The Inter-American Court of Human Rights adopted provisional measures with regard to El Salvador in the matter of “B” in May 2013. “B” was a 22-year-old woman suffering from serious health problems who was pregnant with an anencephalic fetus (without a brain), an anomaly incompatible with life outside the uterus. Because of her illness, the pregnancy placed her life and health at serious risk, so termination of pregnancy was indicated. Despite her diagnosis, under Salvadoran law, she could not abort, because abortion is a crime in all cases in El Salvador. The Inter-American Court adopted provisional measures to protect the life, personal integrity, and health of B., ordering El Salvador to ensure that the medical procedures necessary to protect her rights were carried out.
On April, 18, 2013, the Inter-American Commission on Human Rights was informed of violations of the human rights of “B.” in El Salvador. On April 29, 2013, the Commission asked the State Party to adopt precautionary measures to protect the life, personal integrity, and health of B., noting that despite the fact that medical professionals had recommended a termination of pregnancy due to the serious risk the pregnancy posed to her life and health, the procedure had not been performed. It further noted the absence of a prompt ruling by the Supreme Court of Justice on the application for amparo filed on April 11, 2013, requesting authorization for a termination of pregnancy, which placed B. at increased risk with each passing day.
On May 24, 2013, the Commission submitted a request to the Court for provisional measures on behalf of B., because El Salvador had not complied with the Commission’s precautionary measures, and B. was in the 24th week of a high-risk pregnancy.
The Inter-American Court of Human Rights started its analysis by considering whether the three conditions required by Article 63(2) of the Convention for the Court to be able to order provisional measures were present.
These elements are (i) extreme gravity, meaning gravity at its highest or most intense level; (ii) urgency, meaning that the risk or threat involved must be imminent and require an immediate response; and (iii) a reasonable probability that damage will occur, and it should not relate to legal interests or rights that can be repaired.
The Court found that B.’s health condition was indeed extremely grave and that her pregnancy could lead to multiple complications and possibly death. The extreme gravity of the matter was therefore proved prima facie. Turning to the question of urgency, the Court noted that B. was undergoing a series of “physiological changes inherent in pregnancy, added to the natural history of the underlying disease,” and that it could not be predicted when a potentially fatal medical emergency could occur. It was therefore necessary and urgent to take measures to protect her rights to life, health, and personal integrity.
Regarding the alleged irreparable damage that could be produced if the necessary measures were not taken, the Court underscored that B.’s treating physicians concluded that her disease, added to the fact that she was pregnant with a fetus with anencephaly (absence of a brain), could entail risks to her physical and mental health. In addition, it indicated that “the emotional situation of the individual examined is also affected by her belief that she could be faced with a prison sentence” if she had an abortion, since abortion was a crime in El Salvador. The Court therefore determined that risk of irreparable damage to the life and physical and mental integrity of B. had been proved.
Based on all the above, the Inter-American Court considered that all the requirements were met to adopt provisional measures in favor of B. The Court therefore decided to require the State Party to adopt and guarantee, urgently, all the necessary and effective measures so that the medical team who was treating B. could take, without any interference, the medical measures they consider opportune and desirable to ensure due protection of the rights established in Articles 4 and 5 of the American Convention on Human Rights and, in this way, avoid any damage that could be irreparable to B.’s rights to life, personal integrity, and health.
The Inter-American Court ruled as follows:
1. To require the State Party to adopt and guarantee, urgently, all the necessary and effective measures so that the medical team who was treating B. could take, without any interference, the medical measures they consider opportune and desirable to ensure due protection of the rights established in Articles 4 and 5 of the American Convention on Human Rights and, in this way, avoid any damage that could be irreparable to B.’s rights to life, personal integrity, and health, as indicated in considering paragraphs 11 to 17 of its Order.
2. To require the State Party to provide information to the Inter-American Court, by June 7, 2013, with regard to the decision in the first operative paragraph of the Order.
3. To require the representatives and the Inter-American Commission to present to the Inter-American Court any observations they considered pertinent about the report mentioned in the second operative paragraph of the Order within two weeks.
4. To require the State to provide information to the Inter-American Court every two weeks, starting on June 7, 2013, about the provisional measures adopted in compliance with the decision.
5. To ask the representatives and the Inter-American Commission to present their observations within one week of notification of the State’s reports indicated in the fourth operative paragraph.
6. To require the Secretariat to notify the State and the Inter-American Commission of the Order and, through the latter, to notify the representatives of the beneficiary.