secured a safe termination of pregnancy on the
grounds that the foetus was not viable. She states
that the refusal to provide a legal abortion service
left her with two options which posed an equal risk
to her health and safety: to seek clandestine (and
hence highly risky) abortion services, or to continue
a dangerous and traumatic pregnancy which put her
life at risk.
as recognized in article 24 of the Covenant and in
the Convention on the Rights of the Child.
3.7 The author claims a violation of article 24,
since she did not receive the special care she needed
from the health authorities, as an adolescent girl.
Neither her welfare nor her state of health were
objectives pursued by the authorities which refused
to carry out an abortion on her. The author points out
that the Committee laid down in its general comment
No. 17, relating to article 24, that the State should
also adopt economic, social and cultural measures to
safeguard this right. For example, every possible
economic and social measure should be taken to
reduce infant mortality and to prevent children from
being subjected to acts of violence or cruel or
inhuman treatment, among other possible violations.
3.4 The author claims a violation of article 7 of
the Covenant. The fact that she was obliged to
continue with the pregnancy amounts to cruel and
inhuman treatment, in her view, since she had to
endure the distress of seeing her daughter’s marked
deformities and knowing that her life expectancy
was short. She states that this was an awful
experience which added further pain and distress to
that which she had already borne during the period
when she was obliged to continue with the
pregnancy, since she was subjected to an “extended
funeral” for her daughter, and sank into a deep
depression after her death.
3.8 The author claims a violation of article 26,
arguing that the Peruvian authorities’ position that
hers was not a case of therapeutic abortion, which is
not punishable under the Criminal Code, left her in
an unprotected state incompatible with the assurance
of the protection of the law set out in article 26. The
guarantee of the equal protection of the law implies
that special protection will be given to certain
categories of situation in which specific treatment is
required. In the present case, as a result of a highly
restrictive interpretation of the criminal law, the
health authorities failed to protect the author and
neglected the special protection which her situation
required.
3.5 The author points out that the Committee has
stated that the prohibition in article 7 of the
Covenant relates not only to physical pain but also to
mental suffering, and that this protection is
particularly important in the case of minors. 1 She
points out that, after considering Peru’s report in
1996, the Committee expressed the view that
restrictive provisions on abortion subjected women
to inhumane treatment, in violation of article 7 of the
Covenant, and that in 2000, the Committee reminded
the State party that the criminalization of abortion
was incompatible with articles 3, 6 and 7 of the
Covenant.2
3.9 The author claims that the administration of
the health centre left her without protection as a
result of a restrictive interpretation of article 119 of
the Criminal Code. She adds that the text of the law
contains nothing to indicate that the exception
relating to therapeutic abortion should apply only in
cases of danger to physical health. But the hospital
authorities had drawn a distinction and divided up
the concept of health, and had thus violated the legal
principle that no distinction should be drawn where
there is none in the law. She points out that health is
“a state of complete physical, mental and social
well-being and not merely the absence of disease or
infirmity”, so that when the Peruvian Criminal Code
refers to health, it does so in the broad and allembracing sense, protecting both the physical and
the mental health of the mother.
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,
State party’s failure to cooperate under article 4 of
the Optional Protocol
4.
On 23 July 2003, 15 March 2004 and 25
October 2004, reminders were sent to the State party
inviting it to submit information to the Committee
concerning the admissibility and the merits of the
complaint. The Committee notes that no such
information has been received. It regrets that the
State party has not supplied any information
concerning the admissibility or the merits of the
1
Human Rights Committee, general comment No. 20,
paras. 2 and 5.
2
Concluding observations of the Human Rights
Committee: Peru, 15 November 2000
(CCPR/CO/70/PER), para. 20.
110
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