Team No.

084

THE EUROPEAN HUMAN RIGHTS MOOT COURT COMPETITION 2012/2013 Sterilisation of pregnant HIV women in Orosia Victims of Sterilisation (Complainant) vs The Government of Orosia (Respondent)

Submission for the Respondent

TABLE OF CONTENTS 1. Table of Contents .......................................................................................................2 2. List of References....................................................................................................2-4 3. List of Abbreviations..................................................................................................4 4. Summary.................................................................................................................4-5 5. Legal Pleading ......................................................................................................5-20 1. Admissibility of Claim 1.1 Victim Status....5 1.2 Submitting an Application on Behalf of a Third Party6 1.3 Power of Attorney....7 2. Consent 2.1 Alleged Breach of Convention Articles.......7 2.2 Notice.......8 2.3 Fully Informed......9 2.4 Situational Basis for Consent.11 2.5 Oral Consent...12 2.6 Administrative Records..13 3. Art. 8: Margin of Appreciation 3.1 Deference...13 3.2 In Accordance with the Law..15 3.3 Necessary in a Democratic Society...15-17 3.4 Medically Necessary Intervention......17 3.5 Presence of Partner...17-19 4. Art. 12....19 5. Discrimination 5.1 No Group in Society Unduly Targeted.....19-20 5.2 Legitimacy of Indirect Differential Treatment...20

LIST OF REFERENCES I. Conventions and Treaties Convention for the Protection of Human Rights and Fundamental Freedoms, (entered into force 3 September, 1953) Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine (Council of Europe Treaty Series No. 164) II. International Covenant on Economic, Social and Cultural Rights UNESCO, Universal Declaration on Bioethics and Human Rights, 2005 Jurisprudence Belgian Linguistics case (No.1) (1967) Series A, No. 5 Boso v. Italy, No. 50490/99 Conka and Ors v. Belgium, No. 51564/99 Dudgeon v. The United Kingdom, No. 7527/76 Evans v. The United Kingdom, No. 6339/05 E.L.H .and P.B.H. v. The United Kingdom, Nos. 32094/96 and 32568/96 H v. Norway, No. 17004/90 Hristozov and others v. Bulgaria, No. 47039/11 I.G. and Others v. Slovakia, No. 15966/04 Ihlan v. Tukey, No. 22277/93 Klass v. Germany (1979-1980) 2 EHRR N.B. v. Slovakia, No. 29518/10 Post v. Netherlands, No. 21727/08 Pretty v The United Kingdom, No. 2346/02 R.R. v. Poland, No. 27617/04 Rees v. United Kingdom, No. 9532/81 Shelley v. The United Kingdom, No. 23800/06 V.C. v. Slovakia, No. 18968/07 X v. The United Kingdom, No. 8416/79 YF v. Turkey, No. 24209/94

III.

Secondary Sources FIGO; Female Contraceptive Sterilisation Guidelines, March 2011 FIGO Committee Report; Guidelines regarding Informed Consent, International Journal of Gynecology and Obstetrics (2008) 101, 219-220 Practial Guide on Admissibility Criteria, Research Division, European Court of Human Rights, 2011 Report of the International Bioethics Committee of UNESCO on Consent, 2008 Rules of Court, European Court of Human Rights, July 2009 UN National responses to HIV/AIDS: A Review of Progress, August 2003 WHO Taking Stock: HIV in children, April 2006

LIST OF ABBREVIATIONS Art. ECHR FIGO HIV ICESCR NGO NHS UNESCO WHO SUMMARY In order to address the HIV epidemic in Orosia, the Ministry of Health issued an Administrative Decree aimed at preventing the further spread of the infection through the promotion of the voluntary sterilisation of women, as part of a larger campaign of awareness and prevention. Upon discovering her pregnancy A.A. underwent a routine test for HIV at Mangonia General Hospital, provided as part of the campaign. She was diagnosed with the infection and was provided with antiretroviral treatment free of charge by the National Health Service of Orosia. As A.A. was unable to write and showed only an elementary ability to read, a member of the nursing staff, Priscilla Bantward, materially filled her
4

