In October the National Assembly of People’s Power approved a new Public Health Law that will be discussed in its next ordinary session scheduled for December. With the draft of this new legal body, scarcity, inflation, migratory exodus, the precariousness of life, the lack of medicines and the impoverishment of medical care on the island coexist; all symptoms of the present deep crisis.
The shortage of supplies in pharmacies, the high prices for medicines (domestically produced and imported) in the irregular market, the lack of resources in hospitals and the deterioration in the quality of healthcare are part of the bulk of complaints from the Cuban population regarding the impact of the crisis on public health. However, difficulties in other areas of health seem less discussed in the public space, although they deserve the same attention.
This framework also includes sexual and reproductive rights and, among them, the right to abortion. What conditions characterize access to voluntary termination of pregnancy in Cuba today? What tensions arise in the debates related to this service? What does the future hold?
Minister of Public Health José Ángel Portal announced in August 2022 the updating of programs related to sexual and reproductive rights, including abortion, which is included in the set of rights endorsed by the current Constitution. It will also be one of the issues to be regulated in the new Public Health Law.
Why the need for a guarantee in the form of law? In a country like Cuba, where talking about abortion is not taboo, why are we worried that one day we will not be able to access that service freely? What should the law contemplate to strengthen this right?
Article 443 of the Social Defense Code of 1936 (which was in force until 1976) determined three situations in which the practice of abortion was exempt from criminal responsibility. A woman who had an abortion would not be criminalized if: 1) it was necessary to save her life or to avoid serious harm to her health; 2) the pregnancy had been caused by rape or the crime of statutory rape; 3) it prevented the transmission to the fetus of a serious hereditary or contagious disease.
Since then, Cuban women have been able to have an abortion without being criminalized for it and doctors were not penalized for assisting them, thanks to the interpretive flexibility granted by the first of the criminal law’s grounds for exemption from responsibility. However, restrictions mediated by poverty and the limited availability of safe clinics in rural, peripheral, or popular areas determined that ending an unwanted pregnancy was often a class privilege and not a right for everyone. Hence, unsafe and clandestine abortions at that time caused 60% of maternal deaths. Poor women were not imprisoned for having abortions, but they died for it.
Abortion in Cuba began to be practiced free, safe, universal, without restrictions, and in all public health institutions in the country since 1965. Although the criminal legislation of 1936 remained in force, starting in 1965 the non-criminalization of abortion was strengthened, under the institutional protection and awareness of women’s reproductive rights of the new revolutionary government. It was not until the entry into force of the Penal Code of 1979 that the practice was fully decriminalized and illicit abortion began to be criminalized (that performed for profit; outside official institutions; by a person who is not a doctor or without the consent of the pregnant woman).
These antecedents have meant that today in the country we can talk about abortion more naturally than in other latitudes, establishing it in the social notion as an inseparable right of women. At the same time, the institutions and their medical staff are not characterized by hindering their practice due to ethical dilemmas (such as conscientious objection1).
However, there are at least three variables that exert influence regarding the preservation of reproductive rights: 1) the lack of generational replacement (related to the fact that one of the causes of low birth rates is the widespread practice of abortion); 2) the advance of religious and non-religious neoconservatism; and 3) the context of changes/crisis that are intensely shaking the so-called “historical conquests,” among them, health and its programs.
Although abortion is currently institutionalized and regulated by Article 36 of the Regulations of the Public Health Law and by the Methodological Guides for the Implementation of All Types of Voluntary Termination of Pregnancy, it is not protected under a regulatory provision with legal hierarchy.
Constitutional support would be the maximum guarantee, but, at the opportune moment, during the debate of the draft constitution2 in the Cuban public sphere in 2018, the requests of feminists who demanded the protection of that right were ignored. What would be consistent would be for the new Public Health Law to contemplate this.
Although the minister has recognized that the voluntary interruption of pregnancy has not been decisive in the current decline in fertility, nor in the lack of generational replacement, excessive bureaucratic obstacles to performing abortions have been unjustifiably extended and, on occasions, this right has been explicitly denied, citing a “government decision, with the purpose of increasing the birth rate.”
