CEDAW/C/90/D/164/2021

United Nations

CEDAW/C/90/D/164/2021

Convention on the Elimination

of All Forms of Discrimination

against Women

Distr.: General

6 March 2025

English

Original: Spanish

25-03763 (E) 170325 280325

*2503763*

Committee on the Elimination of Discrimination

against Women

Views adopted by the Committee under article 7 (3) of the

Optional Protocol, concerning communication

No. 164/2021*,**

Communication submitted by:

C.S.F. (represented by Christian Felipe Berndt

Castiglione)

Alleged victims:

C.S.F. and E.B.S.F.

State party:

Argentina

Date of communication:

20 November 2020 (initial submission)

Date of adoption of views:

21 February 2025

Subject matter:

Obstetric violence, lack of redress, lack of

investigation

Procedural issues:

Jurisdiction ratione temporis; jurisdiction ratione

personae; exhaustion of domestic remedies

Articles of the Convention:

2, 3, 5, 12, 15 and 24

Article of the Optional Protocol: 4 (1) and (2) (c)

1.1 The author of the communication is C.S.F., an Argentine national. She is acting

on her own behalf and that of her son, E.B.S.F, an Argentine national born on

21 February 2018. The author maintains that the State Party violated her rights and

those of E.B.S.F. under articles 2, 3, 5, 12, 15 and 24 of the Convention on the

Elimination of All Forms of Discrimination against Women owing to the obstetric

violence to which she was allegedly subjected during childbirth. The Optional

Protocol entered into force for the State Party on 20 June 2007. The author is

represented by counsel.

* Adopted by the Committee at its ninetieth session (3–21 February 2025).

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

communication: Brenda Akia, Hiroko Akizuki, Hamida Al-Shukairi, Violet Eudine Barriteau,

Rangita de Silva de Alwis, Corinne Dettmeijer-Vermeulen, Nada Moustafa Fathi Draz, Esther

Eghobamien-Mshelia, Yamila González Ferrer, Dafna Hacker Dror, Nahla Haidar, Madina

Jarbussynova, Marianne Mikko, Mu Hong, Ana Peláez Narváez, Jelena Pia-Comella, Bandana

Rana, Rhoda Reddock, Elgun Safarov, Erika Schläppi, Natasha Stott Despoja, Genoveva

Tisheva and Patsilí Toledo Vásquez.

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1.2 On 31 January 2022, the Committee, acting through the Working Group on

Communications under the Optional Protocol, rejected the State Party’s request that

the admissibility of the communication be considered separately from its merits.

Facts as submitted by the author

2.1 During week 41 of her pregnancy, the author went to Sanatorio Finochietto 1 in

the Autonomous City of Buenos Aires for a regular check-up with her obstetrician,

who informed her of the need to induce labour and gave her an appointment for the

following day. The same afternoon, the author received a call from the midwife, who

explained the induction procedure. On 21 February 2018, at 9 a.m., the author went

to the clinic to give birth to her son. The nurse who received her explained to the

author that, in order to induce labour, she would be given a drug to accelerate the

contractions. Later the midwife arrived and, after a short conversation with the nurse

about the large number of scheduled births, said that she would be inserting the

intravenous line. The midwife attempted to insert the line in the side of the author’s

left wrist. However, the way she did it caused pain and the author complained about

it, to which the midwife replied: “Stay still, if you start like that things are not going

to go well, the worst is yet to come. […] What a chicken, you’re very sensitive to

pain”. These kinds of comments made the author feel anxious and fearful. After

trying, unsuccessfully, to place the line in the left wrist, the midwife finally managed

to insert it in the right wrist.

2.2 When the author started to feel the first contractions, the midwife carried out an

amniotomy in order to accelerate labour; this procedure involves inserting a serrated

device, through the vagina, to rupture the amniotic sac, thereby facilitating the release

of the amniotic fluid. According to the author, the World Health Organization (WHO)

has established that this procedure should be used during childbirth exceptionally and

only if it is necessary to extract blood from the fetus to measure its pH. However, the

instrument was inserted in such a way that the midwife was not able to rupture the

amniotic sac. Even though the author requested the midwife to stop, because she was

starting to feel intense pain, the midwife refused and carried on moving the

instrument, via the vaginal canal, which increased the author’s pain. In that context,

the author asked the midwife for some kind of anaesthesia, which was denied, while

the midwife made the same comments as before.

2.3 Once they were in the delivery room and the anaesthesia was being

administered, the midwife made ironic comments to the doctor about the author’s pain

threshold and made fun of her. At that point, the author asked the midwife to stop

making disrespectful comments and asked to see her partner, but received no answer.

At the start of labour, the midwife asked the author to inform her each time she felt a

contraction, because she was “pushing badly” and the midwife was going to have to

intervene. Later, the midwife used what is known as the Kristeller manoeuvre, which

involves applying pressure to the woman’s uterus for 5 to 8 seconds, in time with the

contractions, in order to facilitate the final descent and expulsion of the baby’s head.

