THE SLIPPERY SLOPE OF ABORTION RIGHTS: THE MANUELA V. EL SALVADOR INFANTICIDE DECISION BY THE INTER-AMERICAN COURT OF HUMAN RIGHTS.

• Author: De Jesus Castaldi, Ligia

TABLE OF CONTENTS Abstract 1 Table of Contents 1 I. Introduction 2 II. Strategic Abortion Litigation and the Lawsuit's Political Context 7 III. The Order to Create Impunity for Infanticide: A Regression of Children's Rights 11 A. Dolores Gabriel and the Infant's Right to Life 14 B. Proportionality of Infanticide Penalties in El Salvador 17 C. Infanticide Penalties as Discrimination Against Women 20 IV. Violation of the Subsidiarity Principle and the Fourth Instance Doctrine 22 A. Rewriting of Proven Facts and Reweighing of Evidence 26 B. The Inexistent "Criminalization of Obstetric Emergencies" 30 C. Fictitious Due Process Violations 32 V. Court's Order to Discourage Reporting and Investigation of Deaths by Abortion and Infanticide 34 A. Abolition of Mandatory Reporting of Abortion 35 B. Restrictions on Reporting of Suspected Infanticide 38 C. Reform of Pretrial Detention Rules for Infanticide Suspects 40 D. Re-education of Law Enforcement to Suppress and Discourage Reporting of Suspected Abortion and Infanticide 42 VI. Impunity For Infanticide: A Violation of the American Convention on Human Rights' Provision on Children's Rights 43 A. Infanticide as a Human Rights Violation Under International Human Rights Law and the American Convention 44 B. The International Duty to Investigate and Prosecute Homicides Against All Children 46 C. Enforcement of Penalties Against Infanticide in International Human Rights Law 49 VII. Conclusion 51 I. INTRODUCTION

There are many horrifying ways to kill a person known to human imagination. Drowning someone in a septic tank, in a pool of human waste, while bleeding from a severe wound in the stomach, however, is not often heard of. Yet that is exactly how Dolores Gabriel Hernandez died in the village of Cacaopera in El Salvador.

Dolores Gabriel was a healthy newborn baby boy whose life was ended by his mother and probably his grandmother, only minutes to a couple of hours after birth. Dolores Gabriel's umbilical cord was violently torn off his abdomen and he was thrown into a latrine where he drowned in a septic tank, in a pool of human feces, urine and other waste. (1) The cause of his death was determined to be "mechanical asphyxiation due to obstruction of the upper [respiratory tract] with feces and severe bleeding from the navel...." (2) The trial court judgment indicates that human feces were extracted from his nose and mouth. (3)

Law enforcement officers who rescued his body were unable to save his life but made sure that he got proper burial. As indicated in the court record, they got him birth and death certificates giving him the evocative name of Dolores Gabriel; (4) Dolores meaning pains or sufferings in Spanish, and Gabriel, the archangel's name.

A member of the team that rescued his remains from the septic tank testified that the child was lovely (bonito in Spanish), with brown skin and well-formed "with no apparent genetic defect," (5) and that he had maggots on his body. (6) His death was estimated to have taken about 10 to 15 minutes after being thrown into the septic tank; his autopsy revealed brain injury caused by asphyxia, "[a] cerebral edema for lack of oxygen." (7)

Dolores Gabriel's mother, Maria Edis Hernandez Mendez de Castro, later given the pseudonym "Manuela" by organizations that purported to represent her, was tried by a Salvadorian court for aggravated homicide, El Salvador's statutory equivalent of infanticide, i.e. the killing of an infant immediately following birth. (8) His grandmother was a suspect in the crime but was never formally charged, at Maria Edis's request. (9) His grandfather reported the crime and apparently provided crucial evidence regarding the circumstances of the child's death. (10)

The court examined medical and forensic evidence relating to Maria Edis and her newborn son's bodies, DNA test results proving maternity, the baby's autopsy, reports from law enforcement officers who inspected the crime scene, and relevant photographs. (11) Two forensic tests (called optical and hydrostatic docimasia) were performed on Dolores Gabriel's lungs to determine whether he had taken a breath outside the womb, the requirement for a live birth under Salvadorian law; both tests gave a positive result, proving that the child was "born alive" and had "independent life and legal existence", under the domestic civil code. (12) The autopsy revealed that the baby was born full-term at 40 weeks gestation. (13)

