Analysis Abortion

Report: ‘Scientific’ Test Used to Convict Women in El Salvador Is Anything But

Kathy Bougher

Women are being sent to prison for up to 40 years in El Salvador based on a test that, according to a new report, researchers deemed unreliable more than 100 years ago.

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

In El Salvador, where it is completely illegal to terminate one’s pregnancy, women who have experienced miscarriages and stillbirths can face accusations of abortion and even infanticide. In many of these cases, Salvadoran courts rely on a test performed during autopsy as evidence that these women killed their babies after they were born alive—a test that, according to a new report, researchers deemed unreliable more than 100 years ago.

The test, nicknamed the “float” test, has been used by Salvadoran courts to convict dozens of women of infanticide over the last two decades. Since 2010, psychiatrist and ardent fundamentalist Dr. José Miguel Fortin Magaña has served as the director of the Salvadoran Institute for Legal [Forensic] Medicine, which reports to the Supreme Court. In a recent interview about abortion on Frente a Frente, a right-wing national television talk show, he described the mechanisms of the test:

As part of the autopsies we took the little lungs of the babies and put them in a container of liquid, and they floated. It’s called hydrostatic docimasia. It’s when a lung has breathed, when it has taken in air. When the baby is in the mother’s womb, it has not breathed air. When someone has not breathed, when it has not been born in this sense, it [the lung] sinks to the bottom. When it floats it has breathed air.

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Many of the women charged with aggravated homicide have said that while they were giving birth unattended, their babies were born dead, or that the women fainted during delivery and don’t know what happened. But Fortin, the courts, and others on the right maintain that the float test proves the babies were born alive and that they were murdered by their mothers. Indeed, throughout the Frente a Frente interview, Fortin reiterated, “This has nothing to do with abortion. They are 17 people who were convicted for assassinating their children.”

The “they” in question are “Las 17,” a group of 17 women currently in Salvadoran prison, some for up to 40 years, on abortion-related charges. Though the float test was not used in all of their cases, at least eight of them were convicted of aggravated homicide based on such “evidence.” The group’s plight has ignited mass domestic and international controversy and abroad. On April 1, the Salvadoran feminist group Agrupación Ciudadana por la Despenalización del Aborto (Citizen Group for the Decriminalization of Abortion) filed legal documents asserting that Las 17 had suffered various types of obstetrical complications—including miscarriages, stillbirths, and precipitous births—and requesting pardons for all of them. Thus far, it has received no response.

To further support Las 17, allies of Agrupación connected with Dr. Gregory Davis, a professor in the College of Medicine at the University of Kentucky. After reviewing documents related to the medical evidence used by the courts to convict some of the women, Davis—who has had 28 years of experience in pathology, forensic pathology, laboratory medicine, and autopsy services in addition to an extensive background as a medical examiner and consultant in several countries—concluded that the science behind such “proof” was unsound.

He submitted his report, Determination of Live Birth Versus Stillbirth and Consideration of Birth-Related Injuries, to Agrupación, who then delivered it in September to the Justices of the Salvadoran Supreme Court of Justice and to the Representatives of the National Assembly, two of the branches of government that will determine the outcomes of the petitions for pardons. Agrupación also made it available to Rewire.

After reviewing three women’s cases in which prosecutors used the float test as evidence, Davis determined that in two of them, “there is no way to state that the baby of [the woman] was born alive. He could just as easily have been born dead (miscarriage).” In the third, he stated that the time lapse between the death and the autopsy, “would have rendered any determination of live birth by such methods as the ‘float test’ unreliable.” Commenting on a fourth case, in which the court had apparently imprisoned a woman based on her [deceased] baby’s cranial injuries, Davis argued, “There is no way to determine from the evidence reviewed that the injuries sustained by the baby of [redacted] were deliberately inflicted.”

Regarding the float test, Davis wrote that it does not constitute a valid way to determine whether an infant was stillborn:

The fact that the lungs floated at autopsy does not prove or disprove live birth. Such a “hydrostatic test” or “float test” test is invalid in unattended births. Such a test has actually been held as non-reliable for over a century. Saukko and Knight note on pp 445-446 of their textbook, Knight’s Forensic Pathology, 3rd ed (London, Arnold, 2004):

There are too many recorded instances when control tests have shown that stillborn lungs may float and the lungs from undoubtedly live-born infants have sunk, to allow it to be used in testimony in a criminal trial. Even one such failure negates the whole history of the test and the authors are saddened to contemplate the number of innocent women who were sent to the gallows in previous centuries on the testimony of doctors who had an uncritical faith in this crude technique. As this is such an important issue and one that is still contested today, the words of the late Professor Polson may be recalled from his notable textbook [Polson C, Gee D, Knight B. 1985. Essentials of Forensic Medicine, 3rd ed. Pergamon Press, London]:

The test was suspect even in 1900 and requires not detailed discussion, because it is now known to have no value.

