CEDAW/C/50/D/22/2009
therapeutic abortion. This is even more serious considering that she was a minor and a
victim of sexual abuse. The suicide attempt is a demonstration of the amount of mental
suffering she had experienced as a result of the abuse. The Committee therefore considers
that the facts as described constitute a violation of the rights of L.C. under article 12 of the
Convention. The Committee also considers that the facts reveal a violation of article 5 of
the Convention, as the decision to postpone the surgery due to the pregnancy was
influenced by the stereotype that protection of the foetus should prevail over the health of
the mother. Having reached this conclusion, the Committee does not consider it necessary
to rule on the possible violation of article 16, paragraph 1 (e), of the Convention.
8.16 With regard to the allegations concerning the possible violation of articles 2 (c)
and (f), the Committee recalls its jurisprudence, under which, although it recognizes that
the Convention does not expressly refer to the right to a remedy, it considers that this right
is implicit, in particular in article 2 (c), whereby States parties undertake to “establish legal
protection of the rights of women on an equal basis with men and to ensure through
competent national tribunals and other public institutions the effective protection of women
against any act of discrimination”. 12 Furthermore, under article 2 (f), and in conjunction
with article 3, the State party is obliged to take all appropriate measures, including
legislation, to modify or abolish existing laws which constitute discrimination against
women. The Committee observes that the hospital medical board delayed taking a decision
on the request for an abortion submitted by the author for 42 days and the hospital director
waited 20 days longer to respond to the request for reconsideration. Furthermore, as
indicated earlier, the remedy of amparo did not constitute an effective legal remedy to
protect the author’s right to appropriate medical care. The Committee also notes the
author’s allegations concerning the absence of laws and regulations in the State party
governing access to therapeutic abortion, resulting in a situation where each hospital
determines arbitrarily, inter alia, what requirements are necessary, the procedure to be
followed, the time frame for a decision and the importance to be placed on the views of the
mother. These allegations have not been disproved by the State party.
8.17 The Committee considers that, since the State party has legalized therapeutic
abortion, it must establish an appropriate legal framework that allows women to exercise
their right to it under conditions that guarantee the necessary legal security, both for those
who have recourse to abortion and for the health professionals who must perform it. It is
essential for this legal framework to include a mechanism for rapid decision-making, with a
view to limiting to the extent possible risks to the health of the pregnant mother, that her
opinion be taken into account, that the decision be well-founded and that there be a right to
appeal. 13 In the present case the Committee considers that L.C. could not benefit from a
procedure for requesting a therapeutic abortion that met these criteria. In the light of the
information contained in the file, the Committee believes, in particular, that the delay by the
hospital authorities in deciding on the request had detrimental effects on her physical and
mental health. Consequently, the Committee considers that an effective remedy was not
available to L.C. and that the facts described give rise to a violation of article 2 (c) and (f)
of the Convention.
8.18 The Committee notes that the failure of the State party to protect women’s
reproductive rights and establish legislation to recognize abortion on the grounds of sexual
abuse and rape are facts that contributed to L.C.’s situation. The Committee also notes that
the State party bears responsibility for the failure to recognize the risk of permanent
disability for L.C., coupled with her pregnancy, as a serious physical and mental health risk,
12
13
See communication No. 18/2008, Vertido v. Philippines, Views adopted on 16 July 2010, para. 8.3.
Along those lines, see the judgment of the European Court of Human Rights in the case Tysiac v.
Poland, paras. 116-118.
17
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