Fetus Cannot Survive, but Pregnancy Risks Salvadoran Woman’s Life
May 14, 2013

H.E. Mauricio Funes
President of the Republic of El Salvador
Alameda Dr. Manuel Enrique Araujo
No. 550
San Salvador
El Salvador, C.A.

May 14, 2013

President Funes:

We write to you urgently about the case of Salvadoran citizen “Beatriz,” a 22-year-old woman whose life is in grave danger as a result of her pregnancy. We are greatly concerned that the El Salvadoran government has not complied with the precautionary measures granted to Beatriz by the Inter-American Commission on Human Rights. Fifty days after she first sought relief from your government, Beatriz is still awaiting a life-saving medical treatment.

Beatriz is pregnant with what has been confirmed in three separate sonograms at the National Maternity Hospital on March 12 and 21, 2013, to be an anencephalic fetus. Anencephaly is a neural tube defect in which a major portion of the brain, skull and scalp fail to develop. An infant born with this disorder lacks a cerebrum, and will usually be born blind, deaf and unconscious. If an anencephalic infant is not stillborn, the baby will often die within hours or days. In rare cases, the infant may survive longer, but will never gain consciousness and cannot survive infancy.

The psychological and physical effects of carrying an anencephalic pregnancy are well documented and can be very damaging to women. Women forced to continue with anencephalic pregnancies against their will are at risk of depression, anxiety, and other mental health disorders. They may also experience physical health issues such as hypertensive disorders, premature membrane rupture, and amniotic embolisms.

In Beatriz’s case continuing with the pregnancy may very well result in her death, according to doctors at the National Maternity Hospital. Beatriz suffers from a combination of medical problems that make her pregnancy particularly high risk. Doctors who have examined her believe that she could face hemorrhaging, severe preeclampsia, a condition that is a leading cause of maternal death, and potential renal failure due to her preexisting medical conditions, including a diagnosed case of Lupus. In March 2012, Beatriz had a high risk pregnancy. According to medical records, during this previous pregnancy she was hospitalized on three different occasions, once to receive a blood transfusion for anemia. Doctors had to deliver her son, now one year old, two months early by an emergency caesarean section due to severe preeclampsia aggravated by Lupus. He remained in intensive care for 38 days.

On March 22, 2013, lawyers for the National Maternity Hospital “Hospital Nacional Especializado de Maternidad” requested permission from the government to perform an abortion, because there was a “strong probability of maternal death”(Translator: “fuerte probabilidad de muerte materna”) and the fetus was confirmed, by three sonograms, to be anencephalic, an anomaly “incompatible with extrauterine life (Translator: “incompatible con la vida extrauterina”.

Three weeks later, in response to a request by the Minster of Health, the Medical Committee of the Hospital Nacional Especializado de Maternidad recommended an abortion to save Beatriz’s life and preserve her personal integrity and health. The Committee recognized that the hospital was subject to the laws of the State, which prohibits abortion and to balance the right to life of the woman against that of the fetus; however, it also stated that “this fetus, in the future, has not possibility to exercise the right to life.” (Translator: este feto, en el future, no tiene posibilidades de ejercer el Derecho a la vida.”)

The Attorney General has however stated that El Salvador’s criminal prohibition on abortion will be applied if Beatriz undergoes this life saving procedure. The sentence for violating this prohibition is up to 50 years for the woman and up to 12 years for the doctor who performs the procedure. Beatriz’s request for constitutional filed with the Constitutional Chambers of the Supreme Court of Justice on April 11, 2013 has not been resolved to date, and Beatriz sought relief from the Inter-American Commission on Human Rights.

On April 29, 2013, the Inter-American Commission on Human Rights granted precautionary measures to Beatriz, requesting that the government of El Salvador adopt the recommendation of the medical committee within 72 hours of the commission’s letter. To this date, X days after precautionary measures were granted, the government has failed to comply. Beatriz’s life remains in danger. Medical doctors have not provided her with life-saving medical treatment, because the government has not provided authorization that would exempt them from prosecution.

Beatriz’ inability to access life-saving medical treatment, including the termination of her pregnancy, without threat of criminal prosecution is a violation of her fundamental human rights. Application of El Salvador’s restrictive abortion laws in this case may have a devastating impact on Beatriz’s right to life. Further, several United Nations human rights bodies have found that restrictions on access to safe and legal abortion may give rise to situations that constitute cruel, inhuman or degrading treatment, including when a women is forced to carry a non-viable pregnancy to term.

Application of El Salvador’s criminal laws with respect to abortion in this instance may also amount to a violation of El Salvador’s obligations to respect, protect and fulfill the right to health. United Nations treaty bodies have repeatedly expressed concern about the relationship between El Salvador’s restrictive abortion laws and detrimental consequences for women’s lives, health and well-being. To remedy the effects of the criminalization of abortion on women’s right to life, the committees have recommended the review or amendment of restrictive abortion laws, and in particular have recommended the removal of punitive aspects of these laws.

In 2005, the Human Rights Committee found that El Salvador’s neighbor in the region, Peru, was in violation of its obligations under the International Covenant on Civil and Political Rights when it denied a therapeutic abortion in a similar case of a 17-year-old girl pregnant with an anencephalic fetus. Unable to receive a safe, legal procedure, the girl carried the pregnancy to term, and the infant died after four days.

UN human rights experts have underscored the special obligations that El Salvador holds in this case. On April 26 Anand Grover , UN Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health; Juan E. Méndez, Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment; Rashida Manjoo, Special Rapporteur on violence against women, its causes and consequences; and Kamala Chandrakirana, Chairperson of the Working Group on the issue of discrimination against women in law and in practice, issued a statement calling Beatriz’s condition cruel, inhumane and degrading.

We urge you immediately to adopt the precautionary measures issued by the Inter-American Commission on Human Rights and to take steps immediately to ensure Beatriz may receive the care she needs.

We thank you for your attention on this important matter.

Sincerely,

Jose Miguel Vivanco
Executive Director
Americas Division
Human Rights Watch

Liesl Gerntholtz
Director
Women's Rights Division
Human Rights Watch