L.C. was 13 years of age when she became pregnant as a result of being repeatedly raped by a 34-year-old man. After learning that she was pregnant, L.C. became depressed and attempted suicide by jumping from a building. She survived the fall and was eventually taken to a public hospital, where it was determined that she was at risk of permanent disability and required emergency spinal surgery. Despite the serious risk of permanent disability to L.C., her doctors refused to provide the surgery because she was pregnant. L.C. requested a termination of pregnancy in accordance with Article 119 of Peru’s Penal Code, which permits abortion when it is necessary to “save the life of the mother or to avoid serious and permanent harm to her health.” Forty-two days passed between when LC requested an abortion and when she received a denial from the hospital’s medical board. LC tried to appeal this decision, but three weeks later was informed that it was not subject to appeal. During this time, LC spontaneously miscarried, and nearly three months after her initial injury was able to receive spinal surgery. She remains paralyzed from the neck down with only partial movement in her hands.
The Committee determined that Peru, through the actions of medical staff at a public hospital, had violated Articles 2 (c) (right to access justice), 2 (f) (duty to modify or abolish discriminatory laws), 3 (guarantee of basic human rights and fundamental freedoms), 5 (modify sex role stereotyping and prejudice) and 12 (right to access health services) of CEDAW, read in conjunction with Article 1 (discrimination).
In finding that the states violated Article 12 (the right to health), the Committee affirmed state’s obligations 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” and that, in accordance with General Recommendation No. 24, “it is discriminatory for a State party to refuse to legally provide for the performance of certain reproductive health services for women.” The Committee further recognized that Peru had repealed its guidelines setting forth the process for obtaining legal abortion services, creating a legal vacuum. Accordingly, the Committee determined that Peru had failed to ensure L.C. could access essential health care services, as required by Article 12, noting the denial as being more serious considering that she was a minor and a victim of sexual abuse. The Committee found that Peru had engaged in wrongful gender stereotyping, in violation of Article 5 of CEDAW. In the Committee’s expert view, the decision of medical staff to delay the spinal surgery was based on the sex-role stereotype that protection of the foetus should prevail over the health of the mother.
The Committee also found a violation of Article 2(c) and (f), due to the lack of an effective remedy for LC. The Committee recognized that, “since the State party has legalized therapeutic abortion, it must establish an appropriate legal framework that allows women to exercise their right to it under conditions that guarantee the necessary legal security, both for those who have recourse to abortion and for the health professionals that must perform it.” The Committee set forth a series of standards for such a legal framework, indicating that it must include a mechanism for rapid decision-making, with the aim of limiting risks to the pregnant woman’s health, that her opinion must be taken into account, and that the decision be well-founded and that there must be a right to appeal.
The Committee called on Peru to provide reparations to LC, including adequate compensation for material and moral damages and measures of rehabilitation, to ensure that she enjoys the best possible quality of life. It further called on Peru to establish a mechanism for effective access to therapeutic abortion, under conditions that preserve women’s physical and mental health, and to take measures to ensure that the states’ obligations under the CEDAW Convention in regards to reproductive rights are known and observed in all health-care facilities. In particular, the Committee called for measures to train and encourage health providers to change their attitudes and behavior in relation to adolescent women seeking reproductive health services and to respond to specific health needs related to sexual violence. The Committee also called on the state to review its legislation with a view to decriminalizing abortion when pregnancy is a result of rape or sexual abuse.
The decision affirmed governments’ obligation to ensure that where abortion is legal, an appropriate legal framework is in place in order to enable women to access abortion services. Further, this was the first decision from a UN treaty monitoring body that has called on a state to explicitly consider reforming its abortion law, as the CEDAW Committee calls on Peru to make abortion legal in cases of rape and sexual assault. The decision further recognizes the important of mental health in implementation of Article 12 (the right to health).