The author notes that the decision to use the manoeuvre was taken even though the

practice is discouraged by both WHO and the Argentine Medical Association. 2 The

manoeuvre impeded her breathing and she was therefore unable to push. Given that

the contractions became more frequent, the midwife applied the manoeuvre more

strongly until the baby’s head emerged from the vaginal canal. Finally, at after 1 p.m.,

__________________

1 Sanatorio Finochietto is a private health clinic.

2 Among the risks of this manoeuvre for the mother are: (a) the possibility of uterine rupture;

(b) the production of haematomas and contusions in the abdomen and internal organs;

(c) fractures of the ribs and pelvis; and (d) vaginal and perineal tears. As for the life and health

of the newborn, the performance of the manoeuvre may cause hypoxia; fracture of the humerus,

clavicle or ribs; and increased cranial pressure, among other risks.

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the obstetrician arrived and asked the midwife to stop performing the Kristeller

manoeuvre. The midwife then started to take photos of the author with her telephone

and without her authorization. The obstetrician informed the author that she would be

given stitches, as she had suffered a vaginal tear. On the third day she was discharged,

and the following day the author and her partner went to the neonatal unit because

they had noticed that their son, E.B.S.F., had a fracture in his right clavicle, caused

by the application of the Kristeller manoeuvre during birth.

2.4 The use of the aforementioned procedures caused the author to experience

severe pain and resulted in serious physical consequences for both her and her son,

E.B.S.F. According to the medical report,3 the author suffered serious internal injuries

to the uterus and anus, which have prevented her from leading a normal life. All this

caused her to become deeply depressed, which later led to the break-up of her

relationship with her partner. After the delivery, the author went back to the same

clinic to seek treatment in order to recover from the aforementioned injuries.

However, her doctor told her that the pain she was experiencing was caused by her

emotional state after the break-up of her relationship and that she was looking for

“excuses” to explain what had happened. The pain and injuries sustained during

childbirth prevented the author from caring for her son appropriately, as she was

unable to hold him in her arms without experiencing pain or to accompany him while

he was learning to walk.

2.5 The author is currently undergoing treatment to recover her health. In August

2019 she was able to return to work and has gradually been regaining her routine,

with the support of her family.

Domestic procedures

2.6 On 19 August 2019, the author filed an administrative complaint with the

National Coordinating Committee for Actions to Develop Penalties to be Imposed in

Cases of Gender Violence, which gave rise to administrative proceedings before the

National Institute to Combat Discrimination, Xenophobia and Racism (INADI). On

2 October 2019, INADI launched an investigation process in which the complainant

broadened the scope of her complaint and submitted documentary evidence. Owing

to the coronavirus disease (COVID-19) pandemic, the National Executive issued

Decree No. 298/2020, by which it suspended administrative deadlines. However, on

15 October 2020, by resolution No. 163/2020, INADI decided to exempt the author’s

case from the suspension of procedural deadlines. On 6 September 2022, INADI

issued an opinion in which it found that the humiliating and dehumanized treatment

of the victim by an obstetric professional, in requiring her to push harder, constituted

obstetric violence, as did the performance of the Kristeller manoeuvre without her

informed consent, even if the said manoeuvre might have been applied in accordance

with lex artis, and that it constituted discrimination under Act No. 23.592. Furthermore,

it found that Sanatorio Finochietto had failed to prevent, investigate and punish this

type of conduct. Lastly, it recommended that Sanatorio Finochietto provide training on

obstetric violence to all personnel involved in pregnancy check-ups, delivery and

postpartum care, whether health professionals or administrative staff.

2.7 In addition, on 4 September 2019, the author requested the involvement of the

Office of the Ombudsman, which found that the facts related to the alleged

mistreatment, the lack of information provided in the processes and the performance

of manoeuvres discouraged by WHO, constituted prima facie one of the forms of

__________________

3 Forensic medical report, 27 October 2020.

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violence against women, as set out in article 6 (e) of Act No. 26.485.4 It notified the

Public Prosecution Service of the Autonomous City of Buenos Aires, which, on

3 October 2019, formally began criminal proceedings relating to the offence of injury,

pursuant to article 94 of the Criminal Code.5 On 12 February 2020, the author made

her statement before the Public Prosecution Service. After preparing several expert

opinions, the Public Prosecution Service of the Autonomous City of Buenos Aires

decided, on 25 June 2021, to close the investigation, concluding that it was not

possible “to prove the existence of one of the conditions that [article 94 of the

Criminal Code] […] requires in order to establish [the offence], namely […] that the

accused had failed in the duty of care that it had, based on the respective roles within

the medical team, and had, as a result, caused the harmful outcomes reported”.

