SEPTEMBER 2015 WOMEN’S

Introduction in Recommendations Latin America in Focus for action

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INTRODUCTION

Maternal and reproductive health is high Maternal health Guatemala, Honduras and Nicaragua have on the international development agenda the highest maternal mortality (Table 1) with as critical to address in order to improve In Central America complications related rates ranging from 100-140 per 100,000 the rates of maternal mortality and mor- to and childbirth are among live births (this compares to rates in the UK bidity in many developing countries. Ma- the leading causes of mortality and mor- of 8 per 100,000). ternal health and reproductive rights are bidity of women of reproductive age intertwined, especially women’s rights to and there are high numbers of teenage Table 1: Maternal mortality rates control their fertility and to choose when . Unsafe are a se- (2013) in Central America & Mexico to become pregnant. But reproductive rious public health problem throughout Ratio per 100,000 live births rights are very contentious in many coun- the region threatening the lives of many tries in Latin America, in particular access women, particularly the poorest and Costa Rica 38 to contracepnancies. youngest. Most of these deaths, health El Salvador 69 problems and injuries could be preven- Guatemala 140 ted through improved access to adequa- Honduras 120 In this Briefing Paper we provide an over- te health-care services, including family view of the situation in the region with a fo- planning and emergency obstetric care, Mexico 49 cus on the situation of women in El Salvador and by reforming strict abortion laws Nicaragua 100 who have been criminalised because they that restrict the intervention of the me- Panama 85 had obstetric complications in pregnancy or dical profession and women’s access to attempted to terminate their pregnancies. medical care. Source: World Health Organisation 1

Women marching to demand justice for women who are imprisoned because of strict abortion laws in El Salvador Photograph by Jorge Menjívar, ACDATEE

1 women of rights they had held for over External Pressure ABORTION IN LATIN 130 years. The reform of the law was sup- ported by 52 of the 90 members of Con- The opposition of the and AMERICA gress, including many representatives of the of evangelical lobby groups to abortion and Sandinista National Liberation Front (FSLN). its decriminalisation strongly influence the In seven countries in the world abortion is This meant that the lives of women and views of policy makers in the region. For banned in all circumstances, even when the girls were put more at risk and their free- example, the views of the religious right in life of the is at risk, five are in La- dom to decide, curtailed. Today, Nicaraguan the United States have an impact in stren- tin America: Chile, Nicaragua, El Salvador, women and girls who become pregnant as gthening and giving legitimacy to anti-abor- Honduras, and the Dominican Republic. a result of being raped are faced with the tion discourses in Latin America. In the past choice of giving birth to an unwanted child two decades the policies of the US Republi- Over 4 million abortions are performed in or a dangerous unregulated ”back-street” can Party became increasingly anti-abortion Latin America every year of which 95 per termination of the pregnancy. and during the presidency of George W. cent are unsafe. Recent published data Bush funding was stopped for international (2008) gives the estimated annual rate of Legal abortion upon request during the NGOs supporting family planning provision abortions for the continent overall as 31 first trimester is only available in Cuba (sin- and counselling services. This had a big im- unsafe abortions per 1,000 women aged ce 1965), Mexico City (since 2007), and pact on funding for women’s organisations 15–44; in Central America and Mexico the Uruguay (since 2012). In the rest of Latin in the region that were offering support overall abortion rate was 29 per 1,000 wo- America, abortion is criminalised in most services such as family planning and contra- men. The rate of safe procedures was less circumstances but with some exceptions: ceptive advice or advocating for the decri- than two per 1,000 women which reflects when the life or health of the woman is at minalisation of abortion. the small number of legal abortions in Co- risk, in cases of , incest and/or foetus lombia and Mexico City as a result of chan- malformations (see Table 2). But women are ges in abortion laws 2. faced with many legal and practical hurd- Women Respond les in order to have a pregnancy terminated In most countries in Latin America abortion and these exceptions are often not availa- The Latin American feminist movement be- law is highly restrictive and there is strong ble and if they are, the bureaucracy invol- gan to push for reproductive rights in the opposition to reform, especially from reli- ved often means that by the time they are 1980s, and launched the September 28th gious and conservative sectors. For example, authorised it is too late. The consequence Day of Action for Access to Safe and Legal in reaction to Mexico City’s law expanding of this restrictive legislation is high maternal Abortion at the 5th Latin American and Ca- access to abortion, 13 of Mexico’s 31 states mortality and morbidity rates due to unsafe ribbean Feminist Encuentro (meeting) held amended their own constitutions to define abortions, which disproportionately affect in Argentina in 1990. Since then, each year life as beginning at conception which then poor and young women 3. Women in the there have been mobilisations and protests criminalised termination of a pregnancy. upper classes and financially better-off wo- by women’s organisations around this date men can afford to travel to countries with in most countries of the region 5. In October 2006 the Nicaraguan Congress more lenient abortion legislation and to use outlawed therapeutic abortion, stripping private health care services.

Table 2: Legality of Abortion & Exceptions in Latin America

Reason Country

Prohibited altogether, or no explicit legal exception to Chile, Republica Dominicana, El Salvador, Honduras, save the life of a woman Nicaragua To save the life of a woman Brazil (a), Guatemala, Mexico (a,d,g), Panama (a,d,f), Paraguay, Venezuela To preserve physical health (and to save a woman’s life)* Costa Rica, Ecuador (a) Peru, Uruguay (a) Argentina (b), Bolivia (a,c) To preserve mental health (and all of the above reasons) Colombia (a,c,d) Without restrictions Cuba (f) *Includes countries with laws that refer simply to “health” or “therapeutic” indications, which may be interpreted more broadly than physical health. Notes: Some countries also allow abortion in cases of: (a) rape, (b) rape of a mentally disabled woman, (c) incest or (d) foetal impairment. Some countries restrict abortion by requiring (e) spousal authorization or (f) parental authorization. In Mexico, (g) the legality of abortion is determined at the state level, and the legal categorization listed here reflects the status for the majority of women. Countries that allow abortion on socio-economic grounds or without restriction as to reason have gestational limits (generally the first trimester) but abortions may be permitted after the specified gestational age. Source: Guttmarcher Institute 4

