The "ought", the "is" and reproductive reality: a case study of the law and contraceptive practice in Brazil

This dissertation undertakes a qualitative analysis of Brazilian law and the Brazilian legal system in an effort to understand how the law has contributed to contraceptive practice in Brazil. Contraceptive practice is defined by four outcomes: 1) dominant and increasing use of female surgical sterilization, often performed in conjunction with a cesarean section birth; 2) decreasing use of the pill; 3) extremely limited use of other reversible methods (hormonal injections, diaphragm, IUD); and, 4) no use of Norplant™. The dissertation examines five areas of law: family planning law and policy; government approval of drugs and medical devices; products liability; medical professional liability; and, medical malpractice. The dissertation draws on the legal realist tradition in the sociology of law. For each area of law under consideration, the dissertation examines four factors: the “ought” (the law on the books); the “is” (the law in action), the role of civil society actors (the Catholic Church, feminist NGOs and consumer NGOs); and, the role of the medical profession. Data were gathered between 1998 and 2000 in Brasília, São Paulo and Rio de Janeiro. The law on the books is found in the text of the constitution and federal laws. The data on the law in action, civil society actors and the medical profession were collected in 47 interviews, from observation of government agencies, from a court opinion, from disciplinary proceedings and advisory opinions issued by medical councils and from the published literature. The dissertation concludes that the five areas of law via the four factors considered helped to create and perpetuate the existing contraceptive use regime. The evidence suggests that there are at least seven general processes whose unique manifestations in the Brazilian context contribute to institutional deficiencies. These deficiencies, in turn, result in a social and legal order that favors the use of female surgical sterilization performed at the time of a cesarean section birth. These general processes include: public participation; resource issues; respect for the law; oversight and accountability; decentralization; the medical culture and, the role of the judiciary. The results confirm the important contribution of the law, legal processes and institutional deficiencies to the way contraception is practiced.