V.C. v Slovakia  ECHR 1888 (8 November 2011)
In this case, the European Court of Human Rights held that the sterilisation of a woman, in circumstances where “consent” to the procedure was obtained during the late stages of her labour, violated her right to private life and the prohibition against torture and ill-treatment.
The applicant, VC, is of Roma ethnic origin, living in North-East Slovakia. Born in 1980, VC finished compulsory schooling in sixth grade and at the time of the case, was unemployed. She speaks the Roma language and a local dialect in her day-to-day activities.
In August 2000, VC gave birth to her second child by Caesarean section at the public Prešov Hospital. During the procedure, the hospital sterilised VC by severing and sealing her fallopian tubes to prevent future fertilisation.
According to the hospital, VC had consented to the procedure after having been informed of the medical risks associated with a subsequent pregnancy. VC’s signature was evident on the consent form (albeit shaky and with her surname split), and the medical records stated that “Patient requests sterilisation” at 10.30 am. The medical records also include “Patient is of Roma origin”.
According to VC however, the hospital’s account is not an accurate and complete statement of events.
VC arrived at Prešov Hospital in labour shortly before 8 am. Previously, her eldest child had been born by Caesarean section due to the small size of her pelvis. This, and post-operative complications from her first pregnancy, led to the medical decision to deliver this child also by Caesarean section. VC submitted that after several hours of being in labour and pain, the Prešov Hospital medical personnel asked her whether she wanted to have more children. VC responded that she did, but was told that if she had another child, either her or the baby would die. According to VC, she began to cry, and convinced that her next pregnancy would be fatal, she responded “do what you want to do”. She was then asked to sign the medical record that stated that she had requested sterilisation. VC did not understand the term ‘sterilisation’, and, being in the last stage of labour, her recognition and cognitive abilities were influenced by labour and pain.
At 11.30 am, VC was put under anaesthetic and the delivery was completed by Caesarean section. The two doctors involved in the delivery then performed a tubal ligation on VC. She awoke from the anaesthetic at 12.20 am.
After the birth, VC alleges that she was put in a hospital room solely for women of Roma ethnic origin, and was prevented from using the same bathrooms as women not of Roma origin.
Since the sterilisation, VC has suffered from serious medical and psychological after effects, including a phantom pregnancy. As a result of her sterilisation, VC has also been ostracised from the Roma community, separating, and ultimately divorcing, from her husband due to her inability to have further children.
The Court found that Slovakia had breached VC’s right to freedom from torture or inhuman or degrading treatment or punishment under article 3 of the European Convention, which “enshrines one of the most fundamental values of democratic society” (at ). In addition, the Court found that Slovakia had breached VC’s right to private and family life under article 8 of the Convention.
VC also submitted that her rights to marry and found a family under article 12, to an effective remedy under article 13, and to freedom from discrimination on the base of race and sex under article 14 of the Convention had been breached. The Court however found that it was not necessary to separately determine whether the facts of the case gave rise to breaches of articles 12 and 14, and that there was no breach of article 13 when taken into consideration with the other breaches.
The Court’s approach to each of these submissions are discussed in turn below.
Article 3 of the Convention contains the right to freedom from torture or inhuman or degrading treatment or punishment. In order to engage the operation of this article, the ill-treatment must be of a minimum level of severity, determined by consideration of the circumstances of the case.
The Court referred to precedent which has established that the treatment of a person by a State engages article 3 where it results in bodily harm of a certain degree of severity. Medical necessity is however a logical exception to the operation of article 3 under these circumstances, but must be proven and still follow procedural guarantees and protections. In particular, given the “very essence of the Convention is respect for human dignity [and] freedom”, free, full and informed consent is fundamental to any medical procedures, even where necessary (excluding certain emergency situations).
The Court found that sterilisation resulted in bodily harm to VC of a sufficient severity to engage operation of article 3. In particular, the Court held that:
sterilisation constitutes a major interference with a person’s reproductive health status. As it concerns one of the essential bodily functions of human beings, it bears on manifold aspects of the individual’s personal integrity including his or her physical and mental well-being and emotional, spiritual and family life. It may be legitimately performed at the request of the person concerned, for example as a method of contraception, or for therapeutic purposes where the medical necessity has been convincingly established.
VC began her legal action after the release of the report ‘Body and Soul: Forced and Coercive Sterilisation and Other Assaults on Roma Reproductive Freedom in Slovakia” which informed VC that a tubal ligation was not a life-saving surgery, and that full and informed consent was required to perform the procedure.
