In the case of N.B. v. Slovakia (Application no. 29518/10, Judgment of June 12 2012) the ECtHR found the violation of Article 3 and 8 of the ECHR in relation with a Roma woman’s sterilisation.
The applicant was a Slovakian Roma born in 1983. During the delivery of her second child by caesarean section in 2001 she was sterilised. According to her medical records, the applicant was administered premedication in view of the envisaged caesarean section, including substances used for sedative, anxiety-relieving and muscle-relaxing effects.
After the administration of the premedication, the applicant had been approached by a member of the medical staff who was carrying three A4 size pieces of paper. One of them contained a request to carry out a sterilisation on her reproductive organs during the delivery, and stated that she had been informed about the irreversible nature of such an operation and of her being unable to conceive a child in the future. The staff member had taken the applicant’s hand to help her sign the papers. N.B. later declared that she had been in labour and had felt as if she were intoxicated under the influence of the medication therefore “she had neither had the strength nor the will to ask what the documents contained”. A doctor who was present said that she would die unless she signed the papers. She had therefore not objected to signing the papers with the assistance of the staff member. Although at the time of the delivery and sterilisation procedure the applicant was underage, she reached the age of majority ten days later, her mother and representative had not been present during the delivery and she had not been asked to give her consent to the sterilisation.
According to a surgical report in the applicant’s medical file, after the child’s delivery, the doctors discovered that her uterus had been severely damaged. The medical staff had considered it certain a similar situation would occur in any future pregnancy and would pose a grave risk to the life of the applicant and her foetus. The doctors had therefore considered a hysterectomy as a radical solution to the problem, but, in view of the patient’s age, they had preferred to carry out reconstructive surgery after which they decided to sterilise the applicant in accordance with the request she had made prior to the operation. The intervention was also approved ex post facto by the sterilisation commission established at the hospital.
The applicant only learned about the operation and its nature in 2002. According to her, as a result of the operation, she has suffered from serious physical and mental health problems and she had been ostracised by her husband and the Roma community because of her infertility.
Violation of Article 3 of the ECHR
The applicant complained that she had been subjected to inhuman and degrading treatment on account of her sterilisation without her and her representative’s full and informed consent. She maintained that her sterilisation had not been a life-saving intervention and that it had had a lasting impact on her physical and psychological health, her relationship with her husband, and on her family and had affected her position within the Roma community which had amounted to treatment contrary to Article 3 of the ECHR.
The Government argued that it had been established in the course of the delivery that the applicant’s uterus was seriously damaged to an extent which had justified, from the medical point of view, a hysterectomy. The doctors had carried out the sterilisation in accordance with the wish which the applicant had earlier expressed and confirmed in writing. Slovakia also stated that the doctors had acted with the intention of protecting her life and health, as well as the life of her child.
The Court found that the way by which the medical staff of the hospital obtained the applicant’s consent to the sterilisation violated the applicant’s physical integrity and was grossly disrespectful of her human dignity. The medical staff “acted with gross disregard for her human freedom, including the right to freely decide, together with her representative and after having had the possibility of discussing the matter with her partner, whether she consented to the procedure”. Although the information available for the Court did not indicate that the medical staff acted with the intention of ill-treating the applicant, they nevertheless acted with gross disregard for her human freedom, including the right to freely decide, together with her representative and after having had the possibility of discussing the matter with her partner, whether she consented to the procedure. The Court also noted that N.B., at the time of the intervention, was still legally underage and the and at an early stage of her reproductive life. The sterilisation grossly interfered with her physical integrity, as she was thereby deprived of her reproductive capacity.
The Court found that there had been a violation of Article 3 of the ECHR on account of the applicant’s sterilisation stating that
[g]iven its serious nature and consequences, the sterilisation procedure, including the manner in which the applicant was asked to agree to it, was liable to arouse in her feelings of fear, anguish and inferiority and to entail lasting suffering. As to the last-mentioned point, a psychologist admitted that the applicant’s depressive and pessimistic moods could be linked to her inability to conceive. In view of the documents which the applicant produced in the domestic proceedings (see paragraph 28 above), the Court finds no reason to doubt that her inability to have children strongly diminished her position as a woman living within a Roma community and entailed mental suffering. The treatment to which the applicant was subjected as described above attained the threshold of severity required to bring it within the scope of Article 3.
Violation of Article 8 of the ECHR
The applicant also complained that her right to respect for her private and family life had been violated as a result of her sterilisation, which had been carried out contrary to the requirements of the relevant law and without her and her mother’s full and informed consent. The applicant maintained that her private and family life had been severely affected as a result of the sterilisation procedure. On the other hand the Government pointed to the fact that the domestic courts had acknowledged that the requirements of domestic law had not been complied with in the applicant’s case. They further argued that the medical staff had considered the procedure necessary with a view to protecting the applicant’s life and health.
The Court found that there had been a breach of Article 8 of the ECHR as
The applicant’s sterilisation affected her reproductive health status and had repercussions on various aspects of her private and family life. It therefore amounted to interference with her rights under Article 8. It was carried out contrary to the requirements of domestic law, as the applicant’s mother had not given her consent to the procedure. This was not disputed between the parties.
Therefore Slovakia failed to comply with its positive obligation under Article 8 by putting in place effective legal safeguards to protect the reproductive health of, in particular, women of Roma origin. The “failure to respect the statutory provisions combined with the absence at the relevant time of safeguards giving special consideration to the reproductive health of the applicant as a Roma woman resulted in a failure by the respondent State to comply with its positive obligation to secure to her a sufficient measure of protection enabling her to effectively enjoy her right to respect for her private and family life”.
Special references:
Article 6 (2) of the Convention on Human Rights and Biomedicine
V.C. v. Slovakia (Application no. 18968/07)
