On Mar. 22, 2023, dozens of people watched a live broadcast from San José, Costa Rica, on a large screen at the University of El Salvador, in San Salvador, of the open hearing of the Inter-American Court of Human Rights, listening to the testimony of witnesses in the Beatriz v. El Salvador case. The screenshot shows Beatriz's mother giving her testimony. CREDIT: Edgardo Ayala/IPS

By Edgardo Ayala
SAN SALVADOR , Mar 24 2023 (IPS)

An open hearing in the Inter-American Court of Human Rights in the Beatriz v. El Salvador case is raising hopes that this country and other Latin American nations might overturn or at least mitigate the severe laws that criminalize abortion.

That will happen if the Inter-American Court rules that El Salvador violated the right to health of Beatriz, as the plaintiff is known. In 2013 she sought to have her pregnancy terminated because it was high risk and her life was in danger."I hope that in the end my daughter's name will be vindicated, and that what happened to her will not happen again to any other woman.” -- Beatriz´s mother

But she was not given an abortion, only a tardy cesarean section, which affected her already deteriorated health and, according to the plaintiffs, eventually led to her death in October 2017.

The hearing on the emblematic case was held Mar. 22-23 at the Inter-American Court in San José, Costa Rica. Beatriz’s case builds on similar ones: the cases of Manuela, also from El Salvador, Esperanza from the Dominican Republic, and Amelia from Nicaragua.

The seven judges heard the arguments of the plaintiffs, the representatives of the Salvadoran State and the witnesses on both sides.

After the hearing, the parties have 30 days to deliver their written arguments and the magistrates will then take several months to debate and reach a resolution.

The open hearing held by the Inter-American Court of Human Rights on the Beatriz v. El Salvador case is the first time that the complete ban on abortion has been tried, and the verdict will have implications for Latin America, a region that is especially restrictive in terms of women’s sexual and reproductive rights. CREDIT: Inter-American Court of Human Rights

A historic case

“I hope that in the end my daughter’s name will be vindicated, and that what happened to her will not happen again to any other woman,” Beatriz’s mother said when testifying on the stand. Her name was not revealed in court.

The hearing has drawn international attention because it is considered historic for the sexual and reproductive rights of women in a region that is especially restrictive with regard to the practice of abortion.

“This will be the first case where the Court will rule on the absolute prohibition of the voluntary interruption of pregnancy, particularly regarding the risk to health and when the fetus is nonviable,” Julissa Mantilla Falcón, from the Inter-American Commission on Human Rights (IACHR), told the Inter-American Court.

Beatriz turned to the IACHR when the Constitutional Court of El Salvador denied, on Apr. 11, 2013, her request for an abortion.

On Apr. 19, the IACHR issued a precautionary measure in favor of Beatriz, and on May 27, 2013, it asked the Inter-American Court to adopt provisional measures which would be binding on the State.

In its November 2020 Merits Report, the IACHR established that the Salvadoran State was responsible for the disproportionate impact on various rights of Beatriz, by failing to provide her with timely medical treatment due to the laws that criminalize abortion.

The IACHR identified the disproportionate impact of this legislation on Salvadoran women and girls, especially the poor.

The Commission stated that it did not expect full compliance by the State with the recommendations of the report, and therefore referred the case to the Inter-American Court, which now, ten years later, is a few months away from handing down a resolution.

Anabel Recinos, from the Citizen Association for the Decriminalization of Abortion, one of the Salvadoran organizations that are co-plaintiffs in the Beatriz v. El Salvador case, hopes that the Inter-American Court sentence will set a legal precedent and pave the way for the modification of the 1998 law criminalizing abortion under any circumstances in El Salvador. CREDIT: Edgardo Ayala/IPS

For her part, Anabel Recinos, from the Citizen Association for the Decriminalization of Abortion, one of the Salvadoran organizations that are co-plaintiffs in the case, told IPS that she hopes that the Inter-American Court ruling will set a new precedent.

She said her hope is that the court will rule that laws in El Salvador and the region banning abortion under all circumstances must be modified.

