Summary

In 2017, Sara, at age 38 with two children, thought she was too old to get pregnant again. When she started to bleed heavily, she went to a public hospital in Quito. A doctor diagnosed a urinary-tract infection and recorded in her medical chart that the infection had provoked a miscarriage. A new doctor on the following shift took over her care. He began to interrogate Sara about her bleeding, asking her if she had taken any pills or had tried to have an abortion. Sara’s condition was still unstable, and she had a high fever; the doctor called the police. While she was still bleeding from a procedure to remove the remaining tissue from her uterus, Sara, naked but for a hospital gown, and with a few sanitary pads, was taken by police to a detention unit in the middle of the night and charged with an abortion with consent, a crime under Ecuadorian law. By early morning, Sara was assigned a public defender, who advised her to plead guilty in return for a lighter sentence. Within a few hours, the hearing took place. Still in her hospital gown, dizzy and bleeding, Sara was surrounded by men—the judge, the police, and the public defender, as she followed her lawyer’s advice and pled guilty. By noon that day, she was on her way to a prison in the town of Latacunga to serve a sentence of one year and eight months. After one year of being imprisoned, Sara’s daughter contacted a private lawyer, who was able to secure legal relief that allowed Sara to serve part of her remaining sentence outside of the prison.

Sara’s story is not unique. In preparing this report, Human Rights Watch reviewed 148 cases from 2009-2019 where 120 women and girls, 20 companions, and 8 health providers were prosecuted for abortion, including 38 where they served time in prison after conviction or while waiting or during trial. Of these, 33 were women and girls, 1 was a health provider, and 3 were a male companion, all of whom were charged with or convicted of abortion-related charges. Another three cases were about women and a girl who were charged with homicide after an obstetric emergency. Those convicted served on average four months in prison or completed a suspended sentence, which frequently involves requirements to perform community service and/or attend psychological therapy.

Across Ecuador, criminalization of abortion has a devastating impact on the lives and health of women and girls who seek abortions, face obstetric emergencies mistakenly attributed to abortion, or need post-abortion medical care or care during a miscarriage. Ecuadorian law imposes prison terms ranging from six months to two years for women and girls who receive abortions or induce abortions, and from one to three years for health providers who perform an abortion found to be prohibited by law when it is done with the pregnant person’s consent. When the abortion is conducted without the pregnant person’s consent, the law imposes prison terms ranging from five to seven years.

Abortion is legally permitted in Ecuador in cases where the pregnant person’s life or health is in danger (commonly referred to as the “health exception” or “therapeutic abortion”), or when a pregnant person has been raped, according to a recent ruling from the Ecuadorian Constitutional Court, which has extended the rape exception to all pregnant people and not only to those with an intellectual disability. However, pregnant people face many barriers to accessing legal abortion and post-abortion care. The barriers include fear of criminal prosecution, stigmatization, mistreatment by health professionals, and a narrow interpretation of the health exception. According to the latest available statistics from the National Statistical Institute (Instituto Nacional de Estadísticas y Censos-INEC), in 2019 there were 911 cases in which an abortion was determined to be legally permitted, without patient or doctor having to fear prosecution. While from 2004 to 2014, based on a study reviewing public data, an astounding estimated annual average of 33,340 abortions required treatment in health facilities, despite the patients being at risk of criminal prosecution. Many of these abortions did not lead to prosecution but the possibility is problematic, especially given that women from poorer backgrounds face a higher likelihood of prosecution. 

This report documents the human cost of Ecuador’s abusive laws and policies criminalizing abortion. Some healthcare professionals have taken on a role more akin to criminal prosecutors as they question women and girls about their conduct, not just their medical needs, seeking evidence of culpability. Those same professionals then testify against them in the judicial process, despite having a duty of confidentiality. Some healthcare professionals have performed invasive tests on women and girls that are not a legitimate part of their medical treatment without informed consent or a legal basis, such as the forensic examination of genital organs.

According to the records submitted by the Attorney General’s Office to Human Rights Watch, from August 2014 to June 2019 this office filed charges of consensual abortion in 286 cases; 122 of these were specifically charges against women who allegedly had an abortion. Ecuador’s Public Defender’s Office (Defensoría Pública) reported to Human Rights Watch that it provided legal aid to 89 women between 2016 and 2019 who were prosecuted for abortion with consent. The Judiciary Council reported to Human Rights Watch that from August 2014 to June 2019, 122 cases were opened and had not reached a conclusion, while 99 cases had been “resolved”, though the Judiciary Council did not explain what this meant.

Human Rights Watch reviewed available portions of case files in 137 prosecutions involving criminal charges brought against women or girls, health providers, or companions for seeking or facilitating consensual abortion between 2009 and 2019. In addition, Human Rights Watch reviewed files for another 11 cases of abortion-related prosecution where documentation was shared with Human Rights Watch by legal organizations that assisted the women and girls being prosecuted. These 11 cases gave us more details on the human impact of these prosecutions. Human Rights Watch also conducted 20 interviews with women who have faced criminalization, health providers, defense lawyers, and experts on women’s rights, including government officials, former government officials, and nongovernmental organizations (NGO) representatives.

While this review may not include the full universe of abortion prosecutions, it is indicative of trends in prosecution. Taken together with qualitative data, there appears to be an increase in the average number of prosecutions after the 2014 implementation of the criminal code reform from the time period just before. In the vast majority of these cases, the target of the prosecution was, or included, a woman or girl who was alleged to have undergone an abortion.

Criminalization of abortion harms all women and girls, but not equally. In the cases reviewed by Human Rights Watch, women and girls living in poverty were much more likely to be affected. Low-income women appeared to be more likely to be prosecuted, including in cases of miscarriage or when they urgently needed post-abortion medical care.

In the cases reviewed by Human Rights Watch, most of the women and girls prosecuted for undergoing an abortion were from regions with substantial Indigenous or Afro-descendant populations, and young. From the 78 cases of women and girls where their age could be determined, the majority, 48 (61 percent), were ages 18-24, 16 (21 percent) were ages 25-29, 5 (6 percent) were ages 30-39, and 9 (12 percent) were girls under age 18. A disproportionate number were from rural areas of the country.

Women and girls suspected of having sought abortions encountered barriers to accessing good quality legal representation, and violations of their due process rights. These barriers and violations often reflected gender stereotypes and religious considerations. Human Rights Watch also found that, in the cases reviewed, when women and girls being prosecuted for abortion with consent raised allegations of gender-based violence—including allegations that they had been forced or coerced into abortion—these allegations were not investigated or taken into consideration, while the legal proceedings against them moved forward.

Ecuador’s current laws and policies drive people in need of health care away from seeking help and make hospitals unsafe for many women and girls. In the case files reviewed by Human Rights Watch, 73 percent of the prosecutions were initiated after a healthcare provider reported a patient to the police—in violation of healthcare professionals’ duty of confidentiality. Ecuador’s constitution guarantees confidentiality regarding individuals’ health information, as a fundamental right, yet the government fails to protect this right in practice.  According to the United Nations Fund for Population Assistance in Ecuador, the number of women and girls at risk of prosecution is staggering; in the last 8 years, the rate of unsafe abortion has increased by 43 percent. Ecuadorian Ministry of Health data from 2019 shows that 21,939 women turned to the public health system seeking post-abortion care that year, whether for miscarriages, induced abortions, or incomplete abortions. Many other women and girls may be delaying or not seeking urgently needed health care for fear of being suspected of seeking abortion and reported to police. The scale of the problem is likely underestimated because by the time women and girls who have delayed care are finally seen by a doctor, they are often experiencing infection or sepsis, and such cases may not be identified as stemming from unmet need for post-abortion care. 

The criminalization of abortion, as illustrated by its implementation in Ecuador, violates women and girls’ human rights under international law, including the rights to life, physical integrity and health; freedom from torture, cruel, inhuman or degrading treatment; equality and nondiscrimination; privacy; liberty; and freedom from violence.

We found that Ecuador’s current laws and policies create an environment that compels many women and girls to turn to unsafe procedures that threaten their health and lives. Although abortion is legal under some circumstances in Ecuador, women and girls who meet the criteria that would permit them to obtain an abortion under Ecuador’s law—because their life or health is in danger and/or the pregnancy results from rape—are often prevented from doing so based on narrow interpretations of the law. In practice, many people who have become pregnant as the result of rape could not obtain an abortion, even though being forced to continue a pregnancy from rape can carry grave risks to the physical, mental, and social wellbeing of the pregnant person.

As a result of the law and climate of fear created by prosecutions, many women—including those experiencing obstetric emergencies or requiring post-abortion care—have also been deterred from seeking necessary health care services, at great risk to their health. 

Curbing unsafe abortion is an urgent public health and human rights imperative. According to the World Health Organization (WHO) women in South America, eastern Africa, and western Africa are more likely to have an unsafe abortion than are women in other regions. Unsafe abortion is estimated to account for 13 percent of all maternal deaths worldwide, but accounts for a higher proportion of maternal deaths in Latin America (17 percent) and southeast Asia (19 percent). The Guttmacher Institute, a global reproductive rights research organization, estimated that in 2010-2014 6.5 million abortions took place across Latin America and the Caribbean each year.  A 2017 Ministry of Health memorandum reported that 15.6 percent of maternal deaths in Ecuador are due to unsafe abortions.

The case files reviewed for this report provided details about the circumstances of these prosecutions. Doctors reported most of the women and girls who were prosecuted. The charges were usually “abortion with consent,” the term Ecuador uses to distinguish cases where a pregnant person seeks an abortion from cases where an abortion is inflicted against the pregnant person’s will. The public defenders assigned to represent the women and girls advised their clients, in 58 percent of the cases reviewed by Human Rights Watch, to plead guilty to avoid a trial. Once convicted, after a plea or trial, women and girls received sentences ranging from time in prison to therapy, community service and fines, or a combination of these punishments. Some sentences, such as community service work in orphanages, seemed designed to “reform” the defendants.

Our research also finds that fear of facing prosecution has encouraged doctors and healthcare workers—including both those treating patients and those in more administrative roles—to be quick to report their patients, violating their own professional obligations and their patients’ rights to confidentiality and privacy.

The Covid-19 pandemic and resulting lockdowns and restrictions have created new barriers for women and girls to exercise their sexual and reproductive rights.

On April 28, 2021, the Ecuadorian Constitutional Court decriminalized abortion in cases of rape, ruling that any person pregnant from rape has a right to access legal abortion care and should not be criminalized for ending a pregnancy. This is a historic and human rights-based ruling, in a country where every day, 7 girls below the age of 14 become mothers, and sexual violence has a serious impact on women and girls’ health. The consequences of both sexual violence and unintended pregnancy are far-reaching and lifelong. The court’s ruling represents an important step toward protecting human rights and dignity by giving women and girls who have survived rape the right to decide whether to continue a pregnancy resulting from rape.

On June 28, 2021, the Human Rights Ombudsperson’s Office presented a bill to the National Assembly, as ordered in the recent ruling. The court’s decision requires the National Assembly to discuss and pass the law within six months.

Ecuador’s restrictions on legal and safe abortion, also impose unnecessary costs on the state and private health sector and impair the state’s response to sexual and other gender-based violence. According to a study conducted by the Ministry of Public Health, the National Secretariat of Planning and Development of Ecuador, the National Institute of Public Health, UNFPA-Ecuador and Sendas in 2017, Ecuador loses USD$448 million a year due to unintended pregnancies. The country spends almost $5 million a year providing care for complications related to unsafe abortion. A legal abortion costs the state $160, while treating the consequences of an unsafe abortion costs the state $232.

On September 17, 2019, an attempt to decriminalize abortion in cases of rape and fatal fetal anomaly failed by five votes in the parliament. Ahead of the vote, Human Rights Watch had urged the National Assembly to take into account international human rights law and authoritative interpretations on access to abortion. Specifically, Human Rights Watch urged the Assembly to enact proposed reforms to the penal code that would decriminalize abortion for unviable pregnancies or the result of sexual violence, as an essential step toward aligning Ecuador’s legal framework with international standards that require fully decriminalizing abortion.

Human Rights Watch calls on Ecuador’s National Assembly to remove all criminal penalties for abortion. As an interim step, Ecuador should fully and immediately implement the Ecuadorian Constitutional Court decision granting anyone who becomes pregnant as a result of rape the right to a legal abortion and ensure that everyone eligible for legal abortion under the current law can fully access that right.

The government should improve data collection on reproductive and maternal health, consistent with patient privacy, including tracking maternal deaths and injuries resulting from unsafe and illegal abortions. It should ensure that all hospital directors, health professionals, and health system personnel receive training on relevant laws, regulations, and guidelines on legal abortion, reproductive health, and patient confidentiality, and are held accountable when they violate these obligations.

 

Key Recommendations

To the Presidency

• Work with relevant authorities to guarantee access to legal abortion for anyone eligible under the current law, including all survivors of rape, as per the recent ruling of the Ecuadorian Constitutional Court, and in accordance with Ecuador’s international obligations and current recommendations from different UN bodies.
• Ensure an open debate takes place with meaningful participation from all actors, including health experts and women’s, disabilities, Indigenous, and lesbian, gay, bisexual and transgender (LGBT) groups, to move toward the decriminalization of abortion in accordance with international human rights standards.
• Ensure public information is disseminated nationwide, particularly to women and girls and to national and local authorities and health professionals, clarifying the circumstances under which abortion is currently legal, including in light of the recent decision of the Ecuadorian Constitutional Court. Public messaging should clearly state the government’s obligation to provide abortion and post-abortion services and detail where these services can be obtained.

To the National Assembly

• Fully comply with the order of the Ecuadorian Constitutional Court to adopt legislation ensuring access to abortion for all survivors of rape within six months of the submission of the Ombudsperson’s Office bill.
• Reform the Criminal Code to comply with the Constitution and Ecuador’s international human rights obligations by allowing all pregnant people access to legal, voluntary, and safe abortions in all circumstances.

• Issue legislation reiterating the constitutional requirements of medical confidentiality, and specifying that in cases of obstetric emergencies related to abortions there is no duty to report.

To the Ministry of Health

• Ensure that any health institution that may be called upon to perform an abortion or provide post-abortion care implements the Clinical Practice Guidelines for Therapeutic Abortion as recommended by CEDAW in 2015 and has sufficient qualified and willing staff to guarantee, on a permanent basis, the exercise of the rights to reproductive freedom conferred by law, and require health institutions to demonstrate this capability as part of quality assurance monitoring process.
• Instruct relevant government bodies that the existing provision permitting abortion in cases where the pregnant person’s life or health is in danger include cases where the person faces not just physical risk but risk to their mental health, including as a result of rape, and to keep and share publicly data showing numbers of cases and circumstances in which abortions are authorized.
• Consider eliminating the possibility for individuals working in public health care facilities to invoke conscientious objection to refuse to perform abortion in public health care rights services. As an interim measure, ensure that no one is permitted to exercise conscientious objection in emergency situations, and that any individual invoking conscientious objection is required to be registered in advance as invoking this position, and require to provide full information and referrals to those seeking medical care to ensure ready access to the requested health service. In any event, conscientious objection could not become a barrier to access legal abortions, which also are essential health care services.
• Ensure that all hospital directors, health professionals, and health system personnel receive training on relevant laws, regulations, guidelines and rulings on legal abortion and reproductive health from a comprehensive health perspective, including the recent ruling of the Ecuadorian Constitutional Court decriminalizing abortion in all cases of rape.
• Provide training for all healthcare professionals in accordance with WHO standards to ensure high-quality health care for all pregnant individuals who seek a medical and surgical abortion as well as training on the provisions of the law regarding their duty to respect medical confidentiality, including in cases of obstetric emergency. Work with provincial governments to ensure such training in all provinces.
• Establish an effective system to inform patients of their right to confidentiality and to report violations of these rights, and their right to access legal abortion and other sexual and reproductive health care services, so patients can make informed decisions.
• Conduct disciplinary investigations when allegations are made of violations of medical confidentiality and impose sanctions, including withdrawing the right to practice, for healthcare professionals found to have violated medical confidentiality, that breach confidentiality within the public health care system.

To the Judiciary Council

• Develop and strengthen trainings for justice sector officials regarding the right to access abortion from a comprehensive health perspective and the obligation of health care professionals to protect patient confidentiality. It will be crucial that these trainings aim to eliminate the use of negative gender stereotypes that currently are allowing the prosecution of women for actions related to their reproduction and perpetuating the impunity for crimes involving sexual violence where the victim is identified as "responsible" for the crimes she suffered.

To the Chief of Police

• Adopt policies that prohibit arrests or interviewing of women or girls while they are receiving emergency treatment or are in a healthcare facility in connection with alleged consensual abortions.
• Train officers in gender sensitivity, including about gender-based violence, and ensure that they take gender into account in investigations and decisions.

To the Attorney General’s Office

• Adopting a policy that prohibits pretrial detention of women who are receiving emergency treatment or are in a health care facility in connection with an alleged consensual abortion.
• Instruct prosecutors, in assessing all cases of alleged consensual abortion, to apply the “opportunity principle” so as not to press charges.

 

Methodology

This report is based on research conducted by Human Rights Watch between June 2019 and July 2020. Human Rights Watch submitted public records requests to various public offices, including the Attorney General’s Office (Fiscalía General del Estado), the Public Defender’s office (Defensoría Pública), and the Judiciary Council (Consejo de la Judicatura).

These institutions provided information on prosecutions during varying periods between 2014 and 2019 related to abortion with consent under article 149 of the 2014 Criminal Code. The information provided by each of these institutions reflected different numbers of cases—the Attorney General’s Office reported filing 286 charges of consensual abortion from 2014 to June 2019; Ecuador’s Public Defender’s Office (Defensoría Pública) reported providing legal aid between 2016 and 2019 to 89 women who were prosecuted for abortion with consent; while the Judiciary Council reported that from August 2014 to June 2019, 122 cases were opened and had not reached a conclusion, while 99 cases had been “resolved,” for a total of 221 cases. The differences in these totals may be due to slightly differing definitions of exactly which charges or defendants each institution included in their statistics and different dates of inclusion, as well as some cases being represented by private counsel in the case of the Public Defender’s Office figures.

In addition, Human Rights Watch conducted its own search of publicly available judicial data. Human Rights Watch endeavored to identify and collect legal documentation for all abortion-related prosecutions initiated in the period from January 2009 to June 2019, using search functions for criminal cases related to relevant criminal code articles (articles 441-446 of the 2008 Criminal Code and articles 147-149 of the 2014 Criminal Code). Documents related to these cases were obtained from the Automatic System of Judicial Procedure (Sistema Automático de Trámites Judiciales SATJE), a database available to the public.

Through our search we were able to obtain documents for 182 cases, which includes every case we could identify and access of women and girls, medical providers or companions who have been accused, detained, charged, or convicted of crimes under articles 441-446 of the 2008 Criminal Code and articles 147-149 of the 2014 Criminal Code, or threatened with action under these articles. The documents included but are not limited to: details regarding the type of criminal action, the name of the prosecutor, the name of the defendant and/or defendants, the assigned judge and clerk, prosecutor’s charging document, police report, the call for arraignment hearing, court filings by the parties, annexes, reasons for deferred hearing, summary minutes, transcripts of testimony, calls for trial, the court’s analysis of evidence, the court’s general ruling, and records of the disposition of the case. Based on these documents, Human Rights Watch coded and compiled key details about each case including: name(s) of defendant(s), section of the law charged, date of charge, disposition of charge, sentence imposed if any, age of defendant(s) at the time of the charges, and length of time between charge and disposition.

Human Rights Watch compared the result of our search with the data provided by the Judiciary Council, the Attorney General’s Office, and the Public Defender’s Office and found that our search generated a similar number of cases from 2016 to 2019 to the Public Defender’s Office: our search produced 76 cases, compared with 89 cases for which the Public Defender’s Office reported providing support in the same period. The numbers of cases reported by the Attorney General’s Office (286) and the Judiciary Council (221) from 2014-2019 were similar to each other and substantially higher than those found in our search.^[1] Therefore, while we cannot confirm that our search generated the full universe of consent-related abortions in Ecuador during the timeframe, we have high confidence that our search resulted in a convenience sample of a considerable proportion of the cases we sought to identify.

From the pool of 182 cases between 2009 and 2019, we identified 137 cases that involved women, girls, health providers, or companions being charged with seeking or facilitating abortion with consent. We excluded 45 cases related to men, mostly companions, being charged for facilitating an abortion. Ninety-eight of the 137 cases reviewed in this manner also appeared in responses to requests Human Rights Watch made for government data on abortion prosecutions.