2 CASE Study: Women Campaign to change the law in Chile

In Chile abortion is still forbidden under President Michelle Bachelet – the former ces of Chilean women. Civil society also any circumstance. In September 1989, Executive Secretary of UN Women- in- supports a liberalisation of the law. Indeed, one of the last acts of Pinochet’s dictator- troduced a new bill in January 2015 to in recent surveys a vast majority – between ship (1973-1989) was to repeal the 1931 liberalise the law. The bill considers legali- 69 and 80per cent - are in favour of legal Health Code, which allowed therapeutic sing abortion if the woman’s life is at risk, abortion on these three grounds, which abortion. During the past 25 years of in cases of rape, and of foetal anomalies shows an increase in support since a pre- democracy Chilean women who have been incompatible with life. Although this vious survey ten years ago 6. raped, who have an unviable pregnancy, initiative is commendable, these situations or whose health or life is at risk, have been only cover approximately three per cent of On the 4th of August 2015, the Health prohibited from undergoing an abortion. the cases of abortions that are carried out Commission of the Chilean Congress There have been several attempts to chan- every year. approved the initiative of debating the ge this legislation but none has yet been law and will vote on the bill in Septem- successful. The Catholic Church and conservative ber. Passing the law will be challenging sectors are threatening to block any reform as those against it have already said they Despite the ban, recent studies estima- and have carried out a massive campaign will ask the Constitutional Tribunal to te the number of clandestine abortions against the bill. The proposal to allow review the bill on constitutional grounds. to be 60,000 to 100,000 per year in a abortion in cases of rape has been the The Tribunal has been very conservative in country of 17 million people. Women most controversial as it relies mainly on previous decisions concerning reproductive are forced to seek abortions exposing what women say. Conservatives state that rights, so the outcome is uncertain. There them to health risks and to face criminal it will open up the possibility of abuse of is still a long way to go in order to obtain prosecution. Many women - mostly young the law, arguing that women will invent a real recognition of women’s sexual and and poor - are turned into the police by stories in order to obtain an abortion. They reproductive rights but there is still hope health care providers of public hospitals also argue that the crime of rape is super- that Chilean women will soon have the while being treated for abortion complica- seded by another ‘crime’: the murder of a possibility to access legal abortion on these tions. Additionally, 48 per cent of teenage child. These discourses completely dismiss three grounds. mothers live below the poverty line and women’s experiences. more than half come from the poorest Chilean women’s and feminist organisa- rural communities. Several international Women and feminist organisations have tions have launched the campaign on the organisations have warned Chile that the deployed many efforts in order to obtain, ‘Right to choose - Free People’ (Derecho a current situation is a violation of women’s at least, the partial liberalisation of the law decidir = Personas libres) 7 to raise aware- human rights. and the recognition of the real experien- ness of women’s right to decide over their own bodies. A group of Chilean women currently living abroad, in countries where the right to abortion is legally recognised, launched a campaign in December 2014 “For the right to choose, also in Chile” (Por el derecho a decidir, también en Chile) as a branch of the Chilean campaign. Amnesty International is also campaigning to support liberalisation of the law.

In Santiago 25th of July 2015 over 2,000 people took to the streets to support with the slogan “ we women, abort” (las mujeres abortamos)

3 International legislation tion is recognised as a component of the of life. The PFA defines sexual and repro- right to reproductive autonomy, but only ductive health as “a state of complete phy- International and regional human rights women whose circumstances fall within the sical, mental and social well-being and not instruments contain provisions applicable to three stated criteria have the right to freely merely the absence of disease or infirmity, abortion, including the rights to life, health, decide on and access this option. in all matters relating to the reproductive reproductive autonomy, freedom from cruel system and to its functions and processes” or inhuman treatment, the principle of non- Following a hearing on the Reproductive (paragraph 94). It recognises that the hu- discrimination, and the rights to dignity, li- Rights of Women at its 141st Regular Ses- man rights of women include “their right berty of the person and respect for privacy sion (April 2011), the Inter-American Com- to have control over and decide freely and and family life. Interpretations of these le- mission on Human Rights (IACHR) issued responsibly on matters related to their gal instruments by treaty bodies and courts a bold statement on abortion. It requires sexuality, including sexual and repro- have further clarified how the treaty provi- States to remove all barriers – including cri- ductive health, free of coercion, discri- sions should be implemented in relation to minal sanctions – that limit women’s access mination and violence”(paragraph 96). It abortion 10. to maternal healthcare and “reminds the also recognises the “right of women and States that therapeutic abortion is recogni- men to be informed and to have access to This was exemplified in 2006, when the Co- sed internationally as a specialised, neces- safe, effective, affordable and acceptable lombian Constitutional Court overturned a sary health services for women intended to methods of family planning of their choice” no-exceptions ban on abortions in the case save the mother’s life when it is at risk due (paragraph 97). C-355-2006 11. The Court relied on inter- to pregnancy, and that denying this service national human rights law and its interpre- constitutes an attack on the life and physical The Platform for Action calls on States to tation by treaty bodies, and in particular the and psychological integrity of women” 12. strengthen their commitment to women’s International Bill of Rights, CEDAW and the health, to deal with the health impact of regional Convention on violence against International as a major public health women, Belém do Pará. The Court ruled concern, and to reduce the recourse to that, in accordance with obligations under Commitments: The Beijing abortion through expanded and improved international human rights law, abortion Platform for Action family-planning services. It further states must be allowed in three situations: when that prevention of unwanted pregnancies the pregnancy presents a serious threat to The 1995 UN Beijing Declaration and Plat- must always be given the highest priority the life or health of the women, when the form for Action (PFA) was endorsed by (Strategic Objective C.1). Although the PFA pregnancy is the result of rape, incest or governments in Latin America. It rema- is not legally binding, it is a political com- other non-consensual or when ins a progressive blueprint for advancing mitment made by governments and rema- the foetus has malformations incompatible women’s rights with strategic objectives to ins an important international framework with life outside the womb. As such, abor- promote gender equality in all dimensions for advocacy at the highest levels.

