Many thanks to Carlos Herrera Vacaflor, LL.M., a visiting scholar at the University of Toronto’s Faculty of Law, for summarizing this Chilean judgment for REPROHEALTHLAW subscribers:
Corte Suprema de Chile [National Supreme Court], December 1, 2016, Lorenza Cayuhán Llebul s/amparo, Rol 92.795-2010 (Chile). Decision online.
The Supreme Court of Chile has unanimously declared that a pregnant Mapuche woman prisoner has a right to be free from violence, to personal liberty, to not be discriminated against by reason of her gender and ethnic origin. Additionally, she has a right not to receive degrading treatment from police and penitentiary officials during transfer to a healthcare facility and provision of healthcare care during labor, childbirth, and immediately after childbirth.
A Mapuche woman prisoner suffering from preeclampsia was transferred to several health facilities in order to receive proper healthcare for her pregnancy and childbirth. During these transfers, the woman was personally guarded by police officials and escorted by police vehicles. Moreover, police officials shackled the woman during her transfers and stays at the health facilities. The woman was under custody of a police official, who remained present during childbirth, during which, health personnel had to request the removal of her shackles to provide her with proper care.The Court determined that the physical coercion through shackling violated the State obligations prescribed in the UN Standard Minimum Rules for the Treatment of Prisoners (Mandela Rules) and the UN Bangkok Rules. According to these international standards, any instrument of restraint shall never be used on women during labour, childbirth, or immediately after childbirth. With regards to the police custody in the delivery room, these international rules call for a standard of minimum invasiveness, which the Court found to have been disrespected by the police force. Given the woman’s state of preeclampsia and pregnancy, the Court deemed the security measures as unnecessary and degrading, resulting in an abusive restriction of her personal liberty and in violation of the ICCPR and the American Convention on Human Rights.
Moreover, the Court concluded that the security measures applied by the police force discriminated against the Mapuche pregnant woman on the basis of her gender and ethnic origin. According to the Court, the actions of the police officials failed to understand and respect reproductive healthcare and processes a woman requires during labour and childbirth. Under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Belem do Pará Convention, and the UN Human Rights Committee, the Court found that subjecting male and female prisoners to identical conditions (of transport and detention) constitutes gender discrimination for failing to identify the particular needs of pregnant women in healthcare situations that only women experience. Lastly, the Court noticed that the woman was referred to as “the Mapuche prisoner” in the communications between officials ordering security measures against her, and concluded that had she not been of a Mapuche ethnicity, she would have not received such degrading and discriminatory treatment. Thus, the Court expressly identified a “paradigmatic situation of intersectional discrimination” against the Mapuche pregnant woman.
On the basis of these findings, the Court ordered the police forces to adopt the UN Standard Minimum Rules for the Treatment of Prisoners as their security measures for the transfer of prisoners to health facilities. The Court also ordered the police force to revise and adjust their regulations to the international law ratified by Chile with regards to women prisoners, pregnant women, women with infants, and breast-feeding women, with a view to eradicating all forms of violence and discrimination against women.
Chilean Supreme Court decision is online in Spanish.
More academic resources on “obstetric violence” are online here.
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