Abstract

Excerpted From: Megan Osadzinski, Gender Perspective(s): Lessons from International Human Rights Law to Defend Against Pregnancy-Related Prosecutions, 24 Northwestern Journal of Human Rights 1 (Summer 2026) (255 Footnotes) (Full Document) 

The criminalization of pregnancy outcomes is a violation of international human rights law; including the right to equality, the right to the enjoyment of the highest attainable standard of health, and the right to a fair trial. This article examines the criminalization of pregnant women for reproductive outcomes, such as induced abortion, spontaneous pregnancy loss during miscarriages and obstetric emergencies, and stillbirth, under a broad range of criminal laws. The article will outline how both the substantive criminal laws that sanction pregnancy outcomes and the mechanics of pregnancy related prosecutions constitute discrimination on the basis of gender and sex and violate state obligations under international human rights law. The article will also build on the emerging concept of the “gender perspective” in law using intersectional theory and apply it to pregnancy prosecutions. There is a marked intersectional component. Further, prosecutions for pregnancy loss are a consequence of legal regimes that criminalize abortion access, demonstrating the need for the full decriminalization and legalization of reproductive healthcare as a broad human rights imperative alongside the use of a gender perspective in criminal law.

In prosecutions of pregnancy, “the failure to provide due process is itself deeply gendered.” Women experience complex gender-based discrimination as accused persons in the prosecution of pregnancy outcomes. This article proposes an intersectional articulation of the right to a fair trial, read in conjunction with the right to health and the right to gender equality, with the goal of disrupting the criminalization of women for pregnancy outcomes. Gendering the right to a fair trial in this context or applying a gender perspective involves analyzing discriminatory pregnancy prosecutions by considering the intersecting identities, lived experiences, and life plans of the accused person, as well as the structural context in which these identities exist. Intersectional analysis is also concerned with the differentiated harms of being subjected to a pregnancy related prosecution and deprived of liberty, including the collateral consequences of a criminal conviction, such as economic marginalization, housing insecurity, adverse physical and mental health effects, and further risk of gender-based violence.

The intersectional analysis and gender perspective begins with a closer examination of pregnancy to dispel the myth that adverse pregnancy outcomes are a rare occurrence or intrinsically occur due to the fault of the pregnant person. Spontaneous termination of pregnancy, or miscarriages, make up about 30 to 40% of all first-trimester pregnancies based on self-reported data in clinically-recognized pregnancies. For example, miscarriages are the most common pregnancy complication in the United States, affecting 750,000 to 1,000,000 pregnancies annually. In approximately 15% of clinically diagnosed pregnancies with a lack of obvious symptoms, asymptomatic or missed pregnancy loss occurs, or the unrecognized intrauterine expulsion of an embryo or fetus. Additionally, about 60% of documented miscarriages are the result of a genetic or chromosomal condition, with other established causes including uterine abnormalities, endocrine disorders, and auto-immune issues. Despite the medically spontaneous nature of poor pregnancy and birth outcomes, thousands of women globally have been prosecuted and convicted under criminal laws for pregnancy termination. This includes a pattern of prosecuting spontaneous pregnancy loss under provisions criminalizing abortion, child endangerment, or even aggravated homicide. The same mythologies are used in the prosecution of women for induced or therapeutic abortion, which are also manifestations of gender-based discrimination.

The article will examine the case study of the prosecution of Aurelia García Cruceño in Guerrero, Mexico to develop an intersectional, human rights-based intervention to challenge the criminalization of pregnancy through an equality and anti-stereotyping framework. At the age of eighteen, Aurelia became pregnant as a result of rape by a much older police officer after years of prolonged sexual assault. She did not know she was pregnant until after she experienced a spontaneous, accidental birth. Aurelia is an Indigenous woman whose native language is Nahuatl and at the time she did not speak Spanish, had a middle school education, and had spent most of her life living in her rural, Indigenous community in Xochicalco before fleeing to get away from her assailant. Coming from a conservative community, she did not receive comprehensive sexual health education nor did she have access to reproductive healthcare.

Eight months into her pregnancy, Aurelia experienced an obstetric emergency in her aunt’s home and expelled the fetus. Her aunt found her unconscious and covered in a pool of blood. She called the paramedics, who took Aurelia to a public hospital in Iguala. Aurelia woke up with a non- consensually placed medical birth control implant in her arm and without any recollection of what happened. The medical staff at the hospital immediately contacted the police, and investigators interrogated Aurelia while she was receiving medical treatment shackled to her hospital bed. Aurelia was not provided with a qualified interpreter, and signed legal documents in the hospital.

Despite medical evidence of an involuntary and accidental stillbirth, prosecutors charged Aurelia with aggravated homicide to a family member on the theory that she killed a newborn infant. The legal qualification of the charge was significant, insofar as the sentencing range for aggravated homicide in Mexico is 30 to 60 years, whereas the sentencing range for the criminal offense of abortion, a misdemeanor, in most states at the time was between 15 days and six years, with eligibility for pre-trial release.