ductive rights and safe abortion. Women intervention and it has led to the end of now have the right to go to high quality unsafe abortions in Mexico City 17. In all Legalisation of Abortion abortion clinics and can report those that states of Mexico women are permitted to are not of that standard 15. The number of have an abortion in cases of rape and, in clandestine abortion clinics has gone down most, apart from conservative states, such URUGUAY which means that women are opting for as Guanajuato and Querétaro, abortion Voluntary Interruption of safer abortions. is permitted to save the mother’s life 18. Pregnancy - Ley Nº 18.987 Women must travel from these states to (22nd October 2012) MEXICO CITY access abortions in Mexico City: 3 out of 10 women who have abortions in Mexico Reform to the Law on Health in City are from other states. th has been legal upon Mexico City - 24 April 2007 request since 2012. The law waives any CUBA “criminal penalties for abortion in the first In the federal district of Mexico (Mexi- 12 weeks of gestation, with certain pro- co City) women are permitted to have Abortion has been legal and available upon cedural requirements, and in the first 14 an abortion during the first 12 weeks request in Cuba since 1965 and was the weeks of gestation in the cases of rape.” 13 of gestation. It is the only place in the government’s response to the high number Uruguay is the 4th country in Latin America country where women can have a legal of deaths due to illegal abortions 19. Cuba to legalise abortion and the 2nd with most termination of pregnancy upon request if actively provides family planning services liberal exceptions. In the first 6 months of their lives are in danger, if they have been for women and the government also funds the new law, 400 women a month came in raped and/or if there could be any harm abortions 20. Cuba is the first country in to have abortions 14. Since the law change towards the mother: physically or psycho- Latin America to have legalised abortion the Uruguayan government has become logically 16. A total of about 71 abortions and has influenced countries such as more responsive to women’s rights and a day have taken place in the capital since Uruguay, Mexico and other countries that women’s organisations are now able to it legalised abortion, these are carried are actively seeking a change in legislation, spread awareness about sexual and repro- out safely without the need of surgical such as El Salvador and Nicaragua.

4 EL SALVADOR IN change. From the 1950s and throughout miscarriage, stillbirth or a clandestine abor- the civil war, liberation theology dominated tion. This can lead to adverse health outco- FOCUS: the discourse and activity of the Catholic mes with long-term effects on women’s Church in El Salvador. However, in 1995 health, and can also jeopardise their life if the criminalisation John Paul II appointed a new Archbishop timely medical attention is not received. The of – Fernando Sáenz Lacalle, criminalisation of abortion further violates of abortion a member of the Catholic fundamentalist the rights of women both by subjecting group Opus Dei. them to criminal sanctions for pursuing their right to healthcare and also by impeding the Prior to 1997, El Salvador’s had medical professionals responsible for the Legal situation been the most progressive in the region, frontline delivery of those rights. permitting therapeutic abortion in three cir- The law in El Salvador outlaws abortion cumstances 21. The change of El Salvador’s The rights of medical professionals are also in all circumstances, including abortion to abortion law was a direct result of the deter- violated when carrying out their professio- save the life of a woman. Previous access mination of actors such as Lacalle to remove nal duty. Healthcare staff members face to therapeutic and emergency abortion was the provision for therapeutic abortion from harsh criminal sanctions for performing repealed in 1997 (and entered into force in the statute books and to insert a person- emergency abortions or medical treatment 1998), and Chapter II of the Penal Code now hood clause (legally defining that life com- that unintentionally results in spontaneous prohibits Crimes Against the Life of Human mences at conception) into the Constitu- abortion, violating their rights to deliver Beings in the First Stages of Development, tion 22. The Catholic Church and right-wing care. This presents an ethical dilemma for with strict criminal penalties prescribed by Evangelical groups continue to support the health professionals who are torn between Section 133 for anyone who procures an ban on abortion in El Salvador today, and their obligation to protect a patient’s life and abortion or allows one to be procured. Me- vehemently oppose any change to the law. the legal restrictions placed on their ability dical professionals face even harsher penal- to deliver appropriate medical treatment. ties for any involvement, and are obliged to The abortion law ties their hands when they report a suspected abortion to the police. In Lived experience under know the medically indicated treatment re- 1999 the Legislature also passed a constitu- quired, but to deliver this would risk pro- tional amendment to declare that life begins the law secution, up to twelve years imprisonment at conception, and prosecutors now rely on and the removal of their licence to practice this to convert charges from abortion to ag- Access to critical healthcare medicine. gravated homicide. Woman and girls in El Salvador are denied The abortion law also impels them to report Women and girls are unable to access abor- access to medically indicated care in order any suspected abortion, which presents tion in any circumstances – even if their life to preserve their life or their physical and them with an additional ethical dilemma: or health is at risk, when their pregnancy is mental health. Women and girls are una- breaching patient confidentiality or facing unviable, or when the pregnancy is a result ble to receive treatment for some obstetric prosecution for failing to make the report. of rape or incest. El Salvador not only has complications, even when an emergency While there is a legal clause that states that one of the most restrictive abortion laws in termination of their pregnancy is required the duty to report crimes does not apply if the world, but it also systematically perse- to save their life. This includes ectopic preg- the information is gained through a confi- cutes women and girls under this law, even nancies, which cannot be legally treated in dential relationship, there does not appear when they have experienced natural misca- El Salvador until the foetal heartbeat stops to be widespread understanding of this. rriage, stillbirth or obstetric complications or the fallopian tube ruptures. Medical staff rather than procured an illegal abortion. members are therefore forced to leave wo- men to enter a medical emergency rather Rape and incest Poor women suffer disproportionately from than giving timely, medically indicated care. El Salvador’s absolute ban on abortion, as Sexual violence and violence against wo- they do in other jurisdictions with such laws. Women and girls are limited in the non- men and girls is endemic in El Salvador 23. The no-exceptions ban on abortion causes obstetric healthcare they are able to recei- Despite this, women and girls have no re- discrimination in relation to the rights to life ve whilst pregnant. This includes receiving course to abortion when their pregnancy is and health, and the process of prosecution any treatment that could result in the loss the result of rape or incest. Forcing the con- violates the rights to privacy, equality before of the foetus as a side effect. They are also tinuation of a pregnancy that has resulted the law, and judicial guarantees. prevented from accessing therapeutic abor- from rape causes profound psychological tion when an underlying health condition distress, perpetuates the act of violence, and seriously jeopardises their health or life. can be interpreted as an act of institutional History and context violence against women. Despite laws that Women and girls with pregnancies where criminalise sexual acts with minors under The deeply patriarchal attitudes of Salva- severe foetal abnormalities have been de- the age of 18, there are documented cases doran culture and pervasive stereotypes of tected – including those that are incompati- of girls as young as nine and ten being for- women as mothers and child-bearers rein- ble with life outside the womb – are forced ced to continue with pregnancies resulting force gender inequality and sex discrimi- to continue with these pregnancies, causing from such rape (statutory or otherwise), re- nation. This situation is reinforced by the serious mental distress. The threat of being gardless of the extreme risks this presents to attitude of the Catholic Church, which was reported to the police also has a chilling their physical and mental health. the key driver of the regressive legislative effect on women seeking medical care after

