Forced sterilization case against Bolivia: expert testimony by Christina Zampas

June 15, 2016

 

I.V. v Bolivia is the first case the Inter-American Court of Human Rights has heard on informed consent to medical treatment and the first case alleging forced sterilization. It is only the second reproductive rights case considered by this Court.

This case concerned the involuntary sterilization in 2000 of an immigrant woman from Peru in a public hospital in Bolivia during a caesarean section.  The doctors decided that a future pregnancy would be dangerous for I.V. and performed a tubal ligation, claiming that this was necessary in order to prevent a future pregnancy. They also noted that they had obtained I.V.’s consent while on the operating table. When I.V. learned that she had been sterilized she felt devastated, and has been seeking justice ever since.

In 2015, the Inter-American Commission on Human Rights, referred this case to the Inter-American Court for a decision, after having concluded that Bolivia was responsible for the violation of Articles 5.1, 8.1, 11.2, 13, 17, and 25 of the American Convention on Human Rights, and Article 7 of the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women (Convention of Belém do Pará). The Commission’s report is online here.

Christina Zampas, a Reproductive and Sexual Health Law Fellow at the University of Toronto’s International Reproductive and Sexual Health Law Program, presented oral expert testimony before the Court during its hearing on 2 May 2016 in San Jose, Costa Rica. Christina Zampas has studied forced sterilization issues since 2002, when at the Center for Reproductive Rights, she worked with the Center for Civil and Human Rights (Poradňa), Slovakia, to document the forced sterilization of Roma women in Slovakia, and co-authored Body and Soul: forced sterilization and other assaults on Roma reproductive freedom in Slovakia, online here.   Since then, she has engaged in advocacy and litigation before UN and regional human rights and intergovernmental bodies, calling for accountability on the issue. She has also co-chaired Open Society Foundation’s Working Group on Sterilization and has been instrumental in the development of health and medical association standards on the topic, including the World Health Organization (WHO) UN Inter Agency statement on forced and coerced sterilization (2014) online here, and the International Federation of Gynecology and Obstetrics’  guidelines on female sterilization (2011), pages 122-126.

In her recent testimony before the Inter-American Court of Human Rights, Zampas focused on international and regional human rights standards in relation to informed consent to medical care generally, and to sterilization specifically.  In her presentation, she explained United Nations and European Court of Human Rights standards and case law on the subject, including on the numerous cases against Slovakia concerning forced sterilization of Roma women, as well as international health and ethical standards.  She emphasized that international and regional health and human rights standards are clear: sterilization for prevention of future pregnancy cannot be justified on grounds of medical emergency, which would permit departure from the general principle of informed consent.  Even if a future pregnancy might endanger a person’s life or health, alternative contraceptive methods can be used to ensure that the individual does not become pregnant immediately. The individual must be given the time and information needed to make an informed choice about sterilization. The provision of information, counseling and sterilization under the stressful conditions of childbirth are not only a violation of the right to information but also violate the right to privacy, physical integrity and human dignity and are a gross disregard for an individual’s autonomy, rising to the level of inhuman and degrading treatment.

Zampas’s testimony also urged the Court to address the gender stereotypes and the intersectionality of gender with other characteristics, such as race and ethnicity, disability, HIV and migrant status, often underlying the practice. These stereotypes deem women incapable of making rational decisions about their reproductive capacity, stripping them of decision-making regarding their own bodies and lives. They assume that men and people in positions of authority—such as doctors who perform medical procedures, male family members, or society at large—are better positioned to make decisions for women. Human rights bodies have recognized the power imbalances in doctor-patient relationships and how this can lead to serious abuses, including in the use of the medical necessity doctrine. She noted that such notions, prevalent in society, can lead to violations of the right to be free from discrimination.

Zampas’s testimony set forth potential individual and structural (general) remedies, including compensation and an apology, law and policy reform that is in line with human rights standards, training and education of all health care staff, adoption of ethical guidelines to address informed consent and gender stereotyping, and monitoring of public and private health centers to ensure accountability, and guarantee an effective remedy when violations do occur.

Amicus briefs in this case were filed by Women’s Link Worldwide and the Allard K. Lowenstein International Human Rights Clinic, Yale Law School, Ciara O’Connell and Diana Guarinzo-Peralata at University of Sussex, and the Human Rights and Gender Justice Clinic at CUNY Law School and Women Enabled International. Expert written testimony was provided by Luisa Cabal, in her capacity as a lawyer and expert on sexual and reproductive health and rights, and Ana G. Cepin, MD, Fellow of the American College of Obstetricians and Gynecologists.