Recognized by the authorities, the advance of neoconservatism is another phenomenon that puts the rights of women and pregnant women at risk. Although 2018 was the trigger for public actions by fundamentalist groups in Cuba as a result of the debate on the draft constitution, these groups are thriving in organization and effectiveness, interfering in the realization of sexual and reproductive rights (see here an example and research regarding this).
This is not just a local concern. In 2022, when the United States Supreme Court reversed the historic Roe vs. Wade ruling of 1973, which had made the voluntary interruption of pregnancy a service protected by the Constitution under the right to privacy,2 the alarms went off in the Latin American and Caribbean countries. It was a clear sign that the extreme right and neoconservatism were once again attacking the rights of women and pregnant women.
Dissimilar research on the behavior of fertility in Cuba has shown that low birth rates are mainly associated with the socioeconomic conditions existing in each period, and not with access to induced abortion. For example, between 1920 and 1931, the gross reproduction rate (GRR) fell from 2.8 to 2.2 daughters per woman, mainly due to the global economic crisis.3
Starting in 1972, a sharp decline in fertility began to be experienced, and it was in 1978 when the GRR remained below the generational replacement level to the present day. This decline was accelerated by the socioeconomic transformations generated by social programs for the benefit of women in those years, and by changes in gender roles.4
From 1982 to 1990 the level of fertility recovered slightly, coinciding with a substantial economic improvement in Cuba. For its part, the GRR around 1991 was 0.82 daughters per woman, it continued its decline until 1996 (0.70); and in the period from 1997 to 1999 there was a certain increase in fertility, coinciding with a slight improvement in economic conditions.
However, campaigns to support maternal and child health programs; educational programs for the prevention, detection and early diagnosis of breast cancer, awareness about the importance of contraception and avoiding teenage and unwanted pregnancies, added to the material possibility of preventing them, also had an influence on these dynamics.
Family planning services were characterized by a systematic improvement with the purpose of raising the quality of family life, avoiding maternal and infant mortality caused by the high number of births per woman or by teenage pregnancies. Hence, along with free access to gynecology and obstetrics services, the liberalization of abortion is not a direct cause of low birth rates, nor the main one, nor can it be separated from the economic and material conditions of the health programs. Programs and services that, being historical achievements, are today impoverished, an issue that we will expand on later.
Journalistic investivations have also verified that, between 2018 and 2021, voluntary terminations of pregnancy fell by more than 33,000, reaching during this stage the lowest number of induced abortions since 1980.
Abortion is a right always in dispute for which legal protection with sufficient regulatory hierarchy is vital for it to be preserved (Law or Constitution). Pregnant women are consequently facing a dispute of power, control and discipline.
Therefore, it is not enough for the new Law to provide for the right to abortion as written in its draft:
“Article 139.- Women, in the exercise of their sexual and reproductive rights, decide on the voluntary termination of pregnancy, by carrying out a preventive and therapeutic medical procedure, in institutions accredited for this care and by qualified personnel, complying with the regulations. technical, ethical and legal procedures approved by the Ministry of Public Health.”5
First of all, the Law must recognize women and all people with the capacity to conceive who do not fall into the “Women” category, as proposed. The articles themselves recognize the anti-discriminatory gender perspective. Therefore, the explicit recognition of non-binary or transgender pregnant women is important.
The terms for the interruption of pregnancy must be clarified by the law itself and not depend on complementary regulations or decrees that can be easily modified in the future. If the Methodological Guides for the Implementation of All Types of Voluntary Termination of Pregnancy stipulate that up to 12 weeks of gestational age, abortion is allowed by voluntary decision and without restrictions as to the reasons, and up to week 26, for fetal malformations incompatible with life; this must be endorsed in the new Law.
The law must state that the State will guarantee pharmacological abortion, by aspiration and curettage. That is, both surgical and non-invasive procedures. In the same way, the so-called “institutions accredited for this care” are, first of all, public and free. The Cuban State is obliged to guarantee that, at all times, public health will ensure the exercise of this right in maternal, mother-child, general hospitals with obstetrics and gynecology services and in the 167 health services that carry out menstrual regulations.
