A Miscarriage of Justice
Women’s Reproductive Lives and the Law in Early Twentieth-Century Brazil
Cassia Roth


Contents and Abstracts
chapter abstract

This chapter argues that women's reproduction was a central focus of an expanding state in early twentieth-century Brazil. It situates the book's historiographic intervention in the fields of gender history, the history of maternal-infant health in Brazil and Latin America, and the legal history of abortion and infanticide. Despite the centrality of women's reproductive practices to global trajectories of state expansion, historians often separate their analysis of fertility control from discussions of both pregnancy and childbirth and reproductive health trends such as maternal mortality and stillbirth rates. This division has resulted in methods that understand the process from isolated points of view—legal, medical, cultural—rather than in an integrated methodology that underscores how various spheres intersected to shape reproductive politics, and one that privileges women's experiences.

1 The Law of Responsibility, the Medicine of Gender, the Science of Race
chapter abstract

This chapter outlines the legal and medical ideologies of positivist criminal law, patriarchal civil law, scientific motherhood, and racialized medicine, particularly eugenics. The intersection of these intellectual trends resulted in a judicial sphere that infantilized women's legal decision making while valorizing women's maternal nature, regardless of race, class, or nationality. In relation to women's reproductive capabilities, legal practitioners encoded gender equality into criminal law but gender inequality into civil law, all the while expanding the state's role in adjudicating familial matters. For their part, obstetricians positioned themselves on the front line of improving the "quality" of the Brazilian race. They believed that all women—no matter their race or class—should reproduce. Miscegenation, or interracial sex, and hygiene—not restrictive policies toward reproduction—would lead to national improvement. This approach, while less racially exclusionary, still reified women's maternal nature, making motherhood the only way women could contribute to the nation.

2 Constructing Motherhood: Obstetricians, Politicians, and the Creation of a Reproductive Healthcare System
chapter abstract

This chapter analyzes philanthropic and state-run programs that aimed to expand Rio de Janeiro's reproductive healthcare services. Republican physicians and women's philanthropic associations worked to develop a comprehensive and uniform network of maternal-infant healthcare across the city, constructing maternity hospitals and expanding prenatal care within existing public health services. But the patchwork network of decentralized public health agencies remained inadequate until Getúlio Vargas centralized medical services in the mid-1930s. Despite the central role maternal-infant health played in both Republican and Vargas-era policies, efforts never fully matched women's reproductive health needs.

3 Birthing Life and Death: Childbirth, Stillbirth, and Maternal Mortality
chapter abstract

This chapter examines women's own experiences of pregnancy and childbirth. Most deliveries in the early twentieth century occurred at home, attended by unlicensed or lay persons in the poor and working classes and by licensed midwives and physicians in the middle and upper classes. Elevated and sustained stillbirth and maternal mortality rates marked all women's reproductive lives. Syphilis and obstetric complications during childbirth were the two main causes of stillbirths, and puerperal fever (infection) was the main culprit of maternal death. Despite efforts to medicalize childbirth and increase access to clinical healthcare, no real improvements in women's reproductive health occurred in the early twentieth century. However, Brazilian physicians were not alone in their inability to improve reproductive health; sustained drops in high stillbirth and maternal mortality rates worldwide only came in the 1940s after medical advances such as the discovery of penicillin.

4 A "Plague of Criminal Abortions": Fertility Control and the Consolidation of Medical Authority
chapter abstract

This chapter explores obstetricians' debates over the best methods to suppress abortion. The medical profession harshly condemned abortion, a view that incorporated longstanding Catholic views on procreation and harnessed those beliefs for the good of the secular state. Doctors believed that fertility control allowed women to freely engage in sexual activity outside of marriage, and practices such as abortion thus threatened the nuclear family—and the nation. In response, early twentieth-century obstetricians began advocating for increased medical control over the family. The medical profession's rhetoric upheld the "new" bourgeois family, and its social policies facilitated the dispersal of its tenets into the heretofore sacred space of the home. In the few instances when physicians supported abortion, for example, to save the mother's life, they did so to assert scientific control over women's bodies and to ensure the continuation of women's biological and social maternal capabilities.

5 Ouvi Dizer [Heard Said]: Rumor, Sex, and Race in the Republican Capital
chapter abstract

This chapter examines neighbor's denunciations of abortion and infanticide from the perspective of the judicial system in Rio de Janeiro. Gossip about and denunciations of fertility control represented the circulation and consolidation of popular understandings of race and sexuality, which associated both fertility control and interracial relationships with clandestine and thus inappropriate sex. Accusations of fertility control also unveiled the ways in which Brazilians, particularly of the popular classes, negotiated civic participation at a time when the lower classes were illiterate and disenfranchised. Denouncing other women for fertility control provided a rare chance for working-class women and men to assert their authority in the public sphere. By the late 1930s, however, the Estado Novo had taken over the role as official denunciator, subsuming gossip within its patronage networks.

6 Policing Pregnancy: Statecraft, Poverty, and Reproductive Health
chapter abstract

This chapter explores police involvement in poor women's reproductive lives. It demonstrates that the responsibilities of the Rio de Janeiro civil police in the realms of social service administration and crime control, in conjunction with the effects of poverty on women's lives, allowed the conflation of miscarriages and stillbirths with abortion and infanticide. Police investigations of reproduction coincided with poor health outcomes for impoverished women. Instead of improving obstetric services, the state—through the police—increased its surveillance of women's bodies, embedding patriarchal definitions of female sexual honor into modern judicial practice. By the 1930s, police involvement in women's reproduction decreased. The growing public health sector took over as medical first responders and dealt with women's pregnancies and deliveries. Yet the gender and racial inequalities built into the foundation of modern police practice continued to affect the ways in which all state apparatuses approached women's reproduction throughout the twentieth century.

7 Prosecuting Honor, Defending Madness: Abortion and Infanticide in the Courts
chapter abstract

This chapter examines how the law adjudicated abortion and infanticide under the 1890 penal code. The courts' prosecution of fertility control frequently allowed women to legally walk free from charges while simultaneously upholding patriarchal beliefs about gender and sexuality. In infanticide trials, juries most often acquitted women for committing the crime under temporary puerperal insanity pleas. In abortion trials, the prosecution punished providers and not the postabortive women, portraying the latter as victims. Both doctrines took away women's legal personhood, but the law's emphasis on female honor gave that back to women—if they embraced their "natural" roles as mothers. Early twentieth-century sentencing trends affected the rewriting of criminal laws that endure to this day, insofar as the 1940 Penal Code, still in effect, incorporated the positivist view that only a mother acting in a moment of postpartum delirium could commit infanticide.

chapter abstract

This chapter reiterates that women's reproductive lives became a focus of an expanding state after the abolition of slavery, the onset of republicanism, and the strengthening of the federal government in early twentieth-century Rio de Janeiro. The criminal justice system initially mediated women's reproductive lives in the republican period. As the state expanded and federalized under Getúlio Vargas in the 1930s, however, women's reproduction moved under the auspices of the public health system, whose practitioners both expanded access to clinical care and extended the reach of the criminal justice system. The state restricted access to citizenship by reinforcing gendered and racialized hierarchies. The chapter then discusses how these historical trends continue to influence issues related to women's rights, abortion access, and public health in Brazil by focusing on the country's high rate of cesarean sections and the implications of the recent Zika virus epidemic on abortion and disability rights.