In fact, Davis continued:

Keeling notes in Paediatric Forensic Medicine and Pathology (London, Hodder Arnold, 2009), p. 185:

The use of the property of lungs to float in water (or buffered formalin) as a determinant of live birth is fraught with difficulty. It is unwise to rely on it as the only determinant of live birth even when some or any of the published modifications, which allegedly improve reliability, are introduced. It may be falsely positive because of putrefaction, even to a minor degree.

And yet, poor, young women in El Salvador who give birth without assistance continue to be imprisoned based on these tests—effectively, as authors Saukko and Knight wrote, condemned “on the testimony of doctors with an uncritical faith in this crude technique.”

Are Fortin and his colleagues aware of this medical literature, but choose to ignore it and use the test anyway? Or are they heedless of this critical information in their field, thus placing their qualifications in serious doubt?  Either way, this apparent failure of ethics and professionalism has devastated the lives of these 17 women and their families, as well as other women imprisoned over the years in the country. Moreover, it further heightens the vulnerability under which all poor Salvadoran women already live.

Unfortunately, reliance on this grossly outdated “science” and “medicine” is often par for the course in El Salvador, where it frequently goes unquestioned in the courts and the mainstream media. In fact, members of the fundamentalist right in the country have attempted to intimidate and threaten those who raise critical questions.

In response to this campaign of fear, Agrupación has called for a civil, objective national dialogue on the consequences of the absolute criminalization of abortion. Thanks to the growing publicity surrounding the law’s impact on Salvadoran women—including a report by Amnesty International—and collaboration with individuals like Davis, that dialogue is ramping up. Ultimately, Agrupación’s challenges to the medical and legal systems could shake the foundations of these two pillars of fundamentalist control over women’s lives.

Analysis Human Rights

El Salvador Bill Would Put Those Found Guilty of Abortion Behind Bars for 30 to 50 Years

Kathy Bougher

Under El Salvador’s current law, when women are accused of abortion, prosecutors can—but do not always—increase the charges to aggravated homicide, thereby increasing their prison sentence. This new bill, advocates say, would heighten the likelihood that those charged with abortion will spend decades behind bars.

Abortion has been illegal under all circumstances in El Salvador since 1997, with a penalty of two to eight years in prison. Now, the right-wing ARENA Party has introduced a bill that would increase that penalty to a prison sentence of 30 to 50 years—the same as aggravated homicide.

The bill also lengthens the prison time for physicians who perform abortions to 30 to 50 years and establishes jail terms—of one to three years and six months to two years, respectively—for persons who sell or publicize abortion-causing substances.

The bill’s major sponsor, Rep. Ricardo Andrés Velásquez Parker, explained in a television interview on July 11 that this was simply an administrative matter and “shouldn’t need any further discussion.”

Since the Salvadoran Constitution recognizes “the human being from the moment of conception,” he said, it “is necessary to align the Criminal Code with this principle, and substitute the current penalty for abortion, which is two to eight years in prison, with that of aggravated homicide.”

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The bill has yet to be discussed in the Salvadoran legislature; if it were to pass, it would still have to go to the president for his signature. It could also be referred to committee, and potentially left to die.

Under El Salvador’s current law, when women are accused of abortion, prosecutors can—but do not always—increase the charges to aggravated homicide, thereby increasing their prison sentence. This new bill, advocates say, would worsen the criminalization of women, continue to take away options, and heighten the likelihood that those charged with abortion will spend decades behind bars.

In recent years, local feminist groups have drawn attention to “Las 17 and More,” a group of Salvadoran women who have been incarcerated with prison terms of up to 40 years after obstetrical emergencies. In 2014, the Agrupación Ciudadana por la Despenalización del Aborto (Citizen Group for the Decriminalization of Abortion) submitted requests for pardons for 17 of the women. Each case wound its way through the legislature and other branches of government; in the end, only one woman received a pardon. Earlier this year, however, a May 2016 court decision overturned the conviction of another one of the women, Maria Teresa Rivera, vacating her 40-year sentence.

Velásquez Parker noted in his July 11 interview that he had not reviewed any of those cases. To do so was not “within his purview” and those cases have been “subjective and philosophical,” he claimed. “I am dealing with Salvadoran constitutional law.”

During a protest outside of the legislature last Thursday, Morena Herrera, president of the Agrupación, addressed Velásquez Parker directly, saying that his bill demonstrated an ignorance of the realities faced by women and girls in El Salvador and demanding its revocation.

