Todas somos Beatriz: the criminalisation of abortion in El Salvador from an international human rights law perspective

In 2013, a 22-year-old Salvadoran woman suffering from lupus nearly died because the Supreme Court refused to permit the termination of her non-viable pregnancy.  Known only as ‘Beatriz’, her case drew widespread international attention and condemnation.  She is just one of thousands of women whose human rights have been violated because of the absolute criminalisation of abortion in El Salvador.

The absolute ban on abortion has been in place since 1998.  Since 1999, the Salvadoran Constitution defines life as beginning at the moment of conception.

Not only is abortion illegal in all circumstances in El Salvador, those suspected of having induced a miscarriage are actively prosecuted.  Many women who go or are brought to public hospitals experiencing obstetric emergencies find themselves under arrest, accused by neighbours, family members or hospital staff of having attempted to procure an abortion.  Detained in unsanitary conditions, these women are either denied or unable to receive necessary medical treatment.  They are interrogated while drifting in and out of consciousness with no lawyer present.  During trials characterised by a profound lack of due process, many women have the charge of abortion upped to that of aggravated homicide (the murder of a close family member), which carries a penalty of up to 40 years in prison.  This has been the case for at least 17 women, known collectively as ‘las 17.’

The facts of their cases indicate violations of the right to be free from torture and other forms of cruel, inhuman or degrading treatment or punishment; the right to health; the right to privacy; the right to seek, receive and impart information; and the right to a fair trial.  In the case of ‘Manuela’, there was also a clear instance of a violation of the right to life: diagnosed with advanced Hodgkin’s lymphoma while serving a 30-year prison sentence for ‘aggravated homicide’, the state failed to provide her with consistent chemotherapy treatment. She died two years into her sentence.

Prison conditions in El Salvador have been repeatedly criticised for failing to comply with the relevant international human rights standards.  Severe overcrowding and violence are endemic, while those jailed for having had abortions are subjected to an even greater degree of intimidation and assault by prison staff and other inmates. Moreover, international human rights standards state that alternatives to imprisonment should be considered where the accused is a parent.  This has been entirely disregarded, with ‘las 17’ and women like them separated from their young children to serve prison sentences of 30 to 40 years’ duration.

As is often the case with unjust legislation, the complete ban on abortion in El Salvador disproportionately affects the most vulnerable.  Those who are able to travel abroad go the US or Cuba, or attend private clinics within the country that are known to turn a blind eye to the legislation in place.  Young, rural women of indigenous background, with little education and in precarious, low-paid employment, make up the majority of those tried and convicted.  Failure to respect the principle of non-discrimination on the grounds of class, gender and ethnicity are at play here, as is further evidenced by numerous remarks by witnesses and judges during these women’s trials.

The facts above demonstrate that El Salvador can and must be held accountable for severe and multiple human rights violations arising from the complete criminalisation of abortion in the country.  Indeed, it seems increasingly likely that the Inter-American human rights system and/or the UN will find this to be the case, particularly given the growing legitimacy of the concept of sexual and reproductive health and rights (SRHRs) in international human rights law.  A number of rights and principles collectively comprise SRHRs, including those referred to above.  There is growing consensus within the international and regional human rights systems that restricting or banning access to abortion can result in a violation of some or all of these rights.

The UN’s current position is that abortion should be permitted at a minimum in the case of a risk to the pregnant person’s life or health, in the case of rape or incest, and in the case of lethal or fatal foetal abnormalities.  El Salvador’s failure to comply with this minimum standard has been repeatedly criticised by UN treaty monitoring bodies and Special Rapporteurs.

The Inter-American Commission on Human Rights is currently examining petitions jointly made by Agrupación Ciudadana por la Despenalización del Aborto and the Center for Reproductive Rights in relation to the cases of ‘Beatriz’ and ‘Manuela.’  If they find that there are grounds to proceed with the petitions, the cases will then be brought before the Inter-American Court of Human Rights.  Such a case would draw more attention to the situation in El Salvador, and could result in the overturning of a law that has caused untold suffering.

Rebecca Smyth is a first-year PhD student at the University of Edinburgh’s School of Law.  She is researching the ways in which restrictive abortion legislation in Ireland and El Salvador results in human rights violations, and the extent to which the law and human rights can be reconceptualised to better respond to and represent women’s lived realities.

