Szijjarto v. Hungary

The applicant was a Hungarian Roma woman who claimed that she had been subjected to coerced sterilization by medical staff at a Hungarian hospital. On 30 May 2000, the applicant was examined by a doctor and found to be pregnant with her fourth child, with the delivery date estimated to be 20 December 2000. Meanwhile, the applicant followed antenatal treatment and attended all the scheduled appointments.  On 20 December 2000, the applicant reported to the maternity ward of Fehérgyarmat Hospital where she was examined, found to be 36 to 37 weeks pregnant and was asked to return when she went into labor.

On 2 January 2001,the applicant went into labor pain and her amniotic fluid broke, accompanied by heavy bleeding. After one hour’s drive by ambulance to the Fehérgyarmat Hospital, it was found that the fetus had died in her womb. The physician informed her that a caesarean section had to be performed immediately to remove the dead fetus. On the operating table, the applicant signed a consent form to the caesarean section. She also signed “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 applicant 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 applicant also signed statements of consent for a blood transfusion and for anaesthesia”. [Paragraph 2.2]

“Hospital records showed that within 17 minutes of the ambulance arriving at the hospital, the caesarean section was performed, the dead fetus and placenta were removed and the applicant’s fallopian tubes were tied. Before leaving the hospital the applicant asked the doctor for information on her state of health and when she could try to have another baby. It was only then that the applicant learned the meaning of the word “sterilization.” The medical records also revealed that the applicant felt dizzy upon arrival, that she was bleeding more heavily than average, and was in a state of shock”. [Paragraph 2.3]

The applicant complained that the sterilization impacted her life.  As a result of the procedure, she and her partner were medically treated for depression. She claimed that she would never have agreed to the sterilization as she had strict Catholic religious beliefs that prohibit contraception of any kind, including sterilization and traditional Roma customs where having children is a central element of the value system of Roma families.

On 15 October 2001, the applicant filed a civil claim against Fehérgyarmat Hospital, requesting the Fehérgyarmat Town Court to find that the hospital violated her civil rights. The applicant claimed that she had been negligently sterilized without giving her full and informed consent. For this, the applicant sought pecuniary and non-pecuniary damages.

On 22 November 2002, the Fehérgyarmat Town Court rejected the applicant’s claim despite the doctors negligence in failing to inform her partner of the operation and its possible consequences, and to obtain the birth certificates of the applicant’s live children. The Court held that the medical conditions for sterilization were present in the applicant’s case, and that she had been informed about the procedure and had given her consent accordingly. “The Court further viewed as a ‘partial extenuating circumstance towards the defendant’s negligence the fact that, with the applicant’s consent, the doctors performed the sterilization with special dispatch simultaneously with the Caesarean section’.” [Para. 2.6.]

On 5 December 2002,  the applicant appealed before the Szabolcs-Szatmár-Bereg County Court which found that although Hungary’s Act on Health Care allowed for the exceptional performance of the sterilization, the operation for the applicant was not of a life-saving character and thus, the applicant’s informed consent should have been obtained. The appellate court found that the doctors  failed to provide the applicant with detailed information (about the method of the operation, of the risks associated, and of the alternative procedures and methods, including contraceptive options) and that her written consent could not free the hospital of its liability. Stating that the applicant failed to prove that she had permanently lost her reproductive capacity as a result of the conduct of the doctors, the appellate court dismissed the appeal on 12 May 2003.

The applicant claimed to the Committee on the Elimination of Discrimination against Women (“the Committee”) that Hungary had violated articles 10 (h), 12 and 16, paragraph 1 (e) of  the Convention on the Elimination of All Forms of Discrimination against Women (“the Convention”). The applicant stated that the sterilization was never a life-saving intervention that had to be performed on an emergency basis without her full and informed consent. It was an operation that was generally intended to be irreversible and surgery to reverse sterilization was complex and had a low success rate. The applicant stated that international and regional human rights organizations repeatedly stated that the forced sterilization constituted a serious violation of human rights and she referred to general comment 28 of the Human Rights Committee on equality of rights between men and women as an example. The applicant also stated that coercion presented itself in the form of negligence on the part of medical personnel.

