The Prejudiced Law of El Salvador

Shubhangi Gehlot [Law student at Maharaja Sayajirao University of Baroda, Gujarat]


Introduction:

Recently, El Salvador became the first country to legalise cryptocurrency tender. Although it gained a lot of positive attention on this step, it remains infamous for its stringent abortion laws. In addition, the questionable policies on abortion laws contradict El Salvador’s title of “The Savior”. These laws are just another amalgamation of the political and social organisation of the country.


Political history and amendment:

The past chaotic political struggle is a major reason for present-day abortion laws in their country. A “complete ban” on abortion emerged with the new Penal Code of 1998 after an end of a long period of civil war. Before the amendment, abortion was permitted in specific circumstances such as,

1. When there is a threat to the woman’s life;

2. When the cause of pregnancy was rape;

3. When severe abnormalities are detected in the foetus..


Following the amendment, necessary provisions of Article 169 of the 1973 Criminal Code were discontinued i.e., stringent restrictions were introduced to unavoidable abortions. It is also evident that campaigners of the Catholic Church played an infamous role in bringing the amendment. The amendment diluted all the exceptions in the Abortion law and led to a never-ending struggle of women in El Salvador.


In the Amnesty International report of 2014, Morena Herrera, a feminist activist ratified that conservative and fundamentalist groups were chief organisations to bring this amendment against women’s body autonomy.


What does the law say?

In the wake of the 1998 amendment, huge penalties were imposed on women who were accused of having an abortion regardless of the circumstances. Moreover, the conviction leads to a minimum of 2-8 years of imprisonment. Besides, individuals responsible for assisting the termination of pregnancy (with the pregnant women’s consent) are also subjected to the same prison sentence. Furthermore, medical professionals must report such cases immediately to the police. The medical professionals would be convicted with a prison sentence of a minimum of 6-12 years in the absence of such mandatory reporting.


The changes were not just limited to the Penal Code. There were noticeable changes made in the Constitution of the country. The lawmakers amended the scope of “Article 1” i.e., “Right to life” by extending it “from the moment of conception”. This led to the criminalisation of the abortion law even stronger by keeping the foetus’s life on a higher pedestal than the mother’s right to life.

There are a huge amount of consequences visible due to this inhumane law. In 2009, the Committee against Torture deduced that El Salvador’s law which criminalises abortion led to increased levels of maternal deaths. The reasons behind their death comprise unsafe and illegal abortions, prolonged health conditions before the pregnancy, denial of abortion in any extreme health conditions etc.


This kind of torture should ideally be avoided by the government as they have already rectified the rules under Convention against Torture (CAT). According to Article 2 of CAT, the government has the duty “to implement effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction”. It also specifies that “An order from a superior officer or a public authority may not be invoked as a justification of torture.” Moreover, the Committee expressed its concerns and urged the authorities to focus on controlling growing maternal mortality rather than focusing on criminal prosecution.


Prevailing conditions of those convicted for abortion:

In 2020, a CBS News Digital Documentary discovered that more than 140 women have been imprisoned due to El Salvador's constitution. Moreover, it is alleged that these women are wrongfully convicted as their miscarriage suffering was falsely assumed as first-degree murder by the police and court. One of them who was interviewed by the reporter revealed that she was convicted at the age of 17 for a 30 years prison sentence. Women who ended up in prison and were subjected to incarceration are surviving in very extreme dreadful conditions. The rules also prohibit interaction and communication with their family members during their entire incarceration period.


The problem of unsafe abortions expands when women and girls opt for abortion techniques that are outdated and harmful. Most of the women who choose these techniques are either minor who are impregnated due to rape or due to very poor economic conditions.


Conclusion:

The deformed system of El Salvador’s Constitution and other laws concerning abortion is the epitome of institutionalised violence against women. A predominantly individualised decision is unethically governed by fundamentalists and patriarchal authorities. Women’s every legitimate reason to undergo an abortion is termed as illegal by ignoring the causes like sexual violence, detrimental physical and mental health. Besides, El Salvador is one of the rarest countries which is involved in gross violation of human rights by infringement of women’s “Right to bodily integrity”. The government needs to uplift the country’s situation in maternal health facilities, sex education, contraceptive availability rather than punitive measures against women. Though there are western countries that are paving way for women’s right to body autonomy, countries like El Salvador still lack an understanding of the real meaning of development. Because true development of society comes with equality and freedom rather than just legalising cryptocurrency.

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