Adolescent Sexual Rights in Peru
In views adopted under the Optional Protocol to the International Covenant on Civil and Political Rights, the UN Human Rights Committee held the Peruvian government accountable for failing to ensure access to legal abortion services essential to the health of the petitioner, thus violating her human rights.
In 2002, the UN Human Rights Committee (HRC) accepted this communication as admissible for consideration. This case concerns the plight of K.L., a 17-year-old who was pregnant with an anencephalic foetus. Anencephalia is a condition incompatible with life for the fetus, and that jeopardizes the pregnant woman’s health. Her doctor informed K.L. that her pregnancy complications exposed her to a life-threatening risk. Upon his advice, she decided to terminate her pregnancy. Despite Peruvian law permitting abortions when the life or health of the mother is in danger, due to a lack of clear regulations, K.L. was denied an abortion. She was forced to carry the pregnancy to full term as well as breastfeed for the four days her baby survived. After her traumatic experience, K.L. suffered from severe depression. The complaint filed before the HRC alleged that denying K.L. access to a legal medical procedure violated a range of human rights.
On October 2005, the HRC upheld reproductive rights finding that in its failure to ensure access to legal abortion services for a pregnant adolescent, Peru had violated its domestic laws as well several articles under the International Covenant on Civil and Political Rights, including, among others, provisions pertaining to the right to be free from cruel, inhumane, and degrading treatment (Art. 7), privacy (Art. 17), and special measures of protection for minors (Art. 24). The HRC called on Peru to “furnish [K.L.] with an effective remedy, including compensation” and to “take steps to ensure that similar violations do not occur in the future.”
In the immediate aftermath of the decision, there was very little progress on implementation. The Peruvian government did offer financial reparation to K.L. but she declined the offer due to a lack of acknowledgment by the State itself that her rights had been violated, and the inadequacy of the amount. In practice, many women continued to be denied legal abortion services in Peru. (For details on certain compliance related issues, please see: http://bit.ly/1R582BG)
Rights groups took legal action before Peruvian courts, and petitioned the HRC to ensure the Peruvian State’s adequate compliance. Moreover, UN human rights bodies have consistently raised concerns regarding the denial of access to legal abortion services in Peru. All of this may have had an impact in recent developments reflecting progress on enforcement; for example, in 2014, the Peruvian government adopted national guidelines for providing safe abortion services that afford clarity for physicians and patients on legal abortion in the country. However there have been significant challenges in implementing this protocol.
In addition, in November 2015, around a decade after the HRC ruling was issued, the Peruvian Government agreed to pay compensation to K.L. in line with the Committee recommendations. In response, Nancy Northup of the Center for Reproductive Rights, one of the groups that represented the petitioner, stated, “the Peruvian government has taken an important step to abide by the United Nations’ decision. But this work is far from over. It’s time for Peru to clarify and implement its safe abortion guidelines and continue improving access to critical reproductive health services for all women and girls.”
The Latin American and Caribbean Committee for the Defense of Women’s Rights (CLADEM), the Office for the Defense of Women’s Rights (DEMUS), and ESCR-Net member, the Center for Reproductive Rights (CRR), together represented K.L. before the HRC.
This case is considered a landmark case on reproductive and health rights for the women of Peru and across the world. For the first time, an international human rights body held a country accountable for failing to ensure access to legal abortion services that were essential to the health of a woman, thus violating her fundamental human rights. The decision has global implications. One commentator has noted, “Every woman who lives in any of the 154 countries that are party to this treaty … now has a legal tool to use in defense of her rights. This ruling establishes that it is not enough to just grant a right on paper. Where abortion is legal it is governments’ duty to ensure that women have access to it.” This is particularly important given that women around the world frequently encounter barriers to abortion even where it is legal.
While Peru’s payment of compensation to K.L. comes late, it marks the recognition of a woman’s right to therapeutic abortion and that the State has an obligation to fulfill this right. One of the attorneys of the case commented that ‘”In seeing justice delivered in K.L.’s case —we are part of an inspiring historic moment. We are witnessing the … power of the UN and other international bodies to ensure our basic human rights to dignity, health and freedom from ill-treatment.” It is hoped that the developments in this case will lead to more complaints being filed from South America and other countries around the world. HRC Chairman Fabián Salvioli said in context of the aforementioned payment of compensation, “When a State complies with a ruling of the Committee, it is honouring its obligations and providing hope to the rest of the victims involved in cases before the Committee. States must comply with their human rights obligations under the Covenant, because that would contribute to create fairer societies.”