We also reviewed attorneys’ files for 11 additional cases of abortion-related prosecution shared with Human Rights Watch by legal organizations that assisted the women and girls being prosecuted.

Human Rights Watch analyzed data coded from all 148 cases. We used the 11 cases obtained through attorneys’ files to gather additional details on the human impact of these prosecutions by interviewing the defense lawyers and some of the women.^[2]

From these 148 cases, 113 involved only charges of abortion with consent under article 444 of the 2008 Criminal Code or article 149 of the 2014 Criminal Code. Eighteen cases involved charges of abortion with violence under article 442 of the 2008 Criminal Code. In eleven cases, the file indicated that the charges related to an alleged abortion but did not specify the section of the law under which charges were brought; these were all from the period of 2011-2014. One case involved the charge of providing medicine or other means to induce abortion as prohibited by article 443 of the 2008 Criminal Code. Two cases involved allegations of aggravating circumstances for the crime of abortion under article 446 of the 2008 Criminal Code. In three cases—two from 2015, which included a 15-year-old girl, and one from 2017—the prosecution filed charges of abortion with consent under article 149 of the 2014 Criminal Code, but the conviction was for aggravated homicide under article 140 of the 2014 Criminal Code.^[3]

Of the files in these 148 cases, 116 contained relevant information about the facts, circumstances, and legal treatment of the cases. Those cases not containing relevant information were almost all cases in which either the prosecutor’s office declined to proceed (due to circumstances such as inability to gather sufficient evidence, determination that the complaint was not meritorious, or because the statute of limitations had run) or the judge declined to declare the presumptive commission of a crime in flagrante.

Human Rights Watch also monitored news reports from January 2013 through the present for stories of cases of women or providers accused, detained, charged, or convicted of having or providing abortions. Human Rights Watch created a list of key experts to interview for the project, and developed a list of women and girls and medical providers directly affected by criminalization who Human Rights Watch could approach to see if they would be prepared to be interviewed confidentially about their experience.

If the Attorney General’s Office data provided to Human Rights Watch is accurate, there are somewhere between 122 and 286 cases between August 2014 and June 2019 that would meet the criteria for inclusion in our analysis. However, Human Rights Watch has access to 148 case files from 2009 to 2019. Because we could not randomize the selection of cases from the full universe of cases, this review constitutes a convenience sample and not a statistically representative sample. The findings from our analysis cannot be generalized, in a statistical sense, to represent all abortion-related prosecutions from that timeframe. However, the results of the analysis correspond with trends in overall prosecution as shown in the data that each of the institutions submitted to us in response to our records requests. They also corroborate much of the qualitative information we recorded through interviews. Therefore, we are confident the findings of the systematic analysis are indicative of trends in prosecution.

The Covid-19 outbreak limited the ability of Human Rights Watch staff to conduct in-country research. We worked with partners to instead conduct virtual interviews whenever possible. We conducted interviews over internet platforms, by video whenever possible, and sometimes by phone when that was the only available option. Throughout all interviews, Human Rights Watch took careful steps to ensure that our work did not expose our interviewees, partners, or staff to any increased risk of Covid-19 infection or any other risks to their safety and security. We interviewed seven health providers, two defense lawyers, nine experts on women’s rights, including government officials, former government officials, and NGO representatives, and two women who had faced prosecution. All seven doctors with whom Human Rights Watch spoke wanted to remain unnamed due to the stigma around abortion.

All interviewees provided oral informed consent to participate. Individuals were assured that they could decline to be interviewed and could end the interview at any time or decline to answer any questions, without any negative consequences. All participants were informed of the purpose of the interview, and the ways information would be collected and used. No interviewees received compensation for participating. Human Rights Watch uses specialized interview techniques designed to minimize the risk of re-traumatization of interviewees.

Due to the highly sensitive nature of the topic within Ecuadorian society, some interviewees decided to be identified with a pseudonym and others preferred to be anonymous. When describing information from the case files Human Rights Watch reviewed, we have also used pseudonyms.

 

Terminology

Abortion safety: “the spectrum of situations that constitute unsafe abortion and the continuum of risk they represent.”^[4] Public health experts have classified them as falling into three categories: safe, less safe, and least safe.

• Safe abortion: “abortions done with a method recommended by WHO (medical abortion, vacuum aspiration, or dilatation and evacuation) that was appropriate to the pregnancy duration and if the person providing the abortion was trained.”^[5]
• Less safe abortion: “only one of the two criteria were met—i.e., either the abortion was done by a trained provider but with an outdated method (e.g., sharp curettage) or a safe method of abortion (e.g., misoprostol) was used but without adequate information or support from a trained individual.”^[6]
• Least safe abortion: abortions “provided by untrained individuals using dangerous methods, such as ingestion of caustic substances, insertion of foreign bodies, or use of traditional concoctions.”^[7]

Abortion: the World Health Organization (WHO) has defined abortion as “the termination of a pregnancy before the fetus is capable of extrauterine life.”^[8] According to the WHO, “abortions are safe if they are done with a method recommended by WHO that is appropriate to the pregnancy duration and if the person providing or supporting the abortion is trained. Such abortions can be done using tablets (medical abortion) or a simple outpatient procedure.”^[9]

• Miscarriage or “spontaneous abortion": are those in which the termination is not provoked.^[10] “Pregnancy loss is defined differently around the world, but in general a baby who dies before 28 weeks of pregnancy is referred to as a miscarriage, and babies who die at or after 28 weeks are stillbirths. Every year, nearly 2 million babies are stillborn, and many of these deaths are preventable. However, miscarriages and stillbirths are not systematically recorded, even in developed countries, suggesting that the numbers could be even higher.”^[11]
• Induced abortion: when deliberate steps are taken to end a pregnancy. Induced abortions include those performed in accordance with legal sanctions and those performed outside the law.[12] The unmodified word abortion generally refers to an induced abortion.
  • Medical methods of abortion (medical abortion): use of pharmacological drugs to terminate pregnancy. Sometimes the terms “non-surgical abortion” or “medication abortion” are also used.[13]
  • Surgical methods of abortion (surgical abortion): use of transcervical procedures for terminating pregnancy, including vacuum aspiration and dilatation and evacuation (D&E).[14]
• Self-induced abortion: “[w]here abortion laws are restricted or safe abortion services are not widely accessible or are of poor quality, women may attempt to self-induce an abortion or resort to unskilled providers, risking serious consequences to their health and well-being.”[15]
• Abortion-related complications: according to the WHO, complications from unsafe abortion include: “incomplete abortion (failure to remove or expel all of the pregnancy tissue from the uterus); hemorrhage (heavy bleeding); infection; uterine perforation (caused when the uterus is pierced by a sharp object); [and] damage to the genital tract and internal organs.”[16] 

Mifepristone: “an anti-progestin which binds to progesterone receptors, inhibiting the action of progesterone and hence interfering with the continuation of pregnancy.”^[17]

Misoprostol: “a prostaglandin E1 analogue that can be used either in combination with mifepristone or on its own… [for] a wide range of reproductive health applications, including induction of labor, management of spontaneous and induced abortion, and prevention and treatment of postpartum hemorrhage.”^[18]

Cytotec: Misoprostol, sold under the brand-named Cytotec.

Post-Abortion Care: “is an integrated service delivery model that includes both maternal health and family planning interventions that are both curative and preventative. Curative interventions respond to the signs of complications that threaten a mother's life: hemorrhage and sepsis.”^[19] “Following an induced or spontaneous abortion, women should receive appropriate post-abortion care. For those women whose abortions were performed unsafely, post-abortion care is used as a strategy to attenuate the morbidity and mortality associated with complications, including uterine aspiration for incomplete abortion. All women should receive contraceptive information and be offered counseling for and methods of post-abortion contraception, including emergency contraception, before leaving the health-care facility.”^[20]

Abortion with consent: refers to an abortion conducted with the consent of the pregnant person. The Criminal Code in Ecuador imposes a punishment of one to three years of imprisonment for a person who has performed an abortion with consent and of six months to two years of imprisonment for a pregnant person who undergoes an abortion
with consent.^[21]

Therapeutic abortion: refers to the termination of pregnancy when the life or health of the pregnant person is at risk, which is legal in Ecuador. The WHO, among other experts, explains that this should be based on an understanding of health as a state of complete physical, mental and social well-being, and not merely the absence of disease or infirmity.^[22]

Non-consensual abortion: refers to an abortion is performed without the consent of the pregnant person. The Criminal Code in Ecuador impose a punishment of five to seven years of imprisonment on a person found to have inflicted a non-consensual abortion.^[23]

Adolescents: describes children and young adults ages 10 to 19, consistent with the definition used by the WHO.

Pregnant people: any pregnant person, including women, girls, trans men (people who have transitioned from female to male), and people who are non-binary (do not identify as female or male).

Girl, child, children: are used to refer to anyone under the age of 18, consistent with usage under international law.

Abbreviated procedure: this is a term used under Ecuadorian law to describe situations where a defendant pleads guilty in return for a reduced sentence.

Obstetric violence: this term is used “when referring to violence experienced by women during facility-based childbirth. Obstetric violence is a term widely used in South America, but it is not yet in use in international human rights law.”^[24] According to the UN special rapporteur on violence against women, “widespread violence and mistreatment of women during childbirth are human rights violations. They are not isolated incidents or sporadic episodes experienced by women in the course of their lives, but it is part of a continuum of the gender based violence that occurs in the wider context of structural inequality, discrimination and patriarchy, and is also the result of a lack of proper education and training as well as lack of respect for women's dignity, equal status, and human rights.”^[25]

 

I. Background: Abortion in Ecuador

Very few of the abortions performed in Ecuador are legally authorized. The National Statistical Institute (Instituto Nacional de Estadísticas y Censos-INEC) in 2019 reported that there were 911 cases in which an abortion was determined to be legally permitted.^[26] However, abortion—including abortions prohibited under Ecuador’s current law and interpretation of that law—is a common procedure in Ecuador. According to official INEC data, in 2019, 5,927 abortions took place in Ecuador.^[27]

Ecuador’s restrictions on abortion disproportionately affect some of the country’s most marginalized people. According to one study, the highest per capita rates of abortion are in the country’s eastern provinces of Pastaza and Morona Santiago, followed by Esmeraldas, Sucumbíos, Napo, El Oro, and Zamora Chinchipe provinces.^[28] Many of these provinces have a high Indigenous and Afro-descendent population. For example, 44 percent of Esmeraldas’ population identified themselves as Afro-descendant and 57 percent of the Napo population identified themselves as Indigenous.^[29] Ecuador is a majority mestizo country, but it has the sixth largest population of Indigenous people and the fifth largest population of Afro-descendants in Latin America.^[30] Indigenous people and Afro-descendant people are more likely to be living in poverty and face social disadvantage.^[31]

The criminalization of abortion forces pregnant people, particularly those in poverty, to resort to illegal and unsafe methods, leading them to risk death or long-term health consequences, as well as possible prosecution and imprisonment.^[32] It also hinders pregnant people from accessing the medical information they need before attempting to safely terminate a pregnancy themselves. A 2017 Ministry of Health memorandum reported that 15.6 percent of maternal deaths in Ecuador are due to unsafe abortions.^[33]

Legal Framework on Abortion

Under the current criminal code (2014), abortion is legal when the life or the health of a pregnant person is in danger (known as the therapeutic abortion or health exception), and a ruling by the Ecuadorian Constitutional Court on April 28, 2021 decriminalized abortion when a person is pregnant as a result of rape.^[34] The Criminal Code imposes prison sentences for those who receive or perform abortions outside of these exceptions.^[35] Article 149 of the 2014 Criminal Code criminalizes the act of providing abortion services to a woman who has voluntarily sought an abortion; it imposes punishment of one to three years’ imprisonment for this act. The same article punishes women who seek and undergo abortions with a penalty of six months to two years in prison.^[36]

With the recent ruling from the Ecuador Constitutional Court, Ecuador has joined the list of countries around the world that have reformed their abortion laws and expanded legal access to abortion in moves to better comply with international human rights standards.^[37] This step forward is particularly important in a country that has high rates of gender-based violence, as discussed below.

People who should be eligible to access therapeutic abortion under the current law cannot always do so. Ecuador has a clear protocol outlining when and how therapeutic abortion is permitted under existing law, and references a comprehensive understanding of “health” that includes “physical, mental, and social wellbeing” and recognizes it as a human right that the state is obligated to protect.”^[38] But in practice, doctors ignore this guidance, interpreting the therapeutic exception in the narrowest way possible, to include only imminent risks to the pregnant person’s physical health.^[39]

Health providers and advocates told Human Rights Watch that pregnant people face multiple other barriers and challenges in actually accessing abortion services, even when they are legal under exceptions in the Ecuadorian criminal code, such as fear of criminal prosecution, stigmatization, or mistreatment by health professionals. These challenges also include unnecessary hurdles imposed by health facilities, such as illegal requirements that parents, partners, or judicial or child protection authorities authorize access to abortion and arbitrary waiting periods imposed by health facilities.^[40] The Ecuadorian Constitutional Court found that barriers to abortion and the criminalization of abortion have a harmful impact on survivors or rape, deterring them from going to hospitals or health centers in emergency situations for fear of being reported, and forcing them to seek unsafe procedures.^[41] The court also found that the law does not prevent survivors of rape from obtaining abortions.^[42] The court ruled that restrictions on accessing abortion must not be drafted or applied in a manner that denies girls, adolescents, or other survivors of rape their rights under the constitution and sets out minimum standards for judges and legislators to follow to guarantee health care access and protect the rights of girls, adolescents, and women victims of rape.^[43]

Broad criminalization creates several obstacles for pregnant people seeking access to abortion, including lack of public information about the scope of the legal grounds for abortion, particularly regarding the therapeutic exception.^[44]

Ecuador has several laws and policies relevant to violence against women, reproductive and maternal health, and post-rape care.

Article 32 of the 2008 constitution provides significant protection for women and girls' rights, guaranteeing the right to health and obligating the state to promote and provide sexual and reproductive healthcare. The provision explicitly invokes a set of principles including equity, prevention, and quality, and a focus on women’s rights.^[45] Victims of domestic and sexual violence also have the constitutional right to receive priority and specialized care in public and private health sectors.^[46]     

The Health Law provides for programs and policies to address reproductive health,^[47] recognizes maternal mortality, adolescent pregnancy, and unsafe abortion as public health problems,^[48] and establishes the duty for private and public health services to prioritize treating obstetric emergencies.^[49] It also recognizes domestic violence as a public health problem and requires the state to provide comprehensive care to domestic and sexual violence victims. Among the health services that are required for survivors of domestic and sexual violence is the supply of emergency contraception and therapeutic procedures.^[50]

The Code on Children and Adolescents, recognizes that people under eighteen years of age also have sexual and reproductive rights, and establishes that “…children and adolescents are entitled to enjoy the highest level of physical, mental, psychological and sexual health.”^[51] The Ecuadorian Constitutional Court has established that when there is discrepancy between the opinion of a child or adolescent and that of their legal representative the opinion of the child or adolescent shall prevail when the opinion of their parent violates their constitutional rights.^[52]

The Law to Prevent and Eradicate Violence Against Women approved in November 2017 has two fundamental aspects: the protection of women victims of violence and the inclusion of articles related to abortion. It establishes the National Comprehensive System to Prevent and Eradicate Violence against Women, made up of 16 entities: Justice, Education, Health, Security, Labor, Economic Inclusion, Council for Gender Equality, INEC, ECU911, Judiciary, Prosecutor's Office, ombudspersons, and autonomous governments.^[53] It guarantees free access to the health network, and comprehensive, confidential, and nondiscriminatory care for women with abortions in progress.^[54] It also provides that pregnancy in adolescents and girls is to be considered high risk, and specialized care must be ensured for girls and adolescents who are victims of sexual violence, including examinations and treatment for the prevention of sexually transmitted infections like HIV/AIDS and unplanned pregnancy due to violence.^[55] The law also provides for the adoption and use of educational materials related to gender approaches with an  emphasis on women's rights, the deconstruction of sexist discourse that subordinates women, the prevention of sexual harassment and abuse, teenage pregnancy, and sex education.^[56]

Ecuador also has laws specifically addressing and criminalizing domestic and sexual violence,^[57] as well as policies and protocols to implement those laws, including the Ecuadorian National Guidelines for Therapeutic Abortion, which are almost never applied.^[58]

The country’s approach to abortion is inconsistent with these rights-respecting laws and policies. The barriers to accessing legal abortion services, and providers’ narrow interpretation of the right to health by focusing only on physical health when applying the therapeutic exception, ignore the impact of unwanted pregnancies on complete physical, mental, and social wellbeing, particularly when the pregnancy results from rape.

Confidentiality

Ecuador’s Constitution protects the confidentiality of individuals’ health information, as a fundamental right, stating that such information may not be disclosed or used without patients’ authorization.^[59] The Ecuadorian Criminal Code imposes a penalty for breaking this confidentiality of six months to one year in prison.^[60]

Article 422 of the Ecuadorian Criminal Code in 2014 established a duty for health professionals to report alleged crimes when they professional learn of them through their work.^[61] This provision is sometimes interpreted as taking precedence over confidentiality protections, or at least creating ambiguity in terms of which duty has primacy. But the Criminal Code also states that the duty imposed by article 422 applies only when there is no duty of confidentiality.^[62] The current legal framework reiterates healthcare professionals' duty to respect medical confidentiality, including in cases of obstetric emergency.^[63]

The Ecuadorian Ministry of Health released guidance clarifying that health professionals are obliged to safeguard the privacy of patient care through confidentiality, and that women who come to health units for problems related to obstetric emergencies cannot be denied care. Women’s care must be based on respect for dignity, confidentiality, and the rights of individuals, according to the constitutional and legal framework in force.^[64]

Conscientious Objection

There are no regulations on if, when and how a service provider may claim conscientious objection in the provision of health care in Ecuador.^[65] However, the Ecuadorian Code of Medical Ethics, issued by the Ministry of Health, emphasizes the duty of physicians to respect the rights of their patients. It establishes that physicians have an obligation to respect human rights principles and that their professional practice may not violate these principles under any circumstances.^[66]

Ecuador’s primary duty of care is to the individual seeking healthcare services and their right to health, not the religious affiliations of the healthcare provider. International law does not require states to provide for conscientious objection in health care.^[67] Human Rights Watch believes states should refrain from enacting legal provisions allowing such claims. Providing for conscientious objection is different from providing for reasonable and proportionate accommodation of religious or other beliefs in the workplace, such as allocating time for prayer or wearing a religious item of clothing, because conscientious objection could result in the limitation or denial of access to health care. No accommodation should be permitted if it results in the limitation or denial of access to health care to anyone.

Due Process

Ecuador’s constitution protects the right to due process, and specifically provides that no one may be interrogated by the police or any other authority without the presence of a private attorney or public defender.^[68] Both the Criminal Code and the Criminal Procedure Code protect this right.^[69] For children, this right is protected by the Children and Adolescents Code.^[70]

Criminal Code

In 2012, Ecuador’s National Assembly considered proposed reforms to Ecuador’s Criminal Code that included increased penalties for some forms of violence against women and would have eliminated criminal punishment for abortion in all cases of pregnancy resulting from sexual violence.^[71] The draft legislation was rejected in 2013, after then-President Rafael Correa threatened to resign if it passed, stating: “We truly defend life from the moment of conception, as stated in the Constitution; so, abortion is not allowed, my fellow countrymen.”^[72] Experts told Human Rights Watch that this reaction from former President Correa generated confusion about the law in Ecuador.

Instead, in August 2014, a new criminal code (Código Orgánico Integral Penal, or 2014 Criminal Code) entered into force. The new law revised the previous code's abortion-related provisions by changing harmful and outdated language to describe certain disabilities to “mental disability” in its description of the category of individuals permitted an abortion in cases of rape. However, the language is still inaccurate and stigmatizing. The 2014 Criminal Code also decreased the punishment for abortion with consent from one to five years to one to three years’ imprisonment for the person who has performed the abortion, and from one to five years to six months to two years’ imprisonment for the pregnant person who underwent an abortion. ^[73] It increased the punishment for non-consensual abortion to five to seven years in prison. 

