Earlier this month Ciara O’Connell’s blog post alerted us that I.V. v. Bolivia is expected to be the first Inter-American Court of Human Rights (IA Court) case to apply the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women to a reproductive rights case. The case is exciting for other reasons as well. It is the IA Court’s first case involving non-consensual sterilization and provides an important opportunity for the Court to condemn forced sterilization, to adopt clear standards concerning informed consent, and to join U.N. human rights bodies and the European Court of Human Rights in recognizing that forced sterilization violates women’s fundamental human rights to personal integrity and autonomy, to be free from gender discrimination and violence, to privacy and family life, and, as CUNY Law School’s Human Rights and Gender Justice Clinic and Women Enabled International recently argued in our amicus brief to the IA Court, the right to be free from cruel, inhuman or degrading treatment (CIDT) or torture.
In order to ensure that states fully recognize and address violations of women’s human rights and to overcome the inherent bias in human rights law that has historically prioritized violations that disproportionately impact men, it is critical for international and regional human rights bodies to recognize the gender dimensions of torture and CIDT. Non-consensual sterilization falls squarely within the parameters of CIDT, and in some cases torture, under international human rights law: the practice, which disproportionately affects women, inflicts permanent bodily harm, as well as severe physical and mental health consequences, and is often intentionally carried out for discriminatory purposes. Indeed, forced sterilization is frequently motivated by animus towards a specific group (e.g., immigrants, ethnic or national minorities, or indigenous women) or by discriminatory attitudes that certain people should not have children (e.g., women with disabilities, women living with HIV, transgender individuals). In a series of cases against Slovakia concerning the forced sterilization of Roma women, the European Court of Human Rights has recognized that that forced sterilization violates Art. 3 of the European Convention on Human Rights, which prohibits torture and inhuman or degrading treatment or punishment. The U.N. Special Rapporteur on Torture recently reiterated that forced sterilization violates a person’s right to be free from torture or ill-treatment.
The case also provides an interesting opportunity for the IA Court to directly consider and condemn gender bias in the health care context. The circumstances surrounding the forced sterilization of I.V., a Peruvian refugee, seem to illustrate the all too common scenario of medical providers making medical decisions on behalf of women who are deemed unfit or unable to make their own choices because of patriarchal and stereotypical attitudes.
According to the petitioner, I.V. went to a Bolivian public hospital that predominantly serves poor women, many of whom are migrant or indigenous women, to deliver her third child. During the c–section, the doctors decided that a future pregnancy would be dangerous for I.V. and performed a tubal ligation. The parties dispute whether consent was obtained during the surgical procedure. (Because circumstances during labor and immediately preceding or after delivery are inconsistent with voluntary patient choice, medical ethical standards, U.N. human rights bodies and the European Court of Human Rights make clear that if I.V. had given consent at this time, it would have been invalid).
Because of I.V.’s status as a poor, migrant woman, the medical staff assumed it could make the decision to sterilize her without her consent with impunity. In its merits report, the Inter-American Commission on Human Rights took note of the special vulnerability of migrant women seeking health care in Bolivia given their reliance on public services and the lack of care options. It found that I.V.’s medical team was influenced by “gender stereotypes on the inability of women to make autonomous” reproductive decisions and that the decision to sterilize I.V. without her consent reflected notions that the medical staff was “empowered to take better medical decisions than the woman concerned regarding control over reproduction.”
Even if the medical staff thought it was acting in I.V.’s best interest, it was not justified in robbing her of the ability to make her own decision. The Special Rapporteur on Torture has recognized that discriminatory medical treatment is not justified because it is “well-intended.” Similarly in I.G. and Others v. Slovakia and V.C. v. Slovakia, the European Court of Human Rights has emphasized that the fact that medical staff may have thought they were acting in a patient’s best interest does not excuse sterilization without informed consent. The European Court and U.N. experts have also recognized that although medical emergencies can sometimes justify non-consensual medical interventions, the emergency exception does not justify sterilization based on health risks posed by a possible future pregnancy.
I.V. v. Bolivia provides the IA Court with a unique opportunity to recognize the serious harm imposed by forced sterilization by acknowledging it as a form of cruel, inhuman or degrading treatment or torture and to affirm women’s right to make fundamental decisions about their bodies, their health, and their future.