Acceso A La Informacin En Materia Reproductiva Desde Una Perspectiva De Derechos Humanos OEA Womenaccessinformationreproductivehealth

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INTER‐AMERICAN COMMISSION ON HUMAN RIGHTS

OEA/Ser.L/V/II.
Doc. 61
22 November 2011
Original: Spanish

ACCESS TO INFORMATION ON REPRODUCTIVE HEALTH
FROM A HUMAN RIGHTS PERSPECTIVE

2011
Internet: http://www.cidh.org

OAS Cataloging‐in‐Publication Data
Inter‐American Commission on Human Rights.
Acceso a la información en materia reproductiva desde una perspectiva
de derechos humanos = Access to information on reproductive health from
a human rights perspective.
p. ; cm. (OEA documentos oficiales ; OEA Ser.L/V/II. Doc.61)
(OAS official records ; OEA Ser.L/V/II. Doc.61)
ISBN 978‐0‐8270‐5710‐4
1. Reproductive health‐‐America. 2. Freedom of information‐‐America. 3.
Communication in reproductive health‐‐America. 4. Women’s health services‐‐
America. 5. Medical records‐‐Access control‐‐America. I. Title. II. Title: Access to
information on reproductive health from a human rights perspective. III. Series. IV.
Series. OAS official records ; OEA/Ser.L/V/II. Doc.61
OEA Ser.L/V/II. Doc.61

Document published thanks to the financial support of Spain and Finland.
Positions herein expressed are those of the Inter‐American Commission
on Human Rights and do not reflect the views of Spain or Finland.

Approved by the Inter‐American Commission on Human Rights on November 22, 2011

INTER‐AMERICAN COMMISSION ON HUMAN RIGHTS

MEMBERS

Dinah Shelton
José de Jesús Orozco Henríquez
Rodrigo Escobar Gil
Paulo Sérgio Pinheiro
Felipe González
Luz Patricia Mejía Guerrero
María Silvia Guillén

******
Executive Secretary: Santiago A. Canton
Assistant Executive Secretary: Elizabeth Abi‐Mershed

ACCESS TO INFORMATION ON REPRODUCTIVE HEALTH
FROM A HUMAN RIGHTS PERSPECTIVE
TABLE OF CONTENTS
Page

INTRODUCTION..........................................................................................................1

II.

STANDARDS ON ACCESS TO INFORMATION AS A HUMAN RIGHT...........................3

III.

STANDARDS ON THE RIGHT TO ACCESS TO INFORMATION ON REPRODUCTIVE
HEALTH.......................................................................................................................8
A.

Access to information and informed consent............................................13
1.

Informing patients about the nature of the procedure, treatment
options, and reasonable alternatives, including the potential
benefits and risks of proposed procedures .................................13

Providing appropriate information, taking into account the
person's needs and ensuring that the person understands
the information provided ............................................................16

Ensuring that any consent provided is free and voluntary..........18

Access to information and the protection of confidentiality.....................22

Access to information and the obligation to provide information
that is timely, complete, accessible, reliable, and proactive .....................25
1.

IV.

Access to information and conscientious objection ....................27

Access to information and access to medical records ...............................29

