- Legal Aspects

Infanticide in Brazil – Legal Aspects
Maíra de Paula Barreto*

In Brazil, the position of many representatives of the responsible governmental agencies for indigenous questions is for the non-interference in cultural practices. There is a lack of official data concerning infanticides committed within the tribes1 . It is known that infanticide occurs mainly (it may vary from ethnic group to ethnic group) when the child is born with some disability, when twins are born, when a single mother gives birth.

The universality of human rights defends that they are valid for all people, regardless their culture, ethnic group, sex, etc. So, legally, Brazil adopts the human rights as universal, but in practice, Brazil is adopting a policy of tolerance about cultural practices that violate human rights (such as the right to life and physical integrity, guaranteed to all Brazilian children).

In an UNICEF study called "Ensuring the rights of Indigenous Children", there was a reference about harmful traditional practices: "On the other hand, group claims that seek to maintain traditional acts otherwise deemed prejudicial to the child's dignity, health or development – this would be the case, for instance, with female genital mutilation, non-consensual marriage or inhuman or degrading punishments for antisocial behaviour – contravene the rights of the individual and therefore cannot be legitimized as a right by the community. It is an operative principle under international law that the individual should receive the highest level of protection and, in the case of children, 'the best interests of the child' (CRC Article 3) cannot be neglected or violated to safeguard the best interests of the group."

Although there is enough legislation (national and international) about the prevalence of human rights when it comes to harmful traditional practices, there is no specific mention about indigenous infanticide on the UN documents. When it comes to infanticide, only the female type is referred.

For example, the item 48 of the Fact Sheet n. 23 about Harmful Traditional Practices Affecting the Health of Women and Children, produced by the Office of the United Nations High Commissioner for Human Rights, says that:
"Female infanticide and female foeticide should be openly condemned by all Governments as a flagrant violation of the basic right to life of the girl child."

It is common to find more about harmful traditional practices in a female context. The Resolution adopted by the General Assembly in the year 2002, called "A world fit for children" asks to:
"9. End harmful traditional or customary practices, such as early and forced marriage and female genital mutilation, which violate the rights of children and women".

The most discussed traditional practice is the female genital mutilation and there is a study of the UNICEF called "Changing a harmful social convention: female genital mutilation/cutting". As the other documents, it says that:
"International human rights instruments promote the right of an individual to participate in cultural life, but they do not uphold traditional practices that violate individual rights. Therefore, social and cultural claims cannot be evoked to justify FGM/C. In deciding to abandon FGM/C, a community is not rejecting their cultural values, but rather a practice that causes harm to girls and women and reinforces gender inequalities."

It is important to emphasize that ATINI's cause (NGO which defends the right to life of indigenous children who are possible victims of infanticide) is totally in accordance with the UN principles and international law. It is also in accordance with Brazilian law (that has signed all main Human Rights Treaties and has a very complete list of fundamental rights on its Constitution). People who have different opinions on this subject (such as "cultural practices should prevail even when they violate human rights”) are not covered, endorsed by the law. It is a delicate issue indeed, but the UN and International Law positions are quite clear about harmful traditional practices.

The Brazilian Decree nº 5.051, from 2004 (which is the ILO Convention nº 169), ensures to indigenous people the right to retain their own customs and institutions, where these are not incompatible with fundamental rights defined by the national and international legal system.

The Convention on the Rights of the Child establishes that States Parties shall take all effective measures with a view to abolishing traditional practices prejudicial to the health of children. Moreover, the Brazilian Federal Constitution2 and the Statute of the Child and Adolescent3 guarantee the child's right to life as the right par excellence.

It is important to stress that the culture is dynamic and not immutable. The culture is not the highest value to be protected, but the human being, trying to minimize his suffering.

ATINI believes that a more immediate solution (but not definitive) for this delicate problem would be an adoption policy (only when the treatment and reinstatement are not possible), to assure this indigenous children the right to life, for they are protected by the Brazilian judicial system, but neglected by the governmental actuation.

