CEDAW Finds Hungary Violated Convention in Sterilisation Case
In a decision communicated during the week of 31 August 2006, the UN Committee on the Elimination of Discrimination against Women (CEDAW) condemned Hungary for violating the Convention on the Elimination of All Forms of Discrimination against Women in connection with the sterilisation of a Romani woman without her consent in January 2001.
On 2 January 2001, a Romani woman (Ms S.) was sterilised by doctors at the Fehergyarmat hospital. While being operated on in connection with a miscarriage, she was asked to sign forms giving her consent to this and other operations, without a full explanation about the intervention, its nature, possible risks, or what the consequences of being sterilised would be. She was not told about other forms of birth control either. It was only after the operation that she learnt that she could not become pregnant again.
On 15 October 2001, Ms S. and her attorney filed a civil claim for damages against the hospital. They requested a finding that the hospital was in violation of the plaintiff's civil rights and that it had acted negligently in its professional duty of care with regard to the sterilisation of Ms S. in the absence of her full and informed consent. The claim was turned down on 22 November 2002.
On appeal, the Szabolcs-Szatmar-Bereg County Court held that the hospital doctors had indeed acted negligently in failing to provide Ms S. with the relevant information about the sterilisation and stressed that "the information given to the plaintiff concerning her sterilisation was not detailed ... [and that she] ... was not informed of the exact method of the operation, of the risks of its performance, and of the possible alternative procedures and methods." Nevertheless, the same Court concluded that sterilisations as such are fully reversible operations and that since Ms S. had provided no proof that she had suffered a lasting detriment, she was not entitled to compensation.
On 12 February 2004, the ERRC and the Legal Defence Bureau for National and Ethnic Minorities (NEKI) jointly filed a complaint against Hungary with CEDAW relating to the illegal sterilisation. The complaint asserted that Hungary, as a State Party to the Convention, is in violation of a number of provisions of the Convention, as a result of: (1) failures to provide adequate information on contraceptive measures and family planning; (2) the lack of informed consent on the part of Ms S. as a violation of her right to appropriate health care services; and (3) interference with Ms S.'s ability to have children in the future.
In its decision, the Committee stated that it was convinced by the ERRC/NEKI arguments that sterilisation is intended to be irreversible, that the success rate of surgery to reverse sterilisation is low and depends on many factors, and that reversal surgery is risky. With respect to the claim that Hungary violated the Convention by failing to provide information and advice on family planning the Committee stated that the applicant "has a right protected by Article 10(h) of the Convention to specific information on sterilization and alternative procedures for family planning in order to guard against such an intervention being carried out without her having made a fully informed choice."
In connection with the sterilisation surgery without an informed consent, the Committee reiterated that according under Article 12 of the Convention, States parties shall "ensure to women appropriate services in connection with pregnancy, confinement, and the post-natal period." According to its General Recommendation 24, "Acceptable [health care] services are those that are delivered in a way that ensures that a woman gives her fully informed consent, respects her dignity, guarantees her needs and perspectives. States parties should not permit forms of coercion, such as non-consensual sterilisation."
The Committee also recalled its General Recommendation 19 in which it states, "Compulsory sterilization…adversely affects women's physical and mental health, and infringes the right of women to decide on the number and spacing of their children." The Committee found that the sterilisation surgery was performed on Ms S. without her full and informed consent and must be considered to have permanently deprived her of her natural reproductive capacity, therefore her right to decide freely and responsibly on the number and spacing of her children was also violated.
In conclusion, the Committee held that appropriate compensation should be paid to Ms S. commensurate with the gravity of the violation of her rights. The Hungarian government should also ensure that the relevant provisions of the Convention and the pertinent paragraphs of the Committee's general recommendations in relation to women's reproductive health and rights are known and adhered to by all relevant personnel in public and private health centres, including hospitals and clinics.
The decision further states that the government should review domestic legislation on the principle of informed consent in cases of sterilisation and ensure its conformity with international human rights and medical standards. It should also repeal provisions allowing physicians "to deliver the sterilization without the information procedure generally specified when it seems to be appropriate in given circumstances." Public and private health centres that perform sterilization procedures, including hospitals and clinics, should be monitored so as to ensure that fully informed consent is being given by the patient before any sterilisation procedure is carried out, with appropriate sanctions in place in the event of a breach.
The decision is among important moves by domestic and international tribunals to provide redress to victims of coercive sterilisation in a number of countries of Central and Eastern Europe. These efforts have not yet been matched by governments: As yet there have been few if any acknowledgements of the systemic nature of race-based infringements of the right to informed consent in sterilisation matters, and the subsequent extreme human rights abuses inflicted on many Romani women.