I, too, could have gone to jail
Women take part in a protest to demand the approval of an abortion law after lawmakers rejected it, in Quito, Ecuador September 28, 2019. The banner reads “Together for our rights to decide.” Photo by REUTERS/Daniel Tapia
33 Ecuadorian women have been imprisoned for having abortions since 2009
Editor’s Note: Click here to read this article in Spanish.
“Ask me. I was a victim of violence. I can tell you what I feel. I can describe the pain of my body and the anguish of my being. I can tell you that I am no longer the same person when I look in the mirror. That I haven’t slept since that night. That the fear made my legs go numb. That my soul shattered into a million pieces. That my womb did not want to feel or to beat.”
Jessica Jaramillo
Jessica Jaramillo opened her testimony before the National Assembly of Ecuador in 2017 with these powerful words. They became part of the struggle for reproductive rights of Ecuadorian women.
Jaramillo, a constitutional lawyer, has devoted herself to fighting for victims of gender violence since she was raped by two men when she was 30 years old. The charges she filed remained forgotten in a prosecutor's drawer. Only recently, after four years, investigations into the assault against her finally began. Jessica’s story is also an example of how the system is failing women twice. Public health protocols that allow rape victims access to morning after pills to prevent pregnancies also failed her. When Jessica requested that assistance, there were no pills available.
The year Jaramillo addressed the National Assembly, 62 women in Ecuador faced charges for having an abortion. They were criminalized for not delivering living babies. Some cases involved premature births, while other women suffered miscarriages. The rest had terminated unwanted pregnancies. In Ecuador, abortion carries a two-year jail sentence. Thirty-three Ecuadorian women were imprisoned for abortion between 2009 and 2019, according to Human Rights Watch.
The womb of a woman who has been raped does not want to beat or to feel. To force a rape victim to give birth is torture. Yet it's usually not the rapists who go to jail, but the women who choose not to carry the children of their abusers.
Illustration by Xavier Bonilla, Ecuadorian cartoonist.
Ecuador has one of the highest rates of teen pregnancy in the region, behind only Nicaragua and the Dominican Republic. Ecuador’s new Secretariat of Human Rights, Bernarda Ordóñez, says that every year “more than 3,000 girls under the age of 14 become mothers as a result of rape.”
According to official statistics, in 2020, four 10-year-old Ecuadorian girls gave birth. Another 10 girls became mothers at age 11, and 43 more at age 12. A total of 338 13-year-olds also bore children, while 1,236 did so when they were 14. And at least 3,269 quinceañeras, wombs heavy with children, did not celebrate their 15th birthdays with coming-of-age parties. From that age up, the numbers double.
No one can tell me all these girls chose to become mothers. A perverse system that until April 2021 denied them medical care forced them to grow up, to put their own lives at risk and to go through the torture of childbirth. That’s because the legal system, as depicted by Bonil’s cartoon at the top of this article, warned them “shame on you if you decide to have an abortion. You’ll end up in jail.” This is what happened to Lucía, whose real name we have changed for her protection.
“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 … Lucia’s rapist was never arrested or charged.” Human Rights Watch: Why Do They Want to Make Me Suffer Again? The Impact of Abortion Prosecutions in Ecuador.
Human Rights Watch: Why Do They Want to Make Me Suffer Again? The Impact of Abortion Prosecutions in Ecuador.
A discriminatory and patriarchal tutelage
In many other cases, Ecuador’s legal system is not as severe in punishing girls who have undergone abortions. However, Ecuadorian jurisprudence is plagued with sentences that send these girls to “educate themselves” or “reflect” in child care centers like daycares and orphanages, not to help them, but to teach them how to be good mothers. “Imagine that a girl is raped, and that with the help of her mother or on her own, she has an abortion. It turns out that the message she receives is that she is a delinquent, that she has sinned, that if she were an adult she’d be in jail,” an indignant Virginia Gómez de la Torre told me. She’s an activist who has spent decades fighting for reproductive rights through the organization Desafío in Ecuador.
Gaby, whose name we have also withheld to avoid adding to the stigma she and her family already bear, had an experience similar to Lucía’s. Gaby is 36. She hails from the coast of Ecuador. She had plans to return to the countryside with her daughters, ages 6 and 8, once her third child was born, in order to escape an abusive relationship. But in 2017, six months into her pregnancy, she gave birth prematurely in the bathroom of her home, where she passed out. Bleeding, she was taken to the hospital. Before receiving care for her obstetric emergency, she was interrogated. Before she had a chance to recover, and was still wearing a hospital gown, she was arrested and accused of murder.
In the spirit of self-improvement, Gaby is studying to earn her high school diploma behind bars, where she has been for the last four years. Her initial, 22-year sentence for murder was reduced to 14 years thanks to the intervention of an organization called Surkuna. Mayra Tirira, Gaby’s lawyer, told me that her case, like many others, was marred by corruption, and that the prosecution showed no mercy: “She told us that the prosecutor asked for $5,000 to dismiss the process.”
She will be able to embrace her daughters again as a free woman when the younger of the two is 20.
The womb of a woman who has been raped does not want to beat or to feel. To force a rape victim to give birth is torture. Yet it's usually not the rapists who go to jail, but the women who choose not to carry the children of their abusers.
