November 17, 2011
This post is co-authored by Lourdes Peroni and Alexandra Timmer
The Court has recently ruled in V.C. v. Slovakia, a case brought by a Roma woman who complained that she was sterilized without her informed consent. The judgment is no doubt a landmark decision with crucial implications for women belonging to minority ethnic groups. In this post, we argue the Court’s reasoning is spot on in several respects and outline the reasons why.
Outline of the judgment
The applicant’s forced sterilization was in violation of Article 3 (prohibition of inhuman and degrading treatment) and Article 8 (respect for private and family life). The Court condemns the Slovakian government in strong terms. The violation of Article 3 is mainly because of the “gross disregard” of the Slovakian government to the applicant’s autonomy and choice (paragraph 119). The sterilization procedure was not an imminent necessity from a medical point of view and, what is more, the applicant did not give her informed consent. She was just asked to sign the typed words “Patient requests sterilization” while she was in labor and shortly before performing a Caesarean section. In sum, the Court thought that the sterilization procedure, including the way she was asked to give consent, was liable to arise feelings of “fear, anguish, and inferiority and to entail lasting suffering” (paragraph 118).
The violation of the applicant’s right to respect for her private and family life is mostly due to the failure of the Slovakian government to meet its positive obligations, which in this case essentially meant putting in place effective legal safeguards to protect the reproductive health of, especially, Roma women. Reports indicate that it is mainly women of ethnic groups, in particular Roma women, who are particularly affected by the practice of forced sterilizations. In other words, there are “systemic shortcomings” in the procedures concerning sterilizations and, as both the Council of Europe Human Rights Commissioner and ECRI showed, these shortcomings are likely to affect members of the Roma community the most.
Positive aspects of the judgment
Condemning paternalism and requiring meaningful consent
The Court strongly expresses its disapproval of the way V.C. was treated by the hospital staff: ‘The way in which the hospital staff acted was paternalistic, since, in practice, the applicant was not offered any option but to agree to the procedure which the doctors considered appropriate in view of her situation. However, in similar situations informed consent was required, promoting autonomy of moral choice for patients.’ (paragraph 114).
Hurrah! And it gets even better because the Court goes on to explain what meaningful consent in the area of reproductive rights requires. The Court thoroughly grounds the principle of “informed consent” in both international conventions and documents – notably the Convention on Human Rights and Biomedicine, and CEDAW’s General Recommendation 24 – and general principles such as respect for human dignity, human freedom, and autonomy. According to the Court, informed consent includes information about one’s health status; information about the proposed procedure and the alternatives to it; and time for reflection. Also, the Court notes: ‘the applicant’s informed consent could not be dispensed with on the basis of an assumption on the part of the hospital staff that she would act in an irresponsible manner with regard to her health in the future’ (paragraph 113).
Recognition of harm
Another thing we particularly admire in this judgment is the way that the Court recognizes the harm that has been done to V.C. The Court notes that “the sterilisation procedure grossly interfered with the applicant’s physical integrity as she was thereby deprived of her reproductive function” (paragraph 116), and goes on to note that “the sterilisation procedure, including the manner in which the applicant was requested to agree to it, was liable to arouse in her feelings of fear, anguish and inferiority and to entail lasting suffering” (par. 118). This recognition of harm goes hand in hand with empathy for V.C. and the particular situation that she was in. The Court notes that her suffering is augmented by the fact that she was forcibly sterilized when she was very young (V.C. was 20 years old at the time) and thus only at the beginning of her reproductive life; the fact that the sterilization led to grave problems with her partner; the fact that she developed psychological problems; and that her sterilization led to social problems (paragraph 118).
Identifying the root-causes of the problem
The Court makes an interesting and, in our view, correct link between the harmful practice it condemns and the widespread prejudice against Roma. Following the Council of Europe Human Rights Commissioner and ECRI, the Court admits that the reason why the Roma population was at particular risk was “the widespread negative attitudes towards the relatively high birth rate among the Roma compared to other parts of the population, often expressed as worries of an increased proportion of the population living on social benefits” (paragraphs 146 and 147). The Court nicely brings human rights reports, including CEDAW’s into play.
Positive obligations towards Roma women in the context of reproductive health
Another positive point, mainly because of its significant implications for women’s reproductive health – in particular, for Roma women’s reproductive health – is that the Court goes the extra mile in its Article 8 analysis: “The Court […] considers it important to examine whether the respondent State complied with its positive obligation under Article 8 to secure through its legal system the rights guaranteed by that Article, by putting in place effective legal safeguards to protect the reproductive health of, in particular, women of Roma origin” (paragraph 145). In this case, positive obligations essentially required ensuring that the applicant’s involvement in the procedures was sufficient to protect her interests.
No Article 14-analysis
We see only one downside to this judgment: the Court finds that Article 14 (non- discrimination) merits no separate examination. In a sense, this is surprising. There are several troublesome aspects in the reasoning here. We would like to flag just two of them. First, the Court focuses on the intention of the doctors (they did not act in bad faith, the Court asserts) instead of on the effects the irregular sterilization practices have on the ground on Roma members. We think that the Court’s focus on intent as a hallmark of discrimination is misconceived. (Alexandra has blogged about the intent criterion in the Court’s case law here, and here is a seminal article by Charles Lawrence on unconscious racism.) Second, materials in V.C. indicate that the practice of forced sterilization affected Roma women in particular. The Court, however, does not find this sufficient to examine the state’s compliance with its duty to investigate whether the applicant’s sterilization was racially motivated. The analysis somehow reminds us of the Court’s reasoning in cases concerning racially-motivated violence. In some of these cases (see e.g., Mižigárová v. Slovakia), the Court has not found a violation of states’ procedural duty to investigate whether racist motives played a role in spite of numerous documents reporting widespread abuse against Roma (see Lourdes’ post here). In a way, then, the issue seems to remain on the Court’s back-burner.
Still, as should be obvious from the above, we like the Court’s reasoning under Article 3 and 8. Hats off!