IACHR submits El Salvador's case to the IACHR Court on absolute prohibition of abortion

Washington, D.C. - On January 5, the Inter-American Commission on Human Rights (IACHR) submitted to the Inter-American Court of Human Rights (IACHR) the case of Beatriz regarding El Salvador, concerning the absolute prohibition of the voluntary interruption of pregnancy. The case refers to the international responsibility of the State for the violations of the rights of Beatriz and her family due to the absolute prohibition of the voluntary interruption of pregnancy, which prevented her from having access to a legal, early and timely interruption, in a situation of serious risk to life, health and personal integrity, and the non-viability of the fetus with extrauterine life.

In 2013 Beatriz, a young woman living in extreme poverty, was diagnosed with an eleven-week pregnancy, which was considered high-risk given that she was suffering from a serious illness. It was subsequently diagnosed that the fetus was anencephalic, incompatible with extrauterine life, and that if the pregnancy progressed there was a probability of maternal death. Subsequently, Beatriz's legal defense filed a writ of amparo requesting the termination of the pregnancy to save her life, which was admitted by the Constitutional Chamber, which issued a precautionary measure to guarantee her life and physical and mental health. In May of that year, the same Chamber rejected the request for amparo, considering that there was no omissive conduct on the part of the defendant authorities. Due to Beatriz's risky situation, the IACHR and the IACHR Court granted precautionary and provisional measures in her favor. On June 3, Beatriz went into labor and had to undergo a cesarean section. The anencephalic fetus died five hours later.

Specifically, the IACHR considered that although the protection of life from conception constitutes a legitimate end, the criminalization of the termination of pregnancy when there is incompatibility of the fetus with extrauterine life does not satisfy the requirement of suitability, since the non-viability of fetal life breaks the relationship of means to end between the criminalization and the purpose it pursues, given that the protected interest (the life of the fetus) will inevitably not be able to materialize. Likewise, among other aspects, it was established that the effects and risks to the rights to life, health, personal integrity and private life of Beatriz as a consequence of the lack of access to the interruption of the pregnancy, reached in the case a maximum severity, in such a way that the degree of achievement of the pursued purpose, that is, the protection of the life of the fetus was null due to its condition of anencephaly.

The IACHR established that the criminalization of abortion, in particular the prohibition under all circumstances and without exception, can encourage women to resort to illegal and unsafe abortions, putting their physical and mental health and even their own lives at risk. It was also considered that the pain and suffering that Beatriz went through since she requested the termination of the pregnancy and even after the birth and death, constituted cruel, inhuman and degrading treatment.

Finally, the Commission determined that, in view of the fact that the previous Penal Code of El Salvador had a provision that excluded "therapeutic, eugenic and ethical" abortions from criminal liability, the adoption of the current Penal Code that prohibits abortion in all circumstances constituted a violation of the obligation to refrain from adopting regressive measures by creating a legal obstacle to a health service that was available in the country under certain circumstances. This, added to the fact that the current legislation is contrary to the principle of legality because it is neither clear nor precise, generating uncertainty among health personnel as to what is licit or not to perform, with a necessary impact on access to reproductive health services. It also concluded that the State did not offer an effective remedy to the victim, and violated the right to have a decision within a reasonable period of time in the framework of the amparo recourse; and the right to personal integrity of Beatriz's family members.

The IACHR considered that the result of this regulatory framework and its impact on Beatriz's attempts to access the termination of her pregnancy resulted in her pregnancy progressing significantly, representing a permanent risk that disproportionately affected her rights, constituting violations of the rights to life, personal integrity, privacy and health, both physical and mental.

Based on the foregoing, the IACHR concluded that the State of El Salvador is responsible for the violation of the rights to life, personal integrity, judicial guarantees, privacy, equality before the law, judicial protection, and the right to health and the progressive realization of the rights established in the American Convention, in relation to the obligations established in Articles 1, 1 and 2.1 and 2. Likewise, that it is responsible for the violation of Articles 1 and 6 of the Inter-American Convention to Prevent and Punish Torture, and Article 7 of the Convention of Belém do Pará, which obliges States to prevent and punish violence against women.

In its Report on the Merits, the IACHR recommended the State, among other measures: make full reparation for the violations declared; adopt legislative measures to establish the possibility of terminating a pregnancy in situations of non-viability or incompatibility of the fetus with extrauterine life, as well as serious risk to the life, health and personal integrity of the mother; adopt all necessary measures, including the design of public policies, training programs, protocols and guiding frameworks to ensure that access to abortion as a result of the above legislative adaptation is effective in practice, and that no de facto or de jure obstacles are generated that affect its implementation, in compatibility with the applicable standards of international human rights law. Likewise, that, while said legislative adjustment is taking place.

The IACHR is a principal and autonomous organ of the Organization of American States (OAS), whose mandate derives from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission is mandated to promote the observance and defense of human rights in the region and acts as a consultative body to the OAS in this area. The IACHR is composed of seven independent members who are elected by the OAS General Assembly in their personal capacity and do not represent their countries of origin or residence.

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