CEDAW/C/36/D/4/2004

United Nations

CEDAW/C/36/D/4/2004

Convention on the Elimination

of All Forms of Discrimination

against Women

29 August 2006

Original: English

06-48263 (E) 061006

*0648263*

Committee on the Elimination of Discrimination

against Women

Thirty-sixth session

7-25 August 2006

Views

Communication No. 4/2004

Submitted by:

Ms. A. S. (represented by the European

Roma Rights Center and the Legal

Defence Bureau for National and Ethnic

Minorities)

Alleged victim:

The author

State party:

Hungary

Date of communication:

12 February 2004 (initial submission)

On 14 August 2006, the Committee on the Elimination of Discrimination against

Women adopted the annexed text as the Committee’s Views under article 7, paragraph 3, of

the Optional Protocol in respect of communication No. 4/2004. The Views are appended to

the present document.

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Annex

Views of the Committee on the Elimination of Discrimination

against Women under article 7, paragraph 3, of the Optional

Protocol to the Convention on the Elimination of All Forms

of Discrimination against Women (thirty-sixth session)

Communication No.: 4/2004*

Submitted by:

Ms. A. S. (represented by the European

Roma Rights Center and the Legal

Defence Bureau for National and Ethnic

Minorities)

Alleged victim:

The author

State party:

Hungary

Date of communication:

12 February 2004 (initial submission)

The Committee on the Elimination of Discrimination against Women,

established under article 17 of the Convention on the Elimination of All

Forms of Discrimination against Women,

Meeting on 14 August 2006

Having concluded its consideration of communication No. 4/2004,

submitted to the Committee on the Elimination of Discrimination against

Women by The European Roma Rights Center and the Legal Defence

Bureau for National and Ethnic Minorities on behalf of Ms. A. S. under the

Optional Protocol to the Convention on the Elimination of All Forms of

Discrimination against Women,

Having taken into account all written information made available to it

by the author of the communication and the State party,

Adopts the following:

* The following members of the Committee participated in the examination of the present

communication: Ms. Magalys Arocha Dominguez, Ms. Meriem Belmihoub-Zerdani,

Ms. Huguette Bokpe Gnacadja, Ms. Dorcas Coker-Appiah, Ms. Mary Shanthi Dairiam, Mr. Cees

Flinterman, Ms. Naela Mohamed Gabr, Ms. Françoise Gaspard, Ms. Rosario Manalo, Ms. Pramila

Patten, Ms. Fumiko Saiga, Ms. Hanna Beate Schöpp-Schilling, Ms. Heisoo Shin, Ms. Glenda

P. Simms, Ms. Dubravka Šimonović, Ms. Anamah Tan, Ms. Maria Regina Tavares da Silva and

Ms. Zou Xiaoqiao. Pursuant to rule 60 (1) (c) of the Committee’s rules of procedures,

Ms. Krisztina Morvai did not participate in the examination of this communication, as she is a

national of the State party concerned.

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Views under article 7, paragraph 3, of the Optional Protocol

1.1 The author of the communication dated 12 February 2004, is

Ms. A. S., a Hungarian Roma woman, born on 5 September 1973. She

claims to have been subjected to coerced sterilization by medical staff at a

Hungarian hospital. The author is represented by the European Roma

Rights Center, an organization in special consultative status with the

Economic and Social Council, and the Legal Defence Bureau for National

and Ethnic Minorities, an organization in Hungary. The Convention and its

Optional Protocol entered into force for the State party on 3 September

1981 and 22 March 2001, respectively.

The facts as presented by the author

2.1

The author is the mother of three children. On 30 May 2000, she was

examined by a doctor and found to be pregnant, the delivery date estimated

to be 20 December 2000, during that time, she followed antenatal treatment

and attended all the scheduled appointments with the district nurse and

gynaecologist. On 20 December 2000, the author reported to the maternity

ward of Fehérgyarmat Hospital. She was examined and found to be 36 to 37

weeks pregnant and was asked to return when she went into labour.

2.2

On 2 January 2001, the author went into labour pain and her

amniotic fluid broke. This was accompanied by heavy bleeding. She was

taken to Fehérgyarmat Hospital, one hour’s drive by ambulance. While

examining the author, the attending physician found that the foetus (the

term “embryo” is used) had died in her womb and informed her that a

caesarean section needed to be performed immediately in order to remove

the dead foetus. While on the operating table, the author was asked to sign a

form consenting to the caesarean section. She signed this as well as a barely

legible note that had been hand-written by the doctor and added to the

bottom of the form, which read:

“Having knowledge of the death of the embryo inside my womb I firmly

request my sterilization [a Latin term unknown to the author was used]. I

do not intend to give birth again; neither do I wish to become pregnant.”