Art. European Convention on Human Rights International Federation of Gynecology and Obstetrics Human Immunodeficiency Virus International Convenant on Economic, Social and Cultural Rights Non Governmental Organisation National Health Service United Nations Educational, Scientific and Cultural Organisation World Health Organisation

asmission form. At this point A.A. was informed of the campaign and an appointment with the campaign coordinator was agreed upon. A.A. was visited by the coordinator, Dr. Sylvester, the following day. She was not in labour or under any medication or birth-giving related pain, A.A.s husband was not present for the consultation. The respondent submits that at this time A.A. was fully informed of all relevant facts of the sterilisation procedure. A.A. gave positive responses when asked whether she wanted to proceed with the operation. Under Orosian national law, verbal consent is all that is required to constitute valid consent. It is therefore submitted that consent was valid. The respondents submit that decisions relating to the protection of public health are accorded a margin of appreciation under Art. 8 of the Convention, and, that the Orosian national courts are best placed to decide on matters of social pressing need. Victims of Sterilisation, an Orosian NGO, brought A.A.s case to the domestic courts claiming that she had not been informed or consulted about the sterilisation procedure. In all domestic instances the Courts ruled that medical staff had obtained valid consent from the complainant.

PLEADINGS 1. Admissiblity of Claim 1.1 Victim Status In order for the complainant (Victims of Sterilisation) to have standing to submit an application to the Court, it must be able to point to alleged Convention violations of which it can itself be considered a victim.1 It is well established2 that where a nongovernmental organization (NGO) makes an application to the Court, it must be able to claim to be a victim of a violation itself, and not merely rely on the experience of another party as a means of shoring up its application. In this instance, the complainant relies wholly on the experience of another party (A.A.), and the Convention violations through which she was allegedly victimized to support its

1 2

Art. 34, ECHR Conka and Ors v. Belgium, No. 51564/99

application. Victims of sterilisation as an organisation cannot claim to be the victim of any Convention violation on the basis of alleged breaches of A.A.s Convention rights. 1.2 Submission on Behalf of a Third Party 1.2.1 Moreover, while the Court has accepted that in limited circumstances a third party can bring an application on behalf of an individual alleging violations of their Convention rights, in practice this has been limited to representation by a close relative, 3 and has had regard in particular to the poor state of an alleged victims health, or their vulnerability, 4 or has been prompted by their death. In relation to an applicant that has died, the Court has considered the following in determining the adequacy of the connection between the prospective complainant and the applicant, and it is submitted that these considerations may inform an assessment of the eligibility of the complainant as a respresentative of A.A. in the present case;5 i. The ties between the deceased applicant and those wishing to pursue the application in his or her stead; ii. iii. Whether the rights in issue can be regarded as transferable, and Whether the case under consideration involves an important question of general interest transcending the person and the interests of the applicant In the present circumstances it is submitted that A.A. cannot be deemed to have met these criteria. Though perhaps in some respects a vulnerable individual, A.A. is capable of raising a child, living alone, and has access to legal representation. It is submitted that these factors alone remove her from the class of individuals the Court intended to facilitate by means of these provisions. It is also contended that the Court must have regard to the lack of connection (such as that of a close relative), between the complainant and A.A. The complainant is connected to A.A. through its interest in advancing rights of which she has allegedly been denied, on a national level in Orosia. They are not connected in any personal sense, or by way of some nexus of joint harm caused by the alleged convention breaches, as might be the case for a close relative.

3 4 5

YF v. Turkey, No. 24209/94 Ihlan v. Tukey, No. 22277/93 I.G. and Others v. Slovakia, No. 15966/04

Moreover, the alleged violations relate to rights that, in line with previous case law of the Court, cannot be considered transferable.6 It should also be noted that on previous occasions the Court has considered matters of a similar nature7 to those raised by the present case, and it is submitted that this should render the present application inadmissable under the provisions of Art. 35(2)(b) of the Convention relating to applications that are substantially the same as a matter already dealt with by the Court8. 1.3 Power of Attorney 1.3.1 Notwithstanding the complainants eligibility as a representative of A.A., in the event that an applicant elects to have a third party represent them under Rule 36 of the Rules of Court9, a power of attorney or written authority to act must be signed by them and lodged with the Court by their representatives.10 This requirement is set out in Rule 45(3) of the Rules of Court11, and has previously been identified by the Court as a crucial affirmation on the part of an applicant that they wish a third party to file an application on their behalf, in the absence of which the application must be deemed inadmissable.12 Given that the complainant does not appear to have lodged this power of attorney with the Court, it is therefore submitted that the application should be deemed inadmissable on the grounds of being incompatible ratione personae, pursuant to Art. 35(3) and 35(4) of the Convention, and for want of an applicant within the meaning of Art. 34 of the Convention. 2. Consent 2.1 Alleged breach of Convention Art. 2.1.1 The respondent submits that A.A. gave valid consent to undergo a sterilisation procedure, and that as a result, rights protected under Art. 3, 8, 12, and 14 of the Convention
6 7