Complaint

3.1 The author submits that the State Party is responsible for the violation of her

rights under articles 2, 3, 5, 12, 15 and 24 of the Convention as it did not prevent,

punish or make reparation for the violations she suffered in a situation of obstetric

violence. She argues that, pursuant to article 2 of the Convention, the competent

authorities have the obligation to prevent situations such as those suffered by the

author and her son in all healthcare facilities, whether public or private. The laws of

the State Party provide – in Act No. 25.929 – that the Ministry of Health and the

competent health authorities have a duty to take all necessary measures to ensure a

dignified childbirth, without treatments that constitute obstetric violence. In the

present case, the State Party did not take appropriate legislative or other measures to

prohibit and eliminate discrimination against women practised in this case by a

private facility, thereby failing to comply with its duty to prevent gender-based

violence and protect the human rights of women. The State Party did not fulfil its

obligation to oversee and monitor the appropriateness of the medical services

provided to women giving birth in private facilities, including by ensuring that the

medical procedures followed during the delivery, as well as before and after it, do not

constitute acts of obstetric violence. The lack of oversight in the clinic where the

author gave birth made it possible for staff to use discouraged or prohibited practices,

such as the Kristeller manoeuvre and the amniotomy, without informed consent, and

to engage in acts of physical and verbal mistreatment, which had consequences for

the physical and mental health of the author and her son, all of which is in violation

of national and international law.

3.2 With regard to article 3 of the Convention, the author claims that, by not

protecting her from the obstetric violence she suffered in the private clinic, the State

Party failed to ensure her full development on a basis of equality with men.

Furthermore, effective measures were not taken to ensure comprehensive reparation

for the violations suffered, nor was access to justice guaranteed through effective and

efficient remedies, thereby perpetuating the structural discrimination experienced by

women in healthcare situations.

3.3 Regarding article 5 of the Convention, the author maintains that the State Party

failed in its obligation to modify the social and cultural patterns that perpetuate

obstetric violence, given that it did not prevent or punish violent and dehumanizing

medical practices during delivery, such as those performed in her case. These

__________________

4 Act No. 26.485, art. 6 (e): “Obstetric violence: violence by health personnel against the body and

reproductive processes of women, expressed in dehumanized treatment, the abuse of

medicalization and the pathologization of natural processes, pursuant to Act No. 25.929”.

5 Argentine Criminal Code, art. 94: “Anyone who, as a result of recklessness or negligence, a lack

of professional skill or a failure to comply with the corresponding rules or duties, harms the body

or health of another, shall be subject to a prison term of one month to three years or to a fi ne of

1,000 to 15,000 pesos and special disqualification for one to four years […]”.

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practices reflect the normalization of the subordination of and violence against

women in the field of healthcare, which violates the international commitments to

eliminate such forms of discrimination.

3.4 The author claims that, by having allowed her to be subjected to invasive and

prohibited procedures without her informed consent, the State Party failed in its

obligation to guarantee access to appropriate healthcare services free from

discrimination and violence. According to the author, the care provided by Sanatorio

Finochietto was in breach of the standards established by WHO and Act No. 25.929,

depriving her of her right to be treated with respect, dignity and regard for her privacy

during the delivery process. This lack of due diligence by the authorities violated the

rights enjoyed by the author under article 12 of the Convention.

3.5 The author notes that the State Party failed to comply with its obligation to

investigate, prosecute and provide reparation for cases of gender-based violence

because: (a) the legal system did not provide specific remedies to demand the

investigation, prosecution and reparation of the obstetric violence suffered; and

(b) the complaints filed by the author with the State’s administrative and criminal

justice authorities did not lead to any investigation of the facts. The author claims

that, under national law, cases of obstetric violence are treated as: (a) an

administrative offence; (b) a form of harm regulated by private law; and (c) a type of

injury. Therefore, in breach of articles 15 and 24 of the Convention, the national

system does not provide for any procedural mechanism that would allow the judicial

authorities to address cases of obstetric violence as serious violations of women’s

human rights. In Act No. 25.929, regarding humanized childbirth, and Act No. 26.485,

regarding violence against women, no provision is made for any specific legal

procedure or an appropriate category of criminal offence to address obstetric violence

as a violation of human rights. In practice, this prevents cases of obstetric violence

from being appropriately investigated and prosecuted. In the same way, the lack of an

adequate remedy prevents victims from obtaining comprehensive reparation for the

material and immaterial harm caused. The author filed reports with the National

Coordinating Committee for Actions to Develop Penalties to be Imposed in Cases of

Gender Violence and with the Office of the Ombudsman, which notified the Public

Prosecutor’s Service of the complaint. However, after receiving the complaints, the

agencies in question did not take the necessary measures to process them. The State

Party was therefore in breach of its obligation to process the complaint within a

reasonable time. That unjustified delay prevented the author and her son from

obtaining the comprehensive reparation to which they are entitled owing to the

material and immaterial harm suffered.

