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DOI: 10.7574/cjicl.02.03.118
Cambridge Journal of International and Comparative Law (2)3: 640–656 (2013)
Abortion and a Right to Health in
International Law: L.C. v Peru
Charlotte Bate
Abortion, international law, Latin America, reproductive rights, CEDAW, Peru
In November 2011, the Committee on the Elimination of Discrimination AgainstWomen decided a complaint originating from Peru. The complaint concerned ayoung woman, L.C., who was denied access to a safe and legal abortion that sherequired so that she could undergo urgent medical treatment. This article wiladdress the decision, its place in international human rights law, and its likelyimpact, if any, on abortion legislation in Peru.
The facts
Between 2006 and 2007, when L.C. was 13-14 years old, she was repeatedly rapedby a 34-year-old man over period of several monthsShe became pregnant, buttold no one. Desperate and depressed, she attempted suicide by throwing herselfoff the roof of the building next to her homefracturing several vertebrae andleaving her quadriplegic. A senior surgeon concluded that her spine needed to berealigned immediateto increase the chances of future mobilityThe surgerywas scheduled for 12 April 2007* LLM, University of Birmingham. I would like to thank Professor Sonia Harris–Short for reading
parts of this article as part of my Masters thesis, and for encouraging me to pursue this research.
1 Center for Reproductive Rights,
L.C. v.
Peru (UN Committee on the Elimination of Discrimina-
elimination-of-discrimination-against-women> [accessed 25 July 2013].
4 Human Rights Watch,
My Rights, and My Right to Know: Lack of Access to Therapeutic Abortion in
Peru (2008), paras 15-16.
5
LC v Peru, C/50/D/22/2009 (4 November 2011) (CEDAW), para 2.1.
Copyright the Author(s).
This work is licensed under a
Abortion and a Right to Health in International Law: L.C. v Peru
When L.C. was examined prior to her surgery, her sexual abuse and preg-
nancy were revealedAt this point L.C. was around 8 weeks pregnantDoctorswould not operate while she was pregnant, even though the medical staff recog-nised that her physical mobility was continuing to deteriorate between 2 and 12AprilShe was also given no psychiatric treatment for her depression, as this wascontraindicated during pregnancy
L.C.'s mother requested a therapeutic abortion for her daughter in accordance
with Article 119 of the Penal Code, to al ow L.C. to have the operationArticle119 provides that abortion is not punishable when it is the only means to save thelife of the woman or to avoid serious and permanent damage to her health.
After several meetings and unexplained delays, the hospital medical com-
mittee refused the petition on the grounds that the pregnancy no longer poseda threat to L.C.'s physical healthIn contrast, a medical report relied on by L.C.'slegal team from the High-Level Commission on Reproductive Health of the Med-ical Col ege of Peru concluded that [t]here are sufficient reasons to state that, if thepregnancy continues, there is grave risk to the girl's physical and mental health;a therapeutic abortion, if requested by the subject, would therefore be justified.
On 11 July 2007, L.C. miscarried in hospital due to the severity of her injuries.
Doctors finally performed the spinal surgery, three and a half months after itwas deemed necessaryBy that time any operation would have had little or noeffect on restoring her physical capacityFurthermore, after her discharge fromhospital on 31 July, the intensive course of physiotherapy recommended in thehospital reports did not begin until 10 December [T]he months of delay cost[L.C.] control of her body. She cannot walk at al , has no control of her bowels, andcan barely use her arms and hands.Her condition prevents her from attendingschool, and the expense of her treatment has meant that her brothers have had to
6 Ibid, para 2.3.
7 Ibid, para 2.8.
8 Ibid, para 2.3.
9 Ibid, para 2.4.
10 Center for Reproductive Rights, LC "I have to tel you what happened to me"' <http://vimeo
.com/15606635> [accessed 25 July 2013];
LC, above n 5, para 2.5.
11 Código Penal de Perú (Legislativo No. 635) Art 119.
12
LC, above n 5, para 2.6.
13 Ibid, para 2.7.
14 Ibid, para 2.9.
15 Human Rights Watch, above n 4, 16.
16
LC, above n 5, para 2.10.
