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Home > JHR > Vol. 24 > Iss. 1 (2026)

 

Abstract

The criminalization of pregnancy outcomes—such as miscarriages, abortion, obstetric emergencies, and stillbirth—is a violation of fundamental human rights guarantees; including the right to a fair trial when read in conjunction with the right to equality and the right to health. This article outlines state obligations under international human rights law toward women charged in pregnancy prosecutions, translating them into national criminal defense strategies using a gender perspective. Using intersectional theory, this article calls for the use of a gender perspective to challenge such prosecutions as unlawful gender-based discrimination and a gendered violation of due process, using the case study of the prosecution of Aurelia García Cruceño, a Náhua Indigenous woman who was charged with aggravated homicide to a family member in Mexico following a late-stage obstetric emergency and stillbirth. After spending almost three years in prison following a flawed plea agreement, she successfully challenged the plea using a gender-conscious defense strategy drawing from international human rights law. This approach is anchored in the Manuela v. El Salvador landmark ruling of the Inter-American Court of Human Rights (IACtHR), where the court addressed the arbitrary detention and death in prison of a woman who was wrongfully convicted of murder after experiencing an obstetric emergency during the third trimester. Finally, this article concludes by envisioning how lawyers can use the gender perspective in domestic cases to protect women from arbitrary prosecutions on the basis of gender amidst global attacks on reproductive freedom.

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