Denial of access to therapeutic abortion and essential health care violated Convention on Elimination of Discrimination against Women

L.C. v. Peru, UN Doc. CEDAW/C/50/D/22/2009 (4 November 2011)

Summary

The UN Committee on the Elimination of Discrimination against Women has found that Peru, by denying a minor who had been sexually abused access to therapeutic abortion and delaying necessary spinal surgery that contributed to her paralysis, violated articles 2(c), 2(f), 3, 5 and 12 of the Convention on the Elimination of All Forms of Discrimination against Women in conjunction with article 1.

Facts

L.C. was 13 years of age when she learned that she pregnant – the result of being sexually abused repeatedly by a 34 year-old man. After learning that she was pregnant, L.C. became depressed and attempted suicide by jumping from a neighbourhood building.  She survived the fall and was eventually taken to a public hospital, where it was determined that she was at risk of permanent disability and required emergency spinal surgery. Despite the serious risk to L.C., her doctors postponed the surgery because she was pregnant. L.C. requested a termination of pregnancy in accordance with article 119 of Peru’s Penal Code, which permits abortion only in cases where it is necessary to “save the life of the mother or to avoid serious and permanent harm to her health”. Hospital officials refused a request to carry out a termination because they considered that L.C.’s life was not in danger. Subsequent appeals to have the termination performed were unsuccessful. L.C. later miscarried. Doctors performed the spinal surgery on L.C. only after she miscarried and almost three and a half months after they determined that the surgery was necessary. L.C. is now paralyzed from the neck down and has regained only partial movement in her hands.

The victim’s mother, T.P.F., subsequently submitted a communication to the CEDAW Committee. She alleged that the doctors’ refusal to perform a therapeutic abortion and the delayed scheduling of spinal surgery violated L.C.’s rights to non-discrimination, to health, to an effective remedy and to decide on the number and spacing of her children and the freedom from wrongful gender stereotyping, in breach of articles 1, 2(c), 2(f), 3, 5, 12 and 16(1)(e) of CEDAW. T.P.F. also alleged violations of the right to life and the freedom from cruel, inhuman and degrading treatment. The alleged violations, T.P.F. submitted, were aggravated by L.C.’s status as a minor.

Decision

The Committee determined that Peru, through the actions of medical staff at a public hospital, had violated articles 2(c), 2(f), 3, 5 and 12 of CEDAW, read in conjunction with article 1. The Committee declined to rule on whether or not Peru had also violated article 16(1)(e).

Right to health (article 12)

The Committee determined that Peru had failed to ensure L.C. could access essential health care services, as required by article 12 of CEDAW. It explained that “owing to her condition as a pregnant woman, L.C. did not have access to an effective and accessible procedure allowing her to establish her entitlement to the medical services that her physical and mental condition required. … This is even more serious considering that she was a minor and a victim of sexual abuse, as a result of which she attempted suicide. The suicide attempt is a demonstration of the amount of mental suffering she had experienced”.

Freedom from wrongful gender stereotyping (article 5)

The Committee found that Peru had engaged in wrongful gender stereotyping, in violation of article 5 of CEDAW. In the Committee’s expert view, the decision of medical staff to delay the spinal surgery was based on the prescriptive sex-role stereotype that women should be mothers. The Committee reasoned that reliance on this stereotype had the effect of prioritising protection of the foetus over the life, health and dignity of L.C., and ultimately contributed to her becoming a paraplegic.

Right to an effective remedy and effective protection against discrimination (article 2)

The Committee determined that there was no legal remedy available in Peru capable of protecting L.C.’s right to appropriate medical care. It also noted the absence of a legal framework governing access to therapeutic abortion and determined that this had resulted “in a situation where each hospital determines arbitrarily, inter alia, what requirements are necessary [to establish eligibility for abortion], the procedure to be followed, the time frame for a decision and the importance to be placed on the views of the mother”.

The Committee concluded that, since Peru had legalised abortion in certain circumstances, it was required under CEDAW to “establish an appropriate legal framework that allows women to exercise their right to [abortion] under conditions that guarantee the necessary legal security, both for those who have recourse to abortion and for the health professionals that must perform it”. The Committee stated that the framework must: include a mechanism for rapid decision-making; ensure that the opinion of the woman or girl is a relevant factor that is taken into account in determining eligibility; require well-founded decisions; and establish a right to appeal. The Committee determined that L.C. had been denied access to an effective remedy and effective protection against discrimination, in violation of article 2(c) and 2(f) of CEDAW, because she was not able to access a procedure for requesting a therapeutic abortion that met these criteria.

The decision can be found online at: http://www2.ohchr.org/english/law/docs/CEDAW-C-50-D-22-2009_en.pdf.

Simone Cusack is Senior Policy & Research Officer in the Sex Discrimination Unit at the Australian Human Rights Commission