The decision is expected within the next year.

Relevant publications:

Christina Zampas is co-author with Adriana Lamačková, a former LLM student in the program, of “Forced and Coerced Sterilization of Women in Europe,” International Journal of Gynecology and Obstetrics (2011), Forced and Coerced Sterilization.

Sterilization: list of program resources, including articles, theses, and further reading .   Sterilization resources.

Ethical and Legal Issues in Reproductive and Sexual Health, written or edited by Rebecca Cook and Bernard Dickens, published in the International Journal of Gynecology and Obstetrics – Ethical/Legal articles  online.


Call for Papers on Abortion and Human Rights

June 15, 2016

The Health and Human Rights Journal is calling for papers to be published in a special section in June 2017 on abortion from a human rights perspective. The special section will be edited by Alicia Ely Yamin and Paola Bergallo.  Papers must be submitted by 31 October 2016.
Topics could include:

  • Conceptual and theoretical analysis of the developments on abortion law and human rights in international and constitutional law throughout the world.
  • Socio-legal studies of legal mobilization and counter-mobilization on abortion rights exploring the role of actors such as the women’s and the human rights movement, health providers, conservative and religious groups, legal support structures, and political players. The studies could focus in the dynamics of national, sub-national, regional, transnational or international struggles for and against the right to abortion.
  • The challenges of implementing abortion reforms through high impact litigation, abortion guidelines, or social mobilization strategies such as the hotlines providing access to information on medical abortion or the damage reduction model put forward by physicians.
  • The effects and impacts—for example, in women, groups, public opinion, policies, rules and other contexts—of the different legal strategies for abortion deployed by progressive and conservative movements. The impact of policies criminalizing abortion and other reproductive rights in women’s life and health.
  • A critical examination of the experience and policies of particular countries as they have attempted to expand access to abortion trough legal reforms and health policies.
  • Comparisons of health and legal abortion reforms adopted in different countries of the world. Sub-national comparisons within countries or between sub-national experiences of different countries.

About the Journal: The Health and Human Rights Journal is a peer-reviewed, open access journal under the editorship of Partners in Health co-founder Paul Farmer. It is published twice yearly by Harvard University Press, with new issues released in June and December. There are no publication fees unless authors can use open access publication grants.

Submission Details:

  • Papers must be submitted by 31 October 2016
  • Papers have a maximum word length of 7,000 words, including references.
  • Author guidelines are available here.
  • Editorial style guide is online here.

Questions about this special section on “Abortion and Human Rights”  can be directed to: Alicia Ely Yamin (ayamin@hsph.harvard.edu), Paola Bergallo (paola.bergallo@gmail.com) or Carmel Williams, Executive Editor, Health and Human Rights Journal (HHRsubmissions@hsph.harvard.edu).


Kenyan High Court: Anti-Counterfeit Act threatened access to generic medicines

June 14, 2016

Many thanks to Godfrey Kangaude, LL.M. (UFS), LL.M. (UCLA), an LL.D. candidate with the University of Pretoria and Executive Director of Nyale Institute for Sexual and Reproductive Health Governance in Malawi, for composing or editing dozens of analytical summaries of African court decisions for our forthcoming volume, Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts.   Earlier volumes in the series, published in 2005 and 2010 by the Center for Reproductive Rights, are freely available in print or electronic form.  Legal Grounds online.

Several recent African court decisions resolve legal issues that affect public health in many nations.  For instance, in Patricia Asero Ochieng and Two Others v. The Attorney General & Another [2012] (Petition No. 409 of 2009),  a High Court of Kenya (at Nairobi) asked the government to remove a fundamental ambiguity in new legislation, the Anti-Counterfeit Act, which jeopardized citizens’ constitutional right to health.

Godfrey Kangaude’s summary of the decision shows how the Act’s ambiguous definition of “counterfeit” threatened to restrict access to low-cost generic medicines for HIV AIDS .  As he concludes, “The Court found that the Act’s conflation of counterfeit and generic drugs creates a possibility for misinterpretation by officials, who might seize legitimate generic drugs, which would have a disastrous impact on persons who rely upon them, such as the petitioners. It emphasised that such ambiguity is not permissible, especially where any misinterpretation would impact on the constitutionally guaranteed rights of individuals.

