Commentary Abortion

Is the Life and Health of a Young, Rural Woman of Any Value in El Salvador?

Anibal Faundes

It cannot but be concluded that the life and health of a young, rural woman had no value under the law in El Salvador. Can the rest of the world remain indifferent?

See all our coverage of Beatriz here.

Beatriz is a 22-year-old woman from a poor, rural area of El Salvador who has the misfortune of suffering systemic lupus erythematosus (lupus), an autoimmune disease. Pregnancy often exacerbates lupus, with adverse effects on kidney function, potentially leading to accelerated progression to end-stage renal disease. In addition, pregnancies in women with lupus are at high risk for spontaneous abortion and premature delivery, intrauterine growth retardation, and a maternal complication called superimposed pre-eclampsia.

These were the exact conditions Beatriz faced in her first pregnancy two years ago when she experienced complications of hypertension so severe she had to undergo a cesarean section at 32 weeks, and was then forced to spend several days in intensive care. Several complications arose post-partum in her premature baby, a son, but he survived in good condition and was back with his mother after 32 days under neonatal care. Beatriz, however, was not as lucky, and as result of the pregnancy she was left with chronic hypertension and a kidney dysfunction called lupus nephritis.

At that time, Beatriz was offered surgical sterilization, but because her baby’s condition was tenuous and she was afraid he would die, she refused out of fear she would not be able to have any more children.

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After her son’s survival was ensured, it was again suggested she undergo sterilization, but she failed to return on the day of the appointment. She only returned to the hospital again when she was 13 weeks pregnant and facing severe complications with hypertension, with lupus nephritis, and with infected skin lesions typical of lupus. During a sonogram it was found that the fetus had no brain and only a partially formed skull, a fatal condition known as anencephaly. The survival of the fetus is ensured by the uterine environment, but after birth it cannot keep breathing for very long and can only be kept “alive” with technology in the same way as can adults with cerebral deaths.

El Salvador has the most stringent abortion laws in the world; abortion is not permitted in any circumstance. The value of the life of the fetus is given equal value to that of the women, following principles defended by the hierarchy of the Catholic Church.

To apply such principles to the case of Beatriz, however, is not supported by any rational analysis. Adults and babies are considered dead when they have no brain activity—known as cerebral death—even though the heart may continue beating. In fact, we take organ donations from individuals with cerebral death; their hearts may still be beating or kept beating to keep the organ viable for transplantation, but they are not “alive.” Anencephalic babies never have cerebral activity because they do not have a brain, and this is particularly true in the case of Beatriz, whose fetus was found to have complete anencephaly. Babies with this condition can be “kept” breathing and with heartbeats for hours and even days, which doesn’t mean that they ever have a chance of being alive.

Independent of the country’s policies on abortion, the insistence on prohibiting interruption of Beatriz’s pregnancy is totally irrational, because in effect the possibility of having a baby is “aborted” at the time the anencephaly becomes known.

Beatriz is in the best maternity hospital in El Salvador, under the care of dedicated and very well-prepared perinatologists, who have succeeded in keeping her stable and in good condition until recently. Her blood pressure is being kept at practically normal levels with the highest doses of the appropriate drugs possible, and her kidney function is being maintained close to normal. Her doctors know and have known, however, that as the pregnancy progresses it will become impossible to prevent potentially fatal complications without terminating the pregnancy. They also know that intervening now is rather safe, because she is in good condition, but doing the c-section after the expected complications have arisen will be quite dangerous and can be fatal. They also know that the continuation of this pregnancy is leading to accelerated progression of her kidney disease toward renal failure.

Finally, they know that the fatal outcome of the newborn will be the same if the pregnancy is terminated today, tomorrow, or a few weeks later, given the reality of her situation.

They know what they should do, but they do not do it because they will be punished with jail if they comply with their ethical duty as physicians of protecting the life of the mother, in this case with no consequences for the life of the fetus or baby.