17 Center for Reproductive Rights, above n 10.
leave school and begin working
National law background
Abortion is a second category offence in Peru's 1991 Penal Code. Article114 provides that a woman who causes her abortion or consents to anotherperforming one upon her wil be sentenced to up to 2 years' imprisonmentor between 52 and 104 days of community serviceFor the provider of aconsensual abortion, Article 115 provides a sentence of between one and fouryears' imprisonment. If the woman dies and this is a foreseeable result, the termincreases to between two and five yearsArticle 117 states that if the provider isa doctor, obstetrician, pharmaceutical, or any health professional', the sentenceis aggravated, and the provider is disqualified from practiceArticle 30 of thePeruvian General Health Law (26842) also requires healthcare providers to reportto the police women who are suspected of inducing an unauthorised abortionThe sentence is mitigated to up to three months' imprisonment where there hasbeen a rape or where the foetus has serious physical or psychological defects',under Article 120 of the Penal CodeAn abortion in these circumstances is stila criminal offence.
The only exception to the general criminalisation of abortion is Article 119.
It provides that abortion is not punishable when it is the only means to save thelife of the woman or to avoid serious and permanent damage to her health.However, neither the constitutional provisions on abortion, nor the currentGeneral Health law, provide for any regulations on the procedure for accessingan abortion: the decision lies at the discretion of the patient's doctorsThere isno judicial mechanism for chal enging the doctors' decision
In contrast, Article 2 of the Peruvian Constitution of 1993 provides that
[e]very person has the right to life, his identity, his moral, psychic and physicalintegrity and his free development and wel -being. The unborn child is a
18
LC, above n 5, para 2.11.
19 Código Penal de Perú, Art 114.
20 Ibid, Art 115.
21 Ibid, Art 117.
22 Human Rights Watch, above n 4, 20.
23 Código Penal de Perú, Art 120.
24 Ibid, Art 119.
25
LC, above n 5, para 2.13.
26 Ibid, para 5.7.
Abortion and a Right to Health in International Law: L.C. v Peru
rights-bearing subject,
in any event which is beneficial for him.In recent casesinvolving the use of emergency contraception, the Peruvian Constitutional Courthas made clear that it wil prioritise the interests of the unborn over those of thewomanThe Court found that a zygote (fertilized ovum) has a right to life.
Although the emergency contraceptive pil is not an abortifacient, the court foundthat it should be treated as causing an abortion because it prevents the zygotefrom implanting in the uterus wal , and thus violates the unborn's right to life
These legal provisions give very little guidance to doctors, hospital manage-
ment or lawyers about when an abortion is not criminal, or how to approach rec-onciling Article 119 of the Penal Code and Article 2 of the Constitution. It is sug-gested here that there is also doubt whether the legal effect of Article 119 is to cre-ate a
right to an abortion to save the life or permanent health of the mother, in thesense of placing a duty on another to provide oneThe provision is framed asan immunity—an absence of liability—from punishment for abortionno clearduty is imposed on the state that a woman could rely on as conferring a positiveright to an abortion. In contrast, the Constitution explicitly gives rights to theunborn, and there is a constitutional duty on officials to protect such rights.
The right to health and non-discrimination in
access to health services
L.C.'s legal team al eged that the refusal of the hospital to al ow her to accessa legal therapeutic abortion violated her rights to health, a life of dignity andto be free from discrimination in access to such care.The most importantConvention rights for these purposes are Articles 12 and 2 of the Convention onthe Elimination of Discrimination Against Women (
CEDAW ).
The health and reproductive rights in CEDAW are, in practical terms, very
important for giving effect to women's health rights. Peru is not a signatory to
27 Constitución Política del Perú (ratified 31st October 1993, enacted 29 December 1993), Art 2
(emphasis added).
28 M Cardenas, Banning emergency contraception in Latin America: Constitutional Courts
granting an absolute right to life to the zygote' (2009) 6
Houmboult American Comparative LawReview 359.
30 W Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning' (1917)
Yale Law
Journal 710, 723.
31 Ibid, 738.
32
L.C., above n 5, para 3.8.
the Optional Protocol to the International Covenant on Economic, Social andCultural Rights (
CESCR), which means that although Peru is bound by CESCR,if women take their complaints to United Nations bodies then they must rely onrights in other Conventions which they can bring to an international hearing. Thepurpose of CEDAW is to eliminate gender discrimination in women's exercise ofal human rights, including economic, social and cultural rightsThis thereforeincludes the right to health in Article 12 of CESCR.