Aurelia pleaded guilty in a plea colloquy process known as an abbreviated special procedure (procedimiento abreviado), a trial waiver mechanism. The abbreviated procedure is initiated only by the prosecutor and is not a matter of right for the defendant; the supervisory court then has a limited role in the abbreviated procedure, only confirming a knowing waiver of the right to a trial in a public hearing. While Aurelia intended to go to trial, her trial lawyers threatened to withdraw representation if she did not accept the abbreviated plea. During the intermediate hearing, the presiding judge asked Aurelia if she understood the abbreviated procedure and she replied: “Yes, I recognize it, I renounce it, I accept it. Yes, I accept it. Yes, yes, I want the abbreviated [procedure].” The judge did not ask additional questions to ensure that Aurelia made a knowing and voluntary waiver of the right to trial and guilty plea as an indigenous, non-Spanish-speaking woman despite indicators that neither she nor her defense counsel understood the abbreviated procedure. Where, as here, there is evidence that the accused does not fully understand the substance of her guilty plea, the supervisory court is obligated to suspend the abbreviated procedures. Despite this, Aurelia was sentenced to 13 years and 4 months in prison, and she was incarcerated at a primarily men’s prison facility.

Verónica Garzón Bonetti and Ximena Ugarte Trangay, lawyers at the Mexican Institute for Human Rights and Democracy (IMDHD), successfully represented Aurelia in an appeal. While the appellate court ordered a retrial, an amparo petition was filed by an unrelated third party identifying as ““counsel for the victim” challenging the appellate judgment on the grounds that it violated the right to life of the fetus. A number of amicus curiae briefs from local and international human rights groups and public defender agencies were filed in support of Aurelia at this stage, including an amicus brief co-written by the author of this article, Clinical Professor of Law Juliet Sorensen, and colleagues at Northwestern University’s Pritzker School of Law’s Center for International Human Rights (CIHR) and Center for Wrongful Convictions (CWC) focused on comparative and international human rights law. The effort to free Aurelia was also supported by social movements, with feminist and human rights groups engaging in awareness-raising and solidarity work outside of the court system.

The court in the amparo held that the trial judge had an obligation under international law to apply an intersectional approach and gender perspective to the plea agreement process to safeguard Aurelia’s rights as an Indigenous, non-Spanish speaking woman charged with a crime. The court also lauded intersectional theory as an adjudicatory approach and “tool for gender justice and economic justice” that

allows us to study, understand, and respond to the ways in which gender intersects with other identities and how these intersections contribute to unique experiences of oppression and privilege... to discover significant differences and similarities, in order to overcome discrimination and establish the necessary conditions so that all people can enjoy their human rights.

The amparo vacated the guilty plea and the court ordered Aurelia’s release after three years in prison. Aurelia is now free. However, hundreds of women in Mexico remain incarcerated serving sentences for abortion related offenses.

Aurelia’s case illustrates how criminal prosecutions for pregnancy outcomes are prima facie discrimination on the basis of sex and gender, a violation of the right to health, and a violation of the right to a fair trial. Aurelia experienced these human rights violations after her stillbirth. Her criminal case began in the hospital, where instead of receiving compassionate, holistic maternal healthcare and being guaranteed doctor-patient confidentiality, her treatment team began to collect evidence against her. Medical staff also temporarily sterilized her with a non-consensual birth control implant. Here, as in other cases, there was an evidentiary pipeline between the medical and criminal legal systems. Such cooperation has a chilling effect on women seeking reproductive healthcare out of fear of arbitrary detention.

Further, Aurelia’s case was characterized by the use of essentialist, gender-based stereotypes that women must carry their pregnancy through to a successful childbirth at any cost, regardless of their own health and safety. This involves a complex web of racialized, ableist, and gendered stereotypes about women’s sexuality, fertility, motherhood, and labor; including the gendered politics of pain and childbirth trauma that hold women to an impossible standard of labor and condemn them for reproductive and biological functions outside of their control. In cases of spontaneous pregnancy loss, there is no scientifically recognized forensic or physical evidence that proves an intentional act. Rather, the state’s case-in-chief, consisting of circumstantial evidence and junk science, was cloaked in stereotypes, using biases and dominant discourses about gender normativity as proof of a non-existent, fictitious “crime.” The effect of such prosecutions is that criminal intent is applied to accused women for not carrying to term or having a ““normal” live birth.

Fair trial rights concerns underpin pregnancy and abortion related prosecutions. The use of gender-based stereotyping in parties’ opening and closing arguments, the solicitation of investigator or medical testimony steeped in stereotyping about female criminality, and stereotyping in judicial decision-making may violate the presumption of innocence and requirement of sufficient evidence. Without gender-based stereotypes, there is often insufficient proof beyond a reasonable doubt of an actus reus, or prohibited act, and mens rea, mental state, to convict. In pregnancy prosecutions, public defenders and private trial lawyers alike may refuse to mount a proper defense using a gender perspective, undermining the right to effective assistance of counsel.

