Posted by ccld201
1 September 2025Despite medical consensus and Beatriz’s explicit desire to survive for her infant son, El Salvador’s absolute criminalisation of abortion prevented life-saving intervention for a 22-year-old woman carrying an anencephalic foetus whilst suffering from severe lupus. The Inter-American Court of Human Rights’ judgment in Beatriz et al. v. El Salvador on 22 November 2024 represents both a landmark recognition of obstetric violence and a troubling retreat from substantive reproductive rights protection. The Court’s prioritisation of procedural clarity over substantive rights misses crucial opportunities to align regional standards with evolving global norms that recognise reproductive autonomy as essential to human dignity and gender equality.
A Shift Towards European-Style Minimalism
The Beatriz majority’s European-style minimalism represents an unexpected and concerning shift in Inter-American jurisprudence. Rather than addressing El Salvador’s abortion ban directly, the Court identified “lack of clear medical protocols and legal uncertainty” as the primary violation. This approach transplants European Court of Human Rights’ caution—developed within constraints of absent explicit provisions on the foetus’ right to life and the margin of appreciation doctrine—into the fundamentally different treaty framework of the Inter American Convention on Human Rights. The Inter-American Court, operating within post-authoritarian contexts featuring weak democratic institutions, has traditionally rejected such deference in favour of robust rights protection. This regression occurs precisely when comprehensive protection remains most urgent.
For six Latin American countries maintaining total abortion bans—El Salvador, Honduras, Nicaragua, Dominican Republic, Haiti, and Suriname—the judgment sends mixed signals. Whilst establishing protections against obstetric violence, the failure to challenge criminalisation directly may embolden restrictive regimes claiming validation for absolute prohibitions.
Obstetric Violence as Gender-Based Violence
The Court’s most progressive finding defines obstetric violence as gender-based violence, encompassing “dehumanising, disrespectful, abusive or negligent treatment toward pregnant women.” This definition explicitly includes denial of abortion when medically necessary—a crucial recognition providing new tools for challenging reproductive healthcare violations across Latin America. Following Venezuela’s pioneering 2007 law, Argentina, Mexico, Bolivia, and Panama have developed legal frameworks addressing healthcare violence against women. The Beatriz judgment’s detailed definition will likely accelerate this trend despite its failure to establish substantive abortion rights.
Significantly, the Court declined to find right-to-life violations, determining no causal connection between pregnancy treatment and Beatriz’s subsequent death. This omission matters profoundly: recognising that forcing continuation of life-threatening pregnancies violates the right to life would have established powerful precedent challenging absolute criminalisation. Instead, the Court’s narrow framing permits states to claim compliance through procedural reforms whilst maintaining fundamentally rights-violating legal frameworks.
The Human Cost of Absolute Prohibition
Beatriz’s case illuminates how criminalisation generates what the Court termed “bureaucratisation and judicialisation” of medical care. Following diagnosis of foetal anencephaly—a condition incompatible with extrauterine life—her medical team unanimously recommended pregnancy termination to preserve her life. Yet medical professionals, fearing prosecution under laws imposing 30-50-year sentences, delayed critical treatment whilst seeking unattainable legal and judicial authorisation. The Constitutional Chamber denied her amparo petition after seven weeks’ deliberation, asserting that constitutional protection of life from conception under Article 1 of the Salvadoran Constitution created an “absolute impediment” to authorising abortion.
Beatriz endured 81 days’ hospitalisation before emergency caesarean section at 26 weeks on 3 June 2013. The infant died within hours; Beatriz survived the operation but died in October 2017 from unrelated causes. This procedural paralysis transformed a medical emergency into a human rights crisis, demonstrating how absolute prohibition undermines both medical ethics and human dignity.
Democracy, Dignity, and Women’s Rights
The judgment’s implications for democracy in El Salvador prove particularly troubling. Democratic governance requires recognition of women as full citizens capable of autonomous decision-making about their bodies and lives. El Salvador’s absolute criminalisation of abortion, maintained despite medical consensus and international human rights obligations, reflects authoritarian control over women’s reproductive freedom rather than democratic respect for individual dignity and autonomy.
The Court’s invocation of dignity remains notably circumscribed. Whilst recognising violations of Beatriz’s personal integrity, privacy, and health, the Court conspicuously declined to find a violation of her right to life. Moreover, the judgment avoided engaging with competing dignity claims between Beatriz and the foetus, sidestepping the balancing framework established in Artavia Murillo v. Costa Rica. As Judge Humberto Antonio Sierra Porto observed in his partial dissent, the Court failed to articulate how forcing women to continue life-threatening pregnancies with non-viable foetuses fundamentally violates their dignity, autonomy, and reproductive rights. This conceptual limitation undermines the transformative potential of dignity-based reasoning that has advanced reproductive rights in jurisdictions recognising women’s inherent worth and autonomy.
Contrasting Progressive International Trajectories
The Beatriz judgment’s narrow approach contrasts sharply with progressive international trajectories. UN treaty bodies increasingly recognise reproductive autonomy as fundamental to women’s human rights. Human Rights Committee General Comment No. 36 explicitly links abortion access to life rights and freedom from cruel treatment. The World Health Organisation’s 2022 guidelines provide over 50 recommendations for quality abortion care, calling explicitly for the removal of “medically unnecessary policy barriers,” including criminalisation.
Judge Humberto Antonio Sierra Porto’s partial dissent illuminates the majority’s failures. He argued El Salvador’s absolute criminalisation constitutes the fundamental violation, requiring legislative reform decriminalising abortion when maternal life or health faces risk and for foetal inviability. His proposed remedy addresses root causes—the criminalisation framework denying women’s reproductive autonomy—rather than symptoms of procedural inadequacy.
Conclusion: Symptoms Versus Root Causes
The Beatriz judgment represents both progress and profound disappointment. Whilst advancing protections against obstetric violence, the Court’s procedural focus fails to address the fundamental injustice of absolute abortion bans. The “symptoms” here—bureaucratic delays, legal uncertainty, medical paralysis—stem from the “root cause” of criminalisation that denies women’s fundamental rights and dignity. By mandating protocols without requiring legislative reform, the Court treats manifestations whilst leaving the underlying pathology intact.
For thousand women facing similar circumstances throughout Latin America, procedural protocols without substantive rights remain insufficient. The Inter-American Court possessed the opportunity to affirm that forcing women to continue life-threatening pregnancies with non-viable foetuses violates basic human dignity and democratic principles. Instead, cautious incrementalism potentially provides marginal improvements whilst preserving the architecture of reproductive oppression. In human rights law, as in medicine, treating symptoms whilst ignoring disease rarely produces a lasting cure.
Bernardo Carvalho de Mello is a Brazilian PhD candidate at Newcastle University Law School.