Demonstration outside the IACHR, San José, Costa Rica
In 2013, Beatriz, the woman who brought El Salvador’s abortion ban to the world stage, was a young rural woman living in poverty who suffered from an auto-immune disease called lupus. At age 22, she became pregnant for the second time. She had an 18-month-old son. Her physicians at the public hospital in San Salvador advised her that, due to the lupus, the pregnancy was potentially life-threatening. In addition, the fetus was anencephalic, i.e. lacking a brain. At most, it would survive only a few hours after birth. They recommended terminating the pregnancy.
Abortion was (and is) illegal under all circumstances in El Salvador, but Beatriz requested an abortion from the government. The feminist group Agrupación Ciudadana por la Despenalización del Aborto, along with other feminist and human rights groups, mounted a campaign for Beatriz’s right to terminate her pregnancy based on the risks to her life and the fact that the fetus was not viable. Amnesty International initiated a petition calling for life-saving medical care, including an abortion; the United Nations spoke out; and the Salvadoran Minister of Health, Dr Maria Isabel Rodriguez, asked the Supreme Court to approve the request. She emphasised that Beatriz’s kidney function was deteriorating as the pregnancy advanced, and that the public health system was ready to do an abortion. The Salvadoran Attorney General for Human Rights also supported the request.
The recommendation to terminate the pregnancy was brought to a committee of 15 doctors, who all concurred. Beatriz requested an abortion when she was 13 weeks pregnant. The request was not granted, however. She then took her case to the Inter-American Court of Human Rights (IACHR). In May 2013, 13 weeks after Beatriz’s petition, the IACHR called on El Salvador to allow her to terminate the pregnancy. The state agreed to perform a C-section — a much more invasive operation than initially required — and the fetus died five hours later. As a consequence of the 13-week delay, however, Beatriz’s health was extremely weakened.
Beatriz died in 2017, after being hospitalised following a minor motorcycle accident, from injuries exacerbated by her continuing serious condition.
Although abortion in El Salvador continues to be clandestine, Beatriz helped shift the image of an abortion patient to that of a young mother with a serious medical condition who wanted to live and raise her child. Her situation changed the consciousness of the Salvadoran feminist movement and the country. Salvadoran families who had never discussed the topic of abortion watched news stories about a young woman with whom they could identify. There had never been anyone who went public asking for an abortion before Beatriz. The subject was so taboo that the word was rarely used out loud, even by feminists. Because of the social and religious taboos and the illegality, it just wasn’t discussed.
Abortion has been much discussed since then, led by the Agrupación Ciudadana por la Despenalización del Aborto, along with other feminist and human rights groups. This year, the Inter-American Court of Human Rights (IACHR) is investigating why Beatriz was not allowed to terminate that pregnancy as well as the total ban on abortion in El Salvador, which is punishable by up to 50 years in prison. A favourable ruling for Beatriz’s family could ease the anti-abortion law and set a precedent for the region. During the hearing in March 2023, in San José, Costa Rica, the seven judges heard from Beatriz’s family, as well as from two doctors involved in her case.
“I don’t want anyone to go through what my daughter went through,” her mother told the court.
Although this is the first case brought to the IACHR that examines the impact of a total abortion ban, the court has previously issued favourable verdicts on women’s sexual and reproductive rights. In 2012, in the case of Artavia Murillo vs. Costa Rica, the court ruled as follows, with clear implications for Beatriz’s case:
“The November 2012 ruling of the Inter-American Court of Human Rights (the Court) in the case of Artavia Murillo and Others v. Costa Rica generated significant jurisprudence in the area of women’s human rights. The Court noted that the right to reproductive autonomy is also recognized in Article 16(e) of the Convention on the Elimination of All Forms of Discrimination against Women, which states that women have the right to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights. The Inter-American Court’s ruling concluded that it is not admissible to grant the status of person to the embryo (Para. 223) and that the protection of the right to life under Article 4 (Right to Life) of the American Convention is not absolute, but rather gradual and incremental according to its development (paragraph 264). The Court also established that the rights to a private life and personal integrity are directly and immediately linked to health care. The lack of legal protections that consider reproductive health can result in an impediment to the right to reproductive autonomy and freedom. There is therefore a connection between personal autonomy, reproductive freedom, and physical and mental integrity (Para. 147).
“Likewise, the Court stated that “[t]he right of access to the highest and most effective scientific progress for the exercise of reproductive autonomy and the possibility of forming a family derives from the right to have access to good quality reproductive health services and assistance and, consequently, the disproportionate and unnecessary de jure prohibition or de facto restrictions on exercising the reproductive decisions that belong to each person” (para. 150). The jurisprudence of the Inter-American Court of Human Rights in this case is of special relevance for legislative proposals and trials aimed at regulating and implementing health policies that guarantee women’s access to health services for the voluntary termination of pregnancy, in accordance with the human rights to freedom, autonomy and dignity of women.”
In November 2021, the Inter-American court determined that El Salvador was responsible for the death of Manuela, who was given a 30-year prison sentence after suffering a miscarriage in 2008. Manuela died in prison two years later from cancer, after receiving an inadequate medical diagnosis and poor treatment. The State was found to have violated Manuela’s right to life, health, judicial protections and guarantees, freedom from discrimination and gender violence, and other rights. El Salvador was ordered to make full reparations to Manuela’s family and to reform its legal and health care policies, which criminalise women for seeking reproductive health care.
But what happens in regard to Beatriz’s case depends on the president of El Salvador, who came into office promising to address the injustices in the country, but has since transformed his policies into authoritarian measures that ignore human rights. In 2021, he made it clear he opposed any attempts to legalise abortion.
SOURCES: Rewire, by Kathy Bougher, 11 October 2017; ICWRSA Newsletter, 19 October 2017 ; ICWRSA Newsletter, 27 January 2021 ; Center for Reproductive Rights, 2 December 2021 ; El Pais, by Noor Mahtani, 23 March 2023 + PHOTO by Carlos Herrera