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  Number 384 | Julio 2013
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El Salvador

The case of Beatriz: Who gets to decide?

Beatriz is a young peasant woman with lupus and pregnant with an anencephalic fetus. Should her pregnancy be terminated or not? This extreme case, which made international news, revived El Salvador’s debate on abortion. It is a debate in which many people speak, but in which the last word should belong to the women who live these dilemmas.

Elaine Freedman

When the issue of abortion and the right to decide are put on the table, everyone turns into a philosopher, theologian, scientist or lawyer, experts on issues as momentous as human life, morality and human rights. It’s understandable in a society where only “experts” seem to have the right to decide on these matters. Ordinary beings, including women who, when pregnant, would rather not, cannot or should not give birth for one reason or another, seem unable to decide on the issue. Beatriz’s case was no exception.

A life in extreme danger

On March 2, 2013, Beatriz, a 22-year-old peasant woman, was admitted to the Rosales Hospital in San Salvador after enduring 15 days of fever, erythema and infected skin ulcers.

Believing herself pregnant, she had suspended the drugs she used to treat the symptoms of discoid lupus erythematosus, which she suffers from, to avoid harming the fetus. Two ultrasound scans showed that her suspicion was right: she was 13 weeks pregnant. They also showed that the fetus suffered from anencephaly: it lacked a brain and skull, without which life is not viable.

Ten days after her admission, the head of the Maternity Hospital’s Legal Unit filed a writ with the Board for the Protection of Children and Adolescents. It said: “It is vitally important to operate on her, because if this doesn’t happen there is a strong probability of the mother dying.” It added that fetal anencephaly is “a significant anomaly incompatible with life outside the womb.” The writ sought “the ruling of the competent authority or institution, since not to proceed with an operation puts the mother’s life in great danger.”

This was the beginning of the cross the young woman has had to bear. She inadvertently became a “flagship” case when, already mother to a 13-month-old born in a very risky delivery, Beatriz opted for legal action to expedite the request of the Maternity Hospital’s medical team. By this point she was 17 weeks pregnant.

The only ones who could legally consent to her decision were the justices of the Supreme Court’s Constitutional Bench,
as abortion of any kind has been prohibited in El Salvador since 1999. Key to this unconditional position, the Constitution recognizes that human life starts “at the moment of conception.” They dragged their feet.

“Help me, Mr. President,
I want to live”

The clock was ticking. The medical staff at the Maternity Hospital didn’t dare carry out the procedure to interrupt the unviable pregnancy and save Beatriz’s life that they themselves had recommended, for fear of being accused of illegally practicing an abortion. According to a statement by the Civic Group for Decriminalization of Therapeutic, Ethical and Eugenic Abortion, “the doctors have even told Beatriz she would be the first to go to jail in the event her pregnancy was interrupted.” This group recommends decriminalization when it threatens the woman’s health or life (therapeutic abortion), when the pregnancy is the result of rape (ethical abortion) and when the fetus is severely malformed (eugenic abortion).

In view of the delay in finding a way out, Beatriz appeared in a brief television interview asking “President Mauricio Funes to help me get the Bench to accept an interruption of the pregnancy.” She added: “Knowing that the child is not going to live, I think it would be better to do this to save my life. It makes no sense to continue with my pregnancy, since it’s not going to live… I want to live.”

Minister of Health Maria Isabel Rodriguez supported Beatriz’s appeal for amparo, a very powerful provision in Salvadoran law that amounts to an order for protection against the action of state authorities. She advocated an “urgent medical-legal approach,” explaining that “the patient’s condition is deteriorating as the pregnancy progresses.”

The delay of the “fantastic four”

The controversial “fantastic four” members of the Constitutional Bench, believed by few but quoted by many, boast of their “judicial independence.” They are well known for quick trials, such as when they ruled in favor of Colonel Sigifredo Ochoa Pérez against President Funes in less than a fortnight. But this time, joined by the Supreme Court president, they took 48 days to hand down their ruling against the amparo appeal.

