Human rights in evidence: Volume 2

De Editora Blucher

The second volume of "Human rights in evidence" affirms Mattos Filho's commitment to defending human rights and expanding access to justice.
We believe that the spreading awarness of legal knowledge is important for assisting human rights defenders and third sector organizations. Therefore, in this book, we present analysis and reaserch on issues related to gender violence, sexual and reproductive rights, public security, digniffied work, anti-discrimination laws, LGBTQIAP+ rights, prerogatives for practicing law and the rights of refugees and immigrants.
Prepared between 2019 and 2021, under the coordination of the Mattos Filho's 100% Pro Bono practice area, this book results from the collaboration and critical multidisciplinary perspectives of teams from various practies, working together with renowned Brazilian and international entities to advance human rights in Brazil.

• Idioma: Português
• Editora: Editora Blucher
• Data de lançamento: 5 de dez. de 2022
• ISBN: 9786555065107

Pré-visualização do livro

Introduction

In Brazil, a considerable portion of the population faces significant barriers to accessing justice. Socioeconomic inequality, structural racism, discrimination, and various forms of violence represent constant challenges to ensure people’s human rights are respected.

These challenges have become even more pronounced in light of the coronavirus pandemic, as historically marginalized populations have most severely felt its social, economic and health impacts.

In this context, there is an urgent need for legal work highly committed to social issues, dedicated to defending vulnerable groups, and also formulating theses and spreading information and perspectives on human rights.

Aware of these challenges, Mattos Filho has continued to offer free legal services for over 20 years. In 2018, the firm established a team exclusively dedicated to working on social cases in the public’s interest. As part of these efforts, we are pleased to present the second volume of Human Rights in Evidence, featuring new studies, memoranda, and opinions on topics that are part of our everyday pro bono work.

Prepared between 2019 and 2021, the chapters address issues related to the rights of women, the LGBTQIAP+ population, refugees and immigrants, sexual and reproductive rights, the right to public security, dignified work, non-discrimination, and the lawyers’ prerogatives.

The book is the result of a joint effort between the firm’s different practice areas, and combines the firm’s wide-ranging legal expertise with research from other fields, facilitating our teams’ ability to develop critical perspectives on contemporary human rights issues.

Our goal is to continue spreading legal knowledge about human rights, as well as to provide assistance to civil society organizations’ advocacy efforts and to human rights defenders in their day-to-day fight for human rights.

Book Structure

Human Rights in Evidence – Volume 2 presents a compilation of eleven texts divided into seven themes: Women’s Rights, Non-Discrimination Law, Refugees & Migration, Dignified Work & Confronting Rural Violence, Public Security and Lawyers’ Prerogatives.

In the first chapter dedicated to women’s rights, we examine reproductive rights in the wider context of maternal health in Brazil, a study made at the request of the Center for Reproductive Rights. The study approaches maternal health from a human rights perspective as part of efforts to reduce maternal mortality rates and ensure that women have agency in asserting their reproductive rights.

The following chapter was written at the request of the Public Defender’s Office of the State of São Paulo (DPE/SP), which involved extensive research on regulations and case law addressing the issue of child support for unborn children. The document concludes that gender inequality must be considered in the application of family law, as the extra burden that women in positions of care carry leaves them at a financial disadvantage.

In the third chapter, Analysis of parliamentary immunity in the Brazilian legal system: Barbosa de Souza and others vs. Brazil, we contributed to the arguments put forward by the Center for Justice and International Law (Cejil) at a public hearing at the Inter-American Court of Human Rights. We support the argument that parliamentary immunity should be strictly applied to acts directly related to parliamentarians’ public functions in order to avoid obstacles to justice – especially in cases of violence against women.

The final study on women’s rights – written for the Specialized Center for the Promotion and Defense of Women’s Rights of the DPE/SP – demonstrates that gender violence is a structural issue in society, including at universities. In this fourth chapter, we conclude that policies aimed at confronting gender violence in this space must preserve women’s autonomy, avoid revictimization and guarantee comprehensive care.

The book’s second theme, non-discrimination, starts by presenting a legal opinion prepared for the Specialized Center for Protection of Diversity and Racial Equality of the DPE/SP. Along this fifth chapter, we analyze whether a property owner’s decision to terminate a lease agreement due to religious intolerance against practitioners of Candomblé (a religion with African origins) constituted a civil offense, or if the lessor had the right to do so as a private citizen. We conclude that human rights must prevail in relations between individuals, making it impossible for the violation of such rights – in this case, religious intolerance – to be justified by private autonomy.

