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A Commentary on LC v Peru: The CEDAW Committee's First Decision on Abortion

  • Charles G Ngwena
Abstract

In LC v Peru, the Committee on the Elimination of Discrimination against Women held that Peru was in breach of its obligations under the Convention on the Elimination of All Forms of Discrimination against Women when it denied a 13 year old girl emergency surgery as well as an abortion. This commentary discusses the human rights significance of LC v Peru, especially in relation to the advancement of abortion jurisprudence in the African region. It is submitted that LC v Peru makes an important contribution towards the development of abortion laws that are transparent and accountable to women, as well as responsive to equal protection under the law. The duty of states to operationalize LC v Peru in their domestic law is an innovative juridical resource for reforming abortion laws. This is particularly so in those regions, including the African region, where the continued criminalization of abortion serves as a significant incentive for unsafe, illegal abortion.

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1 Comm no 22/2009, CEDAW/C/50/D/22/2009 (2011).

2 GA/RES/54/4, 15 October 1999.

3 Viljoen, FInternational Human Rights Law in Africa (2007, Oxford University Press) at 127. The only African states that have not ratified CEDAW are Somalia, Sudan and South Sudan: “CEDAW: States Parties”, available at: <http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&lang=en> (last accessed 10 June 2013). While several states have ratified CEDAW with reservations, it is particularly significant that none of the reservations specifically relates to art 12 which guarantees the right to health and was a central issue in LC v Peru. Most reservations have been more immediately directed at immunizing Islamic family law that emanates from Sharia'h: id at 128.

4 AHG/Res. 240 (XXXI), adopted 11 July 2003, entered into force 25 November 2005.

5 Grimes, D et al. “Unsafe abortion: The preventable pandemic” (2006) 368 The Lancet 1908 at 1912–14.

6 Emphasis added.

7 LC v Peru, above at note 1 at para 2.9.

8 Art 1 of CEDAW defines what constitutes “discrimination against women”. The expansive nature of the definition captures both legal and factual discrimination: Cook, R and Howard, SAccommodating women's differences under the women's anti-discrimination convention” (2007) 56 Emory Law Journal 1039 at 1042–48.

9 Art 2(c) guarantees a right to an effective remedy by requiring the state to guarantee women the right to exercise their right to be protected against discrimination before national tribunals and institutions, while art 2(f) requires the state to take measures to modify any existing laws, regulations, customs and practices that discriminate against women.

10 Art 3 requires the state to take measures that ensure the full development and advancement of women.

11 Art 5, inter alia, requires the state to take measures to eradicate social and cultural practices that subordinate women and are based on notions of gender superiority and inferiority or stereotyping.

12 Art 12 requires the state to guarantee women the right to health care services, including services related to reproductive decision-making.

13 Art 16(e) requires the state to guarantee women the right to decide about the number and spacing of children and to have access to information, education and the means to realize this right.

14 Amparo is a procedure for protecting individuals against state violations of constitutional rights, or threats thereof, that has been institutionalized in most Latin American countries, including Peru: Brewer-Carías, AConstitutional Protection of Human Rights in Latin America: A Comparative Study of Amparo Proceedings (2008, Cambridge University Press).

15 LC v Peru, above at note 1 at para 8.4.

16 The evidence was that, in practice, the remedy of amparo under the Peruvian legal system took 62–102 days to come to resolution. Taking into account prior delay by the hospital in responding to LC's request for an abortion, there would have been no point in amparo proceedings as it was likely that LC would have been 28 weeks pregnant by the time that amparo proceedings would have been resolved: LC v Peru, above at note 1, paras 2.15 and 8.4.