“It further said that the protection of the rights of persons to health and access of medicines is more critical than the protection of intellectual property rights, so that the protection of the rights of the petitioners should take precedence. The Court buttressed its reasoning with General Comment No. 17 where the ESCR Committee [United Nations Committee on Economic, Social and Cultural Rights] said that states parties should prevent the use of scientific progress for purposes contrary to human rights, for instance by excluding patentability where commercialisation of innovations would jeopardise enjoyment of human rights.” [2]

NOTES:
[1] Patricia Asero Ochieng and 2 Others v The Attorney General & Another [2012], Petition No. 409 of 2009 (High Court of Kenya at Nairobi) Decision online.
[2] Godfrey Kangaude, Case summary,  Patricia Asero Ochieng and 2 Others v The Attorney General & Another [2012], Case summary Godfrey Kangaude.

————-
Legal Grounds: Reproductive and Sexual Rights in African Commonwealth Courts
   (up to 2008) Volumes I and II can be downloaded here.  Our update will be published early in 2017.  Decisions already identified for Volume III  are online here.  New case summaries are added every month.   If you can suggest other cases, please do!   How You Can Help.

 

 

 


Uterus transplants: Legal and Ethical Issues

June 14, 2016

Congratulations to Bernard M. Dickens, Professor Emeritus of Health Law and Policy and Co-Director of the International Reproductive and Sexual Health Law Program at University of Toronto’s Faculty of Law, who recently published the following article:

Bernard M. Dickens, “Legal and Ethical Issues of Uterus Transplantation,” International Journal of Gynecology and Obstetrics 133.1(2016): 125-128.

Abstract:
The clinically detailed report of a successful uterus transplantation and live birth in Sweden, in which a family friend donated her uterus, provides a basis for expanded practice. Family members and friends can serve as living donors without offending legal or ethical prohibitions of paid organ donation, even though family members and friends often engage in reciprocal gift exchanges. Donations from living unrelated sources are more problematic, and there is a need to monitor donors’ genuine altruism and motivation. Donation by deceased women – i.e. cadaveric donation – raises issues of uterus suitability for transplantation, and how death is diagnosed. Organs’ suitability for donation is often achieved by ventilation to maintain cardiac function for blood circulation, but laws and cultures could deem that a heartbeat indicates donors’ live status. Issues could arise concerning ownership and control of organs between recovery from donors and implantation into recipients, and on removal following childbirth, that require legal resolution.

Keywords: Altruistic uterus donation, Brain death, Cadaveric uterus donation, Ethics in uterus donation, Legality of uterus donation, Organ transplantation, Uterus donation.

The entire article is online here.

72 other IJGO articles on “Ethical and Legal Issues in Reproductive and Sexual Health” are online here.


REPROHEALTHLAW Updates, June 2016

June 14, 2016

SUBSCRIBE TO REPROHEALTHLAW: To receive these updates monthly by email, enter your address in upper right corner of this webpage, then check your email to confirm the subscription.

DEVELOPMENTS

“Ireland’s abortion laws subjected a woman to cruel, inhuman and degrading treatment, according to a  landmark decision from the United Nations Human Rights Committee.”
Center for Reproductive Rights, CRR press release.   UN Press Release, June 9, 2016Newsmedia reportsDecision CCPR/C/116/D/2324/2013 online.

EDUCATIONAL OPPORTUNITY IN AFRICA – SCHOLARSHIPS

Master’s degree (LLM/MPhil) in Sexual and Reproductive Rights in Africa,  University of Pretoria, South Africa, Two-year program starts in Jan. 2017.   Blended learning course with online interaction and residential block-weeks in Pretoria, South Africa. Two contact sessions will be scheduled every year (four contact sessions over the two year period).   Apply by 31 Oct 2016. Up to 15 full scholarships available for African citizens.  African LLM/MPhil details.

RESOURCES

[abortion, U.K. and U.S.] “With advances in embryo research, it’s time to bring abortion law out of the Victorian age,” by Sally Sheldon. Kent Law School, Kent University, Canterbury, BioNews 853 (May 31, 2016)  Article online.

[conscientious objection – institutions] Contracting Religion, by Elizabeth Sepper,  in:  Law, Religion, and Health in the United States, ed. Holly Fernandez Lynch, I. Glenn Cohen, & Elizabeth Sepper (Forthcoming: Cambridge Univ. Press, 2017). (Draft chapter online).

