the “lain ,:aase of matema: mortalitv in 1965. One explanaiio” ‘es ma& emigration of doctors after Fidel Castro crune to power in 1959. Many women who had not planned to have more children were foxed by &es: circumstances to carry pregnancies to term; others, far whnrn a”other child was a”
impossible burden. resorted to abortion. They risked, and often lost, their lives. The Ministry of Public Health therefore decided that safe abortion services should be made available through properiy equipped hosla!s. They asked IF.Cwhether an abortion law was neehed to reduce the deaior. : SuggeSted the Penal Code was sufficient, if interpreted, PrOpcrlY particularly the pwfisic” for abortion in the case of risk to ihe woman’s he&h. That is to say, aborxion is justified for most women who need it, if one uses the WHO definition of health, which em~ompasscs a total state of well-being. The Ministry ultimately justified hospital services not by .?ww legislation but by rein~erpretirtg the old code. It the” remained to persuade doctors to use the WHO detinit61 of health. As we gradually extended abortion services to ail gynecology/obstetric hospitals, we stoppd usbig the word abortion to eliminate the emotional baggage that generally encumbers abortion. Insted we used the berm “interruption of unplasmcd pregnancies.” Although safe services were extensively provided from 1965 under a flexible interpretation of the old Penal Code, a more solid interpretation of the law was needed to prevent misinterpretation. When a new Penal Code was evmtually drayted and approved in 1979, we took a differe”t approach than that taken earlier. WC suggested that the Code specify when the practice of abortion was punishabie, rather than the more usual approach of srxcifying when abortion is legal. Thus, abortion was determined to be iUegal when carried out without the woman’s consent. If the woman is justifiabl-j unable to give or refuse valid consent, this inability must be legally established. Abortion is also illegal when it is carried out on other thax hospital premises. As free hospital facilities exist throughout the counrry, including rural areas, this did not impose obstacles to access. Abortion is illegal if the provider fails to
comply with established norms. This point is deiibuateiy vague: gestational age, specific techniques and other details that are subject to scientific progress arc not aefined. This leaver a margin oi discretion for the director of the hospital and his or her colleagues. Abortion for profit is illegal. which is only reasonable in a country where all medical ULIDis free. Forthermorc, menstrual regulation (MR) is not equivalent to abortion. The delay in menses hay be due to causes other than pregnancy. The distinction between MR and abortion may provide an option in other countries with restrictive laws on abortion. From I%8 onwards, tk number of interruptions of pregnancy increased yearly and some people wanted restrictions to be imposed. 1 WBS aware that the number of abortions would increase for a member of years, declining only when we were better able to educate ,pur population and to provide more accessible and effective contraception. Indeed, after the number of abortions peaked in 1974, *he number of abortions and also the number of births declined every year behveen 1974 and !OW [l], without any restrictive measures.
Other
countries
whne
safe
abortion
services are
theCuban
still legally exlzsr;.el?ee
restricted tight
nrew in
t-mind
twcl w?zyys.
First, the period of I%§--1579 ckarly shows that sympathetic, progress;-:: and courageous physicians can encourage and act under restrictive laws to provide safe semces. In our c&e tlte specific mechanism was ?o define “health” very brcladly. becwse abortion was allowed when there was .isk to the woman’s health. Second. whe.1 a new Pond Code was even:ually drafted, we depertcd from more common iegal practice: Instead of defining when abortion is legal, which ~otomaticaliy impoais constraints on the scope of service provision. we simply lsted the conditions in which abortion is iUegal. This permits abortion in all but a few very sp8:cific. exceptional cases.