In 2019, the legislature debated a bill that would have decriminalized abortion in cases of rape and fatal fetal anomaly. Human Rights Watch urged the National Assembly to enact the proposed reforms, as an essential step toward aligning Ecuador’s legal framework with international standards.^[74] In September 2019, the proposal was rejected after falling five votes short of the 70 needed for approval (65-59).^[75]

Ecuadorian Constitutional Court Ruling on Access to Abortion in All cases of Rape

Until April 2021, Ecuador's legislation allowed abortion when woman or girl’s life or health was in danger or after the rape of a woman or girl with an intellectual disability. On April 28, 2021, however, in an historic seven-two decision, the Constitutional Court declared parts of article 150(2) of the Criminal Code unconstitutional and decriminalized abortion for women and girls in all cases of rape, a decision that requires that laws imposing prison sentences in such cases be changed.

The court said:

Given the serious implications that this Court has shown exist in the case of a pregnancy resulting from rape, the imposition of a criminal sanction does not prevent raped women from engaging in the conduct it is intended to prevent.^[76]

The court ruled that a rape conviction should not be required before a survivor can access an abortion. The court held that:

such a requirement …, in practice, would promote forced motherhood of the victims, because while gestation biologically lasts a limited time, the criminal process goes through a series of stages … that exceed the gestational period. Therefore, … other options should be considered, such as, for example, criminal complaint, medical examination, or affidavit, which should be appropriately regulated by the legislator.^[77]

The ruling takes effect immediately and is not subject to appeal. President-elect Guillermo Lasso, who took office on May 24, said he had "full respect" for the ruling. "The independence of the government branches and the secular nature of the state are principles that cannot be negotiated," he said in a statement.^[78]

The court’s ruling opens a path to expand reproductive and women’s rights in accordance with international human rights standards.^[79] The decision tasked the Human Rights Ombudsperson’s Office with drafting a new law within two months to present to the National Assembly, which then has six months to adopt legislation to comply with the court’s order.^[80]

Human Rights Ombudsperson’s Office on New Abortion Law

On June 28, 2021, the Human Rights Ombudsperson's Office presented to the National Assembly a bill to regulate abortion in all cases of rape, in compliance with the recent ruling on abortion by the Ecuadorian Constitutional Court.[81]

The draft law was prepared pursuant to a national dialogue with different groups, including women’s rights organizations in Ecuador.[82] It reflects international human rights standards and principles—including a principle of progressive realization, which requires that the Ecuadorian government move as expeditiously as possible toward the fulfilment of abortion rights—and recognizes the right to have an abortion in all cases of rape.[83] This right is recognized for all pregnant people and takes into account the different vulnerabilities they might have, including their socioeconomic situation and migration status, age, disability, and if they are deprived of liberty.[84]

The draft law recognizes the need for access to medical, legal, and psychosocial support, including comprehensive abortion services, for all rape survivors who become pregnant, as a way to repair the harmful effects of a rape and unwanted pregnancy.[85]

In accordance with international human rights standards, the draft law establishes that abortion services should be provided in a timely matter, and that medical confidentiality must be guaranteed before, during and after the abortion.[86] The bill states:

Health personnel who declare their conscientious objection are not exempted from their obligation to maintain medical confidentiality with regard to information gathered during the examination, including any information related to the rape.[87] 

Impact of Covid-19 on Reproductive Rights in Ecuador

Ecuador was one of the first countries in Latin America to be hit hard by a Covid-19 outbreak; by April 2020 it already had 10,128 confirmed cases and 507 deaths in a country of just 17 million people.^[88] As of April 20, 2021, there were 360,546 confirmed cases and 17,703 deaths.^[89]

The Covid-19 pandemic and the resulting lockdowns created new barriers to women and girls exercising their sexual and reproductive rights.^[90] Local organizations described to Human Rights Watch how restrictions on travel and transport imposed to slow the spread of Covid-19 kept many women and girls from accessing healthcare, abortion, and post-abortion services in a timely manner.^[91] They described survivors of gender-based, including sexual, violence struggling to access medical assistance for injuries and evidence collection; and new obstacles to accessing legal abortion services and contraceptive supplies, including the “morning after pill,” even for victims of sexual violence.^[92]

The pandemic is putting enormous pressure on health systems around the world as governments work to contain the virus and treat sick people. But governments also need to sustain other essential services, which according to the WHO include sexual and reproductive health services.^[93]

The National Emergency Operations Committee of Ecuador, through its inter-institutional Technical Working Groups, issued five documents with specific recommendations containing operational guidelines mainly aimed at the care of pregnant women and newborns with suspected or confirmed Covid-19^[94]. However, these documents contain few recommendations for reproductive health care aimed at guaranteeing continuity of services for patients without Covid19. Therapeutic abortion is not expressly recognized as essential, nor are specific guidelines provided in times of pandemic to guarantee its provision.

The pandemic is exposing and exacerbating existing barriers to accessing sexual and reproductive health services in Ecuador:^[95]

• Access to contraceptive supplies and family planning services: The pandemic has resulted in the suspension of outpatient specialty consultations in health facilities and the rescheduling of medical appointments at the first, second, and third levels of care. It has led to interruptions in the provision of contraceptives, suspension of family planning consultations, and difficulties in accessing sexual and reproductive health counseling.[96] These are essential health services because they save lives by preventing unwanted pregnancies and unsafe abortion procedures, a particular risk in a context like Ecuador where abortion is partially decriminalized.[97] Surkuna, an Ecuadorian women’s rights organization, submitted public records requests to the Ecuadorian Ministry of Health; the records provided in response showed that in March and June 2020 the consumption of contraceptives decrease 36 percent compared to the same period in 2019.[98]
• Access to maternal health care: Access to prenatal care has been severely affected during the Covid-19 pandemic. Research by Surkuna found a decrease of 45 percent of the first preventive consultations during the months of March to May of 2020 compared to 2019 in public health facilities. For girls aged 10 to 17 years the drop was 49 percent, and for girls aged 10 to 14, it fell 62 percent. Across all age groups the number of subsequent prenatal care visits fell by 21 percent between March and August 2020 compared to the same period in 2019. The decrease for girls under 18 years of age was 26 percent.[99]
• Access to legal abortions:[100] The WHO has emphasized that therapeutic abortion, abortion care for abortion-related complications, and post-abortion care are essential health services that should be available, even in a pandemic like Covid-19.[101] Surkuna found that no additional guidelines had been issued by the Ministry of Health to safeguard access to abortion and post-abortion care during the pandemic. In this regard, it is of particular concern that care for obstetric emergencies related to abortions decreased by 54 percent between the months of March to July 2020 compared to the same period in 2019. Therapeutic abortion care decreased by 69 percent between March and July 2020 compared to the same period in the previous year.[102] Despite the barriers to accessing therapeutic abortion and abortion care during the pandemic, Surkuna found that the prosecution of women and girls suspected of seeking abortion continued. Between March 1 and August 31, 2020, 17 complaints for the crime of consensual abortion were registered with the Attorney General's Office.[103]

 

II. Ecuador’s Criminalization of Abortion

Delfina, 17 years old, and Josefa, 21 years old, identified as Afro-Ecuadorians, both had miscarriages and went to the emergency room seeking medical care. They both were reported by health providers to the police and were charged for abortion with consent. Delfina was sentenced to 3 months of house arrest but she spent 18 months under house arrest during her prosecution and trial. Josefa served a 7-month prison sentence. She was sentenced to 7 months and served that time.[104]

According to records provided by the Ecuadorian Attorney General’s Office to Human Rights Watch, from the beginning of 2014 through June 2019 the Attorney General’s Office filed charges in 286 cases alleging consensual abortion.^[105] Ecuador’s Public Defender’s Office (Defensoría Pública) reported to Human Rights Watch that in the period from 2016 to 2019 its lawyers provided legal aid to 89 women prosecuted for abortion with consent.  From August 2014 to June 2019, Ecuador’s Judiciary Council reported to Human Rights Watch that it had records of 122 open cases and 99 cases that had been “resolved,” though it did not specify how they were resolved.

Human Rights Watch examined documents that it accessed through the Automatic System of Judicial Procedure for 137 cases involving women or girls, health providers, or companions being charged with seeking or facilitating abortion with consent between 2009 and 2019. Most of these cases involved charges for abortion with consent under article 444 of the 2008 Criminal Code (which applies to cases involving events occurring between 2009 and 2013) or article 149 of the 2014 Criminal Code (which applies to cases occurring after it went into force in August 2014).^[106] In addition, we reviewed 11 cases of abortion-related prosecution shared with Human Rights Watch by legal organizations that assisted the women and girls being prosecuted.

Soledad grew up in poverty and her mother died when she was young. She looked after her father until his death and worked in his gardening business. She was socially isolated and could not afford to study beyond high school. Soledad was in her thirties when she had her first romantic relationship, with a man she married. In 2015, at age 38, she became pregnant for the first time. This was a wanted, planned, and welcomed pregnancy for Soledad and her husband. She did not seek prenatal care, as she did not know it was necessary; her sisters had given birth at home. One night, she felt a strong stomachache and the urge to defecate. After going to the toilet, she was taken to the hospital with a heavy hemorrhage. She learned she had given birth prematurely on the toilet and her daughter had died. Doctors at the hospital accused her of having induced an abortion and repeatedly asked what pills she had taken. "The doctors treated me badly, they considered me to be the guilty one, they didn't treat me well,” Soledad said. “I told them that my stomach hurt. They didn't take me into account—they accused me without asking me anything.” The doctors called the police and Soledad was taken to a detention center in Latacunga, Cotopaxi.  “I was taken away by the police,” she said. “The doctor said I was fine, although I was standing up and bleeding. They gave me a sanitary towel. My husband got down on his knees begging them not to take me, and they said they had to. I was so scared, I asked them: ‘Where are you taking me? Why are you taking me?’ While I was walking out of the hospital, I got dizzy.  And I went off like that with the patrol. “When I got to Latacunga, I spent three nights bleeding. I was soaked in blood up to my back. I asked them to call the doctors--[I said] that I was going to die, and the police said ‘silence’…They never gave me any medicine and I never saw a doctor. On the fourth day, I didn't have so much blood and little by little it went away. No doctor came to check if I was alive or dead. Then they took me to another ward, and I was scared. They took me to a meeting room, and they sat me down. They told me, ‘You are the one who came with a problem with a baby.’…I was very afraid that they would hurt me because in those wards, they make you get beaten up by other prisoners.” The prosecutor charged Soledad with aggravated homicide following an attempted abortion, based on his assertion that her daughter had been born alive. The prosecutor asked for a minimum aggravated penalty of 26 to 34 years and 9 months in prison.  At trial, an expert for the prosecution offered testimony, based on a discredited medical test, that the baby had breathed before dying at birth. Soledad was found not guilty—but she had spent five months in jail awaiting and during trial. She became pregnant again, with a high-risk pregnancy, and was so traumatized by her earlier experience that she was terrified to seek pre-natal care. She eventually managed to access good quality care, however, and had a healthy child.[107]

As mentioned above, Ecuadorian law imposes prison terms from six months to two years on women who receive abortions with consent, and from one to three years for health providers who perform one.^[108] As a result of this criminalization, women and girls who have miscarriages or obstetric emergencies, like Delfina, Josefa, and Soledad, are at risk of being prosecuted for abortion. In exceptional cases, such as Soledad’s, women and girls face homicide charges.

While Human Rights Watch did not obtain information on the full number of cases, our review of these cases suggests that the average number of yearly prosecutions increased after the reformed Criminal Code went into force in 2014. That code included the requirement that professionals report crimes. Human Rights Watch analyzed the case files in its possession from 2009 to 2019, and excluded 2014, the year the criminal code went into implementation. In the five years prior to 2014, there were about eight prosecutions of women and girls for undergoing abortion per year on average.^[109] In the five full years of cases following 2014, there were fifteen prosecutions per year on average.^[110] There could be multiple explanations for the change in numbers over time. However, taken in concert with the qualitative interviews conducted by Human Rights Watch, there appears to be a shift after the implementation of the 2014 law to more prosecutions.

Of the 148 cases reviewed by Human Rights Watch, 81 percent were cases brought against women and girls who sought an abortion or had a miscarriage or an obstetric emergency; 14 percent targeted companions who helped perform the abortion, and 5 percent targeted a health professional who performed an abortion.

We learned that pregnant people experience major barriers to accessing abortion care even when they are or should be eligible to access abortion under the current legal framework. Government officials and public health care providers, perhaps fearing prosecution themselves under the laws criminalizing abortion, often interpret the exceptions to Ecuador’s ban on abortion as narrowly as possible. Criminalization of abortion has created fear of prosecution and contributed to stigmatizing abortion, impacting both health professionals and pregnant people. The impact has been strongest on women and girls living in poverty and marginalized ethnic groups, deepening inequality.

Our research identified a common trend in the cases we reviewed: a young woman takes medication to induce abortion obtained independently in one of a variety of potential ways in an effort to end an unwanted pregnancy. She ends up in the hospital, either due to lack of information about the effects of misoprostol which leads her to fear that her health is in danger or due to complications that require medical attention, especially in cases of second-trimester abortion. At the hospital, a doctor or other staff member alerts the police—due to that hospital policies that require staff to notify police in cases of suspected abortion or in the presence of a “cadaver” (which some health facilities inappropriately define to include clumps of blood and tissue resulting from miscarriage or abortion), or simply because of a staff member’s convictions.^[111] According to the constitutional framework in force and other laws and regulations, this behavior is inconsistent with health professionals’ obligation to respect confidentiality and safeguard the privacy of patient care.^[112]

The case then is resolved through a plea bargain or trial. Defendants typically serve less than a year in prison or complete a suspended sentence, which frequently comes with requirements to perform community service or include attending psychological therapy, particularly for women under age 25.

Cecilia, 22 years old, was 16 weeks pregnant, unemployed and without higher education when she decided to have a medical abortion.  With little information about the procedure and with the support of a friend, Cecilia took misoprostol, a pill included in the WHO Model List of Essential Medicines that is used to prevent and treat stomach ulcers, to start labor, for medical abortion, and to treat postpartum bleeding due to poor contractions of the uterus.[113] When she had severe stomach pain and began bleeding, she got scared and rushed to the emergency room seeking medical care. Upon examination, two misoprostol tablets were found in her vagina. The medical staff reported her to the police. At the hospital, the officers took the statements of the doctors and Cecilia, without the presence of a lawyer. Cecilia reported that the day before she had taken two pills and placed two more in the vaginal area. Cecilia's psychological report determined that she “suffers from moderate depression, and therefore requires psychological therapy to treat her depression and improve her self-esteem and emotional stability,” Cecilia decided to plead guilty and use the abbreviated process. She was finally sentenced to four months of psychological therapy and four months of community service twice a week. She also had to report periodically to the Prosecutor's Office and maintain her domicile.[114]

The cases analyzed by Human Rights Watch included cases from 22 of the 24 provinces in Ecuador. We did not obtain any cases from two provinces: Galapagos and Bolivar.^[115]   Particularly striking are the number of cases originating outside of Ecuador’s major urban areas, Guayaquil and Quito, which each had a total of 4,884,082 million inhabitants, out of Ecuador’s total population of 15,012,000 million, according to the 2010 census.^[116]

Of the 148 cases in the dataset, 60 cases resulted in findings of guilt and 13 were dismissed after the defendant completed court-mandated requirements such as community work, therapy, or counseling:

Of the 60 cases that led to punishment (which involved 70 defendants), 38 defendants were sentenced to prison terms and 25 to suspended sentences (probation). Four of the defendants who received prison or suspended sentences were convicted of forcing a woman or girl to have an abortion without her consent and were also compelled to pay reparations to the victims (generally the person who experienced the abortion or her family members). Three other defendants paid reparations only, after reaching a judicial settlement with the complainant:

Year	Number of women or girl imprisoned, out of 148 cases examined
2009	0
2010	0
2011	2
2012	0
2013	2
2014	5
2015	8
2016	9
2017	9
2018	3
2019	0
TOTAL	38

It is notable that defendants who submitted to abbreviated procedures were more likely to serve prison terms. In the cases identified, about 81 percent of defendants in abbreviated procedures served prison terms (generally between six to four months or less), compared to 19 percent of the defendants who went to trial. In 2016, the National Court issued a resolution stating that suspended sentences may not be imposed in abbreviated proceedings.^[118]

Of the 13 cases that were dismissed after the defendant completed court-mandated requirements, the requirements imposed typically involved the defendant attending counseling and/or engaging in a form of community service prescribed by the court. 

Whether the case ends in imprisonment or other forms of punishment—and even when a case is dismissed—these prosecutions have a devastating impact on the lives of the women and girls affected. The prosecutions also have a far broader harmful impact, creating an environment of fear that intimidates women and girls facing an unwanted pregnancy into going without health care and information they desperately need, and to which they are legally entitled.

“Marginalized Women Are the Ones Who Get Prosecuted”: Discriminatory Impact of Criminalization of Abortion does not affect all women and girls equally. In the cases reviewed by Human Rights Watch, many of the defendants were from regions that are economically marginalized or that have greater proportions of Indigenous or Afro-descendant populations. Often, they were forced to choose between risking imprisonment, illness, and death, versus forced pregnancy and motherhood.^[119]

Most defendants were young women. Of the 148 cases reviewed by Human Rights Watch where the age of the defendant prosecuted for undergoing an abortion with consent could be determined, 61 percent were young women between ages 18 and 24, another 21 percent were between the ages of 25 and 29, 6 percent were ages 30-39, and 12 percent were girls under age 18. The age could be determined for 90 defendants.^[120]

Defendants older than 29 were usually health providers or were men who are identified as having impregnated the women or girls who had the abortion; in the latter cases the case file often indicates that the man has been accused of rape, including cases of alleged statutory rape. The below table provides a breakdown of the cases identified by Human Rights Watch, in which the age could be determined:

Several cases involved women identified as Indigenous in the case files, who were reported by hospitals after they sought care in the emergency room for abortion-related complications, with no distinction made whether they sought care for spontaneous or induced terminations. None were placed in pretrial detention or have served prison sentences, due to failure to appear in court proceedings. The Ecuadorian Constitution and laws protect the rights of Indigenous persons and require access to translators in cases involving them.^[121]

The case review also indicates that the women put on trial for abortion-related crimes between 2009 and 2019 were disproportionately from regions with high levels of poverty and where high proportions of the population are of Indigenous or African descent. For example, from the 148 cases analyzed by Human Rights Watch, 140 provided location information, of those 16 cases originated in Morona Santiago province, in Ecuador’s central-eastern Amazon rainforest, where 48,4 percent of the population identify themselves as Indigenous.^[122] Most of the Morona Santiago cases were from the Macas urban area (Macas/Sucúa/General Proaño)—a town of just 30,000 inhabitants; Morona Santiago province holds just one percent of Ecuador’s population (about 147.940 residents), but cases from the province constitute 11 percent of cases identified by Human Rights Watch.^[123]

Province (capital city)	# Cases (2009-2019)	% of identified cases	% of Ecuador Population as per 2010 census[124]	Proportion of province that is Indigenous[125]	Proportion of province that is Afro descent[126]	Proportion of province that is Mestizo[127]
Pichincha	23	16%	18%	5.3%	1.3%	82.1%
Guayas	11	8%	25%	1.3%	9.7%	67.5%
Morona Santiago	16	11%	1%	48.4%	1.2%	46.6%
Imbabura	12	8%	3%	25.8%	5.4%	65.7%
Cotopaxi	12	8%	3%	22.1%	1.7%	72.1%
Napo	10	7%	1%	56.8%	1.6%	38.1%
Carchi	10	7%	1%	3.4%	6.4%	86.9%
Esmeraldas	6	4%	4%	2.8%	43.9%	44.7%
Chimborazo	4	2%	3%	38%	1.1%	58.4%
Cañar	7	5%	2%	15.2%	2.6%	76.7%
Zamora Chinchipe	2	1%	1%	15.6%	1.4%	80.3%
Los Rios	4	2%	5%	0,6%	6.2%	52.9%
Sucumbios	3	2%	1%	13.4%	5.9%	75%
Tungurahua	3	2%	3%	12.4%	1.4%	82.1%
Loja	5	3%	3%	3.7%	0.7%	90.2%
Manabí	2	1%	9%	0.2%	6%	69.7%
Orellana	2	1%	1%	31.8%	4.9%	57.5%
Azuay	1	0.7%	5%	2.5%	2.2%	89.6%
El Oro	3	2%	4%	0.7%	6.9%	81.6%
Pastanza	2	1%	1%	39.8%	1.5%	55.3%
Santa Elena	1	0.7%	2%	1.4%	8.5%	79.1%
Santo Domingo de los Tsachilas	1	0.7%	3%	1.7%	7.7%	81%
TOTAL	140

Marta, a 25-year-old woman of probable Indigenous heritage, arrived at the emergency room in 2010 with a serious kidney infection and had a stillbirth. Medical personnel reported her to the police. Doctors said she induced an abortion with misoprostol. Marta spent eight years in pretrial detention while her case for an abortion with consent was being investigated. The case exceeded the statute of limitations and Martha was released without a trial.[128]

These findings are similar to those of Ecuadorian experts who have researched this issue.^[129] A 2018 report by a coalition of women’s rights organizations in Ecuador reviewed cases of women prosecuted for abortion and found that of the cases they reviewed all had “low economic resources” and 40 percent of the women were Afro-Ecuadorian.^[130] These figures, the authors wrote, “demonstrate the overlap between the criminalization of abortion and marginalized groups” and reveal how the criminalization of abortion is “a problem of social injustice and discrimination.”^[131]

Medical professionals, defense lawyers, journalists, and activists interviewed by Human Rights Watch offered similar observations. Ana Acosta, a journalist who has reported extensively on criminalization of abortion said:

The women who are prosecuted, unlike the great majority who are having abortions without being prosecuted, are Afro descendant, impoverished, Indigenous and rural women. The criminalization in Ecuador is not universal; it has a face and a class, an ethnicity, and an origin. Marginalized women are the ones who get prosecuted. If you look at the police records, many of these women have surnames with Indigenous and Afro roots.^[132]

Women living in poverty face additional obstacles to safe abortion and a high proportion of the Indigenous and Afro descent populations live in poverty (54 percent of the Indigenous population and 26 percent of the Black population live in poverty compared to 16 percent of the mestizo population).^[133] Girls and young women, especially those who live in poverty and belong to marginalized ethnic groups, are less likely to have access to the information and resources necessary to find safe abortion services. They are also less likely to have information about the law on abortion and the steps required to access legal abortion.

