V.C. v. Slovakia

The applicant, a woman of Roma origin, was sterilized at the hospital during the delivery of her second child. Prior to the Cesarean section, the medical personnel allegedly asked the applicant whether she wanted any more children. When she expressed that she did, the medical personnel allegedly told the applicant that if she got pregnant again, her life or her child’s life would be at risk. The petitioner was then asked to sign the delivery record to express her request for sterilization – her signature “was in an unsteady hand and the applicant’s maiden name … was split into two words.” The applicant then underwent the Cesarean section, during which the doctors performed a tubal ligation, “which consists of severing and sealing the Fallopian tubes in order to prevent fertilization.” During hospitalization, the applicant was taken to a room where only women of Roma origin were placed. She was also “prevented from using the same bathrooms and toilets as women who were not of Roma origin.” Following the procedure, the applicant suffered from “serious medical and psychological after-effects” and “symptoms of a false pregnancy.” She was also cast out by her community, and she and her husband divorced due to her infertility. The applicant later learned that the tubal ligation was not a life-saving procedure and that the procedure required “the patient’s full and informed consent.”

A criminal investigation was instituted, but discontinued based on the authorities’ finding no offense. Civil action was filed, but the district court ruled that the applicant’s condition was not irreversible since in vitro fertilization was possible. The superior court affirmed, concluding that the procedure had been done in accordance to the law. The applicant resorted to the Constitutional Court, but the Court dismissed the complaint. The applicant then filed a complaint before the European Court of Human Rights, alleging violations of articles 3 (freedom from torture or and inhuman or degrading treatment or punishment), 8 (right to private and family life), 12 (right to marry and found a family), 13 (right to remedy), and 14 (freedom from discrimination) of the Convention for the Protection of Human Rights and Fundamental Freedoms (“European Convention”).

The Court found Slovakia in violation of articles 3 (freedom from torture or and inhuman or degrading treatment or punishment), 8 (right to private and family life), and 14 (freedom from discrimination) of the European Convention.

According to the Court, the sterilization without informed consent represented a substantive violation of article 3 because it “grossly interfered with the applicant’s physical integrity,” depriving her of her "reproductive capability," and the procedure was not of a medical necessity such as to bypass proper consent. The Court also underscored the psychological consequences of the sterilization. There was no procedural violation of Article 3 for a failure by the State to comply with its obligations to carry out an effective investigation because the applicant did not request a criminal investigation and because she did file a civil complaint.

With respect to article 8, the Court found that the State had failed to comply with its positive obligations under the article by failing to institute the necessary legal safeguards to ensure the applicant's enjoyment of her right to private and family life. According to the Court, by affecting the applicant's reproductive health status, the sterilization amounted to a violation of the article.

The Court held that it was not necessary to examine article 12 (right to marry and found a family) separately. Though the sterilization had serious effects on her private and family life leading to a finding of a violation of article 8, the Court need not examine "whether the facts of the case also give rise to a breach of the applicant’s right to marry and to found a family.”

The Court held that there was no violation of article 13 because the applicant was able to access a remedy through the State by bringing a claim (which she did). Article 13 does not guarantee that the remedy will succeed, only that it is accessible for review before a competent authority able to examine the merits.

With respect to article 14, the facts did not support a finding of discrimination that the doctors acted in bad faith and as part of an organized policy or in a manner that was racially motivated. Rather than determine whether a breach of Article 14 occurred separately, the Court dealt with the matters under its discussion of Slovakia's obligations under Article 8. Mijovic J separated from the majority of the Court on this point, and held that Article 14 should have been considered separately, and that a breach of Article 14 should have been found by the Court.

"105. Finally, the Court reiterates that the very essence of the Convention is respect for human dignity and human freedom. It has held that in the sphere of medical assistance, even where the refusal to accept a particular treatment might lead to a fatal outcome, the imposition of medical treatment without the consent of a mentally competent adult patient would interfere with his or her right to physical integrity.

106. The Court notes that sterilisation constitutes a major interference with a person’s reproductive health status. As it concerns one of the essential bodily functions of human beings, it bears on manifold aspects of the individual’s personal integrity including his or her physical and mental well-being and emotional, spiritual and family life. It may be legitimately performed at the request of the person concerned, for example as a method of contraception, or for therapeutic purposes where the medical necessity has been convincingly established.

107. However, in line with the Court’s case-law referred to above, the position is different in the case of imposition of such medical treatment without the consent of a mentally competent adult patient. Such a way of proceeding is to be regarded as incompatible with the requirement of respect for human freedom and dignity, one of the fundamental principles on which the Convention is based.

108. Similarly, it is clear from generally recognised standards such as the Convention on Human Rights and Biomedicine, which was in force in respect of Slovakia at the relevant time, the WHO Declaration on the Promotion of Patients’ Rights in Europe or CEDAW’s General Recommendation No. 24 ... that medical procedures, of which sterilisation is one, may be carried out only with the prior informed consent of the person concerned. The same approach has been endorsed by FIGO [...] . The only exception concerns emergency situations in which medical treatment cannot be delayed and the appropriate consent cannot be obtained." Page 27.

"112. [...] asking the applicant to consent to such an intervention while she was in labour and shortly before performing a Caesarean section clearly did not permit her to take a decision of her own free will, after consideration of all the relevant issues and, as she may have wished, after having reflected on the implications and discussed the matter with her partner [...] “[T]he applicant’s informed consent could not be dispensed with on the basis of an assumption on the part of the hospital staff that she would act in an irresponsible manner with regard to her health in the future.” Page 28.

"116. The Court notes that the sterilisation procedure grossly interfered with the applicant’s physical integrity as she was thereby deprived of her reproductive capability. At the time of her sterilisation the applicant was twenty years old and therefore at an early stage in her reproductive life." Page 29.

"139. The essential object of Article 8 is to protect the individual against arbitrary interference by public authorities. Any interference under the first paragraph of Article 8 must be justified in terms of the second paragraph, namely as being “in accordance with the law” and “necessary in a democratic society” for one or more of the legitimate aims listed therein. The notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to one of the legitimate aims pursued by the authorities [...].

140. In addition, the Contracting States are under a positive obligation to secure to persons within their jurisdiction effective respect for their rights under Article 8. For the assessment of such positive obligations it must be borne in mind that the rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention. Compliance with requirements imposed by the rule of law presupposes that the rules of domestic law must provide a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention.

141. Whilst Article 8 contains no explicit procedural requirements, it is important for the effective enjoyment of the rights guaranteed by this provision that the relevant decision-making process is fair and such as to afford due respect to the interests safeguarded by it. What has to be determined is whether, having regard to the particular circumstances of the case and notably the nature of the decisions to be taken, an individual has been involved in the decision-making process, seen as a whole, to a degree sufficient to ensure the requisite protection of his or her interests [...]." Page 34.