The right to health was recognised as a human right from the outset of
modern international human rights law: the Universal Declaration on HumanRights. Article 25 provides not only that everyone has the right to a standard ofliving adequate for the health and wel -being of himself and his family, including[…] medical care'but also that Motherhood and childhood are entitled tospecial care and assistance [T]he right of everyone to the enjoyment of thehighest attainable standard of physical and mental healthwas immortalised intreaty law in Article 12 of CESCR. The inclusion of both physical and mentalhealth in Article 12 is significant, as it extends the remit of maternal healthtargets to the mental as wel as the physical health of women. Indeed, in manycountries, including Peru's neighbour, Colombia, mental health grounds areexplicit exceptions to a general criminalisation of abortion. The Committee ofEconomic, Social and Cultural Rights' General Comment 14 further clarifies thatthis includes the right to control one's health and body, including sexual andreproductive freedomThis clearly indicates that issues involving fertility andpregnancy are encompassed by the right to health.
General Comment 14 provides the framework for the analysis of the right
to health. It provides that four interrelated and essential elementsmake upthe right to health: the availability, accessibility, acceptability and quality ofhealth services. The
L.C. case is clearly a matter of the accessibility of a medicalprocedure which is legally—but not physically—available to L.C.
The justiciability of Covenant rights is limited by Article 2 of CESCR: the
33 Convention on the Elimination of Al Forms of Discrimination Against Women, 18 December
1979, 1249 UNTS 13, Art 1.
34 Universal Declaration of Human Rights, GA res 217A (III), UN Doc A/810, 10 December 1948,
35 Ibid, Art 25(2).
36 International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS
37 Committee for Economic, Social and Cultural Rights, General Comment 14', UN Doc
E/C.12/2000/4, 11 August 2000, para 8.
38 Ibid, para 12.
Abortion and a Right to Health in International Law: L.C. v Peru
state only undertakes to guarantee the right to the maximum of its availableresources, with a view to achieving progressively the ful realisation of the rightsrecognized in the present Covenant'However, Article 2 imposes an obligation to take steps [which] should be deliberate, concrete and targeted as clearly aspossible towards meeting the obligations recognized in the Covenant.The statecannot therefore abstain from responsibility entirely: it is under an obligation totake action according to its means. The right to health is also protected regionallyby the Additional Protocol to the American Convention on Human Rights in theArea of Economic, Social and Cultural Rights
The Committee on the Rights of the Child went further in elaborating the
meaning of maximum available resources'. It has suggested that resourcesmust be understood as encompassing not only financial resources but also othertypes of resources relevant for the realisation of economic, social and culturalrights such as human, technological, organisation, natural and informationresources.This statement is likely to apply to the application of this articleacross committees. Thus, while the state has a margin of appreciation as to theal ocation of financial resources, a lack of funding wil not in itself act as an excuse.
The organisation of those resources and organisation of professionals to providecare is also relevant. This could include, for example, ensuring the availabilityof doctors who do not conscientiously object to abortion to make decisions onwhether the necessary legal conditions for an abortion exist.
The South African Constitutional Court has been instrumental in proving
the justiciability of economic, social and cultural rights to the rest of theworld. An important case for our purposes is
Ministry of Health v TreatmentAction Campaignwhich concerned the implementation of a treatment planfor pregnant women and new mothers with HIV. The government argued thatnevirapine, a drug shown to be effective at preventing the transmission ofHIV during birth, had not been made widely available because more researchwas needed into the efficacy of a care package containing a range of measuresdesigned to also prevent post-natal mother-to-child infection on their nominated
39 CESCR, Art 12.
40 Committee for Economic, Social and Cultural Rights, General Comment 3', UN Doc E/1991/23,
14 December 1990, para 2.
41 Additional Protocol to the American Convention on Human Rights in the Area of Economic,
Social and Cultural Rights, 17 November 1988, Art 10.
42 Committee on the Rights of the Child, Report on the Forty-Sixth Session, UN Doc CRC/C/46/3,
22 April 2008, ch VII, para 65.
43 Ministry of Health v Treatment Action Campaign [2002] ZACC 15
test sites. The court held that while this was important, it was not a reason for notal owing the administration of the nevirapine' in other parts of the public healthsystem. This demonstration of justiciability at national level is important becausethe Optional Protocol to CESCR, which al ows individuals from states party to itto bring complaints to an international body, was only recently approvedandmany states, including Peru, are not parties to it.
