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El Salvador’s Absolute Ban on Abortion

Enshrined in the penal code, which became effective in 1998, abortion is criminalised in El Salvador in all circumstances, rendering it one of the world’s most draconian abortion laws, lying in stark contrast to the global trend of liberalisation. Even in instances where the woman’s life is at risk, the pregnancy is a result of rape and where the foetus cannot survive, women are forced to continue with their pregnancies in fear of having harsh criminal penalties imposed upon them. The law consequently violates women’s rights to autonomy, bodily integrity and self-determination. Women who undergo the procedure, together with medical professionals who assist them, are faced with the possibility of lengthy custodial sentences. If convicted of having an abortion, women can face between two and eight years in prison. Between 2000 and 2014 at least 149 Salvadorian women faced criminal charges – 23 were convicted for abortion and 19 women for aggravated homicide. Most women were young, single and living in poverty.

Deeply rooted in Catholicism and conservatism, discrimination and violence against women remains systemic and permeates El Salvadorian culture. The UN Special Rapporteur on Violence against Women argues that it has served to “foster a generalized state of violence, subjecting women to a continuum of multiple violent acts, including murder, rape, domestic violence…”. Sexual violence often leads to unwanted pregnancy, elevating the need for legal reform as whilst their rapists go free, female victims are framed as perpetrators. Furthermore, outdated, stigmatising stereotypes of women as childbearers have created unreasonable obligations upon them to maintain foetal life.

In 2008 a woman named ‘Manuela’ was eight months pregnant and suffered from a miscarriage at her home. Taken to hospital, she was handcuffed to her hospital bed. At trial Manuela was convicted of aggravated homicide and sentenced to thirty years in prison, with the judge holding that her “maternal instinct should have prevailed” and that “she should have protected the foetus”. Sadly, Manuela died two years later while she was in prison, with her family being informed that her miscarriage was the likely result of undiagnosed cancer.

A few years later in 2013, the Supreme Court of El Salvador heard the case of ‘Beatriz’ – a 22 year old woman who was suffering from numerous medical complications during her pregnancy, coupled with a severe defect which led to the inability of the formation of the brain in the foetus. She wished to seek a termination as the law prohibited her from doing so. Her life was in critical danger and whilst medical professionals believed the termination necessary to save her life, the Supreme Court ruled against her and she was forced to continue with the pregnancy. The foetus survived a mere five hours. The severe delays in action by the authorities has caused Beatriz to continue to suffer from medical difficulties to this day.

Labelled as murderers, women suffering from miscarriages can potentially be sentenced to forty years in prison. In July 2017 19 year old Evelyn Beatriz Hernández Cruz was sentenced to thirty years in prison after was found guilty of aggravated homicide following the birth of a premature, still-born baby. She was accused of not receiving proper prenatal care, thereby causing the death of the foetus, in spite of not knowing she was pregnant until this point, the repeated rapes which led to the foetus’ conception and often inaccessible health care for women in El Salvador. This case signifies a need to “urgently repeal its retrograde anti-abortion law”. Sadly, such cases are not unique, creating terror amongst women that they will suffer from similar complications. In order to protect the foetus they are carrying, pregnant women suffering from cancer have died after being refused chemotherapy.

Additionally, the law has created an “atmosphere of suspicion” against women and has thus “sparked witch hunts within communities”; if neighbours, relatives or doctors suspect a woman has had an abortion they often alert the police. Consequently, those in most urgent need of care are discouraged from seeking medical help in fear of being reported to the police, thus the law impedes women’s universal right to health care. Doctors are unfairly placed in a moral dilemma – to follow their legal obligations or to break the law to save their patient’s lives. Women should not be forced to either have a secret abortion or continue with a pregnancy which places their lives in critical danger. Miscarriages and still-births are accidents, beyond the control of the pregnant woman and it is astounding that they continue to be framed as criminal acts carrying draconian sentences.

“There is a growing chorus of calls to overturn the total ban”, evidenced by the increasing number of protests by citizens, doctors, lawyers and international bodies, such as the recent condemnation of the law by the Committee on Economic, Social and Cultural Rights. In 2016 a Bill was introduced to legalise abortion in certain circumstances – where the woman’s life is at risk, foetal abnormality and where the pregnancy is as a result of rape, but the absence of progression in the Bill has rendered hopes of change somewhat diminished, undoubtedly influenced by fierce opposition from the Catholic church. A heavily politicized issue, few politicians are willing to invoke change due to the country’s conservative background.

The current law serves no legitimate purpose; the legal status of abortion fails to reduce the number of terminations and is severely detrimental to women’s safety as they seek out unsafe abortions. Extreme measures are often adopted by women to self-induce terminations, such as ingesting rat poison, taking ulcer drugs and putting sharp objects such as knitting needles and pieces of wood into the cervix. The draconian law “pushes women to the brink of death”.

There remains a desperate need for this cruel, archaic law to be overturned, thereby granting women autonomy and self-determination and ensuring that women are no longer punished for ‘crimes’ that simply do not exist.

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Written by: Francesca Esposito, 22nd November 2017

Contax Law supports Francesca Esposito in her journalism so that she can express her voice on a subject she highly values. Francesca graduated from the University of Warwick in 2015 with a 2:1 in the Bachelor of Laws (LLB) and spent her third year studying abroad in the Netherlands at Universiteit Utrecht. She was awarded a Distinction in the Master of Laws (LLM) at University College London, specialising in Criminal Justice and Social Welfare. As an avid writer, Francesca has had several articles published and has also had positions on editorial boards for legal publications both in the UK and overseas.

Francesca is extremely passionate and captivated by the field of Human Rights, driven by her study of Gender and the Law during her LLB, which motivated Francesca’s desire to scrutinise the human rights violations faced by individuals around the globe.

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