Tag Archive | "Brazil"

How a Mosquito Bite Differs By Two Weeks

Photo Credit: Andre Penner, AP

Photo Credit: Andre Penner, AP

Now that the Zika virus has been confirmed in mosquitoes of Miami Beach, concern about the spread of the disease in the United States has taken on new urgency.  Zika is a virus that is transferable by mosquito bite or sexual intercourse.  Generally, in adults, the virus is harmless—causing common cold symptoms in an infected person for about a week.[1]  But, the risks escalate exponentially if a pregnant woman is infected.  When diagnosed with the Zika virus, the unborn fetus carries up to a 13% chance of developing microcephaly—a permanent, incurable condition where a child is born with an undeveloped brain, leading to seizures, developmental delay of basic motor functions and speech, intellectual disabilities, decreased ability to learn and function; movement difficulties, inability to consume nutrition, hearing deficits, and inhibited vision. An otherwise normal fetus carries a .02 to 12% chance of developing the disease.

It is difficult to discuss the legal and medical treatment of Zika without broaching the subject of abortion. A woman infected with Zika obviously has two choices: (1) continue her pregnancy, carry the fetus to term, and give the child the best life possible, no matter the circumstances upon birth, or (2) abort the pregnancy to spare both her and her child the hardships—financial, emotional, psychological, medical, and physical—posed by microcephaly.  But, how much of a choice do women experiencing Zika complications really have?

Under the current federal abortion framework in the United States, the right to choose to have an abortion is fundamental before the point of fetal viability so long as the woman and physician conform  to valid state-imposed restrictions.[2] Post-viability, however, abortions are not permitted unless the procedure serves to protect the mother’s health or life. Moreover, many States ban all or most abortions later in pregnancy, regardless of current constitutional guidelines on the subject: banning the termination of pregnancy at twenty weeks, at viability, or in the third trimester or allowing a later-term abortion only to save a woman’s life.[3]

To understand the practical implications of the emergence of the Zika virus in the context of the abortion debate, we turn to Brazil’s response to the growing crisis. Because of a rich history of religious influence on its electoral systems and political composition, Brazilian policies mirror religious prohibition against abortion. In nearly all circumstances, abortion is a crime in Brazil, punishable by a sentence of three years’ imprisonment. A developing nation with one of the most restrictive abortion laws, Brazil’s government has been forced to adopt failing strategies to combat Zika. Before the threat of Zika, Brazil’s Ministry of Health concluded that illegal and botched abortions in Brazil outpaced legal and medically-necessary procedures by 100:1. Women faced the risk of infection, serious injury, or death as the result of a botched procedure. Since Zika arrived in Brazil in mid-2015, the scope of danger posed by an abortion has changed: the government has recorded 3,600 infected, pregnant women, all of whom are legally required to carry their fetuses to full term unless the fetus is confirmed to be missing a significant portion of its skull.  As the infection rate increases, the rate of illegal, unhealthy abortions—included but not limited to jumping off roofs and using unsanitary facilities—will only continue to increase. Without a Zika exception to abortion regulations, danger to pregnant women will only rise.

Brazil, compared to the United States, indicates that developing and developed countries alike are facing the same challenges with the rise of the Zika virus, posing both technological and legal challenges. If a woman is told on day one of her pregnancy that she is infected with the Zika virus, she has, at most, a 13% chance of her fetus being born with microcephaly. Doctors, however, (in Brazil and the United States alike) currently cannot detect microcephaly until late in the pregnancy via ultrasound. Hence, most of the time, a woman cannot be sure if her fetus will be born with microcephaly until too much time has lapsed for her to obtain a legal abortion, forcing women to bet on a 13% chance in the early stages of pregnancy.

Zika is but one example of how genetic disorders complicate abortion jurisprudence and the deeply personal choice inherent in the discussion.  Reacting to this moral conundrum in the political sphere, state legislators around the country are proposing legislation to ban abortion based on fetal abnormality. Texas, for example, is addressing an abortion ban at the 20-week mark; moreover, with a more conclusive microcephaly diagnosis at week 28, parents lose the choice to abort their fetus. We propose that Zika and the resulting microcephaly presents a heightened concern that justifies a further look into how abortion laws may need to be adjusted.  Some genetic disorders, such as Down Syndrome, may be discovered as early as 15 weeks of gestation, which is much earlier than the confirmation point for microcephaly. Further, the onset of microcephaly as a result of Zika is completely unexpected and difficult to predict; whereas, testing for other genetic disorders, like Down Syndrome, is routine and earlier in the pregnancy.  A woman may be infected with Zika and face the risk of her fetus having microcephaly in the first two weeks of pregnancy or in the last two months of pregnancy; it is completely random. Also, the conditions onset by microcephaly are much more debilitating and extreme than those of other genetic disorders like Down Syndrome, accounting for an almost complete loss of quality of life.

