In the Name of Reproductive Rights; Litigating before the UN Committee on the Elimination of Discrimination against Women

17 May 2007

Anita Danka

In the field of reproductive rights there have been documented cases of discrimination against Romani women. In the medical sphere, Romani women often face situations where they are not given adequate information related to their medical condition, where they are not involved in the decision-making process concerning their treatment, or where they are treated as objects instead of clients and are approached with the attitude of "the doctor knows the best".

Reproductive rights are incorporated into basic international human rights principles, such as the right to life, the right not to be subjected to torture or other cruel, inhuman, or degrading treatment or punishment, the right to liberty and security of the person, the right to private and family life, the right to freedom of expression, the right to receive and impart information, the right to marry and found a family, right to be free from discrimination, the right to education, etc. According to the Center for Reproductive Rights, "The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) provides the strongest international legal support for women's reproductive rights by explicitly outlining the right to health and family planning." The Committee on the Elimination of Discrimination against Women (CEDAW Committee) monitors the compliance with CEDAW. Although the CEDAW Committee, like the other UN treaty monitoring bodies, is not a judicial body, it can accept individual complaints against a state that has ratified the Optional Protocol to CEDAW. Moreover, the Committee can initiate inquires into grave and systematic violations of women's rights.

Although litigation is not the only tool for enforcing reproductive rights, the individual complaints procedure – provided for example by the Optional Protocol to CEDAW – has the potential to serve as a "whip" to bring about the realisation of these rights. The complaints procedure is a formal process by which an individual (or group of individuals) makes a complaint to the treaty body overseeing the implementation of the specific treaty that a state party has violated his/her individual rights under. Although the decisions and recommendations of the treaty monitoring bodies expressed in their "views" at the end of the procedure are not binding and there is no enforcement mechanism for the decisions, the treaty bodies expect State parties to implement their decisions and to provide the victim with an appropriate remedy.

The Optional Protocol to CEDAW was adopted by the General Assembly on 6 October 1999 and it entered into force on 22 December 2000. By becoming a State Party to the Optional Protocol, a State recognises the competence of the CEDAW Committee to receive and consider written communications from individuals or groups of individuals who claim to be victims of a violation by that State Party of any rights set forth in the Convention. So far there have been two instances in which the CEDAW Committee established a breach of the Convention, and in both occasions the violator was Hungary. The first case, A.T. v. Hungary, involves domestic violence and the second, A.S. v. Hungary, concerns the issue of reproductive rights.

The Case of Ms A.S.

Ms A.S. is a Hungarian citizen of Romani origin. On 30 May 2000, a medical examination confirmed that she was pregnant. On 2 January 2001, she felt pains and she lost her amniotic fluid; this was accompanied by heavy bleeding. She was taken to hospital, where she was examined. It was diagnosed that her foetus had died in the womb, that her womb had contracted and that the placenta had broken off. She was told that a caesarean section had to be immediately performed in order to remove the dead foetus. While on the operating table, she was asked to consent to the caesarean section and she also signed a hand-written statement written by the doctor on the same page: "Having knowledge of the death of the foetus inside my womb I firmly request ‘my sterilisation'. I do not intend to give birth again, nor do I wish to become pregnant." After this, the sterilisation was performed.

However, Ms A.S. did not know the meaning of the word "sterilisation". She was given no information about the nature of sterilisation, its risks and consequences or about other forms of contraception. This was revealed from her testimony and the lack of any related documentation in this regard. She had lost a great deal of blood by the time she reached the hospital and was in a state of shock after learning that her foetus had died in her womb. The hospital records reveal that seventeen minutes passed between the ambulance arriving at the hospital and the completion of both operations. She only learnt that she would not be able to give birth again upon leaving the hospital when she asked the doctor when she could try to have another baby.

On 15 October 2001, Ms A.S. and her attorney filed a civil claim for damages against the hospital. They requested that the hospital be found in violation of the plaintiff's civil rights and that the hospital be found to have acted negligently in its professional duty of care with regard to the sterilisation of Ms A.S. in the absence of her full and informed consent. The claim was turned down on 22 November 2002. On appeal, the Szabolcs- Szatmar-Bereg County Court held that the hospital doctors had indeed acted negligently in failing to provide Ms A.S. with the relevant information about the sterilisation and stressed that "the information given to the plaintiff concerning her sterilisation was not detailed ... [and that she] ... was not informed of the exact method of the operation, of the risks of its performance, and of the possible alternative procedures and methods." Nevertheless, the same Court concluded that sterilisations as such are fully reversible operations and that since Ms A.S. had provided no proof that she had suffered lasting detriment, she was therefore not entitled to any compensation. The decision of the second-instance court was final.