These judges aren’t superheroes to Beatriz. Their famous courage was conspicuous for its absence. By the time they finished their deliberations, seven months of pregnancy had passed. Terminating the pregnancy now no longer qualified as abortion, rendering the real legal consequences of their decision moot. The health minister explained that “at this moment interruption of pregnancy is no longer abortion; it’s induced labor because Beatriz’s pregnancy has passed 20 weeks.”

The experts in legal medicine

The Constitutional Bench had requested an expert analysis from the Institute of Legal Medicine (IML), which was provided on May 3, over 15 days after the Court admitted the appeal for amparo. The Civic Group for Decriminalization of Therapeutic, Ethical and Eugenic Abortion filed suit against IML Director José Miguel Fortin Magaña in the Court of Government Ethics because his analysis lacked “the most fundamental principles of professional ethics, violates the rights of citizens and contributes to creating more pain and uncertainty for Beatriz.”

Beatriz’s lawyer, Victor Mata Tobar, who saw the analysis, requested that it be quashed, arguing that “all the doctors gathered around Beatriz had asked her questions for about 20 minutes, using medical terms she didn’t understand.”
He also noted that the IML didn’t follow the regulatory procedure for appointing outside experts, challenging the participation of doctors from the Association of Bioethics who had previously publicly declared that Beatriz should carry her pregnancy to term, regardless of the consequences to her health and later life. “Paradoxically,” said Mata Tobar, “the only medical association that has publicly supported interruption of the pregnancy is the National Gynecology Association, and it wasn’t even called.”

IML Director Fortin Magaña is a member of Opus Dei. In an interview with El Diario de Hoy in 2012 he said, “If you notice in all my speeches, no matter how short they are, I always mention God because he is our Lord.” It’s thus not surprising that the institute he heads looks for experts who agree with Opus Dei’s position, which holds that a woman who aborts “is killing her child.”

The expert analysis concluded
that “there’s no medical reason”

Nor were the IML’s conclusions surprising: “There’s no medical reason to suspend the pregnancy.” Opposing the diagnosis endorsed by Health Minister Rodríguez, the IML rejected the possibility that the young woman could suffer renal failure.

The IML’s assessment is in doubt not only because kidney failure is a complication that tends to occur in lupus patients, but also because it’s common among the population of the Bajo Lempa region in Usulután, where Beatriz was born, grew up and lives. According to a 1997-2008 study conducted by the Ministry of Health, 11% of the population of this area suffers from it, linked to decades of indiscriminate pesticide use so the cotton mono-culture would prosper.

The IML’s recommendation was to “maintain the conservative medical treatment, that is, continue with the pregnancy, and if there are complications or a reactivation of already described chronic diseases, proceed to terminate it through appropriate channels, for which reason it is necessary to keep her in a tertiary care hospital.”

Seeing that time was running out, El Salvador’s Feminist Collective for Local Development, Center for Justice and International Law and Civic Group for Decriminalization of Therapeutic, Ethical and Eugenic Abortion requested the intervention of the Inter-American Commission on Human Rights (IAHCR). Before referring the case to the Inter-American Court of Human Rights, the IACHR issued precautionary measures to ensure that the Salvadoran State would interrupt Beatriz’s pregnancy within 72 hours to save the mother’s life, as there was no hope of saving the fetus. The State as a whole ignored these measures.

Two conflicting rulings

On May 28 and 29, the Inter-American Court and the Supreme Court of El Salvador passed conflicting judgments. From San José, Costa Rica, the Inter-American Court, whose decisions are binding for member States including El Salvador, required that “the State of El Salvador will guarantee and ensure, as a matter of urgency, all necessary and effective measures so that the group of physicians attending Mrs. B can, without any interference, take the medical measures considered appropriate and desirable to avoid damage that could be irreparable to the right to life and personal integrity and health of Mrs. B.”