Rosa, an 18-year-old woman, identified as mestiza in her file, arrived at an emergency room in 2015 with an incomplete abortion. She was 12.5 weeks pregnant. The judge sentenced her to 60 days in prison for an abortion with consent and told her she had “...killed the one who lived inside your womb, which in a few words means to murder.”[134] Mabel, a single mother with a 4-year-old boy, and a domestic worker, was taken to the emergency room after she inserted a knife into her belly in an effort to end an unwanted pregnancy in 2014. Mabel pled guilty and was sentenced to undergo psychological treatment, community service and regular supervision visits to the prosecutor’s office. Mabel had a long commute to the prosecutor’s office and the community service schedule conflicted with her work schedule. This situation made Mabel arrive late at work and her boss threatened to fire her.[135]

These findings echo global research on the impact of criminalization. Some authors have stated that “abortion stigma may cause some women to carry their pregnancies to term, to assume a disproportionate economic burden for care, or to seek abortion care clandestinely. It may be that the most vulnerable groups of women are unable to get abortions because of this social barrier.”^[136]

Prosecution of Women and Girls Experiencing Obstetric Emergencies

Maria, a 20-year-old Afro-Ecuadorian woman, did not know she was pregnant when she slipped and fell at work. “On Friday, I fell at work and I didn't pay attention to it…On Monday I went to the public hospital, they did an ultrasound and told me that I had nothing and said that they were going to clean me up, but they never told me that I was pregnant. And then they arrested me.” After being accused of having an abortion and prosecuted, she spent 4 months in pretrial detention with her 3-year-old son. Maria is the primary caregiver for both her son and mother, both of whom have disabilities. Her arrest and imprisonment created enormous difficulty and stress for the three of them and their family.[137]

Maria needed and was entitled to receive care to manage her miscarriage. Instead she was prosecuted for abortion. Young women, living in marginalized conditions and lacking access to adequate health care and sexual health education and information, are criminalized by state institutions when they seek emergency medical care at public hospitals after experiencing obstetric emergencies.

Many women who go to a hospital for a miscarriage did not know they were pregnant, which makes them more likely to have experienced complications during pregnancy.^[138] According to the Ecuadorian statistics agency, in 2019 10,271 pregnant women had a miscarriage. Global data indicates that 10 to 15 percent of pregnancies end in miscarriage.^[139] The criminalization of abortion means every pregnant woman and girl who experiences miscarriage is potentially at risk of being investigated and prosecuted for abortion if they seek medical care and a health care provider suspects an abortion and reports them.

Teresa was 25 years old and 6 months pregnant when she was admitted to a maternity public hospital for 3 days after suffering a fall in 2013. Two days after the doctors released her, Teresa returned to the public hospital because she continued to bleed heavily. The doctors could not stop the hemorrhage, and they had no choice but to induce labor. Teresa gave birth prematurely, and her baby died hours later at the hospital. The medical personnel gave Teresa a “little box” containing the corpse of her baby. As she sat alone in the hospital hallway holding the box, they reported her to the police for an abortion. Doctors suspected Teresa of having taken Cytotec (Misoprostol, sold under the brand-named Cytotec), despite her repeatedly telling them that she had not taken anything. Prosecutors charged her with abortion with consent but after almost five months of investigations, prosecutors dismissed the charges.[140] Ana was 27 years old when she fell down the stairs of her house in 2015. She went to a pharmacy seeking treatment but as the pain continued, she decided to go to the emergency room. There the doctor told her that she was in the process of giving birth.  A few hours later, her son was born without vital signs. She was then moved to a room where a prosecutor arrived and informed her that she was now under arrest. Doctors had informed law enforcement that they suspected Ana of having obtained Cytotec when she visited the pharmacy and taken it. Ana was charged with abortion. The charges were dismissed three and a half months later.[141]

The stories of Maria, Teresa, and Ana are not exceptional. In Ecuador, pregnant women and girls may face prosecution if their pregnancy does not result in a healthy birth outcome. In the cases analyzed by Human Rights Watch, authorities repeatedly prosecuted women for events health experts described as obstetric emergencies, including miscarriages.

The threat of prosecution deters women and girls from seeking necessary health care services, especially when they are experiencing obstetric emergencies or requiring post-abortion care. Driving women and girls away from health care in this manner puts their health and lives at risk. Maria, Teresa, and Ana were scared and went to the hospital looking for medical help but ended up charged with crimes.

Prosecution of Survivors of Rape and Other Forms of Gender-Based Violence

Ecuador has high rates of violence against women, including sexual violence. According to official data from 2012 and figures cited in the April 2021 decision of the Ecuadorian Constitutional Court decriminalizing abortion in all cases of rape:

• One in four women have experienced sexual violence.^[142]
• Of the women who reported suffering sexual violence, 65 percent had been victimized by their partners or former partners.^[143]
• Of the total number of daily rape reports, 41 percent are from girls and young women between 15 and 24 years of age.^[144]
• Six out of ten women have experienced gender-based violence. The highest percentage of women who have experienced some type of gender violence and have identified themselves with an ethnicity category is concentrated in the Indigenous ethnic group with 68 percent and Afro-Ecuadorian with 67 percent.^[145]
• There are 42 reports of sexual violence daily and an average of 10 rapes per day.^[146]

Survivors of sexual violence in Ecuador are disproportionately girls:

• Of the total number of reported rapes, 7 percent involve victims who are girls under nin9e years of age and 40 percent involve victims who are girls between 10 and 14 years of age.^[147]
• The birth rate among girls between 10 and 14 years old increased from 2.5 per 1,000 births in 2013^[148] to 2.8 per 1,000 in 2017.^[149]
• According to the government, 8 out of 10 pregnancies among girls under age 14 result from sexual violence, but under Ecuador’s laws all sex with a child under the age of 14 is considered statutory rape.^[150]
• According to a 2017 report by the Ecuadorian Ministry of Health, Ecuador is the country in Latin America with the third highest rate of pregnancy among girls and young women ages 10-19 years, after Nicaragua and Dominican Republic.^[151]
• According to government data analyzed by Human Rights Watch, between 2014 and May 2020, 4,221 students suffered school-related sexual violence.^[152]
• Only 17 percent of the sexual violence cases against girls reported in 2016-2017 resulted in convictions.^[153]

Paola Guzmán Albarracín v. Ecuador From the age of 14, Paola was repeatedly raped and sexually assaulted by the deputy principal at her public secondary school. In 2002, Paola found out she was pregnant and told the deputy principal, who coerced her into getting an abortion with the support of the doctor in charge of the school’s medical service. The school doctor also allegedly asked Paola for sex. Following this, Paola took her life in December 2002.[154] In June 2020, the Inter-American Court of Human Rights found Ecuador responsible for violating Paola’s rights to life, to study free from sexual violence, and to sexual and reproductive health and bodily autonomy, as well as her family’s right to a fair trial and respect for their moral and psychological integrity.[155]

Despite Ecuador’s high rates of sexual violence, until April 28, 2021 rape victims (other than those with an intellectual disability) were denied legal access to a therapeutic abortion and were often prosecuted when they manage to access abortion. With the new ruling of the Ecuadorian Constitutional Court women and girls are entitled to obtain legal abortion in rape cases.^[156] According to the UN special rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (Special Rapporteur on the Right to Health), the right to sexual and reproductive health is a “fundamental part of the right to health, which includes access to safe, legal abortion. Access to safe, legal abortion guarantees the dignity and autonomy of girls and women as elements of their sexual and reproductive health. If not provided, this has severe negative impacts on the health of girls and women. Those negative impacts are made worse in cases of unwanted pregnancies and forced motherhood as a result of sexual violence.”^[157] 

The UN Committee on the Elimination of Discrimination Against Women (CEDAW Committee) has found that in circumstances where abortion is legal when a woman’s life or health is in danger, as is the case under Ecuador’s current law, a woman’s health should be interpreted to cover both the physical and mental health of the rape victim in determining the legality of access to therapeutic abortion.^[158]

 

Fernanda, age 15, was sentenced to 3 months of psychological therapy and a verbal warning for an abortion with consent. Fernanda became pregnant after she was raped at a party and did not want to continue the pregnancy. She had a medical abortion. “I'm the one who suffered—why do they want to make me suffer again?” she told her therapist.[159]

Elena was 21 years old in 2013, living in poverty, and married with a young child, when she was raped and became pregnant. She took medication to induce an abortion and went to a public hospital because she had severe stomach pain. Elena was reported to the police by the medical personnel who treated her. Elena’s was one of four cases Human Rights Watch reviewed that were reported by the same public hospital. Charged with an abortion with consent, Elena told the judge: “Yes I used the pills, but it was to hide my honor. I didn’t want to have it because it was the product of rape—I didn’t want my family to find out.” Elena was sentenced to 12 months in prison, and served seven months in prison for good behavior.[160]

From the 148 case files Human Rights Watch reviewed, when women accused of having an abortion introduced evidence in court, 8 said they had been victims of rape and 9 described being victims of other forms of gender-based violence. In these cases, the judges did not meaningfully consider this information as exculpatory. For example, one case reviewed by Human Rights Watch describes a woman who had apparently been physically attacked by an intimate partner, causing fetal death; she was nonetheless convicted of consensual abortion.

Many allegations, particularly from 2015 onward, of non-consensual abortion include allegations of sexual assault, with a partner forcibly inserting misoprostol pills into the pregnant woman’s vagina or doing so without her knowledge or consent; other cases describe verbal or emotional coercion or pressure by a partner to have an abortion. These cases are not investigated as sexual assault or domestic violence, and women’s allegations and accounts are frequently questioned, disbelieved, and discounted in legal proceedings.

When Maribel, 20 years old, told her boyfriend she was 8 weeks pregnant, he said he didn’t want to have a child. A few days later and with the pretext of celebrating Valentine’s day, Maribel’s boyfriend invited her to a motel.  At the motel, he insisted that Maribel had to take some vitamins, three oral and three vaginal. Maribel didn’t know the pills were misoprostol (abortion pills). The day after, Maribel ran to the emergency room because she had cramps and pain.  Maribel was prosecuted and found guilty of abortion with consent and was sentenced to psychological therapy and community work.  Her boyfriend was never charged.[161]

Justice Officials Ignoring Gender-Based Violence While Pursuing Abortion Charges

Human Rights Watch found 17 cases in which women and girls being prosecuted for abortion with consent raised allegations of gender-based violence. There was no indication in the court documents reviewed that these allegations were separately investigated, charged or tried, or that any steps were taken to ensure the woman or girl's safety and well-being. Instead the women and girls’ explanations were frequently questioned, disbelieved, and discounted while legal proceedings against them
moved forward.

Yolanda, 24 years old, arrived on her wheelchair and with her partner to the emergency room after taking four Cytotec pills. Yolanda was 13 to 14 weeks pregnant and expressed her desired to end the pregnancy since she had conflicts with her partner.  Yolanda was sentenced to two months in prison.  The claims on gender-based violence were never investigated.[162] Another case file contained the following note: “[A] medical examination was made of the mother where she had a cut in her belly and in addition, she was hit three times, two at the back and one on the buttocks, we presume that she could also have been mistreated..., it was learned that she had had problems with her partner, who had been harassing her about the child possibly not belonging to him.”[163] The case was archived, and the suspected domestic violence was not investigated.

In three cases reviewed by Human Rights Watch that involved charges against men involved in abortion there were allegations that these defendants had raped the woman or girl who had become pregnant. None of these three cases involved meaningful judicial consideration of the rape allegations, as either an aggravating factor or as a separate crime to be investigated—and potentially exculpate the woman or girl—during investigation of the abortion case.

A girl in high school was raped by a 33-year-old police officer. The girl’s mother had reported the rape after being alerted by school staff; her daughter had testified in court, describing how the police officer had taken her to a motel against her will and raped her there. The police officer and an obstetrician who forced her to undergo an abortion against her wishes were both found guilty of non-consensual abortion. The police officer was given a one-year suspended sentence and required to pay $3,000 in compensation, as well as a fine of four salaries. The obstetrician was given an eight-month suspended sentence, during which time he was required to perform community service “for the prevention of early pregnancies in any public or private institution” and required to pay $6,000 in compensation. The rape allegations were never investigated or prosecuted.[164]

Silvia, a 28-year-old university student in Quito, said she was attacked by a 38-year-old fellow student, who invited her to his house, drugged her and raped her in 2010. Silvia reported the rape to the police. After learning she was pregnant, Silvia wrote to her attacker telling him she was pregnant and demanding that he help “resolve this.” He responded by taking her to a clinic for what he said would be a “prenatal checkup.”  At the private clinic, an obstetrician told Silvia she seemed anxious and injected thiopental into her arm saying it would help her relax. Silvia fell asleep, and the obstetrician performed a non-consensual abortion. After leaving the clinic, Sylvia and her attacker went to a restaurant; from the restaurant's bathroom, Silvia messaged the police officer who had received her report of rape, asking for help. The police arrived at the restaurant, and the man attempted to flee. He was detained and the prescription in his possession that the obstetrician had written for post-abortion care was taken as evidence against him. He later argued in court that he had only accompanied Silvia and waited outside the clinic and that he had no idea she was seeking an abortion, although evidence showed he had paid $150 for the procedure. Silvia, the man she said had raped her, and the obstetrician who performed the abortion were all charged with abortion-related crimes; the two men were found not guilty at trial and the charges against Sylvia were ultimately dismissed.[165] Police or prosecutors took no action regarding Silvia’s allegations that she had been raped.[166] Lucía was raped on her way out of school, and in June 2015 gave birth alone in the bathroom of her home. The baby died. She was 15 years old when she was prosecuted for abortion and homicide and was sentenced to five years’ imprisonment for homicide. She spent four years and three months in a juvenile facility after being taken to an adult court.  According to her therapist, this situation generated a lot of insecurity, fear, and anxiety. He recalled Lucia’s words: “Why do they want to blame me, if I tried to save my son?” A ccording to the therapist, Lucia’s rapist was never arrested or charged.[167]

In the cases reviewed by Human Rights Watch, some women facing prosecution for abortion with consent introduced evidence that the abortion was not in fact consensual, alleging that they had been forced to undergo an abortion, usually by the man responsible for the pregnancy. In one case, a woman said that the man forcibly inserted misoprostol pills into her vagina.^[168] Several other women described being given medication to induce abortion without their knowledge or consent, by a partner determined to avoid becoming a father. Other women facing prosecution told the court that they had faced verbal or emotional coercion or pressure by a partner to have an abortion. Police and prosecutors in these cases did not seem to have taken seriously or investigated these allegations, and judges seemed to disregard them.

Pressure on Health Care Workers and Violations of Medical Confidentiality

In nearly three out of four cases reviewed by Human Rights Watch, prosecution was initiated due to an identifiable violation of medical confidentiality. Women and girls were prosecuted after being reported by medical personnel at public hospitals where they arrived at the emergency room while experiencing an abortion, an incomplete abortion, or an obstetric emergency.

Healthcare professionals should respect medical confidentiality. This covers health professionals who receive confidential information directly from their patients or during a medical examination, personnel who learn the information through other professionals who participated in the treatment of patients, even performing administrative functions, and professionals who receive information without patients' express consent.^[169] Respecting confidentiality is especially important in the case of abortion, given the stigma against those who undergo and perform the procedure.

Nonetheless, doctors and other health care providers routinely breach patients’ confidentiality by reporting alleged abortions to authorities. They may report patients because of their own personal beliefs, because their employers require and pressure them to report any case that could involve abortion, or because they fear that failure to report could make them vulnerable to prosecution under Ecuador’s broad abortion laws.^[170] The perceived “duty” on healthcare professionals to lodge criminal complaints—even though it is illegal—creates a double barrier. On the one hand, it discourages women and girls from accessing abortion or post-abortion care or medical assistance for obstetric complications during pregnancy. On the other hand, it discourages doctors from providing emergency obstetric care to women and girls due to the fear of facing prosecution or stigma for perceived complicity in abortion.^[171]

Cristina Torres, a defense lawyer, said the stigmatizing attitudes among health care providers are so strong that they make every woman who enters the emergency room bleeding already “guilty of having committed an abortion.”^[172] Files in some of the 148 cases reviewed by Human Rights Watch include records of statements by health officials or police officers, and sentences that reflect such negative and judgmental attitudes towards abortion. The imposition of sentences to receive psychological therapy and to perform community service in orphanages or children’s centers, also sometimes reflected such attitudes.

Damarys, a 16-year-old, and María Jose, a 23-year-old, both of whom identified themselves as Indigenous, decided to end their unintended pregnancies.  Damarys went to a private clinic, and Maria Jose had a medical abortion. Each was charged with consensual abortion. Their public defenders advised them to plead guilty as the only way to achieve short sentences or even to avoid spending time in jail. Both accepted their guilt and agreed to have an abbreviated procedure. The judge substituted prison time with alternative measures that included childcare and psychological therapy to help them learn to be “mothers,” with the aim of correcting a behavior, since women must necessarily want to be mothers.[173] The judicial reasoning surrounding the imposition of these conditions (when provided), is usually grounded in stereotypes about women as inherently maternal caretakers and about adolescent or young women as immature and in need of corrective guidance.[174]

In several of the cases, defendants, particularly women in their early 20s, such as Damarys and Maria Jose, are presented as women who are confused, in need of guidance and corrective instruction, and naïve. Such portrayals appear in the psychological evaluations that form part of case files (many of which find “immaturity,” “emotional instability,” and similar traits in female defendants), in the sentences imposed, and occasionally in the explicit reasoning of judges. Likewise, files in many cases reflect stereotypes that the defendant “must have known she was pregnant,” “obviously knew what those pills were for,” or was aberrant or abnormal (not sufficiently maternal) for having allegedly sought to end a pregnancy.^[175]

The Guttmacher Institute has written that when abortion is stigmatized, as it is in Ecuador, “physicians are unable to receive training in abortion procedures, decline to be trained, or, if trained, face barriers to providing abortions.”^[176] Doctors and obstetricians in Ecuador described this stigma to Human Rights Watch saying that even if they are trained, many colleagues won’t “want to be seen as an abortionist.”^[177]

One doctor told Human Rights Watch,

“The OB-GYN society in general does not agree with abortion and that can generate a professional stigma. When you make public statements in favor of abortion, they all fall on you, they stigmatize you. That is why you will see double standards. Doctors at the public hospital have a different behavior than outside. In their public practice they report women but in their private practice, they freely prescribe misoprostol.”^[178]

Many interviewees told Human Rights Watch that doctors working in public hospitals are under pressure by the hospitals not only to refuse abortions, but also to report any women or girls they treat who they believe may have had an abortion to the police.^[179]

Margarita was 19 years old in 2013 when she says that she told a friend that her menstrual period was late, and her friend gave her some pills she said would induce Margarita’s regular menstruation. Soon after taking the pills, Margarita began to feel ill. She called a taxi to take her to a clinic, but after she fainted in the taxi the driver took her to a public hospital instead. A doctor at that public hospital later gave the following statement describing what happened next: While I was on duty, a patient came in with abdominal pain, nausea and vomiting, she had had abdominal pain at the pelvic level, and in the preparation of the clinic history, the patient had not given a specific cause. When I asked her several questions, the patient said that she had voluntarily taken medication without mentioning the name. The nurse on duty was asked to help, and when they were both present, I performed a vaginal examination showing two tablets, one almost complete and the other almost disintegrated…the tablets were placed in a test tube and the police were called, and when they arrived, they were given the test tube. As the doctor in charge, I arranged for blood tests to be done to see if she was pregnant, giving positive results for pregnancy, in addition an ultrasound was requested to check if she was pregnant and the fetus was alive, the results of the echo were that the fetal product was lifeless, the patient was in her first period of pregnancy.[180]

Margarita’s case is not exceptional; 59 of the 148 cases Human Rights Watch reviewed involve allegations that hospital personnel had discovered undissolved misoprostol tablets during vaginal examinations.