I.G. and Others v. Slovakia, No. 15966/04

V.C. v Slovakia, No. 18968/07, N.B. v Slovakia, No. 29518/10, I.G. and Others v. Slovakia, No. 15966/04
8 9

Art. 35(2)(b), ECHR Rules of Court, European Court of Human Rights, July 2009 Practial Guide on Admissibility Criteria, Research Division, European Court of Human Rights, 2011 Rules of Court, ECHR, July 2009 Post v Netherlands, No. 21727/08

10 11 12

have not been infringed. It is well established, both in the case law of the Court13 and by more general international standards,14 that the legitimacy of any invasive medical procedure is dependent on the provision of valid consent. An examination of the validity of consent must involve a consideration of whether or not the patient was provided with all necessary information before making a decision, and whether medical staff made every possible effort to establish the extent to which the patient understood every aspect of the decision. It is submitted that if consent was lawful at national level, and valid by reference to international standards, no Articles of the Convention have been breached. 2.2 Notice 2.2.1 At every stage of A.A.s interaction with the health services, she was made aware of the governments campaign. Her diagnosis as HIV-positive was as a result of an examination that was conducted specifically under the auspices of this campaign. She was admitted to hospital several days prior to her expected delivery date, indicating a calm and clear attitude on the part of A.A. and her husband as well as hospital staff, in which context she was again informed of the campaign and the risks inherent in giving birth when HIV-positive. Finally she agreed in advance to meet with Dr. Sylvester, who once again explained the nature of the campaign and provided her with the necessary information regarding sterilisation. It is clear from the case law of the Court regarding similar situations where consent to sterilisation was at issue, that advance and timely notice of any suggestion of sterilisation is a key issue that must be considered when evaluating the validity of consent.15 A.A. was aware of the campaign from an early point in her pregnancy, from which it must reasonably be inferred that the likelihood is that she was aware of the emphasis being placed by the government on sterilisation as a means of tackling HIV, and moreover that the government made every effort to ensure people were made aware. She was informed of the campaign and why it was being pursued on two separate occasions, days before giving birth, in a calm, unhurried environment, and had time after giving her consent to consider her options and consult with her husband if she chose to do so.

13

V.C. v Slovakia, No. 18968/07, N.B. v Slovakia, No. 29518/10, I.G. and Others v. Slovakia, No. 15966/04
14 15

UNESCO Universal Declaration on Bioethics and Human Rights, 2005 V.C. v Slovakia, No. 18968/07

2.3 Fully Informed 2.3.1 A.A. was visited in her room and received a personal consultation with Dr. Sylvester who explained the operation and at that stage noted her affirmative responses when consent to the procedure was sought. This was a pre-arranged consultation that occurred in the context of A.A. already having been familiar with the governments program throughout her pregnancy, and being informed of the risks of HIV transmission to her child upon her planned, early admission to the hospital. 2.3.2 Guidelines issued by the International Federation of Gynecology and Obstetrics (FIGO) concerning the proper use of sterilisation as a method of contraception, set out some criteria for establishing fully informed consent; All information must be provided in language, both spoken and written, that the women understand, and in an accessible format The physician performing sterilisation has the responsibility of ensuring that the patient has been properly counseled regarding the risks and benefits of the procedure and its alternatives.16 Dr. Sylvester advised A.A. in a one to one consultation, in her own language. Given A.A.s illiteracy, information regarding the procedure had to be conveyed verbally, and both Dr. Sylvester and the admitting nurse, Ms. Bantward, fulfilled this criterion. Dr. Sylvester explained all aspects of the procedure in understandable terms, asking several times if A.A. was happy to proceed with sterilisation, each time A.A. answering that she was. Notwithstanding the fact that it has been acknowledged that taking into account A.A.s lack of education, there is a possibility that she may not have understood the consequences of her decision, it is submitted that to the extent that it is ever possible to ascertain exactly what a patient understands, and where precisely their understanding may or may not stop, the medical staff treating A.A. took all reasonable measures to ensure she did in fact fully understand all facets of her decision. The FIGO guidelines place the onus on the physician performing the procedure to ascertain that the patient has been properly counseled regarding the risks and benefits of the procedure and its alternatives17 and it is submitted that this is precisely what Dr. Sylvester did. As well as being aware of the campaign throughout her pregnancy, A.A. was counseled on two separate occasions in
16 17