The attending physician and the midwife signed the same form. The author

also signed statements of consent for a blood transfusion and for

anaesthesia.

2.3

Hospital records show that within 17 minutes of the ambulance

arriving at the hospital, the caesarean section was performed, the dead

foetus and placenta were removed and the author’s fallopian tubes were

tied. Before leaving the hospital the author asked the doctor for information

on her state of health and when she could try to have another baby. It was

only then that she learned the meaning of the word “sterilization”. The

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medical records also revealed the poor health condition of the author when

she arrived at the hospital. She felt dizzy upon arrival, was bleeding more

heavily than average and was in a state of shock.

2.4

The author states that the sterilization has had a profound impact on

her life for which she and her partner have been treated medically for

depression. She would never have agreed to the sterilization as she has

strict Catholic religious beliefs that prohibit contraception of any kind,

including sterilization. Furthermore, she and her partner live in accordance

with traditional Roma customs — where having children is said to be a

central element of the value system of Roma families.

2.5

On 15 October 2001, a lawyer with the Legal Defence Bureau for

National and Ethnic Minorities, filed a civil claim on behalf of the author

against Fehérgyarmat Hospital, inter alia, requesting that the Fehérgyarmat

Town Court find the hospital in violation of the author’s civil rights. She

also claimed that the hospital had acted negligently by sterilizing the author

without obtaining her full and informed consent. Pecuniary and

non-pecuniary damages were sought.

2.6

On 22 November 2002, the Fehérgyarmat Town Court rejected the

author’s claim, despite a finding of some negligence on the part of the

doctors, who had failed to comply with certain legal provisions, namely, the

failure to inform the author’s partner of the operation and its possible

consequences as well as to obtain the birth certificates of the author’s live

children. The Court reasoned that the medical conditions for sterilization

prevailed in the author’s case and that she had been informed about her

sterilization and given all relevant information in a way in which she could

understand it. The Court also found that the author had given her consent

accordingly. The Court further viewed as a “partial extenuating

circumstance towards the defendant’s negligence the fact that, with the

author’s consent, the doctors performed the sterilization with special

dispatch simultaneously with the Caesarean section”.

2.7

On 5 December 2002, the lawyer filed an appeal on behalf of the

author before the Szabolcs-Szatmár-Bereg County Court against the

decision of the Fehérgyarmat Town Court.

2.8

On 12 May 2003, the author’s appeal was rejected. The appellate

court found that although article 187, paragraph 4 (a), of Hungary’s Act on

Health Care allowed for the exceptional performance of the sterilization,

the operation was not of a life-saving character, and therefore, the

sterilization procedure should have been subject to the informed consent of

the author. The appellate court further found that the doctors acted

negligently in failing to provide her with detailed information (about the

method of the operation, of the risks of its performance and of the

alternative procedures and methods, including other options of birth

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control) and that the written consent of the author could not in and of itself

exclude the hospital’s liability. The appellate court, however, turned down

the appeal on the ground that the author had failed to prove a lasting

handicap and its causal relationship with the conduct of the hospital. The

appellate court reasoned that the performed sterilization was not a lasting

and irreversible operation inasmuch as the tying of fallopian tubes can be

terminated by plastic surgery on the tubes and the likelihood of her

becoming pregnant by artificial insemination could not be excluded. Based

on her failure to prove that she had lost her reproductive capacity

permanently and its causal relationship to the conduct of the doctors, the

appellate court dismissed the appeal.

The complaint

3.1

The author claims that Hungary has violated articles 10 (h), 12 and

16, paragraph 1 (e) of the Convention.

3.2

She emphasizes that sterilization is never a life-saving intervention

that needs to be performed on an emergency basis without the patient’s full

and informed consent. It is an operation that is generally intended to be

irreversible and surgery to reverse sterilization is complex and has a low

success rate. The author states that international and regional human rights

organizations have repeatedly stressed that the practice of forced

sterilization constitutes a serious violation of numerous human rights and

she refers to general comment 28 of the Human Rights Committee on

equality of rights between men and women by way of example. She also

states that coercion presents itself in various forms — from physical force

to pressure from and/or negligence on the part of medical personnel.