*    Doctorate Student in Human Rights at the University of Salamanca, Spain. Member of the Deliberative Council of the NGO ATINI – Voice for life                www.vozpelavida.org.br www.voiceforlife.blogspot.com E-mail: mairabarreto@gmail.com

1   It is estimated that about 200 indigenous children are killed each year because of cultural reasons. According to and agent of FUNASA (National            Health Foundation), 68 children from only one ethnic group (called Yanomami) were killed in 2003 and 98 children in 2004.

2   Article 227.It is the duty of the family, the society and the State to ensure children and adolescents, with absolute priority, the right to life,             health, nourishment, education, leisure, professional training, culture, dignity, respect, freedom and family and community life, as well as to guard         them from all forms of negligence, discrimination, exploitation, violence, cruelty and oppression.
3   Article 4. It is the duty of the family, community, society in general and the public authority to ensure, with absolute priority, effective      implementation of the rights to life, health, nutrition, education, sports, leisure, vocational training, culture, dignity, respect, freedom and family and      community living.
Article 5. No child or adolescent will be subject to any form of negligence, discrimination, exploitation, violence, cruelty and oppression, and any      violation of their fundamental rights, either by act or omission, will be punished according to the terms of the Law.
Article 7. The child and adolescent have the right to protection of life and health, through effective implementation of public social policies that      make possible birth and healthy and harmonious development in dignified conditions of existence.

- Convention on the Rights of the Child

U.N. General Assembly
Document A/RES/44/25 (12 December 1989)
with Annex

The General Assembly,

Recalling its previous resolutions, especially resolutions 33/166 of 20 December 1978 and 43/112 of 8 December 1988, and those of the Commission on Human Rights and the Economic and Social Council related to the question of a convention on the rights of the child,

Taking note, in particular, of Commission on Human Rights resolution 1989/57 of 8 March 1989, by which the Commission decided to transmit the draft convention on the rights of the child, through the Economic and Social Council, to the General Assembly, and Economic and Social Council resolution 1989/79 of 24 May 1989,

Reaffirming that children's rights require special protection and call for continuous improvement of the situation of children all over the world, as well as for their development and education in conditions of peace and security,

Profoundly concerned that the situation of children in many parts of the world remains critical as a result of inadequate social conditions, natural disasters, armed conflicts, exploitation, illiteracy, hunger and disability, and convinced that urgent and effective national and international action is called for,

Mindful of the important role of the United Nations Children's Fund and of that of the United Nations in promoting the well-being of children and their development,

Convinced that an international convention on the rights of the child, as a standard-setting accomplishment of the United Nations in the field of human rights, would make a positive contribution to protecting children's rights and ensuring their well-being,

Bearing in mind that 1989 marks the thirtieth anniversary of the Declaration of the Rights of the Child and the tenth anniversary of the International Year of the Child,

1. Expresses its appreciation to the Commission on Human Rights for having concluded the elaboration of the draft convention on the rights of the child;

2. Adopts and opens for signature, ratification and accession the Convention on the Rights of the Child contained in the annex to the present resolution;

3. Calls upon all Member States to consider signing and ratifying or acceding to the Convention as a matter of priority and expresses the hope that it will come into force at an early date;

4. Requests the Secretary-General to provide all the facilities and assistance necessary for dissemination of information on the Convention;

5. Invites United Nations agencies and organizations, as well as intergoverrunental and nongovernmental organizations, to intensify their efforts with a view to disseminating information on the Convention and to promoting its understanding;

6. Requests the Secretary-General to submit to the General Assembly at its forty-fifth session a report on the status of the Convention on the Rights of the Child;

7. Decides to consider the report of the Secretary-General at its forty-fifth session under an item entitled "Implementation of the Convention on the Rights of the Child".

61st plenary meeting
20 November 1989

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