5 human rights system for help and the Inter this was classed as a birth rather than an Beatriz American Commission on Human Rights abortion. As anticipated, large parts of the granted Beatriz ‘protective measures’, baby girl’s head and brain were missing and urging El Salvador to provide her with the she died within a few hours of birth. Beatriz The case of Beatriz brought El Salvador’s medical treatment recommended by her survived, but is still not clear what the long- prohibition of abortion into international doctors and in accordance with her wishes term effects of the delay in treatment will headlines in 2013. Beatriz had medical within 72 hours. Yet still Beatriz did not be on her physical and mental health. conditions (lupus and kidney disease) receive the necessary treatment. that meant her health – and indeed her Although there was significant internatio- life – was in grave danger if the pregnancy United Nations Special Rapporteurs called nal support in the case of Beatriz, her care continued. In addition, the foetus she was on the Salvadoran government to urgently was not delivered in a timely manner. The carrying was anencephalic - a condition provide Beatriz with the necessary medical delays endangered Beatriz’s life and health incompatible with life outside the womb. treatment to save her life. Hundreds of with every day that passed, and made This exposed the ban on abortion at its thousands of emails, faxes and letters the treatment that she ultimately received most perverse - a woman’s life should be calling for the treatment to be given were much more physically and mentally risky put in danger for the sake of a foetus that sent by activists and ordinary people than if it had been delivered in a timely could not survive. around the world, and demonstrations in manner. Moreover, these were made pur- support of Beatriz were organised outsi- posefully by the authorities in order not to By March 2013, Beatriz’s doctors knew de Salvadoran embassies. On 29 May, in set a legal precedent for access to medi- that although her deteriorating health indi- response to the seriousness of the situation cally indicated therapeutic abortion, and cated the need for a therapeutic abortion, and the Salvadoran authorities’ failure to instead to disguise it as a premature birth the law tied their hands. In April Beatriz’s provide Beatriz with the treatment, the through caesarean. legal representatives from the ACDATEE Inter-American Court of Human Rights appealed to the Constitutional Chamber ordered the state to take all necessary ACDATEE have helped Beatriz to take her for her to be given the treatment she steps to enable Beatriz’ doctors to treat her case to the Inter American Commission needed without further delay. Despite the without interference. This was a unique on Human Rights. The complaint was filed medical urgency, no decision was forthco- and ground breaking step by the Court on before the IACHR in November 2013 by ming on whether she was entitled receive such an issue. ACDATEE, The Feminist Collective for Local urgent medical treatment to safeguard her Development of El Salvador, IPAS Central life and health. On 3 June, the Salvadoran government America Center for Justice and Interna- finally permitted Beatriz to have an early tional Law (CEJIL). At the start of April In light of the failure of the national autho- . Their delays had forced 2015, the IACHR asked the Salvadoran rities to act to protect her life, Beatriz’s Beatriz to wait until she had passed the authorities to provide a full report of their representatives approached the regional 26th week of pregnancy, which meant that treatment of Beatriz within three months.

Pregnancies in adolescents It is understood that some of these deaths be much higher than this estimate. Wo- and girls occur when women or girls ingest poison men and girls in El Salvador are forced to in an attempt to trigger an abortion. use dangerous methods of self-abortion, In 2013 a third of births in El Salvador were such as: ingesting pesticide or rat poison, to adolescents and girls under the age of using tablets of 27 (a medi- 19, and over 23 per cent of 15-19 year Unsafe abortions cation to treat stomach ulcers) as vaginal olds have been pregnant at least once 24. suppositories, and inserting sharp objects These young women and girls are dispro- It is internationally accepted that the cri- such as umbrella spokes or knitting needles portionately affected by the absolute ban minalisation of abortion does not prevent through the cervix. In addition to the inhe- on abortion. Pregnancies in this group ca- abortions, but prevents access to safe rent dangers of such techniques, they also rry an extremely high risk of complications abortion. Abortion rates in countries with run the risk of being given unsafe medica- that can include the need for therapeutic restrictive laws tend to be higher, with such tion. One case has been documented of a abortion to preserve the health or life legislation resulting in unsafe, illegal abor- girl being given suppositories to induce an of the girl or young woman. However tions 25. Methods of unsafe abortion inclu- abortion that contained caustic soda and doctors’ hands are tied when they need to de self-abortion and abortion carried out caused horrific internal injuries. deliver medically indicated care, leading to by non-professionals. These may take place adverse outcomes, long-term health issues in unsanitary conditions and may lead to The ban on abortion has a chilling effect and deaths. Without access to safe and le- complications, long-term medical issues, on women who need aftercare or who gal termination of pregnancy, adolescents and death. El Salvador’s Ministry of Health suffer from complications after an un- and girls turn to increasingly desperate estimates that there were nearly 20,000 safe abortion, as they are reluctant to measures. Alarmingly, suicide is now the clandestine abortions between 2005 and seek medical care because of the risk of leading cause of in preg- 2008, and that a quarter of them were in prosecution. This can cause further severe nant adolescents and girls, accounting for adolescents and young girls 26. The real complications as well as an increase in at least 57 per cent of deaths in this group. figure for clandestine abortion is likely to mortality.

