Introduction for A Miscarriage of Justice

Introduction

ON AN EARLY OCTOBER MORNING IN 1912, twenty-nine-year-old Isalina Vieira went into labor in Brazil’s capital city of Rio de Janeiro.¹ Accompanied by her female neighbor, Vieira went to the nearby public maternity hospital, Laranjeiras Maternity Hospital (Maternidade Laranjeiras), but upon their arrival, the night doorman notified the women that the doctor had refused Vieira’s entry—all the beds were occupied (Image 1).² Soon after, Vieira delivered her child on the hospital’s sidewalk, and it died minutes later. A municipal guard, who arrived after the birth, returned to the hospital for help, but the doctor again denied Vieira access. An ambulance later transported Vieira to another charity hospital for medical assistance. When a police officer (comissário) came to the scene, he spoke with Vieira’s friend and the guard who had assisted the women, sending the neighbor and the infant to the municipal morgue for a death certificate, as, in his words, “no crime was suspected.”³

The officer then notified his district police chief, who rejected his subordinate’s decision and opened an infanticide investigation. The chief questioned Vieira and her friend (both illiterate) as well as the doorman, several police officers, and the hospital’s physicians. Vieira testified that she was married but had been separated from her husband for twelve years, implying that the child was not his. Both women declared separately that while the child was born alive, it had fallen to the sidewalk during the birth after which the umbilical cord had ruptured. The medical student who had turned away the laboring Vieira told the police that he had been loath to break the hospital’s occupancy regulations. But the student’s rigid decision was not his alone to make. The supervising physician told the police that turning patients away “could be reproduced, because the number of beds the Maternity Hospital has is very small in relation to the women [who seek out its services].” The physician also refuted the idea that makeshift arrangements were possible in a situation like Vieira’s, “a thing that should absolutely not be utilized in his Hospital, whose cleanliness [is] indispensable for the wellbeing of the patients.”⁴

IMAGE 1 ​Façade of the Maternidade Laranjeiras, n.d. SOURCE: Museu da Imagem e do Som, Rio de Janeiro (MIS).

The police autopsy concluded that the cause of death was due to four factors: a premature delivery at eight months gestation, a ruptured umbilical cord, a small skull fracture, and the “omission of the necessary care.” The last clause, taken directly from criminal legislation, served as the motivation behind the investigation. But the police chief believed that the crucial factor required for a conviction was absent—the intent to kill. He argued that witness testimony had proven Vieira would not have gone to the hospital if she had planned to murder her child. While the district chief may have believed that Vieira’s sexual and reproductive life lay outside of the established norms of “proper” female sexual behavior—virginity or chastity outside of marriage and fidelity and motherhood within it—he believed she was innocent of infanticide.

Vieira’s tragic delivery, the ensuing police investigation, and her eventual exoneration exemplify the intersecting medical, legal, and social forces that shaped poor women’s reproduction in early twentieth-century Rio de Janeiro—Brazil’s capital city and the country’s center of legal and medical decision making. Vieira had gone to one of the few institutions that provided impoverished women free birthing facilities at the turn of the century. The hospital’s insufficiencies, however, demonstrate that obstetricians’ efforts to expand reproductive healthcare remained inadequate for the city’s poorest women, and the physicians’ callous behavior highlights the precarious and perhaps unethical state of clinical care.⁵

An uneven development of institutional medical care was not the only factor that shaped Vieira’s case. Lawmakers had recently rewritten criminal law with the Penal Code of 1890 (in effect until 1940), expanding criminal responsibility in relation to infanticide and clarifying its parameters. These laws allowed the police chief to investigate whether Vieira was criminally responsible for the death of her infant simply because she let it fall to the sidewalk. A professionalizing police force seized upon these new laws, and police-community interactions with residents like Vieira solidified the force’s presence in the everyday lives of Cariocas (residents of the city of Rio de Janeiro) in the early twentieth century. The police chief brought Vieira into contact with a judicial system ill-equipped to deal with the unfortunate but common event of neonatal death that marked many Brazilian women’s reproductive lives at the turn of the century. Yet the police’s actions proved contradictory in relation to Vieira’s case. The district police chief, initially suspecting infanticide, later took Vieira’s testimony into account to conclude that she had not committed a crime. While she faced no punitive legal response, the investigation questioned Vieira’s sexual life and subjected her to unnecessary police and community scrutiny.

Vieira’s pregnancy and delivery did not occur in a social vacuum, and witnesses’ involvement in the case further underscores the interpersonal and community relationships that shaped the way Vieira experienced the death of her child. On the most intimate level, Vieira was separated from her husband, and she never identified the child’s father. Yet female friendship proved crucial in the absence of a partner, demonstrating the importance of social support networks in women’s reproductive lives. Vieira’s female friend had escorted her to the hospital in the middle of the night. There, she begged the hospital’s on-duty personnel to admit Vieira because “she was very sick [passando mal].” Vieira’s friend thus served as a liaison to the medical community in a moment of crisis. Her friend also communicated with the on-duty municipal guard, who initially “was suspicious” of the two women standing in front of the hospital. Once he realized the emergency, however, he called his colleague, who helped Vieira to the hospital and her friend to the morgue.⁶ In turn, the male guard’s favorable testimony dissipated any lingering doubts in the police chief’s mind, hinting at the gender norms surrounding the incident. Taken as a whole, Vieira’s case embodied the convergence of inadequate medical care with poor reproductive health outcomes, novel criminal legislation with overzealous policing, and community solidarity with longstanding gendered hierarchies.

A Miscarriage of Justice is a feminist history of reproduction that centers the lives and deaths of women like Isalina Vieira in its understanding of the past. It traces the multiple reasons behind women’s reproductive decisions over time, historicizing the legal, medical, and personal trajectory of reproduction in Brazil. Vieira was just one of the many women whom the Brazilian state investigated for allegations of fertility control after the end of slavery and the onset of republicanism in turn-of-the-century Rio de Janeiro. Her infanticide investigation thus highlights the centrality of women’s reproduction to Brazil’s expanding state apparatus and political agenda in the early twentieth century.

In 1888, the country became the last in the Western Hemisphere to abolish slavery. Brazil’s gradual abolition process had been based on enslaved women’s reproductive capabilities—from the first attempts to end the slave trade in the 1820s to its final cessation in 1850; and from the 1871 Law of the Free Womb, which conditionally freed all children born to enslaved mothers, to final abolition in 1888.⁷ In 1889, a bloodless military coup overthrew the Brazilian monarchy (1822–89) and instituted a republican government, the First Republic (1889–1930), a decentralized federation in which states and their elite representatives held considerable political power.⁸ The expansion of republican forms of governance continued to dictate the parameters of women’s reproduction. In 1890, lawmakers passed their first piece of legislation, a penal code that increased women’s criminal responsibility for the crimes of abortion and infanticide and criminalized the illegal practice of medicine (both healing and religious practices and unlicensed practitioners including midwives) for the first time. A year later, the Constitution of 1891 shut women out of formal citizenship by implicitly restricting voting to literate males. In 1916, the country’s first civil code protected the property and inheritance rights of fetuses while curbing women’s own civil rights, subordinating their position in the family to their husbands or fathers. For their part, municipal and national public health programs expanded their efforts to improve maternal-infant health through well-baby clinics and the regulation of wet nursing, improving access, if unevenly, to these services at the same time that they naturalized maternal instincts and gendered divisions of labor. Politicians, jurists, and physicians (often one and the same) clearly understood the value of women’s reproduction as their country headed into a new century.

Medical and legal prescriptions on childbirth and fertility control, alongside women’s embodied experiences of gendered laws and inequalities, reveal an expanding, interventionist Brazilian state. The simplest explanation for the centrality of women’s reproduction to early twentieth-century politics is that women reproduced the country that elites were intent on shaping after the recent abolition of slavery and the end of monarchical rule. Women’s reproductive capabilities—their ability to conceive and raise future citizens and laborers—became critical to the growth and consolidation of the twentieth-century Brazilian state. But women’s reproductive capabilities also worked on an abstract level. Perceptions of women’s reproductive agency, whether real or imagined, influenced civil and criminal law and medical practice and policy. Most important, women’s reproductive experiences underpinned the way that Cariocas of all classes and colors reinforced or rejected shifting understandings of race, gender, and sexuality.

