This post was written by Patricio López Turconi, Intern at the O’Neill Institute for National and Global Health Law, and Andrés Constantin.
El Salvador has sought to reduce inequality in access to health services for women through its 2011 Law on Equality, Equity and Elimination of Discrimination against Women (Decree N° 645). Article 26 of the Decree introduces the principle of equality and non-discrimination in all public health activities, as well as the National Ministry of Health’s duty to “guarantee the protection of the rights to health, sexual and reproductive health, equality and equity in access and care in all corresponding services.” Similar provisions can also be found in Article 23 of the 2010 Law on the Prevention of Violence Against Women (Decree N°520).
Regarding women’s sexual and reproductive health, El Salvador’s Ministry of Health adopted its 2012 National Policy on Sexual and Reproductive Health (Agreement No. 1181), which seeks to promote and guarantee sexual and reproductive rights for all. Despite its broad definition of sexual and reproductive health, it lacks provisions regarding the access to contraception for women in El Salvador. According to the CEDAW Committee, the National Policy on Sexual and Reproductive Health has had a limited impact, and there is a need to strengthen measures to ensure access for women to adequate sexual and reproductive health services, including modern contraceptive methods and family planning.
The main legal barrier that Salvadorian women encounter in accessing health services is the total criminalization of abortion. Until 1998, El Salvador allowed abortion (a) to save a woman’s life; (b) when abortion resulted from a crime; (c) when pregnancy resulted from rape; and (d) in case of serious fetal impairment. In 1998, however, El Salvador enacted a new Criminal Code that now criminalizes abortion under any circumstances. The Criminal Code also criminalizes public employees or officials of any authority (including hospitals and clinics) who fail to report crimes, such as abortion. Consequently, since 1998, women have been prosecuted and convicted on charges of induced abortion with sentences of up to 40 years imprisonment.
The State effectively requires all medical professionals, in disregard of patient confidentiality, to report women whenever there is a suspicion that they may have had, or attempted to have, an abortion. As a consequence, women who suffer complications in pregnancy (such as a miscarriage) opt not to seek healthcare assistance – at serious risk to themselves and their pregnancy – since they fear that they will be prosecuted and imprisoned. This mainly affects women of low socio-economic status living in rural areas, as it compounds the already substantial time and resources that they must expend in order to access reproductive health services.
Lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals
When it comes to access to health services, lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals in El Salvador are extremely affected. LGBTI people in El Salvador are often exposed to the so called “conversion therapies” carried out by a mental health professional (psychologist or psychiatrist) that are in no way prohibited or punished by the State. In some cases, government officials have supported and encouraged this kind of practice.
Other obstacles in accessing health services result from the lack of a gender identity law. Reports suggest that when transgender women need medical services, health care centers do not recognize them as transgender women, but rather as men. Moreover, health services constantly fail to consider the broader sexual and reproductive health of transgender people. The Salvadorian government has also prohibited sexual reassignment surgeries
Currently, LGBTI individuals in El Salvador facing discrimination, killings and violence are fleeing their homes in the absence of government response. With few laws protecting people from violence or discrimination on the basis of their sexual orientation or gender identity, LGBTI individuals are extremely vulnerable to violence associated with gangs and drug trafficking. The lack of constitutional guarantees or specific protection mechanisms for LGBTI people in El Salvador has fostered systematic and institutionalized violence and discrimination against them.
In its 2018 Concluding Observations the Human Rights Committee noted El Salvador’s lack of legislation in this aspect. The Committee expressly noted its concern regarding “the absence of a comprehensive anti-discrimination legal framework, as well as the persistence of discrimination against (…) lesbian, gay, bisexual, transgender and intersex (LGBTI) persons and persons infected with HIV, especially in the areas of education, health, housing and employment. The Committee is alarmed by the high number of threats, attacks and killings, including by State agents, aimed at LGBTI persons, especially transgender persons, as well as by the high level of impunity for such crimes (…)”
Access to healthcare by indigenous Peoples in El Salvador is enshrined in arts. 63 and 65 of the Constitution. The 2018 National Health Policy for Indigenous Peoples (Acuerdo N°1019) establishes lines of action that seek to guarantee the right to health of indigenous peoples of El Salvador, with an intercultural approach. This policy recognizes and harmonizes indigenous medicine with the National Health System. However, indigenous peoples have expressed their concerns over the lack of incorporation of medicinal knowledge and practices into health care services.
Prison and detention center conditions in El Salvador remain life threatening due to gross overcrowding and unhygienic conditions. In many facilities, provisions for sanitation, potable water, ventilation, temperature control, medical care, and lighting are inadequate. In May 2016 the Constitutional Chamber of the Supreme Court declared unconstitutional the systematic violation of basic human rights by prison overcrowding, citing the government for violating prisoners’ right to health, and ordered periodic visits by the Ministry of Health. The court ordered prison authorities to build new prisons and to remodel others to shelter inmates humanely and the judicial system to review the inmate rosters with the aim of reducing the number of prisoners. However, the overcrowding persists and, as of 2018, 1,400 inmates suffer or have suffered from tuberculosis, that is 3.5% of the prison population is infected with this disease, which every year takes the life of an average of 45 inmates, according to data from the General Directorate of Penal Centers. This adds to other 1,500 inmates who currently suffer from the human immunodeficiency virus (HIV), renal failure (150), cancer (60) diabetes and hypertension whose condition is more affected by overcrowding.
The views reflected in this expert column are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.