Forced sterilization and prior informed consent. A case of the Inter-American Court of Human Rights
In accordance with Article 7.1(g) of Rome Statute, forced sterilization is a crime against humanity. Sadly, forced sterilization is not a new issue and even though it is used as war weapon can have place outside context of conflicts around all over the world.
During the last years, it has had some development and got the attention of international judicial instances.
For example, in 2011 the European Court of Human Rights faced a case [V.C. v. Slovakia] where held that the sterilization of 20-year old Roman woman without her informed consent constitute a violation of her human rights, i.e. prohibition of inhuman treatment (art. 3 CEDH) and right to respect for private and family life (art. 8 CEDH).
More recently, in 2016, the Inter-American Court of Human Rights (IACHR) decided a contentious case against Bolivia [I.V. v. Bolivia] where the duty and right to have a prior informed consent for sterilization process was the main juridical issue.
The IACHR has few cases dealing with health and sanitary issues and this is the first case dealing with a case of forced sterilization. On the other hand, Bolivia is not the only American state which can be liable for human rights violations deriving form forced sterilization process.
For these reasons, the I.V. case must be studied carefully. Although, we are talking a complex issue not only legally speaking but also because of its factual grounds, here I am going to explain simply the most relevant elements for its comprehension.
In 1st of July 2000, Mrs. I.V. went to a local hospital; she has suffered a spontaneous rupture of membranes at week 38.5 of pregnancy. As a consequence, doctors performed a caesarean having some difficulties during the surgery.
After a complex intervention, a girl was given birth successfully. Nevertheless, being Mrs. I.V. anesthetized, doctors cut her fallopian tubes, so she lost the possibility to be a mother again.
Mrs. I.V. said that she never was told about the sterilization process, whereas the Stated argued that doctors got a verbal consent from her and that to require a written prior consent is a disproportional burden.
The IACHR held that when a medical procedure has severe consequences, higher is the standard to be fulfilled to obtain a prior informed consent. Likewise, the Court highlighted that a sterilization process has substantial effects in woman’s life, thus requires a prior informed and written consent.
Consent’s elements highlighted by the IACHR:
Must be done before the medical procedure. This rule has few exceptions, such as emergency cases or where patient’s life is at risk.
Must be free. Patient must give her consent without any pressure of threat. The IACHR understands that before giving birth a woman is under stress and vulnerability, and she cannot take a free decision.
Must be informed. This requirement means that the patient shall receive all the relevant information about her situation including all alternatives and treatments available.
Therefore, when a sterilization process is performed without prior informed consent, it implies an infringement of woman’s right to self-determination.
Given that the sterilization process was performed without Mrs. I.V.’s prior informed consent, the IACHR declared Bolivia liable for the infringement of her rights to personal safety/integrity, dignity, privacy, access to information and to have a family.
I published a more detail summary of I.V. case in Spanish here:
Este caso es relevante puesto que en la jurisprudencia interamericana no son muchos los casos sobre asuntos sanitarios…www.aldespacho.com
As I said at the very beginning of this post, Bolivia is not the only American state with issues relating to forced sterilization. For instance, under Fujimori’s regimen in Peru several women, mostly indigenous, were sterilized without a prior informed consent.
Para el reo Alberto Fujimori la ancestral costumbre de las mujeres andinas de cargar a sus hijos en la espalda y llevar…diariouno.pe
The Inter-American Commission of Human rights has received at least one petition (probably there are more petitions brought before the Inter-American Commission, if you have information about I invite you to share it commenting below) dealing with a forced sterilization in Perú [Informe №66/00 Case 12.191], however this case was finished through a friendly settlement procedure.
Likewise, in 2014 the Inter-American Commission acknowledged competence of a petition against Chile based on forced sterilization grounds.
The Chilean case concern a woman with HIV [see a similar case in Namibian] whereas in the Peruvian and Bolivian cases women involved belonged to indigenous communities and/or had lower income. Nevertheless, them all have in common the absence of a prior, free and informed consent of women. Further cases may be brought before the Inter-American System of Human Rights coming from different backgrounds but concerning to the same women’s rights.