In addition to El Salvador, Honduras, Nicaragua and the Dominican Republic are the countries in the region where abortion is completely prohibited in their penal codes. It is only legal in five countries in Latin America, while it is allowed only in strict circumstances in the rest.

“Or at least it should be allowed for specific reasons or exceptions, such as safeguarding health and life, or the incompatibility of the fetus’s life outside the womb,” Recinos said.

Twenty Latin American and Caribbean countries recognize the jurisdiction of the Inter-American Court: Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname and Uruguay.

The IACHR and the Court make up the inter-American human rights system. They are independent bodies and in the case of the Court the sentences are final and binding, although they are not always enforced.

Recinos spoke to IPS at the University of El Salvador, in the country’s capital, where dozens of people gathered to watch the hearing, broadcast live from San José, on a large screen.

The activist added that it is likely that the Court will rule against the Salvadoran State, backing the IACHR’s conclusions.

The Court is made up of judges Ricardo Pérez Manrique (Uruguay), Humberto Sierra Porto (Colombia), Eduardo Ferrer Mac-Gregor (Mexico), Rodrigo Mudrovitsch (Brazil), Nancy Hernández López (Colombia) and Verónica Gómez (Argentina).

In March 2003, Beatriz requested an abortion during her second pregnancy, because she suffered from lupus, an autoimmune disease in which the body’s immune system mistakenly attacks healthy organs, and preeclampsia, a dangerous increase in blood pressure during pregnancy, as well as other health problems.

In other words, her life was at risk. In addition, the fetus had malformations and would not live long at birth.

However, the medical personnel, although they were aware that an abortion was indicated to save Beatriz’s life, did not carry it out due to the fear of prosecution.

Beatriz was forced to continue with a pregnancy that continued to harm her health as the days went by.

But after the Inter-American Court granted provisional measures, Beatriz underwent a cesarean section on Jun. 3, 2013, almost three months after requesting an abortion.

The child, who was born with anencephaly, missing parts of the brain and skull, died just five hours later.

Activists for the sexual and reproductive rights of women in El Salvador demonstrate on Mar. 22 outside the Inter-American Court of Human Rights in San José, Costa Rica, during the hearing for the emblematic case of Beatriz v. El Salvador. Many carried green balloons, whose color is a symbol of the fight for the right to abortion in Latin America. CREDIT: Collaborating Organizations

Misogyny on the part of the State

Since 1998 El Salvador, this Central American country of 6.7 million inhabitants, has been the most drastic in the region in the persecution of abortion, punishing women who terminate their pregnancies with sentences of up to 30 years, in all cases, even when the life and health of the pregnant woman is at risk or in cases of rape.

The legislation mainly affects poor women in rural areas. According to data from women’s rights organizations, 181 such cases have been prosecuted since 2019.

Guillermo Ortiz, a gynecologist and obstetrician who specializes in high-risk pregnancies, testified before the Inter-American Court: “Yes, I saw many women die because they did not have access to a safe abortion, despite my having requested it.”

In her testimony, Beatriz’s mother said that the many doctors who treated her daughter had recommended that the pregnancy be terminated, but did not dare to perform an abortion or c-section to remove the fetus, for fear of going to prison.

“They told my daughter that they couldn’t, because in El Salvador it’s a crime, and if they did, they could go to jail,” said the mother.

“The State failed Beatriz twice,” said the mother, before breaking down in tears.

She was referring to the failure to carry out an abortion promptly, despite her daughter’s serious health conditions. She also was talking about a motorcycle accident that the 22-year-old suffered later.

“She had an accident that shouldn’t have been fatal, she was in stable condition” when she was admitted to the hospital in Jiquilisco, a municipality in the eastern department of Usulután.

But a storm caused a flood in some parts of the hospital, so they transferred her to the hospital in Usulután, the capital of the department.

“The doctor who treated her there didn’t even know what lupus was,” she said. In the hospital, Beatriz caught pneumonia.

The mother’s testimony and that of the other witnesses at the hearing has been closely followed in El Salvador and other nations by feminist and human rights organizations that have been monitoring and criticizing the country’s strict anti-abortion law.