3.6 As comprehensive reparation measures, the author requests that the Committee

declare the international responsibility of the State party; the payment of 35,000

United States dollars to each of the victims; and the provision of psychological

assistance for the author, to be offered through private service providers financed by

the Province of Buenos Aires. Furthermore, the author requests the Committee to

recommend that the State Party set up a working group for representatives of the

Government and civil society, including the non-governmental organization Las

Casildas, to discuss the need to amend Act No. 25.929 to establish specific procedural

mechanisms allowing women who are victims of obstetric violence to gain access to

an adequate remedy. The author also requests the State Party to comply with the

recommendations made by the Special Rapporteur on violence against women and

girls, its causes and consequences in her report on a human rights-based approach to

mistreatment and violence against women in reproductive health services with a focus

on childbirth and obstetric violence. Lastly, the author requests publication of the

present communication in a national newspaper and the official gazette.

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State party’s observations on admissibility and the merits

4.1 On 28 April 2021 and 30 September 2022, the State Party submitted its

observations on admissibility and the merits.

4.2 The State Party argues that domestic remedies have not been exhausted given

that the administrative proceedings before INADI to establish the alleged facts and

responsibilities are ongoing and the Public Prosecution Service of the City of Buenos

Aires is in the process of conducting a judicial investigation. The State Party

maintains that the exceptions claimed by the author of the communication, namely,

the alleged ineffectiveness of the remedy and unreasonably prolonged nature of the

domestic proceedings, are not applicable in this case. According to the information

provided by the Public Prosecution Service of the City of Buenos Aires, criminal

proceedings were formally begun on 3 October 2019, in relation to the offence defined

in article 94 of the Criminal Code,6 and the investigation is still under way, the most

recent progress having been made in February 2021.

4.3 Although the author argues that there are no specific domestic law mechanisms

for bringing complaints regarding acts of obstetric violence before a court and

obtaining comprehensive reparation for the victims, the State Party maintains that this

form of violence is covered by article 6 (e) of the Act on Comprehensive Protection

to Prevent, Punish and Eradicate Acts of Violence against Women in their

Interpersonal Relations (No. 26.485). In addition, it should be noted that not all forms

of violence need to be approached from a criminal law perspective. However, even

though obstetric violence is not specifically criminalized in national law, there are

judicial avenues available to address through the criminal courts some behaviours that

can be classified as such. For example, depending on their severity, intentional

practices of obstetric violence that cause harm or injury to the body or health

constitute offences defined in articles 89 to 94 of the Criminal Code (on injury). Other

forms of violence capable of causing harm or injury to a person’s body or health when

performed recklessly may constitute negligent injury pursuant to article 94 of the

Criminal Code. Furthermore, when acts of obstetric violence do not cause harm or

injury to another person, in other words, when they do not constitute an offence,

reparation may be obtained through a civil process by means of a claim for damages.

4.4 On the merits, the State Party maintains that various expert opinions revealed

discrepancies regarding the use of the manoeuvres alleged, their compliance with

medical standards and their causal relationship with the injuries reported. In one

medical report it was concluded that the perineal tear was a foreseeable consequence

of childbirth, there were indications that the hip injuries had been sustained

previously and the urinary incontinence could not be directly attributed to a defective

procedure. Furthermore, no records of the author’s son’s fracture were found in the

medical documentation. The Forensic Medicine Directorate established that vaginal

tears are common injuries in spontaneous deliveries and that the use of the Kristeller

manoeuvre, although generally discouraged, could not be proved in this case. It was

stated in the psychological report that the complainant experienced the facts in a

traumatic manner, which caused her to suffer from post-traumatic stress disorder,

reflecting the psychological impact of her experience. On 30 June 2021, the Public

Prosecution Service closed the case on the grounds that the evidence collected had

not allowed it to establish that the reported negative outcomes had been caused by the

Kristeller manoeuvre or the rupture of the amniotic sac.

4.5 The State Party argues that specific mechanisms are available to give effect to

the author’s rights. Argentine law, through Act No. 25.929, regarding respectful

childbirth, and Act No. 26.485, regarding comprehensive protection against gender-

__________________

6 Ibid.

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based violence, establishes legal mechanisms for penalizing non-compliance and

ensuring the rights of women during and after childbirth. The investigations initiated

by the author in criminal and administrative proceedings did not reveal significant

shortcomings on the part of the health personnel, while INADI recommended that

Sanatorio Finochietto train its staff with regard to obstetric violence. At the legal

level, adequate civil, criminal and administrative remedies are available to address

cases of obstetric violence.

