Efforts to decriminalise infant homicide in El Salvador. Ordo Iuris protects newborns and unborn children

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American pro-abortion organisations try to hinder prosecution of crimes against the life of newborns in El Salvador. The case is being heard by the Inter-American Court of Human Rights. It is not the first time these groupings have requested decriminalisation of infanticide and legalisation of abortion in El Salvador. They also present women who killed newborns as victims of alleged human rights violation. A group of other social organisations submitted a ‘court’s friend’ opinion to the Court in support of El Salvador. The Ordo Uris Institute joined the coalition.

A case against El Salvador was brought before the Court by the Inter-American Commission of Human Rights (IACHR) representing the local leftist organisations: the Centre for Reproductive Rights and its El Salvador branch, and the Feminist Collective for Local Development of El Salvador (Colectivo Feminista para el Desarrollo Local de El Salvador). They are all financed by the international pro-abortion organisation International Planned Parenthood Federation (IPPF). For a number of years, they have been engaging in court cases requesting decriminalisation of infanticide and legalisation of abortion in El Salvador. Moreover, they run campaigns sponsored by the IPPF, in which they present women killing their children as victims of human rights violations in El Salvador, in association with the country’s ban of abortion.

The oldest such court case is the so-called Manuela’s case. It is the only case in which a mother, found guilty of aggravated homicide of her child, was sentenced to nearly 10 years in prison. She had injured her newborn son, abandoned him and let him drown. The court that reviewed her case determined she had committed aggravated homicide based on evidence presented by her family and an opinion that – at the moment of committing the crime – she was aware of her actions and mentally capable of discerning and choosing between good and bad behaviour. Despite those incriminatory circumstances, the court prescribed the minimum prison sentence applicable to aggravated homicide.

The Inter-American Commission on Human Rights also agreed that Manuela’s case was not ‘elective abortion’, but instead, aggravated murder of a newborn child. Notwithstanding this opinion, the IACHR appealed to El Salvador to immediately implement reforms in order to prevent prosecution of neonaticide and illegal abortion. The Commission claims that the legal sanctions taken by El Salvador against Manuela for killing her son violate the provisions of the American Convention on Human Rights, even though Article 4 of the Convention explicitly calls for protection of every life from the moment of conception: “[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”. Accordingly, legal provisions that protect the life of the child are fully compliant with the international human rights system.

In a letter from organisations supporting El Salvador, the question of the country’s competence to enforce criminal provisions against perpetrators of crimes against newborn children was analysed in the context of its compliance with the international human rights system. The opinion prepared by non-profit organisations is supposed to convince the court that the ban of infanticide in El Salvador not only does not violate the international human rights system, but is an indispensable element of that system, in particular of the American Convention on Human Rights. If the requested regulations are enforced, they might make physicians reluctant to report potential crimes against newborn children. Also, the reform might impose sanctions on those reporting suspected neonaticide in El Salvador.

The organisations list numerous arguments to prove that enforcing penal sanctions for the crime of infanticide is fully justified from the perspective of international law and that it should not be limited. The norm that prohibits the killing of children by their own parents is universal, existing in the international human rights system and applicable in every country. Thus, imposing penalties for the crime of infanticide does not violate the international law. To the contrary, countries are obliged to implement, observe and enforce such provisions. As far as the above-mentioned case is concerned, it is also important to note that all the parties (including El Salvador) have ratified such instruments as the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights, which establish the international obligation to protect the life of the child and the universal right to life of every person.

The members of the coalition claim that neonaticide should not be treated differently than crimes against the life of older children or adults. This is supported, for example, by the provisions of the American Convention, which stipulates in its Article 1 that “States Parties undertake to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms without any discrimination”, and in Article 24, it states that “All persons are equal before the law. Consequently, they are entitled, without discrimination, to equal protection of the law”. As a result, the States-Parties to the American Convention should not only be able but also obliged to enforce norms of the penal law that provide for legal sanctions against acts resulting in the death of newborn children. This also applies to aggravated homicide, similar to Manuela’s case. Another priority should be to encourage parents in a situation of unplanned pregnancy to use alternative solutions without violence against their child, in particular by providing them with financial and psychological assistance or mediation in the adoption procedure.

“Organisations supporting El Salvador, which the Ordo Iuris intends to join, believe that the American Court of Human Rights, being an impartial authority, will not yield to the influence of pro-abortion organisations that propagate decriminalisation of infanticide as a tool to legalise abortion and will dismiss the Commission’s petition to liberalise the penal law in the field of crimes against the life of children”, emphasised Katarzyna Gęsiak, Deputy Director of the Ordo Iuris International Law Centre.