The IACHR found a violation of the ACHR requirements in relation to the applicant.

Заголовок: The IACHR found a violation of the ACHR requirements in relation to the applicant. Сведения: 2020-07-17 04:23:46

Inter-American Court of Human Rights judgment of 30 November 2016 in I.V. v. Bolivia (Series C, no. 329).

The applicant was assisted in preparing a complaint to the Inter-American Commission on Human Rights (Washington, USA).

Subsequently, the Inter-American Commission on Human Rights referred the applicant's complaint to the Inter-American Court of Human Rights (San Jose, Costa Rica) for consideration. The complaint was then communicated to Bolivia.

The case successfully handled a complaint about sterilization in the absence of informed consent.

Sterilization without informed consent.


Circumstances of the case


On 1 July 2000 applicant I.V. after caesarean section, she was sterilized by tubal ligation performed at the Women's Hospital in La Paz (Bolivia). The applicant submitted that she had not been informed or consulted prior to the sterilization procedure and that she only became aware of the permanent loss of her reproductive capacity when the doctor informed about it the day after the operation. The Government dismissed her arguments, stating that she gave her consent orally during the procedure and that the purpose of that procedure was to protect her health and, ultimately, her life from a potential threat in the event she became pregnant again in the future. Despite the complaints lodged by the applicant, no one was made responsible in disciplinary, administrative or criminal proceedings for sterilization carried out in the absence of the applicant's informed consent.


QUESTIONS OF LAW


(a) Articles 4 (1) (right to life) and 5 (1) (right to security of person) of the American Convention on Human Rights (hereinafter - ACHR) in conjunction with Article 1 (1) (obligation to respect and observe rights) and Article 7 of the Inter-American Convention to Prevent, Punish and Eliminate Violence against Women (hereinafter - the Belem do Para Convention). Informed consent is an essential aspect of medical practice that respects the autonomy and freedom of choice in everyone's life. It is not only an ethical obligation, but also a legal obligation of medical personnel, which forms part of the good medical practice and profession (lex artis) to provide affordable and acceptable healthcare services. Consent is a decision to voluntarily undergo a medical procedure. It must (i) be obtained prior to any medical act with the only exception of an emergency or life-threatening situation where consent cannot be obtained, (ii) be given in a free, voluntary and autonomous way, and (iii) be complete and informed. Informed consent is linked to the right to access information in health care, as the patient can give free and informed consent after receiving adequate, complete, reliable, understandable and accessible information that can be fully understood. In sterilization cases, consent can only be given by the woman concerned. Thus, the authorization of a partner or other party should not be requested.

The Inter-American Court has found that women's freedom and autonomy in relation to sexual health issues has historically been limited, inhibited or rejected by negative and harmful gender stereotypes. Such stereotypes could influence and influence access to information about a woman's sexual and reproductive health, as well as the process and way of obtaining such consent. Sterilization in the absence of informed consent is a product of historical inequalities between men and women and affects women disproportionately because of their socially assigned reproductive role and responsibility for contraception. In the present case, the Inter-American Court held that (i) even though there are general rules on informed consent, the State did not take preventive measures to ensure the applicant's right to make her own decisions regarding her reproductive health and choose contraceptive measures more suited to her life plan, ( ii) her sterilization was not an urgent operation or an emergency procedure, (iii) the doctor failed to comply with the obligation to obtain prior, full and informed consent, (iv) the fact that the applicant was under pressure, the stress and vulnerability of the patient undergoing surgery did not allow expression free and full of will and therefore prevented a valid consent, (v) the authorization, signed by the applicant's husband, for a caesarean section did not constitute a valid authorization for tubal ligation. It follows that the applicant was sterilized in the absence of her informed consent.


RESOLUTION


The case has violated the requirements of the Convention (adopted unanimously).

(b) Article 5 (1) and (2) ACHR (Prohibition of torture or cruel, inhuman or degrading treatment) in conjunction with Article 1 (1). The Inter-American Court of Human Rights recalled that the international community is increasingly recognizing that torture and ill-treatment can take place in other contexts of deprivation of liberty, domination or control in which the victim is helpless, such as in the health sector. After due consideration of the intensity of the applicant's suffering, the Inter-American Court of Human Rights found that sterilization without her consent, in the specific circumstances of the case, amounted to cruel, inhuman and degrading treatment.


RESOLUTION


There was a violation of the ACHR requirements in the case (adopted unanimously).

(c) Articles 8 (1) (right to a fair trial) and 25 (1) ACHR (right to a judicial remedy) in conjunction with Article 1 (1) and Article 7 (b), (c), (f) and (g) the Belem do Para Convention. With regard to access to justice, the Inter-American Court has indicated that if prior, full and informed consent is a requirement for sterilization to comply with international standards, the authorities must guarantee legal remedies in cases where consent has not been adequately obtained to provide compensation to victims. The State failed to fulfill its obligation to guarantee, in the absence of discrimination, the right of access to justice in the present case.


RESOLUTION


There was a violation of the ACHR requirements in the case (adopted unanimously).

(d) Compensation. The Inter-American Court of Human Rights found that the judgment in itself constituted a form of reparation, and ordered the State to (i) ensure that the applicant was provided with free, immediate, adequate and effective medical and psychological or psychiatric assistance to the applicant, especially in matters of sexual and reproductive health, (ii) publish the decision and its official summary, (iii) implement the act of recognition of the international responsibility of the state, (iv) publish a publication or brochure containing accessible and clear information regarding the reproductive and sexual rights of women, with particular reference to the requirement of prior, free, full and informed consent, (v ) organize an ongoing educational program on topics such as informed consent, gender discrimination, stereotypes and violence against women for medical students, doctors and staff working in health and social care, and (vi) pay compensation tion of material damage and moral damage, as well as legal costs and expenses.

 

 

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