3.3

As to the alleged violation of article 10 (h) of the Convention, the

author argues that she received no specific information about the

sterilization, the effects of the operation on her ability to reproduce, or

advice on family planning and contraceptive measures — either

immediately before the operation or in the months/years before the

operation was carried out. She claims that she was not given information

about the nature of the operation, the risks and consequences, in a way that

was comprehensible to her before she was asked to sign the consent form.

The author quotes paragraph 22 of general recommendation No. 21 of the

Committee on marriage and family relations in support of her argument.

3.4

In support of the alleged violation of article 12 of the Convention,

the author refers to paragraphs 20 and 22 of general recommendation No.

24 of the Committee on women and health and submits that she was unable

to make an informed choice before signing the consent form for the

sterilization procedure. She argues that her inability to give informed

consent on account of the incomplete information provided is a violation of

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the right to appropriate health-care services. She also argues that there is a

clear causal link between the failure of the doctors to fully inform her about

the sterilization and the injuries that it caused, both physical and emotional.

3.5

The author claims that article 16, paragraph 1 (e) of the Convention

has been violated by virtue of the State party limiting her ability to

reproduce and she refers to paragraph 22 of general recommendation

No. 21 of the Committee and paragraphs 22 and 24 of general

recommendation No. 19 of the Committee on violence against women in

this instance. She adds that the facts of the case show that she was denied

access to information, education and the means to exercise her right to

decide freely and responsibly on the number and spacing of her children.

3.6

The author requests the Committee to find a violation of articles

10 (h), 12 and 16, paragraph 1 (e) and to request the State party to provide

just compensation.

3.7

As to the admissibility of the communication, the author maintains

that all domestic remedies have been exhausted because the decision of the

appellate court specifically stated that no appeal against it was permitted.

The author also maintains that the matter has not been and is not currently

being examined under any other procedure of international investigation or

settlement.

3.8

Furthermore, the author notes that, although the incident giving rise

to the communication occurred on 2 January 2001, Hungary has been

legally bound by the Convention’s provisions since 3 September 1981. The

author claims that, most importantly, the effects of the violations at issue

are of an ongoing, continuing character. In particular, as a result of having

been sterilized without giving full and informed consent, she can no longer

give birth. In light of these considerations, the author submits that the

communication is admissible in accordance with article 4, paragraph 2 (e)

of the Optional Protocol.

The State party’s submission on admissibility and merits

4.1

By submission of 7 March 2005, the State party argues that the

author failed to exhaust domestic remedies because she did not make use of

judicial review (so-called “revision of judgement”), a special remedy under

Hungarian law.

4.2

The State party contends that the communication is inadmissible

ratione temporis pursuant to article 4, paragraph 2 (e). It is the opinion of

the State party that the author has not sustained a permanent disability

because the sterilization is not irreversible surgery and has not caused

permanent infertility. The State party therefore argues that there has been no

permanent violation of the rights of the author.

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4.3

The State party is of the view that article 10 (h) of the Convention

has not been violated since, aside from the dead embryo, the author has

three other living children, which means that she must have been familiar

with the nature of pregnancy and childbirth without further education.

4.4

The State party submits that article 12, paragraph 1, of the

Convention has not been violated because the author received free of

charge the benefits and services that all Hungarian women receive during

pregnancy and after childbirth. The author was given all information prior

to the surgery in a way that was appropriate in the given circumstances.

According to the court decision, the author had been in a condition in which

she was able to understand the information.

4.5

The State party stresses that the Public Health Act allows a physician

to perform sterilization surgery without following any special procedure

when it seems to be appropriate in certain circumstances. These

circumstances were present, namely that this was not the author’s first

caesarean section and her womb was in very bad condition. Further, the

State party considers that the surgery had been safe because the risk of

undergoing another abdominal operation was greater and appeared

inevitable in the given circumstances.

The author’s comments on the State party’s observations on admissibility

and merits

5.1

By her submission of 6 May 2005, the author reiterates several of her

arguments regarding the admissibility and merits of her claims.

5.2

Concerning article 4, paragraph 1, of the Optional Protocol, the

author claims that the State party failed to show that the judicial review (so-

called “revision”) by the Supreme Court constitutes an effective remedy

that is available to the author. She argues that the Constitutional Court of

Hungary has held that the Constitution guarantees a one-tier appeal system

only. Under this system an appeal of a judgement of an appellate court is an

extraordinary remedy. The author argues that this extraordinary relief was

not accessible to her as it could neither be legally substantiated that her case

concerned a point of law of general importance that had to be reviewed for

the development of the uniform interpretation of the law nor that the final

judgement differed from a previous binding decision of the Supreme Court.