In public hospitals in Costa Rica, like the Rafael Ángel Calderón hospital in San José, there is no protocol regulating legal therapeutic abortion, for doctors to follow. As a result, physicians restrict the practice to a minimum, leaving women without their right to terminate a pregnancy when their health is at risk. Credit: Diego Arguedas Ortiz/IPS

By Diego Arguedas Ortiz
SAN JOSE, Jun 24 2015 (IPS)

The lack of clear regulations and guidelines on therapeutic abortion in Costa Rica means women depend on the interpretation of doctors with regard to the circumstances under which the procedure can be legally practiced.

Article 121 of Costa Rica’s penal code stipulates that abortion is only legal when the mother’s health or life is at risk. But in practice the public health authorities only recognise risk to the mother’s life as legal grounds for terminating a pregnancy.

“The problem is that there are many women who meet the conditions laid out in this article – they ask for a therapeutic abortion and it is denied them on the argument that their life is not at risk,” Larissa Arroyo, a lawyer who belongs to the Collective for the Right to Decide, an organisation that defends women’s sexual and reproductive rights, told IPS.

“The problem isn’t the law, but the interpretation of the law,” said Arroyo.

She and other activists are pressing for Costa Rica to accept the World Health Organisation’s definition of health, which refers to physical, mental and social well-being, in connection with this issue.

Many doctors in public hospitals, unclear as to what to do when a pregnant woman requests an abortion, refuse to carry out the procedure regardless of the circumstances.

Illegal abortion in Costa Rica is punishable by three years in prison, or more if aggravating factors are found.

“It’s complicated because in the interactions we have had with doctors, they tell us: ‘Look, I would do it, but I’m not allowed to’,” said Arroyo.

Others say they have a conscientious objection to abortion, in this heavily Catholic country.

In Costa Rica, abortion is illegal in all other situations normally considered “therapeutic”, such as rape, incest, or congenital malformation of the fetus.

Activists stress the toll on women’s emotional health if they are forced to bear a child under such circumstances.

“Many women don’t ask for an abortion because they think it’s illegal,” Arroyo said. “If both women and doctors believe that, there’s no one to stick up for their rights.”

This creates critical situations for women like Ana and Aurora, two Costa Rican women who were carrying fetuses that would not survive, but which doctors did not allow them to abort.

In late 2006, a medical exam when Ana was six weeks pregnant showed that the fetus suffered from encephalocele, a malformation of the brain and skull incompatible with life outside the womb.

Ana, 26 years old at the time, requested a therapeutic abortion, arguing that carrying to term a fetus that could not survive was causing her psychological problems like depression. But the medical authorities and the Supreme Court did not authorise an abortion. In the end, her daughter was born dead after seven hours of labour.

The Collective for the Right to Decide and the Washington-based Center for Reproductive Rights brought Ana’s case before the Inter-American Commission on Human Rights (IACHR), as well as that of Aurora, who was also denied the right to a therapeutic abortion.

Her case is similar to Ana’s. In 2012, it was discovered that her fetus had an abdominal wall defect, a kind of birth defect that allows the stomach, intestines, or other organs to protrude through an opening that forms on the abdomen. Her son, whose legs had never developed, and who had severe scoliosis, died shortly after birth.

In 2011, the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) expressed concern that “women do not have access to legal abortion because of the lack of clear medical guidelines outlining when and how a legal abortion can be conducted.”

It urged the Costa Rican state to draw up clear medical guidelines, to “widely disseminate them among health professionals and the public at large,” and to consider reviewing other circumstances under which abortion could be permitted, such as rape or incest.

The international pressure has grown. Costa Rican Judge Elizabeth Odio, recently named to the San José-based Inter-American Court of Human Rights, said in a Jun. 20 interview with the local newspaper La Nación that “it is obvious that therapeutic abortion, which already exists in our legislation, should be enforced.”

“There are doctors who believe therapeutic abortion is a crime, and they put women’s lives at risk,” said Odio.

In March, Health Minister Fernando Llorca acknowledged that “there is now a debate on the need for developing regulations on therapeutic abortion – a debate that was necessary.”