Here is the narrow issue in the Zika context:  What happens if a woman is infected with Zika post-viability, or is forced to make a decision about her pregnancy based on a 13% chance of a debilitating condition?  Zika is not necessarily a risk to the woman’s health but, rather, is a risk to the health of the fetus.  Such fetal risk is not necessarily in the abortion framework’s exception to the ban on post-viability abortions.  Again, an instance where law and medicine collide in this debate; thus, we would suggest that Zika is a phenomenon that the United States must confront and, in doing so, should consider carving out an exception to the legal ban on post-viability abortions to protect the fetus when the mother decides that it is the best decision to abort the pregnancy.

Max Solomon is a 3L at the Florida State University College of Law. Before law school, he received a BA in History and International Affairs and an MS in Political Science from the Florida State University. His legal and research interests include public international law, employment, and election law. Outside of law school, he sits on the ABA Committee for Constitutional Affairs and Social Justice, researching legal and public policy issues related to election law, voting rights, and legislative term limits. He hopes to find a career that combines his interests in international affairs and helping the disadvantaged navigate the legal field.  He currently works at an elder law firm in Tallahassee, Florida.

Melanie Kalmanson graduated Magna Cum Laude from the Florida State University Law Review in May 2016. In law school, she served as an Executive Editor on the Florida State University Law Review and a Governor on the Florida Bar Young Lawyers Division Law Student Division and has several pieces published focusing on constitutional law, specifically individual rights, and family law, specifically child custody and domestic violence. Her long-term career goals include becoming a law professor.

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[1]  Though recent research suggests that there may be more serious, long-term effects from Zika that become gradually apparent.

[2] Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992); Roe v. Wade, 410 U.S. 113 (1973).

[3] For detailed information on individual state legislation on abortion, see https://www.guttmacher.org/state-policy/explore/state-policies-later-abortions.

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Critical Analysis: Brazil’s Oil and Land Use Rights

Would you like to strike it rich through the purchase of land use rights? Consider bidding on the next oil and gas auction by the Brazilian government. Two of the most popular offerings by Brazil are described below.

Sedimentary Basin

Brazil enacted Law No. 9.478 (“Petroleum Law”) in 1997 to establish Concession Agreements, the contracts for the extraction of oil from sedimentary basins. Under the Concession Agreement, a bidder would agree to undertake the risk of exploration in exchange for the exclusive right for the use of a piece of land. The government created the National Petroleum Agency (“ANP”) specifically to supervise the bidding process for oil Concession Agreements.

An oil platform in Brazil. Image Source: AFP/Getty Images

An oil platform in Brazil. Image Source: AFP/Getty Images

The Petroleum Law has three major requirements for foreigners interested in extracting oil from Brazil. First, the foreigner must incorporate and maintain headquarters in the country. Second, the bidder must pay the ANP a signing bonus, royalties, and an occupation fee. The signing bonus is established in the notice to bid and is due at the Concession Agreement’s execution. Royalties vary between 5 and 10%, depending on geological risks and production expectations. The occupation fee is required yearly and based on per square kilometer of land. Third, foreigners must agree to use a minimum percentage of goods and services from Brazilian suppliers. Each foreigner must identify in its bid the local content percentage intended during the exploration and development phases.

Pre-Salt Region

Since Brazil discovered a potentially lucrative new source of oil in the country’s pre-salt regions, it enacted two new laws to manage those types of oil extractions. Law No. 12.304 created the agency, Pre-Sal Petroleo S.A. (“Pre-Sal”), to administer the new Production Sharing Agreements (“PSA”). Article 10 of Law No. 12.351 mandates a joint venture between the government controlled oil corporation, Petrobras, and foreigners on all auctioned pre-salt blocks.