Article 2 of CESCR also provides that Covenant rights should be exercised
without discrimination of any kind' including on grounds of sex and languageNon-discrimination in healthcare on grounds of sex has been further bolsteredby the Committee on Economic, Social and Cultural Rights' General Comment16 and Article 12 of CEDAW. These provide for the equal enjoyment of Conven-tion rights between men and womenincluding in family planningand ap-propriate services in connection with pregnancy, confinement and the post-natalperiod'These provisions clarify that discrimination can occur not only whenthere is a difference in treatment between men and women, but also indirectlywhen services used only by women, including maternal and reproductive health-care, are neglected.
Internationally, reproductive choice has been successfully asserted as a
negative right. In the case of María Mamerita Mestanza Chávez v Peru, Peruaccepted responsibility for not guaranteeing the rights of a woman who washarassed into undergoing sterilisation without her informed consentHowever,where reproductive choice has been asserted as a positive right, success hasbeen more limited, as this requires the state to delegate a duty to physiciansand to expend resourcesHowever, it is suggested here that, given thatstates, including Peru, have committed to improving funding for family planningin Mil ennium Development Goal 5this is becoming an increasingly weak
44 Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, GA
Res 63/117, 10 December 2008.
45 CESCR, Art 12.
46 Committee for Economic, Social and Cultural Rights, General Comment 16', UN Doc
E/C.12/2005/4, 11 August 2005, para 29.
47 CEDAW, Art 12(1).
48 Ibid, Art 12(2).
49 María Mamerita Mestanza Chávez v Peru, Case 12.191, Resolution N° 71/03 (10 October 2003)
50 R Cook, B Dickens & M Fathal a, Reproductive Health and Human Rights: integrating medicine, ethics
and law (2003), 52.
51 United Nations, Mil ennium Development Goals', (United Nations Mil ennium Summit, New
York, 2000), Goal 5 Target B.
Abortion and a Right to Health in International Law: L.C. v Peru
justification. The International Conference on Population and DevelopmentProgramme for Action strongly emphasises that the fulfilment of reproductivehealth rights is a state obligation
While the Committee on the Elimination of Discrimination Against Women
had previously recognised that the prevalence of unsafe abortion in the regionis a major cause of maternal mortality' and that the criminalisation of abortion may lead women to seek unsafe, il egal abortions, with consequent risks totheir life and health'it has historically seemed reluctant to endorse safe andlegal abortion as a solution, even in soft law. The International Women'sHealth Conference for Cairo 94, held in Rio de Janeiro nine months beforethe International Conference on Population and Development Programme forAction in Cairo, created an opportunity for Cairo to endorse abortion access.
It recommended that [t]he UN and other donors and governments shouldrecognize the right to a safe and legal abortion as an intrinsic part of women'srights and governments should change legislation and implement policies tobetter reflect such a recognitionHowever, the Cairo Programme for Actiondid not adopt this stance: the compromise between states that supported andopposed abortion resulted in statements that government policy should be aboutpreventing abortionand that al attempts should be made to eliminate theneed for abortion'This view is also represented in the Committee on theElimination of Discrimination Against Women's General Recommendation 19,which states that there is a positive obligation on states to ensure that womenare not forced to seek unsafe medical procedures such as il egal abortion becauseof lack of appropriate services in regard to fertility control.
52 United Nations, Report of the International Conference on Population and Development, UN Doc
A/CONF.171/13, 18 October 1994, Chapter 7.
53 E.g. Committee on the Elimination of Discrimination Against Women, Concluding comments
of the Committee on the Elimination of Discrimination against Women: Chile', UN Doc
CEDAW/C/CHI/CO/4, 26 August 2006, para 19; Human Rights Committee, Concluding
Observations of the Human Rights Committee: Chile', UN Doc CCPR/C/79/Add.104, 3 March
1999, para 13; Committee on the Elimination of Discrimination Against Women, Concluding
comments of the Committee on the Elimination of Discrimination against Women: Mexico',
UN Doc A/53/38/Rev. 1, 6 February 1998, para 426.
54 S Corrêa, Population and reproductive rights: feminist perspectives from the South (1994) 65-6
(emphasis added).
55 United Nations, above n 52, paras 7.6, 7.24.
56 Ibid, para 8.25.
57 Committee on the Elimination of Al Forms of Discrimination Against Women, General
Recommendation 19: Violence against Women', UN Doc A/47/38, 11 Session 1992, para 24(m)
(emphasis added).
Other rights of the woman in international law
CEDAW also provided for some additional rights that L.C. relied upon. Theseinclude specific rights to information and advice on family planningand theright to decide the number and spacing of childrenThe former United NationsSpecial Rapporteur for Violence Against Women has stated that [d]irect Stateaction violative of women's reproductive rights can be found […] in criminalsanctions against […] abortion.