With three out of five votes, El Salvador’s Constitutional Bench ruled otherwise: “The rights of the mother cannot be given preference over those of the nasciturus (unborn child) or vice versa.” With this ruling it wanted to set an important precedent against all abortions in El Salvador.

It further emphasized that “there is an absolute impediment to authorizing the practice of abortion as it countermands the constitutional protection afforded the human person from the moment of conception, as stipulated in article 1 of the Constitution of the Republic.”

The outcome for Beatriz

At this stage any resolution weighed heavily as a legal precedent for future cases, but very little for Beatriz, already in the 27th week of pregnancy and with severely deteriorated health. “I feel very tired. Much of my hair is falling out and I can hardly breathe,” she said, lying on the bed shortly before the measures so diplomatically ordered by the Inter-American Court were taken.

The doctors, expecting any sign of aggravation to her state of health, didn’t vacillate; on June 3, they performed the surgical procedure no longer called an abortion but “induced labor,” allowing the Ministry of Health to dodge legal repercussions in the Supreme Court. By cesarean section, Beatriz gave birth to a girl who weighed 500 grams and lived only five hours, as doctors had predicted. Beatriz fortunately survived the operation, recovered quickly with intensive care and was sent home a week later. The permanent damage to her body is not yet known.

The opinions that carried little weight

Beatriz’s circumstances triggered public opinions from most of the country’s political players, allthough abortion is a subject few of them like to tackle in public.

President Funes, who had previously turned his back on any opportunity to review anti-abortion legislation in El Salvador, was sensitive to Beatriz’s case, supported his health minister’s position, put the health system at Beatriz’s service and even opened a personal relationship with her. “The person who has the right to decide on her life and that of her child is Beatriz,” the President declared.

Human Rights Defense Attorney Óscar Humberto Luna was even more forceful. He reaffirmed his agreement with the October 2009 position of the United Nations Committee against Torture, which stipulates: ”Total criminalization of abortion greatly increases the pain and suffering of many women and girls, including those who seek medical care for complications or those who want to undergo a therapeutic abortion… because the criminalization of abortion entails physical pain, fear, depression and prison for women and girls.”

Luna recommended that Health Ministry authorities take all necessary steps to safeguard young Beatriz’s right to life, health and personal integrity and honor the commitment the Salvadoran State assumed in 2010 before the UN Human Rights Council, undertaking to promote the “creation of a national, broad-based and participatory dialog, with different social sectors and associated public entities on the right of women to reproductive health and the implications of restrictive abortion laws.” To El Salvador’s Legislative Assembly it recommended a review of abortion legislation to make it compatible and bring it into line with the International Covenant on Civil and Political Rights.

The FMLN, always with its back to the wall electorally if it speaks out about the abortion issue, did not take a formal position and few of its members raised their voice. Among those few were legislative representative Guillermo Mata Bennett and Legislative Assembly President Sigfrido Reyes. The former recommended therapeutic abortion and the latter counseled valuing Beatriz’s life over dogma.

Beyond the IACHR and Inter-American Court, international support for Beatriz came from Amnesty International, which collected signatures supporting her application to terminate her pregnancy. Spain’s Socialist Party sent one of its legislative representatives, Javier Barrero, to El Salvador, who met with the minister of justice and public safety, the education minister and Legislative Assembly member Sigfrido Reyes, asking them to make an exception in Beatriz’s case and allow an abortion to save her life.

The United Nations was the greatest heavyweight to throw its support behind Beatriz’s petition to put her own life first given that the fetus she was carrying had no chance whatever of survival. It also reiterated its “permanent availability to facilitate and support a national dialog that will contribute to the full exercise of women’s rights in El Salvador.” Although UN support is without doubt a heavyweight, in this case it was no match for the retrograde Salvadoran and international heavyweights that condemned Beatriz.