FIGO; Female Contraceptive Sterilisation Guidelines, March 2011, Ibid, p. 3

understandable language, and she provided positive answers when asked on several occasions whether she wanted to proceed with sterilisation. These answers were given in advance of entering into labour, in calm and controlled circumstances, after consulting with a doctor with whom she was comfortable and has acknowledged that she trusted. Given these circumstances, it is submitted that little else could reasonably be inferred on the part of Dr. Sylvester except that A.A. understood what was being asked of her and that she was happy to proceed with the procedure. 2.3.3 In a separate document issued by FIGO in 2008 18 that deals with informed consent to medical treatment more broadly, the aforementioned guidelines are set out in very similar terms. However in this instance they are followed by a recognition of the difficulty that can arise for physicians attempting to adhere to such best practice in environments where women have little education, or where unequal power relationships in a society mitigate against a womans self determination. 19 In the present case it must be recognized that a doctor attempting to ensure that a patient with a very poor standard of education is fully informed of every aspect of a procedure is faced with a real difficulty in assessing beyond any doubt where that patients understanding is lacking. Orosia is a traditional society where a womans primary role is childbearing and unequal power relationships exist between men and women, and it is likely that A.A. would not feel she was in a position to question either her husband, or to speak up and clarify issues with Dr. Sylvester. Other traditional societal power imbalances, for example between a poor, uneducated patient and her doctor, also clearly militate against any desire a patient may have to speak up and clarify aspects of a proposed procedure, or indeed to consult with her husband or demand that he ensures he is present for consultations. In the present instance it must be noted that A.A.s poor background and lack of education are factors that may discourage her from asserting herself with Dr. Sylvester or Nurse Bantward. 2.3.4 The 2008 UNESCO International Bioethics Committee Report, which is of particular relevance as Orosia is a member of UNESCO, further elucidates this power imbalance. They note that in most societies, there exists a phenomenon whereby
18

FIGO Committee Report; Guidelines regarding Informed Consent, International Journal of Gynecology and Obstetrics (2008) 101, 219-220
19

Ibid at p.1, point 3

10

people tend to leave decisions about which they lack technical expertise to those who know, 20 perhaps not paying, or feeling they are in a position to pay, due consideration to the importance of their own role in the decision making process, and indeed often being more comfortable doing so. The Committee dubs this The Authority of Knowledge, and recognizes that this problem tends to be even more acute in poor populations with low levels of education. It is contended that the Court must have regard to the position of medical professionals in such scenarios, and take into account the Gordian knot of obstacles they face when seeking fully informed consent. Dr. Sylvester and Nurse Bantward have the difficult job of implementing a campaign to tackle rising HIV rates in Orosia in the best way possible given the unforgiving social and cultural context. They face the myriad of problems articulated above in ensuring patients appreciate the significance of the decision making process, and it is submitted that given this difficult context, and given A.A.s repeated affirmations when questioned about her sterilisation, Dr. Sylvester and Nurse Bantward could not be reasonably expected to infer anything other than the fact that A.A. consented and understood the procedure. 2.4 Situational Basis for Consent 2.4.1 It is important to set the circumstances of the present case apart from previous case law of the Court relating to sterilisation where informed consent was not found to have been present. In V.C. v Slovakia 21 the Court held that the way in which consent was obtained by medical staff could not support a conclusion of informed consent, and as a result her sterilisation constituted a breach of her rights under Art. 3 of the Convention. It is informative to compare the circumstances under which A.A. provided consent to sterilisation to those of the V.C. case. In V.C. the patient was asked to give consent when in a state of advanced labour, two and a half hours after arriving at the hospital, when in a supine position.22 The Court articulated the view that asking the applicant to consent while in labour and shortly before performing a Caesarian section clearly did not permit her to take a decision of her own free will,