During adjudication, Aurelia’s trial counsel was ineffective in failing to litigate her case at the pre-trial stage using a gender perspective. Her trial lawyers did not challenge the state’s thin forensic and medical evidence, including a key piece of evidence that is regarded as junk science: the hydrostatic lung test, or so-called “floating lung test.” This autopsy test is used by investigators in pregnancy and infanticide prosecutions as evidence of whether the fetus died in-utero or after delivery. First used in the 17th century, the test involves submerging lung tissue in water to detect the presence of oxygen; if the tissue floats, the test concludes that respiration occurred outside of the uterus. Experts globally have long repudiated the efficacy of the test due to the lack of actual causation between the tissue floating and voluntary respiration.

Further, Aurelia did not knowingly and voluntarily plead guilty. Her trial lawyer threatened to withdraw representation if she did not accept the abbreviated procedure and forced her decision. This mechanism has been critiqued by human rights groups and UN Special Procedures for being “used as a means of dissuading detainees from exercising their legitimate fair trial rights, including the right to silence, the presumption of innocence, and the right to adequate time and facilities to conduct their defense.” A number of civil society organizations have also highlighted the gendered dimensions of the abbreviated procedure, where appointed and private trial lawyers presume and sometimes outright stipulate to their client’s guilt, and pressure women defendants to waive their right to trial. Finally, as an Indigenous, non-Spanish-speaking woman, the trial court should have provided tailored, cross-cultural, and gender-sensitive admonishments during the abbreviated procedure that took into account how her intersecting identities and experiences informed her ability to make a knowing and voluntary trial waiver. But even more so, international human rights law required the state to implement substantive legal changes and procedural safeguards long before this point to prevent the discriminatory criminalization of pregnancy loss.

Aiming to further mainstream the intersectional gender perspective to defend against abortion and pregnancy related prosecutions, this article proceeds in four parts. Part I of this article will briefly trace the genealogy of intersectionality and situate the theory as a legal approach within the modern human rights regime that can be used to visibilize discrimination in pregnancy related prosecutions. Part II will provide a brief overview of the treatment of women’s fair trial rights under international human rights law and explore an intersectional reading of the right to a fair trial within the United Nations (UN) human rights system. Part III is grounded in the Inter-American Court of Human Rights’ (IACtHR) landmark ruling in the Manuela v. El Salvador case, and explores how the IACtHR has articulated a discourse of intersectional fair trial rights in the context of pregnancy related prosecutions and threats to the realization of the right to health. Finally, Part IV will conclude by returning to Aurelia’s case to offer a roadmap on how to animate the intersectional, human rights-based approach to disrupt the criminalization of pregnancy and support persons facing pregnancy related criminal charges.

[ . . . ]

The right to equality, the right to a fair trial, and the right to health safeguard women from arbitrary pregnancy proseuctionsbased on implicit gender bias and stereotypes about motherhood and reproductive capacity. As the CEDAW Committee has noted, “[w]omen should be able to rely on a justice system free from myths and stereotypes, and on a judiciary whose impartiality is not compromised by these biased assumptions. Eliminating judicial stereotyping in the justice system is a crucial step in ensuring equality and justice.”

Pregnancy-related prosecutions violate international human rights law on their face, and laws criminalizing abortion and pregnancy outcomes must be abolished. Even where such laws are abolished on the books, an intersectional, human rights-based criminal defense strategy and gender perspective can be operationalized to guard against discriminatory prosecutions. As in Aurelia’s case, the gender perspective is strengthened through participatory defense models, transnational amicus support, support of the press, and movement-aligned lawyering methods whenever feasible and beneficial.

In the absence of the full decriminalization of abortion access on the national level and the implementation of intersectional safeguards in domestic justice systems, women, human rights defenders, and healthcare providers will continue to be at risk of arbitrary detention, discriminatory convictions, and premature death in prison. To illustrate, in the United States, criminal defense lawyers have warned that the criminalization of reproductive justice will be part of the “next wave of mass incarceration,” and have dubbed this era: the War on Pregnancy. Since Dobbs v. Jackson Women’s Health Organization, Pregnancy Justice estimates that 210 criminal cases have been brought against women in the United States under laws criminalizing a broad range of conduct, including child endangerment, drug-related charges, abuse or desecration of a corpse, abortion, manslaughter, and murder. Post-Dobbs criminal bans have led to the deaths of pregnant women with intersecting identities, primarily women of color, who were denied medical assistance during miscarriages and obstetric emergencies.

International human rights law protects women everywhere from being held individually and criminally accountable for pregnancy terminations--outcomes that are often caused by structural and systemic barriers to comprehensive reproductive healthcare and other core social, economic, and cultural rights in the first place. Operationalizing an intersectional defense framework is one potential tool for defending against reproduction-related prosecutions of women and visibilizing how such prosecutions are a form of reproductive oppression and gender-based discrimination.

 Megan Osadzinski (J.D., LL.M) is a PhD Researcher in Law at the European University Institute (EUI) in Florence, Italy. Previously, she was the Michael and Mary Schuette Clinical Fellow in Health and Human Rights and Adjunct Professor at Northwestern University Pritzker School of Law (2022 2024)