Between 1 January 2002 and 9 November 2004, the relevant judicial review

criteria were, essentially, that the judgement to be reviewed infringed the

law and that this affected the merits of the case and (a) the decision differed

from the binding decisions of the Supreme Court on the uniform

interpretation of the law or (b) review by the Supreme Court would be

necessary to develop a point of law of conceptual importance. The author

also argues that the second alternative conditions of (a) and (b) were

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declared unconstitutional by the Constitutional Court of Hungary on

9 November 2004 because they could not be applied predictably as they

were not straightforward. As such, she was really without effective access

to judicial review.

5.3

With regard to article 4, paragraph 2 (e) of the Optional Protocol, the

author states that her reproductive capacity has been taken away by State

actors — the doctors at the public hospital. She reiterates that sterilization,

in law and in medical practice, is regarded as irreversible surgery and that it

has had a profound impact on her.

5.4

The author claims that her fundamental rights to health and human

dignity and freedom as elaborated in several international outcome

documents, notably the Programme of Action of the International

Conference on Population and Development (Cairo, 1994) and the Beijing

Declaration and Platform for Action (Beijing, 1995) and the outcome

documents of their respective five-year reviews have been violated.

5.5

The author also argues that in the instant case, the Hungarian health

service did not at any time provide any form of information on family

planning, the sterilization surgery, or the effects on her reproductive

capacity. The State party appears to believe that the author should have

been self-taught on the use of contraception and family planning. The

appellate court agreed that the Hungarian health service failed to fulfil its

obligation to provide appropriate information. According to the author,

failure to provide her with specific information on contraception and family

planning before coercing her into signing the consent to sterilization

constitutes a breach of article 10 (h) of the Convention.

5.6

The author maintains that the question of payment for health care is

irrelevant. She also maintains that she did not consent to the sterilization in

that she did not receive clear and suitably worded information and was not

in a condition to understand the form that she was asked to sign.

5.7

The author points out that the appellate court stressed in its decision

that because the sterilization was not a life-saving measure, informed

consent was required and that it had not been established that the conditions

had been met for performing the surgery pursuant to article 15, paragraph 3

of the Health Care Act.

5.8

The author argues that informed consent is based on a patient’s

ability to make an informed choice and its validity does not depend on the

form in which it is given. Written consent merely can serve as evidence.

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The State party’s further submission on admissibility and merits

6.1

By its submission of 22 June 2006, the State party maintains its

position that judicial review by the High Court of Justice is an

extraordinary remedy to which the author should have resorted.

6.2

The State party maintains that the method used to sterilize the author

was not irreversible. Therefore there is no continuous violation of her

rights. The State party cites the Judicial Committee of the Medical Research

Council for the authority that ligature can be reversed in 20 to 40 per cent

of the cases by a re-fertilization operation.

6.3

The State party sustains its position that the author was given correct

and appropriate information both in the pre-natal period and at the time of

the surgery. She was also provided with appropriate medical services,

including information, during her three previous pregnancies.

6.4

The State party stresses that there is no difference between public

and private health services in terms of quality.

6.5

The State party reiterates that the Public Health Act allows

physicians to perform sterilization surgery without counselling when it

seems appropriate in given circumstances. Under the Act, a physician is

given some discretion in certain cases. In this way, preference is given to

the patient’s right to life and counselling may be simplified. While

sterilization is not a life-saving intervention in general, in the present case it

had a life-saving function because another pregnancy or abdominal

operation would have placed the author in mortal danger. The sterilization

was performed to avoid such a situation.

The author’s subsequent submission

7.1

By her submission of 5 October 2005, the author maintains that,

while surgery to reverse sterilization is sometimes possible, sterilization is

carried out with the intention of ending a woman’s reproductive capacity

permanently. Surgery to reverse sterilization is complex and has a low

success rate. The author underpins her claim by referring to publications by

individuals, Governments and international organizations. She cites case

law in several jurisdictions that view sterilization as an irreversible

operation. The doctor who performed the surgery testified that information

about sterilization should include the fact that it is an irreversible

intervention.

7.2

The success of surgery to reverse sterilization depends on many

factors, such as how the sterilization was carried out, how much damage

was done to the fallopian tubes or other reproductive organs, the skills of

the surgeon and the availability of trained staff and facilities. There are risks

associated with the surgery to reverse sterilization. There is an increased

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likelihood of ectopic pregnancy following reversal surgery, which is a

dangerous condition that requires immediate medical attention.

