The major reproductive rights developments from OP CEDAW Cases (Dr Ronli Sifris)

Dr Ronli Sifris discusses some of the major reproductive rights developments under the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women

In two of its decisions, A.S. v. Hungary and L.C. v. Peru, the Committee on the Elimination of Discrimination against Women (CEDAW Committee) expressed the view that in certain circumstances restrictions on a woman’s reproductive freedom, specifically restrictions on abortion and involuntary sterilisation, constitute discrimination against women. This blog explains why these practices amount to discrimination against women and discusses the contexts of these decisions.

The reasoning behind a discrimination-based approach

Restrictions on access to abortion services constitute discrimination against women. Only women become pregnant, therefore, it stands to reason that the regulation of a physiological function applicable only to women is inherently discriminatory. Further, the male-oriented organisation of society has translated this physiological distinction into a social distinction that results in discrimination against women. For example, the conception of women as both child-bearers and child-rearers influences the formation of laws, policies and practices which restrict access to abortion services. In addition, the impact of restricting women’s access to abortion is such that women’s social role as child-rearers becomes entrenched alongside the concomitant diminution of women’s educational and employment opportunities. When considered in this light, it stands to reason that denying a woman’s right to terminate a pregnancy constitutes a form of discrimination against women and therefore amounts to a violation of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

Involuntary sterilisation also amounts to discrimination against women. Unlike abortion, both men and women can be sterilised; however, like restrictions on abortion, the social context of involuntary sterilisation renders it a practice which discriminates against women. Women are disproportionately affected by laws, policies and practices which promote involuntary sterilisation. The manner in which women have been targeted for involuntary sterilisation reflects existing power structures and the inferior position which women occupy in society; women’s bodies continue to be objectified and viewed as the property of society as a whole. China’s “one-child policy” provides a useful illustration of a population control policy which has targeted women for involuntary sterilisation. Another example is Peru where the human rights atrocities committed by the Fujumori regime included the involuntary sterilisation of over 200,000 mostly indigenous rural women. The involuntary sterilisation of Romani women which has formed part of the widespread discrimination against Roma across much of Europe also demonstrates this point. When considered in this light, it stands to reason that involuntary sterilisation constitutes a form of discrimination against women and therefore amounts to a violation of CEDAW.

The CEDAW Committee’s Decisions

As mentioned above, to date the CEDAW Committee has released two decisions which confirm the general approach that restrictions on women’s reproductive freedom constitute a violation of CEDAW. The first decision, A.S. v. Hungary, concludes that involuntary sterilisation, a denial of the right to choose to have a child, may constitute a violation of CEDAW. The second decision, L.C. v. Peru, concludes that a denial of the right to choose not to have a child (by refusing to terminate an unwanted pregnancy) may also constitute a violation of CEDAW.

In addition, in the case of Alyne da Silva Pimentel Teixeira (deceased) v. Brazil, the CEDAW Committee found that a denial of access to appropriate medical care in circumstances where a pregnant woman experienced serious complications resulting in her death also constituted a violation of CEDAW. However, given that this blog is focussed on restrictions on reproductive freedom, a broader examination of reproductive health issues will be the subject of another discussion!

A.S. v. Hungary

In 2006 the CEDAW Committee handed down its first decision that restrictions on a woman’s reproductive rights constitutes a violation of CEDAW. This decision, A.S. v. Hungary, concerned a Hungarian Romani woman named Andrea who was subjected to coerced sterilisation by medical staff at a public hospital. She presented to the hospital in labour and it was determined that her fetus had “died in her womb”. The doctors decided that a caesarean section was necessary and that it would be appropriate to perform a sterilisation procedure at the same time. The CEDAW Committee concluded that Andrea had not provided informed consent to the sterilisation procedure for a number of reasons. First, both the caesarean section and the sterilisation procedure had been performed within 17 minutes of the ambulance arriving at the hospital. This short time frame cast grave doubt on the nature of the “consent” obtained by the hospital. Secondly, the fact that Andrea was in a poor state of health when she arrived at the hospital indicated that she had not been capable of providing proper informed consent to the procedure. Her poor health condition was viewed as negating the barely legible hand-written consent note that she had signed, particularly given that it contained the Latin word for “sterilisation” which she clearly did not comprehend. Thirdly, when she left the hospital Andrea inquired as to when she would be able to have another baby. This inquiry made it clear that she had not comprehended the nature of the sterilisation procedure performed on her. According to the CEDAW Committee, these facts revealed a violation of articles 10(h), 12 and 16 of CEDAW.

L.C. v. Peru

Whereas the decision of A.S. v. Hungary was ground-breaking in its finding that subjecting a woman to involuntary sterilisation may constitute a violation of the CEDAW, the 2011 decision of L.C. v. Peru was equally ground-breaking in its finding that in certain circumstances, denial of access to abortion services will also constitute a violation of CEDAW. This case involved a teenager who had been sexually abused. She became pregnant as a result of the abuse and consequently attempted to commit suicide by jumping from a building. She survived the suicide attempt but sustained serious injuries which required emergency surgery. The hospital declined to perform the surgery on the basis that it posed a risk to the pregnancy, and refused to perform an abortion despite the fact that therapeutic abortion is legal in Peru and that the pregnancy clearly posed a danger to L.C.’s physical and mental health. The CEDAW Committee held that the hospital’s refusal to terminate the pregnancy and to perform the necessary surgery in a time effective manner constituted a violation of CEDAW. In reaching this conclusion, the Committee was clearly influenced by the extreme circumstances of this case which involved an adolescent who had been sexually abused, had attempted suicide, and was suffering from serious injuries such that she was almost completely paralysed from the neck down.

Conclusion

The decisions of A.S. v. Hungary and L.C. v. Peru demonstrate a willingness on the part of the CEDAW Committee to view the denial of reproductive rights as a discrimination issue. This is to be commended. Continued restrictions on women’s reproductive freedom ensure that true equality between men and women remains out of reach.

Dr Ronli Sifris is a Lecturer at Monash University Faculty of Law

13 December 2013