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David Gallegos Rubio

After Argentina: will Latin America be a green handkerchief?

- States abide by the American Convention on Human Rights by guaranteeing the right to life from conception.

After Argentina: will Latin America be a green handkerchief?

Last year a [green wave in Latin America] arrived ( that gave rise to constant discussion in the media on the right to decide against the right to life. This year began with the news of the legalization of abortion in Argentina, returning the issue to the public agenda.

Abortion in Latin America

  • Currently, apart from Argentina, only in Puerto Rico, French Guyana, Guyana, Cuba and Uruguay is it legal to abort without any conditions during the first weeks of pregnancy.
  • In countries like Costa Rica, Peru, Guatemala, Venezuela, and Paraguay, abortion is possible for the sole reason that the woman's health is in danger.
  • For Ecuador, abortion can be carried out under the casualty of rape of the woman with mental disabilities, fetal inviability or threat to the health of the woman. Chile, Colombia, and Brazil maintain the causal for rape and non-viability of the fetus. Bolivia adds the cause of incest. Belize is caused by the economic conditions of the woman.
  • In Mexico, only in its capital, Mexico City, abortion is allowed without conditions.
  • But there are also countries where abortion is legally prohibited in the penal code, such as Haiti, the Dominican Republic, Nicaragua, Honduras or El Salvador.

International Treaties and the Right to Life

By ratifying the American Convention on Human Rightss, the States Parties pledged to protect the right to life from the moment of conception since in Article 4 (1) it establishes:

_ "Every person has the right to have his life respected. This right will be protected by law and, in general, from the moment of conception. No one will be arbitrarily deprived of his life" ._

After the signing or ratification of the Convention, the different States of the region that guarantee the right to life in their regulations become a primary source of interpretation of the treaties in accordance with article 31(3)(b) of the Convention. Vienna Convention on the Law of Treaties of 1963. In other words, guaranteeing the right to life allows for the explicit recognition of * fundamental right to life from conception* in national constitutions, in accordance with the provisions of the Convention. Eight nations have explicitly protected the right to life from conception in their national constitutions: Chile, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Paraguay, Peru and. In addition, the constitutions of most of the states and provinces of Mexico and Argentina have also recognized the right to life of the unborn child. It should be noted that other national and state constitutions may implicitly protect the life of the unborn, recognizing a universal right to life without categorical exceptions, when no authoritative interpretations to the contrary have been made.

Some States have codified or expressly applied the principle pro homine or [pro personae]( .mx/scielo.php?script=sci_arttext&pid=S1405-91932009000100002) in favor of the unborn child, from conception. This principle, when applied to the unborn child, is usually articulated as a presumption of law by virtue of which, when a law or statute that allows more than one interpretation, the one that favors the unborn must be chosen, as indicated in the preamble of the Convention on the Rights of the Child mentions:

"The child, due to his physical and mental immaturity, needs special protection and care, including due legal protection, both before and after birth"

On the other hand, article 6.1 International Covenant on Civil and Political Rights say what:

The right to life is inherent to the human person. This right is protected by law. No one can be prived of the life arbitrary.

Thus, the States of the region have reflected the language of the different international mechanisms by articulating a "right to life from conception" that belongs to every "person" or "human being ", thus attributing humanity and personhood to the unborn.

Comparative Law in Latin America

Why are there states in Latin America where abortion is still not approved?

Abortion is not legal in several States of the region since their children's codes are subject to the provisions of the Convention that understands life from the moment of conception, recognizing prenatal rights. The latter explicitly include unborn children within the definition of "children", and has led to their national laws understanding the principle of the best interests of the child above the right to decide.

Prenatal health has not only been perceived as a right of mothers, but also as a right that involves the human being from its conception and expressed in the protection of both. For this reason, most States have recognized a legal relationship between biological parents and their unborn children, which results in parental rights and duties such as payment of child support or prenatal alimony. In other States, a legal representative for an unborn child is even authorized in proceedings related to property or inheritance rights.

The States that have not made abortion legal have implemented the protection of the right to life from conception in accordance with the provisions of the Pact of San José. This recognition includes State obligations to guarantee the prenatal rights to life, health, and development of all unborn children through law and public policy.

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Gallegos, David. “Después de Argentina: ¿América Latina será pañuelo verde?.” CEMERI, 13 sept. 2022,