When those entreaties failed, the prosecutor jumped in. Would the girl consider adoption “instead of letting him die — because it is already a baby, a child — instead of letting him die in agony?”
Ribeiro Zimmer ordered the girl taken from her family — to protect the fetus, she said.
Leaked video of the hearing, published in June by the Intercept Brazil, has shaken Latin America’s largest country, which maintains tight restrictions on abortion.
The procedure is legal in Brazil only in cases of rape, incest or severe fetal abnormality. But advocates for abortion rights say the case of the 10-year-old shows how even women with a permissible reason face resistance from hospital policies, red tape and an often hostile judiciary.
“What we see in Brazil and in other countries in Latin America where abortion is criminalized, on top of the law, there are barriers created that make it harder to access care,” said Debora Diniz, an anthropologist at the University of Brasilia who studies abortion rights. “And the most vulnerable people, the most fragile, are the most impacted.”
Diniz said cases such as the child’s could foreshadow what is to come in the United States now that the Supreme Court has overturned Roe v. Wade: “When there is a state of judicial insecurity, as we see now in the United States, with each state deciding its own policy, that insecurity creates a space ripe for misinformation and fear.”
The legal ambiguity around abortion spooks doctors who don’t want to risk lawsuits or prison time. Brazil’s Health Ministry issued a memo last month saying “every abortion is a crime” but that penalties may be waived in “specific cases.”
Doctors convicted of performing an illegal abortion risk up to four years in prison. Many prefer to err on the side of caution, even when it might be detrimental to the victims.
More than 17,000 children aged 10 to 14 in Brazil become pregnant each year, according to government figures. These mothers are five times more likely to die in childbirth than women over 20, and also have greater chances of suffering uterine ruptures, preeclampsia and anemia.
Cases of rape victims seeking legal abortion have become lightning rods for both sides of Brazil’s abortion debate.
In 2020, antiabortion activists, including several politicians, gathered outside a hospital in northern Brazil to protest a legal abortion for another 10-year-old. Authorities said the girl had been impregnated by her uncle, who raped her repeatedly. When her hospital in Espírito Santo state denied her an abortion, she was taken to a hospital in Recife, more than 1,000 miles away.
Antiabortion activists leaked her name and the location of the hospital. They protested there while the procedure was performed and called her doctor an assassin. The girl has since joined the witness protection program and changed her name and address.
But public opinion is changing. Polls show support for complete abortion bans is falling, and abortion rights activists are hopeful the country will join the “green wave” of legalization that has swept Mexico, Colombia and Argentina. A case waiting to be heard by Brazil’s supreme court calls for the decriminalization of abortion through 12 weeks of gestation.
In the recent case, the girl, from the southern state of Santa Catarina, discovered she was 22 weeks pregnant in May. It was 22 weeks and two days when she sought an abortion at a hospital in Florianópolis, the state capital.
Federal law guarantees rape victims a right to the procedure at any stage of the pregnancy. But Brazil’s Health Ministry recommends that all abortions be conducted before 22 weeks. The hospital, citing that guidance, refused to perform the procedure without judicial authorization.
Neither the girl nor her hometown have been publicly identified. The hearing was held in Tijucas, outside Florianópolis, in May.
Ribeiro Zimmer, the judge, asked the child if she would be willing to stay pregnant “two or three more weeks” to allow the fetus to grow. She also asked whether the girl could feel the baby’s kicks, and whether her rapist would agree to give it up for adoption.
Ribeiro Zimmer turned to the victim’s mother.
“In terms of the little baby, do you understand that if we interrupt the pregnancy, the baby is born and we have to wait for the baby to die?” she said, falsely. “Can you understand that? That it is immense cruelty? That the baby will be born and cry until he dies?”
Throughout the hearing, the girl repeated that she did not want to continue the pregnancy and deliver the baby. But she eventually agreed to Ribeiro Zimmer’s request that she wait “a few more weeks” to increase the fetus’s chances of survival outside her uterus for potential adoption.
In her ruling, the judge equated abortion to homicide and ordered the girl to a shelter to prevent “the mother from conducting any procedure that leads to the death of the baby.” She was separated from her family for more than 40 days.
After the video was published, state authorities said the girl was removed from her home while prosecutors investigated whether she was raped by a family member — not for the safety of the fetus.
While the girl waited at the shelter, the case divided Brazilians.
“The baby has SEVEN MONTHS of gestation, regardless of how he was conceived or whether or not he is protected under law,” President Jair Bolsonaro tweeted. “It is inadmissible to talk about taking away the life of this defenseless being!”
Activists for abortion rights, meanwhile, took to the streets, demanding the girl be released from the shelter and granted her abortion. Over 300,000 women signed a petition calling for the judge’s dismissal.
Brazil’s federal public prosecutor’s office ultimately ordered the hospital to perform the procedure, and on June 23, the girl, now 11, had an abortion. The office “lamented the sad occurrence” of the hearing and said it was investigating the conduct of the hospital and the judge. The supreme court asked the Health Ministry to review its recommendation on when abortions should be conducted and that states that all abortions are illegal. Ribeiro Zimmer has been promoted into another role and is no longer on the case.
Juliana Cesario Alvim, a lawyer who worked with the 10-year-old victim’s team, is hopeful of change.
“If it is possible to see something positive from this tragedy, it is the mobilization it generated,” she said. Even if this case is resolved, we understand we have to continue mobilizing, to call on the international community, to increase visibility and pressure. The fight for the legalization of abortion is here.”