ON THE BRINK OF DEATH VIOLENCE AGAINST WOMEN AND THE ABORTION BAN IN EL SALVADOR MY BODY MY RIGHTS CAMPAIGN Amnesty International is a global movement of more than 3 million supporters, members and activists in more than 150 countries and territories who campaign to end grave abuses of human rights. Our vision is for every person to enjoy all the rights enshrined in the Universal Declaration of Human Rights and other international human rights standards. We are independent of any government, political ideology, economic interest or religion and are funded mainly by our membership and public donations. First published in 2014 by Amnesty International Ltd Peter Benenson House 1 Easton Street London WC1X 0DW United Kingdom © Amnesty International 2014 Index: AMR 29/003/2014 Original language: English Printed by Amnesty International, International Secretariat, United Kingdom All rights reserved. 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To request permission, or for any other inquiries, please contact [email protected] Cover photo: Mural at women’s centre in Suchitoto, El Salvador, 2014. © Amnesty International amnesty.org CONTENTS Acknowledgements........................................................................................................ 5 Introduction ................................................................................................................. 6 Methodology ............................................................................................................. 8 1. The context of El Salvador’s total ban on abortion ........................................................ 9 El Salvador’s abortion ban in the international context ................................................. 10 The history of the law on abortion in El Salvador and the influence of the Catholic Church hierarchy ................................................................................................................ 11 Underlying social and economic factors influencing the impact of the abortion ban ........ 13 Gender inequality and poverty ................................................................................ 13 Violence against women and girls ........................................................................... 14 Lack of access to justice for survivors of violence ............................................. 16 Lack of full access to modern contraception ............................................................ 17 Legal barriers faced by young women ............................................................. 18 Lack of quality sexual and reproductive health information and education .................. 19 2. The impact of El Salvador’s abortion ban ................................................................... 21 El Salvador’s total abortion ban kills women and girls .................................................. 21 Overprotection of foetal interests pushes women with health risks to the brink of death... 22 Right to life protections in international treaties do not apply before birth .................. 23 Girls and young women at particular health risk ....................................................... 26 The stigma of adolescent pregnancy ............................................................................ 27 Pushed to despair: adolescent suicides linked to pregnancy ...................................... 28 Heaping violence on violence: the situation of rape survivors ..................................... 29 Clandestine abortions ........................................................................................... 30 Impact on women and girls living in poverty ....................................................... 31 Illegal use of misoprostol to induce abortion ........................................................ 32 Breach of confidentiality: the practice of reporting women seeking post-abortion care to the police ........................................................................................................................ 33 Harsh inquiries when women suffer miscarriages …………………………………….. 35 Women imprisoned ..................................................................................................... 35 ‘The Group of Seventeen’ ...................................................................................... 36 Denial of due process and arbitrary deprivation of liberty .......................................... 37 Stigmatizing and discriminatory stereotypes ................................................ 38 Lack of adequate counsel ........................................................................ 38 Evidence does not support the charges ...................................................... 39 The wider impact on women and their families ........................................................ 40 Conclusion ................................................................................................................. 42 Recommendations ...................................................................................................... 43 Annex - relevant international human rights law ............................................................. 46 Endnotes ................................................................................................................... 54 ON THE BRINK OF DEATH: 5 VIOLENCE AGAINST WOMEN AND THE ABORTION BAN IN EL SALVADOR ACKNOWLEDGEMENTS Amnesty International would like to thank all of the activists and medical professionals who shared their invaluable expertise and experience, and whose knowledge contributed to the writing of this report. Amnesty International is also grateful for the assistance of the various Salvadoran state officials and for their willingness to meet with Amnesty International researchers. Most of all, Amnesty International thanks all of the women who courageously told their stories, even when it was painful to do so, motivated by the hope that their words could contribute to change for the future. Many women whose stories are told in this report have asked Amnesty International not to include information that might allow them to be identified. The real names of most of the survivors have, therefore, been withheld and replaced with pseudonyms chosen by the women themselves. It has not been possible to include all the testimonies of those who shared their experiences, but all the stories told, without exception, played an important role in the preparation of this report. Index: AMR 29/003/2014 Amnesty International