[fetal abnormality, microcephaly, Brazil]  Special issue of Cadernos de Saúde Pública 32.5 (2016) Rio de Janeiro includes a special thematic section:
“Zika and Pregnancy”  Table of Contents with links to translations.
— “Zika virus and women,” by Debora Diniz (English and Portuguese)
— “The debate on abortion and Zika: lessons from the AIDS epidemic,” by Thais Medina Coeli Rochel de Camargo, (English and Portuguese)
— “Women’s reproductive rights and the Zika virus epidemic,” by Jacqueline Pitanguy (English and Portuguese)
— “Comment on the paper by Pitanguy,” by Florencia Luna (English and Spanish)
— “Ensuring a rights-based health sector response to women affected by Zika” by Paige Baum, Anna Fiastro, Shane Kunselman, Camila Vega, Christine Ricardo, Beatriz Galli, and Marcos Nascimeno (English and Portuguese).
— “Comment on the article by Baum et al.,” by Ana Cristina González-Velez
(English and Spanish)
— “Zika and reproductive justice,” by Alexandra Minna Stern (English)

[fetal abnormality, microcephaly] “Sexual and Reproductive Health and Rights in the Time of Zika in Latin America and the Caribbean,” by Ana Langer, Jacquelyn M. Caglia andClara Menéndez, Studies in Family Planning 47.2 (June 2016): 179-181.  Online version.

Law and Policy updates are issued monthly by International Campaign for Women’s Right to Safe Abortion.  To receive the electronic newsletter, click “Join the Campaign

[maternal deaths, Uganda]: “Why the Constitutional Court should rule on the right to health,” by Michael Addaney in AfricLaw blog,  June 3, 2016  AfricLaw blogpost,

[stereotyping] “Emerging from the Shadows: Substantive Equality and Article 14 of
the European Convention on Human Rights,” by Sandra Fredman, Human Rights Law Review 16 (2016): 273–301   Advance access.

US-focused news, resources, and legal developments are available on Repro Rights Prof Blog.  View or subscribe.

NEWS

[El Salvador]  Sentenced to 40 Years After a Miscarriage, Maria Teresa Rivera was freed May 20,2016 News report in English.   News report in Spanish

JOBS

Links to other employers in the field of Reproductive and Sexual Health Law are online here

______________
Compiled by the Coordinator of the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca For Program publications and resources, see our website, online here. TO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.

 


Preventable maternal deaths: Ugandan court decisions

May 12, 2016

Many thanks to Godfrey Kangaude, LL.M. (UFS), LL.M. (UCLA), an LL.D. candidate with the University of Pretoria and Executive Director of Nyale Institute for Sexual and Reproductive Health Governance in Malawi, for composing or editing dozens of analytical summaries of African court decisions for our forthcoming volume, Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts.  Previous volumes in the series, published in 2005 and 2010 by the Center for Reproductive Rights, are freely available in print or electronic form.  Legal Grounds online.

Several of the cases involve preventable maternal deaths. Traditionally, families and communities suffer these losses silently, unless a legal advocacy organization brings the case forward.  In Uganda, for instance, the Center for Health, Human Rights and Development (CEHURD) and others brought two maternal death cases to the Constitutional Court of Uganda as human rights violations, but the petition was dismissed without consideration in 2012 as a “political” matter.[1]  In November 2015, however, Uganda’s Supreme Court ordered Constitutional Court to hear the petition on maternal health rights violations.[2]  We still await the Constitutional Court’s  ruling on the merits of CEHURD’s petition.

Just six months earlier, a Ugandan High Court  found human rights violations and awarded damages to the family of a woman who died in obstructed labour at Nakaseke District Hospital; the only doctor who could handle this complication was on duty but could not be found.[3]  As Godfrey Kangaude  comments, “the judgment is an important signal that preventable death of women during pregnancy, labour, and childbirth is a human rights issue.”

Moreover, as Kangaude explains, “Uganda is a party to the International Covenant on the Elimination of All Forms of Discrimination against Women (CEDAW). One of the important decisions on the subject matter under CEDAW is Alyne da Silva Pimentel Teixeira v Brazil (Communication No. 17/2008 CEDAW/C/49/D/17/2008). The Committee on CEDAW (CEDAW Committee) considered the case of a woman who had died of complications of pregnancy as a result of delays in being provided with appropriate care by the health system.[4] The CEDAW Committee found violation of state obligations under Article 12 on the equal right to health, and under Article 2(c) in relation to access to justice, amongst others. It made several recommendations to address the systemic factors, which would apply to the Uganda context . . .” [5]

The CEDAW Committee recommended that the state:

“(a) Ensure women’s right to safe motherhood and affordable access for all women to adequate emergency obstetric care, in accordance with General Recommendation No. 24 (1999) on women and health;

(b) Provide adequate professional training for health workers, especially on women’s reproductive health rights, including quality medical treatment during pregnancy and delivery, as well as timely emergency obstetric care;

(c) Ensure access to effective remedies in cases where women’s reproductive health rights have been violated and provide training for the judiciary and for law enforcement personnel;