Access to information and the obligation to produce reliable statistics ...31

RECOMMENDATIONS ..............................................................................................33

ACCESS TO INFORMATION ON REPRODUCTIVE HEALTH
FROM A HUMAN RIGHTS PERSPECTIVE

INTRODUCTION

1.
The Inter‐American Commission on Human Rights (hereinafter “the Inter‐
American Commission”, “the Commission”, or the “IACHR”) has consistently, through its
various mechanisms, received information on the various barriers women in the Americas
face in gaining access to information on health, particularly in the area of sexual and
reproductive health. Women who have historically been marginalized based on their race,
ethnicity, economic status, or age are those who face the most barriers in access to
information on health, and these barriers become even greater when the information has
to do with matters related to sexual and reproductive health. Access to information is
closely linked to the attainment of other human rights; thus, a failure to respect and
guarantee this right for women can lead to an infringement of other rights, such as their
right to personal integrity, the right to privacy, rights of the family, and the right to be free
from violence and discrimination. This report identifies and analyzes, from a human rights
perspective, international and regional standards on access to information on reproductive
health, with a view that the States might eliminate barriers and effectively guarantee and
protect this right of women without discrimination.
2.
Access to information is a basic tool for building citizenship in a
democratic system. 1 The American Convention on Human Rights (hereinafter ¨the
Convention¨) expressly enshrines the concept of access to information in its Article 13, and
the Inter‐American Court of Human Rights (hereinafter the “Inter‐American Court”) has
interpreted it as a human right. The Court indicated that by expressly stipulating, in Article
13, the right to "seek" and "receive" information, the Convention protects everyone's right
to access information.
3.
The right to access to information is especially relevant in the area of
health, and specifically in the area of sexuality and reproduction, since it helps to ensure
that everyone is prepared to make free and informed decisions with regard to intimate
aspects of their life. In the inter‐American system, access to information on sexual and
reproductive health involves a series of rights such as the right to freedom of expression, to
personal integrity, to the protection of the family, to privacy, and to be free from violence
and discrimination.
4.
In this regard, the IACHR notes that in recent decades, access to
information on sexual and reproductive matters has gained considerable relevance at the
regional and international level. In fact, the IACHR has established that it is not possible for
women to attain the full enjoyment of human rights without timely access to
comprehensive healthcare services, as well as to information and education in this area, so
that they can make free, informed, and responsible decisions regarding reproduction,
1

IACHR, The Inter‐American Legal Framework regarding the Right to Access to Information. Office of
the Special Rapporteur for Freedom of Expression, December 30, 2009.

2
including family planning. 2 The Commission has also said that information and education
enables women to make decisions at all levels and in all areas of their lives, especially in
the sphere of health, sexuality, and reproduction.
5.
At the international level, the provisions contained in the Convention on
the Elimination of All Forms of Discrimination against Women (hereinafter “CEDAW”)
establish the obligation of the States Parties to ensure, on a basis of equality of men and
women, the same rights to decide freely and responsibly on the number and spacing of
their children and to have access to the information, education, and means to enable them
to exercise these rights. Specifically, the Committee on the Elimination of Discrimination
against Women (hereinafter the “CEDAW Committee”) has emphasized that the States'
duty to ensure, on a basis of equality, access to healthcare services, information, and
education "implies an obligation to respect, protect and fulfil women's rights to health
3
care." For its part, the Committee on Economic, Social and Cultural Rights (hereinafter the
“ESCR Committee”) has interpreted the right to health as an inclusive right extending not
only to timely and appropriate health care but also to the underlying determinants of
health, such as "access to health‐related education and information, including on sexual
and reproductive health". 4
6.
Nevertheless, the Inter‐American Commission has consistently, through
its various mechanisms, received information regarding various barriers women in the
Americas face in their access to information on sexual and reproductive health. For
example, the limited access to information on family‐planning services despite a high
unmet need for such services. 5 In addition, the Commission has received information
about problems in access to basic information and adequate medical and social services
related to reproductive health, 6 as well as about distortions in the information on
reproductive matters provided by public servants for the purpose of dissuasion. 7 The
Commission has also received information and processed individual petitions regarding the
practice of sterilizing women without their consent in some OAS Member States, a practice
that in some cases has led to their deaths. 8
2

IACHR, Report No. 21/07, Petition 161/02, Friendly Settlement, Paulina del Carmen Ramírez Jacinto
(Mexico), March 9, 2007.
3

United Nations, CEDAW Committee, General Recommendation 24, Women and health, para. 13.