The applicant claimed :

1. Article 10 (h) of the Convention had been violated as she had 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. The applicant quoted paragraph 22 of general recommendation No. 21 regarding marriage and family relations of the Committee in support of her argument.
2. Article 12 of the Convention had been violated as she was unable to make an informed choice before signing the consent form for the sterilization procedure. The applicant argued that her inability to give informed consent on account of the incomplete information provided violated her right to appropriate healthcare services. She also argued that there was 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. Article 16, paragraph 1 (e) of the Convention had been violated as the state party limited her ability to reproduce. The applicant referred 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.  The applicant also claimed 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.

The applicant requested the Committee to find a violation of the provisions and request a just compensation from the state party.

The state party argued that the applicant failed to exhaust domestic remedies as she hadn’t used the so-called “revision of judgement”, a special remedy under Hungarian law, that she hadn’t sustained a permanent disability because the sterilization was not irreversible surgery and had not caused permanent infertility, making it clear that there was no permanent violation of her rights and that her claim should not be admitted by the Committee.

The state party argued that:

1. Article 10 (h) of the Convention had not been violated since the applicant had three living children and must have been familiar with the nature of pregnancy and childbirth without further education.
2. Article 12, paragraph 1, of the convention had not been violated as the applicant had received, free of charge, the benefits and services provided to all Hungarian women during and after pregnancy. The applicant was given every information regarding the surgery.
3. The Public Health Act allowed a physician to perform sterilization surgery without following any special procedure when it seems to be appropriate in certain circumstances. These circumstances were present as it was not the applicant’s first caesarean section and her womb was in a very bad condition. The state party also argued that the surgery had been safe and inevitable at the moment as there could have been greater risk in undergoing another abdominal operation.

The applicant responded to the state party’s argument saying that the state party failed to show the judicial review (so called “revision”) by the Hungary Supreme Court was an effective remedy that was available to her. The applicant also argued that the Constitutional Court of Hungary held that the Constitution guaranteed a one-tier appeal system only,a under which an appeal of a judgement of an appellate court was an extraordinary remedy. The applicant argued that this extraordinary relief was not accessible to her. Because the relevant judicial criteria for the review were declared unconstitutional by the Constitutional Court of Hungary on 9 November 2004, the applicant was without effective access to judicial review. The applicant also argued that her reproductive capacity had been taken away by the doctors at the public hospital, that sterilization (as a medical practice) is regarded as an irreversible surgery and that it had had a major impact on her.

The applicant claimed that her fundamental rights to health, and human dignity and freedom had been violated. She also claimed that the Hungarian health service failed to provide any kind of information on family planning, on sterilization surgery, or its effects on her reproductive capacity. The state party’s failure to provide her with such  information before coercing her into signing the consent to sterilization constituted a breach of article 10 (h) of the Convention.  The applicant argued that informed consent was based on a patient’s ability to make an informed choice and its validity doesn’t not depend on the form in which it is given; written consent simply could serve as an evidence.

The state party responded that the applicant failed to resort to the extraordinary remedy of judicial review by the High Court of Justice. The state party argued that the method used to sterilize the applicant was not irreversible and thus there was no continuous violation of her rights.  The state party also argued that the applicant was given correct and appropriate information both during pre-natal followup period and at the time of the surgery; she was provided with appropriate medical services and information during her previous pregnancies, and there was no difference in the quality of services given at public and private health facilities. The state party reiterated that although sterilization was not a life-saving intervention, it had a life-saving function to the applicant as future pregnancy or abdominal operation would have placed her in mortal danger.