Furthermore, it was argued in L.C. that the violations, including lack of
administrative action and the failure to provide an administrative remedy toprotect women from discriminationwere aggrevated as they did not givespecial attention required by her status as a minorAn argument was also madethat the irreparable consequences for her life and health […] constituted sufferingequivalent to torture'
The procedural arguments in the L.C. case are particularly important in
the Peruvian context, because of a previous decision against Peru from theHuman Rights Committee. K.L. v Perconcerned a 17-year-old girl carryingan anencephalic foetus. Anencephaly is a defect that leaves foetal skul bonesunformed and is both untreatable and certain to cause the infant's death during orshortly after birthIt can also endanger the mother's lifeIn K.L., the hospitalobstetrician advised a termination, but the availability of an abortion was subjectto the approval of the hospital directorThe director refused to authorise anabortion, stating that under Article 120 of the Penal Code, abortions of deformedfoetuses were criminalThe refusal of an abortion served to prolong thedistress and emotional instability' of K.L., who suffered from severe depression asa result of continuing with the pregnancyAfter the birth, she further endure[d]
58 CEDAW, Art 10(1)h.
59 Ibid, Art 16(1)e.
60 United Nations High Commission on Refugees, Report of the Special Rapporteur on Violence against
Women, its causes and consequences, UN Doc E/CN.4/1999/68/Add.4, 21 January 1999, para 44.
61 L.C., above n 5, para 3.2.
62 Ibid, para 3.5-6.
63 Ibid, para 3.4.
64 K.L. v Peru, CCPR/C/85/D/1153/2003 (3 November 2005) (HRC).
65 B Dickens, Prenatal management of anencephaly' (2008) 102 International Journal of Gynecology
and Obstetrics 304, 304.
66 K.L., above n 64, para 2.7
67 Ibid, paras 2.2-3.
68 Ibid, para 2.3.
69 Ibid, para 2.5.
Abortion and a Right to Health in International Law: L.C. v Peru
the distress of seeing her daughter's marked deformitiesby being forced tobreastfeed for four days until the baby diedThe Human Rights Committeefound that the refusal of the competent medical authorities to provide the servicemay have endangered the [mother's] life [and] that no effective remedy wasavailable to her to oppose that decision'This amounted to a violation of thegirl's rights to life (Article 6), privacy and family life (Article 17) and freedomfrom cruel, inhuman or degrading treatment (Article 7) under the Covenant onCivil and Political Rights. The Committee also found a violation of the positiveobligation of the state to protect minors (Article 24 since she did not receivethe special care she needed from the health authorities, as an adolescent girl'This is significant because the Human Rights Committee's General Comment 17suggests that this obligation applies in relation to guaranteeing economic socialand cultural, as wel as civil and political, rightsand thus applies to the right tohealth of minors.
The Article 24 issue—the duty to protect minors—deserves some discussion,
as it also applies to the L.C. case. It creates a difficulty for states, as they are nolonger balancing the rights of an adult with an unborn child, but of a child—towhom they owe special duties of care—with an unborn child. Tobin has arguedthat in such a situation, it is not for the state to say simply that the child isexercising adult activities, and thus al ow this special duty to be neglected. Rather,he says that the right to health, when used in conjunction with several otherarticles under the CRC […] demands that appropriate measures be taken by statesto minimize the risks to children's health which arise in the exercise of their sexualautonomyIf this is indeed true in relation to voluntary sexual activities, thensurely it must be the case in relation to protecting children from the consequencesof involuntary sexual activity.
This leads us to the issue of rape, a matter not outlined in the K.L.decision but
relevant in the L.C. case. The Committee bodies have in general recommendedthat abortion should be al owed where the pregnancy is the result of rape or in-
70 Ibid, para 6.3.
71 Ibid, paras 2.6, 6.3.
72 Ibid, para 6.2.
73 International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171, Arts 6,
74 K.L., above n 64, para 37.
75 Human Rights Committee, General Comment 17', UN Doc HRI/GEN/1/Rev.6, 7 April 1989, para
76 J Tobin, The Right to Health in International Law (2011) 134.
cest, including in their recommendations to PeruThese are recommendationsand thus fal within the margin of appreciation of the state, but their volume andthe universality of this view held across the committees indicates a degree of con-sensus that this is a human rights conformity issue.