The sixth chapter presents a memorandum prepared for Human Rights Watch regarding the right to gender and sex education in schools. This is examined in the context of movements such as Escola Sem Partido (Non-Partisan School Movement), which have presented bills that would limit teaching about gender and sexuality in Brazilian schools. The memorandum highlights how Brazil’s domestic laws protect the right to freedom of speech and academic freedom concerning LGBTQIA+ rights.

In addressing the book’s third theme, refugees and migration, the regulation of the migratory situation of Venezuelans in Brazil is examined. The seventh chapter of the book looks at understanding migration as a human right, and discusses the various legal forms through which Venezuelans can settle in Brazil. The research was carried out for the organization Un Mundo Sin Mordaza, through the Trust Law Program.

The eighth and ninth chapters address the themes of dignified work and rural violence, featuring two legal opinions prepared for Cejil. The first highlights the need for state intervention to protect human rights when verifying labor practices akin to slavery. Meanwhile, the second analyzes monetary adjustment criteria for lifelong pensions paid monthly to the families of the victims of the Fazenda Ubá case as part of a Friendly Settlement Agreement signed with the Inter-American Commission on Human Rights. The State of Pará (in Northern Brazil) pays these pensions as a way of providing material and moral reparations to the families. The opinion reinforces the argument that human rights violations must be observed in a way that ensures the most favorable interpretation of human dignity. As such, in the case discussed, it is necessary to adjust the value of the pensions for the victims’ families.

Public security is addressed in the book’s tenth chapter, which consists of a memorandum discussing the normative frameworks of the State of Rio de Janeiro’s public security policy and its consequences for the inhabitants of the Maré favela complex. The memorandum stresses the importance of public participation in establishing public security policies that effectively protect the rights of the population.

The final theme, lawyers’ prerogatives, is addressed in the eleventh chapter via a memorandum prepared for the Law Society of England and Wales. The text presents case law analysis of the Inter-American Court of Human Rights and Brazil’s Supreme Federal Court and Superior Court of Justice in regard to guarantees for exercising the practice of law, drawing parallels with the UN Basic Principles on the Role of Lawyers. This final chapter demonstrates that the rights and guarantees provided for in the UN document are mostly present in Brazil, even though they are yet to be formally incorporated into the country’s legal system.

List of Acronyms and Abbreviations

Women’s Rights

1. Reproductive rights: Maternal health in Brazil

This chapter concerns research carried out for the Center for Reproductive Rights (CRR) in October 2019. By analyzing Brazilian legislation, bills, public policies and case law on maternal health, the research assisted CRR with its advocacy strategies in Latin America, where it seeks to affirm reproductive rights as fundamental human rights.

Our research highlights the need to understand maternal health from a human rights perspective in order to reduce maternal mortality rates, empower women to claim their rights, and demand that related institutions fulfill their obligations.

Introduction

Mattos Filho¹ prepared this memorandum at the request of the CRR to support its advocacy strategies regarding maternal health in Brazil. The report addresses four main aspects of this topic – legislation, bills of law, public policies and case law between January 2012 and July 2019.

The memorandum adopts a human rights-based approach to maternal health, also embraced by the World Health Organization (WHO) and the Office of the United Nations High Commissioner for Human Rights (OHCHR).² Such an approach is not limited to avoiding maternal deaths; rather, it also aims to empower women to demand their rights are upheld, and to demand the state implement more adequate public policies.³

It also highlights that social indicators, such as education, access to the labor market, contraceptive methods and the legal status of abortion, may worsen the discrimination and inequality experienced by different women in many aspects of their lives.⁴

Considering the needs of the CRR’s project, this memorandum has focused its analysis of maternal health on the subjects of pregnancy, childbirth, postpartum and maternal mortality rates. Although Brazil has progressed in these areas, it has yet to reach established international targets. The analysis is based on Brazilian government documents, academic works and materials published by civil society organizations and universities, among others.

The memorandum provides (i) an analysis of how different levels of legitimacy and social acceptance of motherhood are linked to the mothers’ different characteristics (race, age, sexual orientation, social class and other important social markers); (ii) an overview about legislation, bills of law, public policies and case law related to pregnancy (prenatal care), childbirth, postpartum and maternal mortality; and (iii) a description of third sector organizations and institutions within the judicial system that conduct activities regarding maternal health and reproductive rights with a local, regional, national or global reach.