7.3

The author also claims that the Hungarian medical profession regards

sterilization as a permanent method of birth control. She states that the

medical expert who was involved in the domestic litigation at the request of

her attorney stated that a new abdominal operation might be able to make

the fallopian tubes permeable, but its success is questionable and the

surgeon who performed the sterilization on the author stated that

counselling should include the fact that it is an irreversible intervention.

7.4

The author further states that in order to give a valid opinion on

whether the sterilization performed on her could be reversed successfully it

would be necessary to know, inter alia, how much damage had been done to

her fallopian tubes or other reproductive organs. The author claims that the

State party’s assertion that the author’s operation was not irreversible was

made in the abstract and is thereby contrary to the standard medical views,

which the author has described.

7.5

Given that the doctors suggested, and the Hungarian Courts

confirmed, that a future pregnancy might endanger the author’s life as well

as that of the child, the author argues that it is unlikely that her sterilization

was done in a way that would promote the possibility of a reversal. She

further asserts that the Hungarian Courts based their opinion about the

reversibility of the author’s sterilization exclusively on witness statements

of medical staff employed by the respondent hospital and an expert medical

report that had not been commissioned by the Court. Moreover, she was not

examined for this purpose.

7.6

Despite extensive research, the author is unaware of whether

successful surgery to reverse sterilization has been performed in Hungary as

from the time of her sterilization. One can make a claim with confidence

only when a reversal surgery has been carried out successfully. However,

the author cannot be forced to undergo another operation to alleviate the

damage. This major abdominal surgery under full anaesthesia carries risks

and would not be covered by the State’s social security fund.

7.7

The author argues that claims for non-pecuniary damages may be

brought without determining whether or not the sterilization is irreversible.

The rights of the author to physical integrity, health, honour and human

dignity have been violated under the Hungarian Civil Code by the unlawful

conduct of the hospital irrespective of any medical possibility of restoring

her reproductive capacity. Her loss of fertility caused psychological trauma

and had a detrimental effect on her private life. The unlawful sterilization

has had a continuous effect on her life and has not been remedied for almost

five years.

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7.8

The author further argues that it was questionable to carry out the

sterilization — a preventive intervention — together with a reportedly life-

saving operation — the caesarean section, thereby prolonging the operating

time and increasing the risk to her health. The author also argues that it took

17 minutes for her to be admitted to the hospital, prepared for surgery,

given information about the procedures and the risks and consequences of

sterilization, sign the statements of consent, and undergo both the caesarean

section and the sterilization. The author argues further that this indicates

that all steps could not have been carried out properly and that the hospital

could only save time on counselling and allowing time for decision-making.

Supplementary observations of the State party

8.1

By its submission of 2 November 2005, the State party continues to

assert that it would have been duly justified for the author to initiate a

judicial review (“revision of judgement”) because even though no damages

had been awarded, an actionable infringement had been established. The

judicial review is an extraordinary remedy of the Supreme Court that is

based on a request to remedy a defect in respect of a legal issue. Such

requests are restricted to cases where a third instance review is justified

because, for example, it would contribute to the evolution of the law or to

the standardization of the application of the law or it would raise a

substantial legal issue.

8.2

When the Supreme Court finds that there is cause for review and if it

has the necessary data and facts, it hands down a new decision that partly or

fully invalidates the decision of the Court of the second instance.

Otherwise, when the Supreme Court lacks the necessary data and facts, it

remands the case back to the Court of the first or second instance for new

proceedings and a decision.

8.3

The State party adds that Council III of the Civil College of the

Supreme Court focuses specifically on legal action in medical malpractice

cases and on actions for damages. The State party stresses that the Supreme

Court has entertained more than 1,300 reviews since 1993. The State party

argues that, therefore it would have provided the author with a suitable

forum.

8.4

The State party maintains its position in respect of tubal ligature and

states that the nature of the operation does not constitute an ongoing

infringement because it does not cause permanent infertility, and refers to

the position of the Judicial Committee of the Medical Research Council

(see para 6.2 above) on this issue. Furthermore, future pregnancy is also

possible through the in vitro fertilization programme, which is financed by

the social security system.

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Supplementary submission of the author

9.1

By her submission of 16 November 2005, the author submits that the

State party disregards the effect of the non-consensual sterilization on her

physical integrity and mental health and dignity. In Hungarian medical law,

respect for human dignity is a core right from which other rights flow. The

Committee recognized in its general recommendation No. 19 that

compulsory sterilization adversely affects women’s physical and mental

health.

