IA Court: Is Forced Sterilization TCIDT?

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). Continue reading