United Nations Committee on Economic, Social and Cultural Rights. The right to the highest attainable
standard of health (article 12 of the International Covenant on Economic, Social and Cultural Rights), General
Comment 14, August 11, 2000, para. 11.
5

IACHR, Fifth Report on the Situation of Human Rights in Guatemala, OEA/Ser.L/V/II.111, doc. 21, April
6, 2001, see Chapter XIII, The Rights of Women; IACHR, Third Report on the Situation of Human Rights in
Paraguay, OEA/Ser./L/VII.110 doc. 52, March 9, 2001, see Chapter VIII, Women's Rights. Available at:
http://www.cidh.oas.org/countryrep/Paraguay01eng/chap8.htm.
6

IACHR, Fifth Report on the Situation of Human Rights in Guatemala, see Chapter XIII, The Rights of

Women.
7

IACHR, Report No. 21/07, Petition 161/02, Friendly Settlement, Paulina del Carmen Ramírez Jacinto
(Mexico), March 9, 2007.
8

IACHR, Report No. 71/03, Petition 12.191, Friendly Settlement, María Mamérita Mestanza Chávez
(Peru), October 3, 2003.

7.
In particular, women who are poor, indigenous, and/or of African
descent, women who live in rural areas and migrant women, are the ones who face greater
obstacles in their access to information on sexual and reproductive health. In some cases,
the barriers are of such a magnitude that they may constitute violations of women's rights
to personal integrity, privacy, and family life, and the right to be free from violence and
discrimination in contravention of the obligations the States of the Americas have assumed
in the area of human rights. 9 One example of this situation is the sterilization of women
without their consent.
8.
Consequently, the Inter‐American Commission on Human Rights decided
to prepare this report, thanks to the support of the Governments of Spain and Finland, in
order to identify and analyze regional and international human rights standards on access
to information on reproductive health, with a view that the States might eliminate barriers
and effectively guarantee and protect this right of women without discrimination.
9.
This report is divided into three sections. The first section describes
standards on the right to access to information and the second section details standards on
the right to access to information on reproductive health. In that section, the IACHR
addresses several dimensions of access to information that should be taken into account to
guarantee this right. The third section addresses some recommendations to the States in
this area.
II.

STANDARDS ON ACCESS TO INFORMATION AS A HUMAN RIGHT

10.

Article 13 of the American Convention establishes the following:

1.
Everyone has the right to freedom of thought and expression.
This right includes freedom to seek, receive, and impart information and
ideas of all kinds, regardless of frontiers, either orally, in writing, in print,
in the form of art, or through any other medium of one's choice.
2.
The exercise of the right provided for in the foregoing paragraph
shall not be subject to prior censorship but shall be subject to subsequent
imposition of liability, which shall be expressly established by law to the
extent necessary to ensure:
a.

respect for the rights or reputations of others; or

b.
the protection of national security, public order, or public health
or morals.

The IACHR has noted that the protection of women's right to integrity under conditions of equality is
achieved in the area of maternal health through the provision of information and education on the subject so that
women will adopt free, well‐founded, and responsible decisions regarding reproduction, including on family
planning.

3.
The right of expression may not be restricted by indirect
methods or means, such as the abuse of government or private controls
over newsprint, radio broadcasting frequencies, or equipment used in the
dissemination of information, or by any other means tending to impede
the communication and circulation of ideas and opinions.....
11.
The American Declaration of the Rights and Duties of Man (hereinafter
the “American Declaration”), in Article IV, enshrines "the right to freedom of investigation,
of opinion, and of the expression and dissemination of ideas, by any medium whatsoever,"
as a right inherent to every human being. In addition, Article XXIV of the Declaration
establishes that everyone "has the right to submit respectful petitions to any competent
authority, for reasons of either general or private interest, and the right to obtain a prompt
decision thereon."
12.
Moreover, the IACHR Declaration of Principles on Freedom of Expression
establishes, in Principle 2, that "Every person has the right to seek, receive and impart
information and opinions freely under terms set forth in Article 13 of the American
Convention on Human Rights," and that "All people should be afforded equal opportunities
to receive, seek and impart information...."
13.
In its Advisory Opinion OC‐5/85, the Inter‐American Court stated that "a
democratic society requires the guarantee of the widest possible circulation of news, ideas
and opinions as well as the widest access to information by society as a whole...." It also
found that it is "inherent in the American Convention that the right of each individual to
express himself freely and that of society as a whole to receive information be scrupulously
respected."
14.
According to the Inter‐American Court, under the protection granted by
the American Convention, the right to freedom of thought and expression includes “not
only the right and freedom to express one’s own thoughts, but also the right and freedom
to seek, receive and impart information and ideas of all kinds.” 10 Like the American
Convention, other international human rights instruments, such as the Universal
Declaration of Human Rights and the International Covenant on Civil and Political Rights,
establish a positive right to seek and receive information. 11 As has been explained in case
law, freedom of information is a right in and of itself and not just a manifestation of the
right of freedom of expression of which it is a part. 12