1.2 Reproductive hierarchies: vulnerabilities, human rights and inequality in maternal healthcare

From a human rights perspective, motherhood should always be a voluntary, safe, socially supported and pleasurable process.⁵ However, this is not necessarily an accurate description of how Brazilian women experience motherhood in general.

Despite the notable individual dimension of motherhood, Brazil’s drastic levels of social inequality⁶ and deeply rooted racist and LGBT-phobic culture⁷ leads to different levels of legitimacy and social acceptance⁸, which are connected to the mothers’ different characteristics. This is what authors have dubbed reproductive hierarchies, which, at least in Brazil, conditions women’s experience of motherhood.⁹

Motherhood is generally considered a worthy and admirable undertaking when conceived within extremely restricted limits. The ‘ideal’ mother tends to be healthy, in her 20s or 30s, married (or in a stable monogamous relationship with a male partner), with sufficient financial means, cultural resources and a fixed address. Anything that diverges from this social construct may affect how the mother is socially accepted and therefore, the respect for her and her baby’s human rights.¹⁰

As such, the ability of women to exercise their reproductive rights is impacted by the unequal power structures inherent in Brazilian society.¹¹ Institutional and structural forces such as racism, sexism, colonialism, poverty and other factors such as immigration status, disability, gender identity, prison status, health, sexual orientation and age can affect whether women receive adequate maternal healthcare.¹²

Ever since feminist theory first began to take the intersectional experiences of women into account when analyzing their experiences of motherhood and maternal health status¹³, the existing discourse on reproductive health and rights has turned into one regarding reproductive justice. As a result, solutions for ensuring effective reproductive rights started to focus on a host of interconnecting social justice and human rights issues.¹⁴ As with any other human right, a truly free reproductive decision depends on access to material, social and political resources that are distributed unequally across Brazilian society.¹⁵

With that said, the aspects that generally impact Brazilian experiences of motherhood relate to race, age, sexual orientation and social class.

1.2.1 Race

An analysis of maternal health requires acknowledging racism as one of the main factors in Brazilian women of color’s unequal access to access to public health services and ability to exercise their sexual and reproductive rights.¹⁶ This reality directly affects their experience of motherhood, as they face problems such as coerced sterilizations, high maternal mortality rates, obstetric violence, restricted access even to low-quality public services, unjustified forfeiture of parental rights and the systematic violent deaths of their children – black youths.¹⁷

During the formation of the Brazilian Public Healthcare System (SUS) in the 1990s, black social movements played a pivotal role in assuring and expanding the black population’s access to healthcare services.

In 2007, the Federal Government created the National Health Policy for the Black Population (Política Nacional de Saúde Integral da População Negra – PNSIPN)¹⁸ to combat institutional racism and discrimination within the SUS network. However, after more than a decade after the PNSIPN was created, data on race in the public health system still demonstrates that black women are among the most vulnerable demographics due to limited access to adequate healthcare services.¹⁹

Studies also demonstrate that pregnancy and delivery for black women are marked by institutional, racial and obstetric violence. Compared to white women, women of color (i) are at greater risk of receiving inadequate prenatal care, (ii) are more likely to be unaccompanied during labor, (iii) tend to receive less anesthesia and (iv) need to seek more than one hospital at the time of admission to labor.²⁰ As a result, maternal mortality levels are two and a half times higher among black women than among white women in Brazil.²¹

In 2012, only 55% of black women had the recommended seven prenatal consultations, which was below the national average of 62.4%.²² The waiting time for healthcare is higher for black/brown women (16.6%) when compared to white women (14.5%). Moreover, 68% of black/brown women were unaccompanied during labor, and in more than 50% of these cases, healthcare services denied women the right to be accompanied.²³ Black women also represent 62% of the victims of maternal deaths in Brazil.²⁴

As mentioned, racism needs to be acknowledged as a central aspect of the limits and possibilities for freely exercising sexual and reproductive rights. For women of color, this frequently means human rights violations and the denial of a safe, socially supported and pleasant experience of motherhood.²⁵

For decades, black women’s movements have been denouncing the use of birth control policies to reduce the black population, such as coerced sterilizations²⁶ and the imposition of long-term contraceptive methods.²⁷ In 2018, Janaína Quirino was subjected to forced sterilization after a court granted a request from the Public Prosecutor’s Office²⁸, while in 2019, a government plan to mandate long-term contraceptive intrauterine devices (IUD) for adolescents in foster care in the municipality of Porto Alegre was met with strong public backlash.²⁹ It is worth mentioning that such devices are not available within the SUS, as the Brazilian Commission for the Incorporation of Health Technologies (Comissão Nacional de Incorporação de Tecnologia – Conitec) believes there is no evidence they are safer or more efficient than other available contraceptive methods.

