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AS v Hungary (2006): Sterilisation of a Roma woman without full and free consent is a form of violence, as well as a violation of reproductive rights
Keywords: Sterilisation; Full and free consent; Reproductive rights; Violation of human rights
Violation of Articles 10(h), 12 and 16
Deciding body: Committee on the Elimination of Discrimination Against Women
Ms A.S, a Hungarian Roma woman, was 27 and a mother of three children. She was 8 months pregnant with her fourth child when an examination showed that the foetus had died in her uterus. She was informed that a caesarean section would need to be performed urgently to remove the dead foetus. She was bleeding heavily, was dizzy and in a state of shock. Within a few minutes of arriving by ambulance at the hospital, Ms A.S was on the operating table and given a form to sign to indicate her consent for a caesarean section, a blood transfusion and anaesthesia. She signed these, as well as a barely legible note that had been hand-written by the doctor and added to the bottom of the form, which read:
“Having knowledge of the death of the embryo inside my womb I firmly request my sterilization [a Latin term unknown to the author was used] I do not intend to give birth again: neither do I wish to become pregnant.”
The foetus was removed and her fallopian tubes were tied. Before leaving hospital, Ms A.S asked a doctor for information about her state of health and when she could try to have another baby. It was only then that she learned the meaning of the word “sterilization.”
The sterilization has had a profound impact on Ms A.S. life. Ms A.S has strict Catholic beliefs about the prohibition of contraception, and she and her partner live with Roma custom, which promotes having children as a central element of their value system. Because of the sterilization, both Ms A.S and her partner have received treatment for depression.
Domestic proceedings found that the medical staff had been negligent in failing to provide her with detailed information about the operation, and about alternative procedures and methods of birth control. However, Ms A.S.’ appeal failed ultimately because the court held that she had not proven a lasting handicap, and a causal relationship with the medical staffs’ conduct. The appeal court also held that this sterilization was not an irreversible operation and Ms A.S might become pregnant through artificial insemination – therefore she had not proven that she had lost her reproductive capacity.
She claimed that a) forced sterilisation is a violation of numerous human rights including the right to dignity b) that the sterilisation was forced because she was not given information about the procedure in an accessible way and therefore was unable to make an informed choice. Ms A.S claimed that this was a breach of her right to appropriate health services which caused both physical and emotional injuries.
Ms A.S also argued that informed consent is based on a patient’s ability to make an informed choice and its ability does not depend on the form in which it is given. Written consent merely can serve as evidence.
Hungary argued that the sterilization was done to preserve Ms A.S’ life, given that her uterus was in a bad condition and any subsequent pregnancy would have been life-threatening. Hungary also argued that the sterilization process is reversible, therefore there is no on-going violation.
Ms A.S. was supported in her application by an intervention by the Center for Reproductive Rights on the issue.
What was the decision?
The CEDAW Committee agreed with Ms A.S. that sterilization has permanent effects, therefore constitutes a violation of a continuous nature – therefore, although the sterilization took place before Hungary’s ratification of the Optional Protocol to CEDAW, the application is still admissible.
The CEDAW Committee found three violations of the CEDAW Convention:
i) a violation of Article 10(h) of the CEDAW Convention which requires States Parties to provide “access to specific educational information to help to ensure the health and well-being of families, including information and advice on family planning” taking note of the stressful and inappropriate conditions under which she was given information about the sterilization procedure.
ii) a violation of Article 12, on women’s right to equality in the field of health care, including access to family planning, pregnancy, birth and the post-natal period, because of the lack of informed consent to the sterilization. The CEDAW Committee noted General Comment 24 on women and health, which requires that “acceptable services are those delivered in a way that ensures that a woman gives her fully informed consent, respects her dignity.”
iii) a violation of Article 16 (e) on equality in the family, which requires that women have the same rights as men to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable to exercise those rights. The Committee also referred to General Recommendation 19 on violence against women, where compulsory sterilization as identified as having an adverse effect on women’s physical and mental health.
The CEDAW Committee called on Hungary to provide appropriate compensation to Ms A.S.
The CEDAW Committee also called on Hungary to take comprehensive measures to ensure that all medical staff are trained on the content of the Committee’s General Recommendations on violence against women, to review its domestic legislation on informed consent to medical treatment to ensure consistency with human rights and World Health Organization standards, and to monitor health centres which carry out sterilization.
Learning from other institutions
The CEDAW Committee cited the Council of Europe Convention Human Rights and Biomedicine (known as the “Oviedo Convention”) and World Health Organization Guidelines.
The Center for Reproductive Rights said that:
“The CEDAW Committee’s decision in A.S. v. Hungary marks the first time that an international human rights tribunal has held a government accountable for failing to provide necessary information to a woman to enable her to give informed consent to a reproductive health-related medical procedure.
It affirms that the right to health includes the right to information about health, and that health-related information is critical to the enjoyment of the rights to life, autonomy in decision making, and all other reproductive rights of women and girls.
The impact of the CEDAW Committee’s decision has implications throughout the Central and East European region, where forced and coerced sterilization of Roma women has recently been exposed.
The decision also extends beyond sterilization. According to this decision, women have a right to make autonomous, informed decisions about any of their reproductive health concerns and states are responsible for pro-viding the information and advice that will enable women to make such informed decisions. Practices that limit this right violate CEDAW.”