There's this 400-year-old forensic test that scientists have long warned is unreliable when it comes to determining whether a baby was born dead or alive. So why is it still being used in many parts of Latin America?
There’s a test used across Latin America to determine whether a baby was born dead or alive. And depending on the result, it could allow prosecutors to bring murder charges against mothers who might have had a still-born birth. And there’s an even bigger problem. This test is 400 years old and very unreliable.
Today, how the so-called flotation test is sending women to prison for killing their newborns, when they say that they’re innocent. Read the full transcript here.
Host: Gustavo Arellano
Guests: L.A. Times foreign correspondent Leila Miller
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GUSTAVO ARELLANO: So there's this test used across Latin America to determine whether a baby was born dead or alive.
JOCELYN VITERNA: We were talking about the float test. What they told me was that they had been told that the lung flotation test is the gold standard for deciding whether or not a child was born alive.
GUSTAVO: And depending on the result, it could allow prosecutors to charge mothers who had a stillborn birth with murder.
LEILA MILLER: I asked you how many times the float test was used in these homicide cases. You said you didn't have a quote for that, but…
JOCELYN: Um, I can't, I can't remember a time that it was not used when they were trying to argue that the baby was born alive.
GUSTAVO: And there's an even bigger problem. This test is 400 years old and extremely unreliable.
LEILA: Did you ever see a prosecutor in writing or a judge raise any kind of question about the problematic nature of this test?
JOCELYN: No. Absolutely not.
GUSTAVO: I'm Gustavo Arellano. You're listening to “The Times”: essential news from the L.A. Times. It’s Monday, Oct. 3, 2022.
Today: How the so-called float test — an autopsy procedure developed way back in the 17th century — is sending innocent women across Latin America to jail.
Leila Miller is an L.A. Times foreign correspondent based in Mexico City. Leila, welcome to “The Times.”
LEILA: Thanks, Gustavo.
GUSTAVO: When I read your story, I honestly couldn't comprehend it. In this day and age that you still have coroners in Latin America using a 400-year test to determine a possible homicide. And it's literally called the float test, which is like such an incredibly unscientific name. What the hell?
LEILA: So I think part of the reason why it's used so often is that it's a very simple test and it's very cheap to do. So, what it involves is you take the baby's lungs, the newborn's lungs, and you put it in a container of water and you see if it floats. The logic is that if it floats, it means that there was air in the lungs because the baby took a breath. If the lungs of a baby float, in the cases that I looked at, the medical examiner and the prosecutors take that to mean that the baby was born alive and that opens the door for the prosecutor to file homicide charges against the mother and to build their case that she actually killed her baby.
GUSTAVO: How reliable is a float test?
LEILA: The problem is that air can get into a dead baby's lungs for reasons other than it having taken a breath. Many forensic examiners will say that they would never determine whether a baby was born alive only based on the float test. They might do the float test, but then also a bunch of other tests where you look more closely at a baby's lungs under the microscope or where you take X-rays and that would also help them determine whether a baby was born alive or not. The problem is that in the cases that I was looking at, in El Salvador, in Argentina and in Mexico, the float test was really being relied on very heavily to determine whether the baby was born alive and these other tests weren't being used.
JOCELYN: Even if these babies were born alive, that doesn't mean that they didn't take a few breaths, then die a natural death without anyone being guilty of, of doing anything to them.
LEILA: Jocelyn Viterna is a sociologist at Harvard University and she's traveled to El Salvador to study these cases involving the float test, cases where women have been prosecuted for, for killing their newborns.
JOCELYN: There've been about 90 women who've had these cases, but anyway, um, 71 that I have data on right now. I would say, uh, 48 of those, I have the entire case file — police reports…
LEILA: So I talked to Jocelyn to try to learn about what she had found.
JOCELYN: When I was doing trainings with the fiscales, with the federal prosecutors in El Salvador, and we were talking about the float test, what they told me was that they had been told that the lung flotation test is the gold standard for deciding whether or not a child was born alive.
GUSTAVO: We’ll have more after the break.
