I/A Court H.R., Case of I.V. v. Bolivia. Preliminary Objections, Merits, Reparations and Costs. Judgment of November 30, 2016. Series C No. 329.

Non official brief

[This summary was developed by the Secretariat of the Inter-American Court of Human Rights. It relates only to the merits and reparations aspects of the judgment. A more detailed, official abstract (in Spanish only) is available on that Court’s website: http://www.corteidh.or.cr/

 

Facts - On 1 July 2000 the applicant, Ms IV, was sterilized after a caesarean delivery by a tubal ligation performed in the Women's Hospital of La Paz, Bolivia. She said that she was not informed or consulted prior to the sterilization procedure and only found out about the permanent loss of her reproductive capacity being told by a doctor the day after the surgery. The State rejected these claims, stating that she had verbally consented during the procedure and that the aim had been to protect her health and ultimately her life against a potential risk if she became pregnant again in the future. Despite the claims made by the applicant, no one was found responsible in disciplinary, administrative or criminal proceedings for the sterilization performed without his informed consent.

 

Law

 

(a) Articles 4 (1) (Right to Life) and 5 (1) (Right to Personal Integrity) of the American Convention on Human Rights (ACHR) in conjunction with Article 1 (1) (Obligation to Respect and Ensure Rights) and Article 7 of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women ("Convention of Belém do Pará") - Informed consent is an essential aspect of medical practice which is based on respect for autonomy and freedom of choice in each person's life plan It is not only an ethical duty, but also a binding legal obligation of the medical personnel, which forms part of a good medical practice and expertise (lex artis) in order to guarantee accessible and acceptable health services. Consent consists of a decision to willingly submit to a medical act.It must (i) be obtained prior to any medical act, the only exception being when an emergency or life threatening situation occurs and consent can not be obtained; (ii) be given in a free, voluntary and autonomous manner; and (iii) be full and informed. Informed consent is linked to the right to access information in the health field because a patient can only give free and informed consent after obtaining adequate, complete, reliable, comprehensible and accessible information which he or she must have 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.Informed consent is linked to the right to access information in the health field because a patient can only give free and informed consent after obtaining adequate, complete, reliable, comprehensible and accessible information which he or she must have 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. Informed consent is linked to the right to access information in the health field because a patient can only give free and informed consent after obtaining adequate, complete, reliable, comprehensible and accessible information which he or she must have 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 acknowledged that freedom and autonomy of women with regard to sexual health matters had been historically limited, restricted or denied as a result of negative and negative gender stereotypes. Such stereotypes could impact and affect access to women's sexual and reproductive health information, as well as the process and manner in which consent was obtained. The phenomenon of sterilization without informed consent was the product of historical inequities between men and women and affected women disproportionally because of their socially assigned reproductive role and responsibility for contraception.

 

In the instant case the Inter-American Court found that (i) even though general regulations on informed consent existed, the State had not taken preventive measures to secure the applicant's right to make its own decisions regarding her reproductive health and to choose contraceptive measures better adjusted to her life plan; (ii) her sterilization was not an urgent surgery or emergency procedure; (iii) the doctor had failed to comply with the duty to obtain prior, free, full and informed consent; (iv) the fact that the patient was under the pressure, stress and vulnerability of a patient undergoing surgery had not been allowed for the manifestation of free and full and had thus prevented valid consent; and (v) the authorization signed by the applicant's husband for the caesarean section did not count as valid authorization for the tubal ligation. Consequently, the applicant had been sterilized without her informed consent.

 

Conclusion: violation (unanimously).

 

(b) Article 5 (1) and (2) (Prohibition of torture or cruel, inhuman, or degrading treatment) of the ACHR, in conjunction with Article 1 (1) thereof - The Inter-American Court recalled that the international community had progressively acknowledged that torture and ill-treatment could take place in other contexts of custody, domination or control in which the victim was defenseless, such as in the field of health services. After due consideration of the intensity of the suffering endured by the applicant, the Court established that her sterilization without her consent constituted, in the particular circumstances of the case, cruel, inhuman and degrading treatment.

 

Conclusion: violation (unanimously).

 

(c) Articles 8 (1) (Right to a Fair Trial) and 25 (1) (Right to Judicial Protection) of the ACHR, in conjunction with Articles 1 (1) thereof and 7 (b), (c), ( f) and (g) of the Convention of Belém do Pará - Concerning access to justice, the Inter-American Court held that if prior, free, full and informed consent is a requirement for a sterilization to be in accordance with international standards, then legal advice remedies in cases where consent was not appropriately obtained in order to provide reparation to victims. The State had not complied with its obligation to guarantee, without discrimination, the right to access to justice in the present case.

 

Conclusion: violation (unanimously).

 

(d) Reparations – The Inter-American Court estab­lished that the judgment constituted per se a form of reparation and ordered the State to: (i) provide free, immediate, adequate and effective medical and psychological or psychiatric treatment to the applicant, especially in sexual and reproductive health matters; (ii) publish the judgment and its offi­cial summary; (iii) perform an act to acknowledge the State’s international responsibility; (iv) design a publication or brochure including accessible and clear information regarding the reproductive and sexual rights of women with specific mention of the requirement of prior, free, full and informed consent; (v) incorporate a continuing education programme on topics such as informed consent, gender discrimination, stereotypes and violence against women for medical students, doctors and all personnel working in health and social secu­rity; and (vi) pay pecuniary and non-pecuniary damages, as well as costs and expenses.