The end of slavery and the rise of republicanism forced all women’s reproductive lives—but particularly those of poor women—into regimes of institutional regulation, as various governmental and philanthropic entities intervened in women’s reproduction. On the one hand, obstetricians and public health reformers worked to medicalize pregnancy and childbirth. Municipal and national governments as well as philanthropic agencies showed a growing interest in creating a public health infrastructure geared toward maternal-infant health. In part because the science was rudimentary—the medical advancements that would drastically improve women’s reproductive health, including penicillin and blood transfusions, only occurred in the 1940s—and in part because the government did not adequately fund projects, health officials never effectively improved or expanded obstetric services, and high rates of miscarriage, stillbirth, and maternal mortality continued. Republican-era efforts, however, set the stage for later improvements in maternal-infant health that came about mid-century.

On the other hand, the police and the criminal justice system increased their surveillance and prosecution of abortion and infanticide. The Rio de Janeiro police force consolidated and expanded in the first several decades of the republican period, and its administrative structure, which entailed providing both social services such as admittance letters to public hospitals and criminal enforcement duties such as investigating abortion, meant that the force simultaneously played the role of medical first responder and jailer. Moreover, criminal courts began prosecuting abortion and infanticide with more frequency, although systemic inefficiencies hampered effective judicial practice across the city. Ultimately, this punitive focus created a culture of condemnation surrounding poor women’s pregnancy and childbirth that extended beyond elite discourses into the popular imagination. The republican political order intensified its surveillance of women’s reproductive bodies in both concerted and unconscious efforts to establish political hegemony, endeavors that channeled the institutionalization of longstanding gender and racial hierarchies into new forms.

The expanded state surveillance of women’s reproduction during the First Republic set the stage for later government action. The republican political status quo, in which regional elites negotiated power-sharing arrangements that excluded most Brazilians from participatory democracy, ended in 1930. By then, the Rio de Janeiro police force had institutionalized, the judicial system had expanded, and physicians had professionalized and become a powerful lobby in the public sphere. The so-called Revolution of 1930 was a bloodless coup that brought to power as provisional president Getúlio Vargas, a politician from the southern state of Rio Grande do Sul. In the decade that followed, Vargas became increasingly authoritarian, a tendency that culminated in his dictatorial Estado Novo (1937–45). Vargas’s nationalist rhetoric and policies emphasized the importance of women’s reproductive capabilities to the nation, and maternal-infant health became a principal concern of the centralizing federal government.⁹

The criminalization of fertility control, although never an explicit part of the Vargas agenda, underlay these public policies toward women’s health. State attention toward fertility control during the Vargas era was a more diffuse form of state power that cannot be traced to a particular government program. In other words, while the Vargas-era state may not have prioritized cracking down on the practices of abortion and infanticide, the threat of these practices underpinned all maternal-infant healthcare initiatives. In fact, by the onset of the Estado Novo, the policing of women’s reproduction had shifted from the judicial to the public health realm. State bureaucracy had expanded; as a result, official efforts at monitoring women’s reproductive decisions were made in the medical and not the legal sphere. The law continued to criminalize fertility control, but physicians, and not the police, were now on the front lines. The writings and actions of physicians and legal practitioners demonstrate that combating abortion was built into the very public health and state apparatuses created to improve women’s reproductive health.

Brazilian women’s early twentieth-century reproductive negotiations are part and parcel of a larger global history of modern state formation. We cannot separate women’s reproductive practices—from planning for a wanted pregnancy to undergoing an abortion—from larger political processes and gendered power dynamics.¹⁰ In Brazil, and across the western world, the late nineteenth and early twentieth centuries marked a period of increased public scrutiny of women’s reproductive lives. Expanding states began criminalizing abortion, and urbanization, immigration, and industrialization pushed women’s fertility into the public consciousness. The centrality of women’s reproduction in transitional political regimes, whether post-abolition, post-colonial, or post-democratic, resonates outside of Brazil.¹¹

In turn-of-the-century France and the United States, for example, debates over the future of the national “race” reflected larger political concerns over women’s bodies and the reproduction of the citizenry in the private sphere.¹² For their part, twentieth-century states from Chile to Iran allowed women symbolic access to citizenship by recasting women’s maternal identities as crucial to national development.¹³ Nation-states “extolled the private virtues of domesticity” and through this discourse allowed women to enter the public sphere.¹⁴ As the century progressed, Cold War debates over the spread of communism centralized family planning discourses and policies within international politics.¹⁵ Women from Peru to Japan gained access to contraceptives, but new medical technologies did not necessarily (or ever) result in women’s expanded rights.¹⁶ Of course, women’s fertility was not the only factor at stake. Over the first half of the twentieth century, debates surrounding the quantity, quality, and distribution of the world’s population fueled global strife over imperial projects of territorial expansion—not to mention two world wars.¹⁷ Yet it is telling that current debates over nationhood, globalization, and development continue to center on women’s reproduction.¹⁸

Despite the centrality of women’s reproductive practices to the trajectory of state expansion across the globe, historians often separate their analysis of fertility control from discussions of both pregnancy and childbirth and reproductive health trends like maternal mortality and stillbirth rates. In Brazil, for example, a rich historiography explores maternal-infant health policies and elite conceptions of motherhood during the early twentieth century.¹⁹ Scholars have also begun exploring women’s practices of and state policies toward abortion, infanticide, and contraception.²⁰ Yet the interconnected, and perhaps inseparable, nature of women’s reproductive health with fertility control remains underexplored.²¹ 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. A Miscarriage of Justice departs from these approaches by analyzing medical, legal, social, and political trends in early twentieth-century Rio de Janeiro in relation to women’s reproductive experiences—miscarriage and abortion, stillbirth and infanticide, pregnancy and the birth of a healthy infant. When Isalina Vieira went to the hospital to give birth, for example, all accounts demonstrate that she wanted her child. However, the infant’s neonatal death evidences how a negative outcome easily accompanied if not a wanted at least an accepted pregnancy.

In the end, a detailed exploration of legal and medical policy toward women’s reproductive health must still privilege women’s own experiences. In this book, I demonstrate the specific legal and medical mechanisms and individual negotiations that influenced the everyday forms of state formation in Rio de Janeiro and ultimately the political trajectory of early twentieth-century Brazil.²² This book intervenes at the intersection of social and political history from the perspective of women’s reproduction, opening up new ways for thinking about the gendered intersection of state structure and individual experience across the globe.

Gender, Race, and Citizenship in Early Twentieth-Century Brazil

Brazil holds the singular status as the last country in the Western Hemisphere to abolish slavery, a development that coincided with the end of monarchical rule and the implementation of (restricted) democratic politics. This set of events presents a specific way to look at race, gender, reproduction, and the state. Scholars of the Atlantic world have examined the centrality of women’s reproduction and sexuality to the institution of slavery, its abolition, and the forms of post-emancipation societies.²³ Unlike many post-abolition societies, Brazil was not under the yoke of colonial rule. Democratic ideals and full emancipation went hand in hand. So too did new forms of social control. Post-abolition governmental approaches toward reproduction in Brazil were part and parcel of the Republic’s cementing of new forms of power. Rather than unveiling the “intimacies of empire,” however, the Brazilian case uncovers the intimacies of the state.²⁴ Moreover, in contrast to the United States, Brazil’s rival slave-owning power, post-emancipation governance did not explicitly exclude or restrict black lives through Jim Crow laws or sterilization practices.²⁵ But the on-the-ground interactions between the criminal justice system, the medical profession, and poor women of all colors in the realm of reproduction demonstrate how racial and gender biases—for example Afro-Brazilian women’s supposed hypersexuality—became cemented into democratic governance after abolition. The republican Brazilian state curbed full citizenship through its regulation of reproduction, and I contend that reproductive policies and politics continued to dictate the legacy of slavery in all women’s lives.

The capital of Rio de Janeiro was the center of political decision making, and women’s reproductive negotiations with an expanding state within its borders served as a model for gendered and racialized interactions across the country. At the turn of the twentieth century, three key processes transformed Rio de Janeiro for women (and men) of all classes and colors: exclusionary democratic principles, demographic and urban changes, and the reformulation of racial, class, and gender ideologies. In the political realm, the republican implementation of liberal politics did not increase mass political participation, and it resulted in the maintenance of formal citizenship as a white and masculine realm.²⁶ The Constitution of 1891 enshrined equality regardless of color or race and removed property requirements for male voters. Yet it still excluded the majority of the population from political participation through literacy requirements for suffrage, which, coupled with the near absence of a public education system, effectively shut the door of political citizenship for poor and working-class men of all colors.²⁷ The Republic supported democracy and racial inclusion on paper but denied them in practice.²⁸ The continuation of masculine patronage networks that had long dominated nineteenth-century politics further marked the political sphere, with male elites in the southeast of the country creating a one-party system to share power among its members.²⁹ Moreover, political violence and corruption marked the republican era, with increased occurrences of both informal and formal labor unrest in the 1910s and 1920s and subsequent government repression.³⁰

While the republican regime masked its racial exclusions in the language of equality, it explicitly restricted women’s formal citizenship. In the debate surrounding the passage of the constitution, some legislators initially considered extending suffrage to wealthy, educated, and unmarried women—elite white women who were not legally under the control of their husbands. Nevertheless, the document’s exclusion of any specific reference to women meant that after its passage, male politicians barred women from the rights of suffrage and holding political office.³¹ The Civil Code of 1916 further codified women’s inequality, subordinating their decisions to the male head-of-household.³² Either the father or the husband was in control of a woman’s reproductive capacity. The code also theoretically elevated fetal rights above the mother’s, making the state, for the first time, a patriarchal enforcer of fetal life. Within this conservative and masculine milieu, early twentieth-century feminist movements for gender equality embraced maternalist claims to gain access to legal and political rights in Brazil—and across Latin America.³³ Support of the nuclear family, and thus motherhood, was the manner through which elite white women entered the public sphere.

