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Lawyer Soledad Deza represents Belén, a 25-year-old who has been convicted of aggravated homicide after suffering from a miscarriage. She sat down with Elke Wakefield to talk about abortion and women’s rights in Argentina.
At 3.50am on 21st March 2014, a 25-year-old Belén* arrived at the Hospital Avellaneda in Tucumán with severe abdominal pain and diarrhoea. She was diagnosed by the doctors on duty as suffering from a miscarriage or “spontaneous abortion”.
Belén claims she never knew she was pregnant. But, in the early hours of the morning – there are contradictions as to what time exactly – a foetus was found in a toilet drain in the hospital. There are questions as to which toilet, and how the discovery was made, but the police were summoned, and the blame fell on Belén.
She has been in detention ever since.
Belén was arrested under suspicion of inducing her own abortion. She was remanded in custody and in April, after two years in jail, a Tucumán court found her guilty of aggravated homicide and sentenced her to eight years in prison.
Somehow, Belén went from being a patient seeking medical attention to a murderer.
Soledad Deza, from the legal organisation Catholics For Freedom of Choice, has represented Belen since her sentencing. She argues that, in a case replete with contradictions and inconsistencies, Belén has been constructed as a criminal simply for having a miscarriage.
Who is Belén? What was her life like before all this happened?
Belén was just your average girl. She was from a barrio popular, which basically means that she came from a neighbourhood of people with limited resources. She finished secondary school and then worked in a cooperative. Just like any other girl, really.
What happened on the 21st March 2014?
Belén went with her mother went to the Hospital Avellaneda because she felt sick and was suffering from strong abdominal pains. She was admitted into the emergency department of the hospital in the early hours of the morning and seen by three doctors – two male, one female – who gave her a sedative and put her on a drip.
About two and a half to three hours later, she suffered a gynaecological haemorrhage and so was transferred into the gynaecology ward. In the gynaecology ward she was told she was having a ‘spontaneous abortion’.
She was then admitted into theatre where a curettage [a procedure whereby material is scraped from the uterus for testing] was performed. When she woke up, she was surrounded by police and her doctor asked her if she’d induced her own abortion.
The police started asking whether there was a woman in the labour ward who had had an abortion because they had discovered a foetus in the bathroom. [Belén’s] doctor claimed it was hers. This is the moment she is morally linked to the foetus.
And so began an abortion investigation. Belén was in hospital for five days and then went straight to prison. She never went home.
In the interim, an autopsy was performed on the foetus that determined it was in its 32nd week. But the autopsy is riddled with irregularities. The worst part of all is that no DNA test was done to prove a genetic link between the foetus and Belén. Belén was accused without any evidence. At no moment did anyone perform a DNA test…
Why didn’t the hospital or police perform a DNA test later on?
They lost the foetus. There is a record of this in the case.
Really? How do you lose a foetus?
The foetus was kept in the morgue at the hospital. On about the 25th of April 2014, the hospital called the public prosecutor and told him that the foetus was in a state of decomposition; that is, if he was wanted to do the DNA test, he should do it now.
The public prosecutor sent the forensic doctor to the hospital. Then, there’s a report saying that he couldn’t perform the DNA test because there was no foetus. And then there’s an apology from the Hospital Avellaneda that is added onto the record, signed by the hospital lawyer and the hospital director, that says, “we’re very sorry but there was a mix-up with the foetus”.
Belén was held for over two years before her trial. What is the basis for remanding her in custody in this case?
Honestly, we are also confused.
The thing is, according to the Criminal Procedure Code of Tucumán, preventative detention is permitted when there is probable cause to believe that the the person being investigated participated in a serious crime. Here, what happened is the prosecutor ended up charging Belén with “aggravated” homicide because of her supposed relationship of kinship to the foetus, which is considered to be a serious crime.
However, according to international human rights standards for preventative detention, as well as local and national case law, preventative detention is only permissible when there is a risk the accused will flee prosecution or obstruct the investigation.
Neither of these two extremes was assessed. It was simply considered that there was probable cause that Belén had committed the crime.
In Argentina there is the crime of abortion. Why was Belén tried for aggravated murder and not illegal abortion?
The autopsy on the foetus that was discovered in the bathroom states that the foetus had breathed; which is to say that the foetus was alive and then it was killed.
However, allow me to present some more contradictions: the autopsy talks in parts about a female foetus, in another about a male foetus; in one place it says the foetus was 32 weeks old and in another that it was 35 weeks old.
Another important issue is that the prosecution claims there was a child. However, for there to be a child there needs to be a birth certificate that states a person was born alive. And then a death certificate. That’s what it says in our law at least.
Belén was represented by a court-appointed lawyer – a lawyer for people who can’t afford their own lawyer. Her lawyer did not question any of these things we’ve been discussing. She didn’t question the fact the expert testimony was inconsistent. She didn’t point out that professional secrecy had been violated and on this basis the case was void.