4.6 As for government initiatives, the Ministry of Women, Genders and Diversity

worked together with the Ministry of Health to implement Act No. 25.929, regarding

respectful childbirth, and established an inter-agency committee to take action in

cases of obstetric violence. Act No. 25.929, together with Act No. 27.611 (the “One

Thousand Days” Act), strengthens the comprehensive view of childbearing and child-

rearing rights as State policy. Moreover, the National Action Plan for Combating

Gender-Based Violence includes specific lines for addressing obstetric violence, with

the aim of strengthening preventive measures and ensuring dignified and respectful

care for women during pregnancy, childbirth and the post-partum period.

Author’s comments on the State Party’s observations on admissibility and

the merits

5.1 The author submitted her comments on the State Party’s observations on

admissibility and the merits on 7 June 2021 and 12 September 2023.

5.2 The author admits that at the time she submitted the communication, the

investigation by the Public Prosecution Service was pending. However, according to

the Public Prosecution Service itself, the purpose of the investigation was not to

determine whether the author had suffered gender-based violence at Sanatorio

Finochietto, but to establish whether the health personnel who attended her delivery

there were guilty of negligence or a breach of regulations that caused harm to her

body or health, as established in article 94 of the Criminal Code. From the moment

the Public Prosecution Service frames its investigation within the context of the

aforementioned article, the remedy becomes completely ineffective, since it is not

appropriate for addressing the harm suffered by the author. The concept of obstetric

violence, as defined under domestic civil law, does not match the criminal offence set

out in article 94 of the Criminal Code. The Public Prosecution Service approached

the investigation as though it were dealing with a crime defined by medical

malpractice. However, the author argues that obstetric violence is not a simple case

of malpractice whose wrongfulness is linked solely to non-compliance with

administrative regulations or medical negligence.

5.3 In any case, according to the author, the remedy proved ineffective, since on

25 June 2021, the Public Prosecution Service of the Autonomous City of Buenos

Aires decided to close the investigation, concluding that it was not possible “to prove

the existence of one of the conditions that [article 94 of the Criminal Code] […]

requires in order to establish [the offence], namely […] that the accused had failed in

the duty of care that it had, based on the respective roles within the medical team, and

had, as a result, caused the harmful outcomes reported”.

5.4 With regard to the proceedings before INADI, the author points out that INADI

is legally empowered to receive complaints about situations that may constitute

discrimination, and to provide victims with legal advice and even represent them in

legal proceedings. However, INADI lacks adjudicatory powers, as it is authorized

only to register complaints, if they are proven to be well founded, and to sponsor legal

action. INADI itself will never be able to grant reparation to a victim. For all those

reasons, the author considers this administrative remedy not to have been effective.

However, the author argues that the institutional recognition of obstetric violence by

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INADI, in its opinion of 6 September 2022, reinforces the veracity of the facts alleged

before the Committee, since a State entity has considered the violations alleged before

the Committee to be proven (see para. 2.6 above).

Issues and proceedings before the Committee

Consideration of admissibility

6.1 In accordance with rule 64 of its rules of procedure, the Committee is to decide

whether the communication is admissible under the Optional Protocol.

6.2 The Committee takes note of the author’s allegations that the use of the

Kristeller manoeuvre without her informed consent had consequences for her son

E.B.S.F., who suffered a fractured clavicle. The Committee also takes note of the

author’s allegations that the consequences she suffered prevented her from caring for

her newborn son. The Committee notes that the alleged harm suffered by E.B.S.F. is

directly linked to the alleged obstetric violence and gender-based discrimination

suffered by the author. In the light of the foregoing, the Committee considers that it

is not precluded, by virtue of the requirements of article 2 of the Optional Protocol,

from considering the present communication, not only in relation to the author, but

also in relation to her son E.B.S.F.7

6.3 The Committee takes note of the argument of the State Party that the

communication is inadmissible on the grounds of non-exhaustion of domestic

remedies, since, at the time the communication was submitted, both the criminal and

the administrative complaints were still pending resolution. The Committee recalls

that, under article 4 (1) of the Optional Protocol, it is precluded from considering a

communication unless it has ascertained that all available domestic remedies have

been exhausted or that the application of such remedies is unreasonably prolonged or

unlikely to bring effective relief. 8 The Committee recalls that the authors of an

individual communication are not obliged to exhaust all available remedies but must

give the State Party the opportunity, through a relevant chosen mechanism, to remedy

the matter raised within its jurisdiction.9 The Committee notes that the author raised

the issues set out in the present communication before the national administrative and

criminal justice authorities. It notes that the criminal investigation was closed in June

2021 and that INADI, in its opinion of September 2022, appeared to recognize that

the author was a victim of obstetric violence. However, the Committee takes note of

the author’s assertion, not refuted by the State Party, that INADI lacks adjudicatory

powers and, therefore, is not authorized to grant reparation to the author. In the light

of the foregoing, and in the absence of any other information from the State Party

indicating other remedies that would have been effective in redressing the violations

alleged in the present communication, the Committee considers that available

domestic remedies have been exhausted. Accordingly, the Committee finds that

article 4 (1) of the Optional Protocol does not constitute a barrier to the admissibility

of the present communication.