Political shifts in the 1930s changed the specific ways citizenship was gendered and racialized, but its underlying biases remained the same. After coming to power in 1930, Vargas worked to centralize a deeply federalized nation with the city of Rio de Janeiro at its center. He suppressed major regional uprisings and expanded patronage networks by putting loyal allies in charge.³⁴ As the years progressed, Vargas took on a populist mantle to expand his base, providing social and economic rights in exchange for popular support. His corporatist model granted specific social groups—industrial workers, mothers—political influence through personal ties based on group identity. Thus, protective labor legislation and political reforms such as women’s suffrage for literate women over the age of twenty-one (1932) were coupled with expanded state control, and in the realm of gender these policies reinforced the maternal nature of women’s citizenship. Vargas included white women and working-class men of all colors in new understandings of national citizenship to maintain political control and create a new “Brazilian” identity. The truly impoverished, however, continued to exist outside the structures of state patronage. When he dissolved parliament and instated his corporatist dictatorship in 1937, Vargas co-opted labor unions and eliminated the right to vote for all Brazilians, effectively demobilizing any radical action. Vargas eliminated any “rights” women or the working class had won with the end of democratic governance.³⁵

As educated, white women struggled for full citizenship within the comforts of their class, poor women, especially immigrants and women of color, saw physical and demographic transformations in Rio de Janeiro further circumscribe their tenuous hold on citizenship. In particular, immigration, urbanization, and the rise of a wage labor force altered the city’s makeup—and women’s roles within it. After abolition, large numbers of formerly enslaved people left coffee plantations in the interior of the state and migrated to the city as immigrants arrived from Europe.³⁶ For instance, in 1890, 30 percent of the city was foreign born and 26 percent were migrants from other states.³⁷ Of the city’s entire population in that year, over 37 percent were of African descent. Migration and immigration caused the city’s population to almost double between 1872 (274,972) and 1890 (522,651) and triple between 1890 and 1920 (1,157,873). By 1940, the population had reached nearly 1.8 million inhabitants.³⁸ Before abolition, both enslaved and free women labored mainly as domestic servants within the city’s limits. Emancipation freed all enslaved people (nearly 18 percent of the city’s population in 1872), but most poor women of color—who had composed half of the city’s enslaved population on the eve of abolition—continued to labor informally as domestics into the twentieth century.³⁹

Rapid growth resulted in the rise of cramped and unsanitary housing conditions and the continuation of epidemic diseases such as yellow fever that had long ravaged the capital. In response, urban reformers transformed the city, knocking down tenement housing and pushing poor residents to hillside favelas or to distant suburban communities.⁴⁰ Although officials never explicitly stated their racial politics, governmental attempts to urbanize and sanitize Rio de Janeiro had racial subtexts, for white elites hoped to first contain and then eliminate the black and brown presence in the city’s center.⁴¹ Public health officials, for their part, redoubled their efforts to combat infectious disease through programs such as mosquito control and mandatory vaccinations.⁴² And whereas various philanthropic and public health agencies developed the city’s reproductive health infrastructure, it never met the needs of a growing population. Urban planning and public health policies were a key aspect of state expansion; while improving countless lives, these policies also reinscribed inequality and hierarchy into the built landscape of the city (Image 2).

During this period of political and structural change, more insidious sexist and racist ideologies continued to restrict women’s access to full citizenship. In Brazil, reconfigurations of patriarchal power based on maternalist views of women’s sexual honor—that women’s sexuality was strictly tied to their identities as mothers—intimately shaped early twentieth-century understandings of citizenship.⁴³ Feminist scholars define patriarchy as a man’s governance of his family through economic and emotional power.⁴⁴ In western “liberal” democracies, the hierarchical organization of familial relations and private property extends from the home into the public realm, structuring all aspects of social, political, and economic life.⁴⁵ According to Wendy Brown, a patriarchal state is one whose “institutions, practices, and discourses” become “bound up with the prerogatives of manhood in a male-dominant society.”⁴⁶ Of course, modern states are not monolithic institutions, but rather, “unbounded terrain of powers and techniques, an ensemble of discourses, rules, and practices, cohabiting in limited, tension-ridden, often contradictory relation with one another.”⁴⁷ In Rio de Janeiro, public health agencies, criminal courts, and legislatures; lawmakers, physicians, and mid-level bureaucrats; and their respective policies, practices, and ideologies all formed the complex matrix within which women negotiated their reproductive lives.

Brazilian state policies toward women’s reproductive bodies also served and bolstered patriarchy in racialized ways. They ensured property rights, increased the workforce, reinforced gendered divisions of labor, and criminalized the reproduction of certain individuals or groups. In some ways, republican policies regarding gender and sexuality were nothing new. Elites had long focused on Brazilian women’s reproductive capabilities. Slave owners and legislators, for example, debated enslaved women’s (in)ability to reproduce the slave labor force throughout the nineteenth century, which resulted in a gradual abolition process based on their wombs. Of course, Brazilian slave owners and political elites also believed in the supposed hypersexuality of black women’s bodies. While legislators gave enslaved women the right to both sexual honor, for instance prosecuting rape, and maternal honor, by hearing their claims for their children’s freedom, they also viewed women of color as more inclined to lose that honor through unbridled sexuality or through “bad” mothering practices.⁴⁸ Black female sexuality was juxtaposed with the sexual honor of white women, whose chastity was the foundation of the Brazilian family throughout the colonial and imperial periods—as a cultural ideal through which men’s honor was sustained, as the physical manner by which men defined and controlled familial inheritance and consolidated and perpetuated political control, and as a social method of reinforcing stratification as elite families had more resources at their disposal to cover up any deviations from the norm.⁴⁹

IMAGE 2 Maps of the cities of Rio de Janeiro and Niterói, ca. 1930 SOURCE: Geographisches Institut J. Köhler. Cidades de Rio de Janeiro e Nictheroy. [Hamburg: geogr. inst. j. köhler, between 1930 and 1939, 1930] Map. https://www.loc.gov/item/2012593128/.

But post-abolition labor changes and evolving social mores threatened the colonial and imperial gender hierarchy in which the family patriarch (as father, husband, or slave owner) controlled the private sphere upon which his individual honor and social class was based. To be sure, women’s sexual honor continued to play an important stabilizing role in the supposed natural gendered and social order of the republican period.⁵⁰ Brazilian (and Latin American) definitions of female sexual morality still demanded virginity or chastity outside of marriage and fidelity within it.⁵¹ Yet a woman’s honor became not only about virginity but also about overall behavior, including whether or not she went out alone and how and where she spent her free time.⁵² Moreover, motherhood remained a requisite part of women’s “honorable” sexuality.

As Sueann Caulfield has demonstrated, honor in early twentieth-century Rio de Janeiro was not a static concept but rather “constructed through dynamic and ongoing historical processes.” Despite “formidable challenges” by Cariocas of all classes and colors to colonial and imperial understandings of women’s honor, “family honor not only survived in twentieth-century law, but gained new prominence as Getúlio Vargas consolidated power after 1930.”⁵³ While longstanding definitions of familial patriarchy continued, twentieth-century jurists and politicians shifted from using idioms of sexual honor to reinforce class and racial differences or to consolidate property; rather, they employed those same discourses to promote cultural unity and national identity. By the late 1930s, Vargas had linked these same familial definitions of female honor to national ones. Sexual honor for all women was central to their roles as citizens, and women who wanted to be part of modern Brazil had to act accordingly. As the “parameters of patriarchal authority” in the family narrowed, wide avenues of gender inequality opened up within state bureaucracies.⁵⁴ The improved capacity of the state increased women’s interactions with these patriarchal norms, as its institutions—and the men who worked for them—enforced sexual morality.⁵⁵ We can see changes in this model in the contradictory police actions toward Vieira. The district police chief, initially suspicious, proved more understanding after listening to her case. In this sense, the police chief acted as Vieira’s father (or absent husband), first condemning her actions but eventually protecting her honor.

