When 28 year old human rights activist Dina Hernández was arrested near her home in San Salvador in March 2024, she was 35 weeks pregnant and accompanied by her five year old son. Accused of illicit association with gang members under the sweeping emergency security framework that has transformed El Salvador since 2022, she was remanded in custody without publicly disclosed evidence. Three weeks later, her family received a call from prison authorities instructing them to collect the body of her newborn baby. There has been no confirmed investigation into the cause of death, no transparent disclosure of the circumstances surrounding the birth, and no clarity as to whether Hernández, who is believed to remain in detention, received any form of postnatal care. Her case is not an aberration. It is emblematic of a systemic and global failure to protect pregnant women in detention and the children born into custody.
The plight of pregnant prisoners is neither new nor legally uncharted. Fifteen years have passed since the United Nations General Assembly adopted the United Nations Rules for the Treatment of Women Prisoners and Non Custodial Measures for Women Offenders, widely known as the Bangkok Rules. These rules were the first comprehensive international instrument to recognise that women in prison have distinct needs and vulnerabilities, particularly during pregnancy and childbirth. They explicitly state that non custodial measures should be preferred for pregnant women wherever possible and that instruments of restraint must never be used during labour, birth or immediately thereafter. Yet across continents and political systems, these standards are ignored with alarming regularity.
The global female prison population has risen sharply since the start of the century, increasing by 57 per cent since 2000 compared with a 22 per cent rise among men over the same period. This growth has occurred in parallel with a penal infrastructure overwhelmingly designed around male bodies and male patterns of offending. As Sabrina Mahtani, a British Zambian lawyer and member of Women Beyond Walls, has observed, most prisons were built with men in mind and women were an afterthought. The consequences are stark. Overcrowding, violence, poor sanitation, inadequate nutrition and a profound lack of gender responsive health care combine to create conditions that are not merely uncomfortable but potentially lethal for pregnant detainees.
In El Salvador the situation is particularly acute. The female prison population is estimated to have doubled since 2022 and to have increased nearly sevenfold since 2000, a trajectory linked to the state of emergency declared to combat gang violence. Family visits have been banned since 2020 and civil society organisations are denied routine access to detention facilities, creating a near total information blackout. Zaira Navas of Cristosal has documented testimonies from women who report beatings, torture, and denial of basic supplies. Some have described engaging in sexual acts with prison guards in exchange for food, sanitary products or medicine. Navas has recorded miscarriages and the deaths of at least four babies, while acknowledging that the true figure is likely higher given restricted access and the absence of transparent data. She has also received reports of women shackled to hospital beds during labour, giving birth under the surveillance of male prison guards.
Such practices raise profound legal concerns under international law. El Salvador is a state party to the International Covenant on Civil and Political Rights, which prohibits cruel, inhuman or degrading treatment under Article 7 and protects the right to life under Article 6. It is also bound by the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child. The latter imposes a duty to ensure appropriate pre and post natal health care for mothers and to safeguard the survival and development of the child. The systematic shackling of women during labour, denial of prenatal care, and failure to investigate neonatal deaths may amount not only to violations of soft law standards such as the Bangkok Rules but to breaches of binding treaty obligations.
Overcrowding compounds the crisis in other jurisdictions. According to data compiled by the World Prison Brief, Cambodia has one of the highest prison occupancy levels in the world, second only to the Republic of the Congo. At the end of 2024, 18 of the 19 prisons monitored by Licadho exceeded official capacity, with 11 operating at or above 200 per cent occupancy. Naly Pilorge, outreach director of Licadho, has described conditions in which women, many of whom are awaiting final verdicts, lack sufficient space to lie down and have chronic shortages of basic necessities. Reports have emerged of pregnant prisoners being handcuffed to hospital beds and of a five month old baby dying in prison in 2020 from pneumonia and severe malnutrition. The child’s mother had been detained for possession of a small quantity of methamphetamine valued at approximately 10,000 riel and was eight months pregnant when imprisoned in 2019. The proportionality of incarcerating heavily pregnant women for minor drug offences must be measured against both domestic criminal law objectives and international standards on necessity and last resort detention.
