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.

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.

“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.”

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.

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.”