 

Sources

International Legislation

  1. Organization of American States, American Convention on Human Rights “Pact of San José” (adopted 22 November 1969, entered into force 18 July 1978)
  2. ― ―, Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women “Convention of Bélem do Pará” (adopted 9 June 1994, entered into force 5 March 1995)

 

Regional Human Rights Systems: the European Court of Human Rights

  1. European Court of Human Rights, A, B and C v. Ireland (Application No. 25579/05) 16 December 2010
  2. and S. v. Poland (Application No. 57375/08) 20 October 2012
  3. R. v Poland (Application No. 27617/04) 28 November 2011
  4. Tysiąc v. Poland (Application No. 5410/03) 20 March 2007

 

Domestic Legislation: El Salvador

  1. Asamblea Legislativa de El Salvador, Constitución de la República de El Salvador, Decreto No. 38, Diario Oficial No. 234, Tomo No. 281
  2. Constitutional Section of the El Salvador Supreme Court of Justice, Ruling 310-2013, 28 May 2013

United Nations Documents

 

  1. Committee Against Torture, “Concluding Observations on the second periodic report of El Salvador” 9 December 2009, CAT/C/SLV/CO/2
  2. ― ―, “General Comment No. 2: Implementation of Article 2 by States Parties” 24 January 2008, CAT/C/GC/2
  3. Committee on Economic, Social and Cultural Rights, “Concluding Observations on the combined third, fourth and fifth periodic reports of El Salvador” 19 June 2014, E/C.12/SLV/CO/3-5
  4. ― ―, “Concluding Observations on the second periodic report of El Salvador” 27 June 2007, E/C.12/SLV/CO/2
  5. ― ―, “General Comment No. 14: The Right to the Highest Attainable Standard of Health (Article 12 of the International Covenant on Economic, Social and Cultural Rights)” 11 August 2000, E/C.12/2000/4
  6. ― ―, “General Comment No. 16: The Equal Right of Men and Women to the Enjoyment of All Economic, Social and Cultural Rights (Article 3 of the International Covenant on Economic, Social and Cultural Rights” 11 August 2005, E/C.12/2005/4
  7. ― ―, “General Comment No. 20: Non-Discrimination in Economic, Social and Cultural Rights (Article 2, Paragraph 2 of the International Covenant on Economic, Social and Cultural Rights)” 2 July 2009, E/C.12/GC/20
  8. ― ―, “General Comment No. 22 (2016) on the Right to Sexual and Reproductive Health (article 12 of the International Covenant on Economic, Social and Cultural Rights)” 4 March 2016, E/C.12/GC/22
  9. Committee on the Elimination of All Forms of Discrimination against Women, Alyne da Silva Pimentel Teixeira v. Brazil, 27 September 2011, CEDAW/C/49/D/17/2008
  10. ― ―, “Concluding Observations on the seventh periodic report El Salvador” 7 November 2008, CEDAW/C/SLV/CO/7
  11. ― ―, “General Recommendation No. 19: Violence Against Women” 30 January 1992, A/47/38
  12. ― ―, “General Recommendation No. 21: Equality in Marriage and Family Relations” 4 February 1994, A/49/38
  13. ― ―, “General Recommendation No. 24: Article 12 of the Convention (Women and Health)” 6 February 1999, A/54/38/Rev.1, chap. I
  14. ― ―, “General Recommendation No. 28: Core Obligations of the States Parties under Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women” 16 December 2010, CEDAW/C/GC/28
  15. ― ―, “General Recommendation No. 33: Women’s Access to Justice” 3 August 2015, CEDAW/C/GC/33
  16. ― ―, “General Recommendation No. 34: The Rights of Rural Women” 7 March 2016, CEDAW/C/GC/34
  17. ― ―, C. v. Peru, 4 November 2011, CEDAW/C/50/D/22/2009
  18. ― ―, “Report of the Committee on the Elimination of Discrimination against Women, Eleventh Session: Concluding Observations on the second periodic report of El Salvador” 30 January 1992, A/47/38, paras 268-302
  19. ― ―, “Report of the Committee on the Elimination of Discrimination against Women, Twenty-Eighth and Twenty-Ninth Sessions: Concluding Observations on the combined third, fourth, fifth and sixth periodic reports of El Salvador” 13-31 January and 30 June-18 July 2003, A/58/38, paras 231-280
  20. Committee on the Rights of the Child, “Concluding Observations on the combined third and fourth periodic reports of El Salvador” 17 February 2010, CRC/C/SLV/CO/3-4
  21. ― ―, “Concluding Observations on the initial report of El Salvador” 18 October 1993, CRC/C/15/Add.9
  22. ― ―, “Concluding Observations on the second periodic report of El Salvador” 30 June 2004, CRC/C/15/Add.232
  23. ― ―, “General Comment No. 4: Adolescent Health and Development in the Context of the Convention on the Rights of the Child” 1 July 2003, CRC/GC/2003/4
  24. ― ―, “General Comment No. 15: The Right of the Child to the Enjoyment of the Highest Attainable Standard of Health (Article 24)” 17 April 2013, CRC/C/GC/15
  25. Ertürk, Yakin, “Report of the Special Rapporteur on Violence against Women, its Causes and Consequences. Integration of the Human Rights of Women and a Gender Perspective: Violence Against Women. Addendum: Mission to El Salvador (2-8 February 2004)” 20 December 2004, E/CN.4/2005/72/Add.2
  26. Human Rights Committee, Amanda Mellet v. Ireland, 9 June 2016, CCPR/C/116/D/2324/2013
  27. ― ―, “Concluding Observations on the combined third, fourth and fifth periodic reports of El Salvador” 22 August 2003, CCPR/CO/78/SLV
  28. ― ―,”Concluding Observations on the sixth periodic report of El Salvador” 18 November 2010, CCPR/C/SLV/CO/6
  29. ― ―, “General Comment No. 19: Protection of the Family, the Right to Marriage and Equality of the Spouses (Article 23)” 27 July 1990, HRI/GEN/1/Rev.9 (Vol. I)
  30. ― ―, L. v. Peru, 22 November 2005, CCPR/C/85/D/1153/2003
  31. ― ―, M.R v. Argentina, 28 April 2011, CCPR/C/101/D/1608/2007
  32. Méndez, Juán E., “Report of the Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment” 1 February 2013, A/HRC/22/53
  33. ― ―, “Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” 5 January 2016, A/HRC/31/57
  34. UNGA, “Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment” 9 December 1988, A/RES/43/173
  35. UNGA, “United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules)” 8 January 2016, A/RES/70/175

