Health & Medicine

UK doctor finds live birth test flawed in prosecution of El Salvadoran women

Dr. Greg Davis, a forensic pathologist, 
has been asked to review four cases.
Dr. Greg Davis, a forensic pathologist, has been asked to review four cases.

Salvadoran women who claim to have suffered miscarriage or stillbirth are being imprisoned for up to 40 years for intentionally killing their children, and the medical opinion of the University of Kentucky's Dr. Greg Davis is being used in an effort to help free them.

The case of 17 Salvadoran women, called Las 17, was highlighted in a post last week on the website Jezebel. It also has been the focus of a report by Amnesty International and has received extensive coverage in the press in El Salvador.

Davis, a forensic pathologist, reviewed the cases of four of the women convicted with evidence culled from what's called a "float test," or a hydrostatic test. The test is used to determine whether a baby has taken an independent breath and is therefore alive outside its mother's womb. The float test requires that a portion of a child's lung retrieved during autopsy is put in water. If the specimen floats it is assumed that it was exposed to oxygen.

"Outdated and unreliable" is how Davis describes the test. Proving a baby was alive outside of its mother's womb is a complex process and requires a complete evaluation of the body, not a single test, he said.

The float test "first started to come into question over 100 years ago," Davis said. "I was stunned to see that the main determination that the (Salvadoran) pathologist was relying on solely was the fact that the lungs floated."

Davis' report ultimately will be submitted to the Salvadoran Supreme Court and National Assembly, the two governing bodies that will review petitions to pardon 17 women.

How did Davis, a Lexington-based doctor, end up involved in South American case receiving international scrutiny?

In part, it was Davis' reputation for being faithful to the science.

Jocelyn Vitnera, an associate professor of sociology at Harvard University, became interested in the cases of the 17 women while working on a book about women in war in El Salvador. Vitnera heard of Davis from a friend as she was working to help a Salvadoran feminist group, Citizens' Group for the Decriminalization of Abortion, gain pardons for the woman.

Vitnera, who is now researching discrimination against pregnant woman in El Salvador, said the plight of the women in prison is tied to changes in Salvadoran abortion laws in the 1990s. Abortion was outlawed in El Salvador, she said, following a backlash to minor changes in the countries abortion laws.

When she was looking for someone to review the use of the float test, she wanted an expert who was not associated with either side of the abortion debate in the United States. She found Davis, who had some experience with the float test.

In 2009, he reviewed the case of an Alabama woman who was charged in the death of her baby but ultimately was found not guilty. The float test had been used by the original medical examiner as a basis for charges being brought against the mother.

But Davis said use of the test alone to determine whether a child was alive "is sort of a medieval fiction at best."

The group campaigning for the Salvadoran women's freedom said they all suffered other complications that led to miscarriage or a stillborn birth.

What is happening in El Salvador is not so far removed from the United States, where some groups are advocating for a "no abortion, no exception" rules, Vitnera said.

"What scares me is that there might still be some people using that test in the United States," Davis said. "It is certainly a possibility."

According to the website of RH Reality Check, a nonprofit providing daily information about health and reproductive rights, the head of a medical organization that provides information to the Salvadoran courts said the 17 women involved "assassinated" their children. According to an article posted Oct. 7, Dr. José Miguel Fortin Magaña, director of the Salvadorian Institute for Legal (Forensic) Medicine, made those statements during a recent television interview.

Davis understands the passion around issue at the center of this case but, he said, his role was to conduct a dispassionate examination of the physical evidence.

"I can't prove that these babies were born dead," said Davis, but "there is absolutely no way to prove they were born alive" with the float test.

The government, according to the RH Reality article, has yet to respond to the petitions for pardon.