20 21 22

Report of the International Bioethics Committee of UNESCO on Consent, 2008 No. 18968/07 Ibid, p. 7

11

after consideration of all the relevant issues and, as she may have wished, after reflecting on the implications and discussing the matter with her partner.23 2.4.2 A number of points bear consideration in relation to the present case in light of this statement. First, the circumstances in which A.A. was consulted regarding her sterilisation were of a dramatically different nature to those of the V.C. case. She was seen personally by the head of the hospitals sterilisation campaign in a pre-appointed meeting, long before entering into labour or coming under any undue stress or pressure as a result of her pregnancy. Second, having been aware of the program prior to this meeting, A.A. gave her consent to the procedure at this point, however she subsequently had time to reflect on her decision, and consult with her partner if she so chose, again in a calm, unhurried environment prior to entering into labour. 2.4.3 Though not considering the issue directly in relation to the facts before it in the V.C. case, the Court also considered the requirements that must be met in order to protect patients rights under Art. 8 of the Convention, stating that what had to be considered was whether an individual has been involved in the decision making process, seen as a whole, to a degree sufficient to ensure the requisite protection of his or her interests.24 In this instance A.A. was the architect of her own decision in relation to sterilisation, had the benefit of all reasonable efforts on the part of the medical staff to ensure she was completely informed of the nature and consequences of the decision she made, and had time to personally reflect on that decision and consult with her partner if she chose to do so. 2.5 Oral Consent 2.5.1 It is submitted that having taken into account A.A.s low level of education and her effective illiteracy, oral consent was a valid basis for such a procedure. Under Orosian law problems surrounding recording consent given by illiterate patients is recognized, and provision is made for verbal acceptance of medical procedures. Established international guidelines also acknowledge the difficulty faced by health workers in seeking and documenting consent from individuals with low levels of education, and who are illiterate. The 2008 report of the International Bioethics
23 24

Ibid at p. 28 Ibid, p. 34

12

Committee of UNESCO on consent notes that for patients who are illiterate, marking the bottom of a page that has been explained to them verbally may not necessarily indicate an unimpeachable consent to the agreement set out in the document.25 In such circumstances, the report concludes, even if in principle it is necessary to strive towards the possibility of obtaining written consent, depending on the context, it would be appropriate to explore other ways of demonstrating that consent has been obtained.26 2.5.2 In the present instance it is submitted that had A.A. marked the bottom of a consent form after her verbal consultation with Dr. Sylvester, the issues before the Court as presented by both parties would be substantially the same, with little in the way of reassurance regarding the extent to which A.A. did or did not understand the implications of her decision being offered by what would have to be considered little more than a pro forma effort. 2.6 Administrative Records 2.6.1 Moreover it should also be noted that it is common cause that some form of affirmative response was proffered by A.A. in the course of her consultation regarding sterilisation with Dr. Sylvester. What is in dispute is the extent to which A.A. understood the implications of such a statement, and the responsibility that can fairly and realistically be placed upon medical professionals in such situations. In this context, the administrative failure to record consent in the hospital records should not have any bearing on the issues that are contested between the parties. 3. Art. 8: The Margin of Appreciation 3.1 Deference 3.1.1 It has already been submitted that the Complainant did give full and informed consent to the sterilisation procedure carried out in Mangonia Public Hospital on grounds laid out in Section 2 of this memorial. It is therefore argued that the rights under Art. 8 are not engaged. In the case that the Court does not find this persuasive, it is argued in the alternative that any interference with the Complainants rights, due

25 26

Report of the International Bioethics Committee of UNESCO, on Consent, 2008 Ibid, p. 32

