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.

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