Submitted by Zizipho Zondani on
PERU
Title:
K.L. v Peru
Court:
UN Human Rights Committee
Citation:
Communication No. 1153/2003
Date:
24 October 2005
CRC Provisions:
General reference (no specific article cited)
Other International Provisions:
International Covenant on Civil and Political Rights, Article 2 (State obligation), Article 3 (Equal enjoyment of rights between men and women), Article 6 (The right to life), Article 7 (Prohibition of torture and cruel, inhuman or degrading treatment), Article 17 (Right to a private life), Article 24 (Protection of minor’s rights) and Article 26 (Equality before the law)
Case Summary:
Background:
K.L. was 17 years old and pregnant when informed she was carrying an anencephalic foetus. Her obstetrician explained that with the foetal abnormality the baby would die shortly after birth. Due to the risk to K.L.’s health, he advised her to terminate the pregnancy. K.L. and her mother requested an abortion, but the director of the public hospital refused to authorise it on the ground that under Criminal Code Art. 120 abortions are unlawful where at birth the child would likely suffer physical or mental defects. However, under Art. 119 therapeutic abortion was permitted where the life of the pregnant woman was at risk or the pregnancy risked permanent damage to her health (commonly known as ‘therapeutic abortion’). Despite the advice of her obstetrician and assessments by a social worker and psychiatrist on the mental harm continuing the pregnancy would cause, K.L. was refused a lawful therapeutic abortion with no adequate remedy to challenge the decision.
After giving birth and seeing the deformities of her baby girl, who died four days later as a result of this, K.L. was diagnosed with serious depression. With the help of several non-governmental organisations, K.L. submitted a complaint to the UN Human Rights Committee alleging the refusal to authorise a therapeutic abortion violated her right to life, right to a private life, protection against cruel and inhuman treatment, the special protection of her rights as a minor and non-discrimination under the International Covenant on Civil and Political Rights (“ICCPR”).
Issue and resolution:
Abortion. Whether a refusal to authorise a therapeutic abortion amounted to a violation of K.L’s rights under the ICCPR. The Committee found there had been violation of provisions under the ICCPR including the prohibition of cruel and inhuman or degrading treatment, the right to a private life, the special protection enjoyed by minors and access to adequate legal remedy.
Court reasoning:
The Committee reviewed the facts of the case and concluded that K.L. should have had access to a therapeutic abortion as her obstetrician established the pregnancy posed a risk to her life. The hospital director found the abortion to be unlawful under Article 120 of the Criminal Code which prohibits abortions where at birth it was likely the child would suffer serious physical or mental defects. However K.L. could have been granted a therapeutic abortion permitted within the law under Criminal Code Art 119 where the pregnancy poses a risk to the life of the pregnant woman or would cause serious and permanent damage to her health. The Committee found the hospital director’s refusal to authorise a lawful abortion violated her rights under the ICCPR. By denying her an abortion and failing to provide an adequate legal remedy for her to challenge the decision the State arbitrarily interfered in her private life.
Giving birth to a baby girl with marked deformities who died four days later was noted by a psychiatrist as being the cause of K.L.’s depression. The mental harm she suffered could have been foreseen as the hospital obstetrician had diagnosed the anencephalic foetus and advised for an abortion. The Committee explained that the prohibition of torture, inhuman and degrading treatment under Article 7 ICCPR is not limited to physical harm but also protects against mental suffering. The experience of K.L is of particular concern because of her young age. Minors must be afforded special protection of their rights under Art. 24 ICCPR. However, in the present case, the State failed to provide K.L. with the medical and psychological care she specifically needed as an adolescent girl.
The Committee did not consider the alleged violation of K.L.’s right to life because a violation of Article 7 had been found, though a dissenting opinion by Hipólito Solari-Yrigoyen stated that Peru had also violated the girl’s right to life by placing her life in great danger.
The Committee recommended the State provides K.L. with an effective remedy including compensation and to take steps to prevent similar violations from occurring in the future.
Excerpts citing CRC and other relevant human rights instruments:
3.6 The author claims a violation of article 17, arguing that this article protects women from interference in decisions which affect their bodies and their lives, and offers them the opportunity to exercise their right to make independent decisions on their reproductive lives. The author points out that the State party interfered arbitrarily in her private life, taking on her behalf a decision relating to her life and reproductive health which obliged her to carry a pregnancy to term, and thereby breaching her right to privacy. She adds that the service was available, and that if it had not been for the interference of State officials in her decision, which enjoyed the protection of the law, she would have been able to terminate the pregnancy. She reminds the Committee that children and young people enjoy
special protection by virtue of their status as minors, as recognized in article 24 of the Covenant and in the Convention on the Rights of the Child.
Notes:
K.L. received reparations from Peru in 2015.
Read a summary of the related case L.C. v Peru.
The State adopted national guidelines for providing safe abortions in 2014, this was welcomed by the Committee on the Elimination of Discrimination against Women in its 2014 Peru concluding observations however the Committee raised concerns on conditions requiring the presence and signature of a witness and approval by a board which may act as a barrier to safe abortion.
CRIN Comments:
CRIN believes this decision is consistent with the CRC. Article 24 of the Convention guarantees children enjoyment of the highest attainable standard of health. The Committee on the Rights of the Child has noted that “States should ensure that health systems and services are able to meet the specific sexual and reproductive health needs of adolescents, including family planning and safe abortion services.” (Para. 56 Committee on the Rights of the Child General Comment No.15 on health)
Link to Full Judgment:
http://www.reproductiverights.org/document/kl-v-peru-final-decision
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.