The following three examples are notes from cases reviewed by Human Rights Watch where the evidence presented by the prosecutor was taken from the health providers’ testimony, in violation of medical confidentiality. Nonetheless, this evidence was taken into consideration by the judge: Case 1: “The doctor proceeded to perform a vaginal examination, where a complete pill and a compatible mass of white pill remnants were found. The same pills were removed and placed in a plastic container ”.[181] Case 2: “Dr [W]...., who works in the emergency area, stating that.... with a diagnosis of premature labor and at the time of checking her private parts, specifically in the vagina, he had observed that there were 3 pills with the name of misoprostol, stating that these pills induce abortion, so he had called the ECU-911, to report the events”.[182] Case 3: “Upon physical examination… three pills, some whole and some dissolved, were found in the vaginal cavity..., and the ECU911 was informed of this fact so that the necessary police and legal procedures could be taken”.[183]

These tablets, collected by hospital personnel and sent for chemical analysis, were often an important part of the evidentiary basis for abortion charges. Misoprostol use cannot be detected through a blood test.^[184] The main evidence against women and girls being prosecuted for seeking abortion was often their own medical records, statements from their doctors, and physical evidence collected during the most intimate of exams in the course of urgent medical treatment.

Ecuador’s government should clarify that the duty to report a crime does not trump confidentiality rights. It should remind healthcare workers of their duty to respect the confidentiality of patients’ health data and information.

Treatment in the Justice System

From the review of case files, Human Rights Watch was able to identify patterns that exacerbated the abusive nature of these prosecutions. Women and girls suspected of having had abortions encountered violations of their due process rights and barriers to accessing good quality legal representation. Judges often failed to consider, as a mitigating circumstance, the lack of information many women and girls, especially those who are poor and marginalized, have about reproductive health and abortion. Many charges and sentences inappropriately reflected gender stereotypes and religious considerations.

Due Process Concerns

Abortion-related investigations and prosecutions in Ecuador often happen swiftly and involve violations of the due process rights of the accused. As cases discussed in this report demonstrate, women and girls are often charged and convicted of abortion-related crimes based on evidence obtained illegally through violations of their right to privacy, medically invalid tests, and interrogations conducted without the presence of counsel.

In most of the cases, the main evidence against women and girls who sought an abortion consists of the medical history, the emergency care sheet, and the testimony of health providers who reported the woman or girl to the police, all in violation of medical confidentiality. Ecuadorian law bars the use of evidence that has been obtained in violation of constitutional rights.^[185] However, courts routinely seemed to allow the introduction of evidence obtained in violation of patients’ constitutional right to
medical confidentiality.

The other main piece of evidence are the statements made by women after or before receiving medical care.

Damarys, as mentioned above, was 16 years old when she decided to end her unintended pregnancy by going to a private clinic. She had a complication and needed medical attention. She was taken to a public hospital. The doctors questioned her and reported to the police. Both, the police and the doctors told Damarys that it would be better if she cooperated and told them the truth, that they already had her information through her medical records, that the worst thing would be to deny it and that if she confessed nothing would happen to her. The following day, the prosecutor opened an investigation and charges were brought against her, in absentia, while she was still being treated in hospital.[186]

In 99 of the cases reviewed by Human Rights Watch, women suspected of having sought abortion were interrogated by police at the hospital without a lawyer present, in violation of national law which provides for the right to a proper defense and specifically states that nobody may be interrogated by police without their attorney present.^[187]

The following notes from case files reviewed by Human Rights Watch are examples of evidence, considered at trial, which was obtained through violation of other rights: Case 1: Testimony of a police officer who interrogated a woman at the hospital after she had receiving medical care without a lawyer present and then used her statement as the basis for her arrest. “I have proceeded to the arrest of ‘A.’ We received an order of the radio patrol center, we went to the hospital, where I interviewed Dr. ‘Z,’, who stated that the day before she had assisted ‘A,’ because she had pyelonephritis.... With this information I went to the patient who identified herself as ‘A,’ who voluntarily stated that a woman...had sold her three abortion pills for twenty US dollars.... With this information, we proceeded to the arrest”.[188] Case 2: Testimony of a police officer in a case where the charges were based on confidential patient information provided by doctors in violation of their duty to protect patient privacy. “The doctors indicated to the members of the National Police that they were attending to a person who had induced an abortion, the policemen informed the Prosecutor's Office; and this is what is going to be demonstrated”.[189] Case 3: Testimony of a woman during trial, where she explains how after having an obstetric emergency she was charged with induced abortion. “I went to the hospital because I had a pain in my belly since I fell from the stairs of my house. I was pregnant and went to the hospital .... After I entered the hospital, they told me that I was in labor, after a few hours I gave birth to the baby, but they told me that it was without vital signs, then they transferred me to a room, a prosecutor arrived and told me that I was detained for investigations of what had happened”.[190]

These interrogations often took place while the woman or girl was in the hospital, experiencing or recovering from a medical emergency, sometimes a life-threatening one. In nearly three out of four cases, they were reported to the police by the hospital staff. Interrogation under these circumstances not only affected their due process rights, but also risked further compromising their health, by interrupting their treatment and interfering with their medical care and their relationship with their doctor.

In 23 cases Human Rights Watch reviewed, the defendants, including women or girls who had abortions or other defendants like health providers, were placed in pretrial detention. We identified 13 cases where a woman or girl who had just gone through an abortion was placed in pretrial detention. Ecuador’s law contains specific provisions intended to avoid pretrial detention for pregnant and post-partum women, but these provisions are sometimes ignored in abortion prosecutions.^[191]

In several cases, healthcare professionals carried out invasive tests on women that were not a legitimate part of their medical treatment and were performed without informed consent or a legal basis, such as the forensic examination of genital organs.^[192] Instead of excluding evidence obtained in violation of the women’s rights—such as confidential health information—prosecutors routinely used it and judges accepted it.

Paola, 15 years old and her boyfriend Juan, 20 years old, decided to have a medical abortion after they found out that Paola was 10 weeks pregnant. Paola arrived with an incomplete abortion to the hospital looking for medical care and in the company of her parents. Once Paola mentioned she had taken misoprostol, health care workers conducted urine and blood tests, along with other exams, without further explanation. The laboratory exams purported to confirm the presence of misoprostol in both the blood and the urine. This was part of the main evidence for the case.[193]  In another case, the prosecutor argued that the report presented established “that the lung was tested by introducing a container with water and the lung went straight to the bottom, there was no submersion, which means that there was never any breathing in the lungs by the fetus.”[194] The scientific community has discredited this type of test; however, it was part of the evidence taken for the case. The patient had told a doctor that she didn’t want to have children. The doctor’s testimony was used as part of the evidence against Vicky in a prosecution for consensual abortion. At trial, Vicky was found not guilty.[195]

Human Rights Watch found five cases in Esmeraldas originating from a violation of medical confidentiality. Four were reported by a single hospital in 2013. The fifth was a case of a sex worker traveling from out of town to visit her incarcerated husband, which was overturned on appeal for due process violations.

Another problem is that forensic examiners sometimes use methods discredited by the scientific community at least two centuries ago, such as the “floating lung test,” also called “hydrostatic test or docimasia,” to purport to determine whether a newborn was born dead or alive by assessing whether lungs have undergone respiration.[196] One expert has noted: “It remains, though, that in many cases it is not possible to definitively answer this question and stillbirth should be assumed due to the potential legal implications of determining that an infant was born alive.”[197]  Yet in three cases reviewed by Human Rights Watch, prosecutors relied on findings obtained through this method to pursue charges of aggravated homicide, as explained in the case of Soledad above. During Soledad’s trial, the prosecutor offered testimony, based on the results of the “floating lung test,” as part of the legal evidence that the results of the “asphyxiation by suffocation with airway obstruction and strangulation, on examination of the docimasia were positive.”[198]  Even though this is a discredited medical test, it was taken into consideration during the trial. Soledad was found not guilty, but she had spent five months in jail awaiting and
during trial.

In one of the cases reviewed by Human Rights Watch the lawyer representing the defendant raised the following due process concerns:

1.       the defense was denied access to a psychological expert to examine the defendant;

2.      the defense was denied access to an expert able to advise on the validity of the “float test”;

3.      an interrogation of the defendant conducted in the hospital while she was still bleeding and without a lawyer, and undergoing medical treatment, was not excluded from evidence even though the attorney asserted that it was conducted in violation of the defendant's rights and she was compelled to agree to the interview as a condition of receiving medical treatment;

4.      searches of the defendant's home which the attorney also asserted were conducted illegally were also admitted into evidence;

5.       the testimony of health care professionals who treated the defendant was admitted although the professionals violated legally required patient confidentiality in providing the testimony; 

6.      a medically invalid "float test" was admitted into evidence. The requests were denied, and the defendant was found guilty.[199]

Attorneys representing defendants accused of abortion-related crimes say that they face stigma, hostility, and barriers to doing their job from law enforcement officials.^[200] Ana Vera, director of Surkuna, an Ecuadorian legal organization that tracks cases of women being prosecuted for abortion charges and has defended people facing these charges, told Human Rights Watch that these cases are handled differently than other types of criminal cases. “[I]n these prosecutors' offices where we also handle cases of all kinds of gender-based violence, [we] have never been treated so badly, never been so systematically denied access to the proceedings, and never been so denied evidence. In these prosecutors' offices, the defense lawyers are seeing as monsters—they do not let us do our work.”

She described one case:

We are systematically denied evidence. I had a case in which exhumation was denied… We filed five written requests arguing that there were several evidentiary errors…, that the autopsy had several errors, and that the refusal to exhume the body constituted a violation of due process…. However, the prosecutor appointed the same expert witness that we had questioned… to conduct the exhumation. The exhumation was never done. At the end of the hearing, the judge had the cameras and recording turned off and asked us to approach the bench. Once we did, she showed us a picture of a 22-week fetus and said to us: “why do you defend murderers?”^[201]

Ms. Vera contrasted police and prosecutors' eagerness to obtain a conviction at any cost in abortion cases with their relative lack of interest in pursuing cases of violence against women, including femicide.^[202]

Like other people facing criminal charges, people accused of abortion-related crimes are often urged by their public defense lawyers to plead guilty, with the lawyers under pressure from prosecutors and judges to resolve the case without the time and expense of a trial. Human Rights Watch reviewed 96 cases with final adjudication. In 19 of 33 cases (58 percent) where a public defender represented the defendant, there was an “abbreviated procedure” where the defendant pled guilty. This compares to 24 of the 63 cases (38 percent) with private representation. In 29 of 63 cases (46 percent) with private representation, the case went to trial compared with 9 of the 33 cases (27 percent) with a public defender.  In the remainder of cases, the outcome was a conditional suspension of proceedings.^[203]

Defendants may be told that pleading guilty will get them a lower sentence, but Human Rights Watch’s analysis of cases found that people who agreed to an abbreviated procedure were more likely to serve prison time than those who opted for a trial.  Among the 33 cases we identified where the defendant had an abbreviated procedure, 2 out of 3 defendants were sentenced to a prison term. In only 8 of the 31 cases that went to trial, the defendant received a prison term, with the remainder receiving a suspended sentence. It is possible that the cases that went to trial involved weaker evidence, but these figures suggest that the push to resolve cases without trial may be compromising some defendants’ rights.^[204]

Some of the files reviewed by Human Rights Watch contained indications of poor-quality representation by public defense counsel. The prosecution often presented extensive evidence, including the woman’s medical records, fetal autopsies, reports of visual inspections of hospitals and houses where an abortion was alleged to have occurred, police reports, and similar kinds of evidence. They also include interviews of relevant parties including the defendant(s), hospital staff, police investigators, and often family members with knowledge of the events and psychological evaluations. By contrast, public defense attorneys often present very little evidence.

For example, in the case against Margarita, who was mentioned above, and who was interrogated at the hospital by police without an attorney present, the evidence presented by the prosecutor consisted of: 1) the pills removed from Margarita’s vagina; 2) a medical certificate issued by the hospital doctor; 3) an arrest ticket issued by police officers; 4) a police report; 5) a report describing a gynecological examination carried out on the accused by a forensic doctor;  6) a chain of custody record of biological, chemical and controlled substance samples; 7) an invoice for laboratory studies; 8) results of the toxicological tests; 9) a report from the investigating police officers; 10) an expert report on recognition of evidence, prepared by police officers; 11) a report of recognition of the place of the facts, elaborated by a police officer; and 12) a certified copy of the clinical history.^[205]

Margarita’s public defense lawyer did not present any evidence for the case. This was not unusual—several of the case files reviewed by Human Rights Watch indicated that the defense attorney had introduced little or no evidence on their client’s behalf.

Gender Stereotypes and Religious Considerations in Treatment of Women Defendants

Many cases reviewed by Human Rights Watch contained clear indications that police, prosecutors, and judges brought to the case gender and religious stereotypes that influenced how they treated—and sentenced—the defendants.

In Margarita’s case, the judge ruled that, “There is no doubt that the plaintiff knew the consequences of inserting two pills in her vagina and taking them orally, since no other result can be expected but to end the life of the fetus. The defendant's assertion that she did not know she was pregnant being hardly credible, if this were true then it would not have been necessary for her to adopt such conduct.” The judge went on to write that the right to life “shall be protected by law and in general from the moment of conception” in a wrong interpretation of article 4 of the American Convention and sentenced Margarita to four months in prison.^[206]

The Guttmacher Institute writes that abortion is stigmatized because it:

[V]iolates two fundamental ideals of womanhood: Nurturing motherhood and sexual purity. The desire to be a mother is central to being a ‘good woman’, and notions that women should have sex only if they intend to procreate reinforce the idea that sex for pleasure is illicit for women (although it is acceptable for men). Abortion, therefore, is stigmatized because it is evidence that a woman has had ‘nonprocreative’ sex and is seeking to exert control over her own reproduction and sexuality, both of which threaten existing gender norms.^[207]

Ana Vera, director of Surkuna, explained that the stigmatization of the woman starts from the moment health professionals report them and continues throughout the legal process. “What we have confirmed is that the stigma weighs on these women about their role as mothers, and about the supposed rupture of that role. This means that the legal processes they face are processes without any kind of judicial guarantee, and due process is not respected.”^[208] 

Ana Acosta, a journalist who has investigated abortion prosecutions, said women “are told that they are sinners” in court.^[209] Acosta explained that many women are told that they have had an abortion “because they do not know that being a mother is a good thing… Judges send them [women] to breastfeeding houses for motherhood [as a punishment]. This is a form of stigma.”^[210]

“If a mother can kill her own child, what reason is there for humanity not to kill each other?” a prosecutor argued in one case.^[211]

Another prosecutor raised religion explicitly:

[Abortion] constitutes a crime against the existence of a being that, as a spirit at the moment of conception, joined a body given by its parents at the time of their love relationship. Abortion with consent consists of taking the life of an innocent creature who has committed no crime. Moreover, the crime is aggravated by the fact that the victim is a creature who would be entitled to the love of his parents and who will not be able to enjoy any of the goods of life, its parents being left with the earthly criminal responsibility, and after death, the divine one at the time of their appearance before the Court of Higher Intelligence, the Heavenly Father. It resembles with lesser penalty the murder, common among human beings in Ecuadorian history. There are many causes that can impel a young lady to have an abortion, take the life of a being, or kill that being that she voluntarily procreated. However, sacrificing the philosophy of this judge: Women should not be mistreated even with the petal of a rose, women should not be killed in a prison, women should be loved, and to love them we must understand them, forgive them, help them, endure them every day to show them that we really love them. The woman is not an object, she is a human being, a daughter of our Heavenly Father but, in cases like this, these ladies must also be judged.^[212]

Judges often crafted sentences that seemed designed to punish women and girls and mold them into acceptable models of feminine behavior and instruct them in being good mothers. “It's pretty traumatic when the judge tells you that you have an obligation to be a mom. At a hearing, the judge said to my defendant, who was sentenced to offer community service at an orphan home, ‘Let’s see if this is how she learns to be a mom,’” Cristina Torres, a defense lawyer, told Human Rights Watch.^[213]

Patricia was required, while awaiting trial, to complete a course of psychological therapy at a center called “Esperanza por una Vida Nueva” (Hope for a New Life). The center provided a report presented at trial that stated that she “has attended psychological therapy normally, in which her emotional balance has been improved and irrational ideas have been eliminated, discharging her from the treatment.” Patricia was also ordered to conduct community work at the Children's Center for Good Living in the parish of her town.^[214]

Sentences of this type highlight how stereotypes about women as inherently maternal caretakers or as immature and in need of corrective guidance influence prosecutions and trials. Judges often sentenced women and girls to community service tasks that seemed specifically targeted at conveying ideological messages, for example, ordering them to perform community service at an orphanage or work to “avoid early [teenage] pregnancies.”^[215]

Stigma against abortion also follows women into prison. Ana Vera of Surkuna said women in prison for abortion suffer systematic harassment by both other prisoners and guards:

Women are called baby killers; they are harassed and persecuted. They suffer systematic patterns of harassment. Like whether they have a bed or not will depend on if they have been prosecuted or not for an abortion. Women who are prosecuted for abortion, usually got the worst spots and no beds, in these overcrowded prisons, it generates an atmosphere of total hostility.   Guards tell the other prisoners that these women are in jail because they kill their babies. So, the prisoners tell the women they don't want baby killers with them, ask them to leave the cell and look for another place. The bad prison conditions plus this treatment and harassment generates in these women panic and stress.^[216]

Lack of Comprehensive Sexuality Education

Women’s lack of information about their bodies and health was sometimes painfully evident in the cases Human Rights Watch reviewed for this report, where women and girls had been prosecuted for abortion. Evidence in many of the case files indicated that the women being prosecuted had, at the time that they took misoprostol or Cytotec, little information or understanding about what the drug is, how it would affect them, or that one of the effects of the drug is to induce abortion. This is not surprising given the lack of comprehensive sexuality education (CSE) in Ecuador’s schools, and the ways in which criminalization of abortion blocks women and girls from accessing information about reproductive health and abortion.

Ecuador has not yet adopted CSE as part of its national curriculum, as required by international standards.^[217] Historically, its focus on sexuality education has been piecemeal, and tied to the government’s effort to curb teenage pregnancies.^[218] 

Defendants often said they had used misoprostol or Cytotec as a contraceptive method or to “regulate irregular menstrual periods.”^[219] Others said they had asked in a pharmacy, or asked friends, for a pill “so that my period would come.”^[220] It is possible that many of the women being prosecuted for having sought abortion did not have a level of education about reproductive health that would allow them to understand that “regulating” or “inducing” a late menstrual period with misoprostol might involve inducing an abortion, and that misoprostol has different gynecological uses, which includes to induce medical abortion.

Margarita’s case illustrates this. She testified that she did not know that she was pregnant, but she was worried because her menstrual period was late. She mentioned this to a friend who said she could give her medication that would help: “[S]he told me that with those pills my period will come back.” The pills made Margarita feel unwell and she ended up in the hospital. “At the hospital, the doctor asked me what symptoms I had. As I did not know I was pregnant I said I took those pills. There they told me that those pills were for an abortion,” she said. “The truth is I didn't know I was pregnant. I was worried and afraid because I didn’t have my period.”^[221]

 

III. Social and Financial Impact of Ecuador’s Criminalization of Abortion

Criminalization of abortion is having widespread harmful consequences in Ecuador. It costs lives through increased maternal mortality and morbidity, cutting women and girls off from essential services, and undermining broader efforts to promote sexual and reproductive health. Criminalizing abortion undermines urgent steps Ecuador should be taking to combat preventable health complications, maternal death, and human rights violations. As data in this report shows, prosecution—and other harms caused by the criminalization of abortion and limited access to legal abortions—disproportionately affect adolescents and young women and people who are already marginalized, including Indigenous people, Afro-descendants, and women and girls living in poverty or extreme poverty.