GUSTAVO: So, Leila — if forensic examiners in the rest of the world find this float test unreliable, what is it about officials in Latin America that make them think, “No, it’s actually totally reliable” — a gold standard, even?
LEILA: I think people are still relying on the float test, because it's just so easy to do. You only need a container of water. It's also been used in Mexico and Argentina and El Salvador in countries where there have been, um, laws against abortion. And that I think creates a climate where prosecutors look at a woman who has lost her baby with suspicion.
JOCELYN: In the United States, when you're trying to prove infanticide, not only do you have to prove that there was an individual separate life that breathes on its own, but you also have to prove that there was some sort of action or a problematic inaction taken that caused that child's death.
LEILA: So even though these aren't abortion cases, activists say that these women are looked at with more suspicion because they've lost their baby.
JOCELYN: Pregnancy's complicated. Pregnancy's difficult. And pregnancy often goes wrong even in the best situations.
LEILA: Women can lose their babies, in a number of different ways, many things can go wrong. You can have problems with the umbilical cord. But I think the most important thing that experts say is that if a woman does not receive medical attention while she's giving birth, it's more likely that she might experience some kind of medical emergency. And in the cases that I looked at, these women were mostly giving birth alone in their homes and really didn't have anyone to help them through the process.
JOCELYN: There was also an absolute unwillingness, or even inability, to think about the fact that this was any sort of an obstetrical emergency.
GUSTAVO: Leila, one of the women that you wrote about was just 17 when she gave birth. What's her story?
LEILA: So that's a girl named Guadalupe. And Guadalupe says that one night, she just began having a lot of pain in her stomach. She couldn't sleep that night, and when she got to school the next morning — she lives in Mexico's state of Yucatan — when she got to school, she went straight to the bathroom and gave birth. She gave birth in a stall. She says that she didn't know that she was pregnant. And after she gave birth, she picked the baby up and set it in a trash bin that was next to the stall.
GUADALUPE: Me desmayé porque se rompe una puerta del baño que está al lado. Mmh, fue cuando escucharon, escucha una puerta, me fui pata sobre la puerta de ti y la rompí.
LEILA: And then she was losing a lot of blood and fainted and was basically found by people at her school.
GUADALUPE: Entonces de ahí ya no recuerdo si entro una compañera y gritó sólo escuché que dijeron hablen a la coordinadora y traigan una silla de ruedas.
LEILA: The police were called to Guadalupe's school. She was bleeding really heavily after having given birth, was taken into the hospital.
GUADALUPE: Me preguntó una doctora, por qué lo hiciste? Qué? Por qué hiciste eso? Y me dijo no, uno, lo siento. Y yo, pues yo soy, es más que eso. Me dijo la doctora. Yo soy hasta embarazada. Qué lo hiciste? Y yo pues dije voy a hacer, yo tomé nada.
LEILA: When Guadalupe was in the hospital, she said that a doctor started to ask her why she had done it, why she had killed her baby. And Guadalupe at that point, I think she was really just in shock. She says that she didn't know she was pregnant. And that's when, police started their investigation and she was ultimately investigated for killing her baby.
GUSTAVO: Guadalupe was a minor when all of this happened to her. Did law enforcement take that into account when they blamed her for the death of her baby?
LEILA: Well, what I know is that Guadalupe was charged in a juvenile court, and I think her age played a role in her being able to wait out the judicial process at home instead of having to go to jail.
GUADALUPE: Hicieron preguntas a mi papá de ahí citaron a una compañera que tenía y citaron a mi abuela. Citaron a mi tía y de último citaron a mi hermanito.
LEILA: So the police also started asking her family questions about whether they knew about what had happened. And they said that they didn't know that she was pregnant. Her brother said that. Her dad said that.
GUADALUPE: También el director le preguntaron que si sabía que estaba embarazada, le preguntaron a la coordinadora que me llevó y si sabía que estaba embarazada…
LEILA: People at her school said that. So prosecutors ultimately used that to say that Guadalupe had been hiding her pregnancy from the people she was around in order to kill her baby when she gave birth.
GUSTAVO: So what ended up happening to Guadalupe?
