Attorneys’ duty of confidentiality, its limits and consequences, are often portrayed in movies, tv series, and every introductory law class. It is considered and understood as an essential guarantee for the right of every individual to a fair defense and as a major pillar of the judicial system. However, when it comes to the medical sector, this right is often put at stake by several countries under the pretext of effectively sanctioning certain activities, usually disregarding the overall impact on public health. The analysis of this clash is especially relevant when it comes to sexual and reproductive rights in Latin America.
Despite its wide recognition, some Latin American countries justify the violation of doctor-patient confidentiality in the effective prosecution of abortion. It often puts doctors in the difficult situation of having to decide between their freedom and the one of their patients, setting perverse incentives. As a result, women who experience any complication regarding their sexual and reproductive rights, driven by fear, are persuaded to deny any medical assistance. That denial can lead to serious health complications and even sometimes resulting in death. These situations are multiplied among the most vulnerable groups and intensified by the lack of sufficient economic resources or education.
This reality raises questions about how sexual and reproductive rights are being protected by states that implement these measures. Also, the alleged benefits can be call into question given that their effectiveness has been proved not by any conclusive decrease in the number of abortions, but by an increase in the number of women imprisoned, which has been highly condemned by the international community. For instance, in El Salvador, where abortion is criminalized in all its forms, it is estimated that 35,088.60 unsafe abortions are performed per year, despite the penalty of up to 50 years imprisonment. These numbers clash with the goal of prevention and social reintegration of the criminal system, but also with the states’ duty of non-regression when it comes to social, economic and cultural rights. Regarding the former, criminal law is based on the principle of ultima ratio in the sense that the legislator should only opt for the criminalization of an unlawful conduct as a last resort instrument. Furthermore, concerning socio-economic rights, states should respect and ensure the sexual and reproductive rights of its population. Also, under the International Law Principle of non-regression, any legislative change that implies going backwards on the standards of protection of collective and individual rights should be avoided. This can be argued when sexual and reproductive rights are sacrificed in exchange for unjustified criminalization.
Thus, regardless of the legal treatment of abortion, maybe a closer consideration should be taken regarding the benefits- if any- and the general effects of restraining the right and duty of confidentiality both on health and on the -at least in theory- ultima ratio criminal instrument.
The views reflected in this expert column are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.