T. P. F. (represented by the Centre for Reproductive Rights and the Centre for the Promotion and Protection of Sexual and Reproductive Rights) v. Peru

Communication No. 22/2009
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This claim was brought on behalf of the injured by her mother, who asserted that the failure of the Peruvian health system to ensure access to essential services for women, in this case therapeutic abortion, compromises its obligations under the Convention on the Elimination of All Forms of Discrimination against Women, entered into force in Peru in 1982.

The injured, L.C. was sexually abused in 2006, when she was 13 years old. She became pregnant, and attempted suicide by jumping from a building. L.C. suffered damage to the spinal column, which caused paraplegia of the lower and upper limbs and required emergency surgery to prevent the injuries from worsening and leaving her disabled. The surgery was scheduled for April 2007.

Doctors postponed the surgery because of her pregnancy, despite requests by L.C.’s mother that the hospital officials to carry out a legal termination of the pregnancy in accordance with article 119 of the Penal Code, which provides that abortion shall be performed when it is the only way to save the life of the mother or avoid serious and permanent harm to her health. Abortion is otherwise criminalized in Peru. L.C.’s mother sought assistance from the Centre for the Promotion and Protection of Sexual and Reproductive Rights, but the hospital denied the request because it considered L.C.’s life was not in danger. L.C.’s mother then submitted to hospital authorities another request for reconsideration of their decision.

In June 2007, L.C. miscarried spontaneously. Only after she miscarried did the hospital board deny the appeal for termination. In July 2007, L.C. was operated on for her spinal injuries, almost three and one half months after the surgery had been originally scheduled. She required intensive physical therapy and rehabilitation, but treatment and rehabilitation did not start until four months after the operation.

L.C. was forced to abandon her rehabilitation treatment for due to high costs. She is paralyzed from the neck down and has regained only partial movement in her hands. She has a catheter, which must be changed five times a day under sterile conditions, which prevents her from attending school. L.C.’s mother cannot work because L. C. requires constant care. The cost of medical care and equipment she requires is so high that her brothers had to leave school in order to work.

The claim asserted that the refusal by doctors to perform therapeutic abortion violated the rights of L.C. to health, a life of dignity, and to be free from discrimination in access to care, particularly under articles 1, 2 (c) and (f), 3, 5, 12 and 16, paragraph 1(e) of the Convention. The claim asserted that the foregoing violations are aggravated by the fact that L.C. was a minor, and that health care professionals did not provide the special attention required by her status as an adolescent female of limited economic resources. The claim asked the Committee to declare the actions of the doctors a violation, request Peru pay damages, adopt measures to ensure non-repetition, as well as urge Peru to adopt and implement legislative, administrative, and judicial measures necessary to protect women’s right to sexual and reproductive health without discrimination.

The state party asserted that L.C. received immediate medical attention and necessary medical examinations were performed on her. They emphasized that the condition was directly related to her own action (the suicide attempt), and not to the possible physiological effects that the pregnancy could have had on her. The state party stated that the surgery was not a required procedure, but an elective one, and that the reason for postponing the surgery was protection of the fetus. Also, the state party alleged L.C. could not undergo the spinal operation because the wound at the surgical incision site was infected. The state party further asserted that L.C.’s mother could have initiated a proceeding in court on this matter, and so the matter should not be before the Committee.

The Committee held that in addition to the procedure before the medical authorities, the author should not be required to have gone to court to initiate a proceeding. Because litigation can be unpredictable and lengthy, and no appropriate legal procedure was available that would have allowed L.C. access to a preventive, independent and enforceable decision, the Committee found that no effective relief was available. Therefore, the Committee found the matter admissible and proceeded to consider it on the merits.

The Committee found that there is a direct relationship between the withdrawal of the surgery and L.C.’s pregnancy. The Committee states that the surgery was necessary. Because the presence of a skin infection at the cite of the wound from incision was recorded for the first time on April 23, 2007, and the surgery was originally scheduled for and denied on April 12, 2007, the Committee finds that the state party has not proven that the presence of the infection was the primary reason for withdrawal of the surgery.

The Committee found that the state party has not complied with its obligations and has therefore violated the rights of L. C. established in articles 2 (c) and (f), 3, 5 and 12, together with article 1 of the Convention.

The Committee found that under the facts presented the state party violated article 12 of the Convention, which obligates state parties to take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning. Because of her condition as a pregnant woman, L.C. did not have access to an effective and accessible procedure required by her physical and mental condition. This includes both the spinal surgery and the therapeutic abortion. The medical board refused abortion despite the legal ability to perform it in a case such as this one where the health of the mother was at risk, and in contrast to the opinion of the Medical College, which concluded that there were sufficient reasons that continuing the pregnancy would create significant harm to L.C.’s physical and mental health. This action is exacerbated by the fact that she was a minor subject to sexual abuse, and attempted suicide.

The Committee found that the state party violated article 5 of the Convention by placing reproductive function above L.C.’s right to health, life and a life of dignity. The facts show that the decision to postpose the surgery was influenced by the stereotype that the life of the fetus should prevail over the life of the mother.

The Committee found that the state party violated article 2 (c), whereby States parties undertake to “establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination” and article 2(f), under which the state party must take all appropriate measures, including legislation, to modify or abolish existing laws which constitute discrimination against women. The hospital medical board significantly delayed their responses to request for therapeutic abortion and there was no other effective remedy available for gaining right to that medical procedure.

The Committee recommended the state party pay damages to L.C. for material and moral damages and measures of rehabilitation in order to ensure she has the best qualify of life, and that it review its laws to establish a mechanism for effective access to therapeutic abortion in a way that protects women’s physical and mental health and ensure that the provisions of the Convention are complied with in all health care facilities. The Committee also recommended that the state party review its legislation to consider decriminalizing abortion in the cases of rape and sexual abuse.

The duty of State parties to ensure, on a basis of equality between men and women, access to health-care services, information and education implies an obligation to respect, protect and fulfil women’s rights to health care. States parties have the responsibility to ensure that legislation and executive action and policy comply with these three obligations. They must also put in place a system which ensures effective judicial action. Failure to do so will constitute a violation of article 12.” (Paragraph 8.11)

The medical board of the hospital denied the termination of pregnancy because it considered that the life of L.C. was not in danger, but did not address the damage to her health, including her mental health, a right which is protected under the Peruvian Constitution” (Paragraph 8.14)

“The Committee notes that the failure of the State party to protect women’s reproductive rights and establish legislation to recognize abortion on the grounds of sexual abuse and rape are facts that contributed to L.C.’s situation.” (Paragraph 8.18)

 

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