El Salvador Needs to Stop Prosecuting Obstetric Emergencies as Homicides

Imagine: A young woman—a victim of sexual assault—has stomach pains. Unaware she is pregnant, she goes to the latrine and delivers a child. She loses blood and passes out. The child does not survive. The woman’s mother rushes her to the hospital where, unbeknownst to her, her doctor reports her to the authorities. The police arrive, arrest her, and handcuff her to her bed. She is brought to trial on charges that she killed the baby, despite the fact that she was unconscious at the time.

This is the story of Evelyn Hernandez—an El Salvadoran woman who was tried twice, her first conviction resulting in a thirty-year sentence. She was eventually acquitted on a re-trial for lack of sufficient evidence, but not before she had spent over two years in prison. Her story is sadly not unique. It echoes that of “Diana”—another Salvadoran woman who was charged with aggravated homicide for an obstetric emergency. While the charges against her were eventually dismissed for lack of evidence, Diana spent six months in detention.

It is Manuela’s story, too, a woman who was convicted of aggravated homicide and sentenced to thirty years in prison. She died just twenty-six months into her prison sentence from Hodgkin’s lymphoma.

How did we get here? It’s not just about El Salvador’s draconian abortion law, but discriminatory assumptions that seem to be embedded in the legal system: notions of “perverse mothers” and a sense that women should somehow be able to prevent miscarriage or loss in childbirth. For instance, in Evelyn’s case the authorities disregarded her incapacitation at the time of the birth, instead implying that a “good mother” would have saved her child. In Diana’s case, when healthcare personnel at the hospital where she sought care alerted the authorities, they also shared her sexual history, despite its lack of relevance. In Manuela’s case, the court noted in its convicting judgment that the “maternal instinct is to protect [the] child, and all complications during birth generally lead to seeking immediate care…not to deprive a newborn of its life.”

The stories of Evelyn, Diana and Manuela are not one-off, horrific events. They are a few examples of a systemic issue within El Salvador’s justice system where biased assumptions paired with aggressive prosecutions lead to the imprisonment of women who’ve endured a pregnancy loss, often on top of other trauma.

Today, two days after International Women’s Day, there is an opportunity for justice when the Inter-American Court of Human Rights hears the case of Manuela and Family v. El Salvador. The Clooney Foundation for Justice (CFJ) – where I work – and The Center for International Human Rights at Northwestern Pritzker School of Law have joined together to call on the Inter-American Court of Human Rights to hold El Salvador accountable for fundamental violations of human rights in these cases and others like them.

The rights implicated in these cases include the right to be free from gender-based discrimination, the right to health, the right to privacy, and the rights to liberty and to a fair trial. These rights are enshrined in numerous instruments to which El Salvador is party, including the American Convention on Human Rights, the International Covenant on Civil and Political Rights, and the Convention on the Elimination of All Forms of Discrimination Against Women. For instance, gender stereotyping of the kind described above runs afoul of what the UN Committee on the Elimination of Discrimination Against Women has explained is the need for a “justice system free from myths and stereotypes, and . . . a judiciary whose impartiality is not compromised by these biased assumptions.” Likewise, requiring women to prove that they were unaware of their pregnancy or that they were unable to intervene during an obstetric emergency turns the right to be presumed innocent on its head.

In an amicus brief submitted to the Court yesterday, supporting the efforts of the Center for Reproductive Rights and La Colectiva Feminista para el Desarrollo Local de El Salvador, CFJ and The Center for International Human Rights asked that El Salvador be ordered to reform its law to ensure that women who suffer obstetric emergencies are not prosecuted for aggravated homicide. The brief was based on monitoring of the cases of Evelyn and Diana by the American Bar Association Center for Human Rights as part of CFJ’s TrialWatch initiative, which monitors criminal proceedings around the world, grades their fairness, and advocates for individuals who are unfairly detained. The brief also argued that El Salvador should mandate proper training of all participants in its criminal justice system to address discriminatory gender stereotyping that occurs throughout criminal investigations and prosecutions.

The criminalization of pregnancy loss perpetuates intersectional discrimination against the most vulnerable Salvadoran women – those who are young, poor, and from rural communities, who need to go to public hospitals if they suffer an emergency. It is there that healthcare professionals report them, themselves fearing criminal sanctions if they do not. In fact, according to a study, of the 129 cases filed against women for having an abortion – which is also criminalized in El Salvador – or for aggravated homicide between 2000 and 2011, 74 complaints originated from public hospitals or the Salvadoran Social Security Institute (a government institution that provides medical insurance).

Women like Evelyn, Diana, and Manuela should not have to decide whether to forgo medical treatment for an obstetric emergency or risk being reported to law enforcement, handcuffed to their beds, and spending thirty years in prison. It’s too late for Manuela to see justice done, but the Inter-American Court has an opportunity to prevent future injustice by unequivocally declaring that the criminal prosecution of obstetric emergencies is a human rights violation.