I/A Court H.R., Claude‐Reyes et al. v. Chile Case. Merits, Reparations and Costs. Judgment of
September 19, 2006. Series C No. 151, para. 76. López Álvarez v. Honduras Case. Judgment of February 1, 2006.
Series C No. 141, para. 163; Ricardo Canese v. Paraguay Case. Judgment of August 31, 2004. Series C No. 111,
para. 77; and Herrera Ulloa v. Costa Rica Case. Judgment of July 2, 2004. Series C No. 107, para. 108.
11

I/A Court H.R., Claude‐Reyes et al. v. Chile Case. Merits, Reparations and Costs. Judgment of
September 19, 2006. Series C No. 151, para. 76.
12

IACHR, 2008 Annual Report, Office of the Rapporteur for Freedom of Expression, para. 141.

15.
So then, the right of access to information falls within the general
framework of freedom of expression. 13 As the Inter‐American Commission has interpreted
it, Article 13 of the American Convention includes a positive obligation on the part of the
State to provide citizens with access to information in its power, and a related right of
individuals to access information held by the State. Along these lines, the IACHR
Declaration of Principles on the Right to freedom of Expression establishes the following, in
Principle 3: "Every person has the right to access...information about himself or herself or
his/her assets expeditiously and not onerously, whether it be contained in databases or
public or private registries, and if necessary to update it, correct it and/or amend it." In
Principle 4, it establishes: "Access to information held by the state is a fundamental right of
every individual. States have the obligation to guarantee the full exercise of this right."
16.
The IACHR has established that to guarantee the full and effective
exercise of the right of access to information, the public administration must follow the
principles of maximum disclosure and good faith. 14 The principle of maximum disclosure
calls for the design of a legal regime in which transparency and the right of access to
information are the general rule, subject only to strict and limited exceptions. 15 The
principle of good faith implies that those bound to guarantee this right act in good faith;
that is, that they interpret the law in such as way that it meets the aims of the right of
access and that they ensure the strict application of the right, provide the necessary
measures of assistance to petitioners, promote a culture of transparency, contribute to
making public administration more transparent, and act with due diligence,
professionalism, and institutional loyalty. 16
17.
The Office of the Special Rapporteur for Freedom of Expression has
maintained that the right of access to information creates obligations for all public persons
of all branches of government and autonomous bodies at all levels of government. 17 This
right also affects those who carry out public functions, provide public services, or manage
public funds on behalf of the State. Reiterating existing case law, the Resolution of the
Inter‐American Juridical Committee on "Principles on the Right of Access to Information"
states the following in Principle 2: “The right of access to information applies to all public
bodies, including the executive, legislative and judicial branches at all levels of government,
constitutional and statutory bodies, bodies which are owned or controlled by government,
18
and organizations which operate with public funds or which perform public functions.”
13

Ibid., para. 142.

IACHR, The Inter‐American Legal Framework regarding the Right to Access to Information, para. 8.

The IACHR has maintained that the following consequences are derived from this principle: (1) the
right of access must be subject to a limited regime of exceptions, and these exceptions must be interpreted
restrictively; (2) denials of information must be reasoned, and in this sense the burden of proving that the
requested information cannot be released falls to the State; and (3) the right of access to information should take
precedence in the event of doubts or legal vacuums. IACHR, The Inter‐American Legal Framework regarding the
Right to Access to Information, para. 10.
16

IACHR, The Inter‐American Legal Framework regarding the Right to Access to Information, para. 15.

Ibid., para. 20.

Ibid.

