In El Salvador, TrialWatch is fighting discrimination against women who have suffered obstetric emergencies and face criminal proceedings for aggravated homicide. El Salvador outlawed abortion in all circumstances in 1997 and a year later the Salvadoran government also made amendments to the Penal Code and its Constitution to recognize the right to life from the moment of conception, which has allowed El Salvador to prosecute alleged abortions as aggravated homicide. These legal amendments have resulted in women, in particular those who are most vulnerable in El Salvador – young, rural and from low socio-economic backgrounds – being prosecuted for suffering obstetric emergencies. It is often health care professionals who report women who seek medical care after a poor pregnancy outcome to police. In fact the UN Working Group on Arbitrary Detention reported that “[b]etween 2002 and 2010, 57.36% of the reports registered for abortion came from health professionals.”
These women are handcuffed to their hospital beds, detained while they await trial, and face significant discrimination in the court room based on gender stereotypes regarding the ‘proper’ role of women. This pattern was born out in the cases of Evelyn Hernandez and ‘Diana,’ whose trials were monitored by CFJ’s partner the American Bar Association Center for Human Rights as part of TrialWatch.
On the basis of this monitoring, TrialWatch and The Center for International Human Rights at Northwestern Pritzker School of Law filed an amicus brief before the Inter-American Court of Human Rights in the case of Manuela v. El Salvador, brought on behalf of a woman who died in custody after being convicted of aggravated homicide for pregnancy complications. The brief called on the Inter-American Court to hold El Salvador accountable for violations of human rights in Manuela’s and similar cases. In November 2022, the Inter-American Court of Human Rights ordered El Salvador to reform its laws and health care policies that criminalize women for obstetric emergencies and to compensate Manuela’s family.
Both Ms. Hernandez and ‘Diana’ (a pseudonym) were charged with aggravated homicide after being treated in hospitals following obstetric emergencies at home. Both trials were marred by due process violations. In Evelyn’s case, the TrialWatch Fairness Report found that the proceedings against her violated her right to the presumption of innocence and that the prosecution had discriminated against her by relying on stereotypes of motherhood to pursue a conviction, giving her trial a grade of ‘D.’
In Diana’s case, the TrialWatch Fairness Report found that the proceedings violated “a number of [Diana’s] rights, including the right to liberty, the right to freedom from cruel, inhuman or degrading treatment, and the right to privacy,” and gave a grade of ‘C’ to the proceedings.
Evelyn Hernandez was prosecuted for aggravated homicide based on an obstetric emergency she suffered while giving birth. Although Ms. Hernandez was acquitted, her retrial was marred by due process violations.
Diana was prosecuted for aggravated homicide in connection with an out-of-hospital delivery. Although the San Salvador court ultimately dismissed the charges against Diana for lack of evidence, the authorities’ conduct throughout the proceedings violated a number of her rights.