IACHR Takes Case Involving El Salvador's Absolute Ban on Abortion to the Inter-American Court of Human Rights

January 11, 2022

Washington, D.C. – The Inter-American Commission on Human Rights (IACHR) filed on January 5, 2022, an application before the Inter-American Court of Human Rights in what is known as the Beatriz Case, with regard to the absolute ban on voluntary terminations of pregnancy in El Salvador. This case concerns the State's international responsibility for violations of the rights of Beatriz and her family caused by the absolute ban on voluntary terminations of pregnancy. This ban prevented Beatriz from having access to a legal and timely termination of her pregnancy in a situation where her life, health, and personal integrity were all at risk and where the fetus had no chance of surviving outside her womb.

In 2013, Beatriz, a young woman living in extreme poverty, was told she was 11 weeks pregnant. Her pregnancy was considered high risk, since the fetus had serious problems. Later, the fetus was found to be anencephalic, so it could not survive outside the womb, and doctors said the mother's life would be at risk if she pursued her pregnancy. The legal team representing Beatriz filed a writ of amparo to request the termination of her pregnancy in order to save her life. The Constitutional Chamber admitted the writ of amparo and issued precautionary measures to protect Beatriz' life and her physical and mental health. In May 2013, the Constitutional Chamber itself rejected the writ of amparo, arguing that the authorities who were being sued had not omitted to act in this case. Given the risks faced by Beatriz, the IACHR and the Inter-American Court of Human Rights granted temporary precautionary measures in her favor. On June 3, 2013, Beatriz went into labor and had to undergo a C-section. The anencephalic fetus died five hours later.

Specifically, the IACHR considered that, while protecting life since conception is a legitimate aim, criminalizing the termination of pregnancy when the fetus would not survive outside the womb is inadequate, because the fetus' lack of viability breaks the link between criminalization as a means and the ends it is said to pursue since it is impossible to protect the life of the fetus as intended. Among other aspects, the IACHR noted that the impact and risks concerning the rights to Beatriz' life, health, personal integrity, and privacy caused by her lack of access to a termination of her pregnancy had been particularly serious in this case, where the aim of protecting the life of the fetus was null and void since the fetus was anencephalic.

The IACHR found that punishing abortion, and particularly banning it in all circumstances and without exception, may encourage women to resort to illegal, unsafe abortions that put their physical and mental health and even their lives at risk. The IACHR further noted that the pain and suffering that Beatriz endured since she requested the termination of her pregnancy, and even after the birth and death of the baby, amounted to cruel, inhuman, and degrading treatment.

The Commission also found that, since El Salvador's old Penal Code exempted from punishment "therapeutic, eugenic, and ethical" abortions, the adoption of the current Penal Code banning abortion in all circumstances involved a violation of the country's obligation to refrain from taking regressive action, by creating a legal barrier to a healthcare service that was once available in El Salvador in certain circumstances. This is compounded by the fact that current legislation violates the legality principle, since it is neither clear nor precise and creates uncertainty for healthcare professionals concerning what they can legally do and not do, which in turn affects access to reproductive health services. The IACHR concluded that the State had also failed to provide an effective remedy to the victim and violated her right to a timely decision concerning her writ of amparo, as well as violating the right to personal integrity of members of Beatriz' family.

The IACHR found that this new normative framework and its impact on the pathways pursued by Beatriz to access a termination of her pregnancy meant that the pregnancy went on, which entailed constant risks that disproportionately affected her rights and included violations of her rights to life, personal integrity, privacy, and physical and mental health.

The IACHR therefore concluded that the State of El Salvador is liable for violating the rights to life, a humane treatment, judicial guarantees, privacy, equality before the law, judicial protection, and health held in the American Convention (Articles 1.1 and 2), as well as the need to ensure that rights are progressive. The IACHR also found that the State of El Salvador is liable for violating Articles 1 and 6 of the Inter-American Convention to Prevent and Punish Torture and Article 7 of the Convention of Belém do Pará, which entails an obligation for States to prevent and punish violence against women.

In its Merits Report, the IACHR recommended that the State provide comprehensive reparations for the human rights violations mentioned in the report; take legislative action to enable the option to terminate a pregnancy in cases where the fetus is not viable outside the womb or where there are serious risks for the mother's life, health, and personal integrity; take all measures necessary (including the design of public policies, training programs, protocols, and frameworks) to ensure that access to the termination of pregnancy linked to legal changes is effective in practice and that there are no practical or legal hurdles that preclude implementation, in keeping with the applicable international human rights standards.

A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for and to defend human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.

No. 011/22

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