6.4 The Committee also notes the author’s statement that there is no effective

remedy that facilitates her access to comprehensive, adequate reparation for herself

and her son, and that, in the State Party, effective measures to ensure such reparation

have not been taken, perpetuating structural discrimination against women in the field

of reproductive health. The Committee considers that the allegations relating to the

__________________

7 In this regard, see the Committee’s views in Eugene Matson v. Canada (CEDAW/C/81/D/68/2014),

para. 17.3.

8 J.D. et al. v. Czech Republic (CEDAW/C/73/D/102/2016), para. 8.2; E.S. and S.C. v. United

Republic of Tanzania (CEDAW/C/60/D/48/2013), para. 6.3; and L. R. v. Republic of Moldova

(CEDAW/C/66/D/58/2013), para. 12.2.

9 S.F.M. v. Spain (CEDAW/C/75/D/138/2018), para. 6.3.

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denial of justice and discrimination on the basis of sex as a result of stereotypes are

directly linked to the merits of the communication, and therefore decides to consider

them on the merits.10

6.5 The Committee notes that the author refers to a violation of article 15 of the

Convention, but does not provide information explaining how the facts of the present

communication could have undermined the enjoyment of her rights under that article.

Consequently, the Committee considers that the claims by the author relating to article

15 have not been sufficiently substantiated and declares them inadmissible under

article 4 (2) (c) of the Optional Protocol.

6.6 However, the Committee considers that the author has sufficiently substantiated,

for admissibility purposes, her allegations relating to articles 2, 3, 5, 12 and 24 of the

Convention, relating to the lack of prevention and investigation of the acts of obstetric

violence against her and the lack of reparation for her and her son for those acts.

Accordingly, in the absence of any other issue relating to the admissibility of the

communication, the Committee declares it admissible insofar as it raises issues under

articles 2, 3, 5, 12 and 24 of the Convention, and decides to proceed to consider it on

the merits.

Consideration of the merits

7.1 The Committee has considered the present communication in the light of all the

information placed at its disposal by the author and the State Party, in accordance

with the provisions of article 7 (1) of the Optional Protocol.

7.2 The Committee notes that the crux of the present case is whether the State Party

failed to comply with its obligation to prevent and investigate acts of obstetric

violence and to grant comprehensive reparation to the author. The Committee must

also assess the State Party’s compliance with its obligation to exercise due diligence

in the criminal proceedings that took place after the acts that are the subject of the

author’s complaint. The Committee recalls that it is generally for the authorities of

States Parties to evaluate the facts and evidence and the application of national law

in a particular case, unless it can be established that the evaluation was conducted in

a manner that was biased, based on gender stereotypes that constitute discrimination

against women, was clearly arbitrary or amounted to a denial of justice. 11 In that

regard, the Committee notes that, according to the State Party, the Government and

the domestic courts thoroughly evaluated the reports provided and that various expert

opinions revealed discrepancies regarding the use of the manoeuvres alleged, their

compliance with medical standards and their causal relationship with the injuries

reported. The Committee also notes that INADI issued an opinion stating that the

author had received inappropriate treatment and that, although the Kristeller

manoeuvre might have been performed in accordance with lex artis, it appeared to

have been performed without the author’s informed consent and that this constitutes

obstetric violence.

7.3 The Committee points out that it has examined several cases of obstetric

violence, understood to mean violence suffered by women that is inflicted by

reproductive healthcare providers during pregnancy, childbirth and the postpartum

period. 12 It also recalls that informed consent for medical treatment related to

reproductive health services and childbirth is a fundamental human right. Women

__________________

10 N.A.E. v. Spain (CEDAW/C/82/D/149/2019), para. 14.4.

11 H.D. v. Denmark (CEDAW/C/70/D/76/2014), para. 7.7.

12 See M.D.C.P. v. Spain (CEDAW/C/84/D/154/2020); N.A.E. v. Spain (CEDAW/C/82/D/149/2019);

and S.F.M. v. Spain (CEDAW/C/75/D/138/2018). In the same vein, see A/74/137, paras. 9 and

12. See also World Health Organization, “The prevention and elimination of disrespect and abuse

during facility-based childbirth” (WHO/RHR/14.23).

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have the right to receive full information about recommended treatments so that they

can make informed and well-considered decisions. 13 The Special Rapporteur on

violence against women and girls, its causes and consequences has stated that this

form of violence is widespread and systematic in nature, ingrained in health systems.