“How is it possible that you do not know that last week the United Nations presented a report that shows that in our country a girl or an adolescent gives birth every 20 minutes? You should be obligated to know this. You get paid to know about this,” Herrera told him. Herrera was referring to the United Nations Population Fund and the Salvadoran Ministry of Health’s report, “Map of Pregnancies Among Girls and Adolescents in El Salvador 2015,” which also revealed that 30 percent of all births in the country were by girls ages 10 to 19.

“You say that you know nothing about women unjustly incarcerated, yet we presented to this legislature a group of requests for pardons. With what you earn, you as legislators were obligated to read and know about those,” Herrera continued, speaking about Las 17. “We are not going to discuss this proposal that you have. It is undiscussable. We demand that the ARENA party withdraw this proposed legislation.”

As part of its campaign of resistance to the proposed law, the Agrupación produced and distributed numerous videos with messages such as “They Don’t Represent Me,” which shows the names and faces of the 21 legislators who signed on to the ARENA proposal. Another video, subtitled in English, asks, “30 to 50 Years in Prison?

International groups have also joined in resisting the bill. In a pronouncement shared with legislators, the Agrupación, and the public, the Latin American and Caribbean Committee for the Defense of the Rights of Women (CLADEM) reminded the Salvadoran government of it international commitments and obligations:

[The] United Nations has recognized on repeated occasions that the total criminalization of abortion is a form of torture, that abortion is a human right when carried out with certain assumptions, and it also recommends completely decriminalizing abortion in our region.

The United Nations Committee on Economic, Social, and Cultural Rights reiterated to the Salvadoran government its concern about the persistence of the total prohibition on abortion … [and] expressly requested that it revise its legislation.

The Committee established in March 2016 that the criminalization of abortion and any obstacles to access to abortion are discriminatory and constitute violations of women’s right to health. Given that El Salvador has ratified [the International Covenant on Economic, Social and Cultural Rights], the country has an obligation to comply with its provisions.

Amnesty International, meanwhile, described the proposal as “scandalous.” Erika Guevara-Rosas, Amnesty International’s Americas director, emphasized in a statement on the organization’s website, “Parliamentarians in El Salvador are playing a very dangerous game with the lives of millions of women. Banning life-saving abortions in all circumstances is atrocious but seeking to raise jail terms for women who seek an abortion or those who provide support is simply despicable.”

“Instead of continuing to criminalize women, authorities in El Salvador must repeal the outdated anti-abortion law once and for all,” Guevara-Rosas continued.

In the United States, Rep. Norma J. Torres (D-CA) and Rep. Debbie Wasserman Schultz (D-FL) issued a press release on July 19 condemning the proposal in El Salvador. Rep. Torres wrote, “It is terrifying to consider that, if this law passed, a Salvadoran woman who has a miscarriage could go to prison for decades or a woman who is raped and decides to undergo an abortion could be jailed for longer than the man who raped her.”

ARENA’s bill follows a campaign from May orchestrated by the right-wing Fundación Sí a la Vida (Right to Life Foundation) of El Salvador, “El Derecho a la Vida No Se Debate,” or “The Right to Life Is Not Up for Debate,” featuring misleading photos of fetuses and promoting adoption as an alternative to abortion.

The Agrupacion countered with a series of ads and vignettes that have also been applied to the fight against the bill, “The Health and Life of Women Are Well Worth a Debate.”

bien vale un debate-la salud de las mujeres

Mariana Moisa, media coordinator for the Agrupación, told Rewire that the widespread reaction to Velásquez Parker’s proposal indicates some shift in public perception around reproductive rights in the country.

“The public image around abortion is changing. These kinds of ideas and proposals don’t go through the system as easily as they once did. It used to be that a person in power made a couple of phone calls and poof—it was taken care of. Now, people see that Velásquez Parker’s insistence that his proposal doesn’t need any debate is undemocratic. People know that women are in prison because of these laws, and the public is asking more questions,” Moisa said.

At this point, it’s not certain whether ARENA, in coalition with other parties, has the votes to pass the bill, but it is clearly within the realm of possibility. As Sara Garcia, coordinator of the Agrupación, told Rewire, “We know this misogynist proposal has generated serious anger and indignation, and we are working with other groups to pressure the legislature. More and more groups are participating with declarations, images, and videos and a clear call to withdraw the proposal. Stopping this proposed law is what is most important at this point. Then we also have to expose what happens in El Salvador with the criminalization of women.”

Even though there has been extensive exposure of what activists see as the grave problems with such a law, Garcia said, “The risk is still very real that it could pass.”

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.”