The Supreme Court of Justice of El Salvador ignored the danger for the health and life of a young woman and denied her request for an abortion under the irrational argument of “protecting the life” of a fetus who has never had and will never have brain life.

It cannot but be concluded that the life and health of a young, rural woman has no value under the law in El Salvador. Can the rest of the world remain indifferent?

News Law and Policy

Freed From a Post-Miscarriage Prison Sentence, El Salvador Woman Could Face More Time Behind Bars

Kathy Bougher

Maria Teresa Rivera was convicted of aggravated homicide in 2012 following an obstetrical complication during an unattended birth the previous year, which had resulted in the death of her fetus. On May 20, Judge Martín Rogel Zepeda overturned her conviction. Now, however, a legal threat could return her to prison.

Read more of our coverage on the campaign for Las 17, the 17 Salvadoran women imprisoned on abortion-related charges, here.

Two months ago, Maria Teresa Rivera was released from a 40-year prison sentence after spending more than four years behind bars. Rivera was convicted of aggravated homicide in 2012 following an obstetrical complication during an unattended birth the previous year, which had resulted in the death of her fetus. On May 20, Judge Martín Rogel Zepeda overturned her conviction. Now, however, a legal threat could return her to prison.

Rivera is part of the group known as “Las 17,” Salvadoran women who have been unjustly convicted and imprisoned based on El Salvador’s highly restrictive anti-abortion laws.

The government-employed prosecutor in Rivera’s case, María del Carmen Elias Campos, has appealed Rogel Zepeda’s decision overturning the original 2012 conviction and allowing Rivera to return to her now-11-year-old son. If the appeal is granted, Rogel Zepeda’s decision will be reviewed by a panel of justices. An unfavorable decision at that point could lead to a new trial.

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“I just don’t understand the prosecutor’s motivation for this appeal,” Rivera told Rewire in an interview. “We are very poor, and there is no one else but me to provide income for our family.”

According to Rivera’s attorney, Victor Hugo Mata, the government tends to require “preventive imprisonment” of the accused during the trial process, which could last months or years. This “preventive imprisonment” could begin as soon as the panel approves an appeal.

Although “the law clearly allows the prosecution to appeal,” Morena Herrera, president of the Agrupación Ciudadana por la Despenalización del Aborto, told Rewire in an interview, “This appeal that questions the decision of the court that granted [Rivera] her freedom is not looking for the truth.”

Herrera pointed out that the witness for the prosecution, a government forensic specialist who performed the fetal autopsy, determined that the cause of fetal death was perinatal asphyxia. “At the trial the prosecutor’s own witness told the prosecutor that he could not accuse a person of a crime in this case of perinatal asphyxia,” Herrera recounted.

“So, if her own witness spoke against [the prosecutor] and said she was not correct, it seems to me that this appeal … is proof that the prosecutor is not seeking either justice or the truth.”

Hugo Mata explained to Rewire that the prosecutor’s appeal asserts that Judge Rogel Zepeda “did not employ the legal standard of ‘sana crítica,’ or ‘solid legal judgment’ in evaluating the evidence presented.”

Hugo Mata vigorously contests the prosecutor’s allegation, noting that the judge’s written decision went into significant legal detail on all the issues raised at the hearing. He believes that a responsible court should see that “there was nothing capricious or contradictory in his highly detailed and legally well-founded decision.”

The three-judge panel has ten working days, or until approximately July 12, to render a decision as to whether to grant the initial appeal, although such deadlines are not always rigidly observed.  If the panel does not grant the appeal, the decision to overturn the conviction will stand.

The Agrupación, including Hugo Mata, believes that the appeals panel will be swayed by knowing that the case is receiving widespread attention. As part of a campaign to bring attention to the appeal process, the Agrupación has set up an email address to which supporters can send messages letting the court know that justice for Rivera is of national and international importance.

“What most worries me is leaving my son alone again,” Rivera told Rewire. “I was forced to abandon him for four and a half years, and he suffered greatly during that time. He is just beginning to recover now, but he never wants to be apart from me. He tells me every day, ‘Mommy, you’re never going to leave me again, are you?’ I had to tell him about this appeal, but I promised him everything would be all right.”

