A judge has ruled that the woman's decision not to seek prenatal care constitutes "aggravated homicide."
MARVIN RECINOS/AFP/Getty ImagesSalvadoran women take part in a demonstration to demand the decriminalization of abortion, outside the Legislative Assembly in San Salvador on February 23, 2017.
El Salvador has long been criticized for its abortion laws and a recent court ruling only adds fuel to the fodder.
On Wednesday, an El Salvador court sentenced 19-year-old Evelyn Beatriz Hernandez Cruz to 30 years in prison. Her crime? Intentionally not seeking prenatal care which, according to the court, could have saved the life of her stillborn child. The child, born into a toilet in April of 2016, was a product of rape.
According to the prosecutor, Hernandez Cruz chose not to seek care for the fetus because she did not want to have a child. That Hernandez Cruz, 18 years old and in high school at the time of the child’s birth, gave birth in a toilet only buttressed the prosecutor’s claim that the young mother wanted the baby to die — and thus “proved” that Hernandez Cruz committed a crime.
Hernandez Cruz’s attorneys told a different story, however. By their account, their client was raped repeatedly by a gang member over the span of several months and simply did not know she was pregnant until after she had given birth.
After suffering severe abdominal pain and fainting in her bathroom in April of 2016, Hernandez Cruz’ mother took the young woman to the hospital, where she gave birth in a bathroom. Medical experts who discovered the infant afterward could not determine if it died in utero or just after being born.
Regardless, they reported her to officials, who handcuffed Hernandez Cruz to her hospital bed while she was being treated for anemia and a urinary tract infection. She has remained in detention ever since.
The judge in the case bought the prosecutor’s argument, but added that the mother of Hernandez Cruz may also be criminally culpable, as the 19-year-old could not have acted alone in the crime.
The legal basis for such a ruling stems from a 1998 law — supported by the Catholic Church and political conservatives — which fully criminalized abortion. El Salvador, along with just four other countries, prohibits abortion in all circumstances.
This means that, as with the case of Hernandez Cruz, women can be charged for murder for the death of a fetus, even if the fetus is the product of rape or incest, or when the life of the mother is at risk. Sentences can range anywhere from 8 to 40 years in prison, depending on what kind of “intent” prosecutors can demonstrate on behalf of the mother.
Hernandez Cruz’ sentence, which her attorneys have said they plan to appeal, is just the latest in a slew of similar verdicts — verdicts which, as the Guardian has reported, are disproportionately doled out to poor women.
Activists say that in many circumstances, these women are illiterate and have little understanding of the reproductive process. Because they are women of minimal means, they often lack the ability to hire an attorney to argue on their behalf in court after having a miscarriage or an abortion — or, as is done by wealthy families in El Salvador, fly out of the country to procure an abortion and thus evade criminal proceedings altogether.
“Lamentably, there are women who go to hospital and find themselves in jail,” supreme court justice Doris Rivas Galindo told the Guardian. “This doesn’t happen in private hospitals.”
According to the Alliance for Women’s Health and Life (AWHL), an El Salvador-based organization, at least 147 women have been charged with crimes under the abortion law from 2000 to 2014.
While a newly-introduced bill to relax the present law has given activist organizations like AWHL hope that cases like those of Hernandez Cruz will become less common over time, the bill remains in committee.
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