Prevention and gynecological violence
The effectiveness of a law occurs when, in fact, the material and human resources are available to achieve it. You cannot talk about abortion without talking about abortion prevention. And, to achieve this, it is essential to address the issue of prevention programs and contraception.
The minister of public health himself has stated that the results of health programs, such as the mother-child program (PAMI), “are not what was expected in all the territories of the nation.” The rates of maternal and infant mortality, low birth weight, and teenage pregnancy do not reflect substantial improvements.
Recurrent problems such as lack of medicines, hospital materials, insufficient wheelchair rental service, as well as delays in receiving ambulance service, characterize the fragility of health services and programs. At the same time, the lack of support, promotion and prevention actions in schools and communities affects the services provided by hospitals and polyclinics, such as those related to sexual and reproductive health.
The condom crisis has a long history in Cuba. Its worst moment was recorded during the pandemic, but severe shortages of condoms continue in pharmacies. In some areas, the absence of this contraceptive method dates back to 2020. Birth control pills are also experiencing shortages; while both can be found at very high prices in the irregular market.
Poor conditions have been reported in doctor’s visits for pregnancy termination, as well as a shortage of materials and admission beds. This increases the unease of those who go to the health service and, in addition, represents an overload for medical personnel.
Gynecological violence is added to the shortage and negligence. This is a specific form of gender-based violence that occurs during the use of gynecological services and at any stage of the life of women and pregnant women (unlike obstetric violence, which includes pregnancy, childbirth or the postpartum period).
The aggresions can be physical, verbal or psychological; and are carried out by health professionals. They result in a violation of human rights (sexual and reproductive), including the rights to equality, non-discrimination, information, integrity, health and reproductive autonomy in health services. In gynecological violence, institutional violence and gender-based violence come together.
For example, violence of this type can occur during a cytological test, a vaginal exudate, a fertility consultation, assisted reproduction, a hysterectomy or an abortion. They range from offenses, humiliation, forced manipulations, lascivious looks, mockery, reproaches, insults, sexist comments, blaming messages, to the lack or omission of information.
Informed consent is based on the latter, consisting of the autonomy of the patient and the obligation of the health professional to act with benevolence, informing of the procedures, scope and consequences in order to receive consent and provide dignified treatment to the patient.
Gynecological violence during abortion procedures takes place in Cuba. Feminist groups have systematized testimonies from Internet users who affirm this (example 1 and example 2). The newspaper articles cited in this text also report acts of gynecological violence committed during procedures to end unwanted pregnancies.
For these reasons, the future Public Health Law cannot omit the institutional obligations of prevention, contraception, comprehensive sex education, informed consent, eradication of gynecological and obstetric violence, in a complementary way to the recognition of the right to abortion. Including the channels for complaint, claim and restitution/reparation of rights.
A universal, free, safe and free practice for more than 50 years favorably permeates society and its institutions. But in times of such instability, it being established in a law assures us, at least, that the law assists us. Describing the essential parameters for abortion to be possible in a full and dignified manner, then, allows us to re-conquer it.
Notes and sources consulted:
1 Ethical or religious argument that a person uses to fail to comply with or oppose official provisions, instructions or laws, based on their right to freedom of conscience, since they are contrary to their beliefs. For example, complying with military service, performing an abortion, etc.
2 Valero, P. (2023). United States, the Supreme Court and abortion. In: Valero, Perla (coord.) ¡Libres y soberanas! La lucha por el derecho al aborto. Conhacyt-CEMOS, Mexico, pp. 115-129.
3 Herrera, L. and Catasús, S. (2010). “La fecundidad en Cuba entre 1970 y 2008: una reflexión a partir de escenarios y coyunturas socioeconómicas.” Población y Salud en Mesoamérica.
4 The socioeconomic changes and social programs that have occurred since the beginning of the revolutionary process significantly influenced these results: important opening of study and work opportunities for both men and women; universal access to culture; mass insertion of women in the educational field and in the labor market with discreet affirmative actions, while promoting equal rights for women with respect to men.
5 The version of the Draft that was accessed was the one discussed by the union of university professors.