Mrs I.V. was born in Peru, where she had twice been detained in the Peruvian National Counter-Terrorism Directorate; during this time she experienced physical, sexual and psychological abuse. In 1993 she moved to Bolivia where she was granted refugee status. In July 2000 she went into labor in Bolivia and received a caesarian section. During the surgical procedure, the doctors verified the presence of numerous adhesions in the lower uterine segment, and due to this complication they decided to tie her Fallopian tubes while she was under anesthesia.
The main issue in this case is whether the patient gave consent during this procedure.
According to the State, I.V. verbally gave her free and voluntary consent, with appropriate counseling concerning the risks and benefits of the procedure, so that the tubal ligation was performed as a prophylactic measure and to comply with the protection of her life. On the other hand, I.V. has consistently denied before the domestic courts, before the Commission and also before this Court that she gave verbal consent for the tubal ligation procedure. I.V. has stated that it was during the visit of the resident doctor on July 2, 2000, that she first became aware that the tubal ligation had been performed.
This case therefore presents different legal questions involving the main issue of the consent of the patient. The key aspect to elucidate is whether the procedure of tubal ligation was performed after the patient’s informed consent had been obtained in accordance with the parameters established in international law for this type of medical act at the time of the facts. The Court had to refer back to various articles of the American Convention and of the Convention Belém do Pará, the most important being the right of personal integrity. The relevant articles consulted for this case are: Article 5(1); access to information including the right to know the truth, Article 13(1); rights to dignity, private and family life and to raise a family, Articles 11(1), 11(2), 17(2); the right to recognition of judicial personality, Article 3; prohibition of discrimination, Article 1(1) of the American Convention; and the right of women to a life free from violence, Article 7 of the Convention of Belém do Pará. The IV v. Bolivia case represents the first time the Inter-American Court of Human Rights examined women’s reproductive health through the region’s violence against women human rights treaty. Furthermore, the Court also had to find if there was a violation of the prohibition of torture and other cruel, inhuman or degrading treatment in violation of articles 5(1) and 5(2) of the American Convention.
In order to answer these questions, the Court first examined whether the State had fulfilled its obligations under international law when the procedure of tying the Fallopian tubes was carried out. The Court noted that health care personnel had the obligation to provide I.V. with adequate, comprehensible and accessible information on her health situation, ensure her autonomous decision on the choice of contraceptive methods appropriate for her life project, and ensure that they obtained her informed consent if she opted for a permanent surgical procedure. Without the consent of the patient, the physician did not respect treaty-based requirements; even if exceptions exist for consent procedures, female sterilization cannot be considered one, especially because in this case it was performed to avoid future, not immediate, health problems. Even accepting the State’s argument of verbal consent, the Court found it was obtained at an inappropriate moment: while on the operating table she was not given the opportunity to reflect or understand the consequences. It was not reasonable to suppose that she could take a fully informed decision in just 10 minutes, or even two hours. Based on these reasons, the Court concluded that she did not express her prior, free, full and informed consent and was therefore victim of a non-consensual sterilization. The procedure resulted in interference with her body, permanent loss of reproductive capacity and violation of her autonomy in sexual and reproductive decisions.
Regarding the prohibition of torture and other cruel, inhuman or degrading treatment, the Court emphasized the vulnerability of individuals in institutional settings such as hospitals, where medical personnel exercise power over patients. Due to the intensity of the suffering experienced by I.V., both physical and psychological, the Court concluded that the involuntary sterilization constituted cruel, inhuman and degrading treatment contrary to human dignity, thus violating Articles 5(1) and 5(2) of the American Convention.
As noted, the central issue is informed consent; the Court’s interpretation reflects the most important elements used in the international community. The right to information, guaranteed under the ICCPR and the CRPD, is closely linked to the exercise of other fundamental rights, including the right to health, which is reflected in paragraphs 149–156. In relation to sexual and reproductive rights, the Cairo Programme of Action (1994) and the Beijing Declaration (1995) both stress the need to obtain responsible, voluntary and informed consent. In this case, the Court established that States have the international obligation to obtain informed consent before performing any medical act based on autonomy, self-determination, dignity and personal liberty. Consent must be prior to the intervention, although exceptions exist when the patient’s life is in immediate danger – which was not the case in I.V.’s situation. Both the ECHR and IACtHR have held that sterilization without informed consent can never be justified as an emergency measure due to the risks of future pregnancies, as occurred in I.V.’s case.
Consent must also be free, voluntary and autonomous, given without pressure, coercion, threats or misinformation; furthermore, in sterilization cases must be personal and never delegated to partners or third parties. The Court specified that consent cannot be free if requested when the woman is in a situation of stress or vulnerability, such as childbirth or caesarean section. A similar finding appears in V.C. v. Slovakia, where the ECHR noted that a woman in pain or under medication cannot meaningfully process information. A similar critique appears in South Africa, where McLaughlin highlights how forcing women to sign waivers while in labor or failing to disclose risks takes advantage of vulnerable women and would never constitute informed consent in a South African court. Finally, the Court held that consent must be full and informed, meaning that adequate, complete, reliable, comprehensible and accessible information must be given and understood. Acting without informed consent is more common among women with fewer economic resources and lower education levels.
In conclusion, the I.V. v. Bolivia case is essential because the Court analyzes the concept of informed consent and describes its principal characteristics. Applying this concept, it is clear that in the case of I.V. there was an involuntary sterilization, as her consent cannot be considered full, free and informed.
BIBLIOGRAPHY
C. O’Connell, C. Zampas, “The human rights impact of gender stereotyping in the context of reproductive health care”. Int J Gynaecol Obstet. 2019
C. Soohoo, F. Diaz-Tello “Torture and Ill-Treatment: Forced Sterilization and Criminalization of Self-Induced Abortion” Gender Perspectives on Torture: Law and Practice, Center for Human Rights and Humanitarian Law Anti-Torture Initiative 2018
L. Carniak McLaughlin, The Price of Failure of Informed Consent Law: Coercive Sterilizations of HIV-Positive Women in South Africa, 32 LAW & INEQ. 69, 2014
P. Patel “Forced sterilization of women as discrimination”. Public Health Rev 38, 15, 2017
CASE LAW
I.V. v. Bolivia, Inter-American Court of Human Rights
V.C. v. Slovakia, European Court of Human Rights
Edited by FCA member, Laura