13

to the national procedural mechanisms for obtaining consent, under Art. 8 were wholly justified under paragraph 2 of Art. 8. The limitability of Convention freedoms has been endorsed by the Court as something which is common in liberal democracies for the purpose of striking a balance between individual rights and collective goals. Some compromise between the requirements for defending democratic society and individual rights is inherent in the system of the Conventionfundamental freedomsare best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of Human Rights27 3.1.2 As the right to health is a fundamental right, as recognised by Art. 8-2 of the Convention, it may be necessary to limit other rights to secure it. The protection of public health is something necessary for the public at large for the enjoyment of other rights, and in the present case the procedural mechanisms for obtaining consent chosen by the Orosian government were justified. When dealing with illiterate patients, doctors must have some method by which to obtain consent and it is within the margin of appreciation of States to determine how this is best achieved. While A.A. may claim that her consent was unintentional, in the eyes of the national law all of the requirements have been fulfilled. 3.1.3 The Courts have acknowledged that matters of health-care and policy are in principle within the margin of appreciation of the domestic authorities, who are best placed to assess priorities, use of resources and social needs28. The campaign chosen by the Government was one which was necessary to respond to a pressing social need for the protection of health and the rights and freedoms of others. In a country faced with an HIV epidemic, where illiteracy is not uncommon, a rule which allows verbal consent to constitute valid consent cannot be held to be unreasonable where steps have been taken to inform the patient of all essential material facts. It is therefore submitted that deference be shown to the judgement of the Orosian courts given that they are best placed to decide what procedural rules and safeguards ought to be in place given the present social context.

27 28

Klass v Germany (1979-1980) 2 EHRR at para 214

Shelley v The United Kingdom, No. 23800/06; Hristozov and others v Bulgaria, No. 47039/11 at para 119

14

3.1.4 The fact that A.A.s husband was not present to witness the signature ought not have any bearing on the validity of the consent. The strong cultural beliefs that the most important role of a woman is to be fertile and to bear offspring is indicative of the conservative values in Orosian society. In these societies women often fall into economically dependent positions and can lack influence over decisions concerning themselves and their families. In the present case it is argued that while the absence of A.A.s husband as a witness was against the letter of the law, his presence would in actual fact have been to the detriment of the patient. His presence would undoubtedly have exerted pressure on A.A. to make a decision that may not necessarily reflect her own personal wishes. 3.2 In Accordance with the Law 3.2.1 It is submitted that the limitation was justified as it was prescribed by law. The sterilisation was carried out in accordance with at the Administrative Decree issued by the Ministry of Health under the auspices of the Orosian Government, and at all stages of consultation and procedure the respondents acted in accordance with its policies. In addition to this, the manner in which the Hospital received consent from the Complainant was one which was prescribed by the law of the country. It is not uncommon that when dealing with illiterate patients, who by reason of their illiteracy may feel a certain amount of social exclusion, requiring written informed consent can act as a barrier to access to treatment. It will also be viewed by the patient as something associated with officialdom and will be treated with scepticism. Due to the high rates of illiteracy in Orosia, health care professionals may often have to explain procedures verbally to patients. The dialogue should therefore follow that consent also be obtained verbally so as to avoid the fostering of the above mentioned scepticism. The respondents therefore submit that they were justified in sterilising A.A. as they followed procedures according to the laws of the country and with the appreciation of the cultural mores and understandings of the patient. 3.3 Necessary in a Democratic Society 3.3.1 Given that the HIV epidemic is not a problem that other Member States have had to deal with on the same scale, and that so far targets to prevent and reduce HIV

15

prevalence have been set, without prescribing a universal way to meet them,29 one can intelligibly gauge that the law in this area is in a transitional stage. In the early years of the epidemic, the implementation of restrictive immigration policies for persons infected with HIV were used in response to a perceived public health threat30, and in some Countries HIV remains a statutory basis for exclusion from permanent residence31. In Rees v UK32 this Court, in assessing laws surrounding the recognition for legal purposes of a post-operative transsexuals new identity, stated that where there is little common ground between the contracting states in an area, and, that generally speaking the law is in a transitional stage, this is an area where the Contracting Parties enjoy a wide margin of appreciation33. Faced with a situation with the potential to threaten the quality of life and mortality of current and future generations, Orosia has a wide margin of appreciation in making an assessment of the existence of a pressing social need.34 3.3.2 The campaign adopted by the Orosian government was one which arose in a response to combat the increasing number of people infected with HIV in the country and to raise awareness. It is submitted that the policy of sterilisation was one that was justified and necessary under Art. 8.2 in the circumstances of the case and that it was within the margin of appreciation of the State to decide to do this. 35 Further to this, there was no other alternative which would have advanced the goal of this campaign in an equivalent manner. 3.3.3 Owing to the strong cultural and religious beliefs placing primacy on child bearing and fertility in certain Orosian communities, a campaign promoting the use of contraceptives would not have been as effective. Although it could legitimately be held that such a campaign would have the benefit of reaching a larger audience, the Orosian government was best placed to conclude that one-to-one consultations with
29