For black women, the exercise of motherhood itself is under constant threat in Brazil. This is largely due to judicial decisions that frequently disrupt social ties between these women and their children simply because they find themselves in vulnerable situations. The high rate of homicide among the black population is another significant factor.³⁰

According to the Atlas of Violence 2018, black youths are the main victims of violence in Brazil.³¹ In 2016, the black male homicide rate was two and a half times higher than that of non-black males (16.0% versus 40.2%), while the black female homicide rate was 71% higher than that of non-black females. Data from the Map of Violence 2016 confirms that while the number of homicides among white youths fell by 32.3% from 2002 to 2012, the rate among black youths increased by 32.4%.³²

Behind these numbers are thousands of black women – mostly mothers – who, with minimal support, go to great effort to protect their children’s lives. Even in the tragic event of premature death, these women seek to ensure dignified treatment and burials for their children, as well as reparations and justice.³³

The highlighted data indicates that black women’s access to maternal health is marked by large-scale inequality and human rights violations due to the existing reproductive hierarchies in society. As one of the main aspects that characterize Brazilian society and human relations, racism is a determining factor in regard to social vulnerability and, therefore, should serve as a starting point for analyzing the experience of motherhood in Brazil and how black women’s reproductive rights are exercised.

1.2.2 Age

A second characteristic that determines how motherhood is socially accepted regards the mother’s age.

According to the Pan-American Health Organization (PAHO), between 2010 and 2015, Brazil had the third-highest teenage pregnancy rate in Latin America and the Caribbean. There were an estimated 68.4 births for every 1,000 girls between the ages of 15 and 19 (compared to a regional average of 66.5 births per 1,000 girls in the same age group). Brazil’s rate was also higher than the global average, which was 46 births per 1,000.³⁴

For most teenagers, pregnancy and childbirth are neither planned nor wanted.³⁵ Data from an Oswaldo Cruz Foundation publication titled Nascer no Brasil: Inquérito Nacional sobre Parto e Nascimento (‘Birth in Brazil: National Enquiry into Labor and Childbirth’) showed that between 2011 and 2012, 66% of teenage pregnancies were unintended.³⁶ On the other hand, when adolescent maternity is actually intended, ensuring safe pregnancies for young mothers and their babies remains extremely difficult – late access to maternal health services, stigma or rejection from relatives, health professionals and peers, and threats of violence are very common.³⁷

Teenage pregnancy is a big concern in Brazil. It has a major impact on the lives of those affected – especially girls – in terms of their health, social, economic and educational outcomes.³⁸ Teenage pregnancy remains a major contributor to maternal and child mortality, and to intergenerational cycles of ill health and poverty.³⁹

A national study from 2004 showed that pregnant teenagers – especially those under the age of 15 – delayed scheduling their prenatal care (48.2%) and made fewer antenatal visits (48.3%).⁴⁰ These results were also observed in other studies.⁴¹

According to Brazil’s Ministry of Education, in 2015, teenage pregnancy was the reason that 18% of girls left school before completion.⁴² Data from the Brazilian Institute of Geography and Statistics (Instituto Brasileiro de Geografia e Estatística – IBGE) from 2013 indicates only 24.8% of teenage mothers returned to school in order to continue their education.⁴³

Maternal mortality is a major contributor to overall adolescent mortality. During 2012, complications from pregnancy, delivery and puerperium were responsible for 4% of the deaths of all girls from 10 to 19 years old. For those aged between 15 and 19, these factors accounted for 6.14% of all deaths, ranking sixth among the principal causes of death for this age group.⁴⁴

In Brazil, the impact of unintended teenage pregnancy depends largely on socioeconomic status. For middle-class teenagers, becoming a mother generally does not represent a major disruption in their lives, although it may potentially interrupt or delay their academic studies. On the other hand, teenagers of lower socioeconomic status usually experience much greater levels of disruption, with teenage pregnancy commonly contributing to mothers dropping out of school, lower education levels, fewer job opportunities and consequently lower income levels.⁴⁵

According to a case-control study in the Brazilian State of Paraíba, the main factors associated with unintended teenage pregnancy consist of a lack of previous gynecological appointments and a lack of access to contraceptive methods.⁴⁶ Teenage pregnancy increases when girls are denied the right to make decisions about their sexual and reproductive health and well-being and face barriers to accessing contraception and information on the use of contraceptive methods to guarantee their right to family planning.