Activists are calling for a protocol to regulate legal abortion, established by the social security system, CCSS, which administers the public health system and health services, including hospitals. But progress towards a protocol has stalled since 2009.

“For several years we have been working on a protocol with the Collective and the CCSS,” said Ligia Picado, with the Costa Rican Demographic Association (ADC). “But once it was completed, the CCSS authorities referred it to another department, and the personal opinions of functionaries, more emotional than legal, were brought to bear.”

The activist, a member of one of the civil society organisations most heavily involved in defending sexual and reproductive rights, told IPS that “the problem is that there is no protocol or guidelines that health personnel can rely on to support the implementation of women’s rights.”

Picado said the need for the protocol is especially urgent for women whose physical or emotional health is affected by an unwanted pregnancy and who can’t afford to travel abroad for an abortion, or to have a safe, illegal abortion at a clandestine clinic in this country.

Statistics on abortions in this Central American country of 4.7 million people are virtually non-existent. According to 2007 estimates by ADC, 27,000 clandestine abortions are practiced annually. But there are no figures on abortions carried out legally in public or private health centres.

Groups of legislators have begun to press the CCSS to approve the protocol, and on Jun. 17 the legislature’s human rights commission sent a letter to the president of the CCSS.

“We hope the CCSS authorities will realise the need to issue the guidelines so that doctors are not allowed to claim objections of conscience and will be obligated to live up to Costa Rica’s laws and regulations,” opposition lawmaker Patricia Mora, one of the authors of the letter, told IPS.

Edited by Estrella Gutiérrez/Translated by Stephanie Wildes

Alicia is one of the millions of Chilean women who have had an illegal, unsafe abortion because in their country terminating a pregnancy is punishable with up to five years in prison, regardless of the circumstances. Now the country is moving towards legalising therapeutic abortion. Credit: Marianela Jarroud/IPS

By Marianela Jarroud
SANTIAGO, Sep 24 2014 (IPS)

Chile, one of the most conservative countries in Latin America, is getting ready for an unprecedented debate on the legalisation of therapeutic abortion, which is expected to be approved this year.

In Chile, more than 300,000 illegal abortions are practiced annually – a scourge that is both cause and effect of many other social problems.

“Abortion in Chile is like the drug trade – surrounded by illegality and precariousness,” 27-year-old Alicia, who had an abortion five years ago, told IPS.

“A friend told me about a gynecologist, I went to see him and he told me the date, time and place to meet him,” Alicia said. “My mom came with me. A van picked me up on a random street corner in the city and I had no idea where we were going. I still remember my mother’s face, the anxiety of not knowing if I would come back, and in what condition.

“In a house a doctor and a woman, I don’t know if she was a midwife or a nurse, were waiting for me. They doped me up. When I woke up it was done. They put me in the van and took me back to my mother. We never talked about it again,” she said sadly.

The legalisation of abortion is one of the Chilean state’s big debts to women, Carolina Carrera, the president of Corporación Humanas, told IPS.

“Chile’s highly punitive legislation is a violation of the human rights of women because this level of penalisation means that women who abort do so in unsafe conditions, with physical and psychological risks,” she added.

In addition, smuggling has increased of Misoprostol, also known as RU486 or medication abortion. The medicine is sold at exorbitantly high prices, without clear medical indications, she added.

Claudia, 24, had to go to a house on one of the hills in the port city of Valparaíso, 140 km northwest of Santiago, to buy the drug to interrupt an unwanted pregnancy.

“It was a dangerous place,” she said. “I had to pay more than 600 dollars. I looked around and thought: and if something happens to me, who do I call? An ambulance, the police? No, I’d be put in prison!”

In Latin America, where the Catholic Church still has an enormous influence, abortion is illegal everywhere except Cuba, Uruguay and Mexico City. However, most countries allow therapeutic abortion in circumstances suggested by the United Nations: rape, risk to the mother’s life, or severe birth defects.

Chile is one of only seven countries in the world that ban abortion under any circumstance. Four others are in Latin America – the Dominican Republic, El Salvador, Honduras and Nicaragua – and two are in Europe – Malta and the Vatican.

