A.S., a Hungarian woman of Roma origin, underwent surgery at a public hospital for a caesarean section in connection with a miscarriage. Hospital staff asked A.S. to sign a consent form for the caesarean section whilst she was on the operating table. One of her doctors included a note on the bottom of the form indicating that A.S. also consented to being sterilized. The barely legible note used the Latin term for sterilization, which was unknown to A.S. Medical records showed that A.S. was in poor health at the time staff asked her to consent to the procedures and only 17 minutes had lapsed between the time when A.S. arrived at the hospital and the performance of both procedures.
After unsuccessfully seeking redress in Hungary, A.S. submitted a communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee). She claimed that the medical staff had failed to provide information about the nature, risks and effects of the sterilization procedure or advice about alternative family planning measures, in violation of article 10(h) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). She further claimed that she had been sterilized without her full and informed consent, in violation of article 12. Last, A.S. submitted that the procedure and failure to provide relevant health care information constituted a violation of her right in article 16(1)(e) of CEDAW to decide freely and responsibly on the number and spacing of her children.
Hungary’s observations on admissibility
Hungary contested the admissibility of the communication on two grounds. First, it claimed that A.S. had failed to exhaust domestic remedies, as required by article 4(1) of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol). Second, it claimed that the communication was inadmissible under article 4(2)(e) of the Optional Protocol because the alleged violation occurred prior to its entry into force for Hungary. It submitted that the effects of the sterilization were not ongoing because the procedure was reversible.
CEDAW Committee’s decision on admissibility
The CEDAW Committee declared the communication admissible. In finding the communication admissible under article 4(1), it noted that there were no domestic remedies available to A.S. that had not been exhausted. In finding the communication admissible ratione temporis, the Committee noted that, although the sterilization of A.S. preceded the Protocol’s entry into force for Hungary, its effects were continuous. Key in this respect was the irreversible nature of sterilization. The Committee explained: “the success rate of surgery to reverse sterilization is low and depends on many factors, such as how the sterilization was carried out, how much damage was done to the fallopian tubes or other reproductive organs and the skills of the surgeon.” The Committee also took into account the risks of reversal surgery and the increased likelihood of ectopic pregnancy following sterilization.
Hungary’s observations on the merits
Hungary denied violating CEDAW. It claimed A.S. did not require information about pregnancy and childbirth because she already had three children and, in any event, had received all necessary information prior to surgery. It also claimed that the sterilization was legal under domestic law, having regard to the circumstances of the case.
CEDAW Committee’s views
The CEDAW Committee found Hungary in violation of articles 10(h), 12 and 16(1)(e).
Right to access specific educational information to help to ensure the health and wellbeing of families, including information and advice on family planning
The Committee found that Hungary, through the actions of its hospital staff, had failed to provide A.S. appropriate information and advice on family planning, in violation of article 10(h). In so finding, the Committee noted that article 10(h) afforded A.S. the right “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.” The Committee also noted that any counseling A.S. received must have been given under stressful and inappropriate conditions.
Right to appropriate services in connection with pregnancy, confinement and the post-natal period
The Committee concluded that Hungary had violated article 12 of CEDAW by sterilizing A.S. without her fully informed consent. The Committee took into account the short time span between the arrival of A.S. at the hospital and the completion of the two procedures, her poor state of health upon arrival, and the barely legible note that used the Latin term for sterilization. It also rejected as implausible the State Party’s suggestion that hospital staff had provided A.S. with comprehensive “counselling and information about sterilization, as well as alternatives, risks and benefits, to ensure that [she] could make a well-considered and voluntary decision to be sterilized.” The Committee pointed to the undisputed fact that A.S. had asked her doctor after surgery when it would be safe for her to conceive again, as evidence that she was unaware that she was being sterilized or understood the consequences of such a procedure.
The Committee affirmed that the obligation to ensure women access to appropriate services in connection with pregnancy, confinement and the post-natal period means services that are, inter alia, based on women’s fully informed consent and that respect their dignity. Recalling its General Recommendation No. 24, the Committee affirmed that States Parties “should not permit forms of coercion, such as non-consensual sterilization … that violate women’s rights to informed consent and dignity”.
Right to decide freely on the number and spacing of children and access to the information, education and means to do so
The Committee concluded that A.S. had been sterilized without her full and informed consent and had been permanently deprived of her natural reproductive capacity, in violation of article 16(1)(e). In so finding, the Committee recalled its General Recommendation No. 19 in which it stated 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”.
Communication No. 4/2004, UN Doc. CEDAW/C/36/D/4/2004 (29 August 2006)
Author’s submissions (pp 73-80)