The Declaration of Commitment on HIV/AIDS adopted by the United Nations Special session on HIV/AIDS in 2001
30

Section 212, (8 U.S.C. 1182) of the United States Immigration and Nationality Act (Inadmissible Aliens) 1996
31 32 33 34 35

UN National responses to HIV/AIDS: A Review of Progress August 2003 Rees v United Kingdom , no. 9532/81 Ibid, at para 37

Dudgeon v The United Kingdom, no. 7527/76 at para 52 In Shelley v The United Kingdom and Hristozov and others v Bulgaria at para 119

16

pregnant women where doctors could communicate with illiterate or poorly educated citizens, had better potential to be effective. It is also argued that due to the strong cultural tradition of motherhood in Orosian communities, it is likely that efforts to encourage the use of other contraceptives would have been resisted strongly and worsened the growing problem of HIV. Programmes for the distribution of contraceptives that target men may be partly effective, but it would still be left to one sex to make this possibly life-ordeath decision. 3.4 Medically Necessary Intervention 3.4.1 Art. 8 of the Convention on Human Rights and Biomedicine 36 states that; When because of an emergency situation the appropriate consent cannot be obtained, any medically necessary intervention may be carried out immediately for the benefit of the health of the individual concerned.

Although in V.C v Slovakia, the Court did not consider sterilisation to be a life-saving surgery37, it is argued that the present case, where there was a genuine widespread threat to public health in Orosia, there was such an emergency situation within the meaning of the Convention. There existed an immediate threat to the quality of life of new born babies who would contract the virus from HIV positive mothers. Given that in certain circumstances the foetus may enjoy a certain protection for the right to life38, and that between 25% and 30% of children who acquire HIV from their mothers die before their first birthday39, the respondent submits that a policy for the sterilisation of HIV positive women is justified as it meets the exigencies of the situation and was the best course of action given the circumstances of the case. As there is currently no cure for HIV, control measures are necessary and compelling in a Country where preventive education has been paralysed by conservative sexual views. The suffering of infants and the social costs incurred in caring for HIV-infected infants necessitate a more controlled approach, such as sterilisation, to prevent transmission. 3.5 Presence of Partner

36

Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine (Council of Europe Treaty Series No. 164)
37 38 39

V.C v Slovakia, No. 18968/07 at para 110 H v Norway, No. 17004/90 WHO; Taking Stock: HIV in children (2006)

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3.5.1 An integral part of a persons bodily integrity is the right to personal autonomy and self-determination. This includes the right to make medical choices in respect of ones own body. The Court has held in a number of cases that the notion of personal autonomy is an important principle underlying the interpretation of Convention guarantees40. As regards Art. 8, the term private life was held in the case R.R. v Poland to be a broad concept, encompassing, inter alia, the right to personal autonomy and personal development41 so that a consultation, in this case, made in the absence of a third party cannot interfere with rights under Art. 8. In Boso v Italy42 when addressing the right of a father where his wife wishes to have an abortion, the Court followed the precedent set down in X v the United Kingdom43 in saying that; the potential fathers right to respect for his private and family life cannot be interpreted so widely as to embrace the right to be consulted or to apply to a court about an abortion which his wife intends to have performed on her. They followed by stating that when the mother intends to have an abortion [any interpretation under Art. 8] should above all take into account her rights, as she is the person primarily concerned by the pregnancy. Although these cases dealt with situations involving decisions whether or not to continue a pregnancy, it is submitted that the same principles may apply where a woman takes a decision not to have future pregnancies owing to a possible health risk to her or future children. This right to the highest possible standard of physical health and to take decisions in relation to ones own person is one which has been expounded in numerous International Human Rights Conventions.44 While it is acknowledged that this court is not bound by these instruments, it is submitted that taking a teleological interpretation of the preamble to the Convention, where contracting States state that their aim is to maintain and further realise human rights and fundamental freedoms based on a common world understanding, these internationally affirmed standards are of more than persuasive value. 3.5.2 The Court has also held that this right to private life including aspects of an individuals physical and social identity and the right to personal autonomy
40 41 42 43 44