Books and articles

  1. Agrupación Ciudadana, Del hospital a la cárcel: consecuencias para las mujeres por la penalización sin excepciones de la interrupción del embarazo en El Salvador (San Salvador: Agrupación Ciudadana, 2013)
  2. ― ―, “Beatriz, 9 semanas de lucha y espera” (San Salvador: Agrupación Ciudadana, 24 April 2014) <http://agrupacionciudadana.org/biblioteca/publicaciones/otras-publicaciones.html&gt;
  3. Amnesty International, On the Brink of Death: Violence against Women and the Abortion Ban in El Salvador (London: Amnesty International Ltd., 2014)
  4. ― ―, Separated Families, Broken Ties – El Salvador: Women Imprisoned for Obstetric Emergencies and the Impact on Their Families (London: Amnesty International Ltd., 2015)
  5. Center for Reproductive Rights and Agrupación Ciudadana, Excluidas, perseguidas, encarceladas: El impacto de la criminalización absoluta del aborto en El Salvador (New York: Center for Reproductive Rights, 2013)
  6. Center for Reproductive Rights, “Manuela Toolkit”, 21 October 2014, <https://www.reproductiverights.org/document/manuela-toolkit-english&gt;
  7. Goldberg, Michelle, The Means of Reproduction: Sex, Power, and the Future of the World (New York: Penguin Press, 2009)
  8. IPAS, “Inter-American Commission on Human Rights to hear Beatriz case against El Salvador” 14 April 2015 <http://www.ipas.org/en/News/2015/April/Inter-American-Commission-on-Human-Rights-to-hear-Beatriz-case-against-El-Salvador.aspx&gt;
  9. Kampwirth, Karen, Feminism and the Legacy of Revolution: Nicaragua, El Salvador, Chiapas (Athens, OH: Ohio University Press, 2004)
  10. McNaughton Heathe Luz., et al, “Patient Privacy and Conflicting Legal and Ethical Obligations in El Salvador: Reporting of Unlawful Abortions” 96:11 American Journal of Public Health (2006) 1927-1933
  11. Nolen, Stephanie “El Salvador: Home of the World’s Strictest Anti-Abortion Law” The Globe and Mail (Toronto, 18 September 2015) <http://www.theglobeandmail.com/news/world/el-salvador-home-of-the-worlds-strictest-anti-abortion-law/article26442683/&gt;
  12. María Teresa Ochoa, María Teresa, and García, Sara, ¿Por qué me pasó esto a mí? La criminalización del aborto en El Salvador (Managua: IPAS Centroamérica, 2013)
  13. Pollack Petchesky, Rosalind, Global Prescriptions: Gendering Health and Human Rights (London: Zed Books, 2003)
  14. Provost, Claire “El Salvador: meet the women who dare challenge the anti-abortion state” The Guardian (London, 17 April 2014) <http://www.theguardian.com/global-development/2014/apr/17/beatriz-case-resistance-el-salvador-abortion-law&gt;
  15. UNFPA, The Danish Institute for Human Rights and the United Nations Office of the High Commissioner for Human Rights, Reproductive Rights Are Human Rights: A Handbook for National Human Rights Institutions (New York: United Nations, 2014 HR/PUB/14/6)
  16. UN Population Division, Abortion Policies: A Global Review (New York: United Nations, 2002)

 

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