9.2

The author argues that informed consent to sterilization is required

by international standards and under national law and derives from respect

for a woman’s human rights as laid down in the Universal Declaration of

Human Rights, the International Covenant on Civil and Political Rights, the

International Covenant on Economic, Social and Cultural Rights, in

Convention on the Elimination of All Forms of Discrimination against

Women and the Convention on the Rights of the Child.

9.3

The author contends that physicians are under an ethical obligation to

ensure a woman’s right to self-determination by the counselling that

precedes any informed decision-making. The Convention on Human Rights

and Biomedicine of the Council of Europe, to which Hungary is a party,

recognizes the importance of ensuring the dignity of the human being. The

instrument’s Explanatory Report states that the rule whereby no one may be

forced to undergo an intervention without his or her consent makes clear

patients’ autonomy in their relationship with health-care professionals.

9.4

The author recalls her extremely vulnerable situation when she

sought medical attention on 2 January 2001 as a woman who would lose

her child and as a member of a marginalized group of society — the Roma.

9.5

In support of her claims, the author submits a brief prepared by the

Center for Reproductive Rights, Inc., in which the latter organization

supports the arguments made by the author. The Center for Reproductive

Rights contends that the argument of the State party to the effect that the

author did not suffer a permanent violation of rights goes against

internationally accepted medical standards, which assert that sterilization is

a permanent, irreversible procedure.

9.6

The Center for Reproductive Rights underlines that informed consent

and the right to information are critical components of any sterilization

procedure and that human rights are violated when sterilization is

performed without the full and informed consent of the patient. In the

instant case the author was not provided with information or advice

concerning sterilization, and its effects, risks, or consequences. Nor did she

receive information or advice about alternative methods of contraception

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and family planning in violation of the State party’s obligation under article

10 (h) of the Convention.

9.7

The Center for Reproductive Rights states that in the present case,

the barely readable, hand-written consent form, which contained the Latin,

rather than the Hungarian word for sterilization, while signed, did not

indicate that informed consent had been given to the sterilization procedure.

Medical personnel failed to communicate to the author in a way that she

was capable of understanding and did not take into account her state of

shock after losing her child and her very weak physical condition after

having lost substantial amounts of blood.

9.8

The Center for Reproductive Rights notes that several international

medical bodies, including the World Health Organization, have created

specific guidelines and considerations to ensure informed consent in cases

of sterilization demonstrates just how crucial it is that informed consent is

obtained prior to delivering the life-altering procedure of sterilization that

seriously impacts upon an individual’s human rights.

9.9

Given the 17-minute time span between the author’s arrival at the

hospital and the completion of two operations, the Center for Reproductive

Rights contends that it is not feasible that health-care personnel provided

the author with thorough information in accordance with international

human rights and medical standards. Without that information, the author

could not have made a well-considered and voluntary decision. The fact

that the author asked the doctor when it would be safe to have another child

clearly indicates that it was not explained to the author that she would be

prevented from having any more children after the procedure.

9.10 The Center for Reproductive Rights states that international medical

standards clearly note that patients must always give their informed consent

to sterilization procedures, even in cases that pose a health risk.

9.11 The Center for Reproductive Rights is of the view that by sterilizing

the author without her fully informed consent, the State party, through the

doctors at the public hospital, violated the author’s right to decide on the

number and spacing of children by limiting her access to the information

that would have allowed her to make the decision as to whether to be

sterilized. As a result of the sterilization that was performed without

consent, the author no longer has, and will never have the freedom to make

decisions as to the number and spacing of children.

Issues and proceedings before the Committee

Consideration of admissibility

10.1 In accordance with rule 64 of its rules of procedure, the Committee

shall decide whether the communication is admissible or inadmissible

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under the Optional Protocol to the Convention. Pursuant to rule 72,

paragraph 4, of its rules of procedure, it shall do so before considering the

merits of the communication.

10.2 The Committee has ascertained that the matter has not already been

or is being examined under another procedure of international investigation

or settlement.