Since 2014, more health care providers have deemed it their obligation to report possible abortions by women who sought care during emergencies. Instead of physician-patient privilege, medical records speak of examinations performed without consent, inculpatory questioning by inquisitors in white robes and abusive moralizing. In that time, 73% of criminal abortion trials started with a report from medical personnel. In almost every case, police interrogated the women without a lawyer present. Women self incriminated out of fear of not receiving medical attention. No healthcare professional has been prosecuted for violating the confidentiality they owe patients.
Tweet from an activist decrying the existence of agents in Ecuador’s national police force who specialize in children and adolescents: “A 16-year-old teen arrives at HDGC hospital in Calderón and receives care for an abortion in progress, at the moment she is still unstable and recovering, yet DINAPEN agents are waiting to bring her before the authorities.”
But the criminalization of abortion does not affect all women equally. “It has a face and a class, an ethnicity and an origin,” said Ana Vera, director of Surkuna. “Marginalized women are the ones facing legal charges.” Ecuador is home to 18 different indigenous groups and 14 native tongues are spoken. Yet in defiance of their rights, no one speaks to indigenous women involved in legal processes in their native languages, nor does anyone explain or translate procedures or documents that they sign.
This is what happened to Abigail, a young Kichwa woman from Ecuador’s mountain region whose plight was shared on social media with the hashtag #JusticiaParaAbigail. Her lawyers celebrate that the process was nullified on August 20. The justice system agreed to review her case which, despite being full of inconsistencies, has forced her to travel from her community to the prosecutor’s office in Ibarra, a city in the province of Imbabura, every two weeks for the last four years as an alternative to prison for abortion.
Low-income women with minimal education tend to suffer the most under the patriarcal tutelage of doctors and judges. That system is compounded by a machismo that permeates many indigenous communities, and extreme gender violence that they are exposed to, especially in the Amazonian region. The oil and lumber industries foster an additional threat from single men seeking comfort women. This results in sexual violence and women’s bodies being considered disposible. Morona Santiago, a province in the Ecuadorian Amazonia that accounts for 1% of the country’s population, is home to 11% of the nation’s criminal abortion cases. These women do not have access to education or health care, yet are subject to the harshest punishments under the law.
Almost three-quarters of criminal abortion trials started with a report from medical personnel. In almost every case, police interrogated the women without a lawyer present. Women self incriminated out of fear of not receiving medical attention. No healthcare professional has been prosecuted for violating the confidentiality they owe patients.
When women decide to end a pregnancy, we fight our own internal battles. The last thing we think about in this struggle is looking up the penal code. While writing this essay, it occurred to me many times that I could have gone to jail when I was 24 and was just beginning my journalism career as a reporter on Ecuadorian television. Prosecutors, judges and wardens did not factor into my decision. I had the support of my partner and the resources to pay a doctor, who performed a clandestine curettage without asking my name and forbid me to knock on his door a second time if I suffered any complications after swallowing the heap of antibiotics he prescribed.
In April 2021, Ecuador's Constitutional Court eliminated distinctions that sanctimonious legislatures had written into the penal code. Previously, abortion was only allowed in the case of rape involving a victim with “dementia” or if the mother’s health was at risk. The right has now been extended to any woman who has been the victim of rape, but over the next six months, it will be up to the Assembly to determine the details. The devil is in those details. Organizations fighting for reproductive rights keep a close watch on the time that a woman has to decide to have an abortion, making sure it is at least until the 22nd week.
If this change happens, Ecuador will have taken a step forward and moved closer with its legislation to countries like Uruguay, Cuba, Puerto Rico and the Guianas, which permit abortions without conditions. In Mexico, where each state has its own rules, the Supreme Court recently took the historic step of ruling that it is unconstitutional to make abortion a crime, recognizing a woman’s right to make her own choices regarding her body and to decide for herself if she wants to be a mother or not without punishment. Argentina allows abortions until 14 weeks. Meanwhile, in the United States, the state of Texas has seen a complete reversal of reproductive rights. As of September, abortion in Texas is only permitted up until six weeks of pregnancy, at which point most of us don’t realize that we are gestating.
Laws, of course, are not always the answer. Since 2017, abortion has been allowed in Chile in three scenarios: a threat to the mother’s life, an unviable fetus and rape. But according to an interview with activist Javiera Canales that was published in the newspaper El País, it's still easier in that country to have a clandestine abortion than to seek help through the healthcare system: “We get calls from women who have not been allowed to have abortion because the doctors tell them: ‘You don’t look like you were raped, so since you don’t look upset, you can’t terminate.’”
I had a look of terror, of a child bearing too great of a responsibility, of imagining the first few years of a career dissipating. I had received all the sex education necessary and had access to contraceptives. In my case, I was saved by the color of my skin, my social status, the money I was able to use to pay a doctor or maybe simply fate. I, a woman who chose to end an unwanted pregnancy at the age of 24 after one of my first intimate encounters with my now ex-husband, could have also gone to jail.
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Dagmar Thiel is an Ecuadorian-German journalist and CEO of Fundamedios, a non-profit organization dedicated to press freedoms and freedom of expression throughout the Americas. In her native Ecuador, Thiel reported for Ecuavisa and TC TV, and contributed to Spain’s El Pais newspaper and the German broadcaster Deutsche Welle. She is also a Donald Reynolds Institute fellow.