the lawsuit before the Inter-American Court for the decriminalization of abortion

SAN SALVADOR – “My daughter told me ‘if I knew my baby was going to live, I would sacrifice myself,’ but there was no hope.” With these words, Beatriz’s mother, Delmy, began the public hearing before the Inter-American Court of Human Rights.

The Inter-American Court has heard arguments over the last two days in the lawsuit between the Salvadoran State and the family of the young woman, whose fetus grew without parts of the skull and brain and who asked her country, in 2013, to access a legal and safe abortion after being diagnosed with lupus and rheumatoid arthritis.

The petition was denied, since El Salvador has penalized abortion without any exception since 1998. The case has brought together dozens of people before the Inter-American Court of Human Rights who were outside the judicial headquarters during the hearing to raise some slogans for and against abortion. the decriminalization of abortion in El Salvador.

“Due to the lupus disease, she had excruciating pain, fevers. I cried with her to see how she suffered from her, her feet and her hands swelled from her. (…) The doctors told her that she could not continue with her pregnancy because the lives of both [feto y madre] I was in danger,” Delmy added before seven independent judges who lead the highest court in the region.

Beatriz was 22 years old when she requested the Salvadoran State to terminate a 13-week pregnancy following medical recommendations. The young woman was already the mother of a 1-year-old child and, according to Delmy, Beatriz did not want to risk dying in a high-risk pregnancy which could result in her first child being orphaned.

The State refused the young woman’s request, since Salvadoran legislation condemns all forms of abortion, including therapeutic ones. For this reason, Beatriz kept her pregnant for six months, until the doctors saw fit to perform a cesarean section. The fetus, whose diagnosis was that it would not survive outside the womb, died 5 hours after birth. While Beatriz died four years later after suffering a traffic accident that was complicated due to her weakened health.

The gynecologist and obstetrician, Guillermo Ortiz, who treated Beatriz in the two pregnancies she had, said at the hearing that there was a medical team of 15 specialists who recommended the termination of Beatriz’s pregnancy, but – according to what he said – the issue was a whole odyssey, because although it was a therapeutic abortion, it was still punishable by Salvadoran law.

“I have been working for more than 20 years in the hospital (…) and I have seen many women die because they did not have the opportunity to access a safe abortion procedure, despite the fact that I had requested it as the boss,” the doctor alleged. who acted as a witness led by the legal representation of Beatriz, made up of the organizations Citizen Group for the Decriminalization of Abortion in El Salvador, IPAS Latin America, Feminist Collective and the Center for Justice and International Law (Cejil).

While her counterpart, the doctor Rafael Barahona, who came to the hearing on behalf of the State, assured that “Beatriz’s life was never at risk,” since her chronic illnesses were controlled with medication. Proof of this, he added, was that Beatriz was not kept in the hospital continuously during her pregnancy. And, in addition, the team of specialists who recommended the interruption had “administrative charges” and “did not attend patients, fewer high-risk pregnancies.”

The expert witness proposed by the Inter-American Commission on Human Rights, Dr. Isabel Jaramillo, was blunt before the seven magistrates in her opinion that “if extrauterine life was not guaranteed”, as was the case of Beatriz’s fetus, it was not a fact that the State had an interest in that gestation.

Second day of hearing: the NGOs against the State

This Wednesday, during the second day of hearings, the organizations for reproductive rights and the State had the opportunity to present their arguments before the judges of the Inter-American Court. The NGOs that legally represent Beatriz’s case concluded that the absolute criminalization of abortion in El Salvador drags down even women who present obstetric emergencies.

“In recent years, at least 11 times, several United Nations committees have recommended that El Salvador modify the rules on abortion, but an abortion is only performed when there is imminent danger of death, which generates unnecessary risks for women. ”, explained Morena Herrera, representative of the Citizen Group for the Decriminalization of Abortion in El Salvador.

“The State failed Beatriz. She never implemented a proper treatment. (…) Our position is that the State has to adopt measures among which is the decriminalization of abortion and a comprehensive regulatory framework ”, she concluded.

While Camila Ormar, from Cejil, pointed out the responsibility of the Salvadoran State in Beatriz’s right to integrity, health, and life, since “despite the fact that Beatriz had an anencephalic pregnancy, the State insisted that there were no risks.” despite their chronic illnesses and the health condition of the fetus.

The State, represented by the lawyers Juana Inés Acosta and Ana María Idárraga, focused their defense on the fact that the fetus that was growing inside Beatriz was a human being and, therefore, holder of conventional rights, including the right to life.

“He always had a unique DNA. What would justify him not being human? His age, his condition of anencephaly, his low life expectancy at birth? Wouldn’t this be arbitrary? No one is more or less or gradually human. In any case, if the honorable Court were to affirm that it is not a human being, that it does not belong to the human species, it would have the impossible burden of explaining to which species the fetus belonged,” said Idárraga.

While the lawyer, Juana Acosta, pointed out that “no human rights treaty applicable to the States of the continent expressly establishes that the States are obliged to adopt a policy model in relation to abortion,” and that El Salvador will continue guaranteeing the life of both the mother and the unborn.

Both parties will have until April 24 to send their written arguments to the Inter-American Court. There is no date for the resolution yet.

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