September 2014 66 ON THE BRINK OF DEATH: VIOLENCE AGAINST WOMEN AND THE ABORTION BAN IN EL SALVADOR INTRODUCTION “We are many, and we will not rest until there are no more femicides, until the decriminalization of abortion is not just a dream.” J, youth activist on women’s and girls’ rights, Interview with Amnesty International, March 2014. Despite advances in women’s rights over the last decades, women and girls in El Salvador continue to face a myriad of socio-political, economic and cultural barriers to the full realization of their human rights, particularly those linked to their sexual and reproductive choices. Persistent gender discrimination and inequality in Salvadoran society is at the root of women and girls’ inability to exercise their human rights. This is apparent in beliefs around what constitutes acceptable behaviour for women and girls, stereotypes around women’s primary role as mothers, girls being seen as potential child-bearers, adolescent sexuality, and attitudes towards sexual activity before marriage. The patterns of discrimination and inequality that affect women’s lives also shape the legal and societal response to issues concerning women, hold back the development of women’s empowerment and reinforce the continuum of violence. Such discriminatory stereotypes remain deeply rooted in a conservative and patriarchal culture which still relegates women to the sphere of social reproduction – a culture widely promoted, in part, by conservative forces including the Catholic Church hierarchy. These stereotypes have negatively influenced the development of laws, policies and practices, including the total ban on abortion and its criminalization and the response by the health care and criminal justice systems. Every year, thousands of women and girls in El Salvador are denied their rights and choices by El Salvador’s total ban on abortion and its criminalization. All women and girls, regardless of their reasons for seeking an abortion, are prohibited from doing so. Women and girls whose health or lives are at risk or those who have been raped are denied this essential health service. Those with limited financial resources cannot access quality reproductive health information or maternal health care, and there is a lack of sexuality education and contraception for girls and young women. These restrictions are serious violations of the Amnesty International September 2014 Index: AMR 29/003/2014 ON THE BRINK OF DEATH: 7 VIOLENCE AGAINST WOMEN AND THE ABORTION BAN IN EL SALVADOR human rights of women and girls and must be dealt with as a matter of urgency. Due to the criminalization of abortion in all circumstances, women and girls who are carrying an unwanted pregnancy are confronted with two options: commit a crime by terminating the pregnancy, or continue with the unwanted pregnancy. Both options have life-long and potentially devastating implications. The problem is exacerbated by the failure to provide comprehensive sexuality education in the country’s education system, and by the difficulty faced by young people, in particular, in obtaining quality, modern contraception. The negative influence of gender stereotypes on the criminal justice system is evident when women try to defend themselves from charges of undergoing an illegal abortion. In such cases, as documented in this report, women and girls experience gender-based discrimination and some face the same institutionalized violence that put them in these circumstances in the first place. Human rights obligations require El Salvador to prevent such discrimination and violence in a manner that addresses the root causes of the systemic marginalization of women and girls at all levels of society and in all circumstances, whether public or private, including the political, family, health care, education, judicial and administrative contexts. In 1997, El Salvador’s Legislative Assembly passed into law the prohibition of all forms of abortion, making it a criminal offence for a woman to have an abortion, or for anyone to assist her in procuring or carrying out an abortion. Women found guilty of terminating their pregnancies may be sentenced to long jail terms. Conviction is often based on weak or inconclusive evidence, following flawed trials. This prohibition denies access to safe and legal abortions for women and girls who are pregnant as a result of rape or whose pregnancy endangers their life and health. The effects of this legislation are nothing other than institutionalized violence and amount to torture and other forms of ill-treatment.1 The legislation also has the effect of forcing women and girls to undergo clandestine abortions, increasing the risks to their lives and health. Those with the fewest resources suffer most; they are less likely to be able to travel to other countries for the procedure or pay for treatment at private, clandestine clinics, and more likely to resort to medication obtained illegally, or to dangerous agricultural chemicals in the hope of ending their pregnancies. In desperation, some take their own lives. The anti-abortion law has created suspicion and discrimination against women. Some pregnant women who arrive at hospital suffering blood loss or other problems due to miscarriage or botched abortions face criminal prosecution. They can find themselves being convicted of serious offences such as homicide and sentenced to long prison terms on weak or inconclusive evidence, often following flawed trials. With this report, Amnesty International focuses on the impact of El Salvador’s ban on abortion and the underlying and intersecting factors which have influenced the development and impact of this discriminatory legislation, and examines the seriousness of the resulting human rights violations. The report concludes with a series of detailed recommendations, calling on the Salvadoran authorities to fulfil their international obligations to ensure respect for women and girls’ human rights, without prejudice or discrimination. Index: AMR 29/003/2014 Amnesty International September 2014 88 ON THE BRINK OF DEATH: VIOLENCE AGAINST WOMEN AND THE ABORTION BAN IN EL SALVADOR METHODOLOGY This report is the result of research carried out by Amnesty International into the issue of discrimination and denial of human rights of women in El Salvador. Amnesty International conducted research missions to El Salvador in April 2012, April and September 2013 and March 2014, during which a broad range of survivors, civil society organizations, activists, heath care professionals and other experts, as