On December 20, 2024, after several postponements, the Inter-American Court of Human Rights (IACtHR) announced its decision in the renowned Beatriz et al. v. El Salvador case. (1) Expectations were high regarding this decision, as it could have established an alleged “right to abortion” throughout Latin America. (2)
Numerous pro-abortion feminist organizations—both those that sponsored the case and others providing media support—worked tirelessly, submitting over one hundred amicus curiae briefs, urging the IACtHR to condemn the State of El Salvador for not having performed an abortion on Beatriz, for including constitutional protection for the unborn, and for criminalizing any form of abortion in its penal code.
The IACtHR Judgment
Facts
The facts recount that Beatriz suffered from systemic lupus erythematosus, lupus nephropathy, and rheumatoid arthritis. Although she successfully carried her first pregnancy to term in 2011, she gave birth to a premature child who remained in an incubator for thirty-eight days. After this pregnancy, her medical condition worsened.
Two years later, during a medical check-up in February 2013, she was informed that a second pregnancy was underway, already at eleven weeks of gestation. She was told that, due to her pre-existing condition, the pregnancy was considered high risk. After several ultrasounds, it was confirmed that the fetus had anencephaly.
On April 11, 2013, Beatriz’s legal representatives filed a writ of amparo before the Constitutional Chamber of the Supreme Court, requesting that the authorities of the National Specialized Maternity Hospital (hereinafter, “the hospital”) be ordered to perform an abortion on Beatriz in order to save her life.
On April 12, and after two meetings of the Hospital Medical Committee, a majority consensus agreed to terminate the pregnancy, considering that the fetus’s prognosis was fatal and that the maternal condition would deteriorate as the pregnancy advanced. Based on the Hospital Medical Committee’s information, the Constitutional Chamber granted the writ of amparo and issued a precautionary measure.
However, days later, the Ministry of Health sent a letter informing the Constitutional Chamber that there were no protocols in place to handle Beatriz’s case. In response, the Constitutional Chamber ordered an expert examination by the Institute of Forensic Medicine. In its report dated May 3, when Beatriz was in her 21st week of pregnancy, the Institute concluded that there was no imminent risk of death for Beatriz and recommended that the pregnancy be continued, with the provision that if complications or a reactivation of her chronic illnesses occurred, the termination of the pregnancy could be carried out by the appropriate method.
On May 23, 2013, when Beatriz was approximately twenty-four weeks pregnant, the Medical Committee met for the third time and established a management plan for her case. They requested evaluations from the heads of the rheumatology, nephrology, anesthesiology, and cardiology departments, and then they scheduled a cesarean section based on these evaluations, to be performed before twenty-seven weeks gestation. Additionally, it was stated that an emergency intervention would take place if there was any deterioration in her maternal condition.
On May 28, 2013, the Constitutional Chamber dismissed the writ of amparo, ruling that there was no omission by the authorities that created a serious risk to Beatriz’s rights to life and health.
On June 3, 2013, when Beatriz was in her twenty-sixth week of pregnancy, polyhydramnios was detected, leading to a cesarean section. The newborn, Leilany Beatriz, died five hours after birth as a result of anencephaly. Subsequently, Beatriz experienced some health complications, which were successfully treated, and she was discharged on June 10, 2013.
Four years later, Beatriz was admitted to the National Hospital in Jiquilisco following a traffic accident. After further health complications, she contracted a nosocomial pneumonia and passed away on October 8, 2017.
The IACtHR Judgment
The case was submitted to the Court by the Inter-American Commission on Human Rights (hereinafter, “the Commission”), which in its report on the merits requested that El Salvador be condemned for violations of the following rights:
- American Convention on Human Rights: for the State’s violation of the rights to life, personal integrity, judicial guarantees, private life, equality before the law, judicial protection, and the right to health.
