Abortion is never an easy topic to address, and the level of access to it (if at all) is usually something that each country largely regulates and controls on its own, without much outside intervention and consequences. Until now!
Ruling on a historic case brought before the United Nations Human Rights Committee by a young Peruvian woman, in 2005 the Committee declared that Peru had indeed treated her wrongly and ordered the country to compensate her. These reparations were now finally made – 11 years after the decision.
But first, some background information: among countries the varied approach to access to abortion, in spite of several binding international treaties, is to support the aforementioned access based on the rights to life, health and privacy, among others. Additionally, according to the Centre for Reproductive Rights, “Official UN human rights bodies and independent human rights experts have recognized on numerous occasions that governments violate these rights when they make abortion services inaccessible, repeatedly and consistently calling on governments to improve access to safe and legal abortion services and liberalize legislation criminalizing and prohibiting abortion.”
The Centre for Reproductive Rights has a great map on their website which displays the world’s countries and their abortion laws, divided into four groups: those that allow abortion only to save the woman’s life or prohibit it altogether, those that allow it to preserve health, those that allow it on socioeconomic grounds and, lastly, countries where abortion is allowed without restriction as to reason. Peru is among those states that allow abortions only “when a pregnancy endangers a woman’s life and when it is necessary to protect a woman’s health”.
Restricting access to legal abortions does not reduce the amount of procedures performed, though. This is the case not just in Peru, but around the world. Some women who are unable to obtain a legal abortion resort to risky and unsafe backstreet abortions, often jeopardising their lives. according to the World Health Organisation (WHO), botched abortions are a leading cause of maternal deaths worldwide, and in Latin America and the Caribbean account for 12% of those deaths (2008 figures). More alarmingly, 95% of abortions in Latin America in 2008 were unsafe. As so often, this affects mostly poor women who have almost no choice but to turn to those unsafe providers, whereas better off, privileged women are able to afford private clinics.
However, simply calling on governments to improve access to abortion services does not always lead to the desired result. This is why this fairly recent landmark case (and its developments) against Peru is of such high significance: for the first time, a United Nations Committee held a country accountable for not ensuring access to safe and legal abortion, and thus affirmed that it is a human right.
The story of the case in question started in 2001, and was about a young woman from Peru, (named ‘K.L.’) who was 17 years old at the time. At 14 weeks pregnant, the doctors in a Lima public hospital diagnosed her foetus with anencephaly. This birth defect is rare, but devastating, in that it results in the foetus missing major parts of the brain, skull and scalp. Consequently, most of the babies affected by anencephaly die during pregnancy already, or during childbirth. Those who do survive die soon after (median survival time after birth is 55 minutes). Not terminating the pregnancy poses risks to the mother, as these pregnancies tend to last longer than normal, appear to be more difficult and can cause excessive amniotic fluid that has to be removed by needle. Keeping the baby can result in witnessing the death of the malformed baby which is extremely hard on the mother, and can cause severe mental issues.
In K.L.’s case, her doctors had recommended to get an abortion, as they stated that continuing her pregnancy would put her life and health at risk. As mentioned above, the law in Peru does allow for an abortion in this case, yet the hospital refused termination of her pregnancy “on the grounds that the State had not provided clear regulations for providing the service”. She thus had to complete the pregnancy, give birth in January 2002 and even breast feed the baby before he died at 4 days old. The hospital’s decision had serious mental and physical effects on K.L., said the Office of the High Commissioner for Human Rights (OHCHR).
A couple of years later, in 2005, K.L. together with human rights lawyers filed a complaint with the Geneva-based United Nations Human Rights Committee, claiming that her human rights were violated when she had been denied access to this legal medical procedure. The Committee was in agreement with K.L. and recommended that Peru compensate her. It further stated that the country “had violated the victim’s rights under several articles of the International Covenant on Civil and Political Rights (ICCPR) including the right to an effective remedy, prohibition on torture and cruel, inhuman and degrading treatment, right to private life and right of minors to measures of protection”. One of the Committee members afterwards also highlighted the importance of compliance with the Committees various rulings, as well as with the state’s general human rights obligations under this specific Covenant.
Now, just a few months ago in late 2015, the government of Peru finally consented to complying and paying the required compensation.
This is obviously great news for women in Peru and elsewhere, and a substantial milestone towards achieving what every woman deserves: access to safe, legal abortions. Some progress has been noted as a result of the ruling, such as another similar case which was brought before the UN Committee on the Elimination of Discrimination against Women (L.C. vs. Peru) in 2009. L.C was a pregnant 13-year-old who had been raped, and was subsequently also denied a medically indicated abortion. This particular Committee found (again for the first time!) that the denial of the procedure constituted discrimination against women and reinforced gender stereotypes, and demanded a change in the country’s abortion laws.
In 2014 then Peru adopted national guidelines for safe abortion services, which are supposed to provide clarity for both women and health providers. It has been reported, however, that few women have been able to access these services and much still needs to be done. As said by the CEO of the Centre for Reproductive Rights in December 2015: “It’s time for Peru to clarify and implement its safe abortion guidelines and continue improving access to critical reproductive health services for all women and girls”.