Petition by VDA, on behalf of her daughter LMR, alleging violation of LMR’s rights under the International Covenant on Civil and Political Rights (ICCPR). Alleged violations include the right to freedom from torture or other cruel, inhuman or degrading treatment, and the right to privacy; right to be free from discrimination in access to medical care; right to privacy regarding medical treatment decisions; right to access to medical care; right to a legal abortion.
Born on 4 May 1987, LMR is a young woman living with her mother, VDA in Argentina. She has a mental impairment and has a mental age between 8 and 10 years old.. During a hospital visit she was found to be pregnant. Under section 82.6 of the Argentinean Criminal Code abortion is legal where the pregnancy is the result of the rape of a mentally impaired woman. LMR filed a police complaint and scheduled an abortion. Her abortion was prevented by an injunction against the hospital. LMR appealed unsuccessfully to the Civil Court. The Supreme Court of Buenos Aires ruled the abortion could take place. However, under pressure from anti-abortion groups the hospital refused to perform the abortion. They claimed her pregnancy was too far advanced. LMR eventually obtained an illegal abortion.
Article 2 of the Optional Protocol to the ICCPR creates an obligation for state parties to protect individuals’ rights under the Covenant. The United Nations Human Rights Committee found that court hearings caused LMR’s abortion to be delayed to the point that she required an illegal abortion. This violated Article 2 in relation to Articles 3 (right to equality and non-discrimination), Article 7 (right to be free from torture or cruel inhuman or degrading treatment) and Article 17 (right to privacy). LMR’s right to privacy was violated by the courts’ unlawful interference into a decision that should have included only LMR, her guardian, VDA and her doctor. Failing to protect LMR’s right to an abortion under Argentinean law, and the resulting suffering violated her Article 7 rights. Article 7 protects individuals from mental as well as physical suffering. The violation was particularly serious given her status as a person with a disability.
The Human Rights Committee cannot impose damages. However, the Committee did point to Article 2 of the Optional Protocol to the ICCPR, which creates an obligation for Argentina to provide compensation as a remedy and to take steps to ensure similar violations of the Covenant do not occur.
The case contributed to a growing consensus in international law that restricting women’s access to an abortion may be considered torture or cruel, inhuman or degrading treatment under article 7 of the ICCPR. It also demonstrated that obstructing access to legal, elective medical procedures may violate the Covenant. Additionally, it indicates that the Court will analyze the right of a person with a disability under article 7 in a way which heightens the recognized impact of the violation.