Rights of the foetus in international law
The Preamble of the Convention of the Rights of the Child 1989 states that thechild, by reason of his physical and mental immaturity, needs special safeguardsand care, including appropriate legal protection, before as wel as after birth.This provision has generated considerable debate in Latin America.
Van Bueran argues that if childhood begins from the moment of concep-
tionthen the child has a right to lifewhich in practice would mean that abortion would be prohibited under international lawand that other rights,such as privacy and healthwould be equally applicable to a foetus.
However, it is notable that the Convention itself does not clearly provide
that any rights should be attributed to the unborn child: Article 1, which defineswho is a child, omits to provide for any starting point from which a duty toprotect Convention rights is imposed. In an earlier draft, a right to life fromconception did exist in Article 1, but was removed as a compromise with stateswanting to permit abortionThe Committee on the Rights of the Childhas stated that the Preamble does not mean that countries that al ow abortionshould doubt their commitment to the Convention. It has publicly linked unsafeabortion and maternal mortalityand expressed concern about the impact ofpunitive legislation on maternal mortality ratesThis suggests that Article 1does not create foetal rights. However, several Central and South American
77 E.g. Committee on Economic, Social and Cultural Rights, UN Doc E/C.12/PER/CO/2-4, para
21; Human Rights Council, UN Doc A/HRC/22/15, para 119.8.
78 Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3, Preamble (CRC)
(emphasis added).
79 G Van Bueren, The International Law on the Rights of the Child (1995), 33.
80 CRC, Art 6(1).
81 Van Bueren, above n 79, 33.
83 Ibid, 34.
84 Committee on the Rights of the Child, General Comment 4: Adolescent Health', UN Doc
CRC/GC/2003/4, 1 July 2003, para 31.
85 Committee on the Rights of the Child, Concluding Observations on Guatemala', UN Doc
CRC/C/15/Add.154, 9 July 2001, para 40.
Abortion and a Right to Health in International Law: L.C. v Peru
states, including Argentina and Guatemala, have made declarations on ratifyingor signing the Convention that they wil protect a child from conceptionAlthough Peru has not entered a declaration, its Constitution, as discussed earlier,would prima facie suggest that the government may share this belief
On a regional level, the American Convention on Human Rights, to which
Peru is a party, protects life in general, from the moment of conception'Thelegal position of the foetus under this Convention was clarified in the Baby BoyCaseIn that case, the Inter-American Commission on Human Rights foundthat:
The addition of the phrase in general, from the moment of concep-tion' does not mean that the drafters of the Convention intended tomodify the concept of the right to life that prevailed in [the Amer-ican Declaration of Human Rights]. The legal implications of theclause in general, from the moment of conception' are substantiallydifferent from the shorter clause from the moment of conception'
It therefore appears incorrect to read Article 4(1) as meaning that a positive rightto life exists from the moment of conception, or as implicating this interpretationof national constitutions.
The decision of the Committee on the
Elimination of Discrimination Against Women
In the L.C. case, the Committee on the Elimination of Discrimination AgainstWomen found squarely in favour of L.C. It held that:
L.C. was a victim of exclusions and restrictions in access to healthservices based on a gender stereotype that understands the exerciseof a woman's reproductive capacity as a duty rather than a right.
By failing to comply with the legal duty to provide health servicesto L.C. (including reproductive health services), and having doneso for discriminatory reasons arising from her status as a woman,
86 Van Bueren, above n 79, para 34.
87 Constitución Política del Perú, Art 2.
88 American Convention on Human Rights, 12 November 1969, Art 4(1).
89 Baby Boy', Case 2141, Res 23/81 (6 March 1981) (Merits).
90 Ibid, para 30.
considering her reproductive capacity of greater importance thanher human rights, the State party violated articles 1 and 12 of theConvention
In addition, [t]he mental health of L.C. was completely overlooked in theevaluation concerning whether a therapeutic abortion was warranted'
The Committee also found that the state had failed to observe its General
Recommendation 24 obligation to ensure the provision of certain reproductivehealth services and to establish a system that guarantees judicial remedies whenit fails to do soThe absence of such a system created the conditions al owingagents of the state to discriminate against L.C. and prevented her access to themedical treatment she required, which also constitutes a violation of articles 1 and12and Article 16(1)(e)The resultant failure to effectively protect the rights ofwomen through national institutions violated Article 2.
