01.24.17

Informed Consent, Gendered Power Relations and the IACHR: the I.V. vs. Bolivia Case

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This post was written by Andrés Constantin. Andrés is an Adjunct Professor of law at Universidad Torcuato Di Tella. Any questions or comments can be directed to aconstantin@utdt.edu.

The right to health requires respect for the will of the individual person with respect to his or her own well-being. To that effect, informed consent should be regarded as an essential aspect of the right to health. In its recent judgment in the I.V. vs. Bolivia case, the Inter-American Court of Human Rights concluded that medical interventions without the patient’s consent violated the rights to personal integrity, to personal freedom, to dignity and to private life.

The facts of the case concerned the sterilization to which Mrs. I.V. was subjected in a public hospital in Bolivia on July 1, 2000. The surgery was performed without the informed consent of I.V. and resulted in her permanent and forced sterilization.

Recognizing the importance of personal autonomy as a constitutive element of the personality, the Court held that “the informed consent of the patient is a sine qua non condition for the medical intervention, which is based on the respect for the personal autonomy and freedom to choose her life plans without interference.” In other words, the Court acknowledged that informed consent ensures the effectiveness of the rule that recognizes autonomy as an inalienable element of the dignity of the person.

Furthermore, it is remarkable that the Court made a reference to what Paul Farmer describes as “pathologies of power”; in particular, gendered power relations and its impact on health. In that sense, the Court emphasized that the woman’s freedom to decide and to take a responsible decision about her body and her reproductive health, especially in cases of sterilization, may be undermined by discrimination in access to health; by the differences in power relations, with respect to the husband, the family, the community and the medical personnel; by the existence of additional vulnerability factors; and due to the existence of gender stereotypes in health care services. As such, the Court noted that “factors such as race, disability, socioeconomic status, cannot be a basis for limiting the patient’s free choice… or obviate obtaining her consent.”

The discussion on the relevance of informed consent in health services and medical care contexts is a much-debated issue in Latin America. Moreover, the Court’s explicit recognition women’s freedom to make decisions concerning reproductive health without being subjected to discrimination, stigmatization, stereotypes, or power relations is important in its potential application to other contexts, such as the case for abortion. Hopefully, this judgement will contribute to delineate a path towards empowering women’s rights in Latin America.

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