A.S. vs Hungary (Special Entry)

In the case A.S. vs Hungary (Communication no. 4/2004) the Committee on the Elimination of Discrimination against Women (the Committee) found the violation of Article 10 (h), 12 and 16, paragraph 1 (e) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in relation with the coersive sterilisation of a Hungarian woman of Roma ethnic origin.

The author of the communication was a Hungarian Roma, a mother of three and she was pregnant with her fourth child.When she went into labour a physician currently attending her found that the foetus had died in her womb and informed her that a caesarean section was needed to be performed immediately in order to remove the dead foetus. The author was asked on the operating table to sign consent form to the caesarean section as well as a "barely legible note that had been hand-written by the doctor and added to the bottom of the form", stating that the author - having knowledge of the dead foetus - firmly requested her sterilisation since she would not want to give birth or become pregnant again. The author did not even understand the meaning of the word "sterilisation". After the doctors performed the caesarean section, the author's fallopian tubes were tied and therefore she was sterilised. The author only became aware of her infertility just before she left the hospital, when she asked the doctor for information on her state of health and when she could try to have another baby. The medical records also contained information on the poor health condition of the author upon the arrival to the hospital: "She felt dizzy [...], was bleeding more heavily than average and was in a state of shock".She stated 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.

The State party stressed that the relevant Hungarian law Act allows a physician to perform sterilisation when it seems to be appropriate in certain circumstances. These circumstances were present by the time of the intervention since it was not the author’s first caesarean section and her womb was in very bad condition. The surgery was safe because the risk of undergoing another abdominal operation was greater and appeared inevitable in the given circumstances. 

The author claimed that Hungary has violated Articles 10 (h), 12 and 16, paragraph 1 (e) of the CEDAW. She emphasized 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. Furthermore sterilisation is regarded as an irreversible intervention and surgery to reverse its effects is complex and has a low success rate. She relied on statements of different  human rights stressing that "the practice of forced sterilization constitutes a serious violation of numerous human rights".

Violation of Article 10 (h) of the CEDAW

The authore claimed that the State party violated Article 10 (h) of the CEDAW by failing to provide information and advice on family planning. The Article 10 (h) states as follows:

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.

In this respect the Committee recalled its general recommendation No. 21 on equality in marriage and family relations recognizing that women must have information about contraceptive measures and their use in order to make an informed decision about safe and reliable contraceptive measures and to avoid "coercive practices which have serious consequences for women, such as forced [...] sterilization".

The Committee noted that - according to the judgement of the appellate court - the author had not been provided with detailed information about the sterilisation, including the risks involved and the consequences of the surgery, alternative procedures or contraceptive methods. The author has a right protected by Article 10 (h) of the CEDAW 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". Taking into account the author’s state of health on arrival at the hospital, any counselling that she received must have been given under stressful and most inappropriate conditions. The Committee, considering all these factors, found a failure of the State party to provide appropriate information and advice on family planning, which constituted a violation of the author’s right under Article 10 (h) of the CEDAW.

Violation of Article 12 of the CEDAW

It is the State Parites obligation - under Article 12 of the CEDAW - to "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". Women shall be provided appropriate services in connexion with pregnancy, confinement and the post-natal period.

In this regard the Committee examined the author’s description of the 17 minute timespan from her admission to the hospital up to the completion of two medical procedures. The Committee found that it was not plausible that during the short period of time the hospital personnel had 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 sterilised. The Committee also took note of the fact clearly indicating that the author had been unaware of the consequences of sterilization: she had enquired of the doctor when it would be safe to conceive again.

The Committee stated in its general recommendation No. 24 on women and health that those services to which a woman gives her fully informed consent are considered acceptable and states should not permit "forms of coercion, such as non-consensual sterilization […] that violate women’s rights to informed consent and dignity". Therefore the Committee found the violation of Article 12 of the CEDAW.

Violation of Article 16, paragraph 1 (e) of the CEDAW

Article 16, paragraph 1 (e) of the CEDAW wich states that states 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 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.

In this relation the Committee recalled its general recommendation No. 19 on violence against women in which it stated that "compulsory 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". Due to the fact that the sterilisation had been performed on the author without her full and informed consent, the Committee found the violation of Article 16, paragraph 1 (e) of the CEDAW.