6 Persecution of young, poor, lack financial resources, they can only ac- of poverty, young women who have low uneducated women by the cess public health services and statutory le- levels of education, know little of the law, gal counsel, and as a result are also dispro- and have little help to prepare a defence for State portionately more likely to have their rights their case. Therefore the Attorney General violated by the state bodies involved. easily obtains prosecutions and the women Women of low socio-economic status who remain incarcerated.” are suspected of having undergone an abortion are systematically reported to the Prosecution of women under police, even when they have undergone a miscarriage (spontaneous abortion), still- the abortion law, following birth or premature labour. Following a re- obstetric complication, port to the police, they are often shackled miscarriage or stillbirth to their hospital bed and then transported straight from the hospital to prison, often in a grave medical situation. Women who Article 133 of the Penal Code establishes are poor are only able to use public hospi- that anyone who causes an abortion or tals, and all the reports accusing women of knowingly allows an abortion to take pla- abortion have come from public hospitals; ce can be punished with two to eight years not one such report has come from a pri- in prison. In addition to imposing criminal Photograph by ACDATEE vate clinic or hospital. In this manner, poor sanctions for accessing an essential com- These women’s trials fall short of the inter- women are disproportionately affected by ponent of reproductive healthcare, this national standards for a fair trial and equal these violations of their right to presump- has also led to the arbitrary imprisonment protection of the law. There are documen- tion of innocence, privacy and patient con- of women who have suffered a miscarria- ted cases of women who have been charged fidentiality. ge or an obstetric complication. Because with abortion-related crimes in El Salvador the Constitution now states that life beg- who have been unable to meet with legal Healthcare professionals in El Salvador are ins at conception, the Prosecutor habitually counsel prior to their trial and who have obliged to maintain patient confidentiality, converts this into the crime of aggravated not been permitted to testify in their own but also to report any crimes to the police, homicide, which is punishable by 30 to 50 defence. Expert evidence is provided by the including that of abortion 28. This presents years in prison. prosecution only and is often insufficient to a conflict between their professional and le- support the charges and in particular the gal obligations. The manner and speed with The Citizens Coalition for the Decriminalisa- charge of aggravated homicide. For ins- which reports are made – prior to any inves- tion of Abortion – ACDATEE - has recorded tance, the autopsy may list the gender and tigation or gathering of evidence - violates the cases of over 129 women who were approximate gestational age of a foetus, the right to the presumption of innocence 29. imprisoned for abortion between 2000 and but not the cause of death or whether it 2011, and more than 26 who have been was a live birth 31. Prosecutors and judges Poor, young, rural women and adolescents prosecuted for aggravated homicide, after routinely rely on the conjecture of witnesses are disproportionately more likely to suffer an abortion, miscarriage or stillbirth 30. Mo- and on their own prejudicial beliefs about from obstetric complications and to require rena Herrera, president of ACDATEE, notes the roles and responsibilities of women and medical treatment because their pregnan- that the majority of the women who have mothers to justify convictions. This process cies are more risky due to factors such as been imprisoned share a similar profile: violates women’s right to equality before age, poverty and nutrition. Because they “They are women who live in a situation the law and judicial guarantees.

The work of ACDATEE To promote public awareness of the need to change the existing legislation on with networks of women’s groups throug- abortion, so that is permitted when requi- hout the country. They are also working red for medical or psychological reasons The Agrupación Ciudadana por la Despena- with medical professionals and organi- lización del Aborto Terapéutico, Ético y Eu- sations to develop a protocol on patient To provide legal defence for genésico (ACDATEE – The Citizens Coalition confidentiality and professional ethics in economically disadvantaged women who for the Decriminalisation of Therapeutic, relation to reproductive healthcare. ACDA- have been convicted or are being accused Ethical and Eugenic Abortion) campaigns TEE provides legal counsel and represen- of abortion and related crimes and who for the decriminalisation of abortion in El tation to women prosecuted under these request their support. Salvador through national lobbying and laws, and aims to secure the release of all engaging with international actors. women who have been imprisoned under To Educate, inform and communi- these laws. cate throughout society that women need ACDATEE works on influencing public appropriate sexual and reproductive health- opinion and broadening the debate on ACDATEE has three priority objectives that care, so that they do not resort to unsafe abortion through media work and engaging guide their activities: abortions that endanger their lives.

7 Judicial review of cases and disproportionate. However, women further discrimination. These women’s im- have generally served a substantial time in prisonment and their enduring criminal prison before such a review is granted, and records also have an extremely detrimental During the last decade, ACDATEE has wor- they are not exonerated of the crimes. effect on their families and children. ked on judicial reviews for ten women who have been imprisoned for life under the The refusal to exonerate these women However, the recent release of Carmelina abortion law in El Salvador. means that they cannot receive reparations Pérez by an appeals court in city of La Unión for the time they have spent in prison. Fur- was a significant and positive judicial deci- In all these cases, the result of judicial re- thermore, it has an ongoing impact on all sion. As well as granting justice and free- views was that the sentence was commu- aspects of their lives, and in particular on dom to Carmelina, the appeals court deci- ted or annulled on the basis that evidence their right to work: their papers still contain sion could set a precedent in the fight for was insufficient to support prosecution, or their ‘criminal record’ and they are unable reproductive justice in El Salvador on two that the sentence was excessively severe to secure work as a result, thus suffering critical points (see box).

Sonia Esther Tábora’s case is emblematic of the lived experience of El Salvador’s abortion law. In 2005, Sonia was sentenced to 30 years in prison for aggravated homicide after she suffered a miscarriage. All aspects of her detention and trial reflect intersectional discrimination on grounds of sex and socio-economic status.

In the middle of the night of 19 February 2005, 20-year-old Sonia went into premature labour at seven months, alone, in a coffee plantation near her home in rural El Salvador. Her family found her collapsed, haemorrhaging and in a state of shock, and took her to a health centre for help. Sonia explained what happened, but the doctor accused her of provoking an abor- tion and reported her to the police. Her patient confidentiality was violated, she was presumed guilty rather than innocent, and she was shackled to her bed and then transferred from hospital to remand as though she were a dangerous criminal..

Her trial fell far short of international standards: no autopsy was carried out, the prosecution presented no evidence, and the ruling relied solely on the conjecture of the doctor and the judge. She was sentenced to 30 years in prison for murder. Sonia spent seven and a half years in prison before being released on 14 August 2012, following a review of her sentence. Although she was released, the tribunal judges did not admit there had been a judicial error, and she has not been exonera- ted of the crime nor awarded compensation.

In 2015 the situation took a twist when Sonia was recalled to court for a retrial, after the Prosecution appealed against her release. ACDATEE have provided Sonia with legal representation to defend her case. At the time of writing her case had been heard by the Tribunal, but they delayed making their decision public. The trial has now been postponed, so Sonia continues to live with uncertainty about the future and her freedom.