The opinions that did carry weight

The leading voice in denying Beatriz’s request came from El Salvador’s Bishops’ Conference. In a statement issued on April 27, the bishops assured that “denying the procedure requested by Beatriz, in accord with protection of the unborn, does not constitute a violation of constitutional rights.” To assuage their conscience, they argued that interruption of the pregnancy could occur if necessary, but only at the moment that the mother is actually on the borderline between life and death, affirming and reaffirming over the weeks that “her health is stable.” The medical reports weren’t enough for them; they only became convinced that her health was in jeopardy when they saw her “on the verge of death.” In addition, the bishops stressed that “the existence of a malformation or inherited disorder in the one about to be born should not be tantamount to a death sentence,” ignoring the fact that anencephaly is not just any “malformation or inherited disorder.” No known cases have survived more than a few hours or days anywhere in the world.

The word of the very powerful

Arguments are the least of it in such statements. What matters is the power of those who argue them and the member organizations of the Family Network of El Salvador have power. The most active one in this network is the Yes to Life Foundation, a subsidiary of the transnational Human Life International, headquartered in Miami. Its Chairwoman in El Salvador is Julia Regina de Cardenal, wife of Luis Cardenal, another leader of the Family Network of El Salvador and president of the Chamber of Commerce and Industry.

A small example: Human Life International issued a statement on March 13, 2000, with respect to the just-concluded elections in which Luis Cardenal ran for the capital’s mayor. The statement said: “On Sunday, March 12, 2000, elections were held in El Salvador for the positions of mayor and government deputies. The National Republican Alliance (ARENA), the political party composed mainly of people who defend the Christian faith, life and family, lost the mayoralty of San Salvador to the FMLN, the opposition party made up of people in favor of measures that are damaging the country, such as abortion and extremist feminism, as well as a socialist-communist plan of action.”

ARENA legislative representative Carmen Elena de Escalón said the decision on Beatriz’s case corresponded to the Supreme Court, and she was confident it would stick to the law. “It’s not in our hands; it’s the Court that has been asked to resolve it,” she said. “It will need to apply the Constitution, which now does not provide for therapeutic abortion. I can’t meddle in what the Constitutional Bench might say; it has the last word, but I’m governed by the fact that our Constitution doesn’t allow it and ruled out ARENA support in the Congress for any initiative in favor of abortion.” She added that, due to her principles and values, she as an individual would not support an attempt on the life of the unborn.

Rodolfo Parker, the Christian Democrat Party’s secretary general and only legislative representative, said: “The Constitution clearly states that life exists from the moment of conception and therefore anything that goes against life is murder.”

These groups had the support of anti-abortion associations around the world. The Pro-Life Association collected signatures demanding that the State not allow termination of pregnancy, which it delivered to President Funes.

A bit of history

Carl Sagan, possibly the 20th century’s most relevant scientific popularizer, has made a quick run through traditions related to abortion. He says there are usually no prohibitions against abortion among hunters-gatherers and it was accepted in ancient Greece and Rome as well. On the contrary, the more severe Assyrians impaled women on stakes who tried to abort. The Jewish Talmud teaches that a fetus is not a person and, therefore, has no rights. Not a single mention specifically prohibiting abortion appears in either the Old or New Testament, which abound in highly detailed prohibitions regarding to clothing, diet and words. The only passage that mentions anything relevant in that sense, Exodus 21.22, declares that if there is a fight and a woman is accidentally injured and aborts, the person responsible must pay a fine.

Sagan adds that neither St. Augustine nor St. Thomas of Aquinas considered abortion at an early stage as murder, the latter on the grounds that the embryo does not “appear” human. The Church adopted that idea at the Council of Vienne, France, in 1312, and, interestingly, it has never been repudiated. According to Jesuit John Connery, the eminent historian of religious teachings on abortion, the Catholic Church’s first collection of Canon Law, in force for a long time, held that abortion was murder only after the fetus was already “formed,” roughly toward the end of the first trimester. Not until 1869 did the Church turn abortion into a reason for excommunication. And only in 1917, when the newly born USSR legalized free abortions for the first time in history, was the total and absolute prohibition of abortion incorporated into the Canon Law.