Having exhausted all available domestic remedies, it was then possible to file a complaint at the regional (European) or international level. Since reproductive rights, as discussed above, are embedded in all the basic human rights instruments, there were more forums available where the violations suffered by Ms A.S. could be addressed. Since CEDAW specifically outlines the right to appropriate health care services and family planning, and the legal position of the CEDAW Committee is clear in these matters as revealed by its General Recommendations, on 12 February 2004, the European Roma Rights Centre (ERRC) and the Legal Defence Bureau for National and Ethnic Minorities (NEKI) jointly filed a complaint against Hungary with CEDAW relating to the illegal sterilisation.

The complaint asserted that Hungary had violated Article 10(h) (no adequate information on contraceptive measures and family planning), Article 12 (the lack of informed consent on the part of the victim as a violation of her right to appropriate health care services), and Article 16.1(e) (the State's interference with the victims ability to decide freely on the number and spacing of her children).

During the preparation of the communication, admissibility concerns arose as the incident occurred on 2 January 2001, two months before Hungary ratified the Optional Protocol on 22 March 2001. We argued that Hungary ratified the Convention in 1981 and had therefore been legally bound by its provisions for twenty years at the time the violation occurred. Also, the Optional Protocol is a jurisdictional mechanism that results in the recognition by the State concerned of a further way in which the Committee can attain competence. Therefore, the Convention has to be respected by the State Party from the moment of its ratification and the Optional Protocol results merely in the opportunity for victims to file individual complaints. Moreover, the aim of sterilisation is to end the patient's ability to reproduce and from the legal as well as medical perspective it is intended to be irreversible, therefore the violation had and still has a continuing effect.

In the substantiation of violation claims, we relied on previous concluding observations of the CEDAW Committee in interpreting the Convention, other sources of international law, national law arguments, and international and domestic jurisprudence concerning reproductive rights. Although UN Committees do not formally accept third-party submissions, an amicus brief was prepared by the New York-based Center for Reproductive Rights on informed consent standards, which was very well received by the Committee.

Based on Article 10(h) of the Convention, the State has to provide access to specific educational information to help to ensure the health and well-being of families, including information and advice on family planning. General Recommendation 21 of the Committee states, "in order to make an informed decision about safe and reliable contraceptive measures, women must have information about contraceptive measures and their use, and guaranteed access to sex education and family planning services as provided in Article 10(h) of the Convention." Correspondingly, the Hungarian Health Care Act states that the doctor performing the operation must inform the person requesting the intervention and her/his spouse/partner about further options of birth control, nature, possible risks and consequences of the intervention prior "in a way that is comprehensible to her/him with due regard to her/his age, education, knowledge, state of mind, and her/his expressed wish on the matter."

In connection with Article 12 the Convention standards regulate that, "State parties shall take all appropriate measures … in the field of health care in order to ensure access to health care services, including those related to family planning." States also have to "...ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period." According to the Committee's General Recommendation 24, "women have the right to be fully informed, by properly trained personnel, of their options in agreeing to treatment or research, including likely benefits and potential adverse effects of proposed procedures and available information". Furthermore, the Committee states that "acceptable services are those that are delivered in a way that ensures that a woman gives her fully informed consent, respects her dignity, guarantees her needs and perspectives. States parties should not permit forms of coercion, such as non-consensual sterilization."

Based on the standards of the World Health Organization (WHO), informed consent is a prerequisite for any medical intervention. This principle was also confirmed by the European Convention on Human Rights and Biomedicine. The International Conference on Population and Development held in Cairo in 1994 also declared that informed choice is a fundamental principle of quality health care services and is recognised as a human right by the international community. General Comment 28 of the UN Human Rights Committee states, "nonconsensual sterilization constitutes torture or cruel, inhuman or degrading treatment." The Hungarian Health Care Act, in line with the above-mentioned standards, states, "the performance of any health care procedure shall be subject to the patient's consent granted on the basis of appropriate information, free from deceit, threats and pressure." Based on the fact that only seventeen minutes passed between the arrival of Ms A.S. at the hospital and the end of the sterilisation operation, and considering Ms A.S.'s mental and physical condition before the intervention, it is impossible that she could have made an informed decision concerning her sterilisation.

The CEDAW Committee has also emphasised that "compulsory sterilization or abortion adversely affects women's physical and mental health, and infringes the right of a woman to decide on the number and spacing of their children." In its General Recommendation 19, the Committee clearly states that "States parties should ensure that measures are taken to prevent coercion in regard to fertility and reproduction." In Y.F. v. Turkey, the European Court of Human Rights declared that any compulsory, forced or coerced medical intervention, even if it is of minor importance, constitutes an interference with a person's right to private life under Article 8.