It is part of a continuum of the violations that occur in the wider context of structural

inequality, discrimination and patriarchy, and is also the result of a lack of proper

education and training as well as the lack of respect for women’s equal status and

human rights.14

7.4 The Committee notes that in the State Party, obstetric violence is defined in Act

No. 26.485 (on violence against women) and that Act No. 25.929 promotes

humanized childbirth. It also notes that the national system does not yet provide for

any specific legal procedure, either criminal or administrative, through which

obstetric violence is investigated and punished. The Committee recalls its general

recommendation No. 35 (2017), in which it called on States Parties to carry out the

legal reforms necessary to criminalize all forms of gender-based violence against

women, including violations of women’s sexual and reproductive health and rights.15

In addition, on the basis of its general recommendation No. 24 (1999), it has reiterated

the need to develop prevention programmes and ensure that women have access to

sexual and reproductive healthcare,16 and has called upon States Parties to ensure that

victims of obstetric violence have effective access to justice and to comprehensive

and adequate reparation.17 The Committee of Experts of the Follow-up Mechanism to

the Belém do Pará Convention recommended that the States of Latin America and the

Caribbean enact laws to punish obstetric violence.18 In 2012, the Mechanism noted

that, although the State Party defined obstetric violence as a form of violence, it did

not indicate what measures were being taken to punish obstetric violence in its

national laws, either by establishing the corresponding penalties in the Criminal Code

or guidelines in the General Health Act.

7.5 In its general recommendation No. 28 (2010), the Committee established that

States Parties have an obligation not to cause discrimination against women through

acts or omissions; they are further obliged to react actively against discrimination

against women, regardless of whether such acts or omissions are perpetrated by the

State or by private actors. 19 They also have a due diligence obligation to prevent

discrimination by private actors.20 In addition, the Inter-American Court of Human

Rights considered that “in cases in which a woman claims to have been a victim of

obstetric violence by non-State actors, States have the obligation to establish timely,

adequate and effective complaint mechanisms under which such obstetric violence is

recognized as a form of violence against women, investigate the facts with due

diligence, punish any perpetrators of such violence and provide the victim with

effective redress, reparation of damage or other just and effective means of

__________________

13 See M.D.C.P. v. Spain (CEDAW/C/84/D/154/2020); N.A.E. v. Spain (CEDAW/C/82/D/149/2019);

and S.F.M. v. Spain (CEDAW/C/75/D/138/2018). In the same vein, see A/74/137, para. 32.

14 A/74/137, paras. 4 and 9.

15 General recommendation No. 35 (2017) on gender-based violence against women, updating

general recommendation No. 19, para. 18. See also the Committee’s concluding observations in

CEDAW/C/LAO/CO/10, paras. 26 and 27; CEDAW/C/DEU/CO/9, para. 46; and

CEDAW/C/BGR/CO/8, para. 34.

16 General recommendation No. 24 (1999) on women and health, paras. 26 and 27.

17 See the Committee’s concluding observations in CEDAW/C/CHL/CO/8, para. 38; and

CEDAW/C/URY/CO/10, para. 36.

18 Follow-up Mechanism to the Implementation of the Inter-American Convention on the

Prevention, Punishment and Eradication of Violence against Women (MESECVI), Second

Hemispheric Report on the Implementation of the Belém do Pará Convention, April 2012, p. 39.

19 General recommendation No. 28 (2010) on the core obligations of States Parties under article 2

of the Convention on the Elimination of All Forms of Discrimination against Women, para. 10.

20 Ibid., para. 13.

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compensation”.21 The Court also recalled the obligation of States to prevent third

parties from committing acts of obstetric violence and, more specifically, their duty

to regulate and oversee all healthcare provided to persons under their jurisdiction,

regardless of whether the entity providing such services is public or private.22

7.6 In this context, the Committee recalls that, pursuant to articles 2 (f) and 5, States

Parties have the obligation to take appropriate measures to modify or abolish not only

existing laws and regulations but also customs and practices that constitute

discrimination against women. 23 The Committee recalls that, in its concluding

observations, it has recommended that States Parties adopt legal and policy measures

to protect pregnant women during childbirth, penalize obstetric violence, strengthen

capacity-building programmes for medical practitioners and ensure regular

monitoring of the treatment of patients in healthcare centres and hospitals. 24

7.7 The Committee notes that, in the present case, INADI found that the humiliating

and dehumanized treatment, as well as the use of discouraged practices such as the

amniotomy and the Kristeller manoeuvre, which were carried out without the author’s

informed consent, had physiological and psychological consequences for both her and

her son. The Committee notes that the State Party did not submit arguments about the

lack of informed consent alleged by the author, and that such lack of consent was

apparently not considered in the investigations conducted by the Public Prosecution

Service, which have been closed. In that regard, the Committee recalls that women

have the right to be fully informed, by properly trained personnel, of their options in

agreeing to treatment or research, including likely benefits and potential adverse

effects of proposed procedures and available alternatives.25

7.8 The Committee also notes that the author alleges that the authorities failed to

take sufficient measures to monitor and oversee the private Sanatorio Finochietto,

making it possible for clinic staff to mistreat and humiliate her and to employ

discouraged or prohibited practices, such as the Kristeller manoeuvre and the

amniotomy, without her informed consent. It also notes that the State Party did not

comment on the author’s allegations regarding the lack of oversight in private clinics

where practices discouraged by WHO are employed, nor on its obligation to prevent

violence against women.