When abortion was legal

All penal codes in El Salvador have criminalized abortion in different ways, not surprising in a society characterized throughout its post-conquest history by its authoritarian, militarist and macho traits. The 1950 Criminal Code classified abortion as a crime, but regulated exceptional situations that didn’t deserve sanctions. According to that code, a judge could also waive the penalty to women in circumstances of “economic distress.” The three cases of abortion that went unpunished in the Penal Code were rape, abortion to save the life of the mother and eugenic abortion in case of significant malformations in the fetus. This legislation still used concepts such as the woman’s “proven good conduct” as a reason for reducing the punishment. In this way, patriarchal culture, classist culture and a double standard were enshrined in the law.

Obviously, a woman of “proven good conduct” was a woman of the bourgeoisie, who enjoyed institutional support. Although this differentiation was later omitted from the respective legislation, it continued to mark Salvadoran reality. Roberto Sanchez, the Maternity Hospital’s director, illustrated this when referring to Beatriz’s case: “We’re talking about a poor patient. Any patient with economic means leaves the country and comes back straightaway without the problem, sorting it out in Miami.”

How total criminalization
was pushed through

In 1993, on the eve of the first elections after the Peace Accords were signed, the Yes to Life Foundation and related organizations presented a bill to the Legislative Assembly to declare March 25 “National Day of the Unborn.” It was passed without debate or opposition and marked a turning point in the criminalization process.

In subsequent years, however, feminist organizations began to raise the issue of completely decriminalizing abortion in the wake of some national and international advances in the field of women’s rights. The abortion debate heated up during discussion of the adoption of a new Penal Code. Women’s organizations viewed the 1994 draft’s elimination of anachronistic concepts such as “attenuated abortion,” associated with a woman’s good conduct, as a step forward.

The Catholic Church and groups linked to the Yes to Life Foundation, however, reacted with a media and political advocacy campaign that had a powerful impact on what was approved in the Code. At the time La Prensa Gráfica reported: “The meeting only lacked cheerleaders, and it would be lying to say there was decorum. ‘Yes to life’ supporters and students from various religiously oriented schools (both Catholic and Evangelical) noisily endorsed each intervention in favor of criminalization. On the other hand, they booed when an FMLN representative spoke in favor of exceptions.” Passed with 42 ARENA votes and the 7 PDC votes, the 1997 Penal Code outlawed abortion with no exceptions.

Four days later, not satisfied with this victory, the Legislative Assembly approved by a simple majority a constitutional reform to armor-plate the criminalization of abortion in the highest law of the nation by establishing that life begins at conception. They managed to push through this and other reforms in the last 20 minutes of the final meeting of the 1994-97 legislature. The act thus went virtually unnoticed by feminist organizations, which waited almost a month before demonstrating against the criminalization of abortion.

And what about the FMLN?

The constitutional reform had to be ratified by the newly elected Legislative Assembly. In November 1998, FMLN representative Ofelia Navarrete tried to introduce a piece of correspondence with “a processing waiver” that would allow abortion in cases where the mother’s life was in danger, but it triggered strong opposition and negative handling in the media. With less than four months to go before the 1999 presidential elections, the FMLN withdrew Navarrete’s initiative to prevent its use against the FMLN during the election campaign.

This was the context in which ratification of the constitutional reform was passed. The FMLN bench split its vote, which gave those voting in favor the qualified majority required for ratification of constitutional changes. This marked a shift in the FMLN voting pattern, which until then supported decriminalization efforts to guarantee women’s rights.

Why this backsliding?

How are we to understand that El Salvador’s abortion legislation has become more punitive and violates women’s rights more in peacetime than during the military dictatorship in the seventies? How is it possible that in the 21st century, when it is assumed that Western societies, including El Salvador’s, have made progress on “gender equality” and women’s rights, the State can tie the hands of its own doctors when a woman’s life is so obviously at stake? Margarita Posada, coordinator of the National Forum on Health offers this explanation: “There were many reversals in our country in the nineties. After the war fundamentalist voices were raised on subjects that were of no interest previously. Before, the Right’s interest was in how to stop the popular struggle from developing, and subsequently how to wage and finance the war. In the nineties neoliberal philosophy promoted a new social construct, one that rolled back rights not only on issues such as abortion or gay marriage, but also on water and other public services and everything else that came with privatization. The Right’s struggle to criminalize social protest was another priority in this new century.”