Carmelina is a 21-year-old Honduran who was working as a domestic employee in El Salvador. She was found guilty of homicide and sentenced to 30 years in prison after suffering a miscarriage and spent 16 months in prison. Her sentence was overturned on appeal and she was acquitted of all charges on 23 April 2015. The court ruled on two points that are critical to ensure due process and justice for those accused of abortion-related crimes.

Firstly, the court ruled that patient confidentiality must be observed, and that doctors violate the law if they testify against their patients and reveal information gained through that confidential relationship. Such a violation of confidentiality meant that the doctor’s testimony was not valid, and this was automatic ground for annulment of the trial and the conviction.

Secondly, the court ruled that trial judges must base their decisions on the evidence presented and not on conjecture. While the judge agreed with the cause of death, he ruled that the prosecution failed to provide evidence that proved that the defendant had taken any action to cause that death or commit a crime. The prosecution must present scientific evidence to support all allegations, and judges must make convictions based on this evidence and not on speculation or prejudiced beliefs about the roles of women and mothers.

Although this is a positive judicial decision, the prosecution still has the legal right to appeal this acquittal and request a re-trial.

8 The ‘Las 17’ Campaign

In 2014 ACDATEE launched the ‘Las 17’ authorities announced that they would not campaign to free and pardon 17 women be considering granting pardons for the rest who have been wrongly sentenced to life of Las 17. imprisonment under El Salvador’s abortion Fifteen of Las 17 remain in prison, their laws. In April 2014 they filed a petition to request for pardon having been rejected. pardon 17 women charged with murder Mirna, one of Las 17, was released at the and imprisoned for up to 40 years under end of 2014 after completing her 12½ year this unjust and discriminatory law. Their sentence for attempted murder. She was trials were grossly flawed and did not meet prosecuted following the unattended bir- international standards, with convictions th of her second child, which survived, and being made in the absence of any direct sentenced after a trial where no evidence evidence or conclusive autopsies. was presented. Although she is no longer in Photograph by Jorge Menjívar, ACDATEE prison, she has not received a pardon: the These cases follow a similar template: Supreme Court approved her pardon, but young women living in poverty, often sin- the Legislature did not vote to confirm it. gle mothers, and with only basic levels of education who experienced an obstetric emergency – a miscarriage, stillbirth or pre- mature labour – alone and without medical Carmen Guadalupe was 17 years old when she had a stillbirth in attention. They were denied due process, the eighth month of a pregnancy that was the result of rape. She was rushed presumed guilty rather than innocent, so- to hospital, where she was accused of provoking an abortion. Her state-provi- metimes even shackled to their hospital ded counsel, whom she met with just before her trial, advised her not to say beds, and prosecuted for murder despi- anything in the trial. This was the only advice she was given and this legal repre- te inconclusive autopsies. They were then sentative did not take any details from her about what had happened. Although convicted in trials where no evidence was no evidence was presented during the trial and the autopsy was inconclusive, presented, and decisions were based on Carmen Guadalupe was sentenced to 30 years in prison for murder. conjecture and prejudice against women. After spending seven years in prison, Carmen Guadalupe received a pardon on The Supreme Court has now looked at the 2nd vote in the legislative assembly on 21st January 2015. During the session legal process in these cases and advised the ministers maintained that she was a ‘murderer’ and her pardon was secured by Legislative Assembly on whether to pardon just one vote. Carmen Guadalupe was not cleared of the crime, but pardoned these women. In January 2015 one of Las after the Supreme Court admitted there had been ‘judicial errors’ in her prose- 17 was granted a pardon (see box). Car- cution and trial. She was released on 20th February 2015, and is the only one of men Guadalupe was the first woman to Las 17 to have received a pardon. have been pardoned in El Salvador’s recent history. Shortly afterwards the Salvadoran

Photograph by Jorge Menjívar, ACDATEE

Photograph by Jorge Menjívar, ACDATEE

9 Maria Teresa is one of Las 17 who is in prison, serving a 40-year sentence for murder. When she was arrested she was a 29-year-old single mother of one, who did not know she was pregnant when she gave birth prematurely in a latrine. Her family found her haemorrhaging heavily and took her to hospital. Medical staff accused her of provoking an abortion and turned her over to the police.

During the trial the gestational period was not established, and conflicting dates and timelines were presented. The au- topsy gave the cause of death as perinatal asphyxiation, which can be caused by a number of natural obstetric complica- tions during or directly after birth - such as the cord being round the neck causing strangulation. The doctor who treated Maria Teresa testified that it could not be determined whether this was a normal-term birth or an abortion. The judge interpreted the cause of death as having been provoked by aggression, even though there was no medical basis for this.

Despite numerous inconsistencies in her trial and a complete lack of any direct evidence that she took any intentional action that resulted in the death of the new born, Maria Teresa was convicted of murder and sentenced to 40 years in prison in November 2011. Her young son has health and emotional problems and is being cared for by his elderly grandmother.

Human rights defenders

The decriminalisation movement is now gaining terrain in El Salvador and there is a more nuanced social debate around abor- tion, stimulated largely by the high-profile case of Beatriz and the campaign for Las 17.

As this momentum around the debate has picked up so has a very negative media campaign. The main media outlets in El Sal- vador are controlled by a few very power- ful elite families, some of whom are deeply involved in the pro-life campaign and reli- gious evangelism. They have published ar- ticles in the mainstream media calling ‘Las 17’ child-murderers and, most worryingly, Photograph by CEJIL (centro por la justicia y el identifying them by their real names. box). Notably these suggest that human derecho internacional) rights defenders and ACDATEE, in calling There have also been threats made in the for access to safe legal abortion in line with media to human rights defenders themsel- international human rights law and medical ves, these have recently increased and this indicated care, is in itself a violation of the backlash is linked to the smear campaign abortion law and that they should be char- against Planned Parenthood in the USA (see ged under it.