18.
In addition, the exercise of the right to information pertains to different
types of information that is, or should be, in the possession of the authorities or private
citizens. 19 The types of information that this right covers include the following in
particular: information in the State's custody, management, or possession; information the
State produces, or information it is obliged to produce; information in the possession of
those who manage public services or public funds; information the State receives, or is
required to collect in the course of performing its duties; and information concerning one’s
own personal data (habeas data) or property held by those who administer private
databases or registries and are legally required to provide it. 20
19.
The Inter‐American Court of Human Rights, in a historic judgment,
interpreted that Article 13 of the American Convention establishes access to information as
a human right. 21 The Court stated:
[T]he Court finds that, by expressly stipulating the right to “seek” and
“receive” “information,” Article 13 of the Convention protects the right of
all individuals to request access to State‐held information, with the
exceptions permitted by the restrictions established in the Convention.
Consequently, this article protects the right of the individual to receive
such information and the positive obligation of the State to provide it, so
that the individual may have access to such information or receive an
answer that includes a justification when, for any reason permitted by
the Convention, the State is allowed to restrict access to the information
22
in a specific case.
20.
The Court moreover indicated that the information "should be provided
without the need to prove direct interest or personal involvement in order to obtain it,
except in cases in which a legitimate restriction is applied. The delivery of information to an
individual can, in turn, permit it to circulate in society, so that the latter can become
acquainted with it, have access to it, and assess it. In this way, the right to freedom of
thought and expression includes the protection of the right of access to State‐held
information, which also clearly includes the two dimensions, individual and social, of the
right to freedom of thought and expression that must be guaranteed simultaneously by the
23
State."
19

IACHR, 2008 Annual Report, Office of the Rapporteur for Freedom of Expression, para. 154.

IACHR, 2008 Annual Report, Office of the Rapporteur for Freedom of Expression, para. 155. See
IACHR, The Inter‐American Legal Framework regarding the Right to Access to Information, para. 21.
21

I/A Court H.R., Claude‐Reyes et al. v. Chile Case. Merits, Reparations and Costs. Judgment of
September 19, 2006. Series C No. 151.
22

. I/A Court H.R., Claude‐Reyes et al. v. Chile Case. Merits, Reparations and Costs. Judgment of
September 19, 2006. Series C No. 151, para. 77.
23

I/A Court H.R., Claude‐Reyes et al. v. Chile Case. Merits, Reparations and Costs. Judgment of
September 19, 2006. Series C No. 151, para. 77; I/A Court H. R., López Álvarez v. Honduras Case. Judgment of
February 1, 2006. Series C No. 141, para. 163; Ricardo Canese v. Paraguay Case. Judgment of August 31, 2004.
Series C No. 111, para. 80; and Herrera Ulloa v. Costa Rica Case. Judgment of July 2, 2004. Series C No. 107,
paras. 108‐111.

21.
In a resolution on recommendations regarding access to information, the
Permanent Council of the Organization of American States summed up the following
guidelines on Article 13 established by the Inter‐American Court in its decision: 24
•

That by expressly stipulating the rights “to seek and receive information,”
Article 13 of the Convention protects the right of all persons to have
access to information held by the state, with the safeguards permitted
under the Convention’s system of restrictions.

•

That the state must follow the principles of the public nature of
information, transparency, and maximum disclosure—the latter of which
establishes the presumption that all information is accessible, subject
only to a narrow system of exceptions.

•

That silence cannot be a response to a request for information.

•

That this right has the counterpart of specific obligations by the state.

•

That the state must eliminate norms and practices that result in the
violation of the rights protected by the Convention, and enact laws and
develop practices leading to the effective respect for these guarantees.

•

That the state must guarantee the efficacy of an appropriate
administrative procedure for processing and responding to requests for
information, with deadlines for response and delivery of the information,
handled by duly trained officials.

•

That the state must guarantee the right to be heard and provide a rapid
and simple remedy for exercising this right.

•

That the state must train agencies, officials, and public agents in access to
information.

22.
The IACHR has established the following State obligations generated by
the right of access to information: the obligation to respond to requests in a timely,
complete, and accessible manner; to offer a legal recourse that satisfies the right of access
to information; to provide an adequate and effective legal remedy for reviewing denials of
requests for information; to provide the maximum quantity of information proactively (also
called the obligation of active transparency); to produce or gather information; to create a
culture of transparency; to adequately implement access laws; and to adjust domestic
25
legislation to the demands of the right of access to information.

