advances depends on numerous variables, some inherent in the mother, others
related to the fetus, and other to the interaction between these two elements”; 16
h) Furthermore, the Institute of Forensic Medicine reached the following conclusions,
among others: 17 (i) “From an obstetric perspective, [B.] is in the second trimester of
her second pregnancy, so that, from a medical standpoint, one can no longer speak of
abortion”; (ii) “[B.] is clinically stable, which means that, today, there is no imminent
risk of death”; (iii) “at this time, there is no medical justification to suspend the
pregnancy and to do so would not reverse the chronic diseases from which she
suffers”; (iv) “inducing the birth today would be a disproportionate, unnecessary and
inappropriate measure”; (v) the medical treatment to be implemented should take
into account, among other options, that “if there is evidence of severe preeclampsia,
magnesium sulfate will be prescribed, and ending the pregnancy will be assessed by
the pertinent means at that time,” and (vi) “the conservative medical treatment
should be maintained; in other words, the pregnancy should continue, and if a
complication arises or the previously described chronic illnesses are reactivated,
proceed to end it by the corresponding means; thus, she needs to remain interned in
a third-level hospital.”
9.
In addition, on April 11, 2013, an application for amparo was filed to protect the rights
of B. (supra having seen paragraph 2). In the context of this amparo, on April 17, 2013, the
Constitutional Chamber of the Supreme Court of El Salvador adopted preventive measures
in favor of B. and, in particular, ordered that “the defendant authorities […] must guarantee
the life and health – physical and mental – of [B.], providing her with the necessary and
appropriate medical treatment to preserve these rights, while this amparo is being
processed.” The following are some of the considerations that the Constitutional Chamber
took into account when adopting these preventive measures: (i) “this application for
amparo will be admitted in order to control the constitutionality of the presumed failure to
act of [the hospital authorities] to protect the health and life of the patient [B.], who suffers
from systemic lupus erythematosus aggravated by lupus nephritis, and who is in
approximately the eighteenth week of her pregnancy with a fetus with anencephaly, a
major anomaly incompatible with life outside the uterus, considering that her condition has
a high probability of maternal death if her pregnancy is not interrupted”; (ii) “it is observed
that any delay represents a real danger, because […] the petitioner’s life and health may be
impaired progressively and irreparably,” and (iii) the petitioner lives in extreme poverty,
[…] resides at a considerable distance from the National Maternity Hospital, which is the
medical institution that has been monitoring her and her medical symptoms; consequently,
it would be very difficult to provide her with the appropriate health care should a
complication arise.”
10. On May 28, 2013, the Constitutional Chamber of the Supreme Court of Justice
declared “the application that has been filed” to be “inadmissible”, and also declared “the
application for amparo” filed by B. to be “unfounded”, which was “based on the supposed
violation of her fundamental rights to health and life with the reservations mentioned in […]
this decision; namely, that the defendant health authorities are obliged to continue
monitoring the petitioner’s health and to provide her with the treatment that at all times is
appropriate for her medical condition, as well as to implement the procedures that,
according to medical science, are considered essential to deal with any future complications
that may occur.” The motivation of the said judicial decision can be summarized as follows:
16
Report of the Institute of Forensic Medicine of May 7, 2013 (file of request for provisional measures,
annex 11).
17
Report of the Institute of Forensic Medicine of May 7, 2013 (file of request for provisional measures,
annex 11).
8