Both legal and medical efforts overlapped in the reconfiguration of women’s sexual virtue and maternal honor. To co-opt longstanding familial patriarchal practices for the good of the nation, first the republican government and then the Vargas regime worked to control familial structures, secularizing marriage and birth registries, while reinforcing patriarchal familial relations with civil law reforms. Republican criminal legislation also retained the patriarchal understandings of women’s legal responsibility that had defined its nineteenth-century counterpart. For example, maternalist “honor clauses” reduced prison time for the crimes of abortion and infanticide if the mother had practiced them to save her honor.

The practice of criminal law further reinforced women’s unequal citizenship, and in the courts, republican legal practitioners began supporting the positivist view that legal responsibility (and juridical personhood) depended on individual circumstances, shifting emphasis from the crime to the criminal and giving themselves discretionary power over judicial outcomes. In infanticide cases, for instance, juries decided that only a mother in a “momentary state of madness” could commit infanticide, thus acquitting most women of all charges. Legal practitioners and the male public (as juries) cast women as helpless, irrational victims. As a result, women most often avoided official jail time for abortion and infanticide. Despite women’s theoretical possession of full legal capacity in criminal law, the practice of the law relegated them to the realm of incapacitated dependent. The courts’ acknowledgment of criminal responsibility would have bestowed a level of agency and rationality onto women’s practices of fertility control, and the state had no interest in doing so. In the end, this “discourse of inequality” allowed the legal system to implement disparate treatment toward certain population groups, limiting full access to citizenship without explicitly invoking racial or gender restrictions.⁵⁶ By 1940, Vargas had embraced positivist law, cementing the state as the sole arbitrator of the differential application of the law based on individual characteristics. Thus, as Brodwyn Fischer argues, by the mid-twentieth century, uneven access to rights and not overt discrimination defined unequal citizenship.⁵⁷

The legal “restructuring of patriarchy” was supported by the professionalization of the medical field and the integration of its practitioners into the political structures of the state.⁵⁸ The medical profession—as a specialized lobby, as individual physicians, and as fathers and husbands—worked in parallel to or enmeshed within the judicial system. In the late nineteenth century, the medical profession, in particular obstetricians, began defining gender roles and the Brazilian family in scientific terms. By the 1920s, women’s health specialists were promoting the idea of scientific motherhood, which sought to control the way that women cared for their children.⁵⁹ And during the Estado Novo, physicians had successfully lobbied to include this ideology within national policy. Obstetricians’ writings about and interventions into the family centered on women as reproducers and civilizers of the nation. It was through women that doctors would mold the new generation of citizens. If obstetricians were unanimous in their valorization of motherhood, they were equally condemning of any form of birth control and the practice of abortion. As a Catholic nation, Brazil’s legal and medical approaches to abortion and infanticide were connected to church dogma.⁶⁰ Yet the institutional church had a weak presence in the country, and legal prescriptions and medical practice, although influenced by church teachings, acted independently of them. In fact, jurists and physicians appropriated traditional Catholic teachings on gender roles, fetal life, and fertility control into their new “modern” and secular writings in the early twentieth century. But the underlying patriarchal views toward women’s sexuality remained unchanged. Moreover, popular religiosity and Catholic mores permeated the thinking of all social classes of Cariocas, who acted upon their own understandings of gender, race, and sexuality.

Brazil’s four-century history of slavery meant that in the period following abolition, racist science shaped physicians’ valorization of motherhood and rejection of fertility control. Most generally, the global scientific climate of the late nineteenth century influenced Brazilian physicians’ approach to race, regardless of gender. Leading medical thinkers employed imperial ideologies of scientific racism to reconceptualize racial hierarchies and ultimately create “differential access to citizenship.”⁶¹ As in other Latin American nations, physicians reinvented colonial and slavocratic inequalities through new, hierarchical classifications of race based on “objective” science.⁶²

After abolition, scientific racism morphed into an early twentieth-century theory of whitening, which purported that miscegenation would lead to the inevitable whitening of the Brazilian population. Racist science became gendered in that it viewed interracial sexuality as part of the solution to Brazil’s racial “woes.” The whitening thesis also coincided with the rise of the Brazilian eugenics movement in the 1920s, which focused on the social environment as the key to “race improvement.”⁶³ In the 1930s, Vargas co-opted these racial ideas through his support of Brazil’s supposed racial harmony (later popularized as “racial democracy” in the 1940s), and he appropriated and mainstreamed historically black cultural forms into a nationalized Brazilian identity centered in Rio de Janeiro.⁶⁴ Yet this change did not address the underlying assumption that whiteness was the key to Brazil’s future. In fact, it whitened what had previously been considered black or African. Vargas’s erasure of any outward mention of race by focusing on the Brazilian citizen further disguised twentieth-century hierarchies by eliminating any discussion of the correlation between skin color and inequality.

The Brazilian state’s constant regulation of women’s reproduction and fertility control institutionalized legal inequalities based on racial and gender hierarchies. Political regimes—and their respective policies—changed, but the ultimate goal remained the same: connect women’s citizenship status to their maternal identities. Legal and medical authorities naturalized women’s innate role as mothers, reducing them to their reproductive capacities and reinforcing gendered hierarchies. But physicians’ and eugenicists’ embrace of all women’s maternal potential mediated racist applications of medicine, for they incorporated women of all colors and classes into the reproductive body politic. When physicians and legislators supported women’s reproduction, regardless of race or class, they assimilated populations often viewed as detrimental to the nation’s future, coded language for Afro-Brazilians. Like most eugenics movements in Latin America, Brazilian eugenicists did not sterilize populations they deemed “unfit” for motherhood.⁶⁵ Rather, they “re-educated” women in relation to hygiene and social welfare, thus creating a space for women of color to participate in civic life through their identities as mothers.⁶⁶ Of course, Brazilian officials also supported European immigration in efforts to whiten the workforce and population.⁶⁷ But this emphasis was compatible with allowing women of color to reproduce; after all, whitening posited that miscegenation would eventually whiten the population, while racial democracy enthusiasts later saw interracial sex as harmonious.

Physicians’, jurists’, and policymakers’ theoretical acceptance of motherhood for all Brazilian women, no matter their race or class, shaped the ways that state institutions regulated female sexual honor and eventually broadened the definition of motherhood. An out-of-wedlock pregnancy was the physical manifestation of a deviation from patriarchal norms. Although single motherhood implied a lack of sexual morality, a woman’s maternal role reestablished her social honor in the public sphere. Feminists’ longstanding approach toward social motherhood had opened up a space for women to mother in forms that existed outside the boundaries of proper gendered behavior. In other words, motherhood reinforced women’s proper gender roles, and, under Vargas, it relegated women to the role of reproducers of a new nation. Citizenship was defined for women in relation to their identities as mothers, regardless of race, class, or marital status.

This inclusive definition of motherhood shut off legal and medical avenues for women who did not want or could not have children. In the abstract, contraception, abortion, and infanticide were rejections of women’s sexual honor based on chastity and their social honor based on motherhood. Fertility control—which allowed women to break with patriarchal ideals of women’s proper sexual behavior, their gendered roles as mothers, and their subordination to men’s decision-making processes—was a direct threat both to the patriarchal authority of men and to the patriarchal claims of an expanding state. Patriarchal definitions of motherhood meant that women did not decide when or how to mother. Fertility control, conversely, allowed mothers to decide when, or whether, to have more children, whereas childless women could disavow motherhood altogether. State officials, physicians, and the larger community thus viewed women who engaged in these practices, no matter their race or class, as hazardous to society.

Even racist thinkers who viewed Brazilians of color as a serious obstacle to the modernization (and whitening) of the nation rejected abortion.⁶⁸ To these men, abortion’s threat to established gender roles, by allowing single women to engage in sexual activity outside of wedlock without “consequences” and married women to control their fertility outside of any patriarchal familial structure, was just as, if not more, dangerous than any negative outcomes coming either from racial mixing (mestiçagem) or from the continued reproduction of the Brazilian population of color.

I argue that research on scientific motherhood, maternal-infant health, and the racial politics of eugenics neglects fertility control. The lens of fertility control thus unveils that women’s honor was defined not only by sexual behavior but also by motherhood, making the latter central to women’s citizenship claims. Both legal and medical practitioners believed that abortion and infanticide were deviations from women’s proper gender roles. Most important, they viewed this gendered inversion as more dangerous than the reproduction of Brazilians of color. We see evidence of this in the courts’ investigation and/or prosecution of women of all races and classes for the crimes. Jurisprudence did not look the other way when less “desirable” Brazilian women, for example, women of color, practiced abortion and infanticide. In the eyes of the law—and its guardians—no woman should reject motherhood, regardless of race or class. In this way, my work departs from other legal studies of gender and sexuality. Both the state and the community frowned upon women’s out-of-wedlock sexuality, but even “illegitimate” sexuality allowed women to remain within their state-sanctioned maternal identity. This, of course, became one of the main avenues through which, under Vargas, they could participate in citizenship rights. Fertility control, conversely, broke this “sacred” bond.