Therapeutic abortion was legal in Chile from 1931 to 1989, when it was banned by the government of late dictator General Augusto Pinochet (1973-1990). None of the democratic administrations that have governed the country since then have touched the issue until now.

Since then, women who undergo an abortion have faced a possible prison sentence of up to five years.

“The frequency of abortion has remained steady in the last 10 years in Chile,” Dr. Ramiro Molina with the Centre on Reproductive Medicine and Integral Development of the Adolescent at the University of Chile told IPS. “The number of cases has not gone down, nor have there been major changes in the ages: the highest rates of abortion are still found among women between the ages of 25 and 34.”

He said there are only records of some 33,500 women a year who are treated for abortion-related complications – a figure he described as “very misleading” because it only takes into account those who go to a public health centre for emergency treatment.

Molina explained that the real total is estimated by multiplying that number by 10, which would indicate that 335,000 women a year undergo illegal abortions in Chile.

In the Latin American countries with the strictest legislation, abortions are practiced in conditions that pose a high risk to women, making it a public health problem as well as a reflection of inequality.

“Abortion is a socioeconomic indicator of poverty,” Molina said.

According to the World Health Organisation, an estimated 21.6 million unsafe abortions took place worldwide in 2008. The estimated annual total in Latin America is 4.4 million, 95 percent of which are clandestine. And 12 percent of maternal deaths in the region are the result of unsafe abortion.

Molina, one of the region’s leading experts in his field, said that while progress has been made in the last two decades, it has been very slow because “a religious-based philosophical vision” continues to prevail and stands in the way of further advances.

In Chile, the government of socialist President Michelle Bachelet, in office since March, is preparing to launch a debate on the legalisation of therapeutic abortion in case of rape, risk to the mother’s life, or severe birth defects.

She has stated on several occasions that abortion will be decriminalised this year in Chile.

During her first term (2006-2010), Bachelet authorised the free distribution of Levonorgestrel, better known as the morning after pill, by government health centres to all girls and women over the age of 14 who requested it. But its actual distribution still depends on the ideology of mayors, who are responsible for public health centres in their jurisdictions.

The morning after pill came too late for Francisco and Daniela. When she enrolled in the university, “we got pregnant,” she told IPS. The couple thought about it long and hard, but they lived with her parents and Francisco only worked part-time.

“I felt like it was cutting her life short, her dreams, her prospects,” said Francisco, who somehow managed to scrape together the 600 dollars for the abortion.

Now, at the age of 35, they have a little girl. But they remember it as a traumatic incident, “because it was clandestine, unsafe and unjust.”

Although the legalisation of therapeutic abortion was one of Bachelet’s campaign pledges, abortion remains a taboo subject in Chile. Many are afraid of the political consequences in this country of 17.8 million people, where more than 65 percent of the population is Catholic.

Edited by Estrella Gutiérrez/Translated by Stephanie Wildes

Nearly a quarter century after Chile’s return to democracy, there is still a lack of political will to legalise therapeutic abortion, analysts say, even though Congress is debating several draft laws on the question.

Natalia Flores, executive secretary of the Observatory on Gender Equity, says the legislation currently in place, which bans abortion under all circumstances, restricts the fundamental rights of women.

“In Chile, the fact that abortion is illegal for any reason makes women second-class citizens, because they are not allowed to make decisions about their bodies, which is their basic territory,” she told IPS.

Therapeutic abortion refers to the termination of a pregnancy when the mother’s life is at risk, the foetus is deformed or dead, or the pregnancy is the result of incest or rape.

Chilean women had access to therapeutic abortion for over 50 years, until the 1973-1990 dictatorship of General Augusto Pinochet made it illegal in 1989, just a few months before the transition to democracy.

Several attempts to decriminalise abortion in cases where the mother’s life is at risk or the foetus has severe birth defects have failed in the legislature due to the votes of the right-wing coalition currently governing the country, along with the more conservative sectors in the centre-left Concert of Parties for Democracy.

But the case of a pregnant 11-year-old girl who had been sexually abused for two years by her stepfather triggered an unprecedented debate in Chile, which took on special importance in the midst of the campaign for the Nov. 17 elections.