The failure to provide safe childbirth conditions is not confined to lower income states. In 2019 in the United Kingdom, Rianna Cleary, then aged 18, gave birth alone in her cell at Bronzefield prison after her calls for assistance were reportedly ignored for 12 hours. Her daughter Aisha died shortly after birth. Cleary was forced to bite through the umbilical cord. The United Kingdom is bound by the European Convention on Human Rights, including Article 2 on the right to life and Article 3 prohibiting inhuman or degrading treatment. The jurisprudence of the European Court of Human Rights has consistently held that states owe heightened duties of care to individuals in custody. A failure to respond to clear signs of labour and distress engages not only ethical questions but potential state liability under human rights law.
In the United States, the landscape is fragmented across federal and state systems, yet activism has yielded tangible reforms. Pamela Winn, who miscarried in her prison cell and lay in a pool of blood for five hours, founded RestoreHer after her release and has successfully advocated for legislation banning shackling and solitary confinement of pregnant prisoners in 24 states. Her current campaign seeks to end prison births altogether. While the United States is not a party to the Convention on the Elimination of All Forms of Discrimination against Women, it is bound by the International Covenant on Civil and Political Rights and by constitutional protections against cruel and unusual punishment. Litigation under the Eighth Amendment has increasingly challenged the use of restraints during labour as incompatible with evolving standards of decency.
In Argentina, the experience of Nora Calandra illustrates how obstetric violence can be embedded within penal systems. Sentenced to six years in prison in 2010 and discovering she was pregnant shortly thereafter, she was monitored by prison authorities throughout her pregnancy. During labour her legs were chained to the hospital bed and guards remained present. A caesarean section was performed and she was offered sterilisation while still under the effects of anaesthesia. Years later she continues to question the medical necessity of the surgery. Calandra has since been appointed undersecretary for labour and community inclusion of people in conflict with the law in Buenos Aires province and has contributed to guidelines on childbirth in detention published in 2020. Yet she acknowledges that women in Argentina still report obstetric violence and forced sterilisation, practices that contravene both domestic constitutional guarantees and international prohibitions on discrimination and coercive medical procedures.
Reform efforts exist elsewhere. Sierra Leone adopted bail regulations in 2017 requiring courts to consider alternatives to detention for primary caregivers, pregnant women and breastfeeding mothers. Brazil has expanded house arrest for pregnant women and those with dependent children awaiting trial. Georgia, Russia and Vietnam provide for deferral of sentences for pregnant women in certain circumstances. These measures reflect a growing recognition that incarceration of pregnant women should be an absolute last resort. Nevertheless, the persistence of prison births under degrading conditions demonstrates that normative commitments have not translated into consistent practice.
From an international relations perspective, the treatment of pregnant prisoners intersects with development assistance, security cooperation and multilateral engagement. States that seek foreign investment, trade agreements or development financing increasingly face scrutiny over human rights compliance. The United Nations Human Rights Council’s Universal Periodic Review process routinely addresses prison conditions, including the treatment of women. Regional bodies such as the Inter American Commission on Human Rights and the African Commission on Human and Peoples’ Rights have issued precautionary measures and thematic reports condemning the shackling of pregnant detainees. Yet enforcement remains weak, particularly where prison systems operate behind closed doors and where political narratives of crime control override rights based discourse.
At its core, the incarceration of pregnant women under degrading conditions exposes a profound contradiction in modern legal systems. Criminal law is justified as a mechanism of accountability and social protection. However, when it subjects pregnant women to shackling during labour, denies them prenatal care, or permits infants to die in custody without investigation, it undermines the very notion of lawful punishment. The right to life, the prohibition of torture and inhuman treatment, and the principle of non discrimination are not suspended at the prison gate. Nor does pregnancy erase a woman’s legal personality or her entitlement to dignity.
The cases emerging from El Salvador, Cambodia, the United Kingdom, the United States, Argentina and beyond are not isolated tragedies but manifestations of structural neglect. They reveal penal systems that continue to treat women as deviations from a male norm and motherhood as an inconvenience rather than a protected status. For leading experts in international law and criminal justice, the question is no longer whether standards exist. They do. The Bangkok Rules, binding human rights treaties and regional jurisprudence provide a clear normative framework. The pressing issue is enforcement and political will. Until states internalise that imprisonment of pregnant women engages the highest level of human rights scrutiny, the stories will continue to accumulate. Newborns will die without transparent inquiry. Women will give birth in chains. And the global community will confront, again and again, the brutal reality that in too many jurisdictions the womb itself is treated as collateral damage in the machinery of punishment.