- Inter-American Convention to Prevent and Punish Torture: for the State’s failure to take effective measures to prevent and punish torture, cruel, inhuman, or degrading treatment or punishment, and to ensure that all acts of torture and attempts to commit such acts constitute crimes.
- Belém do Pará Convention: for the State’s obligations to adopt measures to prevent impunity, protect women from imminent acts of violence, establish fair and effective legal procedures, and ensure access to redress and compensation for damages.
Regarding the Commission’s claims, the IACtHR issued a joint opinion on the right to life, personal integrity, private life, the right to health, and the right to live a life free of violence. After reviewing the facts and the Court’s previous jurisprudence, its Consideration 155 stated:
The Court considers that Beatriz’s health was put at risk because there were no clear operating protocols for a case like hers. This, in addition, resulted in a situation of obstetric violence against Beatriz and subjected her to profound distress that affected her right to physical integrity. The lack of certainty also prevented Beatriz’s opinion from being taken into account regarding the treatment of her condition, and it is therefore this affected her private life. Consequently, the State violated Beatriz’s rights to personal integrity, private life, and both physical and mental health, as guaranteed by Articles 5, 11, and 26 of the American Convention, in conjunction with Article 1 of the same instrument and Article 7 of the Belém do Pará Convention. The absence of protocols providing legal certainty for health personnel to guarantee the right to protect the life and health of high-risk pregnant women further constituted a violation of Article 2 of the American Convention. (3)
It is important to emphasize that with regard to the right to life, the Court did not find El Salvador responsible for Beatriz’s death, as no causal link was established between the contested events and her passing. This point is particularly significant because a widespread feminist media campaign attempted to manipulate the facts to convince the public that Beatriz’s death was caused by her lack of access to abortion under the country’s laws. In this regard, the Court made it clear:
. . . regarding the allegations related to Beatriz’s death, this Court emphasizes that the evidence in the record does not provide clear and compelling evidence establishing a causal link between the tragic death of Beatriz in 2017 and the medical care provided during her second pregnancy in 2013, which is the main subject of this case. Therefore, in the present case, no infringement of Beatriz’s right to life could be proven. (4)
Regarding the right to an expeditious and effective remedy, a reasonable time frame, and due process guarantees, the Court noted that the writ of amparo processed by the Constitutional Chamber did not provide a clear and diligent solution to the legal issue at hand. This is because it adopted a vague position that failed to resolve the controversy and shifted the responsibility for decisions regarding Beatriz’s situation back to the medical personnel, thereby creating legal uncertainty for health professionals. This resolution “by not establishing a clear and unequivocal order, did not constitute an adequate or effective remedy to resolve the substantive issue, thus violating the right to judicial protection recognized by Article 25 of the American Convention on Human Rights, in conjunction with Article 1.1 of the same instrument.”
With respect to the reasonable time frame and other related due process guarantees, in its Consideration 179 the Court stated that it was unnecessary to address these issues further since it had already ruled that the writ processed by the Constitutional Chamber was ineffective.
Finally, regarding the right to personal integrity of the relatives, the Court concluded that the State violated the right to mental and moral integrity, as enshrined in Article 5.1 of the Convention, in relation to the duty of respect established in Article 1.1 of the same instrument, to the detriment of Beatriz’s mother, the husband of her mother, Beatriz’s partner and the father of her first child, and her child.
Thoughts about the Judgment
We find it pertinent to reflect on certain aspects of the Court’s decision and its context to demonstrate that this judgment marks a milestone in the Court’s jurisprudence—a judgment that respects the principles underlying the American Convention regarding the protection of life from conception and the respect for the sovereignty of countries to enact their own legislation.
- The Facts Were Recognized as They Were
It cannot be ignored that a strong disinformation campaign by some feminist organizations aimed to create confusion about the facts of Beatriz’s case. Their objective was to convince the public that Beatriz’s death was directly linked to the lack of access to abortion, when in reality, that was not the case. (5) The Court devoted an entire section to clarifying that it should not rule on Beatriz’s right to life since her death was not causally related to the matter under investigation.