The plight of 11-year-old Belén and similar cases that have come to light since she became headline news around the world prompted many political leaders and physicians to speak out in favour of making therapeutic abortion legal once again.

“This is a debt of democracy to Chilean women, because many of them have had very painful life stories and experiences, and have been exposed to unsafe abortions,” sociologist Claudia Dides, spokeswoman for Miles Chile (Thousands Chile), the country’s biggest pro-choice umbrella group, told IPS.

Chile is one of the Latin American countries where conservative Catholic sectors hold the greatest sway, and one of the few South American nations presently governed by the right, by the hand of President Sebastián Piñera.

It is also one of a small number of countries in the world where abortion is illegal under any circumstance.

Women or doctors found guilty of inducing an abortion can be sentenced to three to five years in prison.

But activists point out that only poor women actually face that risk, as they cannot afford to pay for a safe abortion in a clandestine clinic but instead undergo back-street abortions, which often lead to them ending up in the emergency room at a public hospital, where they face prosecution.

An average of 160,000 illegal abortions a year are practiced in this country of 17 million people, according to estimates by the National Institute of Statistics.

Flores pointed out that several international bodies like the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) have warned the Chilean state that the law criminalising abortion under all circumstances violates the human rights of women.

“Nevertheless, after more than 20 years of democracy, the state has maintained its stance, and owes a great debt to women,” she said.

Since 1990, more than 20 draft laws have been introduced to modify the law penalising abortion, but none has prospered.

One of the frustrated initiatives was sponsored in 2010 by socialist Senator Fulvio Rossi and the current presidential candidate for the ruling right-wing alliance, Evelyn Matthei.

But Matthei has now spoken out against the decriminalisation of therapeutic abortion.

On the other side of the fence, former president Michelle Bachelet (2006-2010), the centre-left coalition’s presidential candidate, has publicly stated that she will attempt to legalise abortion in cases of rape and risks to the mother’s life if she is elected.

The Senate is currently studying four draft laws that would legalise therapeutic abortion, as well as abortion in cases of rape. Miles Chile, which brings together civil society organisations, health professionals and activists’ networks, is behind two of the bills.

Dides said “there is a political veto of abortion; today it is impossible to imagine a debate on it in parliament.”

She said Miles Chile is only pressing for the legalisation of therapeutic abortion because “there is no chance of obtaining legal abortion even in the case of rape,” due to the conservative composition of Congress.

Dides said 64 percent of respondents in a recent survey were in favour of legal abortion when the mother’s life is at risk, the foetus cannot survive outside the womb, or cases of rape.

But “as with other issues, Chile’s (political leadership) doesn’t even listen to civil society,” she complained.

Flores said surveys show that, despite the socially conservative attitudes that can be found in virtually all of the country’s political parties, the citizens hold much more progressive views.

On Jul. 25, more than 8,000 people – according to the organisers – marched in Santiago to demand “free, safe abortion”.

The only way progress towards the decriminalisation of abortion will be made is if the public continues to come out on the streets en masse, Flores said.

She complained about “hypocrisy” in Chile, where the rape of a young girl causes shock on one hand, while on the other, “there aren’t even integral policies for protecting children.”

Cuba, Mexico City, and most recently Uruguay are the only places in Latin America where abortion is legal. In other countries in the region it is allowed in specific circumstances, such as cases of rape, incest, foetal abnormality, or risk to the mother’s life.

But as in Chile, abortion is illegal under any circumstances in the Dominican Republic, El Salvador, Honduras and Nicaragua.

Official figures indicate that 2,550 legal abortions were performed in Uruguay between December – when the law legalising abortion went into effect – and May. No maternal deaths or health complications occurred as a result of the abortions.

Abortion is the leading cause of maternal mortality in Latin America. Bringing down the maternal mortality rate is one of the Millennium Development Goals adopted by the international community in 2000, with a 2015 deadline.

Dides said Latin American society generally supports therapeutic abortion, while more than 25 percent of the public is in favour of legal abortion on demand.

But in Chile, “the political leaders do not want to tackle the issue,” despite the public’s support for legal abortion, she added.