“I was abandoned by my mother at the age of five and grew up in orphanages,” Rivera concluded. “I don’t want the same life for my son.”

News Human Rights

Judge Overturns Homicide Conviction of El Salvador Woman Jailed After a Miscarriage

Kathy Bougher

Like dozens of other women in El Salvador, where abortion is completely illegal, Maria Teresa Rivera faced criminal charges in 2012 after experiencing obstetric complications.

Read more of our coverage on the campaign for Las 17, the 17 Salvadoran women imprisoned on abortion-related charges, here.

El Salvador trial court Judge Martín Rogel Zepeda on Friday overturned the 40-year prison sentence of Maria Teresa Rivera, who was convicted of aggravated homicide four years ago after experiencing a miscarriage in November 2011.

Rivera’s special session trial, which revisited her original 2012 conviction and sentence, began May 11. It resumed Friday after a weeklong recess to accommodate a key prosecution witness, a government forensic medicine specialist.

Like dozens of other women in El Salvador, where abortion is completely illegal, Rivera faced criminal charges after experiencing obstetric complications. In Rivera’s case, an unattended, unexpected labor resulted in the death of the fetus; an eventual autopsy report listed its cause of death as “perinatal asphyxia.” As previously reported by Rewire, Judge José Antonio Flores “interpreted the autopsy report to mean that Rivera had carried out an intentional criminal act,” ultimately convicting her of aggravated homicide.

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Witnesses for the May 11 defense included four physicians who helped clarify a major source of confusion throughout the legal process over the use of the term “perinatal asphyxia.” In medical terms, they explained, it is a condition—the inadequate intake of oxygen by the fetus—that is an unfortunate cause of death, but which can occur naturally during the birth process. The person giving birth does not cause the death.

According to those present at the trial, the government-employed forensic medicine specialist testified Friday that there was no certainty as to how the fetus died of perinatal asphyxia or evidence that Rivera had done anything intentional to cause the death. Alberto Romero from the Agrupación Ciudadana por la Depenalization del Aborto, the Salvadoran feminist organization that has supported Rivera since her charge and conviction, noted to Rewire via phone and email the “professionalism and clarity” of the specialist.

In a courtroom packed with Salvadoran and international supporters, Rivera addressed the judge directly as part of the closing statement of her attorney, Victor Hugo Mata. According to Morena Herrera, president of the Agrupación, the room was absolutely silent as Rivera asked the judge to grant her freedom not just for herself, but also for her 10-year old son, whom she had not seen in three years. She showed the judge his photo and told him his name.

After a 30-minute recess, during which additional supporters outside on the streets chanted “freedom for Teresa,” the judge delivered his verdict: There was no evidence that Rivera had murdered her infant son, meaning the original verdict should be overturned.

As Rivera’s attorney Mata noted in the first part of the trial on May 11, the witness from forensic medicine who spoke Friday was also subpoenaed to appear at her original trial in 2012, but did not do so. Mata noted to the judge that if the specialist had testified at that trial, perhaps he would have been able to clarify the misconceptions about “perinatal asphyxia.”

If that had been the case, Romero said to Rewire after Friday’s trial, “perhaps Rivera would have been absolved at that time.”

According to Herrera, there are still about 25 women imprisoned in El Salvador under similar circumstances to Rivera’s. “Most of the imprisoned women experienced judicial errors similar to those that occurred in Maria’s Teresa trial,” she said.

We continue to work to change those medical and legal protocols for women already charged,” she told Rewire. However, she noted, “We also need to work to change the anti-abortion laws that criminalize abortion and also obstetric emergencies, and thereby set off the events that cause women to be unjustly imprisoned.”

After four years behind bars, Rivera left the courthouse on Friday a free woman. “Thanks so much to everyone who has helped me,” she told Rewire by phone. “What’s most important is that I’ve hugged my son again.”