In arguably its most important finding, the Committee considered that since
the State party had legalised therapeutic abortion, it must establish an appropriatelegal framework that al ows women to exercise their right to it under conditionsthat guarantee the necessary legal security, both for those who have recourse toabortion and for the health professionals that must perform it'In particular,this framework should specify a mechanism for rapid decision-making', roomfor the woman's opinion to be taken into account, and a right to appeal
We have seen that the Peruvian system, which leaves decisions on balancing thelegal rights of the woman—including a woman who is herself a minor—and un-born child in the hands of doctors operating under the risk of prosecution, re-quires the legislature to make difficult ethical decisions about which aims it con-siders to be legitimate. The L.C.case is clearly a victory for those in Peru who havefor a long time advocated legal clarification of the procedure for obtaining a ther-apeutic abortion. Such a determination has been long-anticipated. After the K.L.
91 L.C., above n 5, para 7.7.
92 Ibid, para 7.6.
93 Ibid, para 7.11.
94 Ibid, para 7.12.
95 Ibid, para 7.14.
96 Ibid, para 8.17.
Abortion and a Right to Health in International Law: L.C. v Peru
decision, in mid-2006 the Ministry of Health Working Group on Sexual and Re-productive Health was asked to develop a National Protocothat would imple-ment the decision. In 2007, a public meeting to discuss the Protocol was cancel edand never rescheduledProgress then stal ed. In an attempt to establish inter-nal guidance to doctors under the existing laws, the National Materno-PerinatalInstitute issued a hospital-wide directive for the integral management of thera-peutic abortion for gestations of less than 22 weeks', a copy of which was sent tothe governmentHowever, the Ministry of Health declared this directive nuland void for exceeding administrative authorityThree hospital-level proto-cols at different institutions remain, but the implementation of rules to controldiscretion has not been supported by the Ministry of HealthPeru was againreminded of the need to implement national regulation of therapeutic abortionby the ESCR Committee in May 2012The response given on this matter byPeru in its Universal Periodic Review in November 2012, was that the Protocolprepared by the National Materno-Perinatal Institute stil existed and could beused for referenceHowever, the Human Rights Council did not think this wasadequate and reaffirmed recommendations to [a]dopt and implement a nationalprotocol to guarantee equal access to therapeutic abortion for women and girlsas part of sexual and reproductive health services' [a]dopt the necessary mea-sures to inform women and girls about their rights related to access to sexual andreproductive health services, including the possibility of abortion, as establishedby domestic legislation'and [r]eview its restrictive interpretation of therapeu-tic abortion and decriminalisation of abortion in cases of rape, as recommendedby CEDAW
The L.C. decision has clearly reaffirmed the need for Peru to resume
discussions. To do so is not only part of the state's duty under the K.L. Decision;
98 HRW, above n 4, 21.
99 Ibid, 21-2.
100Ibid, 23.
102Ibid, 24.
103Committee on Economic, Social and Cultural Rights, Concluding observations of the Commit-
tee on Economic, Social and Cultural Rights: Peru', UN Doc E/C.12/PER/CO/2-4, 30 May 2012,
104HRC, Report of the Working Group on the Universal Periodic Review: Peru, UN Doc A/HRC/22/15,
27 December 2012, para 111.
105Ibid, para 116.97.
106Ibid, para 116.98
107Ibid, para 199.8.
the ESCR Committee has stated that part of the state's duty to ensure a minimumcore obligation' is to adopt a public health strategy and plan of action and toreview those plans periodically including against indicators
As we have seen, international law accommodates the reality of the need for
states to prioritize the al ocation of scarce resources provided that the state is ableto demonstrate that the process for al ocating these resources can be shown to bereasonable.The issue here, however, is clearly not a financial one: indeed,an abortion was a far cheaper option than the ongoing care that L.C. wil nowrequire for the rest of her life. Rather, the issue is one of a lack of political wilto al ocate resources towards such a controversial procedure. However, wherean abortion is lawfully available, but physicians fail to provide access—due totheir own objection or a fear of prosecution—it wil amount to a violation ofthe right to health by the state. The Cairo Plan of Action recommended that incircumstances where abortion is not against the law, health systems should trainand equip health-service providers and should take other measures to ensurethat such abortion is safe and accessible'It is this resource—training—that iswoefully inadequate in Peru.