(d) Ensure that private health-care facilities comply with relevant national and international standards on reproductive health care; [and]

(e) Ensure that adequate sanctions are imposed on health professionals who violate women’s reproductive health rights.”[6]
_____________________

REFERENCES:

[1] Center for Health Human Rights and Development (CEHURD) and 3 Others v Attorney General [2012], Constitutional Petition No. 16 of 2011 (Constitutional Court of Uganda at Kampala). Decision online. Preventable maternal deaths were dismissed as a “political” matter.  Case Summary and Analysis by Nthabiseng Lelisa and Godfrey Kangaude, with special thanks to Nthabiseng Lelisa, an LL.M. candidate in Sexual and Reproductive Rights in the Centre for Human Rights, Faculty of Law, University of Pretoria, South Africa.

[2]  Center for Health, Human Rights and Development & 3 Others  v Attorney General.  [2015], Constitutional Appeal No. 01 of 2013 (Supreme Court of Uganda at Kampala) [Uganda Supreme Court orders Constitutional Court to hear a petition on maternal health rights violations.]  Decision online.  Case summary and analysis by Godfrey Kangaude. 

[3] Center for Health, Human Rights and Development & 4 Others  v Nakaseke District Local Administration [2015], Civil Suit No. 111 of 2012 (High Court of Uganda at Kampala). [Ugandan High Court finds human rights violations where a pregnant woman died of a ruptured uterus and blood loss while in labour.] Decision online. Case summary and Analysis by Godfrey Kangaude 

[4] See also: Rebecca J. Cook “Human Rights and Maternal Health: Exploring the Effectiveness of the Alyne Decision”  41.1 (Spring 2013) Journal of Law, Medicine and Ethics 103-123,  Original publication in EnglishRepublished in SpanishTranslation to PortugueseRepublication in Portuguese journal.

[5] CEHURD v Nakaseke (note 3 above), Case summary and Analysis by Godfrey Kangaude , page 3.

[6] Committee on the Elimination of Discrimination against Women,  Alyne da Silva Pimentel Teixeira (deceased) v Brazil, Communication No.17/2008, CEDAW/C/49/D/17/2008), Recommendations, 8.2.  CEDAW decision Sept 27, 2011


Legal Grounds: Reproductive and Sexual Rights in African Commonwealth Courts   (up to 2008) Volumes I and II can be downloaded here.  Our update will be published early in 2017.  Decisions already identified for Volume III  are online here.  New case summaries are added every month.   If you can suggest other cases, please do!   How You Can Help.


Peru: Rights-based Governance of Reproductive Health Services

May 12, 2016

Congratulations to Jeannie Samuel, Ph.D., who recently defended her doctoral thesis at the University of Toronto, Canada.

Struggling With the State: Rights-Based Governance of Reproductive Health Services in Puno, Peru by Jeannie Samuel, Ph.D. dissertation, Dalla Lana School of Public Health, University of Toronto, Canada, 2015.

This dissertation explores the complex process of how socially excluded women carry out rights-based governance in state-operated health facilities. It addresses a central tension: how can marginalized actors exercise a governance influence over institutions that have systemically excluded them? The study examines the efforts of a group of Quechua-speaking indigenous women in the southern Peruvian Andes who act as citizen monitors of their reproductive health services. In a country where profound inequalities are embedded in the health care system, the monitors (aided by a network of strategic allies) seek to combat abuse and strengthen health service provision. Key to their governance strategy is the use of a human rights-based approach to health, intended to influence monitors’ power by repositioning them as rights holders.

Theoretically, the dissertation draws on feminist political economy to examine the emergence of reproductive health care as a site of struggle between civil society and the state in Puno, Peru since the 1990s. It examines the monitoring initiative in Puno as an example of ongoing struggles with the state for the provision of quality reproductive health care. Methodologically, it uses institutional ethnography to link the work of citizen monitors with broader social, political and economic forces that shape their governance efforts.

The study’s findings suggest that human rights-based approaches can help monitors to exercise power in governance struggles. Citizen monitoring in Puno has produced some important gains, including curbing everyday injustices such as discriminatory treatment and illegal fees in health facilities. Monitors have been less effective at influencing other types of systemic problems, such as understaffing. The initiative has created opportunities for hands-on learning and the creation of new kinds of alliances. More broadly, the study suggests that rights-based governance can contribute to the democratization of reproductive health service delivery and the promotion of inclusive citizenship.

———————-

Abstracts of theses by Graduates of our International Reproductive and Sexual Health Law Program are online here.