17 Id, para 8.4.

18 Appln no 5410/03, ECHR 2007-IV (2007), paras 116–18.

19 LC v Peru, above note 1, para 8.17.

20 Id, para 8.17.

21 Id, para 8.13.

22 Id, para 8.16.

23 Id, para 8.14.

24 Id, para 8.15.

25 Id, paras 8.8 and 8.15.

26 Id, para 8.15.

27 CEDAW Committee “General Recommendation No 24: Art 12 of the Convention (Women and Health)”: A/54/38/REV.1 (1999).

28 Beijing Declaration and Platform for Action (Fourth World Conference on Women, 4–15 September 1995). Under para 106(k) of the Beijing Declaration, governments undertook to review domestic laws that criminalize abortion with a view to combating unsafe abortion and protecting and promoting reproductive health.

29 Tribe, LAbortion: The Clash of Absolutes (1990, WW Norton & Co).

30 McLean, SAbortion law: Is consensual reform possible?” (1990) 17 Journal of Law and Society 106.

31 Abortion Worldwide: A Decade of Uneven Progress (2009, Guttmacher Institute) at 2529; Berer, MNational laws and unsafe abortion: The parameters of change” (2004) 12 Reproductive Health Matters 1.

32 Fraser, NJustice Interruptus (1997, Routledge) at 1139.

33 Cook, R and Dickens, BHuman rights dynamics of abortion law reform” (2003) 25 Human Rights Quarterly 1 at 89.

34 Siegel, RReasoning from the body: A historical perspective on abortion regulations and questions of equal protection” (1992) 44 Stanford Law Review 261 at 277; Cook, R and Cusack, SGender Stereotyping: Transnational Perspectives (2010, Pennsylvania University Press) at 8587.

35 Siegel, id at 265; Cook and Howard “Accommodating women's differences” above at note 8 at 1048–51.

36 Unsafe Abortion. Global and Regional Estimates of the Incidence of Unsafe Abortion and Associated Mortality in 2008 (2011, WHO) at 27.

37 Id at 1 and 18–23.

38 Id at 1 and 27.

39 Id at 28.

40 Id at 6–8; Grimes et al “Unsafe abortion”, above at note 5 at 1912–13.

41 Grimes et al, id at 1914; Rees, H et al. “The epidemiology of incomplete abortion in South Africa” (1997) 87 South African Medical Journal 432.

42 Centre for Reproductive Rights “World's abortion laws” (2013), available at: <http://worldabortionlaws.com/map/> (last accessed 16 June 2013).

43 Ngwena, CInscribing abortion as a human right: Significance of the Protocol on the Rights of Women in Africa” (2010) 32 Human Rights Quarterly 810 at 830–34.

44 Ngwena, CAccess to legal abortion: Developments in Africa from a reproductive and sexual health rights perspective” (2004) 19 South African Public Law 328 at 329–34.

45 Above at note 4. Art 14(2)(c) of the African Women's Protocol permits abortion on the grounds of risk to the life or the physical and mental health of the pregnant woman, sexual assault, rape or incest, or risk to the life of the foetus. Thus far, the African Women's Protocol has been ratified by: Angola, Benin, Burkina Faso, Cape Verde, Comoros, Democratic Republic of Congo, Djibouti, Gambia, Ghana, Guinea-Bissau, Lesotho, Liberia, Libya, Malawi, Mali, Mauritania, Mozambique, Namibia, Nigeria, Rwanda, Senegal, Seychelles, South Africa, Tanzania, Togo, Uganda, Zambia and Zimbabwe: African Commission on Human and Peoples' Rights “Ratification table: Protocol to the African Charter on Human and Peoples' Rights”, available at: <http://www.achpr.org/instruments/women-protocol/ratification/> (last accessed 16 June 2013).

46 Jackson, E et al. “A strategic assessment of unsafe abortion in Malawi” (2011) 19 Reproductive Health Matters 133 at 135–37.

47 Id at 136.

48 Id at 134.

49 CEDAW “Concluding observations of the Committee on the Elimination of Discrimination against Women, Malawi”: CEDAW/C/MWI/CO/6 (2010), paras 36–37.

50 Examples are Ghana, Ethiopia and Zambia. They adopted the following guidelines respectively: “Prevention and Management of Unsafe Abortion: Comprehensive Care Services, Standards and Protocols” (2006, Republic of Ghana); “Technical and Procedural Guidelines for Safe Abortion Services in Ethiopia” (2006, Family Health Department); “Standards and Guidelines for Reducing Unsafe Abortion Morbidity and Mortality in Zambia” (2009, Ministry of Health).

