15 de Mayo: Lo que es ilegal, se puede ignorar
This week, New York Times blogger Nicholas Kristof opines, “my sense is that the illegality of abortion isn’t as large an element in maternal mortality as some people believe it is.” On the one hand, Kristof points to a certain truth–just because abortion is illegal does not mean that it is not available. Thousands of women undergo relatively safe abortions every day in countries where the procedure is illegal. However, in these same countries, many more thousands of women end up getting unsafe abortions, since the key to accessing a safe pregnancy termination is usually money. And most women worldwide–let’s face it–are poor.
The problem with abortion’s illegality is that it creates a class-based abortion industry, where women with money can access safe procedures, but women without, cannot. Since where it is illegal abortion officially does not occur, government and public health officials can ignore the glaring class disparities in abortion care and in the resulting maternal deaths. Since it is difficult to regulate an industry that officially does not exist, unscrupulous, unsafe abortion clinics exist alongside relatively safe medical centers, and most women do not have the information they need to make careful decisions about which to visit.
Reflecting on Kristof’s comments, I am further struck by how many aspects of unwanted pregnancy operate on the margin of the law in Bolivia. The illegality of abortion–just one strategy for confronting unwanted pregnancy–is by far the most glaring. Womankind estimates that 30,000 illegal abortions occur per year in Bolivia. According to the country’s penal code, the individuals who perform abortions and the women who have them are subject to incarceration for three to six years. However, as of 2004 only two judicial cases were ever brought against abortion practitioners, and both cases were later dismissed by the Supreme Court. As far as I know, no woman has ever been incarcerated in Bolivia for having had an abortion. In other words, the law criminalizing abortion doesn’t work on two fronts–it doesn’t prevent illegal abortions, and it doesn’t penalize abortion practitioners or the woman who undergo the procedures. Finally, as I have mentioned before, laws allowing for legal abortions in Bolivia–in cases of rape, incest, or to protect the woman’s health–are equally ineffective. Since 1973, when a stipulation was made in Bolivia’s penal code to allow abortion in the above cases, only a handful of legal abortions have ever been performed.
Other women, when met with unwanted pregnancy, end up abandoning their children rather than having abortions. This may be because they are so traumatized by the pregnancy, or too poor to afford an abortion, that they are unable or unwilling to terminate the pregnancy before the child is born. In other cases, women may abandon children that were and are “wanted” due to crushing economic circumstances or domestic abuse. While some women will abandon infants in orphanages like the one pictured in this post, others will leave their children with neighbors, on street corners, or, notoriously, in garbage bins. Like laws penalizing women who get abortions, laws targeting parents who abandon their children seem to be equally ineffective–in 2003, the national police registered two cases of child abandonment in the La Paz department, while local anti-abandonment activists argue that 17,000 children are abandoned in the country yearly.
Regardless of where they are left, most abandoned children will end up in orphanages. Orphanages in Bolivia come in several varieties; some depend on the state, some on private institutions and donors, and still others are illegal and even clandestine, with no relationship to local authorities. One association of young people who grew up in orphanages recently told me that children residing in illegal orphanages have little chance to be adopted–at least not through legal channels. (Even worse, sexual abuse in all types of orphanages is apparently the pan de cada día, or an everyday occurrence.) While adoptions do take place, most Bolivian parents hope to adopt children under the age of one, who they can pass off to neighbors as a natural child. The bureaucratic processes required to adopt children are so lengthy, however, that few children are adopted before they reach their first birthday, and once s/he turns one year old, a child’s chance of being adopted plummets.
Although it is difficult to find trustworthy data, activists in the fields of child abandonment and adoption insist that illegal adoptions are likely more numerous in Bolivia than legal ones. While some of these adoptive parents have discovered children on their doorsteps or taken in kids from neighbors and friends, others, desperate to adopt, resort to illegal channels to bring kids home from orphanages. Even adoptive parents who have completed the adoption process legally admit that they were tempted to go the illegal route to avoid the costly and lengthy processes associated with adopting a child. Because of the increased legal and ethical issues involved with international adoptions, most of these are subject to rigorous scrutiny to ensure their legality. Since the rise of President Evo Morales, however, international adoptions face new restrictions and are on the decline. In the meantime, nearly all of the orphanages in La Paz and El Alto are facing serious over-crowding–even the illegal ones, to which the state, when in a pinch, occasionally sends children.
In sum, abortion is not the only consequence of unwanted pregnancy that is illegal in Bolivia–child abandonment, the housing of abandoned children, and even adoption often operate under the table. On the one hand, these institutions, even illegal, function–women get abortions, and children are adopted. But how well do these institutions function? I must say that I have to disagree with Kristof. Illegal abortion does lead to devastating rates of maternal death. Illegal child abandonment, and the housing of these children in clandestine orphanages, leads to children who lack the possibility of legal identities and families. When the state allows problems of this magnitude to languish in dubious legal territory, it reserves the right to ignore their consequences. But avoidance will not work forever. Eventually, something has got to change.