Although the scope of the ruling of the Ecuadorian Constitutional Court was limited to the question of “mental disability” and rape, the court left the door open for further decriminalization, concluding that the National Assembly cannot avoid its responsibility to legislate to defend and protect all constitutional rights of women and girls.^[222] In his concurring opinion, Judge Ramiro Avila Santamaria concludes:

That criminal law is not the appropriate tool to protect rights in this context and calls for decriminalization of abortion accompanied by regulation that guarantees access to safe services in order to “fully protect the right to health against possible violations committed by third parties.”^[223]

Maternal Mortality and Morbidity

Criminalizing abortion creates serious health risks for women and girls. The Ecuadorian Criminal Code’s narrow interpretation of the health and life exception to include only physical health and imminent threat to life deny most women access to legal abortion. Fear of criminalization and stigma often leads those who are legally entitled to a therapeutic abortion to wait until potentially life-threatening complications develop before accessing it.^[224]

Research from around the world consistently finds that criminalization of abortion does not reduce the number of abortions, but instead drives women and girls to seek unsafe abortions that contribute to preventable maternal mortality and morbidity.^[225] This is a major concern for Ecuador, which has high rates of maternal mortality and morbidity.^[226]

Latin America and the Caribbean is the region with the most restrictive anti-abortion laws in the world.^[227] Latin America and the Caribbean also has the second highest adolescent fertility rate in the world and as mentioned above Ecuador has the third highest rate of adolescent pregnancy in the region.^[228]

Ecuador’s maternal mortality rate in 2018 was reported to be 41.1 per 100,000 births.^[229] There were 221 maternal deaths that year, half of which were the deaths of adolescents and youth; 3 were girls under the age of 14.^[230] Inequalities persisted among poorer women, adolescents and youth, and in rural areas.^[231] Late maternal deaths increased from 21 cases in 2016 to 84 cases in 2018.^[232] In a recent report, the special rapporteur on the right to health recommended to Ecuador: “that the monitoring and evaluation system for maternal deaths, including late maternal deaths, be strengthened and efforts to implement maternal mortality reduction plans increased.”^[233]

Pregnant girls are particularly at risk. The WHO reports that adolescent pregnancies pose significant physical health risks, including death.^[234] Complications from pregnancy and childbirth are the leading cause of death for 15- to 19-year-old girls globally. The risk of death from pregnancy-related complications is even greater for girls below age 15.^[235] Girls are four times more likely than adult women to suffer fatal complications during pregnancy or birth, such as the presence of placental tumours, ectopic pregnancies, multiple pregnancies, and complications resulting from alterations in labour, among others.^[236]

Girls under 14 who give birth can face serious mental health consequences. In a study conducted by Planned Parenthood Global, a significant proportion of girls who give birth reported symptoms of depression, anxiety, and, particularly for those who have been sexually assaulted, post-traumatic stress. The Planned Parenthood Global researchers wrote: “91% of the cases reviewed in the medical records reflect ‘depressive symptoms’ and ‘adjustment disorder.’”^[237] In Ecuador, girls interviewed for the Planned Parenthood Global report expressed a range of emotions including fear, anger, neglect, terror, pain, guilt, sadness, anxiety, and depression.^[238]

Studies have also concluded that pregnant and parenting girls are often forced to drop out of school as a result of pregnancy and childcare.^[239] Other recent studies have found that teenage mothers are less likely to complete their education and training, and therefore, face restricted job opportunities, potentially reinforcing the cycle of deprivation and teenage pregnancy.^[240] The Ecuadorian Constitutional Court, in 2020, ruled in favor of a woman who brought suit after being dismissed from military training due to her pregnancy.^[241] In its decision, the court said imposing sanctions or  greater burdens on someone due to pregnancy constitutes a form of discrimination and that pregnancy, like sex, is  a protected category.^[242]

The Ecuadorian Constitutional Court’s judgment on decriminalizing abortion in cases of rape established that within a period of two months, the Ombudsperson’s Office must prepare and present “a draft law on abortion for cases of girls, adolescents and women [who are] victims of rape.”^[243] This law should ensure that all survivors of rape can access timely, confidential, and comprehensive health care, including safe abortion and post-abortion care. Given the unique physical and mental health risks for girls and adolescents pregnant from rape, the law should follow international standards articulated by the Committee on the Rights of the Child, which has urged governments to guarantee “the best interests of pregnant adolescents and ensure that their views are always heard and respected in abortion-related decisions.”^[244]

Abortion is a safe procedure if it is done properly using one of the methods recommended by the WHO.^[245] Safe abortions can be done using tablets (medical abortion)^[246] or a simple outpatient procedure.^[247] The WHO reports that medical abortion is safe and highly effective.^[248] It recommends a combination of the medications mifepristone and misoprostol to end a pregnancy. Where mifepristone is not available, the WHO recommends exclusive use of misoprostol as the second-best recommended scheme. Both medicines are on the WHO list of essential medicines. Mifepristone is not registered in Ecuador; misoprostol is listed in Ecuador as an essential and basic medicine for obstetric and gastroenteric use, which can be dispensed at all three levels of medical care.^[249] 

According to the WHO, complications from unsafe abortion include: “incomplete abortion (failure to remove or expel all of the pregnancy tissue from the uterus); hemorrhage (heavy bleeding); infection; uterine perforation (caused when the uterus is pierced by a sharp object); [and] damage to the genital tract and internal organs.”^[250]

Some Ecuadorian women and girls can afford to find skilled healthcare providers who will help them safely end a pregnancy even under this restrictive environment. But many, especially those from poor and rural communities, like Gladis, risk their health and lives to have unsafe abortions, often without any guidance from trained providers. Some suffer serious health complications, and even death, from unsafe abortion.

In 2009, Gladis, a woman identified in the case file as Indigenous, injected “perroffín,” a poison used to kill stray animals, into her abdomen in an effort to end an unwanted pregnancy. She arrived at an emergency room, where the doctors reported her to the police. Gladis was sentenced to two months in prison for abortion with consent.[251]

Although women seeking to terminate a pregnancy are increasingly able to obtain misoprostol to self-induce an abortion, they still could be at risk of negative health consequences if they cannot get the information they need to use the method safely and effectively.^[252] Ecuador’s criminalization of abortion increases this risk by making it difficult for women and girls to access this information.

Dr. A, an obstetrician, told Human Rights Watch, “[P]atients know very little. There is good and bad information online… Women buy the medicine but do not receive the adequate information and don't know what to do. The vast majority are scared.”^[253] Dr. A recalled a case of a patient who arrived at the emergency room with a heavy hemorrhage after introducing 15 pills into her vagina—a normal dose would be 3 pills taken one at a time at intervals of several hours.^[254] The woman’s life was at risk because of this overdose, which resulted from her not having accurate information about how to use the drug. “Most of the patients are with limited resources, particularly they are single women and students. The patients are most concerned that they do not have the economic resources to carry a pregnancy and then care for a child. Many already have children. Most of them have little education,” said Dr. A.^[255]

Lack of access to accurate and reliable information can also lead to some women and girls seeking emergency medical care because they do not know what to expect during a medical abortion. Without that information, they are alarmed by the effects of the medication. They then risk arrest and prosecution.

In 2010, Monica, age 17 and 4 weeks pregnant, took Cytotec because she “was pregnant and didn't know what to do.” Monica told doctors that she found information on the internet about how to use pills to induce abortion. She bought the pills for 30 dollars. An hour after taking them she began experiencing vaginal bleeding and contractions. Monica became frightened and called a friend who accompanied her to the hospital. The medical personnel at the hospital called the police, and Monica was charged with abortion with consent. Because she was under 18, she was sentenced to three months of orientation and family support in accordance with the Children and Youth Code.[256]

The fear of prosecution can also drive women and girls away from seeking medical care when they urgently need it if they experience complications from an unsafe abortion, or even when experiencing miscarriage, increasing their health risks. These barriers to access to abortion and proper post-abortion care seriously endanger the lives of women and girls. Rape victims may face severe psychological consequences if forced to carry a pregnancy to term. 

Despite the official approval of the Clinical Practice Guidelines for Therapeutic Abortion in December 2014,^[257] according to the health providers interviewed by Human Rights Watch, the guidelines have not been systematically implemented.^[258] The Ecuadorian health system has inconsistently and arbitrarily interpreted what constitutes a threat to a woman’s health. Often in practice, risks to a pregnant person’s mental health or social circumstances influencing physical or mental health are not considered sufficient to grant access to a legal abortion, contrary to what the guidelines state.^[259] The government has not provided any timeline for when it will be implemented. Medical professionals interviewed by Human Rights Watch said they believed that the guidelines, if properly implemented applying a broad and comprehensive interpretation of the concept of health from a human rights perspective, could significantly contribute to reducing maternal mortality and morbidity associated with unsafe abortion.^[260]

Cutting Women and Girls Off from Essential Health Care

Blocking access to safe and legal abortion has a devastating and often lifelong impact on women and girls who face an unwanted pregnancy. High rates of sexual violence paired with minimal access to sexual and reproductive health services mean that women and girls are frequently forced to carry unwanted pregnancies to term.

In 2014, Jessica, at age 18, had a medical abortion with the support of her friend Karla, also 18 years old. Jessica was bleeding and when the owners of the house she was at realized what was happening, they called the police. Jessica needed medical attention but instead she and Karla were immediately detained. Both were charged with abortion with consent and spent 17 days in prison before pleading guilty. After their plea, they were both sentenced to psychological treatment, regular reporting to the prosecutor's office, community work and payment of a fine.[261]

Unwanted pregnancies at early ages are particularly traumatic experiences. Pregnancies among girls under 14 in Ecuador are the result of rape as defined in Ecuador’s criminal code, frequently by family members or other men close to them.^[262] Very young adolescents and girls are less likely to have access to sexual and reproductive health services, including contraception and health information necessary to find comprehensive reproductive health services, including abortion, making them a particularly high-risk population.^[263]

In testimony submitted to the UN Human Rights Committee in March 2020, Johana* from Ecuador explained:

“When I was 8 years old... my mother told me to go feed the chickens... At that moment, my stepfather arrived... I cried and told him I wanted to leave, but he undressed me and raped me... He began to continue raping me and I only thought about dying... When I was 12 years old, I found out that I was pregnant… I never had my menstruation. I only thought I was getting fat, then my stepfather decided to take us out of school, and no one asked why we were not going. When I had a very big belly... my mother told me that I must be pregnant, and I told her angrily that I got pregnant by your husband... I knew I was pregnant because I had seen the animals and I knew what it was like... I went into labor and they took me to the health center... they wanted to do an examination, but I didn't want to take off my pants, the doctors insulted me, they told me ‘why did I open my legs!’ They sent me to take a bath and they put some things on me to tighten my belly, then I went to the bathroom, I fell asleep, I just wanted to die... I only remember that they said that the baby should have already been born and then they did a cesarean section... they brought me the baby and I turned around, I did not want to see her... the doctors grabbed my breast to breastfeed the baby, that was for 3 days.... When I was 14 years old, I got together with Pedro*. I lived with him for 9 years and had 2 more children. When I was 15 years old Norma* [Johana’s sister] arrived. Norma told me that my dad was raping her, and she stayed with me... we reported the rape..., we only found out that my dad died [several years later]. I got divorced... Now I live here taking care of pigs, but I live in peace. I would like to say that if you ever see a girl, don't leave her alone, it is easy to see if something happens to her, the silence, they keep quiet. I would like no girl to live what we lived.”^[264]

Girls who are forced into motherhood often drop out of school and suffer greater levels of violence and poverty. Forced motherhood in girls perpetuates cycles of discrimination and poverty.^[265] It has a negative impact on girls’ mental, physical, and social health and leaves them vulnerable to higher risks of maternal mortality, anxiety, depression, post-traumatic stress disorder, and suicide.^[266] In Ecuador, a 2015 study reviewed the medical records of 139 girls who were forced into motherhood before the age of 14 and found that over 90 percent of them showed “depressive symptoms” and “adjustment disorder.”^[267]

Human Rights Watch reviewed nine case files involving girls under the age of 18 who were prosecuted for having an abortion.^[268] In two of the nine cases, one of a 17-year-old girl and another of a 15-year-old girl, the defendants were initially charged as adults. Later in the process, seven cases were resolved through a suspended proceeding as provided for in the Children and Youth Code, introduced in 2014.^[269] Judges often imposed psychological therapy and “family support” in these cases. In the case of the 15-year-old girl, she was charged with homicide and spent four years and three months in a juvenile center.^[270] In the other case, where the girl was a 17-year-old, she was sentenced to three months of house arrest but did not have to serve any more time as she had already spent eighteen months in house arrest during trial.^[271]

Undermining Efforts to Fight Rape and Other Forms of Gender-Based Violence

Criminalizing abortion makes it more difficult for the government to effectively tackle the country’s alarming rates of violence against women. Rape has a serious impact on women’s health, and restricting abortion after such violence constitutes a failure to take into account the right of Ecuadorian women to access therapeutic abortion when their health is in danger, including their mental and social health. International experts have advised that denial of safe abortion for survivors of rape and incest may, depending on the circumstances, amount to torture or cruel, inhuman, or degrading treatment.^[272] The Committee against Torture (CAT), which monitors states’ compliance with the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture) has noted that the prohibition of abortion in cases of rape means that “women concerned are constantly reminded of the violation committed against them, which causes serious traumatic stress and carries a risk of long-lasting psychological problems.”^[273]

The recent ruling of the Ecuadorian Constitutional Court to decriminalize abortion in all cases of rape is an important step forward; the National Assembly should move quickly to comply with the judgement. Ecuador’s current denial of access to abortion for rape victims is a violation of the right to health.^[274] The current situation compounds harm already caused by the country’s pervasive rates of rape and other forms of gender-based violence. Ecuador has previously failed to comply with repeated recommendations from UN entities calling on it to decriminalize abortion in case of rape.^[275]

Sexual violence is likely to go unreported in Ecuador.^[276] Even when a report is filed, few cases lead to a conviction. According to Attorney General’s Office data obtained by civil society groups, only 17 percent of cases in which sexual violence against a girl was reported resulted in a conviction in Ecuador between 2016 and 2017.^[277] The abortion law as it currently stands serves as a disincentive for women and girls who undergo abortions or experience obstetric emergencies after being victimized to report the violence, because survivors are likely to fear that disclosing information about a rape will make clinic or hospital staff more likely to conclude that they illegally induced the abortions themselves. This makes detection of violence against women and girls more difficult and contributes to impunity for such violence.

Economic Costs of Criminalization

Ecuador also pays a high financial cost for criminalizing abortion. According to a study conducted by the Ministry of Public Health and the National Secretariat of Planning and Development of Ecuador in 2017, the country spends almost $5 million a year on care for complications related to unsafe abortion.^[278] According to some estimates, a legal abortion costs the state $160, while treating the consequences of an unsafe abortion costs the state $232.^[279] Ecuador loses $448 million a year due to unintended pregnancies.^[280]

In 2019, according to the Ecuadorian Ministry of Health, 21,939 women came to the Ecuadorian public health system seeking care for an abortion or miscarriage, including those requesting induced abortions, or requiring care for incomplete abortions.^[281] Forty-two percent (9,309) of those seeking this care were girls and young people under the age of 24.^[282] In 2017, a media report quoted the government as saying that abortions—19,737 that year—ranked as the second leading cause of female morbidity; while hospital admissions data show abortions ranking in the top 10 causes of female morbidity .^[283]

In countries where abortion is safe, legal, and accessible, women and girls facing unplanned pregnancies can freely seek confidential, professional medical advice and counseling about their options. Decriminalizing abortion does not just help women and girls access the procedure—it also gives them better support to make decisions, including the decision not to terminate a pregnancy. Pre-abortion counseling can uncover any undue pressure or coercion women may be experiencing from partners, parents, or other sources to terminate pregnancies, allowing providers to help patients to delay decision-making or receive additional counseling or referrals, as needed.^[284]

 

IV. International Legal Obligations

Authoritative interpretations of international law recognize that obtaining a safe and legal abortion is crucial to women’s effective enjoyment and exercise of their human rights, including rights to equality, life, health, physical integrity, the right to decide on the number and spacing of children, and to be free from cruel, inhuman, and degrading treatment.^[285]

Since the mid-1990s, the UN treaty bodies that monitor the implementation of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, and the Convention of the Rights of the Child have produced a significant body of jurisprudence regarding abortion in over 122 concluding observations concerning at least 93 countries.^[286] These treaty bodies have also issued general comments addressing reproductive rights and abortion.^[287] 

These bodies have frequently expressed concern about the relationship between restrictive abortion laws, unsafe abortions, and threats to women’s lives, health, and wellbeing in their commentaries. They have repeatedly recommended the review or amendment of punitive and restrictive abortion laws and have urged state parties on multiple occasions to legalize abortion, in particular when a pregnancy threatens the pregnant person’s life or health or is the result of rape.^[288]

International human rights law and relevant jurisprudence support the conclusion that decisions about abortion belong to a pregnant woman alone, without interference by the state or third parties. Any restrictions on abortion that unreasonably interfere with a woman’s exercise of her full range of human rights should be rejected. UN bodies and conferences have recognized that firmly established human rights are jeopardized and prejudiced by restrictive and punitive abortion laws and practices. Likewise, the special rapporteur on the right to health has stated that criminal laws penalizing and restricting induced abortion are “impermissible barriers to the realization of women’s right to health and must be eliminated.”^[289] 

The special rapporteur on the right to health has said that criminal and other legal restrictions on abortion and other areas of sexual and reproductive health are often discriminatory and may violate the right to health by restricting access to quality goods, services, and information:

They infringe human dignity by restricting the freedoms to which individuals are entitled under the right to health, particularly in respect of decision-making and bodily integrity. Moreover, the application of such laws as a means to achieving certain public health outcomes is often ineffective and disproportionate.

Realization of the right to health requires the removal of barriers that interfere with individual decision-making on health-related issues and with access to health services, education and information, in particular on health conditions that only affect women and girls. In cases where a barrier is created by a criminal law or other legal restriction, it is the obligation of the State to remove it. The removal of such laws and legal restrictions is not subject to resource constraints and can thus not be seen as requiring only progressive realization. Barriers arising from criminal laws and other laws and policies affecting sexual and reproductive health must therefore be immediately removed in order to ensure full enjoyment of the right to health.^[290]

With regard to Ecuador, in 2020 the special rapporteur on the right to health wrote:

The Special Rapporteur was informed that criminalization of women for abortion in the country [Ecuador] occurs primarily in cases of obstetric emergencies arising from an abortion or home birth, which are treated by the judicial system as abortion by consent, murder or wrongful death. Women who need health care after a miscarriage or who seek an abortion are allegedly reported to the authorities by the health-care personnel. In line with the recommendations of the Committee on the Elimination of Discrimination against Women, the Special Rapporteur calls on Ecuador to respect the obligation of confidentiality in the health-care system, adopt evidence-based protocols, develop human rights training for health-care providers on their obligations to provide legal abortions, particularly on the grounds of threats to life or physical and mental health, and to respect the privacy and confidentiality of women who use sexual and reproductive health services.^[291]

The special rapporteur on the right to health also expressed concern at violations of the right to sexual and reproductive health in Ecuador:

[I]ncluding the high rate of teenage pregnancies…; at the barriers to accessing abortion services; at insufficient access to modern methods of contraception and family planning; and at insufficient comprehensive sexual and reproductive education and the negative sociocultural patterns of adolescent sexuality and gender-based violence.^[292]

He continued:

[E]fforts to invest in the biomedical elements of health care to provide health-care services are not enough…Non-discrimination in the health-care system and beyond must become a reality…[T]he right to health should be promoted and protected, not only through access to health-care services, supplies and facilities, which should be available, affordable, appropriate and of good quality, but should also be realized through the design and implementation of cross-sectoral programmes that address socioeconomic, cultural and environmental factors. Such policies or programmes should be guided by a human rights-based approach with a strong emphasis on the principles of equality and non-discrimination, participation and empowerment, and accountability.”^[293]

In 2019, after Ecuador’s National Assembly voted not to decriminalize abortion in cases of rape, the special rapporteur on the right to health wrote:

Such a decision disproportionately exposes girls and women to potential time in jail and to extreme mental suffering that may lead to suicide. The decision of the National Assembly goes against all modern public health principles and casts doubt on whether there is the political will to improve the health of women and girls…Existing legislation should be reviewed to decriminalize abortion and guarantee the therapeutic interruption of pregnancy through access to services, at the least when the pregnancy is the result of rape or incest, in cases of fetal impairment and when the life and health of the mother are in danger.^[294]

International human rights law protects against arbitrary interference with the right to one's privacy and family,^[295] as well as the right of women to decide on the number and spacing of their children without discrimination.^[296] These rights can only be fully implemented where women have the right to decide when or if to carry a pregnancy to term without interference from the state.