She didn’t say a word about any of the many inconsistencies I’ve pointed out to you. The only defence her lawyer gave was that she was in shock. And so it’s as though she recognised her guilt.
She assumed she had committed the act but her mental state lessened the crime…
Exactly. Which is the exact opposite of what Belén said. Belén stated clearly: I did not kill anyone. I did not know that I was pregnant.
Also, the gestational age of the abortion was never properly determined. Let me explain. When the hospital did the curettage, they took a sample of membranes and said that it was sent to pathology to be studied. That is stated in the clinical history, alongside her diagnosis on page one of ‘spontaneous abortion without complications’. This would have determined the gestational age of Belén’s abortion. However, this test was never done. Neither the hospital or the court took charge of ensuring that this test was performed.
Instead, Belén was linked to a foetus that seemed to appear out of nowhere.
For me, these questions should have been investigated, because it’s very strange, very strange indeed, that a foetus would disappear; that a woman, a young woman, who has never had children – because Belén had never had children – should arrive at hospital 32 weeks pregnant without a belly, and be seen by three doctors, none of whom notice she is pregnant, and then be linked to a foetus that just appears. It is weird.
What actions are you taking now as her lawyer?
We have initiated appeal proceedings. We have requested that the sentence be repealed and that Belén be exonerated.
Firstly, because there is no proof to condemn her of the crime. Secondly, because the whole investigation is the product of the breach of doctor-patient confidentiality, which is a crime. This makes the investigation void. Thirdly, because the terrible defence she had meant she was essentially undefended throughout the trial. We are also arguing that she be freed. The court is now considering the appeal.
When will we know the result?
The court has about 90 business days. That’s about six months. But we’re hoping she will be freed from custody before that.
It’s frightening for any woman seeking medical treatment…
The message that it sends is very clear. If you have a problem, don’t seek medical attention because you could end up in jail. That’s the message. It’s very dangerous.
In Salta, which borders Tucumán, a 12-year-old Wichí girl was raped by up to eight men and fell pregnant. The State refused to intervene until after six months and the girl was forced to have an emergency caesarean at 34 weeks. Do you see a relationship between these two situations?
Let me paint a picture.
Three years ago, I had a case similar to Belén’s. The difference is that I was able to assist her earlier – when she was in the hospital. They accused her of abortion, but the case was dismissed because I was her defence lawyer.
What am I trying to say? It is very common that doctor-patient confidentiality is violated with impunity. Disgracefully.
Why is this important? Because the north of Argentina is a very conservative place, a place that is very retrograde in terms of culture and tradition. It is very common to find people opposed to sexual and reproductive rights, and above all, to rights for women. And, consequently, we find greater aggression in these cases.
How do you explain submitting a 12-year-old Wichí girl, a child, to the torture of a pregnancy caused by her own rapists? You can only explain it in the context of a retrograde culture that wants us to be mothers at all costs and whatever price.
Consider this as well: two years ago, I represented a little girl of 11 years who had been raped by her own biological father. They wanted to prevent her from terminating the pregnancy. Finally, after fighting tooth and nail – myself as lawyer alongside the girl’s mother – we managed to succeed in getting permission for the abortion.
And while they were performing the abortion, in the stairway of the maternity ward, a Catholic mass was held for the foetus.
The north of Argentina is very backwards when it comes to questions of gender and women’s rights.
It seems that the life of a foetus is valued over the lives of women and girls?
Since the advent of democracy, the debate about abortion and the legalisation of abortion has swung towards the life of the foetus, and so we end up debating which life is worth more.
The Catholic Church maintains that there is life begins from conception. We don’t deny that there is life at conception.
However, what we have to consider is twofold: firstly, as you say, not all lives are given equal weight; however, on the other hand, we also have to think that, if we live in a democratic and pluralistic state, a religious worldview cannot be the one that determines healthcare practice.
We need public healthcare that is free from religious values, one that is based on rights and not anyone’s personal worldview.
Abortion is the principal cause of maternal death in Argentina. How can this situation be improved?
I think that, on the one hand, we need accessible sexual and reproductive health services. And when I say accessible, I mean that we need healthcare services that offer health information based on scientific evidence and that truly aim to assist patients to make their own decision.
We need services staffed by doctors who are well-equipped to respect the decisions of their patients.
And we need state policies that aim to empower women to make their own decision. What I mean by this is that is that it’s not these knee-jerk social reactions to this or that particular case that determine policy. On the contrary. These situations make it clear that there is no sexual or reproductive policy. If there were, the Wichí girl would have been able to terminate her pregnancy much earlier […]; and Belén would not be in jail for having a miscarriage.
And, in general, neither the judiciary or the state should be sending women the message that maternity is destiny, or that their freedom of movement or freedom to determine their own autobiography will be affected because they challenge this maternity mandate.
Finally, I think it is important the abortion is legalised, at least in the first trimestre.
*Names have been changed to protect the identity of Belén.