Permanent Council of the Organization of American States, Committee on Juridical and Political
Affairs. Recommendations on Access to Information. CP/CAJP‐2599/08 , April 21, 2008.
25

IACHR, The Inter‐American Legal Framework regarding the Right to Access to Information, pp. 6‐12.

23.
Moreover, as this is one of the protected forms of the right to freedom of
expression, limitations to the right of access to information must be prescribed by law
expressly and in advance, and their establishment must be sufficiently clear and specific so
as to not grant an excessive degree of discretion to the public officials who decide whether
or not to disclose the information. 26 Thus, the American Convention establishes that any
laws establishing restrictions to the right of access to information must be expressly
established to the extent necessary to ensure respect for the rights or reputations of others
or protect national security, public order, or public health or morals. 27 Moreover, any
limitations imposed on the right of access to information must be necessary in a
democratic society to satisfy a compelling public interest. Among several options for
accomplishing this objective, the one least restrictive to the right must be chosen, and the
restriction must be conducive to the attainment of the objective, be proportionate to the
interest that justifies it, and interfere to the least extent possible with the effective exercise
of the right. 28
24.
There is a regional consensus among the States that make up the
Organization of American States regarding the importance of access to public information
and the need to protect it. This right has been the subject of specific resolutions issued by
the OAS General Assembly. 29 For example, in a resolution dated June 4, 2009, the OAS
General Assembly resolved to "urge member states to respect and promote respect for
everyone’s access to public information and to promote the adoption of any necessary
legislative or other types of provisions to ensure its recognition and effective
application." 30
III.

STANDARDS ON THE RIGHT TO ACCESS TO INFORMATION ON
REPRODUCTIVE HEALTH

25.
The IACHR believes that the obligation to provide information proactively
(also called the obligation of active transparency) lays the groundwork for the States'
obligation to provide public information that is essential for people to be able to exercise
their fundamental rights or satisfy their basic needs in this area. This is particularly
relevant when the information has to do with issues related to sexuality and reproduction,
since such information helps people be prepared to make free and informed decisions
concerning these aspects that are so intimate to their lives.
26

IACHR, The Inter‐American Legal Framework regarding the Right to Access to Information, para. 49.

Article 13(2) of the American Convention.

IACHR, The Inter‐American Legal Framework regarding the Right to Access to Information, para. 53.

See judgment of I/A Court H.R., Claude‐Reyes et al. v. Chile Case. Merits, Reparations and Costs.
Judgment of September 19, 2006. Series C No. 151, para. 78. Resolution AG/RES. 1932 (XXXIII‐O/03) of June 10,
2003, on "Access to Public Information: Strengthening Democracy"; Resolution AG/RES. 2057 (XXXIV‐O/04) of
June 8, 2004, on "Access to Public Information: Strengthening Democracy"; Resolution AG/RES. 2121 (XXXV‐O/05)
of June 7, 2005, on "Access to Public Information: Strengthening Democracy"; and AG/RES. 2252 (XXXVI‐O/06) of
June 6, 2006, on "Access to Public Information: Strengthening Democracy."
30

Resolution AG/RES. 2514 (XXXIX‐O/09) of June 4, 2009, on "Access to Public Information:
Strengthening Democracy," resolution point 2.

