Cover: When Justice Fails: A Tragedy in Peru Triggers Human Rights Activism
For the second time in two years, the Center for Reproductive Rights, in collaboration with partner organizations, has turned to the Inter-American Commission on Human Rights (IACHR) for a fair and impartial resolution to reproductive rights violations that took place in Peru. In both cases, initial efforts to procure justice were either ignored or thwarted in Peru's local and national court systems.
Take the case of Mamerita Mestanza, an economically impoverished woman who lived with her common-law husband and seven children in a rural Peruvian community. Mestanza frequently used the local public health center for her family's health care needs. Beginning in 1996 (and particularly whenever she took her children in for vaccinations), the center's personnel would ask her to undergo a sterilization procedure. At first, Mestanza refused them. Then they turned up the pressure.
The health care personnel insisted on numerous occasions that Mestanza would "stay poor" if she continued to have more children and that she should "be cured" of getting pregnant. They asked her husband for permission to sterilize her, as though it was a decision for him to make. Finally, they threatened to denounce her to the police, falsely alleging that there was a Peruvian law against having more than five children, saying that Mestanza and her husband could have to pay a fine and go to jail if they continued to break the law. At that point Mestanza agreed to the procedure.
On March 26, 1998, Mestanza was transported, along with five other women, to the public hospital in Cajamarca, where they underwent tubal ligations. According to the testimony of one woman, they were required to sign a "consent form" that was not read or explained to them.
Following the procedure, Mestanza began experiencing vomiting and intense headaches. Still, she was discharged the same day. In the following days, she continued to experience serious complications, but every time her husband asked for help from the health center, the doctors insisted that Mestanza was simply experiencing the effects of the anesthesia and sent him away. Mestanza died on April 4, 1998, seven days after the procedure.
Shortly thereafter, her husband filed criminal charges against the chief of the health center. A year later, the Peruvian court dismissed the case. At that point, three Latin American human rights groups - CLADEM (the Latin American and Caribbean Committee for the Defense of Women's Rights), APRODEH (the Association for Human Rights) and DEMUS (the Office for the Defense of Women's Rights) - stepped in and filed a complaint with the IACHR. They requested an investigation, asserting that this was not an isolated case of medical malpractice but, rather, an example of a systematic practice of forced sterilization directed toward women living in areas of extreme poverty in Peru.
The discriminatory practices of Peru's National Program on Sexual and Reproductive Health have been documented in a 1999 fact-finding study conducted by CLADEM titled Nada Personal [Nothing Personal], and by a 1998 investigation by Peru's Ombudsman's office, conducted after numerous complaints were filed with that office. Those reports show that the government, beginning in 1996, encouraged doctors to perform a certain number of sterilization procedures each year. While recent investigations indicate that sterilization "quotas or goals" are no longer officially encouraged, the Ombudsman's office published a second report in April 2000 indicating that human rights violations related to forced sterilization practices continued to occur through 1999.
Initially, the Peruvian government responded to the petitioners' complaint by asking the IACHR to dismiss the case on grounds that the petitioners had not exhausted national-level remedies. At that point, the Center for Reproductive Rights and the Center for Justice and International Law (CEJIL) joined forces with the three Latin American groups. In April 2000, they issued a reply brief to the IACHR further articulating the violations to Mestanza's right to give informed consent to medical treatment and to her right to life, health, privacy and non-discrimination under the American Convention on Human Rights and other international human rights treaties. In October the IACHR confirmed that it will hear the Mestanza case.
By 1999, the IACHR had processed over 12,000 cases. However, only a handful of those cases have involved violations of women's rights, and none had specifically entailed reproductive rights violations.
But last year, in a precedent-setting decision, the Commission agreed to hear a reproductive rights case petitioned by the Center for Reproductive Rights, CLADEM and CEJIL involving Marina Machaca, a rural Peruvian woman who was raped by a doctor in a public health facility. By March 2000, the Commission had succeeded in facilitating a settlement in which the government agreed to make reparations to Machaca and to study ways to improve the treatment of sexual abuse victims within Peru's judicial and public health systems.
"Fortunately, women in Latin America can turn to the Commission when national courts fail to protect their reproductive rights," says the Center for Reproductive Rights' staff attorney Luisa Cabal, who represented Machaca before the IAHCR. "We are very pleased that the Commission has also agreed to take up the case involving Mamerita Mestanza and her family. It will be the first time that the Commission has dealt with rights violations involving sterilization and informed consent."
- Ann Farmer
See also Silence and Complicity for more information about the Marina Machaca case.
The following rights found in the major human rights treaties of the Inter-American system are among those that the Center for Reproductive Rights and its partners are asserting in the Mamerita case now before the Inter-American Commission on Human Rights.
"Every person has the right to have his life respected. This right shall be protected by law …. No one shall be arbitrarily deprived of his life." - Article 4, American Convention on Human Rights (ACHR)
"Every person has the right to have his physical, mental, and moral integrity respected." - Article 5, ACHR
"Everyone has the right to have his honor respected and his dignity recognized. No one may be the object of arbitrary or abusive interference with his private life, his family, his home …. Everyone has the right to the protection of the law against such interference or attacks." - Article 11, ACHR
"Everyone shall have the right to health, understood to mean the enjoyment of the highest level of physical, mental and social well-being .... the States Parties agree to recognize health as a public good and, particularly, to ... ensure ... satisfaction of the health needs of the highest risk groups and of those whose poverty makes them the most vulnerable." - Article 10, Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women
The Inter-American Commission of Human Rights Is Not a Court
It is an autonomous organ of the 35-member Organization of American States that was created for the protection and promotion of human rights. This permanent body meets several times a year to examine complaints or petitions regarding specific cases of human rights violations. For the select number of cases they choose to pursue, the seven-member panel attempts to facilitate settlements between the parties involved. When parties fail to reach a settlement, the IACHR may refer the case on to the Inter-American Court of Human Rights.
Global Mechanisms for Justice Seekers
- The European Court of Human Rights has addressed multiple gender and reproductive rights cases during its 46 years in operation.
- The Optional Protocol, which was recently created by the UN Committee on the Elimination of Discrimination Against Women (CEDAW), enters into effect in 2001 and will allow individuals to bring cases against countries that have ratified the Women's Convention (and the Optional Protocol) but are failing to respect or protect women's rights.
- The Optional Protocol to the International Covenant on Civil and Political Rights also offers a complaint mechanism to individuals whose rights have been violated.