As Nancy Leys Stepan writes, “The history of embodiment must be seen as part of the story of citizenship and its limits.”⁶⁹ Following this line of thinking, I argue that the state allocates unequal citizenship through women’s bodies, and thus a study of women’s own reproductive experiences is key to understanding the institutionalization of inequality in twentieth-century Brazil. Anne McClintock argues that state interest in reproduction often pivots on incorporating women as symbolic yet passive “bearers of the nation.”⁷⁰ The only way women become actively implicated in national agency is by biologically reproducing the nation’s citizenry.⁷¹ Legal policies such as the criminalization of abortion and pronatalist tax legislation entreat all women to reproduce future citizens (and laborers), all the while controlling gender roles and maintaining patriarchy. But by neither extending women full citizenship rights nor legislating in a way that allows everyone equal access to a fully “livable life,” state institutions also maintain existing social hierarchies.⁷² As scholars working within a reproductive justice paradigm argue, the ability to have a child and raise it outside the realm of poverty is often just as important as the choice not to have one.⁷³ It is no coincidence that women of color and their children in early twentieth-century Rio de Janeiro had worse health outcomes and economic opportunities than their white counterparts. Women’s reproductive experiences expose the cruel realities of a state that requires women to bear all the children they conceive but discriminates based on race and gender.

Medicalization, Criminalization, Negotiation: Sources and Approaches

The medical, legal, and personal nature of women’s reproduction—from abortion and infanticide to pregnancy and childbirth—requires that we understand the topic, in the words of Leslie Reagan, as “a triangle of interactions” among the medical profession, state agents, and women themselves.⁷⁴ Abortion, for instance, was a medical procedure and a criminal act, and both judges and physicians monitored the practice, in equally contradictory and complementary ways. It is also a practice that women underwent and experienced on physical and emotional levels. Along these lines, I approach women’s reproduction from three angles: law, medicine, and women’s experiences. This book examines the connection between women’s bodily experiences and state policy from multiple angles (legal, medical, feminist) and scales of inquiry (home, community, nation).⁷⁵ It separates the state into various realms and bureaucracies; after all, police officers, public prosecutors, and physicians all had their own ideas about women’s reproduction, and they brought those with them when performing their daily jobs. Thus, A Miscarriage of Justice traces how legal thought and medical knowledge became cemented into law and policy across Brazil; how those prescriptions were implemented in the police precincts and hospitals rooms of Rio de Janeiro; and how women experienced and negotiated those institutional constraints on a daily basis. The particular ways in which women’s reproductive capabilities became embedded in Brazilian bureaucratic structures—the police’s involvement in public health emergencies or juries’ deciding power in infanticide trials—demonstrate both the specificity of Rio de Janeiro and the universal nature of modern nation-states’ approaches to women’s bodies.

The history of reproduction must include the entirety of women’s embodied experiences. After all, women’s reproductive lives exist on a continuum. Rather than placing childbirth and motherhood in opposition to abortion and infanticide or excluding involuntary reproductive losses like miscarriage and stillbirth, I define women’s reproductive health as a wide range of events and practices, and the way physicians or the police viewed one affected the way they approached another. For example, the police understood the death of Vieira’s newborn child as a possible infanticide in relation to her sexual history, yet they later revised their assumptions based on her having sought medical attention for her delivery. Here, I am not arguing that abortion and infanticide are gradations of the same practice (although many contemporary legal and medical practitioners did). Rather, I am saying that we must consider all aspects of women’s reproductive lives in reference to one another. Brazilian legal and medical authorities discussed abortion and infanticide with regard to pregnancy, childbirth, and motherhood. They condemned in the same breath, for example, miscarriages due to poor nutrition and criminal abortions due to “frivolous” women. And Brazilian women made decisions about one in relation to the other. Women did not and do not see abortion as separate from pregnancy and motherhood, and many of the women depicted in this book had living children whose lives influenced their mothers’ decisions.⁷⁶

Moreover, as historians of nineteenth-century Europe have highlighted, scholars cannot separate fertility control from the influence of poverty on pregnancy and motherhood.⁷⁷ This approach also requires contextualizing women’s reproductive health and health policy within broader trends including stillbirth, maternal mortality, and homebirth rates, no matter how incomplete the numbers. Here, I have pieced together health data from disparate sources, publishing comprehensive reproductive health statistics for the first time. A combined analysis of reproduction requires both exploring how women felt about a stillbirth, miscarriage, or abortion and understanding their commonality.

To do so, the book draws on a variety of sources, including judicial documents, medical publications, public health data, clinical reports, criminal and civil law, novels, newspapers, and photographs. Its backbone is a core set of 193 police investigations and court cases involving women’s reproductive practices in the city of Rio de Janeiro under the 1890 Penal Code, and an additional 39 court cases from the state of Rio de Janeiro and the Supreme Court.⁷⁸ I believe these are most, if not all, the legal cases of reproductive practices that exist for this time period. Of course, the process by which a reproductive event became an investigation or court case was not uniform, and poor women were more likely to come to the authorities’ attention. With this in mind, my total population of cases is not representative of women in general. Yet most women in early twentieth-century Rio de Janeiro were not elite, and although the cases may underrepresent upper-class women, overall they are fairly representative of most Carioca women.

When compared with contemporary investigations of other crimes like vagrancy, the numbers game (jogo do bicho), or deflowering, the number of cases related to reproduction is low.⁷⁹ But we must remember that illegal fertility control practices are inherently clandestine in nature and often difficult to document. In regions where abortion is illegal today, official and accurate statistics continue to elude researchers.⁸⁰ In turn-of-the-century Brazil, when state bureaucracies were only beginning to collect vital records, and abortion and infanticide were criminalized, it is impossible to have complete numbers. Perhaps the comparison to make is not with other crimes but with the number of investigations relating to reproduction before and after 1890. I found eleven cases involving abortion and infanticide under the Criminal Code of 1830 (1830–89) for Rio de Janeiro.⁸¹ This marked shift from the nineteenth to twentieth centuries was due to changes in abortion and infanticide law, the increased judicial capacity of the Brazilian state, and the demographic transformations and rapid urban development that resulted in the increased visibility of reproductive events. In an urbanizing city, practices like abortion and infanticide, once a familial secret or easily hidden in a rural region, became public events. Isalina Vieira, for instance, gave birth at a new hospital, and after recent police reforms had expanded the force’s presence. We can imagine that if she gave birth decades earlier, in a small village in the interior of the state, the death of her newborn would have been dealt with within the home in which she gave birth, perhaps attended by a midwife. The appearance of newborn cadavers on the streets, the role neighborly gossip played in bringing fertility control to the police, and subsequent media coverage show that fertility control became more noticeable. And an expanding, interventionist state took notice.

Historians long have employed criminal records to understand not only the history of crime or the institutions that created those documents but also the everyday lives and understandings of the so-called underclasses.⁸² When the police investigated a woman’s miscarriage, for example, the resulting criminal documentation unveiled details far beyond those pertaining to the alleged crimes. We learn that domestic servants marked the passage of the year based on Carnaval, that wives relied on their husbands to fill out bureaucratic paperwork, that neighboring women in the suburbs cut firewood together for mutual protection. In short, these records disclose the everyday happenings of Cariocas of all classes, and they demonstrate how biological reproduction shaped the lives of everyone involved, not just women. In this way, criminal records allow us to understand the criminalization of fertility control, women’s reproductive lives, and women’s larger social and cultural spheres.

The court cases and police investigations of reproduction also provide the historian a rare chance to write a “patient-centered” history of medicine.⁸³ The most obvious medical history that appears in judicial records is that of legal medicine. But criminal cases involving abortion and infanticide demonstrate much more than how police physicians tested fetal remains or performed pelvic exams. They also show changes in clinical practice and medical knowledge, and through a close examination of criminal sources, we can understand how individual physicians practiced medicine or how women understood the medical aspects of pregnancy and childbirth.

