In 2019, the American Bar Association Center for Human Rights (ABA CHR) monitored two criminal cases in El Salvador as part of the Clooney Foundation for Justice’s TrialWatch initiative. Both cases were brought against poor women who suffered obstetric emergencies at home, resulting in the loss of their pregnancies. After the women sought care at public hospitals, staff reported them to the police and they were charged with and prosecuted for aggravated homicide. The investigations and prosecutions in the two cases were rife with gender stereotypes, with the authorities all but stating that the accused were “bad mothers.” The proceedings violated internationally recognized human rights reflected in treaties ratified by El Salvador, such as the right to freedom from arbitrary arrest and detention, the right to the presumption of innocence, the right to a fair trial, and the right to freedom from gender discrimination.
Two years later, there are continuing reports of the criminalization of obstetric emergencies in El Salvador, including practices documented in the two cases ABA CHR monitored as part of TrialWatch – such as doctors notifying the police of women seeking care in the wake of miscarriages, stillbirths, or other obstetric emergencies, the handcuffing of such women to hospital beds, the imposition of prolonged detention despite lack of evidence of a crime, and automatic assumption of guilt due to gender stereotyping. Further, 14 women remain incarcerated on the basis of convictions connected to obstetric emergencies.
In late November 2021, the Inter-American Court of Human Rights issued its first decision on this issue in Manuela v. El Salvador, finding El Salvador responsible for the imprisonment and death of a woman convicted for an obstetric emergency and obligating states under the Court’s jurisdiction throughout Latin America and the Caribbean to ensure that hospital staff respect doctor-patient confidentiality and provide women seeking care in the wake of at-home births with appropriate medical services. The Court further ordered El Salvador to ensure that justice sector personnel receive training to prevent gender stereotypes from infecting criminal proceedings relating to sexual and reproductive rights and health.
In light of the human rights violations inherent in the criminalization of miscarriages and stillbirths, the ways these violations are compounded by unfair criminal proceedings as documented in the two cases monitored as part of TrialWatch, and the recent Manuela ruling, El Salvador must stop prosecuting women for obstetric emergencies and eliminate discriminatory gender stereotyping at all stages of investigations and prosecution. Further, it must provide remedies to those who have been subjected to criminal proceedings merely for loss of their pregnancies, including the 14 women who reportedly remain in jail on this basis.