LEILA: So Guadalupe is still living at home, in Yucatan, and she is waiting to see what happens with her case. Her case is currently being appealed to a higher court, and while that happens, the whole case is frozen.
GUSTAVO: Do women actually end up serving prison time in some of these cases?
LEILA: Yeah, women in these cases are often sentenced to really heavy prison terms or even life in prison. I spoke to a woman from El Salvador, her name is Maria Teresa Rivera. She lived with her son who was about 6 years old and her former partner's mother.
MARIA TERESA: Mi cama quedaba casi la par de la cama de ella. Entonces siempre hablábamos antes de acostarnos…
LEILA: And what Maria Teresa says happened is one day after going to sleep, she woke up in pain and left her home to use a latrine that was just outside and ended up giving birth right there.
MARIA TERESA: La verdad que solo me sentía mareada y, o sea, yo sentía que me iba a morir de una sola vez. No sé, pero la cuestión es que, como puedo, porque estaba mareada, mareada, veía todo negro. Cómo puedo? Llego donde dormíamos. Y ahí donde me re me rebano. Oh, no sé si me caí. Yo no sé lo único que sé que cuando mi suegra me encontró, yo estaba en el piso.
LEILA: After giving birth, she headed back to the bedroom and just fainted on the way there. And the next thing she knows is, she wakes up in a hospital, she's chained to a hospital bed and she is accused of having killed her baby. Maria Teresa says that she didn't even know she was pregnant.
GUSTAVO: More after the break.
GUSTAVO: Leila, after Maria Teresa delivered a stillbirth at home, what happened next?
LEILA: Maria Teresa wakes up in a hospital. She's chained to her hospital bed and cops are asking her…
MARIA TERESA: Cuando despierto, yo estaba desposada en una camilla en el hospital y el los doctores policías diciéndome dónde está tu hijo? Ellas me comenzaron a trotar mi asesina de que yo había matado a mi hijo, verdad?
LEILA: What did you do with your child? You killed your child. And, she says that she has no idea, you know, what they're talking about.
MARIA TERESA: Y yo decía sí, yo tengo mi hijo. Y él tiene 6 años y no me decía es que vas a, acabo de hacer un hijo, eh? Y le dije bueno, yo fui al baño y mi baño es de posta. No sé qué es lo que ha pasado, verdad? pero yo no he matado a nadie.
LEILA: She has a son, but he's 6 years old. She didn't understand why she was being accused or really what she was being accused of.
GUSTAVO: And then they did the float test on her, uh, stillborn child?
LEILA: Right. The float test was positive, meaning, the lungs floated and that became the base for prosecutors to charge her and to ultimately convict her of homicide.
GUSTAVO: So when authorities use a float test to determine how the baby died, what's the legal standards then that prosecutors rely on? Like do they even consider circumstances or is it literally the lungs float, you’re a criminal, the lungs don't float, you’re innocent?
LEILA: In the cases that I looked at, prosecutors really just relied on what the forensic examiners told them. So they didn't question the float test and they didn't question the forensic examiner saying that because the lungs floated, the babies were born alive. They also, in cases that I looked at, they would never explore the possibility that the woman had some kind of obstetric emergency that affected her birth.
GUSTAVO: So Maria Teresa, she's still currently in prison?
LEILA: Maria Teresa, no, she was able to get out of prison after about four years because her legal team appealed her case, arguing precisely that the float test had been improperly relied on and they also said that there was really no evidence to point to the fact that the baby had died from being asphyxiated, which is what prosecutors had charged. The argument was that her baby had asphyxiated from material in the latrine. But her legal team said that there was really no good science pointing to that.
GUSTAVO: And what’s Maria Teresa doing today?
LEILA: Maria Teresa today is in Sweden.
MARIA TERESA: Yo vivo en una ciudad muy pequeña en Suecia. Se llama eh, en la comunidad se llama, pero los mu el municipio se llama…
LEILA: She's living there with her son. She actually gained asylum in Sweden after prosecutors said that they were going to appeal a judge's decision to release her.
GUSTAVO: Leila, with the women that you interviewed, I mean, how did them going through this — how did it affect their lives?