The question remains of how we access women’s own understandings and experiences in such highly mediated sources. The historical profession has long debated how best to approach the “agency” of the historically dispossessed—the subaltern, women, the enslaved.⁸⁴ Scholars looking at legal sources have moved beyond the search for “pure” agency or “complete” oppression, as judicial records were mediated on all levels. In Rio de Janeiro, scribes and police investigators excluded interrogators’ questions and employed technical language not used by the persons involved. Moreover, courtroom trials were not performances, but rather scripted events in which prosecutors questioned witnesses separately and scribes read out loud the written proceedings to the jury, circumscribing women’s ability to influence prosecutorial or defense decisions through personal pleas or courtroom performances.⁸⁵ Investigative and courtroom procedure resulted in multiple layers of mediation that all but stripped the human element from the case.

Mediation, of course, was not limited to official police or judicial protocol. Larger power dynamics affected the creation of these documents. Women were forcefully interrogated in police precincts only hours after giving birth, on their deathbeds in a feverish and delirious state from an abortion-related infection, and alone in dark jail cells. As other scholars engaging in a gendered analysis of judicial documents have argued, these sources are translations or mediations occurring within “highly unequal power structures,” which nevertheless demonstrate the worldviews of all those involved.⁸⁶ When a woman sought out an abortion or killed her newborn child, she acted in the face of an untenable situation. Yet women’s “agency” existed within hierarchical power structures that limited many women’s decisions to traumatic acts of desperation. Thus, I define women’s reproductive practices in early twentieth-century Rio de Janeiro as “negotiations” in which women experienced and attempted to regulate their reproductive lives within larger structural restrictions. Women’s “constrained choices” demonstrate the connection between broader social and political contexts and their individual decisions.⁸⁷ And whereas the police and the courts tend to record “exceptional” circumstances or events, I argue that in the realm of reproduction, the judicial system often paid attention to the ordinary.

Women’s reproductive bodies and experiences were a central state preoccupation, yet their pain, joy, lives, and deaths often remain absent from our writing of history.⁸⁸ This is frequently because of the available sources that, in the words of Kristin Ruggiero, “disembody” women.⁸⁹ A forensic exam details the shape and smell of a woman’s vagina without ever mentioning her name. Scholars studying the latter half of the twentieth century have used oral history as an effective manner to address this intellectual and ethical problem.⁹⁰ But for scholars who cannot work with direct memory, it remains grossly negligent to not focus on women’s bodily experiences, for it erases their fundamental role in that history. Moreover, an embodied history places women’s agency within its correct historical moment.⁹¹ Without stressing women’s experiences, the history of reproduction remains rooted in current-day rhetoric about “rights” and “choice,” and this methodology ahistorically isolates women’s reproductive decisions from their larger context.⁹² Anthropological works demonstrate the complex cultural and social factors that continue to shape women’s approaches toward reproduction and motherhood.⁹³ Picket lines at US abortion clinics and the debate about reproductive rights and the Zika virus in Latin America highlight the multifaceted and ever-shifting framework within which women make reproductive decisions—and one that needs historicization.

As a feminist who supports reproductive justice and rejects the belief of women’s “natural” propensity for raising children, I still find it challenging to read cases of women strangling or burying alive their newborn infants. In relation to infanticide, then, I have found it helpful to think about women’s actions through the anthropological theory of cultural and moral relativism. In response to the imperialistic origins of anthropology tied to nineteenth-century European colonial expansion, mid-twentieth-century anthropologists used critiques of Enlightenment universalism to argue that the interpretation of cultures different from one’s own required doing so within the moral codes and meaning systems of that culture. What perhaps seemed irrational or unethical within the academic’s cultural framework was logical and moral within the context of the culture under study.⁹⁴

But cultural relativism precluded any sort of valuation of other cultures’ actions. In her study of late twentieth-century shantytown mothers in northeast Brazil, for example, Nancy Scheper-Hughes confronted moral and ethical questions when discussing what she viewed as the rational decisions of impoverished mothers. In the face of extreme poverty and abject health conditions, many of the mothers in the community would fatally neglect sickly infants who they felt would not survive even if “properly” cared for (within the limits of the material scarcity that enveloped these families). Writes Scheper-Hughes, “I have stumbled on a situation in which shantytown mothers appear to have ‘suspended the ethical’—compassion, empathic love, and care—toward some of their weak and sickly infants. The ‘reasonableness’ and the ‘inner logic’ of their actions are patently obvious and are not up for question. But the moral and ethical dimensions of the practices disturb, give reason to pause . . . and to doubt.”⁹⁵ Larger structural inequalities highlight the rationality of these women’s actions. Within the context of an economic and political system that had “suspended the ethical in their relations toward these same women,” conserving scarce resources for healthy children was a logical way to ensure survival of at least some family members.⁹⁶ But, as Scheper-Hughes argues, we must evaluate these actions within both their unethical structural context (state neglect) and their amoral personal actions (motherly negligence). I take the same approach here. In the case of infanticide, women’s actions were rational when considered within the structural violence that governed their lives.⁹⁷ But acknowledging that infanticide was a logical response to scarcity and violence does not mean it was “right.” This interpretation thus raises questions about the practice of writing history. We must take women as historical actors seriously, wherever they come from and whatever their actions.⁹⁸ Understanding them as complicated and at times amoral human beings is giving them the historical attention and analysis they deserve.

THE FOLLOWING CHAPTERS explore the inseparable nature of medicine, law, and reproduction from a gendered lens in early twentieth-century Rio de Janeiro. Chapter 1 outlines the legal and medical ideologies of positivist criminal law and patriarchal civil law, scientific motherhood, and racialized medicine that formed the foundation for the actions taken by various actors throughout the rest of the book. The intersection of these intellectual trends resulted in a judicial sphere that infantilized women’s legal decision making while valorizing the maternal nature of all women.

Chapter 2 analyzes philanthropic and state-run programs that aimed to expand the city’s reproductive healthcare services. Republican obstetricians and hygienists worked to construct maternity hospitals and create access to prenatal care, but the patchwork network of decentralized public health agencies remained inadequate until Vargas centralized medical services in the mid-1930s. Chapter 3 examines how advance in medical knowledge affected obstetricians’ clinical practice, and, most importantly, women’s own experiences of pregnancy, childbirth, and fertility control. High stillbirth and maternal mortality rates remained steady throughout this period, in part because existing medical knowledge and technologies could not effectively improve outcomes. Chapter 4 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 engage in sexual activity freely and outside of marriage, and practices like abortion thus threatened the nuclear family—and the nation.

Chapter 5 examines neighbors’ denunciations of abortion and infanticide. Gossip about fertility control represented the circulation and consolidation of popular understandings of race and sexuality. Poor and working-class Cariocas associated both fertility control and interracial relationships with clandestine and thus inappropriate sex. Denouncing women for fertility control also provided a rare chance for working-class women and men to assert their authority in a highly stratified public sphere. Chapter 6 explores police involvement in poor women’s reproductive lives. It demonstrates that the dual responsibilities of the city’s 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 force to conflate miscarriages and stillbirths with abortion and infanticide. Police investigations of reproduction coincided with poor health outcomes for impoverished women. Chapter 7 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 a “momentary lapse of reason.” In abortion trials, the prosecution punished providers and not women, who they portrayed as victims. Both doctrines took away women’s legal personhood, but the law’s emphasis on maternal honor gave that back to women if they embraced their “natural” roles of mothers.

Terminology

A note on language is in order. Women’s reproductive lives (and their attempts to regulate them) exist on multiple levels. The first is biological reproduction—the main focus of this book. In a period when contraception was unreliable (and often male-controlled), biological reproduction begins with the act of sexual intercourse. It then encompasses conception and pregnancy, which perhaps ends in a miscarriage or an abortion. Childbirth follows, with the possibility of infanticide or child abandonment. Of course, reproduction does not stop once a woman delivers her infant. Generational reproduction, or the raising of children, is the next level. For poor women in nineteenth-and twentieth-century Latin America, including Brazil, raising children often meant both temporary and permanent practices of child circulation and informal fostering within larger kinship networks.⁹⁹ Reproduction also refers to social practices, including the domestic work that supports the larger economic activities of wage earners: food, shelter, sex, and companionship.¹⁰⁰ Although biological, generational, and social reproduction are interconnected, women often had to deny the first two to fulfill their social obligations. Because A Miscarriage of Justice is a dual medical-legal history of pregnancy, childbirth, and fertility control, its analysis does not extend to the raising of children. Many women who engaged in fertility control practices were already mothers, a reality (and identity) that shaped their decisions. Moreover, physicians were as intent on ensuring the proper rearing of children as they were on safe pregnancy and childbirth. But it is beyond the scope of this book to look at how kinship influenced childrearing beyond biological reproduction.

