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Region: Africa
Year: 2007
Court: Human Rights Committee
Tags: Cruel and inhuman treatment, Violation of right to privacy

The author, VDA is a resident of Argentina and makes this communication on behalf of her daughter LMR who suffers from permanent mental impairment, attends special school and receives neurological care.

In June 2006, the author took LMR to Guernica hospital because she was not feeling well at the hospital it was discovered that she was pregnant. The author requested for a termination but the hospital declined the request and refereed her to San Martin Hospital which is public hospital, they also advised her to make a complaint and a complaint was made against her uncle who was suspected of raping her. According to the author Guernica Hospital had all the resources to conduct the procedure and did not need to refer her to another hospital as this led to her incurring unnecessary expenses.

At the time of being taken to San Martin hospital, LMR was fourteen and half weeks pregnant, the hospital called for a meeting of bio ethics committee to get their opinion as this was a case of non-punishable abortion. This procedure on rape victims with mental disability did not require judicial authorization and the only requirement are that the disability should be diagnosed, that the victim’s legal representative should give consent and that the termination should be performed by a licensed physician.

The hospital was however issued with injuctions and the judicial proceedings were initiated to prevent the abortion. The juvenile court judge ruled that he did not see it acceptable to repair the wrong assault (rape) with another wrong assault on an innocent unborn victim. On appeal the decision was confirmed by the civil court.

The Supreme Court of Buenos Aires overturned the decision and ruled that the procedure could continue, the court further stated that the procedure did not require judicial authorization.

San Martin Hospital came under a lot of pressure from different quarters opposed to the abortion and it refused to carry out the procedure under the guise that the pregnancy was too advanced. A scan revealed that it was 20.4 weeks old.

Women organization supported the family but medical facilities declined to carry out the procedure, however the family was able to conduct an illegal termination.

The author states that LMR suffered discrimination because she was unable to secure a legal abortion despite the presence of a legal remedy. She says her family suffered psychological and mental injury and that their lives were disrupted. She further says that had the state ensured safe abortion in good time the damaging consequences would have been minimized.

The author states that she and her other daughter lost their jobs as they were required to provide round the clock support to LMR and had also to provide material support .

The author states that the state party lacked mechanisms to ensure that LMR terminated the pregnancy and this violated Article 2 of the Covenant.

The State’s failure to exercise due diligence in safeguarding a legal right to a procedure required solely by women, coupled with the arbitrary action of the medical staff, resulted in discriminatory conduct that violated L.M.R.’s rights. This, the author states amounts to violation of the right to equality and non-discrimination established under article 3 of the Covenant.

The author states the facts constitute a violation of LMR’s right to life because the state could not ensure that she could obtain a safe abortion and prevent a need for unsafe abortion.

The author further maintains that forcing her daughter to continue with the pregnancy constitutes a cruel and degrading treatment and is a violation of article 7 of the covenant. Refusal to terminate the pregnancy caused many days of mental anguish .The pressure to continue with the pregnancy and give up the baby for adoption created dilemma and was deeply humiliating.

The author also states that the state interfered with LMR’s private life and this was a violation of Article 17 of the covenant as it concerned her reproductive health and her life.

Catholic groups which made direct threats caused a violation of article 18 and the state did not step in to protect her.

The author requests that the Committee: (a) establish the State’s international responsibility; (b) order the State to give full reparation to L.M.R. and her family, including compensation for material and mental injury and measures to prevent repetition; (c) order the State to implement hospital protocols that would facilitate access to legal, safe abortion and the mechanisms necessary to give effect to this right; (d) review the domestic legal framework for abortion, which establishes criminal penalties for women who terminate an unwanted or involuntary pregnancy, and forces them to undergo illegal abortions which seriously endanger their life and overall health.

The state argue that the complaint is not admissible as the author had failed to exhaust local remedies. Judicial remedies sought had culminated to a ruling in favour of LMR and the proceedings in the Supreme Court had only taken 37 days, a period which was reasonable.

The state party stated that claims for injury and damages should be sought locally as provide in the Code of civil and commercial procedure

The state party also stated that authorities in Buenos Aires province had approved a program which facilitate access to safe, legal abortion and mechanisms. This was contained decree no 304/2007 which contained a protocol for non-punishable abortion.

The committee considers that failure by the state to guarantee termination of pregnancy constitutes a violation of Article 7 and this was made serious due to the fact that the victim was a young girl who suffered mental disability. The committee reiterates that Article seven relates not only to physical pain but also mental pain.

The state party’s interference through the judiciary constitutes an affront to Article 17 paragraph 1 because this is an issue which could have been resolved between a patient and her physician. Interference by the state thus violated her right to privacy

The state party lacked mechanisms that would have ensured LMR undergo termination of pregnancy, in this regard, the state party by omission violated Article 2 of the covenant and though judicial remedies were available, the author had to go to 3 different courts so as to get a favorable remedy and all this time the pregnancy was growing and even after all that LMR had to undergo an illegal abortion .The committee considers that the author did not have an effective remedy and this violated article 2, paragraph 3 in relation to articles 3, 7 and 17 of the Covenant

The Human Rights Committee, held that there was a violation of article 7, article 17 and article 2, paragraph 3 in relation to articles 3, 7 and 17 of the Covenant.

The state party was put under an obligation to ensure that LMR is provided with avenues for redress which include adequate compensation. The state party was also put under an obligation to ensure there were no such violations in future.

The state party was also required to within 180 days upon receipt of the communication furnish the Human rights Committee with information on measures adopted to give effect to the views of the committee.