7.9 The Committee considers that the administrative complaint before INADI did

not constitute contentious proceedings through which the author could have obtained

comprehensive reparation. The Committee also considers that the absence of a timely,

adequate and effective judicial mechanism to implement the provisions of Act

No. 26.485 has prevented a due diligence investigation of the facts. The investigations

related to the offence of injury conducted in response to the complaints of obstetric

violence were insufficient, as they were carried out without a gender perspective: the

lack of informed consent, the psychological consequences and the author’s loss of

autonomy, all of which have their roots in gender stereotypes, were not taken into

consideration. The Committee considers that this affected the author’s rights to access

to justice and to adequate reparation.26 Therefore, the Committee considers that the

State Party failed in its duty to provide timely and adequate complaint mechanisms

__________________

21 Inter-American Court of Human Rights, Rodríguez Pacheco et al. v. Venezuela, judgment of

1 September 2023, para. 112. See also Convention of Belém do Pará, art. 7.

22 Inter-American Court of Human Rights, Rodríguez Pacheco et al. v. Venezuela.

23 González Carreño v. Spain (CEDAW/C/58/D/47/2012), para. 9.7.

24 M.D.C.P. v. Spain (CEDAW/C/84/D/154/2020), para. 7.9; N.A.E. v. Spain

(CEDAW/C/82/D/149/2019), para. 15.5; and S.F.M. v. Spain (CEDAW/C/75/D/138/2018),

paras. 7.5 and 7.6. See also CEDAW/C/CRI/CO/7, para. 31.

25 M.D.C.P. v. Spain (CEDAW/C/84/D/154/2020), para. 7.7.

26 S.L. v. Bulgaria (CEDAW/C/73/D/99/2016), para. 7.11.

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to enforce Act No. 26.485, under which obstetric violence is recognized as a form of

violence against women.

7.10 As a result, the Committee considers that the cumulative facts of the present

case, namely, the alleged fracture of the author’s son’s clavicle, the loss of dignity,

the abuse and physical and verbal mistreatment suffered by the author, the use of

practices discouraged by WHO, such as the amniotomy and the Kristeller manoeuvre,

without the author’s informed consent or without having justified the need for such

interventions, and the difficulties the author had in caring for her son – all of which

resulted in physical and psychological consequences for both the author and her

newborn child – constitute obstetric violence.27 The Committee also considers that

the lack of an appropriate judicial mechanism, the inadequate investigation by the

State authorities, the lack of oversight of private institutions and the lack of measures

to prevent this kind of reproductive violence resulted in the violation of the author’s

rights under the Convention.

7.11 Consequently, acting under article 7 (3) of the Optional Protocol, the Committee

is of the view that the facts before it reveal a violation of the rights of the author and

her son under articles 2, 3, 5, 12 and 24 of the Convention.

8.

In the light of the above conclusions, the Committee makes the following

recommendations to the State Party:

(a)

Concerning the victims: provide comprehensive reparation, including

adequate financial compensation for the damage that she and her son suffered to their

physical and psychological health, and medical and psychological care for the author;

(b)

In general:

(i)

Ensure that women have access to adequate healthcare services during

pregnancy, childbirth and the post-partum period, and that they are protected

from physical and verbal mistreatment, disrespect and abuse during childbirth

in public and private healthcare institutions;

(ii) Uphold women’s rights to safe motherhood and access to appropriate

obstetric services, in accordance with general recommendation No. 24 on

women and health, and, in particular, provide women with adequate information

during each stage of childbirth, establishing a requirement to obtain their free

and informed consent prior to any invasive treatment performed during

childbirth, thus respecting their autonomy and their capacity to make informed

decisions regarding their reproductive health;

(iii) Identify existing legal gaps and provide, in national law, for adequate and

effective legal mechanisms for addressing violations of women’s reproductive

health, including obstetric violence, and provide specialized training to judicial

and law enforcement personnel;

(iv) Provide obstetrician-gynaecologists and other public- and private-sector

health professionals with adequate professional training in the reproductive

rights of women and girls;

(v)

Provide adequate professional training to enable the judiciary to recognize

the various forms of gender-based violence against women, including obstetric

violence;

(vi) Publish the present communication in a national newspaper and the official

gazette.

__________________

27 M.D.C.P. v. Spain (CEDAW/C/84/D/154/2020), para.7.12; and N.A.E. v. Spain

(CEDAW/C/82/D/149/2019), para. 15.7.

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9.

In accordance with article 7 (4) of the Optional Protocol, 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 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 disseminate them widely in order to

reach all relevant sectors of society.