With this in mind, I use reproductive practices or events to refer to biological reproduction: pregnancy, miscarriage, stillbirth, childbirth, and abortion. Fertility control, for its part, is not always or necessarily “negative” in the sense of impeding reproduction. As Rebecca Flemming reminds us, the term can refer not only to attempts to controlling reproduction but also to promoting procreation or addressing infertility, and its preventive connotation is a recent phenomenon.¹⁰¹ In this book, I use the more modern “negative” definition of fertility control—as contraception (including coitus interruptus, sterilization, pessaries, and condoms) and abortion. The latter was not contraception, as it occurred after conception, but women resorted to it to prevent birth. I also include infanticide within a broad definition of fertility control. Most infanticides occurred immediately after birth to prevent the neonate from surviving, and thus they were part of the reproductive process of conception, pregnancy, and childbirth. As the law did, I consider a newborn abandoned and left to die—for example, in a wooded area, trash can, or beach—as infanticide. Child abandonment, in terms of a child left at an orphanage or informally fostered, was within the range of practices women employed to not raise children, but it was not fertility control. I use the term regulation as a more neutral signifier; this included a woman’s attempts to conceive or a physician’s pronatalist efforts to increase his patient’s family size. I should also mention that the Portuguese word aborto refers to both miscarriage and abortion. Usually, Brazilian physicians differentiated between a spontaneous abortion or miscarriage (aborto espontâneo) and a provoked or criminal abortion (aborto provocado or aborto criminal). When I use the term abortion, I am referring to an induced or “provoked” abortion. I translate aborto espontâneo to miscarriage.

Finally, racial terminology in the early twentieth century was complex and dynamic.¹⁰² State officials, physicians, and Brazilians themselves employed a variety of terms to refer to Brazilians of African descent (for example, negro, preto, pardo, mulato, mestiço). For the sake of clarity and consistency, I use the terms black, brown or mixed-race, and white when referring to groups of Brazilians, for instance, in my discussion of data from medical records. When referring to individual men and women, I use the terms the police and medical officials recorded, most often preto for black, pardo for mixed-race, and branco for white. When Brazilians referred to themselves or others using different terms (mestiço or moreno, for instance), I note this in the text. Moreover, when discussing individual people, I leave the term in Portuguese.

IN EARLY TWENTIETH-CENTURY RIO DE JANEIRO, fertility control could mean sexual freedom, independence from one’s husband, and economic autonomy. These practices allowed women to break from their prescribed roles as wife and mother, and they directly attacked the entire gendered system of honor that reinforced patriarchal norms in a system simultaneously racialized and classed. Although an expanding state worked to delegitimize women’s reproductive decisions by extending citizenship rights only through maternal avenues, women like Isalina Vieira continued to have sex, give birth, and at times control their fertility on their own terms. This book is about their lives.

Notes

1. In 1763, Rio de Janeiro became the capital of Brazil, and it remained so throughout the period covered in this book. In 1960, Brasília, the current capital, was inaugurated. The city of Rio de Janeiro is located in the state bearing the same name. In the text, I use the term “Rio de Janeiro” to refer to the city. If I am discussing the state of Rio de Janeiro, I identify it as such. Vieira’s full name was Isalina Vieira da Costa, but I use a shortened version in the text for clarity. Arquivo Nacional, Rio de Janeiro, hereafter (AN), CR.0.IQP.674 (1912).

2. For other hospitals in Rio de Janeiro turning away patients, see (AN) CS.0.IQP.3426 (1923); (AN) CT, Cx.1950 N.118 (1929). See also Adamo, “Broken Promise,” 116–17; Bretas, Ordem na cidade, 100, 157.

3. (AN) CR.0.IQP.674 (1912). See also “O caso da Maternidade,” A Noticia, October 26–27, 1912, 3; “Perversidade? Casos que depõem contra a Maternidade,” A Noticia, October 24–25, 1912, 2.

4. (AN) CR.0.IQP.674 (1912).

5. For the sake of clarity, throughout this book I use the term “obstetrician” to refer to physicians who practiced both obstetrics and gynecology. For most of nineteenth-century Brazil, the field of gynecology was subsumed within the obstetric profession. By the turn of the twentieth century, however, the two fields became increasingly specialized. But, as with today, practicing obstetrician-gynecologists were trained and practiced in both fields. On the development of Brazilian obstetrics and gynecology, see Martins, Visões do feminino, 142–54.

6. (AN) CR.0.IQP.674 (1912).

7. M. Abreu, “Slave Mothers”; Chalhoub, Machado de Assis; Cowling, Conceiving Freedom; M. H. Machado, “Between Two Beneditos”; Roth, “From Free Womb to Criminalized Woman”; M. Santos, “Mothering Slaves”; M. Santos, “Slave Mothers.”

8. Fausto, “Brazil,” 787–811.

9. Besse, Restructuring Patriarchy; Gormley, “Motherhood as National Service”; Maes, “Progeny of Progress”; Otovo, Progressive Mothers.

10. Gordon, Moral Property; Petchesky, Abortion and Woman’s Choice; Reagan, When Abortion Was a Crime.

11. For just a small sample of works that explore the centrality of women’s reproduction to political regime change and consolidation, see Klausen, Abortion Under Apartheid; Kanaaneh, Birthing the Nation; Kligman, Politics of Duplicity; Thomas, Politics of the Womb.

12. Camiscioli, Reproducing the French Race; Lovett, Conceiving the Future.

13. Kashani-Sabet, Conceiving Citizens; Pieper Mooney, Politics of Motherhood.

14. Koven and Michel, “Womanly Duties.”

15. Connelly, Fatal Misconception; Solinger and Nakachi, Reproductive States.

16. López, History of Family; Takeuchi-Demirci, Contraceptive Diplomacy.

17. Bashford, Global Population.

18. See the foundational edited volume by Ginsburg and Rapp, Conceiving the New World Order. See also Andaya, Conceiving Cuba; Browner and Sargent, Reproduction, Globalization, and the State; Maternowska, Reproducing Inequities. For an excellent overview of ethnographic literature on reproduction until 2006, see Inhorn, “Defining Women’s Health.”

19. Besse, Restructuring Patriarchy; Freire, Mulheres, mães e médicos; Gormley, “Motherhood as National Service”; Maes, “Progeny of Progress”; Martins, Visões do feminino; Otovo, Progressive Mothers; Rohden, Uma ciência.

20. Atayde, “Mulheres infanticidas”; Hentz, “A honra”; Pedro, Práticas proibidas; G. Ramos, “Entre ‘o sublime nome’”; F. Rodrigues, “Os crimes”; Rohden, A arte de enganar; M. S. Silva, “Reprodução, sexualidade.”

21. Monica Green also makes this point. “Gendering the History,” 488, 500.

22. This term comes from Joseph and Nugent, Everyday Forms.

23. For just a small slice of the rich historiography on gender, reproduction, and slavery in the Atlantic world, see Beckles, Natural Rebels; Berry, Price for Their Pound of Flesh; Bush, Slave Women; Cooper Owens, Medical Bondage; Fuentes, Dispossessed Lives; Morgan, Laboring Women; Paugh, Politics of Reproduction; Schwartz, Birthing a Slave; Turner, Contested Bodies; D. White, Ar’n’t I a Woman? On abolition and post-abolition, see Barros, Reproducing the British Caribbean; Cowling, Conceiving Freedom; Findlay, Imposing Decency; Paton, No Bond but the Law. For gender and slavery in Brazil, see Dias, Power and Everyday Life; Figueiredo, O avesso da memória; S. Graham, Caetana Says No; Karasch, Slave Life; Slenes, Na senzala, uma flor; Xavier, Farias, and Gomes, Mulheres negras.

24. This phrase comes from Stoler, Carnal Knowledge.

25. On Jim Crow, see Haley, No Mercy Here. On sterilization, see Kluchin, Fit to Be Tied; Roberts, Killing the Black Body; Schoen, Choice and Coercion. Coerced sterilization policies also affected Puerto Rican, Native American, and Mexican American women. See Briggs, Reproducing Empire; Lawrence, “Indian Health Service”; A. Stern, Eugenic Nation.

26. Fausto, “Brazil,” 789; Love, “Political Participation in Brazil”; Weinstein, Color of Modernity, 19–20.

27. For education, see Dávila, Diploma of Whiteness. For race and the constitution, see Alberto, Terms of Inclusion, esp. 12, 24–25. For voting restrictions, see J. Carvalho, Os bestializados; Love, “Political Participation.”

28. Alberto, Terms of Inclusion, 24–25.

29. For nineteenth-century patronage networks, see R. Graham, Patronage and Politics.

30. On formal labor strikes, see Meade, “Civilizing” Rio, 121–76. On the continuation of informal labor practices, see Acerbi, Street Occupations; S. Graham, House and Street.