The trial court also heard two expert witnesses, a psychiatrist and a psychologist, who evaluated Manuela's mental capacity and found that she met the required statutory standard in El Salvador, i.e. that she was mentally capacitated to distinguish between right and wrong at the time that she committed the crime, having no history of mental illness, suffering "no mental alienation, grave disturbance of her consciousness, incomplete or retarded mental development" that would prevent her from understanding "the illicit nature of her actions." (14) The medical doctor who examined Manuela in the hours following the birth also noted that, at the time of the examination, she seemed "conscious and oriented." (15)

The trial court, a three-judge panel, unanimously found Manuela guilty of aggravated homicide against her newborn son. (16) The judges, however, gave her the lowest possible penalty for aggravated homicide in El Salvador, a 30-year prison sentence (versus a fifty year maximum sentence), due to her low socio-economic and educational background. (17) Manuela eventually served less than two years of her 2008 prison sentence given that, in 2010, she died of metastatic lymphatic cancer, a disease that she was diagnosed with since 2006. (18)

The above facts are undisputed before any and all national and international courts that heard the case, from the town of Cacaopera's trial court to the Inter-American Court of Human Rights, an international court that oversees application of the American Convention on Human Rights. The American Convention is an international human rights treaty to which El Salvador is a party and the United States a signatory. Official, original trial court records are public and available online for the world to see. (19)

The story that pro-abortion organizations told the public and the Inter-American Court, however, had nothing to do with the actual facts of the case or the applicable law: (20) the crime committed against Dolores Gabriel was misrepresented as a miscarriage, where a poor young mother had suffered an "obstetric emergency," had accidentally miscarried a fetus, was unlawfully investigated and wrongfully convicted for the "abortion" of an unborn child by overzealous law enforcement agents hunting for women who had abortions in El Salvador. (21)

Dolores Gabriel's existence, information about his live birth, and gruesome death were deliberately concealed for the sake of promoting decriminalization of abortion in El Salvador. Readers may have been exposed to scandalous media coverage where El Salvador was condemned by many--including Hollywood actresses and Democratic congresswomen--as a primitive, fundamentalist country that criminalized women who had miscarriages, due to its overzealous prosecution of induced abortions, (22) all on the basis of fabricated stories about Manuela and other infanticide convicts.

In November 2021, El Salvador was held internationally liable by the Inter-American Court of Human Rights for alleged human rights violations against Manuela and her surviving family members, including Dolores Gabriel's grandmother, to whom it was ordered to pay compensation. The judgment held that El Salvador's enforcement of criminal penalties against Manuela for the aggravated homicide of her newborn son, Dolores Gabriel, violated the American Convention on Human Rights. (23)

In a novel spin for international abortion rights advocacy, the Inter-American Court also ordered El Salvador to create impunity for infanticide and to officially discourage its reporting to law enforcement, along with reporting of abortion. (24) As of 2022, this is an unprecedented holding for any international human rights court and, in the view of many, a disturbing precedent for children's rights, in particular their right to life, which the American Convention explicitly protects from the moment of conception in article 4(1): "Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life." (25)

2. STRATEGIC ABORTION LITIGATION AND THE LAWSUIT'S POLITICAL CONTEXT

   The case was first filed before the Inter-American Commission on Human Rights (hereinafter the Commission) by a pro-abortion organization based in the United States, the Center for Reproductive Rights, and its main affiliates in El Salvador, the Agrupacion Ciudadana por la Despenalizacion del Aborto Terapeutico, Etico y Eugenesico [Citizen's group for decriminalization of therapeutic, ethical and eugenic abortion], and the Colectivo Feminista para el Desarrollo Local de El Salvador [Feminist collective for local development of El Salvador]. (26) Both local organizations also receive funding from the United Kingdom-based International Planned Parenthood Federation (IPPF), the international arm of the U.S.-based Planned Parenthood Federation of America. (27)

   For several years prior to filing the Manuela complaint, these organizations, which have received U.S. federal funds through International Planned Parenthood Federation (IPPF) and Center for Reproductive Rights, (28) have unethically litigated for impunity of infanticide in the name of creating abortion rights in El Salvador, a country that legally protects prenatal life from the moment of conception as required by the American Convention. At the national level, they litigated to free at least twenty-three female convicts (called "las 17+" [the 17+] in the media) who have been...