The World Health Organisation has recommended a two-pronged approach
for dealing with therapeutic abortion in countries such as Peru. The first isthat states promote and review their relevant laws amongst physicians […] andthe general public, design and implement policies to ensure effective access toabortion to the extent that the law al ows and remove unnecessary regulative andadministrative barriers to access'In the Peruvian context, this would coverboth the education of the profession, and the removal of the risk of prosecutionfor doctors who do misinterpret the law. The second recommendation is thatstates operate a mandatory referral scheme, where doctors who conscientiouslyobject to the procedure refer women to another doctor who is wil ing to performabortionsThis suggestion gives rise to a number of issues. It keeps thedecision-making power on a legal as wel as a medical matter in the hands ofdoctors, which means that specialist training for those who are wil ing to carry
108Committee on Economic, Social and Cultural Rights, General Comment No 3: The Nature of
States Parties' Obligations', UN Doc E/1991/23,14 December 1990, annex III, para 10.
109Tobin, above n 76, 12.
110 United Nations, Key Actions for the Further Implementation of the Programme of Action of the
International Conference on Population and Development, GA Res S21/2, UN Doc A/RES/S-21/2,
8 November 1999, para 63(iii).
111 Tobin, above n 76, 164.
112 Ibid, 164-5.
Abortion and a Right to Health in International Law: L.C. v Peru
out the procedure is required. It also relies on the integrity of doctors to statetruthfully their objection or lack of it, both of which could leave the individualopen to criticism. A mandatory referral system may thus interfere with the rightto freedom of religion and belief of some doctors. While the legitimate aim of thehealth of women and girls is satisfiedit does not remove the need to protectdoctors.
The decision, however, also highlights the importance of considering the
views of the woman and her rights to appeal, which make the education ofindividuals about their rights prominent in the process too. It leaves questions:whose responsibility is this? Is it the doctor's? Surely not: doctors making a legaldecision because it is based on medical grounds is a difficulty in itself, withoutalso making them responsible for educating others about the law. This gives riseto a further resource issue: how are lawyers to become involved in this decisionand representation process on behalf of the woman, and who wil bear the costs?There is also an issue of capacity where the woman is herself a child, as was thecase in L.C.
That this path is the one that wil eventually be fol owed is less certain. The
L.C. decision clearly grounded its arguments in the fact that Article 119 of thePenal Code exempts from criminalisation abortions carried out for therapeuticreasons. The CEDAW Committee would like to see is a set of guidelines toensure that this exemption operates in a manner closer to a right to therapeuticabortion. Yet there is another possible outcome. The decision does not suggestthat the rights to health or to decide the number and spacing of one's children inthe Convention create a right to a therapeutic abortion. This therefore meansthat complete prohibitions on abortion remain compatible with internationallaw. It thus, hypothetically at least, remains open to Peru to fol ow Nicaraguain reverting back to an absolute prohibition on abortion, a move that wouldhave a negative impact on the rights and freedoms of Peruvian women. Thehesitance to suggest that international human rights law has created conditionswhere access to a therapeutic abortion must be procedurally available when thewoman's health would be significantly compromised, or denial would have aneffect amounting to torture, means that there is stil no recourse available forwomen in countries with an absolute prohibition on abortion. The issue is socontroversial that international decision-making bodies have given deference tonational decision-makers on the issue of legal availability.
How long this deference can last, given these international rulings, is
113 Ibid, 165.
somewhat questionable. The L.C. case indicates that it is not only the failuresin procedural accessibility that lead to violations of the complainants' rights;physical consequences to their health and life may do so as wel . Unfortunately,the current legal rulings create no incentive for religiously conservative states toliberalise their abortion law and procedural guidelines. This would be contraryto the spirit of these decisions.
Source: http://joomla.cjicl.org.uk/journal/article/pdf/118
Suplement / Suplemento Auditório Victor de Sá Auditório Agostinho da Silva 10h00 – 11h00 - Sessão 1 : Cosméticos e Sociedade 12h15 – 13h15 - Sessão 2 : O Estado da arte o de Resumos 15h30 – 16h30 - Sessão 3 : Compreender a pele - combater o envelhecimento III Congresso Nacional de Ciências DermatocosméticasII Congresso da Sociedade Portuguesa de Ciências Cosmetológicas
Physica A 352 (2005) 113–130 A cell-centered approach to developmental biology Roeland M.H. Merks, James A. Glazier Department of Physics, Biocomplexity Institute, Indiana University, Swain Hall West 159, 727 East 3rd Street, Bloomington, IN 47405-7105, USA Available online 13 January 2005 Explaining embryonic development of multicellular organisms requires insight into complex
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