When the submission was communicated, preliminary objections as to its admissibility were raised by the State. The non-exhaustion of judicial review as an effective domestic remedy and ratione temporis concerns were raised as the sterilisation occurred before Hungary ratified the Optional Protocol. Concerning the substantive claims, the State party expressed its view that since Ms A.S. has three other children she must have been familiar with the nature of pregnancy and childbirth even without having completed further education. She was given all information appropriate under the circumstances before the operation, which was inevitable due to the medical indications. Moreover, the State party emphasised that "the Hungarian Public Health Care Act allows the physician to deliver sterilisation without any special procedure when it seems to be appropriate in given circumstances."

Since both the CEDAW as well as other international standards summarised in the original submission refute the substantive claims of the State party, the focus of the procedure turned to the admissibility considerations. That boiled down to two questions: whether judicial review should have been exhausted by Ms A.S., and whether sterilisation constitutes an irreversible operation resulting in a continuing violation.

For the purposes of the Convention (and for that of other international treaty-monitoring bodies as well as of the European Court of Human Rights) only effective remedies must be exhausted. For a remedy to be effective, it has to be binding, available, and sufficient to decide upon the core elements of the claim and to give redress. We argued that judicial review is not only an extraordinary remedy that cannot be brought into connection with the constitutionally guaranteed right to appeal and therefore must not be exhausted for the purposes of admissibility, but also in the present case it was not accessible for the petitioner. Between 1 January 2002 and 9 November 2004, at the time of this case, judicial review had very strict admissibility requirements. Moreover, the conditions were later declared unconstitutional by the Constitutional Court based on legal certainty grounds required by the rule of law provisions of the Constitution, so this remedy was not sufficiently certain for the purposes of effectiveness.

Sterilisation is a method of birth control aiming at ending one's capacity to reproduce. According to WHO standards as reflected in the Medical Eligibility Criteria for Contraceptive Use, sterilisation is considered irreversible and permanent. The reversal operation is a complex one with a low chance of success. When it comes to reversal operations, one can only talk about a medical probability. This means that only by carrying out a reversal operation on Ms A.S. one could prove whether she could regain her fertility. However, no one can be asked to undergo an operation for a purpose of proof or in an attempt to "reduce harm induced". Her physical integrity and human dignity was violated by the nonconsensual sterilisation irrespective of any medial chance of success of a reversal operation.

At its meeting of 14 August 2006, the Committee concluded that Hungary violated the Convention because of the illegal sterilisation of Ms A.S. In its decision, the Committee was convinced by the ERRC/NEKI arguments that sterilisation is intended to be irreversible, that the success rate of surgery to reverse sterilisation is low and depends on many factors and that the reversal surgery entails risks. With respect to the claim that Hungary violated the Convention by failing to provide information and advice on family planning, the Committee stated that the applicant "has a right protected by Article 10(h) of the Convention to specific information on sterilization and alternative procedures for family planning in order to guard against such an intervention being carried out without her having made a fully informed choice."

In connection with sterilisation surgery performed without informed consent, the Committee reiterated that according to Article 12 of the Convention, State parties shall "ensure to women appropriate services in connection with pregnancy, confinement, and the post-natal period." The Committee found that the sterilisation surgery was performed on Ms A.S. "without her full and informed consent and must be considered to have permanently deprived her of her natural reproductive capacity", therefore her right to decide freely and responsibly on the number and spacing of her children was also violated.

In conclusion, the Committee recommended that appropriate compensation should be paid to Ms A.S., commensurate with the gravity of the violation of her rights. Hungary should ensure that the relevant provisions of the Convention and the pertinent paragraphs of the Committee's General Recommendations in relation to women's reproductive health and rights are known and adhered to by all relevant personnel in public and private health centres, including hospitals and clinics. The State party should review domestic legislation on the principle of informed consent in cases of sterilisation and ensure its conformity with international human rights and medical standards. Public and private health centres, including hospitals and clinics that perform sterilisation procedures, should be monitored so as to ensure that fully informed consent is given by the patient before any sterilisation procedure is carried out, with appropriate sanctions in place in the event of any breach of the requirement for informed consent.

This is the second time that the Committee has found Hungary in breach of the Convention on the Elimination of All Forms of Discrimination against Women; with this decision, the country sets a troubling record. The communications from the Government in both cases revealed that the Convention standards, although clearly articulated in the General Recommendations of the Committee, are not known by the State Party and that in the areas of domestic violence and reproductive rights the legal and institutional system in Hungary is not yet able to ensure comprehensive and effective protection from potential violations.

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