It’s striking that the break in the FMLN’s position on the abortion issue should happen right when the FMLN leadership was in the hands of Facundo Guardado and other leaders who in later years moved to openly conservative, pro-neoliberal and anti-communist positions.

According to Morena Herrera, representing the Civic Group for the Decriminalization of Therapeutic, Ethical and Eugenic Abortion, “these people [the anti-abortion groups] aren’t just against women who argue for the need to interrupt a pregnancy; they’re against any progressive thinking. And our Left has let itself be blackmailed.”

Words that reveal patriarchal myths

Salvadoran feminist groups have identified a series of patriarchal myths that underlie the criminalizing laws. One is that motherhood is women’s most important role and therefore, since it is their “natural” duty, all women should be mothers. Another is that every woman’s duty is to sacrifice herself for her children and her husband. Collaterally, a third is that a woman who thinks about herself is “irresponsible.”

With these thoughts in mind, feminists warn that the purpose of the “anti-abortion” movement isn’t to “save babies,” but to keep women in their traditional roles. Beatriz’s case demonstratea this assertion, as there was no chance her daughter would survive.

Despite the patent absurdity of her words as her organization insisted on the Calvary Beatriz was put through, Julia Regina de Cardenal, president of the Yes to Life Foundation, claimed that “what we want is Beatriz’s physical and emotional well-being and we’re trying to get people to join us to help her.” What they really wanted was her “welfare” based on these myths. Even after the induced labor and the baby’s immediate death, Cardenal stood firm: “El Salvador has set an example of the defense of life from conception until natural death” and demonstrated “that there’s no reason why the baby in the womb has to be sacrificed to save the mother’s life.”

So-called pro-life groups both inside the country and around the world “celebrated the outcome” of Beatriz’s case. The baby’s death didn’t seem to matter much to them; what appeared to be important was that Beatriz, whose voice was buried under so many powerful cries, shouldn’t decide; the decision should be made by the State, under pressure from the Catholic Church and anti-abortion groups. They needed to see a peasant girl doomed to silence and obliged to comply with “her historical role.”

Beatriz may contribute to a change

In late 2012, well before Beatriz’s case, Harvard University commissioned the Central American University’s Public Opinion Institute to conduct a survey on abortion in El Salvador. That poll showed 58% of the population in favor of a change in the legislation to allow interruption of a pregnancy when the woman is at risk of death.

As Morena Herrera explains, conservative systems move based on disinformation, such as that you can always save both lives and that life is an abstract concept, not a real thing. But Beatriz was a real woman and in her case both beings couldn’t be saved. Her case has made people see the real repercussions. You can be dying in this country and they won’t give you an abortion unless it’s in a clandestine clinic where the hygienic conditions don’t guarantee your life either. I think the percentage of people aware of women’s needs has increased now. Something changed at the cultural level with Beatriz’s case.” And this means that possibly something can be changed at the legal level too.

A matter of life and death

According to the Civic Group, more than 30 women in El Salvador are currently serving a 30-year prison sentence for the crime of aggravated homicide, when what happened to them were spontaneous miscarriages. Another 19 are in prison for having chosen abortion, even in insanitary and highly dangerous conditions, when faced with the alternative of giving birth, an option they felt was even worse for their lives.

The Ministry of Health puts abortion practiced clandestinely among the five top causes of death among Salvadoran women due to unsanitary procedures. For these women, the abortion debate is not a theoretical issue to argue theological and philosophical positions. It’s a matter of life and death. And it is they who should get to say and decide.

Elaine Freedman is a grassroots educator and envío’s correspondent in El Salvador.

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