- The Court Did Not Condemn the State for Its Abortion Laws or Its Constitutional Protection of Life from Conception, but for Its Lack of Protocols in Handling Complex Cases
In the face of such disinformation, some argued that the State of El Salvador should decriminalize abortion to ensure full enjoyment of sexual and reproductive rights. However, the Court, defending the country’s sovereignty in enacting its own legislation, refrained from addressing that issue, instead focusing on the lack of protocols for managing high-risk pregnancies such as Beatriz’s. This marks a turning point in which, despite having the option to call for legislative modifications in favor of abortion, the Court chose not to do so.
- No Right to Abortion Was Recognized
Similarly, although the IACtHR had the opportunity to rule on a purported right to abortion, it refrained, upholding the country’s sovereignty to regulate this matter.
- Termination of Pregnancy via Cesarean Section with the Aim of Achieving Extrauterine Viability
In the May 29, 2013 Resolution of Provisional Measures, the IACtHR noted that “the Constitutional Chamber in its Judgment stated that ‘from the twentieth week onwards, an eventual termination of the pregnancy would neither entail nor be intended for the destruction of the fetus and, moreover, that it would be cared for with the necessary measures to guarantee, as far as possible, its extrauterine life’” (Consideration 15, Provisional Measures Judgment of May 29, 2013). As Professor Nicolás Laferriere, Director of the Center for Bioethics, Person, and Family, points out, “this point does not reappear in the 2024 judgment, but remains one of the key aspects in interpreting the ruling. In essence, the principle of saving both lives was implicit in the 2013 decision of the Constitutional Chamber of El Salvador. Although this does not appear in the IACtHR’s 2024 judgment, it is part of the case’s facts.”
- On Obstetric Violence
While the Court recognized that obstetric violence occurred in this case, it did not attribute such violence to laws restricting access to abortion, as some feminist associations claimed, and as Judge Sierra Porto dissented. (7) Rather, for the Court’s majority, it was evident that “ . . . Beatriz’s health was put at risk because there were no clear protocols for handling a case like hers. This, in addition, resulted in a situation of obstetric violence against Beatriz and subjected her to profound distress that affected her right to physical integrity. . . .” (8)
- Torture Was Not Established
The Commission argued that the facts, including the prohibition of abortion, could constitute a case of torture. In response, the Court noted that these events had already been evaluated in relation to the violation of Article 5 of the Convention and concluded that the necessary elements to consider the State’s conduct as torture were not present (Consideration 147).
- The Use of Respectful Terminology for Unborn Life
The IACtHR employed various terms to refer to Beatriz’s unborn daughter in a medical context, alternating between “fetus,” “nasciturus” (unborn child), and her name, Leilany Beatriz. This terminological variation, without depersonalizing intrauterine life—avoiding terms such as “product of conception”—respects the text of the American Convention, which protects the right to life from conception. Moreover, the Court did not elaborate on the scope of the unborn child’s right to life as established in the Artavia Murillo ruling, nor did it reiterate its position expressed in that decision, in which it was stated that the protection of the unborn child’s right to life, according to the Convention, is “gradual and incremental.”
Conclusion
The Court’s decision presents an impartial analysis that, while upholding the importance of protecting life from conception and defending the State’s sovereignty to legislate according to its own values, also underscores the need to establish clear medical protocols for handling complex cases. This ensures both the safety of the mother and the comprehensive protection of the unborn.
Although this case marks a turning point in the protection of life and the sovereignty of States, it does not signify the end of the struggle to protect life from conception. It will be necessary for States with protective or not fully liberalized laws to understand the scope of their own sovereignty, which, even as signatories to the American Convention, are not obliged to succumb to the pressure of international bodies such as the Inter-American Commission to modify, not only their laws, but also the values that underpin them.
Read the Spanish version of this article here.