10.3 With regard to the requirement laid down in article 4, paragraph 1, of

the Optional Protocol that the Committee ascertain that all available

domestic remedies have been exhausted, the Committee notes that the State

party drew attention to the special or extraordinary remedy of judicial

review (so-called “revision of judgement”) of which the author did not

make use. According to the State party, this remedy is restricted to cases

where a third instance review is justified to remedy a defect in respect of a

legal issue. The Committee has to determine whether this remedy was

available to the author and, if so should have been pursued by her. In this

context, the Committee notes that, according to the author, the criteria for

the remedy of judicial review that applied at the time that the appellate

court handed down its decision in the author’s case have, since that time,

been declared unconstitutional by the Constitutional Court of Hungary

because they were unpredictable. The State party has not contested this

information. The author also maintains that her case did not fulfil the

criteria for this remedy. She further maintains that the decision of the Court

of Second Instance had specifically stated that no appeal against it was

permitted. The State party has acknowledged the extraordinary nature of the

remedy. Under these circumstances, the Committee considers that it cannot

be expected of the author that she would have availed herself of the

remedy. The Committee therefore finds that article 4, paragraph 1, of the

Optional Protocol does not preclude the Committee’s consideration of the

communication of the author.

10.4 In accordance with article 4, paragraph 2 (e) of the Optional

Protocol, the Committee shall declare a communication inadmissible where

the facts that are the subject of the communication occurred prior to the

entry into force of the Optional Protocol for the State party concerned

unless those facts continued after that date. In considering this provision,

the Committee notes that the incident which has given rise to the

communication occurred on 2 January 2001. This date preceded the entry

into force of the Optional Protocol for Hungary 22 March 2001. However,

the author has called upon the Committee to determine whether a number

of her rights under the Convention have been and continue to be violated as

a result of the sterilization surgery. It has been put forward convincingly

that sterilization should be viewed as permanent, in particular: sterilization

is intended to be irreversible; the success rate of surgery to reverse

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sterilization is low and depends on many factors, such as how the

sterilization was carried out, how much damage was done to the fallopian

tubes or other reproductive organs and the skills of the surgeon; there are

risks associated with reversal surgery; and an increased likelihood of

ectopic pregnancy following such surgery. The Committee thus considers

the facts that are the subject of the communication to be of a continuous

nature and that admissibility ratione temporis is thereby justified.

10.5 The Committee has no reason to find the communication

inadmissible on any other grounds and thus finds the communication

admissible.

Consideration of the merits

11.1 The Committee has considered the present communication in light of

all the information made available to it by the author and by the State party,

as provided in article 7, paragraph 1, of the Optional Protocol.

11.2 According to Article 10 (h) of the Convention:

States Parties shall take all appropriate measures to eliminate

discrimination against women in order to ensure to them equal

rights with men in the field of education and in particular to ensure,

on a basis of equality of men and women:

(…)

(h) Access to specific educational information to help to ensure the

health and well being of families, including information and advice

on family planning.

With respect to the claim that the State party violated article 10 (h) of the

Convention by failing to provide information and advice on family

planning, the Committee recalls its general recommendation No. 21 on

equality in marriage and family relations, which recognizes in the context

of “coercive practices which have serious consequences for women, such as

forced … sterilization” that informed decision-making about safe and

reliable contraceptive measures depends upon a woman having

“information about contraceptive measures and their use, and guaranteed

access to sex education and family planning services”. The Committee

notes the State party’s arguments that the author was given correct and

appropriate information at the time of the operation, during prenatal care

and during her three previous pregnancies as well as its argument that,

according to the decision of the lower court, the author had been in a

condition in which she was able to understand the information provided. On

the other hand, the Committee notes the author’s reference to the judgement

of the appellate court, which found that the author had not been provided

with detailed information about the sterilization, including the risks

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involved and the consequences of the surgery, alternative procedures or

contraceptive methods. The Committee considers that the author 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. Furthermore, the Committee notes the

description given of the author’s state of health on arrival at the hospital

and observes that any counselling that she received must have been given

under stressful and most inappropriate conditions. Considering all these

factors, the Committee finds a failure of the State party, through the hospital

personnel, to provide appropriate information and advice on family

planning, which constitutes a violation of the author’s right under article

10 (h) of the Convention.

11.3 Article 12 of the Convention reads:

1. States Parties shall take all appropriate measures to eliminate

discrimination against women in the field of health care in order to

ensure, on a basis of equality of men and women, access to health-

care services, including those related to family planning.

2. Notwithstanding the provisions of paragraph 1 of this article,

States Parties shall ensure to women appropriate services in

connexion with pregnancy, confinement and the post-natal period,

granting free services where necessary, as well as adequate nutrition

during pregnancy and lactation.

