Abortionists use “loophole” in the law to abort viable babies outside the womb

Without a maximum gestational period provided by law for abortion in situations not punished by the Penal Code — rape or risk to the mother’s life —, abortionists have encouraged people to seek the procedure at any time during pregnancy, as became clear this week in the state of São Paulo. Even when there is no risk to the pregnant woman’s life, the baby is already more than six months old and is already viable outside the womb – that is, it could be born and sent for adoption.

In a decision by the São Paulo Court of Justice (TJ-SP) issued last Wednesday (17), judge Adler Batista Oliveira Nobre ordered the resumption of “legal abortions” without gestational age limitations at the Hospital and Maternity of Vila Nova Cachoeirinha, in the north of the capital.

The unit had stopped carrying out the procedure in December 2023 under the argument that “elective surgeries, joint surgical efforts and other procedures involving women’s health would be carried out on site”, according to a note from the City of São Paulo sent to Gazeta do Povo .

However, the Specialized Center for the Promotion and Defense of Women’s Rights (Nudem) of the Public Defender’s Office opened a case against the State, and the judge in the case requested the resumption of work with an “active search” for patients who had their procedure canceled.

“But there is no right to have an abortion in our country, so the fact of proposing the active search for pregnant women to do so is violating the fundamental rights of the unborn child, which protect the life of the child”, says lawyer Lília Nunes dos Santos, master in Human Rights.

“And can you imagine the weight of the phone call from a City Hall employee asking a pregnant woman to have an abortion?”, adds lawyer and former state deputy for São Paulo, Janaina Paschoal. “This call may sound like an order, mainly because there is no time limit”, she warned in an interview with Gazeta do Povo this Friday (19).

According to her, Article 128 of the Penal Code does not mention the maximum period for carrying out the procedure in exceptional cases in which the termination of pregnancy is not punished. As a result, “doctors may be forced to interrupt pregnancies of six, seven or eight months, killing babies ready to be born”, warns the lawyer, citing that countries such as Germany, Chile and Uruguay have this period established between 12 and 14 weeks.

In Brazil, frequent publications from the Ministry of Health indicate a time of 22 weeks. The last one on the topic was removed from the air by the Lula government at the beginning of his government in January 2023 (read the document here). The abolished text indicates, like others, that from a medical point of view there is no reason for abortion when the child can survive outside the womb. Even so, when termination of pregnancy is necessary, “this must not be preceded by fetal death”.

Read too: How the MPF and the press supported the abortion of a seven-month-old baby

Understanding the term “abortion”

For doctor in Microbiology and Immunology Lenise Garcia, it is important to analyze the understanding of the term “abortion” which, technically, can only be carried out when the child is still unviable outside the womb. According to her, this occurs until around 20 or 21 weeks.

“Then, what we have is premature birth”, he states, explaining that the use of substances such as injecting potassium chloride into the child’s heart, for example, kills the baby that would be able to live outside the uterus. “In fact, there are many couples wanting to adopt a newborn, so what would be the justification for opting for their death?” asks the scientist, who is also president of the Brazil Without Abortion Movement.

Another point, according to her, is that the procedure at an advanced stage of pregnancy also puts the health of the woman at risk, who will need to go through the delivery of a dead fetus, making a natural birth difficult or bringing the risks of a cesarean section. “Not to mention the psychological issue when the woman realizes what she actually did, which will cause great suffering”, she concludes.