This attack was related to a campaign the accusation and said the heavily edited Backlash launched in July 2015 in the USA against videos are misleading. Planned Parenthood Federation of America The backlash against women human rights (PPFA). They are accused of using the tis- Women’s organisations in El Salvador defenders who are campaigning for the sues of foetuses from abortions carried out campaigning for the liberalisation of abor- decriminalisation of abortion and freedom in their clinics and selling these for research tion laws have been attacked in the press for women imprisoned on these charges purposes. Five videos were disseminated and accused of receiving funds from the in El Salvador has been gathering pace. by the Center for Medical Progress and PPFA, and of being terrorist organisations. In August 2015 religious fundamentalists anti-abortion groups in the USA, which An article published in the newspaper and right-wing conservative groups used were filmed covertly and selectively edited, La Prensa Grafica in El Salvador with the social media to attack ACTADEE and the in order to try to show that the PPFA is headline: Funds from an NGO linked to Women’s Collective for Local Development. involved in selling organs and tissues for organ trafficking used for a pro-abortion bio-medical research. The PPFA has denied campaign, was published on August 16th

10 2015 implicating ACTADEE and the Femi- Neither ACTADEE nor the Colectivo Femi- not taken any steps to protect the security nist Collective for Local Development of as- nist receive funds or have a working rela- and integrity of women human rights sociation with the PPFA. ACTADEE and the tion with the PPFA although they, together defenders. They call for the UN to urge Collectivo Feminista were not contacted with many other organisations worldwide, national and regional authorities to regu- by the newspaper prior to publication and signed a letter supporting the PPFA in res- late public communications in the media have written to the newspaper asking for ponse to these attacks in the media. They which report untrue events and that incite the right to reply to these allegations. They have presented a report to the UN Special violence against human rights defenders, had not (at the time of writing) received a Rapporteur on Human Rights Defenders especially those defending sexual and reply from the newspaper. The campaign documenting the attacks against them and reproductive rights. was taken up by fundamentalist groups in denouncing that these groups are able to social media, and the women’s organisa- act with impunity, with no basis on the tions continue to be viciously attacked. truth, and that the Salvadoran State has

Latest developments

In April 2015 El Salvador underwent its se- The Inter-American Commission cond Universal Periodic Review at the Uni- on Human Rights ted Nations, and 10 recommendations were made to bring its draconian abortion law in line with international human rights stan- dards. While the Salvadoran government The IAHCR has agreed to hear two explanations about its role and res- accepted most of the other recommenda- cases arising from the prohibition ponsibility in the treatment of these tions, they rejected all the recommenda- on abortion in El Salvador - those two women and in Manuela’s death, tions on revising laws on abortion. of Beatriz (see box page 6) and and to respond within three months. ‘Manuela’. However the government did not In March 2015 CAWN presented a petition respond within the requested times- signed by over 300 women in the UK to the ‘Manuela’, a 33-year-old mother of cale, and - at time of writing - still El Salvador Embassy in London calling for two, was sentenced to a 30 years has not done so. to be freed and also wrote to the UK Mi- in prison for aggravated homicide nister for Human Rights on the situation of after suffering a miscarriage in The two cases remain in the IA- the women and the violation of their rights. 2008. Shortly after her incarceration CHR, pending the next stage of the she was diagnosed with advanced process. Should the IACHR ultima- In April 2015, representatives of Amnesty Hodgkin’s lymphoma – a condition tely rule against the State, it could International visited El Salvador and met that may have been a contributory demand that El Salvador implement with President Salvador Sánchez Cerén, the factor in her miscarriage. Manuela ‘measures to prevent repetition’, Supreme Court, and the leaders of the Le- was denied timely treatment and which would include significant gislative Assembly to discuss the situation she died in prison in 2010, without reform of the abortion law. and present an international petition with seeing her children again. over 300,000 signatures calling for changes to the abortion law. In April 2015 the IACHR asked the Salvadoran government to provide The Inter-American Commission on Human Rights has now accepted two cases that have arisen as a result of the abortion law in El Salvador and requested responses regar- ding them from the government (see box).

11 RECOMMENDATIONS FOR ACTION

Sexual and Reproductive rights underpin all other rights: a woman’s right to control her own body is fundamental as it influences her economic rights, life prospects and plan- ning for the future. The legal landscape in Latin America must change in order to pro- tect women’s rights to choose when to have children and to safeguard women’s mater- nal health, especially when complications arise during pregnancy. In order to do so CAWN recommends taking actions to sup- port the women’s movement in the region fighting for the following key demands:

Photograph by Jorge Menjívar, ACDATEE

1. The Inter-American Commission for 4. Human rights defenders need interna- Human Rights should push for reforms to tional support and protection in their efforts legislation on abortion in line with interna- to campaign and advocate for internationa- tional legislation and political commitments. lly agreed standards to protect women’s re- These reforms are necessary in countries productive rights. where there is a total ban and in order to bring them into line with the majority of countries which allow certain grounds for 5. Increased support for projects using abortion to protect the rights and health of alternative media, such as dramas, soap the mother. operas and social media, to question rigid social norms about women’s role and to have a more open discussion of the causes 2. International pressure should be in- and consequences of abortion. creased by the World Health Organisation to support the medical profession in Latin America. This would call for doctors being 6. International NGOs and develop- granted greater autonomy to make deci- ment programmes aimed and empowering sions when obstetric complications occur young women and girls should include re- in pregnancies and not being prosecuted productive health and rights as an integral if they support terminations when the component. Young women especially need mothers’ lives are in danger. increased support with family planning and contraceptive advice through schools, workplaces and state services. 3. Increased resources and legal protec- tion for women’s organisations in the re- gion need to be made available in order to continue to provide reproductive health and contraceptive advice services.

