El Salvador - aborting women's rights through abortion laws

On the 20th of May the draconian laws of El Salvador have seen a slight reprieve for María Teresa Rivera, four years after she was harshly imprisoned for the premature birth and miscarriage of her baby. Ms Rivera was handed a sentence of 40 years imprisonment for the ‘aggravated homicide’ of her baby for simply having an unwanted miscarriage. [1] El Salvador has a complete and unrelenting ban on abortion and women who suffer miscarriages; stillbirths or other typically pregnancy-related complications. These women are often charged with ‘homicide’ or ‘aggravated homicide’ if it is suspected that they have caused the death in any way.[2]

Sadly Ms Rivera’s story is not the first, and unless these archaic abortion laws, which make no exception for cases of sexual assault or the jeopardy of the woman’s life being at risk, are abolished, we will continue to see these victimless women unfairly jailed. In 2015 Mirna Ramirez was released after serving almost 13 years of her sentence for attempted murder of her baby. The premature delivery of her baby was defined as an attempt of murder and it took all of 15 minutes with her lawyer for the judge to hand down a sentence of 15 years.[3]

The penalties of these offences can range from two to eight years for the women and any collaborators with health professionals liable for longer sentences of six to 12 years imprisonment.[4] Sentences for the offence of aggravated homicide attach a maximum penalty of 50 years imprisonment.

The abortion laws in El Salvador do not comply with international human rights obligations. Not only are these abortion rights breaching international human rights standards, they are also to blame for the death of 11% of women and young girls who seek illegal abortions and subsequently die through the inadequate undertaking of the procedure. Additionally women who are too afraid to seek medical assistance when experiencing pregnancy-related complications are dying as a result.[5] These deaths are entirely preventable and would not have occurred but for the abortion laws.

The old laws of El Salvador saw the 1973 criminal code permit abortions in circumstances such as rape, when the woman’s life was at risk and any foetal defects.[6] However the recent changes to the code in 1998 saw the zero tolerance and complete ban on abortions.[7] The change in the law has led to wrongful prosecutions where women are assumed guilty and as such, women with limited economic resources are unable to successfully dispute the offence.[8] These laws par with only six other countries in the world but are considered to be the most offensive and oppressive.

The release of Ms Rivera however is a positive step in achieving justice and a potential catalyst for the urgent change that is needed to rectify these draconian laws. Her release resulted for a judgment ruling that there was not sufficient evidence to establish the charges against her.[9]

[1] Amnesty International USA, ‘El Salvador: Release of woman jailed after miscarriage. A victory for human rights’ (Press Release, Amnesty International USA, 20 May 2016).

[2] Amnesty International, ‘ El Salvador’s total ban on abortion: the facts’ (Press Release, Amnesty International, 5 November 2015).

[3] Jonathan Watts, ‘El Salvador: where women are thrown into jail for losing a baby’, The Guardian (online) 17 December 2015 < http://www.theguardian.com/global-development/2015/dec/17/el-salvador-anti-abortion-law-premature-birth-miscarriage-attempted-murder>.

[4]Amnesty International, above n 1.

[5] Ibid.

[6] Jonathan Watts, above n 3.

[7] Amnesty International, above n 1.

[8] Ibid.

[9] Ibid.