The Court addressed the difficulties faced by courts when assessing the application of the law to cases of medical necessity, stating (at ) that “it is not the Court’s role to review the assessment by medical doctors of the state of health of the applicant’s reproductive organs”. Having referred to a series of international reports on human rights and sterilisation, the Court continued: “however, it is relevant to note that sterilisation is not generally considered as a life-saving surgery … as there was no emergency involving imminent risk of irreparable damage to the applicant’s life or health, and since the applicant was a mentally competent adult patient, her informed consent was a prerequisite to the procedure, even assuming that it was a ‘necessity’ from a medical point of view.”
The Court found that the approach taken by the doctors at Prešov Hospital was incompatible with VC’s human rights; in particular, “such a threat was not imminent as it was likely to materialise only in the event of a future pregnancy and it could also have been prevented by means of alternative, less intrusive methods”.
The Court concluded that there was no indication that there was any unique medical necessity to perform the sterilisation. Regardless of a medical necessity, in the absence of an emergency situation, the Court found that VC had not given free, full and informed consent to her sterilisation as required by international standards under the Convention on Human Rights and Biomedicine, the WHO Declaration on the Promotion of Patients’ Rights in Europe, and CEDAW General Recommendation No. 24.
The Court also made a statement with respect to “paternalistic” decision making by treating medical practitioners, stating that “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” (at ). While this statement is made in respect of the facts of this case, it provides a useful summary of principle regarding determinations in the “best interests of the patient” by doctors.
It was not disputed between the parties that the sterilisation affected VC’s reproductive health status, and had repercussions for her private and family life. VC submitted that Slovakia had failed in its positive obligation under article 8 to ensure that her private life was not interfered with by not securing the rights guaranteed under article 8 in the Slovakian legal system. In particular, Slovakia was under a positive obligation to ensure that the reproductive health of women of Roma origin was protected through legal safeguards (at ).
Documents were tended before the Court that included concerns from the Council of Europe Commissioner of Human Rights that the Roma population of eastern Slovakia was at particular risk of improper sterilisations. These documents included recommendations that more adequate safeguards be developed to protect Roma women from inappropriate sterilisations and discrimination. The identification of VC’s ethnic origin in her medical reports, and testimony from the treating doctors that stated that VC’s case was “the same as in other similar cases”, was deemed by the Court to demonstrate the medical staff’s negative opinion of Roma patients, rather than the basis of implementing more specialised care.
Whilst Slovakia had taken steps to amend its healthcare legislation to ensure fully informed consent was obtained in sterilisation procedures, these amendments were subsequent to the facts of VC’s case. The Court found that VC’s case in fact demonstrated that the laws at that time were not sufficient. As a result, the absence of the relevant legal safeguards to protect the reproductive health of VC as a Roma woman resulted in a failure by Slovakia to comply with its positive obligation to secure protections to enable her to enjoy her right to respect for private and family life.
Similar to article 14 below, the Court found that it was not necessary to determine article 12 separately in light of findings under article 8 of the Convention. Article 12 expresses the right to marry and found a family. VC submitted that her right to found a family was breached by the sterilisation. The Court found that the sterilisation did have a serious impact on her family life, however as this was considered and found for under examination of article 8, the Court held that it was absolved from separately determining a breach under article 12.
VC submitted that she was not provided with an effective remedy in respect of her complaints relating to articles 3, 8 and 12 of the Convention. Article 13 provides that where an individual’s rights under the Convention have been violated, they shall have an effective remedy from the State. The Court found no breach of this article as VC had had two opportunities for her case to be reviewed at the domestic level. The Court reiterated that an “effective” remedy need not be a “successful” one (at [165-166]).
Article 14 prevents discrimination against a person on the basis of, inter alia, race and gender. VC submitted to the Court that her ethnic origin had played a decisive role in the Prešov Hospital medical personnel’s decision to sterilise her. Referencing the Convention on the Elimination of all forms of Discrimination Against Women, VC also submitted that the differentiation of level of medical care between men and women in the health services was a breach of the prohibition of discrimination on the grounds of sex, and the sterilisation performed on her without her informed consent amounted to a form of violence against women. The Court found that there was not sufficiently strong evidence to prove VC’s submissions under this article, but rather than find no breach, the Court found that it was more appropriate to deal with these matters as part of the failure of the State to perform its obligations in respect of article 8.
It was under this article 14 that the dissenting judge, Mijovic J, differed from the majority. Mijovic J held that a breach of article 14 should have been considered separately, and having done so, found that article 14 had indeed been breached by Slovakia. Mijovic J found that the “special attention” granted to VC as a Roma woman was to sterilise her, and in a short, but sharp, dissenting judgement on article 14, held that this case demonstrated the “relics of a long-standing attitude towards the Roma minority in Slovakia” which “represents the strongest form of discrimination”.
The case is available at: http://www.bailii.org/eu/cases/ECHR/2011/1888.html
Alexandra Phelan is a lawyer with the Mallesons Stephen Jaques Human Rights Law Group