Beatriz vs El Salvador: the drama of a young woman who can change the most restrictive abortion legislation in America

“When my daughter was diagnosed with lupus and a pregnancy, the doctors had told her that she could not continue with her pregnancy, because both their lives were in danger. That there was only one way for her to be saved anyway, but that they couldn’t do it. They couldn’t allow an abortion.” With the intervention of Beatriz’s mother, a historic hearing in the defense of sexual and reproductive rights in El Salvador begins. This Wednesday and Thursday the Inter-American Court of Human Rights (IDH Court) investigates for the first time the consequences of the absolute criminalization of abortion that is included in the Salvadoran Penal Code as a crime under any circumstance since 1998. A favorable ruling for the family could crack the most restrictive anti-abortion legislation on the continent, which condemns the interruption of pregnancy with penalties of up to 50 years in prison, and sets a precedent in the region. “For my daughter, making the decision to want to continue living was torture. I just want no one to go through what my daughter went through. Only that ”, she explained, contained by her mother, in the court of San José (Costa Rica).

Beatriz was 21 years old and a nine-month-old boy when she was given a difficult diagnosis: she suffered from lupus, severe kidney damage and arthritis. She also learned at that age that she was pregnant with a fetus that was developing without a skull or brain, with a malformation incompatible with life. Despite the fact that the young woman requested that her pregnancy be interrupted when she was 13 weeks pregnant, the State’s omission forced the young woman to submit the case to the inter-American human rights system. In May 2013, 13 weeks after Beatriz’s petition, the Inter-American Court urged that they end the pregnancy. The State then finally agreed to perform a caesarean section —a much more invasive operation than initially required— and the fetus died five hours later. As a consequence of the late intervention, Beatriz’s health weakened “extremely” and she died four years later after being hospitalized for a minor motorcycle accident.

When Dr. Guillermo Ortiz, who was also in charge of her first pregnancy, evaluated the risks of this new pregnancy, he scored a “high risk” if she continued. “Given that there was no possibility of reversing the congenital anomaly of the fetus, we only had to protect the life of this woman,” he explained in front of the seven independent magistrates who lead the highest court in the region, gathered this Wednesday in San José.

The recommendation to terminate the pregnancy was raised to a committee of 15 concurring doctors. However, they could not carry out the suggested treatment “for fear of reprisals.” In El Salvador, health workers who recommend or perform pregnancy terminations face up to 12 years in prison. Criminalization also makes many of them violate professional secrecy and report their patients suspected of intentional abortions to avoid going to jail.

A failure that can generate a historical precedent

After the two days of hearings this week, the parties will have 30 days to present written arguments and the court is expected to issue a decision by the end of the year. A ruling in favor of Beatriz opens several scenarios that will ultimately depend on the Government of Nayib Bukele. The president, who presented himself as the only one capable of solving the injustices in El Salvador, has mutated all of his policies into authoritarian measures that ignore human rights, including access to abortion. “When we went with my wife to see the first ultra and we saw that little heart, for me it was already my daughter. And to think about destroying or killing him… It is difficult even though he is the son of a rapist, he is your son, ”Bukele said in an interview. Gone are his pronouncements in the electoral campaign when he called those who demanded that Beatriz continue with the pregnancy “fanatics”. In 2021, he stood up loud and clear against the legalization of abortion on any grounds. He even came to compare it on several occasions with a “genocide”.

This is not the first time that international eyes are on El Salvador in this matter. In February 2020, the UN forced three women victims of an obstetric emergency to be released from prison. Since 2009, 70 women have been released for similar diagnoses. Rosita was the last and spent 4,934 days behind bars, but there are still six more deprived of liberty. “The president always talks about how he’s going to ‘change history.’ This is a perfect moment to do it”, explains Alejandra Burgos, a member of the Feminist Collective, co-litigants in the case. “This trial is not an attack on Bukele, as some want to make it appear. This is to demand justice for what happened in 2013 and what continues to happen with so many other women, ”she says from the entity’s headquarters, today dyed purple and green.

“Why didn’t you abort outside the system?”

In one of the classrooms of the Faculty of Jurisprudence and Social Sciences of the University of El Salvador, from where the hearing is projected, dozens of women click their tongues when asked by one of the most conservative magistrates in the Chamber, Humberto Antonio Sierra. Porto to Dr. Ortiz: “If I were a woman who was told that her life was at risk and that my son was going to be born without a head… Knowing that there are ways to abort illegally, why not do it? did it outside the system? “Well I do not know. But for that you have to have resources. And I knew her and she didn’t have them”, Dr. Ortiz responded.

Although El Salvador is one of the twenty countries that recognize the inter-American human rights system, the fear of feminist organizations is that the Bukele government will not comply with the binding measures that the Inter-American Court will request. “Unfortunately, in the current context, it is an option, since this government has made alliances with anti-rights groups and has spoken out against the rights of women and girls… That is the great concern,” explains Erika Guevara, regional director of Amnesty International.

This concern is shared by dozens of gynecologists in the country, who since 1998 have had to give women with risky pregnancies the same answer: “I can’t do anything.” Doctor Miguel de Guidos is one of them. “There are cases in which science shows us the recommendations, but we are tied hand and foot,” he explains.

Both feminist organizations and the data show a reality that is repeated over and over again: criminalization does not cause a decrease in the number of abortions. It just forces women to find unsafe ways to do it. The knitting needle, a hanger, injections of soapy water, herbal infusions… Methods that hurt so much that they force them to “hold on to the sink”, as Annie Ernaux noted in the intimate first-person account, The Event. “I was also willing to hold on to the sink. It never occurred to me that I might die.” In Central America and the Caribbean, where the only five countries that include abortion in the Penal Code are concentrated: El Salvador, Haiti, Honduras, the Dominican Republic and Nicaragua, hundreds of women have lost their lives due to anti-abortion legislation.

“My daughter was given a crib after deciding to have an abortion”

During the first session of the hearing, Dr. Ortiz and Beatriz’s mother denounced the persecution of anti-rights groups, self-styled “pro-life”, with a strong presence in the country and in sectors of the Government. “My daughter was given a basket (crib) after making the decision to abort,” says her mother, dismayed. The team of lawyers accompanying the case regrets that the young woman also received woolen hats after the cesarean section in which the fetus was born, as established by the doctors without a skull or brain. “We are experiencing real torture,” added the mother.

These groups have closely followed the litigation and have called demonstrations in front of the IACHR headquarters and online prayer vigils throughout the continent. This religious and ultra-conservative sector accuses feminist organizations of manipulating history. “There is a huge lobby that also has weight in the Government. It is undeniable”, says Burgos.

Although this is the first litigation in the Inter-American System that delves into the consequences of the absolute criminalization of abortion, the Inter-American Court has already issued other historic rulings in which it has been showing its inclination towards the sexual and reproductive rights of women. In 2012, in the case of Artavia Murillo vs. Costa Rica, he declared that the protection of the embryo was “gradual and not absolute.” “The embryo cannot be understood as a person,” reads that sentence. However, eleven years after that pronouncement, the firmness of the courts is not universal. Especially in countries where the Church and conservatism have as much weight as in Central America.

“We need to discuss access to voluntary termination of pregnancy based on evidence, not opinion,” says Marcia Aguiluz, Legal Director for Latin America at Women’s Link Worldwide, by phone. “The trend in the continent is towards decriminalization, but in Central America the changes are coming slower.” For this reason, the feminist organizations of the continent have their hopes placed on the decision that comes out of this court.