☰ Menu

Brazil

Jimena Villar de Onis

Constitution

The right to health is included in the following sections and articles of the Constitution of the Federative Republic of Brazil:

  • Article 5: “All persons are equal before the law, without any distinction whatsoever [...]
  • Article 5.I: “Men and women have equal rights and duties under this Constitution.”
  • Article 6: “Basic principles: Education, health, food, work, housing, leisure, security, social security, protection of motherhood and childhood, and assistance to the destitute, are social rights, as set forth by this Constitution.”
  • Article 7.IV: “Worker’s rights: The following are rights of city and rural workers [...]: a minimum wage nationwide, established by law, capable of satisfying their basic living needs and those of their families with housing, food, education, health, leisure, clothing, hygiene, transportation, and social security, with periodical adjustments to maintain its purchasing power.”

Section II of the Constitution provides on the right of all citizens to have access to health services:

  • Article 196: “Health is the right of all persons and the duty of the State and is guaranteed by means of social and economic policies aimed at reducing the risk of illness and other hazards and at universal and equal access to all actions and services for the promotion, protection and recovery of health.”
  • Article 197: “Health actions and services are of public relevance and it is incumbent upon the Government to provide, pursuant to the law, for their regulation, supervision and control. Such actions and services are to be carried out directly or through third parties and also by means of individuals or legal entities of private law.”

The Constitution imposes on different areas of the government the duty to provide health services to the population:

  • Article 23.II: “Common powers: It is incumbent, in common, upon the Union, the States, the Federal District, and the Municipalities: to attend to public assistance and health, as well as to protection and guarantee of handicapped persons.”
  • Article 24.XII: “Concurrent legislation: It is incumbent upon the Union, the States, and the Federal District to legislate concurrently on social security, protection, and defense of health.”
  • Article 30.VII: “Municipal of Self Government: It is incumbent upon the Municipalities to render, with the technical and financial cooperation of the Republic and State, health services to the population.”

The Constitution allows for the Republic to intervene in the States, Federal Districts and Municipality in order to preserve the right to health services:

  • Article 34.VII.e: The Republic may not intervene in the States or in the Federal District, except to the application of the minimum required amount of the revenues resulting from state taxes, including revenues originating from transfers, to the maintenance and development of education and to health actions and public services.”
  • Article 35.III: “The State may not intervene in its Municipalities, and neither the Republic in the Municipalities located in a Federal Territory, unless the minimum required amount of municipal revenues has not been applied to the maintenance and development of education and to health actions and public services.”

The Constitution establishes the Social Security and Assistance, as Branches of Government, which aims in promoting and ensuring the rights to health amongst others:

  • Article 194: “Social security comprises an integrated set of initiatives by the Branches of Government and by Society, aimed at ensuring the rights to health, social security, and social assistance.”

Implementation of sexual rights and reproduction

Abortion

The Penal Code of 1940 regulates the laws on abortion in the Federative Republic of Brazil.

  • Article 128 states that an abortion can only be performed legally if the pregnancy is either: a. been the result from a rape, or b. is putting the mother’s life at risk. Under the same article, an abortion can only be performed by a certified doctor.
  • Article 124 establishes the punishment for a woman agreeing or performing an illegal abortion on her own body as one of between 1 to 3 years of jail.
  • Article 125 establishes the punishment for a third party performing an illegal abortion on a woman (without her consent) as on of between 3 to 10 years.
  • Article 126 establishes the punishment for a third party performing an illegal abortion on a woman (with her consent) as on of between 1 to 4 years.

In 2012, the Brazilian Supreme Court ruled the Allegation of Disobedience of Fundamental Precepts n. 54/2004 as relevant in the case of anencephalic fetuses. Therefore, starting April 24 2012, the discontinuation of anencephalic fetuses is no longer punished by the law, and has joined rape and the mother’s life as one of the exceptions allowed by the court in order to perform a legal abortion.

Children and Teenagers’ Health Rights

The Constitution of the Federative Republic of Brazil provides children and teenagers with the right to a healthy lifestyle, free of violence, exploitation and oppression:

  • Article 227: “It is the duty of the family, of society, and of the State to ensure children and adolescents, with absolute priority, the right to life, health, food, education, leisure, professional training, culture, dignity, respect, freedom, and family and community life, in addition to safeguarding them against all forms of negligence, discrimination, exploitation, violence, cruelty, and oppression.”
  • Article 227.I: “The State provides full health assistance programs for children and adolescents, allowing the participation of non-governmental entities and complying with the following precepts: I. allocation of a percentage of public funds to mother and child health assistance.”

Handicapped Health Rights

The Constitution of the Federative Republic of Brazil imposes on the government the obligation to offer protection and guarantees to handicapped people:

  • Article 23.II: “Common powers: It is incumbent, in common, upon the Union, the States, the Federal District, and the Municipalities: to attend to public assistance and health, as well as to protection and guarantee of handicapped persons.”

Human Trafficking

The Penal Code of 1940 prohibits any trafficking-related offence under Article 206 and 207 of the Code.

In 2009, Law 12.015 amended section 231 and 231-A of the Penal Code in order to strengthen penalties against sex trafficker offenders. Under the new laws, introducing someone to trafficking carries a penalty of 2 to 5 years. Facilitating or promoting someone to sexual exploitation carries a penalty of 2 to 8 years, and this penalty increases if the victim is under the age of 18 or if the victim suffers mental disorders.

Rights of Sexual Minorities

Since May 2013 same-sex marriage has become an universal right in Brazil under Resolution nº 175, Edition nº 89/2013. The law gives same sex marriages the same civil, economical and social rights as heterosexual marriages.

Brazilian laws do not specifically prohibit adoption by same-sex couples. Such laws could not be implemented by the State as they would be deemed unconstitutional. In 2010, the Superior Court of Justice of Brazil unanimously acknowledged that same-sex couples have the right to adopt children with the same restrictions as heterosexual couples.

There are no laws that prevent sexual minorities from entering the military. The Brazilian military prevents sexual acts between members of the force regardless of their sexual orientation.

Transgender Rights

The public health system in Brazil provides free sex-change operations, as part of their universal health care. This was confirmed in 2007 by the 4th Regional Federal Court, in which it stated that: “transsexuality can be described as a sexual identity disturbance where individuals need to change their sexual designation or face serious consequences in their lives, including intense suffering, mutilation and suicide.”

Patients must be 21 years old and have been diagnosed as transexuals. Potential patients must not have been diagnosed with any personality disorder and must undergo 2 years of psychological evaluations.

Challenges In the Area of Sexual and Reproductive Rights in Brazil

Brazil is still facing a number of challenges in certain areas of sexual and reproductive rights. One of them is the complications that arise from their strict abortion laws. In 2005, it was reported that 300,000 women a year were admitted into hospitals because of unsafe abortion operations. Each year, an estimate of 1.4 million clandestine abortions are performed in Brazil. In fact, unsafe abortions represent the third leading cause of maternal mortality. The current abortion laws in Brazil impose a great risk on mother’s health and are on of the reasons why the country has one of the highest maternal mortality rates in South America.

Transgender rights is another area in which Brazil is facing challenges. Transgender people face discrimination in the labor market and the academic world. The few open professions for them include domestic service, hairdressing, gay entertainment and prostitution. Transgender people also receive little support from the mainstream gay and lesbian protection groups.

Despite its illegality, human trafficking remains a serious issue in Brazil. Slave labor and sex trafficking are the most highly reported cases of human trafficking. NGO reporting has indicated official complicity in trafficking crimes, at the local governmental level and at police level.