Many thanks to Simone
Cusack, an LL.M. student at the Faculty of Law, University of Toronto, for
writing the following summary
Ms. Andrea Szijjarto v Hungary,
CEDAW, Communication No. 4/2004, UN Doc. CEDAW/C/36/D/4/2004 (29 August
2006)
Summary On 29 August 2006, the Committee on the Elimination
of Discrimination against Women (Committee)issued a view finding
Hungary in violation of Articles 10(h), 12 and 16(1)(e) of the Convention on
the Elimination of All Forms of Discrimination against Women
(Convention), for its failure to protect the reproductive rights of
Ms. Andrea Szijjarto (A.S.).
Factual
background The facts leading to the communication arose when A.S., a
Hungarian woman of Roma origin, underwent surgery at a public hospital for a
caesarean section in connection with a miscarriage. Prior to the surgery,
but whilst on the operating table, A.S. was asked to sign a form consenting to
the procedure, as well as a “barely legible” hand-written note requesting
sterilization. The Latin term for sterilization, a term unknown to A.S.,
was allegedly used in the hand-written note. Medical records also showed
that, at the time consent was sought from the author, she was reportedly in
“poor health.” According to A.S., it was not until after the sterilization
procedure was performed that she learned the meaning of the word
“sterilization.” A.S. subsequently brought a complaint before the Committee
alleging a violation of Articles 10(h), 12 and 16(1)(e) of the Convention.
Ms. A.S. submitted that the sterilization had been performed without her full
and informed consent and that her inability to give informed consent constituted
a violation of her rights to appropriate health-care services and to decide
freely and responsibly on the number and spacing of her children. In
making her complaint, Ms. A.S. sought a view from the Committee that Hungary had
violated her rights under the Convention and requested that the Committee
provide her with just compensation.
Admissibility
In its
submissions on admissibility, Hungary submitted that: A.S. had not exhausted
domestic remedies, and that the Committee was not competent ratione temporis
to consider the communication. In respect of the timing of the
communication, Hungary argued that the reported violation took place prior to
the CEDAW Protocol’s entry into force for the State Party and that the effects
of the violation did not continue after this time. In this connection, it
argued that the author had not sustained a permanent disability as the effects
of the sterilization were reversible. With respect to the communication’s
merits, Hungary submitted that A.S. had been provided with all of the necessary
information prior to her surgery and that, in any event, given that the author
already had three children, she should have been familiar with that
information.
In declaring
the communication admissible, the Committee dismissed the suggestion that the
effects of the violations for A.S. did not continue past the entry into force
date of the Optional Protocol for Hungary. It noted [at 10.4] that “[i]t
ha[d] been put forward convincingly that sterilization should be viewed as
permanent, in particular: sterilization is intended to be irreversible; the
success rate of surgery to reverse sterilization is low and depends on many
factors…; there are risks associated with reversal surgery; and an increased
likelihood of ectopic pregnancy following such surgery.”
Merits
After
considering the information before it, the Committee concluded that the failure
of the Hungarian Government to protect A.S.’s reproductive health amounted to a
violation of A.S.’s rights under Articles 10(h), 12, and 16(1)(e) of the
Convention. Commenting on Hungary’s violations of Articles 10(h) and 12,
the Committee concluded that Hungary, through the state hospital authorities,
had failed to provide A.S. with appropriate information and advice on family
planning, and ensure that A.S. had given her fully informed consent to the
operation. Recalling its General Recommendation No. 19, the Committee also
noted [at 11.4] that “[C]ompulsory 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.” It, therefore, concluded that
Hungary’s failure to protect A.S.’s reproductive rights also amounted to a
violation of Article 16(1)(e).
Recommendations The Committee subsequently recommended
that Hungary provide A.S. with appropriate compensation. More generally,
the Committee recommended that Hungary: “take further 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…are known and adhered to
by” all relevant health professionals; review domestic law on informed consent
in sterilization cases and ensure conformity with international standards; and
monitor health centers performing sterilizations so as to ensure fully informed
consent is being given, with sanctions in place for breaches.
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