The applicant maintained that sterilization permanently ends a woman’s reproductive capacity. She also maintained that a surgery to reverse sterilization was complex and had a low success rate; she also pointed that its success depends on factors like how the sterilization was done, the extent of the damage to reproductive organs, the skills of the surgeon and the availability of trained staff and facilities. Risks associated with the surgery to reverse sterilization and risks that follow the procedure such as ectopic pregnancy were harmful enough to require immediate medical attention. The applicant supported her claim by referring to publications by individuals, Governments and international organizations, and citing case law in many jurisdictions that viewed sterilization as an irreversible operation.

The applicant also claimed that the Hungarian medical profession considered sterilization as a permanent contraceptive method. The surgeon who performed the sterilization on her testified to the domestic court that the counseling had to include explaining the fact that it was an irreversible intervention. The applicant further stated that the damage on her reproductive organs, including Fallopian tubes, had to be known for a valid opinion to be given on whether the sterilization could successfully be reversed.  The applicant claimed that the state party made an abstract and non-scientific assertion when it stated that her operation was not irreversible.  Since it is confirmed by professional and domestic courts judgement that a future pregnancy might endanger hers and her child’s life, the applicant argued that her sterilization was done in a way that wouldn’t promote the possibility of a reversal. She further asserted that the Hungarian Courts based their opinion about the reversibility of the sterilization solely on the witness statements of the hospital’s staff and an expert medical report that they had not commissioned. Moreover, she stated that she was not examined for this purpose.

The applicant argued that she could brought non-pecuniary damage claims despite the determination of whether or not the sterilization was irreversible. Her rights to physical integrity, health, honour and human dignity had been violated under the Hungarian Civil Code by the hospital. The applicant stressed that her loss of fertility caused her psychological trauma which highly impacted her private life. The unlawful sterilization had had a continuous effect on her life without being remedied for almost five years.

The applicant further argued that all steps in the medical procedure could not have been carried out properly as it only 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 the consent, and go through both the caesarean section and the sterilization.

The committee held the claim was admissible. The Committee considered the applicant's right under Article 10 (h) of the convention to specific information on sterilization and options for family planning to protect her against an intervention that could be done without her fully informed choice.  Considering the applicant's state of health on arrival at the hospital, the committee noted that any counseling that she had received must have been given under stressful and most inappropriate conditions. In light of all the above factors, the committee found a failure of the state party, through the hospital personnel, to provide appropriate information and advice on family planning was in violation of the applicant's right under article 10 (h) of the Convention.

The Committee noted that the applicant went through all the medical procedures within the 17 minutes. The committee also considered the applicant's claim that she did not understand the Latin term for sterilization that was used on consent statement she signed.  The committee found that it was not likely that during that period of time, hospital personnel provided the applicant detailed and sufficient counseling and information about the sterilization. The committee noted that the applicant would not have asked the doctor when it would be safe for her to conceive again, had she known of the consequences of sterilization.  The committee held that the state party had not ensured that the applicant gave her fully informed consent to be sterilized and that her rights Article 12 of the convention were violated.

Regarding the violation claimed under Article 16, paragraph 1 (e) of the Convention, 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". [Para. 11.4] The committee held that the sterilization surgery permanently deprived her of her natural reproductive capacity and thus, her rights under article 16, paragraph 1 (e) had  been violated.

The committee decided for an appropriate compensation proportionate with the gravity of the violations of her rights to be provided to the applicant.

The committee held that the state party:

• Should take 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 settings, including hospitals and clinics.
• Review domestic legislation on the principle of informed consent in cases of sterilization and ensure it is in line with international human rights and medical standards.
  
• Monitor health facilities that perform sterilization procedures to ensure that they secure fully informed consent of their patients before carrying out the sterilization procedure, the breach of this should be subjected to appropriate sanction.
• Consider the views of the committee and its recommendations, and submit to the committee, within six months, a written response on actions taken in light of those views and recommendations.
  
• Publish the Committee's views and recommendations and have them translated into the Hungarian language and widely distributed to reach all relevant sectors of the Hungarian society.

"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." Para. 9.3

".... 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." Para. 9.7

"....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." Para. 9.11