The CEDAW Committee has often recommended that state parties review legislation prohibiting abortion to meet their obligation to eliminate discrimination against women.^[297] This concern is set out in detail in its General Recommendation No. 24 on women and health: “When possible, legislation criminalizing abortion could be amended to remove punitive provisions imposed on women who undergo abortion.”^[298]

Treaty bodies have made specific recommendations to Ecuador about its restrictive abortion laws. The Human Rights Committee (HRC),^[299] the Committee on Economic, Social and Cultural Rights (CESCR)^[300], and the CEDAW Committee^[301] have expressed concern about the criminalization of abortion in Ecuador and the lack of access to legal abortion services. They all regularly call for measures to ensure access to safe abortion. 

The Committee on the Rights of the Child has called on Ecuador to: “Ensure access of girls to sexual and reproductive health services, including therapeutic abortion and consider decriminalizing abortion, with particular attention to the age of the pregnant girl.”^[302]

During a 2019 mission to Ecuador, the UN special rapporteur on violence against women expressed concern regarding Ecuador having “one of the highest teenage pregnancy rates in the region, often as a result of rape or incest, a criminal justice system that… prohibited therapeutic abortion in cases of rape, incest or unviable pregnancies, and overly restrictive interpretations of the right to life and health exemptions.”^[303] The special rapporteur also urged Ecuador to free some 250 women who were reportedly being held on charges linked to having abortions. “This is contrary to international standards and must be urgently addressed,” she wrote.^[304]

Right to Life

Denial of access to safe, legal abortion puts the lives of women and girls at risk. International human rights bodies and experts have repeatedly stated that restrictive abortion laws contribute to maternal deaths from unsafe abortion and jeopardize the right to life. For instance, the HRC, which monitors states’ compliance with the ICCPR, has noted the relationship between restrictive abortion laws and threats to women’s and girls’ lives. It has frequently expressed concern about criminalization of abortion and has called for expanded access.^[305] Furthermore, it has explained that the right to life should not be understood in a restrictive manner.^[306] It has instructed states that when they report to the committee, they should provide information on measures to ensure that women do not have to undergo life-threatening, unsafe abortions.^[307]

In its most recent analysis of the right to life, the HRC has concluded that state regulation of abortion should not put the lives of women or girls at risk, subject them to ill-treatment, discriminate against them, arbitrarily interfere with their privacy, or lead them to resort to unsafe abortion. The committee has also observed that “States parties must provide safe, legal and effective access to abortion where the life and health of the pregnant woman or girl is at risk, or where carrying a pregnancy to term would cause the pregnant woman or girl substantial pain or suffering, most notably where the pregnancy is the result of rape or incest or where the pregnancy is not viable.”^[308]

The Inter-American Court of Human Rights in its ruling of Artavia Murillo vs. Costa Rica held that the embryo cannot be understood as a human being for the purposes of Article 4.1 of the American Convention.^[309] The Court concluded that in regulating abortion, the protection of prenatal life does not prevail over other rights.^[310] The Court noted that “it can be concluded from the words ‘in general’ that the protection of the right to life under this provision is not absolute, but rather gradual and incremental according to its development, since it is not an absolute and unconditional obligation, but entails understanding that exceptions to the general rule are admissible.”^[311] This means that the protection of other rights involved—such as, for example, women’s right to life—need to be considered.

Additionally, the Court recognized that the decision whether to become a parent forms part of the right to private life, and that personal autonomy, reproductive freedom, and physical and psychological integrity are interconnected.^[312] The Court’s ruling is a clear affirmation and recognition of women as rights holders whose privacy and autonomy, among other rights, must be respected. Thus, under this precedent, legislation in Latin America that bans abortion goes against this interpretation of article 4.1 because it seeks to protect the legal status of potential life absolutely, failing to recognize women’s rights to life, health, privacy, and autonomy.

When abortion is authorized under domestic law, as it is in particular situations in Ecuador, the HRC has called on states to guarantee unimpeded and timely access to those services, saying that states should “ensure the availability of medical facilities and guaranteed access to those facilities for legal abortion.”^[313] It has called on states to amend their legislation to ensure effective access to safe and legal abortion at a minimum in the circumstances identified in its general comment on the right to life.^[314]

The CEDAW Committee also regularly calls for measures to ensure access to safe abortion. For example, it calls for: training of medical personnel; ensuring that conscientious objection by health care personnel does not pose an obstacle for terminating a pregnancy; eliminating procedural obstacles that hinder access to legal abortion, including requirements for committee approval or judicial recognition of criminal acts in rape cases; adopting protocols on provision of legal abortion; raising awareness among women and providers about access to legal abortion; protecting medical confidentiality; and conducting campaigns to prevent abortion stigma.^[315]

Similarly, the UN Committee on the Rights of the Child, which monitors the implementation of the Convention on the Rights of the Child, has noted that “the risk of death and disease during the adolescent years is real, including from preventable causes such as … unsafe abortions” and urged states to “decriminalize abortion to ensure that girls have access to safe abortion and post-abortion services, review legislation with a view to guaranteeing the best interests of pregnant adolescents and ensure that their views are always heard and respected in abortion-related decisions.”^[316] The committee has expressed concern about the elevated risks of maternal mortality among adolescent mothers.^[317] It has explicitly called for decriminalization of abortion “in all circumstances” in many concluding observations.^[318]

Moreover, the CESCR, which monitors compliance with the ICESCR, has also said that states should ensure that abortion services can be accessed in practice, for example by adopting protocols on legal abortion, guaranteeing that conscientious objection laws are not an obstacle to abortion, and ensuring that health insurance covers abortion.^[319] It has urged states to remove penalties for women who seek abortion.^[320]

Regional human rights authorities have also raised concerns about restrictive abortion laws. The IACHR in a 2018 statement urged states “to adopt legislation designed to ensure that women can effectively exercise their sexual and reproductive rights, with the understanding that denying the voluntary interruption of pregnancy in certain circumstances constitutes a violation of the fundamental rights of women, girls, and female adolescents.”^[321] In 2017, the IACHR stated, “Denying access by women and girls to legal and safe abortion services or post-abortion care can cause prolonged and excessive physical and psychological suffering to many women, especially in cases involving risks to their health, unviability of the fetus, or pregnancies resulting from incest or rape. Without being able to effectively exercise their sexual and reproductive rights, women cannot realize their right to live free from violence and discrimination.”^[322] Similarly, in its 2019 report on “Violence and Discrimination against women, girls and adolescents,” the IACHR noted that the “the denial of legal abortions would constitute a violation of the fundamental rights for women, girls, and adolescents.”^[323]

In a statement on sexual and reproductive rights, the IACHR’s rapporteur on the rights of women criticized the fact that women in the region face “very significant obstacles in exercising their sexual and reproductive rights” and are forced to “continue pregnancies that put their lives at risk” due to restrictive abortion legislation.^[324] She and other regional and UN rapporteurs reiterated this concern in a joint statement that called on states to “remove punitive measures for women who undergo abortion, and at the very minimum, legalize abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the woman or the life of
the woman.”^[325]

Right to Health

The WHO has defined health as “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity” and stated it “is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.”^[326]

The right to health—including both physical and mental—is protected in numerous international human rights treaties.^[327] For example, the ICESCR guarantees everyone the right to the highest attainable standard of physical and mental health, and the CRC guarantees this right for children.^[328] CEDAW provides, “[S]tates Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning.”^[329]

The UN Office of the High Commissioner for Human Rights has stated that women’s sexual and reproductive health is related to multiple human rights, including the right to life, the right to be free from torture, the right to health, the right to privacy, the right to education, and the prohibition on discrimination.^[330] Moreover, sexual and reproductive health implies that “people are able to have a satisfying and safe sex life and that they have the capability to reproduce and the freedom to decide if, when, and how often to do so.”^[331]

International bodies have repeatedly stated that criminalization of or unreasonable restrictions on access to abortion violate the right to health. The CESCR has stated that, “States must reform laws that impede the exercise of the right to sexual and reproductive health. Examples include laws criminalizing abortion…”^[332]

The CESCR establishes in its General Comment 14 that the right to health “imposes three types or levels of obligations on state parties: the obligations to respect, protect and fulfill.”^[333] At the same time, the right includes a series of freedoms, such as the right to have control over one’s health and body, including with regard to sexual and reproductive freedom.^[334] The state has an obligation to respect this freedom.

The CESCR has also stated that “[t]he realization of women’s right to health requires the removal of all barriers interfering with access to health services, education and information, including in the area of sexual and reproductive health.”^[335]

The Committee on the Rights of the Child has warned of the danger of unsafe abortion to adolescent girls’ health. It has often urged states to decriminalize abortion in all circumstances, and to ensure that adolescent girls have access to safe abortions.^[336]

The CEDAW Committee has stated that “it is the duty of States parties to ensure women’s right to safe motherhood and emergency obstetric services and they should allocate to these services the maximum extent of available resources,” including treatment of complications resulting from unsafe abortions.^[337] It explained that “barriers to women’s access to appropriate health care include laws that criminalize medical procedures only needed by women and that punish women who undergo those procedures.”^[338]

Right to be Free from Cruel, Inhuman, or Degrading Treatment

The right to be free from torture and other cruel, inhuman or degrading treatment or punishment is protected by human rights treaties, including the ICCPR, Convention against Torture, and the American Convention on Human Rights.^[339] Torture and other ill-treatment are also prohibited under customary international law.^[340]

Criminalization and inaccessibility of abortion is incompatible with the right to freedom from torture and other cruel, inhuman, or degrading treatment or punishment. The CAT has said that criminalization of abortion with few exceptions may result in women experiencing severe pain and suffering if they are compelled to continue pregnancy. It has expressed concern at the severe physical and mental anguish and distress experienced by women and girls due to abortion restrictions.^[341] The committee has called on governments to “allow for legal exception to the prohibition of abortion in specific circumstances in which the continuation of pregnancy is likely to result in severe pain and suffering, such as when the pregnancy is the result of rape or incest or in cases of fatal fetal impairment.”^[342] It has also criticized restrictions on access to legal abortions in cases in which laws are unclear, abortions require third party authorizations, or physicians or clinics refuse to perform abortions on the basis of conscientious objection.^[343]

Similarly, the HRC has ruled in individual cases against Ireland, Peru, and Argentina that the governments violated the right to freedom from torture or other cruel, inhuman or degrading treatment by failing to ensure access to abortion services in these cases.^[344] It pointed out that this right relates not only to physical pain, but also to mental suffering.^[345]

The CEDAW Committee has also described criminalization of abortion and denial or delay of access to legal abortion as “forms of gender-based violence that, depending on the circumstances, may amount to torture or cruel, inhuman or degrading treatment.”^[346] Similarly, the CESCR has also said that denial of abortion “in certain circumstances can amount to torture or cruel, inhuman or degrading treatment.”^[347]

The UN special rapporteur on torture has said that “[h]ighly restrictive abortion laws that prohibit abortions even in cases of incest, rape or fetal impairment or to safeguard the life or health of the woman violate women’s right to be free from torture and ill-treatment.”^[348]

He continued:

The denial of safe abortions and subjecting women and girls to humiliating and judgmental attitudes in such contexts of extreme vulnerability and where timely health care is essential amount to torture or ill-treatment. States have an affirmative obligation to reform restrictive abortion legislation that perpetuates torture and ill-treatment by denying women safe access and care….^[349]

Furthermore, the Committee of Experts of the Follow-up Mechanism to the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women noted that laws that establish an absolute prohibition of abortion “perpetuate the exercise of violence against women, girls and adolescents…and violate the prohibition of torture and mistreatment.”^[350]

Rights to Nondiscrimination and Equality

The rights to nondiscrimination and equality are set forth in all major international human rights treaties,^[351] as well as the American Convention on Human Rights (American Convention).^[352] CEDAW prohibits discrimination against women in all spheres, including in the field of health care.

In a 2014 statement, the CEDAW Committee observed that “failure of a State party to provide services and the criminalization of some services that only women require is a violation of women's reproductive rights and constitutes discrimination against them.”^[353] Moreover, the Human Rights Committee has held that lack of availability of reproductive health information and services, including abortion, undermines women’s right to nondiscrimination.^[354]

The Inter-American Commission on Human Rights (IACHR) has expressed that limitations on accessing health services that are required only by women, including therapeutic abortion, generate inequalities between men and women with respect to the enjoyment of their rights.^[355] The CEDAW Committee has explicitly recognized that barriers faced by women in accessing medical care constitute discrimination^[356].

Women in Ecuador suffer discrimination when they are denied access to or hindered from accessing quality medical services to which they as women need.

Right to Privacy

The protection of the right to privacy is particularly relevant for and interconnected with the right to health, as noted by the CESCR.^[357] In addition, the CEDAW Committee has stated, in its General Comment 24, that for health care services to be considered acceptable for women, they must respect women’s dignity and guarantee their confidentiality.^[358]

Several international human rights bodies have urged states to ensure confidentiality in relation to a person’s health data and information.^[359] To satisfy the minimum essential levels of enjoyment of the right to sexual and reproductive health, one of the core state obligations is to ensure that privacy and confidentiality is respected when enforcing laws and policies against sexual violence.^[360] The non-observance of the confidential nature of information about patients can have serious consequences for the health of women, girls and adolescents, as it can dissuade them from obtaining post-abortion medical care and, consequently, negatively affect their health and wellbeing.^[361]

The IACHR has stated that professional confidentiality in the health care sector constitutes “a critical interest for sexual and reproductive health.”^[362] As noted by the special rapporteur on the right to health, a lack of confidentiality may deter individuals from seeking medical advice and treatment.^[363] At the same time, the CEDAW Committee has noted that a lack of medical confidentiality can particularly impact women, who may be less likely to seek medical care “for diseases of the genital tract, for contraception or for incomplete abortion and in cases where they have suffered sexual or physical violence.”^[364]

The CESCR has recommended governments ensure that the personal data of patients undergoing abortion remain confidential and has commented on the problem of women seeking health care for complications from unsafe abortions being reported to authorities.^[365] Likewise, the CAT has called for protection of privacy for women seeking medical care for complications related to abortion.^[366]

Rights of Persons Deprived of Liberty

When women and girls are deprived of liberty while awaiting trial or following a conviction for abortion-related crimes, they face abuse within jails and prisons because of discriminatory attitudes against people who have sought abortion. Holding women and girls in pretrial detention, when it is not a measure of last resort and failing to protect them from inhuman or abusive treatment in detention violates international norms protecting the rights of people to liberty and security, and the rights of people deprived of liberty.

Several international human rights treaties contain provisions on the rights of persons deprived of their liberty and conditions of detention.^[367] The HRC, the independent expert body that interprets the ICCPR, has stated that the right to life applies to “all human beings…including for persons suspected or convicted of even the most serious crimes.”^[368] The Convention against Torture enshrines the obligation of states to prevent, investigate and punish torture and cruel, inhuman or degrading treatment or punishment, especially in the treatment of persons under arrest, detention or imprisonment.^[369]

Right to Due Process

Article 9 of the ICCPR stipulates that “no one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”^[370] Article 14 of the treaty further guarantees the right to a fair trial by an impartial tribunal.^[371] Articles 7 and 8 of the American Convention on Human Rights also guarantee the rights to liberty and security and to a fair trial respectively. The right to fair trial includes the right to presumption of innocence and the right to silence or not to be compelled to testify against oneself.^[372]

Many of the case files Human Rights Watch reviewed for this report contained indications of serious violations of due process and fair trial rights, including the right against self-incrimination. In the majority of the cases reviewed by Human Rights Watch for this report, women and girls faced charges and often conviction not only for behavior that should not be criminalized but based on evidence that never should have been collected or accepted into evidence by the court. Abortion prosecutions in Ecuador rely heavily on statements provided and evidence collected by health care workers, in violation of their obligations under national and international laws protecting medical confidentiality.^[373]

Another form of evidence prosecutors often rely on, and courts routinely accept into evidence in cases of alleged unlawful abortion, is statements collected by police from defendants without the presence of counsel, often collected in hospitals in circumstances where the defendant is still experiencing a medical emergency and undergoing treatment. As in the cases of Soledad and Sara, many women were interrogated while still experiencing the effects of anesthesia. In the most extreme cases, access to continuing emergency medical treatment is conditioned on the woman or girl providing a statement. The manner in which these statements are collected and their use to incriminate the statement-givers also violates national and international norms.^[374] 

Under national and international standards, evidence collected in violation of the rights of the accused, including the right to silence and in circumstances of coercion or inhuman or degrading treatment, should be excluded from evidence.^[375] This standard is routinely violated in abortion prosecutions in Ecuador.

In some cases, requests by the defense for access to an expert witness were denied, preventing the defense from being able to exercise their right to present expert testimony on issues such as the cause of fetal death.^[376] Finally, the right to effective counsel was also compromised in some cases, with some of the attorneys assigned to represent women failing to present evidence, as illustrated in the Margarita case. When fair trial rights are violated, state parties have an obligation to provide effective judicial and administrative remedies.^[377]

Right to Freedom from Violence

The Convention of Belém do Pará established that women’s right to be free from violence includes violence “perpetrated or condoned by the state or its agents regardless of where it occurs.”^[378] It includes the right to be free from all forms of discrimination and “to be valued and educated free of stereotyped patterns of behavior and social and cultural practices based on concepts of inferiority or subordination.”^[379]

The CEDAW Committee has stated that “[g]ender-based violence is a form of discrimination that seriously inhibits women’s ability to enjoy rights and freedoms on a basis of equality with men.”^[380] The committee has also affirmed that violence against women endangers the health and lives of women.^[381] Further, the UN General Assembly has established that: “[v]iolence against women is rooted in historically unequal power relations between men and women. All forms of violence against women seriously violate and impair or nullify the enjoyment by women of all human rights and fundamental freedoms and have serious immediate and long-term implications for health, including sexual and reproductive health …”^[382]

Ecuador is failing in its obligation to take adequate measures to protect women and girls from violence. Ecuador’s criminalization of abortion is also leading medical professionals who should be focused on assisting women, to file criminal complaints against them. This exposes women to an even greater degree of violence, including obstetric violence. Taking women into custody suspected of having abortions while they are at the hospitals looking for health care, constitutes a form of violence against women. The same can be said of the violence and mistreatment that women accused or convicted of abortion-related crimes suffer in prison at the hands of guards and other inmates.

Adolescents’ and Girls’ Sexual and Reproductive Rights

The Committee on the Rights of the Child (CRC) has emphasized, “All adolescents should have access to free, confidential, adolescent-responsive and non-discriminatory sexual and reproductive health services, information, and education, available both on and in person including … safe abortion and post-abortion services.”^[383] It has recommended that governments ensure that children have access to confidential medical counsel and assistance without parental consent, including for reproductive health services.^[384] It has specifically called for confidential access for adolescent girls to legal abortions.^[385] The special rapporteur on the right to health has also strongly affirmed the importance of adolescents’ sexual and reproductive rights, urging states to strengthen laws, policies and practices to respect, protect, and fulfill those rights.^[386] The special rapporteur on the right to health further recognizes parental consent and notification requirements as a barrier to health services for adolescents, as they “make adolescents reluctant to access needed services so as to avoid seeking parental consent, which may result in rejection, stigmatization, hostility or even violence.”^[387] These normative developments reinforce the CEDAW Committee’s recognition that parental authorization requirements constitute a barrier to health services.^[388]

Children have a right to freely express their views in all matters affecting them and, in accordance with children’s age and maturity, their views should be given due weight. Therefore, it is crucial to take into account the right to be heard when interpreting and implementing all other rights.^[389] In the context of decisions about abortion, the CRC has affirmed that pregnant adolescents’ views should always be respected.^[390]

Guaranteeing all adolescents and girls the right to make autonomous decisions about their sexual and reproductive health and rights is a critical component of the right to equality and nondiscrimination, due to the disproportionate impact this has on girls. Treaty bodies recognize that restrictive laws on sexual and reproductive health services—such as laws restricting the legality of specific services and requiring third-party authorization—violate the right to nondiscrimination.^[391]

“Approximately 15 million adolescent girls (aged 15 to 19) worldwide have experienced forced sex at some point in their life.”^[392] In most countries, adolescents and girls are most at risk of forced sex by a member close to the family or social group.^[393] More than 1.1 million girls suffer sexual violence in Latin America and the Caribbean.^[394] Most pregnancies in young girls are the result of sexual violence. In most cases, the abusers are their own relatives or people close to them.