In recent years, changes in relation to reproductive health and adolescents have been particularly concerning.⁴⁷ For example, in March 2019, the government banned illustrations from booklets distributed to teenagers that provided instructions on how to use condoms.⁴⁸ In addition, the Ministry of Education has provided support to the controversial Escola Sem Partido (‘Non-Partisan Schools’) movement⁴⁹, which is in favor of prohibiting teachers from encouraging students to discuss gender identity, diversity, sex education and politics at school.⁵⁰

1.2.3 Sexual orientation and gender identity

In the three decades since Brazil transitioned from military dictatorship to democracy, the government has introduced numerous laws and policies to improve the recognition of LGBT rights.⁵¹ In 1996, Brazil was one of the first countries to offer free antiretroviral drugs to people with HIV⁵², while in 2011, Brazil’s Supreme Federal Court (STF) recognized same-sex unions and, in 2018, ruled that transgender people have the right to change their names and gender in the civil registry without first undergoing gender reassignment surgery.⁵³ In 2019, the STF also ruled that the provisions of a law that criminalizes racism should apply to homophobia and transphobia until the Brazilian Congress approves formal legislation on the subject.⁵⁴

Nevertheless, men and women who break with social conventions of gender and sexuality in Brazil remain particularly vulnerable to discrimination⁵⁵, and we still are confronting an epidemic of anti-LGBT violence – one that, by some accounts, has earned Brazil the ignominious ranking of the world’s deadliest place for lesbians, gays, bisexuals and transgender people.

According to the NGO Grupo Gay da Bahia⁵⁶, the deaths of 420 LGBT people were reported in Brazil in 2018, including 100 suicides. The organization estimated that a murder occurred every 20 hours.⁵⁷ As a result, although in Brazil there were at least 58,000 self-declared LGBT families in 2010⁵⁸, society has been unable to provide adequate and effective support. This number is probably a low estimate, as statistics that the IGBE collected on Brazil’s 2017 civil registry showed that same-sex marriage increased by 10% compared with 2016⁵⁹, a result also observed in previous studies.⁶⁰

In Brazil, studies portrayed two possibilities for LGBT people to become parents: reproductive treatments and adoption.⁶¹ Recognition of adoption by LGBT couples is gradually gaining social acceptance in society, broadening people’s views of the family unit.⁶²

Although there is no specific legislation to regulate this issue in Brazil, the Superior Court of Justice (STJ) first granted the right for a lesbian couple to adopt in 2010. Since then, the case law has also tended to recognize it for other couples.⁶³ Nevertheless, barriers related to sexual orientation discrimination still exist, and the adoption process can be more difficult for LGBT couples than for other couples.

Unfortunately, there is little public investment in assisted reproduction, which commonly leads to long waiting lists in the public healthcare system and limits access to conception methods for infertile heterosexual couples. Together with the considerably high costs for these treatments at private clinics, LGBT couples’ (especially lesbian couples) access to this method is often hindered.⁶⁴

Even when adoption or assisted reproduction is possible, other barriers remain. These include (i) lesbian mothers’ access to healthcare, (ii) registering the names of both parents on birth certificates and, finally, (iii) equal access to maternity and paternity leave.

Despite advances in equality after the creation in 2011 of the called National Health Policy for LGBT people (Política Nacional de Saúde Integral de Lésbicas, Gays, Bissexuais, Travestis e Transexuais)⁶⁵, lesbian women face unique challenges in accessing health care, including social, political, and economic barriers.⁶⁶

According to the Feminist Health Network (Rede Feminista de Saúde), 40% of lesbians in 2006 did not reveal their sexual orientation during health visits. Among those that did, 28% reported rushed medical appointments, and 17% affirmed that health professionals failed to request tests the women considered important.⁶⁷

The same applies to pregnant lesbians, who face many difficulties in regard to maternal care in Brazil. As the provision of obstetrical care has historically been based on heterosexual constructs⁶⁸, lesbians have reported certain uncomfortable situations involving health professionals during conception, pregnancy, delivery and postpartum, including assumptions of heterosexuality, forms and instructions addressing parents only as father/mother, doubts or questions cast on the legitimacy of the couples’ relationships, and even some instances of discrimination and violated rights.⁶⁹

Until 2016, naming both parents on birth certificates was exclusively dependent