Pretty v The United Kingdom, No. 2346/02 at para 61 R.R. v Poland, No. 27617/04 at para 180. Boso v Italy, No. 50490/99, at para 2 X v The United Kingdom, No. 8416/79 General comment 14 to the ICESCR

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incorporates the right to respect for both the decisions to become and not to become a parent.45 Due to the fact that this meeting had been arranged between A.A. and Nurse Bantward at a previous instance, and that her husband had knowledge of it, the hospital in this instance was not obliged to await his arrival. Therefore while A.A.s husband was not present for the consultation, it is submitted that the she was in a sufficiently calm state of mind to process the information herself and to relay the information to her husband at a later time. It is further submitted that given that A.A. had prior notice of the consultation it should be noted that she had a right and reasonable opportunity to postpone the meeting if she or her husband so wished. A.A. took an autonomous decision on how to proceed in her own interests. Based on the above arguments it is submitted that there has been no breach of Art. 8. 4. Article 12 4.1.1 On behalf of the respondents it is argued that rights under Art. 12 to marry and found a family are not engaged in the present case. The case law of the Court is definitive in that an interference with family life which is justified under paragraph 2 of Art. 8 cannot at the same time constitute a violation of Art. 12 (Boso v Italy46 and E.L.H .and P.B.H. v The United Kingdom47). Since it has been proven that rights under Art. 8 are not engaged because of the informed and voluntary consent of A.A., and alternatively that they were justified under paragraph 2, we urge the Court to find that an application under Art. 12 is inadmissible. 5. Discrimination 5.1 No Group in Society Unduly Targeted 5.1.1 This Court has ruled that the principle of equality of treatment enshrined in Art. 14 is not violated if the differential treatment has an objective and reasonable justification. 48 The Administrative decree introduced by the Orosian government mandates that any citizen may request to undergo HIV testing in a clinic. In this regard the policy is not focussed on any particular gender, ethnic group or socio45 46 47 48

Evans v The United Kingdom, no. 6339/05 at para 71 Boso v Italy, no. 50490/99 E.L.H .and P.B.H. v The United Kingdom, Nos. 32094/96 and 32568/96 Belgian Linguistics case (No.1) (1967) Series A, No. 5

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economic group and the process is voluntary. The fact that the NHS, which bears the financial costs of sanctioned medical treatment, provides antiretroviral therapy and sterilisation procedures for free means that the campaign has only been advertised and implemented through the public health system. As a result of this, patients attending public hospitals may then receive differential treatment to those in private systems. However, it is submitted that as the Administrative Decree does not have the power to require private hospitals to offer operations or therapies free of charge, the differential treatment patients may receive is reasonably justified. 5.2 Legitimacy of Indirect Differential Treatment 5.2.1 It is argued that this policy does not bring about differential treatment between men and women. First, it must be borne in mind that the promotion of sterilisation of HIV-positive women is only part of a larger campaign of awareness and prevention. Secondly, it is argued that if the campaign in the public hospitals were to target men in the same way as they do women, it is doubtful that it would appear any less discriminatory. This is because of the undisputable fact that pregnant women are far more likely to seek medical attention and come into contact with the health care system than non-pregnant women or men. Therefore while the policy may well place an undue burden on pregnant women, it is submitted that this is an unfortunate but legitimate burden. Further to this argument, as global infection rates in young women (15-24) are twice as high as men of the same age,49 one can deduce that any policy which indirectly targets pregnant women is legitimate due to the fact that were are more permutations of relationships through which pregnant women may pass on the infection. Given the relatively low GDP of Orosia, and the discretion of the Orosian government to pass Administrative Decrees relating to socio-economic issues, decisions have been taken to focus efforts to tackle the epidemic into preventing transmission to new-borns, reducing the amount of pregnancy related deaths among women and preventing future hazardous pregnancies. 6. Conclusion On the basis of the aforementioned arguments it is submitted that the complainants application be dismissed.
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www.unaids.org/en/media/unaids/contentassets/documents/pressreleases/2012

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