Write for Rights: Abortion in El Salvador
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El Salvador stands as a State party that upholds its obligations to most of the principal international human rights treaties. El Salvador has ratified the Convention on the Elimination of All forms of Discrimination against women and the Convention on the rights of the child. This imposes compliance on El Salvador in ensuring the protection of the rights of women and young girls in accessing safe abortion health services. On a regional level, El Salvador has also taken on board several conventions necessary to diminish violence and abuse against women. These include the American Convention on Human Rights, the Inter-American Convention to Prevent and Punish Torture and the Inter-American Convention on the Prevention, Sanction and Eradication of Violence Against Women. These treaties establish the duty that El Salvador has to safeguard women against discrimination, allowing them to exercise equal rights and rectifying gender-fixated violence.
Legal history
Due to the prevalence of abortions and their contributions to maternal mortality, the Government had previously legalised this practice under certain circumstances. In 1998, a new Penal Code was enacted which completely criminalised abortion in El Salvador. Women who are convicted can serve 8 to 12 year prison sentences and potentially 30 to 50 year sentences if charged with aggravated homicide. A 1999 constitutional amendment further recognised the protection of human life from the moment of conception. Contrary to El Salvador’s international obligations, these stringent anti-abortion laws operate without any exceptions or grounds of necessity. This disregards circumstances such as rape, incest, saving the mother’s life or preserving her health, all of which are associated with the poor living conditions and insecurities that women commonly face in El Salvador.
Current situation
Under existing abortion laws, 129 women have been prosecuted between 2000 and 2011. At least seventeen women have been unfairly sentenced for up to 40 years due to their unforeseen miscarriages and still-births. These women are young, low-income and poorly educated without access to effective contraception or proper maternity health services. When they arrive at the hospital, they are often accused by medical professionals of having an abortion and subsequently reported to the police. Once at trial, these women are usually represented by public defenders and prevented from speaking for their case. Systematic suspicion and a general presumption of guilt means women are convicted despite the lack of any evidence that they directly and intentionally caused the deaths of their foetuses.
Employing the facts in 99th Geneva report on Violation of Woman’s right and Amnesty’s charts on the abortion ban, it can be perpetuated the severity these laws have had on the lives of many women and girls. Many women who have had miscarriages over the years been charged with aggravated homicide which has lead to up to fifty years of imprisonment. Many registered practitioners and nurses will forfeit their roles in assisting pregnancy related complications in fear of prosecution. Because of this ban, clandestine abortions have become a common mean in El Salvador, leading to the 19,290 abortions recorded. According to WHO, 11 percent of these cases often result in death. Suicide accounts for 57 percent of the deaths of pregnant women aged 10-19 although many cases go unreported.
What needs to be done
The current laws discriminate disproportionately against already under-resourced women who are afraid to seek medical help and are unfairly convicted for their unexpected pregnancy complications. Many are also forced to resort to unsafe abortion methods, which constitute the second highest cause of maternal mortality in El Salvador. This violates their internationally recognised rights to life, bodily integrity, privacy and patient confidentiality. This also denies them a right to due process and presumed innocence at trial. The El Salvador government needs to promptly review the cases of these incarcerated women and see to their immediate release from imprisonment. The process has already been opened up by the exoneration of Carmen Guadalupe Vasquez Aldana in early 2015, but further pressure is needed to ensure the existing health and legal system becomes more accessible to pregnant women and respects their human rights.