LEILA: It changed their lives completely.
MARIA TERESA: Yo siempre he querido tener más hijos. Pero ya después de eso, ya no.
LEILA: Maria Teresa from El Salvador says that she never wants to have kids again. And she had been planning on having another child. But now, even though she's, you know, safe in Sweden, she's just worried that the same thing might, might happen to her again.
MARIA TERESA: En ese memento, yo me sentía como una mala mamá…
LEILA: And even though she knows, and, you know, says that she's innocent, she still feels this kind of unexplained guilt, um, as a mother for the baby's death.
MARIA TERESA: Sí, yo decía yo hubiese sabido que yo estaba embarazada. Me hubiese cuidado. Hubiese ido al médico. O sea, por una parte, me culpaba, verdad? Me culpaba porque yo decía si yo lo hubiera sabido, pero es que no lo sabía tampoco, verdad?
LEILA: And, that's something that, that still, hits her strongly. In Mexico, Guadalupe says that she's trying to move past what happened to her and not let this define her life. But she still occasionally visits the baby at the cemetery in the town where she lives.
GUADALUPE: Voy a visitar de vez en cuando…
LEILA: She says that she can't forget that this is something that happened to her.
GUADALUPE: Es algo que creció en mí. Es como que es una parte de mí que no lo no lo viví, pero ahí está. Y tampoco no le no voy a a dejarlo ya.
LEILA: That the baby was part of her, was growing inside of her, even though she said she never knew it existed.
GUSTAVO: Leila, what are the stats then on the float test? Like how many women have been prosecuted because of it in Latin America?
LEILA: We really have no good statistics on how often the float test is used.
JOCELYN: So none of us probably have all of the cases in El Salvador. Right. We all have as many cases as we could find.
LEILA: What we do know from talking to forensics examiners and talking to experts like Jocelyn who have reviewed these cases, that it looks like it's routinely used in these types of cases.
GUSTAVO: We're talking mostly about stillborns in these cases, but are there any parallels that activists in Latin America, or even the United States, draw to the United States now that Roe vs. Wade has been overturned?
LEILA: Yeah. I think the parallel that activists draw is that they're worried that if a greater antiabortion climate in the United States, women — just like what happens in El Salvador — women who lose their babies could be looked at with more suspicion and might be more likely to be prosecuted.
GUSTAVO: Finally, Leila, this float test is still happening even though it's antiquated, and even at the same time as abortion rights are being expanded all across Latin America. So did you find if there's a movement by activists to get rid of the float test altogether?
LEILA: No, I really didn't. I think the float test is something that many activists don't know about. People who look at these cases closely do know about it, but I think you need to understand the science, you need to understand the distinction between relying on the float test and using the float test in conjunction with other tests. But I think that some attorneys who have won wrongful conviction cases of this kind have realized that if they prove that the float test was relied upon, these women might go free.
GUSTAVO: Leila, thank you so much for this conversation.
LEILA: Thanks so much Gustavo.
Gustavo: And that's it for this episode of “The Times”: essential news from the L.A. Times.
Rowan Moore Gerety was the jefe on this episode and Mike Heflin mixed and mastered it.
Our show is produced by Shannon Lin, Denise Guerra, Kasia Broussalian, David Toledo and Ashlea Brown. Our editorial assistant is Madalyn Amato. Our engineers are Mario Diaz, Mark Nieto and Mike Heflin. Our editor is Kinsee Morlan. Our executive producers are Jazmín Aguilera, Shani Hilton and Heba Elorbany. And our theme music is by Andrew Eapen.
And hey… we’re building a Dia de los Muertos audio altar this year and would love to include your memories of your loved ones. Call (619) 800-0717, (619) 800-0717, and leave us a voicemail with your own ofrendas. Tell us who you are, where you live and then tell us a great story about a friend, a family member, someone dear to you who has passed on and joined the ancestors. We want to air an entire episode with those stories around Day of the Dead. Thanks in advance … and again, the number is (619) 800-0717.
I'm Gustavo Arellano. We'll be back Wednesday with all the news and desmadre. Gracias.