Forced Sterilisation during Caesarean and Informed Consent – the case of I.V. vs Bolivia

Merits I.V. BOLIVIA; August 15, 2014

This case demonstrates the difficulty, anguish and suffering experienced by vulnerable women when they are not afforded the right to bodily autonomy while accessing reproductive health services such as maternity health care.

In a landmark decision handed down on 30th November 2016, the InterAmerican Court of Human Rights held the State of Bolivia responsible for the forced sterilisation of I.V., a Peruvian refugee performed during a Caesarean Section at a public hospital. The circumstances surrounding this case are not isolated. According to data released by Peru’s Health Ministry, between 1996 and 2000, 260,874 women underwent tubal ligation procedures. It was estimated that as few as 10 percent of women consented to the procedure prior to application. Overall, thousands of women recounted being coerced, threatened, or extorted into undergoing sterilisation procedures.

The Court declared a violation of I.V.’s rights to personal integrity, personal freedom, dignity, private and family life, access to information and founding a family, recognized in Articles 5.1 (Right to Humane Treatment), 7.1 (Right to Personal Liberty), 11.1 and 11.2 (Right to Privacy), 13.1 (Freedom of Expression) and 17.2 (Rights of the Family) of the American Convention, to I.V’s enduring detriment.

The Court also examined, in the context of the right to health, the importance of the human right to informed consent and the elements required to protect that right.

This the first time the Inter-American Court of Human Rights analysed the foundations of the right to informed consent. For the Court, the informed consent rule is associated with the right of access to information in the field of health, because a patient can only give their informed consent if they have received and understood sufficient information that enables them to make a decision to fulfil their needs.

Background

I.V was a Peruvian refugee who fled, with her 2 daughters, to Bolivia after years of torture and sexual assault at the hands of the Peruvian National Police. While in Bolivia, I.V fell pregnant again and attended La Paz Women’s Hospital emergency department where she underwent a Caesarean section. The following morning, her doctor informed her that he had tied her fallopian tubes and that she would never have children again. The doctor claimed that complications arising from multiple adhesions made it necessary for him to do so and that verbal statements I.V. made during the surgery indicated her consent. 

Disturbingly, while I.V (who had an epidural anaesthetic which enables her to remain conscious throughout the procedure), the doctor called upon her husband to sign the “family consent form” to perform her Caesarean section.

In response to a series of complaints, the Audit Committee of the Women’s Hospital conducted two inquiries. In the first, the Committee found that I.V had verbally consented to the procedure. In the second, the Committee concluded that the sterilisation was performed prophylactically and in the interests of patient well-being. However, the medical audit conducted by the Ministry of Health found that I.V.’s verbal statements whilst under anaesthesia did not amount to consent and that the procedure was not a medical necessity.

Peruvian authorities initiated criminal proceedings against the doctor, to which I.V joined as a civil party. When the case was declared time-barred four years later, the Ombudsman of Bolivia submitted I.V.’s petition to Inter-American Commission on Human Rights.

Findings

The Court reasoned that an individual’s health is a core component of the right to personal integrity, which includes access to quality medical services, and enables self-determination in health and information is a core component of having and making a choice.  This involves the right to make a decision free from torture or non-consensual medical treatments.

As a fundamental human right, the right to health, including reproductive health, relies on a respect for an individuals’ bodily autonomy and self-determination. For the right to health to function, there must be informed consent from patient to practitioner. Informed consent is also inseparable from the fundamental human right to dignity.

Informed Consent

 To afford informed consent and respect the right to health, states have a duty to guarantee the right to information on health issues and protect the right of recipients of health services to decide freely whether or not to accept medical treatment. To deny health information can create obstacles to the right to make such decisions freely.

The court found that there had been a violation of consent arising from both the doctor and the State for the following reasons:

• The timely nature of obtaining consent: Consent must be granted before a medical procedure is performed. Consent cannot be deemed informed nor existent at the end of or after a procedure except during exceptional cases of genuine emergency or to mitigate serious risk to life or health of the patient. I.V.’s sterilisation operation was not an emergency.
• Consent must be free and voluntary: Consent must be granted “freely, voluntarily, in an autonomous manner, without pressure of any kind, without using it as a condition to perform other procedures or benefits, without coercion, threats, or misinformation. The person may not wish to consent, and consent may be revoked at any time. Consent can only be obtained by the person receiving the procedure. Husbands cannot consent on a wife’s behalf. To do so is to perpetuate the stigma that women cannot make their own decisions and are unreliable. This stigma is exacerbated when women from low socio-economic status and education standards in Latin America seek medical assistance.
• Full and informed consent: Consent can only be obtained after the person has received accessible, adequate, complete, reliable, understandable information which accounts for their level of education, culture, religion and lifestyle and had the opportunity to fully understand it. Health providers should at least inform the patients on: “i) diagnostic evaluation; ii) the objective, method, probable duration, expected benefits and risks of the proposed treatment; iii) the possible unfavourable effects of the proposed treatment; iv) treatment alternatives, including those that are less intrusive, and the possible pain or discomfort, risks, benefits and side effects of the proposed alternative treatment; v) the consequences of the treatments, and vi) what is estimated to occur before, during and after the treatment”.

It is the duty of the health professional to provide patients with the full extent of the options available and explain the risks associated with each procedure whilst considering the needs of the patient.

It is interesting to note the multiple mentions of sexism and paternalistic tendencies arising from the obstetrician-woman relationship. The Courts noted that hospitals can no longer rely on the paternalistic view that the doctor is always in the best position to make decisions on women’s reproductive organs and health.  

By reasoning from a socio-gendered perspective, the court in this instance opened the doors for further discussion and decisions pertaining to the overlapping of human rights violations, consent and discrimination in childbirth.

Keywords: Forced sterilization – Health care practitioner- Informed consent – Involuntary sterilisation – Involuntary treatment – Non-consensual testing and treatment