31. Hahner, Emancipating the Female Sex, 73–75; Karawejczyk, “As Filhas de Eva,” 79–126.

32. Besse, Restructuring Patriarchy, 61, 81, 140; Caulfield, In Defense of Honor, 26–30.

33. For Brazil, see Besse, Restructuring Patriarchy; Hahner, Emancipating the Female Sex. For other Latin American countries, see Ehrick, Shield of the Weak; Hammond, Women’s Suffrage; Lavrin, Women, Feminism; Olcott, Revolutionary Women; Rosemblatt, Gendered Compromises.

34. For regional uprisings, see Weinstein, Color of Modernity.

35. Fischer, Poverty of Rights, esp. 56–58.

36. J. Carvalho, Os bestializados, 16; Fausto, “Brazil,” 785; Klein, “Social and Economic Integration of Portuguese.”

37. Fischer, Poverty of Rights, 23.

38. Instituto Brasileiro de Geografia e Estatística, hereafter IBGE, Recenseamento geral de 1940, 1.

39. On the 1872 population, see Chalhoub, Visões, 232–33. On enslaved women and population, see Cowling, Conceiving Freedom, 31. On domestic labor, see S. Graham, House and Street, 185–87; Hahner, Poverty and Politics, 21–23.

40. M. A. Abreu, Evolução urbana; Adamo, “Broken Promise”; Benchimol, Pereira Passos; B. Carvalho, Porous City; Fischer, Poverty of Rights; Meade, “Civilizing” Rio.

41. Alberto, Terms of Inclusion, 71–72; Meade, “Civilizing” Rio, 43; Seigel, Uneven Encounters, 98.

42. Benchimol, Dos micróbios aos mosquitos; Hochman, A era do saneamento; Stepan, Beginnings of Brazilian.

43. Besse, Restructuring Patriarchy; Caulfield, In Defense of Honor; Esteves, Meninas perdidas; Soihet, Condição feminina.

44. See Guy, “Parents Before the Tribunals,” 173. I have also found the essays in Dore and Molyneux, Hidden Histories, helpful in thinking through state patriarchy in twentieth-century Latin America.

45. Pateman, Sexual Contract; Scott, Fantasy, 91–116; Stepan, “Race, Gender, Science.”

46. W. Brown, “Finding the Man,” 8.

47. W. Brown, 12.

48. For sexual honor, see “Master Abuses.” For claims-making, see Cowling, Conceiving Freedom. For black motherhood, see Ariza, “Bad Mothers, Labouring Children”; Otovo, “From Mãe Preta.” For a general discussion of slaves and honor, see S. Graham, “Honor Among Slaves.”

49. Del Priore, Ao sul do corpo; Nazzari, “Urgent Need.”

50. Esteves, Meninas perdidas, 25–32.

51. For the colonial period, see Nazzari, “Urgent Need.” For the early twentieth century, see Caulfield, In Defense of Honor; Esteves, Meninas perdidas. For two excellent volumes on honor and gender across Latin America, see Caulfield, Chambers, and Putnam, Honor, Status, and the Law; L. Johnson and Lipsett-Rivera, Faces of Honor.

52. Esteves, Meninas perdidas, 40.

53. Caulfield, In Defense of Honor, 4.

54. This quote comes from Caulfield, Chambers, and Putnam, Honor, Status, and the Law, 2.

55. Caulfield, “Getting into Trouble,” 162.

56. Alvarez, Bacharéis, criminologistas; Fischer, Poverty of Rights.

57. Fischer, Poverty of Rights.

58. This term comes from Besse, Restructuring Patriarchy.

59. Besse, Restructuring Patriarchy; Freire, “‘Ser mãe é uma ciência’”; Freire, Mulheres, mães e médicos; Martins, “‘Vamos criar seu filho’”; Otovo, Progressive Mothers; Wadsworth, “Moncorvo Filho.”

60. Htun, Sex and the State, 30–36.

61. This phrase is from Schwarcz, O espetáculo das raças, 18, 244–45. But other scholars make the same point. See Corrêa, As ilusões da liberdade; Cunha, Intenção e gesto; Skidmore, Black into White; Stepan, Hour of Eugenics.

62. Briggs, Reproducing Empire; Bronfman, Measures of Equality; Findlay, Imposing Decency; Stepan, Hour of Eugenics; Zulawski, Unequal Cures.

63. Stepan, Hour of Eugenics.

64. Alberto, Terms of Inclusion, esp. 10–11, 115–16.

65. Stepan, Hour of Eugenics. For Latin America’s only sterilization law in Veracruz, Mexico, see A. M. Stern, “‘Hour of Eugenics.’”

66. Otovo, Progressive Mothers.

67. Lesser, Negotiating National Identity; Weinstein, Color of Modernity.

68. Corrêa, As ilusões da liberdade, 180–81.

69. Stepan, “Race, Gender, Science,” 30.

70. McClintock, “No Longer in a Future Heaven,” 90.

71. Yuval-Davis and Anthias, Woman-Nation-State, 7.

72. The concept of a “livable life” comes from Butler, Frames of War, 21–23.

73. In 1994, a group of black feminists in the United States coined the term “reproductive justice” to push back against the middle-class, white feminist rhetoric of “choice.” These feminists argued that the human right not to have a child was as important as the right to have children and raise them outside of poverty. They located access to reproductive healthcare, including abortion, within a larger social justice framework. See Luna and Luker, “Reproductive Justice”; Price, “What Is Reproductive Justice?”; Ross and Solinger, Reproductive Justice.

74. Reagan, When Abortion Was a Crime, 1.

75. On scales of inquiry, see Brewer, “Microhistory”; Ginzburg, “Microhistory”; Levi, “On Microhistory”; Struck, Ferris, and Revel, “Space and Scale.”

76. On the embeddedness of abortion within women’s larger reproductive lives, see Ginsburg, Contested Lives; Luker, Abortion.

77. Fuchs, Poor and Pregnant in Paris; Ross, Love and Toil.

78. See Appendixes A through D and “Notes on Sources.”

79. See Caulfield, In Defense of Honor, 195–97; Chazkel, Laws of Chance, 128–29, 212–13; Cunha, Intenção e gesto, 171n7; Esteves, Meninas perdidas, 30–32.

80. Sedgh et al., “Induced Abortion.”

81. Appendix D.

82. Ginzburg, Cheese and the Worms. For Rio de Janeiro, see Caulfield, In Defense of Honor; Chalhoub, Trabalho, lar e botequim; Esteves, Meninas perdidas; Giumbelli, O cuidado dos mortos; Soihet, Condição feminina. For this technique in relation to the crime of infanticide, see Schulte, Village in Court, 79–118.

83. See Porter, “Patient’s View.”

84. See, for example, Davis, Fiction in the Archives; Spivak, “Can the Subaltern Speak?”

85. Fischer, Poverty of Rights, 167–69; S. Graham, “Honor Among Slaves,” 206–7. In other Latin American contexts, an active courtroom performance proved pivotal to a case’s legal outcome. Findlay, “Courtroom Tales of Sex”; Shelton, “Bodies of Evidence.”

86. Cowling, Conceiving Freedom, 14. See also Caulfield, In Defense of Honor, 13–15.

87. On constrained choice in relation to gender and health, see Bird and Rieker, Gender and Health, 63–75.

88. Historians have begun to focus on women’s embodied experiences as central to the history of motherhood and reproduction. See, for example, Cooper Owens, Medical Bondage; Doyle, Maternal Bodies; Fissell, Vernacular Bodies; Gowing, Common Bodies; Klepp, Revolutionary Conceptions; Turner, Contested Bodies.

89. Ruggiero, “Honor, Maternity,” 366.

90. Fisher, Birth Control, Sex; Kelly, “Birth Control Practices”; Kimball, “Open Secret”; Kluchin, “Locating the Voices”; Martins, “Memórias maternas”; Pedro et al., “Mulheres, memórias.”

91. Canning, “Body as Method?”

92. Kimball, “Open Secret”; Petchesky, Abortion and Woman’s Choice.

93. Einarsdóttir, Tired of Weeping; Scheper-Hughes, Death Without Weeping.

94. Mohanty, “Us and Them.”

95. Scheper-Hughes, Death Without Weeping, 22.

96. Scheper-Hughes.

97. On structural violence, see Farmer, “Anthropology.”

98. This idea comes from Scanlon, “Taking Women Seriously.”

99. Dias, Power and Everyday Life, 125–27; S. Graham, House and Street, 78–84; Milanich, Children of Fate; Putnam, Company They Kept, 112–38; Windler, “Honor Among Orphans.”

100. Putnam, Company They Kept, 7.

101. Flemming, “Adoption, Exposure.”

102. Alberto, Terms of Inclusion, 22.