51 Art 26(4) of the Constitution of Kenya of 2010 permits abortion on the grounds of: medical emergency; risk to the life or health of the pregnant woman; or where abortion is permitted by any other written law. Sec 15(5) of the Constitution of Swaziland of 2005 permits abortion on the grounds of: risk to the life of the pregnant woman; a serious risk to the physical or mental health of the pregnant woman; rape; a serious risk of a physical or mental foetal “defect” of a nature that the child to be born will be “irreparably and seriously handicapped”; and incest or unlawful sexual intercourse with a mentally disabled female.

52 CEDAW Committee “General Recommendation No 24”, above at note 27, paras 11 and 14.

53 Unsafe Abortion in Kenya (2008, Guttmacher Institute) at 1; Jackson et al “A strategic assessment”, above at note 46 at 136; Johnson, B et al. “Reducing unplanned pregnancy in Zimbabwe through postabortion contraception” (2002) 33 Studies in Family Planning 195.

54 Jackson et al, id at 136–37.

55 Above at note 18.

56 Appln no 255579/05 (2010), [2010] ECHR 2032.

57 Appln no 27617/04 (2011).

58 Cook, R et al. “Achieving transparency in implementing abortion laws” (2007) 99 International Journal of Gynecology and Obstetrics 157.

59 [2004] NICA 39. Fletcher, RAbortion needs or abortion rights? Claiming state accountability for women's reproductive welfare” (2005) 13 Feminist Legal Studies 123.

60 Comm no 1153/2003, Human Rights Committee: UN doc CCPR/C/85/D/1153/2003 (2005).

61 LC v Peru, above at note 1, paras 2.15 and 5.5.

62 The Human Rights Committee found violations of art 2 (right to an effective remedy), art 7 (right to be free from cruel, inhuman and degrading treatment), art 17 (right to privacy) and art 24 (right to special protection as a minor).

63 Tysiac, above at note 18, para 116.

64 Id, paras 117–18.

65 Id, para 118.

66 In this respect, it is also important to note a decision of the Human Rights Committee: LMR v Argentina, UN doc CCPR/C/101/D/1608/32007 (2011), where it was held that failure by the state to implement procedures to allow access to lawful abortion under Argentinean abortion law constituted violations under the International Covenant on Civil and Political Rights.

67 Peruvian Criminal Code, art 119.

68 Cook, R et al. “Legal abortion for mental health indications” (2006) 95 International Journal of Gynecology & Obstetrics 185; Ngwena, “Inscribing abortion as a human right”, above at note 43 at 849–50.

69 Preamble to the WHO Constitution (1948).

70 See generally Nussbaum, MWomen and Development: The Capabilities Approach (2000, Cambridge University Press).

71 On global consensus see: “Programme of action” (International Conference on Population and Development (ICPD), 5–13 September 1994), doc ST/ESA/SER.A/149, paras 8.25 and 12.17; and “A follow-up to ICPD in 1999 – ICPD +5: Key actions for the further implementation of the programme of action of the International Conference on Population and Development” (UN GAOR, 21st special session, 30 June – 2 July 1999), para 63. On regional consensus in the African region, see “Maputo plan of action for the operationalisation of the continental policy framework for sexual and reproductive health and rights 2007–2010” (2006, African Union), para 4.2.1a.

72 Cook and Cusack Gender Stereotyping, above at note 34 at 85–89; B Harrison Our Right to Choose: Towards a New Ethic of Abortion (1983, Beacon) at 6 and 9.

73 CEDAW Committee “General Recommendation No 24”, above at note 27, paras 11 and 12.

* Professor, Center for Human Rights, University of Pretoria. Email: . The author sincerely wishes to thank the anonymous reviewer(s) of this commentary for the constructive comments received.

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Journal of African Law
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