Sexual violence itself has devastating consequences on the lives of girls. When that sexual violence leads to pregnancy the effects cascade, compounding the trauma girls already face.^[395]

Due to either criminalizing abortion, until April 2021, in most cases of rape or the presence of unlawful barriers to access therapeutic abortions, many girls in Ecuador are denied an abortion following sexual violence.^[396]  When implementing the recent ruling of the Ecuadorian Constitutional Court on legal abortions in all cases of rape, the Ecuadorian authorities should guarantee comprehensive access to sexual and reproductive health services, including legal abortion, taking into consideration not only the court’s decision but also these international human rights standards.

Right to Comprehensive Sexuality Education

The Committee on Economic, Social and Cultural Rights notes the interdependence of the realization of the right to sexual and reproductive health, with the right to education and the right to non-discrimination and equality between men and women, which when combined entail a “right to education on sexuality and reproduction.”^[397] The special rapporteur on education has stated “protection of the human right to comprehensive sexual education is especially important in ensuring the enjoyment of women’s right to live free of violence and gender discrimination, given the historically unequal power relations between men and women.”^[398]

The Inter-American Court of Human Rights has also recognized that the right to adequate sexuality education is an integral part of the right to education.^[399] In 2018, Ecuador’s Constitutional Court ruled that children have the right to make decisions about their lives and their sexual and reproductive rights, and to receive guidance and tools to make informed and responsible decisions freely. The court held that the state must intervene when children lack access to this information.^[400] In 2021, the court ruled that an important preventive measure to reduce unintended pregnancies is “strengthening sex education and developing comprehensive sexual and reproductive health policies, eliminating gender stereotypes related to claims of women's inferiority.”^[401]

Unequal access to comprehensive sexual and reproductive health services amounts to discrimination, according to the Committee on the Rights of the Child.^[402] The committee has stated that:

Age-appropriate, comprehensive and inclusive sexual and reproductive health education, based on scientific evidence and human rights standards and developed with adolescents, should be part of the mandatory school curriculum and reach out-of-school adolescents. Attention should be given to gender equality, sexual diversity, sexual and reproductive health rights, responsible parenthood and sexual behaviour and violence prevention, as well as to preventing early pregnancy and sexually transmitted infections.^[403]

Right to Access to Information

The right to freedom of expression encompasses the right to access to information, under both the ICCPR and the American Convention on Human Rights.^[404] The HRC has noted that “to give effect to the right of access to information, States parties should proactively put in the public domain Government information of public interest. States parties should make every effort to ensure easy, prompt, effective and practical access to such information.”^[405]

The OAS special rapporteur on freedom of expression has stated that this right establishes that states party have the obligation to effectively provide the most complete, clear, accessible, and updated information that is required to exercise other rights such as the right to health.^[406] A key component of the right to health is access to health care which is entwined with the right to information.^[407]

To guarantee people can make informed and truly free decisions, the right to access to information includes the right of the recipient to receive timely, complete, quality, truthful, and impartial information that is clearly distinguished from personal opinions or beliefs.^[408] The Inter-American Court of Human Rights has found that the rights of privacy, liberty and personal integrity not only protect decision-making about reproductive health, but also require access to health services that actualize rights relating to sexuality and reproduction.^[409]

The Inter-American Commission on Human Rights wrote that:

To guarantee access to information on reproductive matters, the OAS Member States must refrain from censoring, withholding, or misrepresenting information. Moreover, pursuant to the respect and guarantee obligations imposed by the IACHR, and under the principles of equality and non‐discrimination, the States must guarantee that women have access to information that is timely, complete, accessible, reliable, and proactive on reproductive matters; this should include information about the sexual and reproductive health services that are legally available.^[410]

Part of the stigma, violence, and discrimination suffered by women and girls described in this report stems from the violation of their rights to comprehensive, clear, accessible, and updated information on reproductive health, reproductive rights, and healthcare options, and on the rights of and services available to women and girls experiencing violence. As part of respecting the right to access to information states should collect disaggregated data to promote appropriate public policies; authorities are failing to do so in Ecuador.^[411]

 

Recommendations

To Presidency

• Work with relevant authorities to guarantee access to legal abortion for anyone eligible under the current law, including all survivors of rape, as per the recent ruling of the Ecuadorian Constitutional Court, and in accordance with Ecuador’s international obligations and current recommendations from different UN bodies.
• Ensure an open debate takes place with meaningful participation from all actors, including health experts and women’s, disabilities, Indigenous, and LGBT groups, to move toward the decriminalization of abortion in accordance with international human rights standards.
• Ensure public information is disseminated nationwide, particularly to women and girls and to national and local authorities and health professionals, clarifying the circumstances under which abortion is currently legal, including in light of the recent decision of the Ecuadorian Constitutional Court. Public messaging should clearly state the government’s obligation to provide abortion and post-abortion services and detail where these services can be obtained.

To the National Assembly

• Fully comply with the order of the Ecuadorian Constitutional Court to adopt legislation ensuring access to abortion for all survivors of rape within six months of the submission of the Ombudsperson’s Office bill.
• Reform the Criminal Code to comply with the Constitution and Ecuador’s international human rights obligations by allowing all pregnant people access to legal, voluntary, and safe abortions in all circumstances.
• Issue legislation reiterating the constitutional requirements of medical confidentiality, and specifying that in cases of obstetric emergencies related to abortions there is no duty to report.
• Recognize the principle of non-retrogression with respect to the right to sexual and reproductive health when issuing legislation that guarantees access to abortion in all cases of rape to comply with the Ecuadorian Constitution and international human rights standards. If new legislation sets a limit involving gestational age or requires authorization by a legal representative in cases involving girls or adolescents, such provisions should be drafted so that they do not constitute a barrier to abortion access in practice or represent a retrogression in access for a pregnant person. In no case should new laws or regulations adopted in response to the Constitutional Court decision or otherwise be regressive compared to current legislation.
• Ensure that the regulatory framework for all cases of rape includes the following:
  • Harm reduction counseling for all survivors of rape on the safety and risk of different measures used to induce abortion and information on when and how to access post-abortion care for women and girls who may wish to terminate pregnancies outside of the health system;
  • Guidelines for attending to patients with incomplete abortions or post-abortion complications in a prompt, neutral, professional, rights-respecting, and non-discriminatory manner, including a specific requirement that patients not be denied pain management as “punishment;”
  • Routine post-delivery and post-abortion contraceptive counseling to ensure all women and girls have comprehensive and accurate information about how to prevent pregnancy;
  • Referrals to psychosocial support services for all pregnant girls and adolescents and survivors of rape.
• Ensure that the regulatory framework for all cases of rape does not include:
  • The duty to report sexual violence cases. This should always be an option for survivors, with the survivor’s permission and should not become a requirement to guarantee access to safe and legal abortion services. A poorly executed criminal investigation, particularly in the case of incest or rape, could put a survivor at greater risk—including because the pregnant person had an abortion.
  • Conscientious objection. However, if Ecuador opts to provide for conscientious objection in health care, it must be exercisable only by individual healthcare providers. It must be provided for in law and its exercise dependent on the existence of effective referral mechanisms so that it is not a barrier to accessing lawfully available healthcare services. The exercise of conscientious objection should not be permitted in emergency and other urgent care situations. Nor should it cause distress to those seeking medical care. The law should set out clearly who working in healthcare services is eligible to invoke conscientious objection and require them to declare in advance, in writing, the nature and basis of the objection and the particular procedures or treatments to which it relates. The law should limit the scope of persons eligible and the functions to which they can object to those involved in or connected to the performance of procedures directly on individuals seeking the treatment. The law should also obligate a healthcare provider invoking conscientious objection to provide all necessary information to ensure that the individual refused service can readily obtain that service. The Ecuadorian government should also establish oversight and monitoring mechanisms to ensure that in practice invocation of conscientious objection does not impede or prevent individuals securing access to lawful healthcare services.
• Consider broadening the range of practitioners qualified to perform abortions to include nursing assistants, nurses, midwives, and non-clinical doctors, among others.^[412]
• Comply with the recommendations of the United Nations Special Rapporteur on Health that Ecuador should ensure that conscientious objection exemptions be “well-defined in scope and well-regulated in use and that referrals and alternative services be available in cases where the objection is raised by a service provider”.

To the Ministry of Health

• Ensure that any health institution that may be called upon to perform an abortion or provide post-abortion care implements the Clinical Practice Guidelines for Therapeutic Abortion as recommended by CEDAW in 2015 and has sufficient qualified and willing staff to guarantee, on a permanent basis, the exercise of the rights to reproductive freedom conferred by law, and require health institutions to demonstrate this capability as part of quality assurance monitoring process.
• Instruct relevant government bodies that the existing provision permitting abortion in cases where the pregnant person’s life or health is in danger include cases where the person faces not just physical risk but risk to their mental health, including as a result of rape, and to keep and share publicly data showing numbers of cases and circumstances in which abortions are authorized.
• Consider eliminating the possibility for individuals working in public and private health care facilities to invoke conscientious objection to refuse to perform abortion.
• So long as the possibility to invoke conscientious objection to refuse services exists, ensure both by law and in practice its invocation does not impose burdens or delays in accessing legal abortion services. Prohibit its exercise in emergency or other urgent care situations, and in any situation where a facility does not have in place an effective referral system to guarantee the person can and does have access to abortion services in another near facility in a timely manner.
• “Institutional conscientious objection” should never be allowed. Require that all health facilities have sufficient willing, trained health professionals available to carry out abortion services in a timely manner when needed, and that they have a system in place to demonstrate that this is the case in practice. For example, to prevent health professionals arbitrarily invoking conscientious objection so that access could be denied, facilities should require providers to declare in advance if they intend to invoke conscientious objection to abortion services and only those who have made an advance declaration may invoke it. Develop affirmative provincial and municipal measures to increase the number of health personnel available to perform abortions, in places they are lacking.
• Ensure that all hospital directors, health professionals, and health system personnel receive training on relevant laws, regulations, guidelines and rulings on legal abortion and reproductive health from a comprehensive health perspective, including the recent ruling of the Ecuadorian Constitutional Court decriminalizing abortion in all cases of rape.
• Provide training for all healthcare professionals in accordance with WHO standards to ensure high-quality health care for all pregnant individuals who seek a medical and surgical abortion as well as training on the provisions of the law regarding their duty to respect medical confidentiality, including in cases of obstetric emergency. Work with provincial governments to ensure such training in all provinces.
• Establish an effective system to inform patients of their right to confidentiality and to report violations of these rights, and their right to access legal abortion and other sexual and reproductive health care services, so patients can make informed decisions.
• Conduct disciplinary investigations when allegations are made of violations of medical confidentiality and impose sanctions, including withdrawing the right to practice, for healthcare professionals found to have violated medical confidentiality, that breach confidentiality within the public health care system.
• Guarantee safe abortion services at various levels of health care as established at the Clinical Practice Guidelines for Therapeutic Abortion and, following World Health Organization recommendations, consider broadening the range of practitioners qualified to perform abortions to include nursing assistants, nurses, midwives, non-clinical doctors, among others as well as telemedicine.^[413]
• Establish an effective system to inform patients of their right to confidentiality and permit them to report violations of this rights.
• Ensure there is sufficient funding for: training of medical and judicial personnel on the right to abortion from a comprehensive health perspective and patient confidentiality rights; provision of necessary levels of sexual and reproductive health services including abortion; and enhanced comprehensive sexuality education.
• Ensure public information is disseminated nationwide to the public, particularly to women and girls, including through provincial and municipal level facilities, and to all health professionals, explaining the circumstances under which pregnant people have the right to request a legal abortion under the therapeutic exception, clearly stating the government’s obligation to provide abortion and post-abortion services, and detailing where people can access abortion services.
• Ensure that all public health facilities, regardless of their level of care, guarantees access to legal abortion services, and have referral systems in place to avoid delays that hamper prompt access to medical care.
• Conduct research on the sexual and reproductive health needs of pregnant people in Ecuador, to identify factors contributing to unintended pregnancies. Investigate barriers in access to, and consistent use of, the contraceptive methods provided by the National Health System, including long-active reversible contraceptives and voluntary (such as intrauterine devices) sterilization.
• Ensure health centers do not stigmatize sexually active adolescents, and that they are staffed with medical personnel qualified to provide confidential and comprehensive adolescent health services.
• Strengthen services for pregnant people facing sexual violence, domestic violence, and other forms of abuse. Ensure links between services for survivors of violence and medical providers, so that survivors of abuse can easily access specialized medical care. Ensure that medical providers consistently refer patients they know, or suspect, are experiencing abuse to comprehensive, supportive services. Ensure survivors of sexual violence get access to therapeutic abortion services.
• Ensure that all health care and services provided to persons with disabilities are based on the free and informed consent of the individual concerned.
• Collect and publish data showing the social and economic costs of maternal mortality and morbidity related to illegal abortion in Ecuador or assist other government ministries to do so.
• Ensure the availability of necessary supplies to perform both medical and surgical abortions as required by law in all public health institutions nationwide.
• Develop technical training for safe abortion practices with the best technical standards and work with regional and provincial governments to implement training in all provinces.
• Promote the approval of all drugs that are nationally and internationally recognized as the best standard for the provision of safe medical abortions, as recommended by the WHO, particularly Mifepristone, which is currently unavailable in Ecuador.
• Ensure that barriers to girls’ and women’s sexual and reproductive rights are removed, including by:
  • Providing sexual and reproductive health information, services, and supplies.
  • Information, education, counseling, and services should be accessible for people with all types of disabilities, including in a variety of formats, such as braille, audio, digital, video, sign language, and easy-to-read. 
  • Adopting comprehensive, age-appropriate, and scientifically accurate sexuality education and ensuring it is a compulsory, assessment-based subject. 
  • Providing quality family planning counseling and modern contraceptive methods, including emergency contraception, through increased budgetary allocations and expenditure of public funding.

• Strengthen programs in ancestral medicine and work on intercultural health policies for the training, recognition and certification of Indigenous midwives. Enhance the participation of Indigenous midwives in the national health system, so that traditional systems of medicine can be fully recognized, and ensure that planned births outside hospitals, assisted by Indigenous midwives, are an affordable and accessible option. Ensure that information in Spanish and Indigenous languages is inclusive of the concerns and practices of Indigenous communities.
• Promote the approval of all drugs that are nationally and internationally recognized as the best standard for the provision of safe medical abortions, as recommended by the WHO, particularly Mifepristone, which is currently unavailable in Ecuador.

To the Judiciary Council

• Develop and strengthen trainings for justice sector officials regarding the right to access abortion from a comprehensive health perspective and the obligation of health care professionals to protect patient confidentiality. It will be crucial that these trainings aim to eliminate the use of negative gender stereotypes that currently are allowing the prosecution of women for actions related to their reproduction and perpetuating the impunity for crimes involving sexual violence where the victim is identified as "responsible" for the crimes she suffered.
• Remind and require courts to exclude from evidence information obtained in violation of medical confidentiality or through the violation of other constitutional rights as well as non-scientific evidence such as the floating lung test.
• Take steps to improve the justice system response to gender-based violence, including sexual violence, and ensure that any time allegations of gender-based violence arise in an abortion case those allegations are investigated and, as appropriate, prosecuted.
• Regularly report the number of prosecutions for abortion.
• Train court staff in cultural competence and provide resources to facilitate cultural sensitivity and ensure fair trial rights for Indigenous people who are subject to trials. At a minimum this should include guaranteeing access to an interpreter in all judicial proceedings.

To the Chief of Police

• Adopt policies that prohibit arrests or interviewing of women or girls while they are receiving emergency treatment or are in a healthcare facility in connection with alleged consensual abortions.
• Train officers in gender sensitivity, including about gender-based violence, and ensure that they take gender into account in investigations and decisions.
• Discipline law enforcement officials who encourage or pressure health care professionals to violate patient confidentiality.

To the Attorney General’s Office

• Adopting a policy that prohibits pretrial detention of women who are receiving emergency treatment or are in a health care facility in connection with an alleged consensual abortion.
• Instruct prosecutors, in assessing all cases of alleged consensual abortion, to apply the “opportunity principle” so as not to press charges.

• Adopt a policy barring prosecutor from using as evidence information obtained in violation of patients’ right to medical confidentiality.
• Ensure that the abortion investigations are conducted by the gender unit of the Attorney General Office.
• Train staff in gender sensitivity, including about gender-based violence, and ensure that they take gender into account when handling cases.
• Train staff on cultural sensitivity and adopt a policy on ensuring cultural sensitivity including ensuring that an interpreter is provided in all meetings and proceedings.
• Investigate and, where appropriate, prosecute law enforcement officials who encourage or pressure health care professionals to violate patient confidentiality.

To the Public Defender’s Office

Improve public defender representation in cases of alleged abortion-related crimes through training, reduced caseloads, and complaint mechanisms.

To the Ministry of Health, Ministry of Education, and the Ministry of Economic and Social Inclusion

• Ensure implementation of the Inter-American Court of Human Rights’ decision in the case of Paola Guzmán Albarracín v Ecuador, including by establishing a coordination mechanism among the Ministry of Education, the Ministry of Social Inclusion, Secretary of Human Rights and Attorney General’s Office, which should include:
  • Regularly collect, and publish on the Ministry of Health Website, data on school-related cases of sexual violence, child pregnancy and abortion.
  • Adopt age-appropriate comprehensive sexuality education and ensure it is a mandatory subject that is accessible to all students.

To Donors and United Nations Agencies

• Urge Ecuador to remove all criminal penalties for consensual abortion and to ensure that pregnant people have safe and legal access to abortion as an essential health care service.
• Encourage Ecuador to fulfill their obligation under international law regarding sexual and reproductive rights.
• Eliminate all restrictions on eligibility for and use of overseas development assistance that serve to limit the exercise of sexual and reproductive rights.

Advocate for the government of Ecuador to implement the recommendations above as well as all recommendations to Ecuador from UN entities regarding sexual and reproductive rights and support it in doing so.

 

Acknowledgments

This report was researched and written by Ximena Casas, Americas researcher at the Women’s Rights Division. Dominique Riofrio, a consultant with the Women’s Rights Division, conducted the preliminary research, including gathering the case files from 2009-2019. It was reviewed and edited by: Heather Barr, interim women’s rights co-director; Amanda Klasing, interim women’s rights co-director, and Danielle Haas, Senior Editor in the Program Office. Brian Root, Senior Quantitative Analyst, Elin Martinez and Margaret Wurth, senior children’s rights researchers, Tamara Taraciuk Broner, Acting Deputy Director from the Americas Division, Martina Rapido Ragozzino, Research Assistant from the Americas Division, Cristian González Cabrera, Researcher in the LGBT Program, and Carlos Rios-Espinosa, Senior Researcher and Advocate, Disabilities Rights Division reviewed it (specialists). Tom Porteous, deputy program director, provided program review, and Maria McFarland Sánchez-Moreno and Aisling Reidy, senior legal advisors, provided legal review.

Women’s Rights Division Senior Coordinator Susanné Bergsten and Senior Coordinator Erika Nguyen contributed to the report production. It was translated into Spanish by Gabriela Haymes.

Human Rights Watch would like to thank the numerous individuals who contributed to this report, including health professionals and networks of women’s rights activists who have been providing support to women prosecuted for abortion and struggling to obtain access to legal abortions in Ecuador and advocating for legal reforms to increase such access. We would like to specially recognize the support provided by Surkuna as our main partner as we researched and wrote the report.  We would like also to thank the support and guidance provided by Fundación Desafio, CEPRODEG, RED NACIONAL de Casas de Acogida de Ecuador, El Churo, Wambra, La Periodica, Cepam Guayaquil, Sendas, and the medical personnel who took the time to talk with us and follow up on our questions during the challenging Covid-19 pandemic. Finally, we would like to thank the technical advice provided by the O’Neill Institute, Planned Parenthood Global, and the Center for Reproductive Rights.

Human Rights Watch is deeply grateful to the survivors and health care professionals, who despite often incredibly difficult circumstances, shared their experiences with us.