Human rights activists in Latin America hope that a historic court hearing over the case of a Salvadoran woman who was denied an abortion despite her high-risk pregnancy could open the way for El Salvador to decriminalize abortions – and set an important precedent across the region.
The inter-American court of human rights (IACHR) this week considered the historic case of the woman, known as Beatriz, who was prohibited from having an abortion in 2013, even though she was seriously ill and the foetus she was carrying would not have survived outside the uterus.
The audience marked the first time that the IACHR has discussed the consequences of the country’s total criminalization of abortion.
In El Salvador, abortion is fully criminalized in all circumstances, and can be punished by up to 8 years in prison. Women can also be charged with aggravated homicide, which holds a 30- to 50-year prison sentence.
Beatriz’s case has been taken up by feminist organizations in El Salvador and across the region who hope it could create legal changes in access to sexual and reproductive rights, including abortion, in Latin America.
Beatriz was a young Salvadoran woman who sought an abortion to end her pregnancy in 2013. She suffered from lupus, arthritis and renal failure, and the fetus she was carrying suffered from anencephaly and would not survive outside the uterus.
She appealed to the Salvadoran supreme court of justice, which denied her request for an abortion. She was eventually permitted to have an emergency C-section after she became gravely ill; her baby lived only a few hours. Beatriz died after being involved in a minor traffic accident in 2017, in part due to her ongoing physical weakness.
Anabel Recinos, a lawyer with the Citizens’ Group for the Decriminalization of Abortion, one of the groups representing Beatriz’s family, described the hearing as “a historic moment”.
“The laws on abortion are going to change,” she said.
During the audience, held in San José, Costa Rica, the seven judges heard from Beatriz’s family, as well as from two doctors involved in her case.
Dr Guillermo Ortiz Avedaño told the judges that although the pregnancy was high risk given Beatriz’s health, his hands had been tied in terms of offering her an abortion.
Marcia Aguiluz, legal director for Latin America at Women’s Link Worldwide, said: “[Dr Ortiz’s] testimony made it clear that the penalization [of abortion] doesn’t only impact women but also medical professionals.”
Doctors, nurses and other medical professionals can receive up to 12 years’ jail if they are found to have supported a woman to have an abortion.
Aguiluz said: “This case is crucially important for El Salvador. If we have a favourable result, the decision will reveal that these laws have led to the deaths of women in the country.”
Latin America has the most restrictive abortion laws in the world. Six countries completely prohibit the procedure in all cases.
In November 2021, the Inter-American court determined that El Salvador was responsible for the death of another woman, known only as Manuela, who was given a 30-year prison sentence after suffering a miscarriage in 2008.
Catalina Martínez Coral, director of the Center for Reproductive Rights’ Latin America and Caribbean office, said she hoped the court would rule that the criminalization of abortion went against the American convention on human rights and violated a wide range of human rights.
“It would mean that all countries that penalize abortion will have the update their legislation in accordance with the Inter-American court’s decision, which means they will have to end their criminalization,” she said.
Martínez Coral worried, however, that the court’s decision might rely on “perceptions of risk” to life and health. “These risks are very subjective ... If we decriminalize abortion based on exceptions… we are leaving women exposed to the subjectivity or the interpretation of the medical personnel.”
After the two-day hearing, the court is expected to take a month to write their arguments. A final decision is expected by the end of the year.