12 References

1 WHO - http://apps.who.int/gho/data/view.main.1390?lang=en

2 Source: Guttmarcher Institute (2008) Brief Facts on Abortion in Latin America and the Caribbean

3 Source Cora Fernandez Anderson July 17, 2013: http://rhrealitycheck.org/article/2013/07/17/the-politics-of-abortion-in-latin-america/

4 Guttmarcher Institute (2008) Brief Facts on Abortion in Latin America and the Caribbean. www.guttmacher.org

5 Cora Fernandez Anderson July 17, 2013: http://rhrealitycheck.org/article/2013/07/17/the-politics-of-abortion-in-latin-america/

6 One of the surveys carried out by “Plaza Publica Cadem” published on 13th of July 2015 showed that 69% of people sup- port the legalisation of abortion on three grounds. See: http://plazapublica.cl/quienes-somos/http://www.elmostrador.cl/noticias/ pais/2015/07/13/encuesta-cadem-mayoritario-69-por-ciento-aprueba-proyecto-de-aborto-del-gobierno/

Another survey by Corporación Humanas in 2014 showed that more than 75% of women supported abortion on three grounds. The survey was done between the 22nd and 27th of September 2014. http://www.humanas.cl/?p=14020

7 https://www.facebook.com/decidoysoylibre?fref=ts

8 To support the campaign, as an individual or/and as an organisation or group, follow this link: http://bit.ly/1sLrBGw

9 http://amnistia.cl/web/acciononline/pide-a-chile-que-ponga-fin-a-la-criminalizacion-total-del-aborto/

10 For full analysis of international law, see, for instance: Knox, Vickie, 2012. “Abortion in the Americas: Non-discrimination and Equa- lity as Tools for Advocacy and Litigation”, The Equal Rights Review, vol.9, and Amnesty International, 2014. “On the Brink of Death: Violence Against Women and the Abortion Ban in El Salvador”, AMR 29/003/2014

11 Sentencia C-355 de 2006 Corte Constitucional [C-355/2006], available at: http://www.corteconstitucional. gov.co relatoria/2006/c-355-06.htm

12 Inter-American Commission on Human Rights, “Situation on the Rights of Women”, Annex to Press Release 28/11 on the 141st Regular Session of the IACHR, 2011. Available at: http://www.oas.org/en/iachr/media_center/ PReleases/2011/028A.asp. See also Inter- American Commission on Human Rights, “Access To Maternal Health Services From a Human Rights Perspective”, OEA/Ser.L/V/II. Doc. 69, 2010. Available at: http://cidh.org/women/SaludMaterna10Eng/MaternalHealthTOCeng.htm.

13 http://www.ibtimes.com/uruguay-most-liberal-abortion-laws-latin-america-will-not-hold-referendum-against-it-1322617

14 http://www.elobservador.com.uy/noticia/253758/se-realizan-400-abortos-legales-por-mes-/

15 http://www.ipas.org/en/News/2013/October/Interview-with-Lilian-Abracinskas.aspx

16 http://www.clinicas-aborto.com.mx/legislacion/ley-del-aborto-en-ciudad-de-mexico/

17 http://mexico.cnn.com/nacional/2013/04/24/una-de-cada-3-mujeres-que-interrumpe-su-embarazo-en-el-df-es-ama-de-casa

18 http://www.gire.org.mx/index.php?option=com_content&view=article&id=409&Itemid=1154&lang=en

19 http://www.alapop.org/docs/publicaciones/investigaciones/DemogTransformations_ParteIII-5.pdf - Marisol Alfonso de Armas – Family Planning and Reproductive and Sexual Health in Cuba

20 https://www.youtube.com/watch?v=DsKvK3cdzO0

21 The 1973 Penal Code allowed abortion when a women’s life was at risk, in pregnancies resulting from rape or statutory rape, and in the case of severe foetal abnormalities. The Law also allowed for exemption from prosecution where a woman’s negligence caused an abortion, and for reduced penalties where a woman unerwent a illegal or self-induced abortion to preserve her reputation. See United Nations Population Division, 2002, “Abortion Policies: A Global Review”. Available at: http://www.un.org/esa/population/publications/ abortion/

13 22 For further details of the development of the new legislation, see Elaine Freedman, 2013, “The case of Beatriz: Who gets to decide?” Available at http://www.envio.org.ni/articulo/4728

23 See, for instance, Amnesty International, 2014. “On the Brink of Death: Violence Against Women and the Abortion Ban in El Salvador” AMR 29/003/2014

24 Amnesty International, 2014. “On the Brink of Death: Violence Against Women and the Abortion Ban in El Salvador” AMR 29/003/2014

25 Guttmacher Institute and the World Health Organisation, “Facts on Induced Abortion Worldwide,” 2012, Available at: http://www. guttmacher.org/pubs/fb_IAW.html

26 Amnesty International, 2014. “On the Brink of Death: Violence Against Women and the Abortion Ban in El Salvador” AMR 29/003/2014

27 In countries where abortion is legal, Misoprostol can be used to induce abortion under a doctor’s care. It is not thought to be dange- rous when administered under medical supervision. Due to the legal situation in El Salvador, there is no official way to obtain accurate information about its safe use or to access appropriate medical supervision, nor is there any data on its use.

28 For analysis, see IPAS, 2014, “Protecting Women’s Access to Safe Abortion Care - A Guide to Understanding the Human Rights to Privacy and Confidentiality: Helping Advocates Navigate ‘Duty to Report’ Requirements”.

29 Anecdotal reports have said that a note from the Attorney General’s Office is displayed in the maternity department of public hospitals, reminding staff of their duty to make reports, and that prosecutors have visited public hospitals to ‘remind’ doctors of their obligations.

30 ‘Del hospital a la cárcel: Consecuencias para las mujeres por la penalización sin excepciones, de la interrupción del embarazo en El Salvador’, Agrupación Ciudadana por la Despenalización del Aborto Terapéutico, 2012. Available at: http://agrupacionciudadana.org/ phocadownload/investigaciones/mujeres%20procesadas%20011013.pdf

31 A cause of death must be established in order to prove that a crime has been committed. The prosecution must than prove what action led to that death and that the accused committed that action.

32 See http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15717&LangID=E. For full UPR documentation, see http:// www.ohchr.org/EN/HRBodies/UPR/Pages/SVSession20.aspx

14 Acknowledgements

With thanks to members of ACTADEE and CAWN for their comments

Authors: El Salvador in focus by Vickie Knox Introduction and overview by Marilyn Thomson Chile case study by Lieta Vivaldi Background research: Juliana Giwa and Courtenay Howe Edited by: Marilyn Thomson Designed by: Laia Bardón Printed by: Upstream Cooperative

September 2015, London

15 The design and printing of this Briefing Paper was funded by the Safe Abortion Action Fund.

The Central America Women’s Network (CAWN) works in solidarity with women’s organisations in Central America to highlight their demands and campaigns. We campaign against the viola- tion of women’s rights that are a result of patriarchal values which perpetuate gender inequali- ty and control women’s reproduction and sexuality.

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