With regard to the question of whether the State party violated the author’s

rights under article 12 of the Convention by performing the sterilization

surgery without obtaining her informed consent, the Committee takes note

of the author’s description of the 17 minute timespan from her admission to

the hospital up to the completion of two medical procedures. Medical

records revealed that the author was in a very poor state of health upon

arrival at the hospital; she was feeling dizzy, was bleeding more heavily

than average and was in a state of shock. During those 17 minutes, she was

prepared for surgery, signed the statements of consent for the caesarean

section, the sterilization, a blood transfusion and anaesthesia and underwent

two medical procedures, namely, the caesarean section to remove the

remains of the dead foetus and the sterilization. The Committee further

takes note of the author’s claim that she did not understand the Latin term

for sterilization that was used on the barely legible consent note that had

been handwritten by the doctor attending to her, which she signed. The

Committee also takes note of the averment of the State party to the effect

that, during those 17 minutes, the author was given all appropriate

information in a way in which she was able to understand it. The

Committee finds that it is not plausible that during that period of time

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hospital personnel provided the author with thorough enough counselling

and information about sterilization, as well as alternatives, risks and

benefits, to ensure that the author could make a well-considered and

voluntary decision to be sterilized. The Committee also takes note of the

unchallenged fact that the author enquired of the doctor when it would be

safe to conceive again, clearly indicating that she was unaware of the

consequences of sterilization. According to article 12 of the Convention,

States parties shall “ensure to women appropriate services in connexion

with pregnancy, confinement, and the post-natal period”. The Committee

explained in its general recommendation No. 24 on women and health that

“[A]cceptable services are those that are delivered in a way that ensures

that a woman gives her fully informed consent, respects her dignity…” The

Committee further stated that “States parties should not permit forms of

coercion, such as non-consensual sterilization … that violate women’s

rights to informed consent and dignity”. The Committee considers in the

present case that the State party has not ensured that the author gave her

fully informed consent to be sterilized and that consequently the rights of

the author under article 12 were violated.

11.4 Article 16, paragraph 1 (e) of the Convention states:

States Parties shall take all appropriate measures to eliminate

discrimination against women in all matters relating to marriage and

family relations and in particular shall ensure, on a basis of equality

of men and women:

(…)

(e) The same rights to decide freely and responsibly on the number

and spacing of their children and to have access to the information,

education and means to enable them to exercise these rights;

As to whether the State party violated the rights of the author under article

16, paragraph 1 (e) of the Convention, the Committee recalls its general

recommendation No. 19 on violence against women in which it states that

“[C]ompulsory 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 sterilization surgery was performed on

the author without her full and informed consent and must be considered to

have permanently deprived her of her natural reproductive capacity.

Accordingly, the Committee finds the author’s rights under article 16,

paragraph 1 (e) to have been violated.

11.5

Acting under article 7, paragraph 3 of the Optional Protocol to the

Convention on the Elimination of All Forms of Discrimination against

Women, the Committee on the Elimination of Discrimination against

Women is of the view that the facts before it reveal a violation of articles

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10 (h), 12 and 16, paragraph 1 (e) of the Convention and makes the

following recommendations to the State party:

I.

Concerning the author of the communication: provide appropriate

compensation to Ms. A. S. commensurate with the gravity of the violations

of her rights.

II.

General:

• Take further measures to ensure that the relevant provisions of the

Convention and the pertinent paragraphs of the Committee’s general

recommendations Nos. 19, 21 and 24 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.

• Review domestic legislation on the principle of informed consent in

cases of sterilization and ensure its conformity with international

human rights and medical standards, including the Convention of the

Council of Europe on Human Rights and Biomedicine (“the Oviedo

Convention”) and World Health Organization guidelines. In that

connection, consider amending the provision in the Public Health Act

whereby a physician is allowed “to deliver the sterilization without the

information procedure generally specified when it seems to be

appropriate in given circumstances”.

• Monitor public and private health centres, including hospitals and

clinics, which perform sterilization procedures so as to ensure that

fully informed consent is being given by the patient before any

sterilization procedure is carried out, with appropriate sanctions in

place in the event of a breach.

11.6 In accordance with article 7, paragraph 4, the State party shall give

due consideration to the views of the Committee, together with its

recommendations, and shall submit to the Committee, within six months, a

written response, including any information on any action taken in the light

of the views and recommendations of the Committee. The State party is

also requested to publish the Committee’s views and recommendations and

to have them translated into the Hungarian language and widely distributed

in order to reach all relevant sectors of society.