LMR v Argentina, UN Doc CCPR/C/101/D/1608/2007 (28 April 2011)
In May 2007, VDA, an Argentine national, submitted a communication to the UN Human Rights Committee on behalf of her daughter, LMR, who has a permanent mental impairment. The communication claimed violations by Argentina of a number of articles under the International Covenant on Civil and Political Rights, including the right to freedom from torture or other cruel, inhuman or degrading treatment, and the right to privacy, arising out of a denial of access to legal abortion.
This decision strengthens the growing body of international jurisprudence regarding reproductive rights and that denying a woman access to an abortion may violate her right to freedom from torture and other cruel, inhuman or degrading treatment and in many circumstances, her right to privacy.
LMR, a young Argentinean woman, lives with her mother, VDA, in Buenos Aires, and attends a specialised school and receives neurological care for a permanent mental impairment.
In June 2006, VDA took her daughter to Guernica Hospital to determine the cause of LMR feeling unwell. LMR was subsequently found to be pregnant. Upon requesting a termination, the hospital staff refused to perform the procedure and referred LMR to the public San Martin Hospital in La Plata (approximately 100 kilometres away), advising that a complaint would need to be filed with police. The requirement for a complaint was based on section 86.2 of the Argentinean Criminal Code that provides that an abortion performed by a medical practitioner is not illegal if the pregnancy results from the rape of a woman with a mental impairment. This section does not impose a time limit, method of treatment or require judicial approval. During that same month, a complaint was filed with police against LMR’s uncle, who was suspected of having raped her.
At the beginning of July 2006, LMR, now 14 and a half weeks pregnant, was admitted to San Martin Hospital. The hospital’s bioethics committee was convened, and surgical staff began preparations for the procedure on the belief that LMR’s case fell clearly within the section 86.2 exemption. Before the abortion could proceed, however, judicial proceedings were initiated to prevent the abortion and the hospital was issued with an injunction. It is not clear from the HRC communication who sought the injunction, however the judge ruled that any abortion should be prohibited as she did not find it acceptable to repair a wrongful assault (the rape) “with another wrongful assault against a new innocent victim, i.e. the unborn child”. LMR appealed, however was unsuccessful, and was ordered by the Civil Court to be monitored for “the health of the girl and her unborn child… on an ongoing basis”. This Civil Court decision was appealed to the Supreme Court of Justice of Buenos Aires, which on 31 July 2006 (a month and a half after the rape was reported to police) overturned the lower court decisions and ruled that the termination could proceed, as there was no judicial authorisation required for the termination and as the circumstances of the case were not subject to criminalisation, the decision to perform the procedure lay between the LMR, VDA (as legal guardian) and her physicians. The Supreme Court notified San Martin Hospital that it could proceed (also informing them that judicial notification was not a requirement for procedures), however both the hospital and LMR’s family were subsequently subjected to enormous pressure from anti-abortion groups and members of the community, including the Rector of the Catholic University and the Corporation of Catholic Lawyers. No steps were taken by authorities to stop the direct and public threats towards LMR and her family. As a result of the pressure, San Martin refused to perform the abortion on the grounds that the pregnancy was too advanced (20-22 weeks). With assistance from women’s rights organisations, a scan conducted in a private clinic on 10 August demonstrated that LMR was 20.4 weeks pregnant, and around 18-19 weeks pregnant at the date of the Supreme Court ruling.
With the help of women’s rights organisations, the family arranged an illegal termination on 26 August 2006.
Argentina submitted that the complainant had not exhausted all domestic remedies and the Communication was therefore inadmissible pursuant to article 5(2)(a) of the Optional Protocol to the ICCPR. The HRC however found that regardless, subsection (b) of that same article empowered consideration of the Communication on the merits as Argentina had conceded violations of the ICCPR had occurred, but failed to administer appropriate remedies.
Article 2, Optional Protocol
The HRC determined that the alleged violation of article 2 of the First Optional Protocol (the obligation upon State Parties to take the necessary steps to give effect to rights under the ICCPR) could not be invoked in isolation by an individual. However, in accordance with past HRC findings, the HRC considered the claim of a violation of this article in conjunction with the other allegations made in the Communication. The HRC found that although the judicial remedies available to LMR were ultimately resolved in her favour, LMR had to appear before three different courts, prolonging the pregnancy, with consequences that led to her ultimately having an illegal abortion. The HRC concluded that this amounted to a violation of article 2 of the Optional Protocol in relation to articles 3, 7 and 17 of the ICCPR, as discussed in turn below.
Article 7 - The right to freedom from torture, or cruel, inhuman or degrading treatment
By failing to guarantee LMR’s right to a legal abortion as provided for under the Criminal Code, the HRC concluded that Argentina had violated LMR’s article 7 rights. The HRC deemed the physical and mental suffering LMR was forced to endure was further aggravated by her status as a young woman with a disability, and confirmed that the treatment covered by article 7 extends to acts that cause mental suffering.
This conclusion is similar to the one reached by the European Court of Human Rights in R.R. v Poland  ECHR 828 (26 May 2011), where the European Court found that failure to provide access to abortion violated a woman’s right to freedom from inhuman or degrading treatment.
Article 17 - The right to privacy
The HRC concluded that LMR’s right to privacy was violated by Argentina, due to unlawful judicial interference in a matter that should have been between LMR, her legal guardian, VDA, and her physicians.
Article 18 - The right to freedom of thought, conscience and religion
The Communication alleged that Argentina’s failure to address or stop the pressure and threats from various Catholic groups, and the San Martin Hospital’s conscientious objection violated LMR’s right to freedom of thought, conscience and religion. The Communication alleged that as no time limit is set on the provisions under section 86.2, and the advancement of the pregnancy was incorrect, San Martin Hospital did not refuse to conduct the abortion on medical or legal grounds, but rather on grounds of collective, or institutional conscience. Argentina denied both alleged violations on the basis that the activities of non-government entities could not be attributed to the State, and the hospital’s refusal to treat was based on medical considerations.
The HRC did not consider the merits of the arguments, but rather ruled that the alleged violations under this ground were inadmissible, as VDA did not substantiate that all available domestic remedies for this specific alleged violation had been exhausted.
The HRC concluded that Argentina was in breach of articles 7 and 17 of the ICCPR, and in breach of article 2 of the Optional Protocol in relation to ICCPR articles 3, 7 and 17. Whilst the HRC itself cannot order compensation, it was able to highlight to Argentina its obligation under article 2 of the OP that includes providing compensation as an appropriate avenue of redress, and its obligation to take steps to prevent similar violations in the future.
This HRC decision adds to the developing international legal consensus that restricting a woman’s right to access an abortion may amount to a breach of article 7 of the ICCPR by subjecting her to torture, or cruel, inhuman and degrading treatment.
The decision can be found online at: http://www.bayefsky.com/pdf/argentina_t5_iccpr_1608_2007.pdf.
Alexandra Phelan is a Solicitor with the Human Rights Law Group at Mallesons Stephen Jaques.