A.S. v. Hungary

Communication No. 4/2004, U.N. Doc. CEDAW/C/36/D/4/2004 (July 14, 2006).
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A.S., a Hungarian-Roma woman in labor, was taken to a public hospital in shock and bleeding heavily. Because the fetus was dead, attending personnel informed her that a caesarean section was needed to remove the fetus. While on the operating table, she was asked to sign a statement of consent, including a hand-written note requesting sterilization, using the Latin term for the procedure. Hospital records indicate that within 17 minutes of arrival, the fetus and placenta were removed and her fallopian tubes tied. Before leaving, A.S. inquired as to her state of health and when she could have another baby.

A civil claim was filed on behalf of the petitioner against the hospital, claiming a civil rights violation and negligence based on sterilizing petitioner without obtaining her full and informed consent. The claim was rejected both by the Town Court and on appeal.

A.S. subsequently brought a claim before the United Nations Committee alleging that she had not been informed sufficiently about the risks, consequences and alternatives to sterilization and that consequently, her informed consent had not been obtained. A.S. alleged that Hungary violated her rights under articles 10(h) (information on family planning), 12 (right to access healthcare services) and 16(1)(e) (right to decide freely on the spacing and number of children) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). State party denied any rights violation.

The Committee found that Hungary had violated article 10 (information on family planning) for failing to provide information and advice on family planning, particularly given that sterilization has serious consequences for women.

The Committee found that Hungary violated the article 12 (right to access healthcare services) by failing to ensure informed consent from A.S. to perform the sterilization. The Committee considered that the circumstances did not allow for proper counseling and information on the procedure.

The Committee found that Hungary had violated article 16(1)(e) (right to decide freely on the spacing and number of her children) because the sterilization was performed without A.S.'s full and informed consent, depriving her permanently of her "natural reproductive capacity."

The Committee considered the case admissible even though the procedure predated CEDAW's optional protocol, which gives the Committee competence to receive individual complaints in States that ratified the optional protocol. The Committee considered the sterilization an ongoing violation because it permanently deprived A.S. of her natural reproductive capacity.

The Committee recommended that the State Party provide appropriate compensation to A.S. "commensurate with the gravity of the violations of her rights." The Committee recommended that the State Party take further measures to amend its laws to conform with international human rights and medical standards and take steps to ensure that relevant provisions of the Convention and accompanying recommendations (Nos. 19, 21 and 24) in relation to women's reproductive health and rights be known and adhered to by all relevant healthcare personnel in public and private health facilities. The Committee also recommended that all private and public medical facilities performing sterilization procedures comply with requirements of informed consent, with appropriate sanctions in place in the event of a breach.

"With respect to the claim that the State party violated article 10 (h) of the Convention by failing to provide information and advice on family planning, the Committee recalls its general recommendation No. 21… which recognizes in the context of 'coercive practices which have serious consequences for women, such as forced … sterilization” that informed decision-making about safe and reliable contraceptive measures depends upon a woman having “information about contraceptive measures and their use, and guaranteed access to sex education and family planning services'." Para. 11.2.

"According to article 12 of the Convention, States parties shall 'ensure to women appropriate services in connection with pregnancy, confinement, and the post-natal period'. The Committee explained in its general recommendation No. 24 on women and health that '[A]cceptable services are those that are delivered in a way that ensures that a woman gives her fully informed consent, respects her dignity…' …'States parties should not permit forms of coercion, such as non-consensual sterilization … that violate women’s rights to informed consent and dignity'. The Committee considers in the present case that the State party has not ensured that the author gave her fully informed consent to be sterilized and that consequently the rights of the author under article 12 were violated." Para. 11.3.

“As to whether the State party violated the rights of the author under article 16, paragraph 1 (e) of the Convention, the Committee recalls its general recommendation No. 19 on violence against women in which it states that “[C]ompulsory sterilization ... adversely affects women’s physical and mental health, and infringes the right of women to decide on the number and spacing of their children”. The sterilization surgery was performed on the author without her full and informed consent and must be considered to have permanently deprived her of her natural reproductive capacity." Para. 11.4.