The eleventh round of bidding in October 2013 was the first time Brazil offered the new PSAs. Foreigners must bear all the risks for developing the new area, which is estimated to cost over 175 billion reais or $82 billion US over the 35-year terms of the PSAs. If oil is discovered in a pre-salt block, the development and production expenses will be reimbursed from a percentage of oil sales. The remaining profit will be shared between Pre-Sal and the foreigner. Unlike the Concession Agreement, Pre-Sal only requires a signature bonus to be paid after signing the PSA and royalties, both of which cannot be reimbursed by oil revenue. Like the Concession Agreement, there are also minimum local content requirements for the pre-salt block bidding.

Because of the onerous requirements by Pre-Sal, there were few bids for the pre-salt regions compared to the offshore sedimentary basins’ 71 bidders. Eleven foreigners registered but only one consortium bid. The bidding consortium consisted of the sharing of equity stakes by Royal Dutch Shell (20%), France’s Total S.A. (20%), China National Petroleum Corporation (10%), China National Offshore Oil Corporation (10%), and the remainder to Petrobras as required by law. Since oil sales from the pre-salt region will probably not be available until 2021, most foreigners are probably waiting to see if anything is discovered by the consortium.

Unfortunately, no U.S. entities made bids in the May 2013 sedimentary basins round due to accusations of the United States spying on Petrobras. The Brazilian government owns a large share of equity (48.89%) in Petrobras. Brazil uses Petrobras to lower gas prices for the country as well as to promote economic growth in remote regions through the building of refineries. In essence, the Snowden leaks made it seem as though the United States was spying on Brazil through Petrobras.

Helen Lee is a 3L and a staff editor for the Denver Journal of International Law & Policy

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Critical Analysis: Rio+20: World Leaders Gather to Address Sustainable Development While Resource Privatization Runs Amok

Cristo Redentor overlooks Rio and its Summit (BBC)

This week world leaders, numerous participating governments, non-government organizations, and members of the public sector will convene in Rio de Janeiro, Brazil for the Rio+20 Conference on Sustainable Development. Rio+20 – short for The United Nations Conference on Sustainable Development – marks the 20th anniversary of the 1992 United Nations Conference on Environment and Development (UNCED), in Rio de Janeiro, and the 10th anniversary of the 2002 World Summit on Sustainable Development (WSSD) in Johannesburg. An estimated 50,000 people from 190 countries, including 130 leaders, are expected to attend.

Rio+20 is a joint endeavor with the entire United Nations system and this conference, if successful, will result in a focused political document. The Rio+20 attendees are convening to discuss global economic growth efforts that will not harm the planet and other issues such as jobs, energy, sustainable cities, food security and sustainable agriculture, water, oceans, and disaster readiness.

Rio+20 is important because it examines how to reduce global poverty while preserving the planet’s life-support systems. Observers say that the gap between the ecological footprints of rich and poor nations continues to widen while global consumption of natural resources, carbon emissions and poverty have all continued to increase. The conference’s host, Brazil, has been struggling with the preservation of the Amazon. There, environmental activists clash with wealthy landowners who advocate for maximum exploitation of the precious Amazon.

Brazil is not the only country working to balance a prosperous economy and a fragile environment. As we already know, money and power often trump sensible policy around the world. Under current rules, polluters in many countries can emit greenhouse gases without penalty. What is good for the general welfare of the people is not always good for business. And critics have raised a skeptical eyebrow at the high level of private sector participation at the Rio+20 conference. One of the priority issues for many developing countries are the economics of and access to energy. Seeing the ever-growing need for energy access and the trend in sustainability efforts, many prominent energy companies around the world plan to attend Rio+20. At the conference, companies will have an opportunity to showcase their technological solutions for green energy growth. They will be allowed to attend high-profile meetings, events, participate in substantive dialogue, and make public comments about green energy growth.

Some view the strong private sector presence as the international community using any resources available to solve food, water, and energy deficiencies around the world. Meanwhile, critics argue that Rio+20’s green economy agenda is merely a façade and is truly driven by private sector kingpins wishing to muscle their way into public utilities services by privatizing nature and deregulating industry in order to turn a profit.

President Obama will not be attending. British Prime Minister David Cameron, German Chancellor Angela Merkel, and the entire European Parliament have also declined to attend. Such absences have brought some to question the significance of the conference at all. Skepticism aside, the world’s natural resources could potentially be gravely affected by the result of Rio+20 and remaining conscientious is only to our benefit.

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