Ethical conflict: The controversial CFM resolution that impacts care for rape victims

In a preliminary decision, Minister Alexandre de Moraes, of the Federal Supreme Court (STF), ordered the suspension of the Federal Council of Medicine (CFM), which had prohibited doctors from performing fetal asystole.

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Minister Alexandre de Moraes - Photo Reproduction/TSE

The recent resolution of the Federal Council of Medicine (CFM) generated a wave of controversies and heated debates throughout Brazil. The rule, which directly impacts care for rape victims, raised profound ethical questions and raised concerns among health professionals, women's rights defenders and civil society.

Even though it is guaranteed by law, many women face difficulties in obtaining a legal abortion, a procedure offered free of charge by the Unified Health System (SUS) in cases of pregnancy resulting from rape, when there is a risk to the pregnant woman's life or in cases of diagnosis of fetal anencephaly. However, in April, the Federal Council of Medicine (CFM) imposed a new barrier for rape victims seeking legal abortion. The entity issued a rule prohibiting doctors from performing fetal asystole in "cases of abortion provided for by law resulting from rape."

The Content of the Resolution

CFM resolution No. 2,378/2024 in question introduces new guidelines on how doctors should proceed when caring for victims of sexual violence. . . . The norm prohibits the doctor from performing fetal asystole before pregnancy termination procedures after 22 weeks in cases of rape. The document was published on April 3 in the Official Gazette of the Union. The rapporteur of the Resolution, Raphael Câmara, federal councilor for Rio de Janeiro, clarifies that fetal asystole is a medical act that results in feticide (death of the fetus) before the pregnancy termination procedure.

Fetal asystole is a technique that uses medications to stop the fetal heartbeat. Afterwards, already dead, he is removed from his mother's body. According to the Socialism and Freedom Party (PSOL), author of the action, the prohibition of this technique would restrict scientific freedom and the free professional practice of doctors. Furthermore, in practice, it would force girls and women to carry on a pregnancy against their will or to resort to unsafe abortion methods.

Revocation

The rule was initially suspended by the Federal Court in Porto Alegre, but came back into force at the end of April, when the Federal Regional Court of the 4th Region annulled the previous injunction. This Friday (17), Minister Alexandre de Moraes, of the Federal Supreme Court (STF), suspended the resolution again. The suspension will remain in effect until the Court assesses the validity of the rule. In the decision, Moraes indicated that there are signs that the resolution exceeded the limits established by legislation. The minister's decision will be submitted to a referendum in the virtual plenary from May 31st.

In the decision, the minister noted that there was an "excessive application of regulatory power" by the CFM to the establish a rule not covered by legislation to prohibit the performance of fetal asystole in cases of pregnancy resulting from rape. Moraes also highlighted that the procedure can only be carried out by a doctor with the victim's consent. The penal code does not clearly specify any circumstantial, procedural or temporal restrictions for carrying out abortions permitted by law, the legality of which, as long as these requirements are met, will be fully supported, he concluded.

Another obstacle faced by victims of sexual violence

In Brazil, the act of terminating a pregnancy is considered a crime, however there are three specific circumstances in which this practice is legally permitted. These include cases of abortion authorized by law due to fetal anencephaly, which refers to malformation of the fetus's brain, situations in which the pregnancy poses a risk to the pregnant woman's life, and cases in which the pregnancy results from rape.

In cases of anencephaly and high-risk pregnancies, it is essential to present a medical report certifying the condition, and an ultrasound examination may also be requested to confirm anencephaly. However, in cases of pregnancy resulting from sexual violence – where rape is considered any non-consensual sexual act, even if there is no physical aggression –, it is not necessary for the woman to present a Police Report or any other examination that proves the crime. . Simply reporting the victim to the medical team is sufficient.

Although it may seem simple, it is not. Even though it is not necessary to "prove" sexual violence, many women (and girls) face discrimination when seeking legal abortion in health services. As noted by Flávia Nascimento, coordinator of the Defense of Women's Rights at the Public Defender's Office of Rio de Janeiro, there are many doubts when a woman reports being a victim of sexual violence. The legislation does not require a police report, only compliance with a protocol in health services. However, many women face discrimination when exercising this right, their words are disregarded both in health services and at police stations.

When the CFM establishes a "deadline" for victims of sexual violence to seek a legally provided abortion, it disregards all the complexities involved in decision-making. According to the coordinator, professionals who deal with legal abortion requests know that girls and young teenagers take longer to access these services. Many of them have not yet had their first period, do not understand that they were victims of violence and have difficulty accessing information. In addition to facing violence, they run the additional risk of their lives by continuing with the pregnancy.

The Way Forward for the Victim

In some cases, the doctor may choose not to perform the procedure, based on conscientious objection, that is, declaring that it would cause deep emotional discomfort. However, such a refusal is not admissible when the woman's life is at risk or if there is no other professional available to carry it out. Additionally, the CFM guidelines add fear as a reason for denial, as punishment for violating the resolution could result in loss of medical record.

Therefore, if the victim is unable to obtain the procedure, the alternative is to seek judicial authorization, although this decision may be time-consuming. The slowness of the judicial system can make it difficult and even prevent access to the procedure. It is known that the sooner the abortion is performed, the safer it is. Therefore, this situation contributes to legal uncertainty and increases the risk of life for those who need access to legal abortion.