“Belén,” the young woman from Tucuman who was placed into custody after doctors and police claimed she killed the fetus that she asserts to have miscarried in a hospital toilet, has been released from prison. She spent a total of two years, four months and twenty-three days behind bars for a “crime” that was never proven to have been a crime, and which she vehemently denied from day one.
The Tucumán, Supreme Court dismissed the case of “aggravated homicide” based on the lack of legitimate grounds for prosecution on Friday. They said it was the “defective” initial investigation preceding Belén’s pre-trial custody that raised serious doubts as to the charges.
Belén (not her real name) went straight from the hospital into custody after suffering what appears to be a miscarriage (or “spontaneous abortion”, as they are referred to in Spanish) in a public hospital in the early hours of the morning on 21 March 2014. Details are murky and the case is rife with contradiction. Hospital staff and police claimed that she killed the fetus that was found at an indeterminate time in a hospital toilet, though Belén, who says she didn’t even know she was pregnant, denies this.
Belén spent a year in pre-trial detention before, on April 19th, 2016, a Tucumán Criminal Court found her guilty of “homicide aggravated by the relationship of kinship,” though “mitigated by the fact of her post-natal state.” They sentenced her to eight years. Belén appealed with a new lawyer – Soledad Deza from Catholics For Freedom Of Choice – and the Supreme Court of Tucumán, the highest court in the northwestern province, approved her release on last Thursday. However, she was only released earlier this week.
Members of the Mesa para la liberacion de Belén waited at the prison with masks and signs that read “We Are All Belén,” in what was both a symbolic and pragmatic move (a media frenzy awaited her outside the prison.)
The Case: Questionable “Evidence”
In its strongly worded 88 page ruling, the court drew attention to the repeated violations of doctor-patient confidentiality in the case, criticizing the medical staff for acting as quasi-police officers instead of protecting their patient’s privacy. The “evidence” that was gathered through this investigation was deemed inadmissible, given it was based in the violation of patient privacy.
It also reserved special attention for the initial defense that Belén received, which it described as not only inadequate, but incriminating. While Belén always maintained her innocence, the court-appointed lawyer assigned to defend her ignored this, instead arguing that mitigating circumstances linked to her post-partum mental state were to blame. In asserting this theory her legal representation made the statement that Belén committed the act in question to the courts — a move that not only went against Belén’s wishes but served to incriminate her further. “As a judge, I’ve presided over cassation cases in which the activity of the defense lawyer was poor and even non-existent. But never before have I had a case in which said activity appears as…directly incriminatory,” reads the judgment.
Finally, the court agreed with the new defense lawyer that the Criminal Court was not impartial when analyzing the evidence. Discrepanices over where the fetus was found, its age and gender, and the lack of a DNA test prompted the judge to state, “…I also have to say that I have never presided over a case in which there is so much evidence of such poor quality.”
A Case With Contradictions, Inconsistencies And Even A Missing Fetus
Belén was 25 years old, single, and working at at a co-op for AR $2,500 a month when she woke up in the early hours of 21 March 2014 with abdominal cramps and gastrointestinal symptoms. She went with her mother to Urgent Care in the Hospital de Clínicas Presidente Dr. Nicolás Avellaneda, a public hospital, which admitted her at 3:50am. She was given a hospital bed and a painkiller was administered. What proceeded amounts to a terrifying case study in medical negligence and human rights violations.
Belén says she went to the toilet twice over the next two hours. On one occasion she passed blood. She was transferred to the Gynaecology ward, where a doctor told her she was miscarrying a two-month-old foetus. He then asked her where the “baby” was, because he said he could see a placenta and umbilical cord.
At some moment in time, a fetus was found in a toilet at the hospital. However, it is unclear at what time and in what bathroom. According to the hospital, “a nurse rescued a baby at 3am” (when Belén was not even there). Meanwhile, there was inconsistencies over which of the eight toilets the foetus was found in. It was also unclear as to how developed the foetus was with theories ranging from 15 to 32 weeks all mentioned in the investigation’s file.
As Soledad Deza, Belén’s lawyer pointed out, this was the first of many moments in which Belén was presumed guilty for a crime. Despite the constitutionally guaranteed right to privacy and confidentiality, the hospital decided to initiate an investigation, calling on the police to get involved.
“When I woke up, I was surrounded by police officers. A police employee, in uniform, was looking at my intimate parts. Then a nurse came with a little box that a small black thing inside. She said to me, this is your child,” said Belén, to Revista Anfibia.
From here on in, Belén was assumed guilty. The fetus was morally linked to her, even though a DNA test was never carried out, and will never be carried out – the hospital was unable to provide the fetus or fetal tissue in question as evidence after losing it.
The case garnered significant media attention locally and around the world. Amnesty International created a petition demanding her immediate release that obtained over 120,000 signatures, and even the Human Rights Committee of the United Nations asked for her release, as well as for the Argentine government to update its abortion laws.
Abortion is illegal in Argentina expect under rare circumstance when the courts grant permission in cases of rape or if it is proven (with time) that the mother’s life is at serious risk as a result of carrying out the pregnancy. It continues to be a leading cause of maternal death, with a reported 500,000 illegal abortions taking place each year leading to an estimated 80,000 women being hospitalized due to complications — most of whom are open to face criminal charges.
Belen’s case may be the most public at the moment, but statistics being used by the United Nations and international public health institutions show that she is not alone and could simply be the latest victim of a deadly disconnect between morality, policy and practice taking place in Argentina.