harm to the mother, since she has unnecessarily been
made to carry to term a pregnancy whose fatal
outcome was known in advance, and this has
substantially contributed to triggering the symptoms
of depression, with its severe impact on the
development of an adolescent and the patient’s
future mental health”.
authorizing therapeutic abortion, and its restrictive
interpretation thereof. This restrictive interpretation
was clear in the author’s case, in which a pregnancy
involving an anencephalic foetus was considered not
to endanger her life and health. The State should
have taken steps to ensure that an exception could be
made to the rule criminalizing abortion, so that, in
cases where the physical and mental health of the
mother was at risk, she could undergo an abortion in
safety.
2.6 On 13 January 2002, three weeks late with
respect to the anticipated date of birth, the author
gave birth to an anencephalic baby girl, who
survived for four days, during which the mother had
to breastfeed her. Following her daughter’s death,
the author fell into a state of deep depression. This
was diagnosed by the psychiatrist Marta B. Rondón.
The author also states that she suffered from an
inflammation of the vulva which required medical
treatment.
3.2 The author claims to have suffered
discrimination in breach of article 3 of the Covenant,
in the following forms:
(a)
In access to the health services, since
her different and special needs were ignored because
of her sex. In the view of the author, the fact that the
State lacked any means to prevent a violation of her
right to a legal abortion on therapeutic grounds,
which is applicable only to women, together with the
arbitrary conduct of the medical personnel, resulted
in a discriminatory practice that violated her rights—
a breach which was all the more serious since the
victim was a minor.
2.7 The author has submitted to the Committee a
statement made by Dr. Annibal Faúdes and Dr. Luis
Tavara, who are specialists from the association
called Center for Reproductive Rights, and who on
17 January 2003 studied the author’s clinical dossier
and stated that anencephaly is a condition which is
fatal to the foetus in all cases. Death immediately
follows birth in most cases. It also endangers the
mother’s life. In their opinion, in refusing to
terminate the pregnancy, the medical personnel took
a decision which was prejudicial to the author.
(b)
Discrimination in the exercise of her
rights, since although the author was entitled to a
therapeutic abortion, none was carried out because
of social attitudes and prejudices, thus preventing
her from enjoying her right to life, to health, to
privacy and to freedom from cruel, inhuman and
degrading treatment on an equal footing with men.
2.8 Regarding the exhaustion of domestic
remedies, the author claims that this requirement is
waived
when
judicial
remedies
available
domestically are ineffective in the case in question,
and she points out that the Committee has laid down
on several occasions that the author has no
obligation to exhaust a remedy which would prove
ineffective. She adds that in Peru there is no
administrative remedy which would enable a
pregnancy to be terminated on therapeutic grounds,
nor any judicial remedy functioning with the speed
and efficiency required to enable a woman to require
the authorities to guarantee her right to a lawful
abortion within the limited period, by virtue of the
special circumstances obtaining in such cases. She
also states that her financial circumstances and those
of her family prevented her from obtaining legal
advice.
(c)
Discrimination in access to the courts,
bearing in mind the prejudices of officials in the
health system and the judicial system where women
are concerned and the lack of appropriate legal
means of enforcing respect for the right to obtain a
legal abortion when the temporal and other
conditions laid down in the law are met.
3.3 The author claims a violation of article 6 of
the Covenant. She states that her experience had a
serious impact on her mental health from which she
has still not recovered. She points out that the
Committee has stated that the right to life cannot be
interpreted in a restrictive manner, but requires
States to take positive steps to protect it, including
the measures necessary to ensure that women do not
resort to clandestine abortions which endanger their
life and health, especially in the case of poor women.
She adds that the Committee has viewed lack of
access for women to reproductive health services,
including abortion, as a violation of women’s right
to life, and that this has been reiterated by other
committees such as the Committee on the
Elimination of Discrimination against Women and
the Committee on Economic, Social and Cultural
Rights. The author claims that in the present case,
the violation of the right to life lay in the fact that
Peru did not take steps to ensure that the author
2.9 The author states that the complaint is not
being considered under any other procedure of
international settlement.
The complaint
3.1 The author claims a violation of article 2 of
the Covenant, since the State party failed to comply
with its obligation to guarantee the exercise of a
right. The State should have taken steps to respond
to the systematic reluctance of the medical
community to comply with the legal provision
109
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