well as state officials were interviewed. Amnesty International interviewed survivors of gender-based violence, women who had undergone clandestine abortions and women who had served or were serving prison sentences for aggravated homicide linked to pregnancy related-complications. The organization also met with dozens of women’s rights defenders, including leaders of civil society and women’s rights groups, grassroots activists, lawyers and academics to hear their views on the issue of violence against women in El Salvador in its various forms. Amnesty International interviewed 20 members of the health care profession, including doctors, psychologists, social workers, community health promoters and midwives. Amnesty International also held meetings with representatives of the Salvadoran Institute for the Advancement of Women; the current and former Directors of the National Civil Police; the Public Prosecutor and the Deputy Public Prosecutor; the Public Defender; a representative of the Institute of Forensic Medicine; the Human Rights Ombudsman; the former Minister of Health; the President of the National Council of the Judiciary; the UN Resident Co-ordinator in El Salvador and the UN Fund for Population Activities Representative. Amnesty International September 2014 Index: AMR 29/003/2014 ON THE BRINK OF DEATH: 9 VIOLENCE AGAINST WOMEN AND THE ABORTION BAN IN EL SALVADOR 1. THE CONTEXT OF EL SALVADOR’S TOTAL BAN ON ABORTION “I have to ask the government for permission to do something for my life, and permission from the Church, from organizations who decide on my behalf… I have to ask permission, and they are the ones who take the decision for me!” - Maryana, who underwent a clandestine abortion to safeguard her life and health in 2012, interview with Amnesty International, April 2013 Women and girls worldwide, including in El Salvador, seek and undergo abortions for many reasons. For all women and girls, it is a highly personal and individualized decision based on their life circumstances. Some women and girls have wanted pregnancies but their physical or mental health or a life-threatening condition prevents them from continuing the pregnancy. Others choose abortion because their pregnancy is the result of sexual violence or because they are carrying a pregnancy with a serious, and possibly fatal, foetal impairment. For many more others, their decision to terminate a pregnancy is based on their very personal social or economic circumstances. El Salvador’s total ban on abortion and its criminalization denies women and girls the ability to make decisions, regardless of their circumstances, about their own bodies, stripping them of their physical and mental integrity and autonomy. It has resulted in the death and morbidity of thousands of women and girls and the loss of dignity for many more. The total ban on abortion in El Salvador is nothing less than institutionalized violence against women and a form of torture or other ill-treatment. The criminalization of abortion places the Salvadoran government ultimately responsible for these violations. Index: AMR 29/003/2014 Amnesty International September 2014 1100 ON THE BRINK OF DEATH: VIOLENCE AGAINST WOMEN AND THE ABORTION BAN IN EL SALVADOR EL SALVADOR’S ABORTION BAN IN THE INTERNATIONAL CONTEXT El Salvador has one of the most restrictive abortion laws in the world. Only a handful of other countries ban abortion in all circumstances.2 In El Salvador the law criminalizes the procedure and prohibits women from terminating their pregnancies under any circumstance, even if the pregnancy puts the woman’s life or health at risk or is the result of rape. The legislation introducing the total prohibition on abortion in El Salvador stands in marked contrast to the global trend of the past 20 years towards liberalization of abortion laws.3 This trend is a result, in part, of the growing recognition that gender equality cannot be achieved without ensuring that women are able to make their own decisions concerning their bodies. Worldwide, less restrictive laws still allow for abortion in order to save a woman’s life and to preserve her health, as well as in cases of foetal impairment and in cases of rape or incest. Some legal systems also allow abortion for socio-economic reasons or without restriction up to a certain gestational period.4 The global consensus regarding the harmful effects of restrictive abortion laws is reflected in the rulings, statements and recommendations made by a wide range of international and regional health and human rights bodies to which El Salvador is a party.5 It is also connected, although less explicitly, to the global agreements that El Salvador has committed to, including the Programme of Action of the International Conference on Population and Development (ICPD), the Beijing Platform for Action, and the Millennium Development Goals (MDGs). The ICPD and Beijing documents recognize reproductive rights as human rights6 and that the human rights of women and girls include their right to exercise control over – and decide freely and responsibly on matters related to – their sexual and reproductive health, free from coercion, discrimination and violence.7 El Salvador has also committed to the MDGs, which include a commitment to reduce maternal mortality,8 including mortality stemming from unsafe abortions. Since the passage of the abortion ban in El Salvador in 1997, international treaty monitoring bodies, which monitor state compliance with international human rights treaties, including the Committee against Torture and the Committee on the Rights of the Child, have consistently criticized the ban as a violation of the fundamental rights of women and girls. These bodies have called on El Salvador to decriminalize abortion and ensure its availability in accordance with international human rights obligations, which include cases where there is risk to a woman’s or girl’s life or to her physical and mental health, in cases of rape or incest and in some cases of foetal impairment. In 2009, the Committee against Torture noted that El Salvador’s law, which criminalizes women for undergoing an abortion, has resulted in serious harm to women, including death, and implicates Articles 2 and 16 of the Convention against Torture.9 Article 2 places an obligation on El Salvador to “take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction” and provides that: “An order from a superior officer or a public authority may not be invoked as a justification of torture.” Amnesty International September 2014 Index: AMR 29/003/2014