26.
In this regard, women's right of access to information on reproductive
health gives rise to a proactive obligation by the State, due to the recognition of the
limitations that tend to affect women—particularly those who are poor, indigenous, and/or
of African descent, or who live in rural areas—in terms of accessing reliable, complete,
timely, and accessible information that allows them to exercise their rights or meet their
needs. In these cases, as will be set forth below, the right of access to information takes on
an instrumental nature that is usually, though not necessarily, associated with the
satisfaction of other human rights enshrined in the American Convention.
27.
The IACHR began to address the issue of access to information on
reproductive matters some time ago. In its 1998 regional report on the status of women in
the Americas, the Commission established, based on responses sent in by the States on
health and reproductive health, the existence in the region of serious problems of access to
basic information and adequate medical care and social services. The IACHR recommended
that the States adopt measures to keep proper statistical data and to have the necessary
resources in order to ensure plans and programs that allow women to fully exercise the
right to health.
28.
In its country visits, the IACHR has expressed its concern over the limited
access to these services despite a high level of unmet needs. 31 On this point, the IACHR
has indicated that ongoing limitations on family‐planning information and services are
related to barriers in access to public health care and education. 32
29.
Moreover, the IACHR has established that information and education
enable women to make decisions at all levels, in all aspects of their lives, especially in the
area of health, sexuality, and reproduction. Specifically in the area of maternal health, the
IACHR has emphasized that protecting women's right to integrity under conditions of
equality is achieved by providing information and education on the subject so that women
will make free, well‐founded, and responsible decisions regarding reproduction, including
family planning. Moreover, to address the high rates of maternal mortality, the IACHR has
recommended implementing measures and publicity campaigns, targeted to the general
public, on the duty to respect women's civil, political, economic, social, cultural, sexual, and
33
reproductive rights.
30.
The Commission has also maintained that it is important that women and
their families and communities be aware of health services and that they also be able to
identify warning signs that require medical attention. 34 Thus, it has stated that the lack of
information on reproductive health acts as a barrier to obtaining access to maternal health
31

IACHR, Fifth Report on the Situation of Human Rights in Guatemala, Chapter XIII, The Rights of

Women.
32

IACHR, Fifth Report on the Situation of Human Rights in Guatemala, Chapter XIII, The Rights of
Women; IACHR, Third Report on the Situation of Human Rights in Paraguay, Chapter VIII, Women's Rights.
33

IACHR, Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia,
June 28, 2007, see Chapter V, Women's Rights.
34

IACHR, Access to Maternal Health Services from a Human Rights Perspective, June 7, 2010, para. 33.

services because it prevents women from making free and informed decisions about their
health, resulting in a lack of appropriate prevention and health promotion behaviors to
protect their own health and that of their children. 35
31.
For its part, the Office of the Rapporteur for Freedom of Expression has
stated that "the right of access to information is a key instrument for the exercise of other
human rights, particularly by the most vulnerable individuals." 36 With respect to access to
information on reproductive matters, it has indicated that women throughout the region
are entitled to have the State fully guarantee to them the right of access to information on
their sexual and reproductive rights through its mass and targeted campaigns, for example,
at all centers providing basic health care. 37
32.
Specifically with respect to adolescent girls' access to information on
reproductive health, the Committee on the Rights of the Child has established States'
obligation to provide them with access to information on the potential harm that can be
caused by early pregnancy. It has also established that adolescent girls who become
pregnant should have access to health services that are sensitive to their rights and
particular needs. 38
33.
The IACHR draws attention to the comprehensive treatment of this issue
by the Committee on Economic, Social and Cultural Rights (hereinafter, "the ESCR
Committee"). The ESCR Committee has expounded on the importance of access to
information in the field of health, including reproductive health. It interpreted the right to
health as an inclusive right that extends not only to timely and appropriate health care but
also to the underlying determinants of health, such as access to health‐related education
and information, including on sexual and reproductive health. 39
34.
According to the ESCR Committee, the right to health is closely related to
and dependent upon the realization of other human rights, including that of access to
information. 40 Moreover, in laying out the dimensions of the right to health, the ESCR
Committee established that access to information includes the right to seek, receive, and
impart information and ideas concerning health issues. 41 Specifically the ESCR Committee
established that the realization of women's right to health as regards reproduction

IACHR, Access to Maternal Health Services from a Human Rights Perspective, June 7, 2010, para. 33.

IACHR, 2008 Annual Report, Office of the Rapporteur for Freedom of Expression, para. 147.

Ibid., para. 91. See also, IACHR, Fifth Report on the Situation of Human Rights in Guatemala, 6 April,
2001, Cahpter XIII, The Rights of Women, para. 36.
38

United Nations, Committee on the Rights of the Child, General Comment No. 4.

United Nations, Committee on Economic, Social and Cultural Rights. The right to the highest
attainable standard of health, General Comment No. 14, para. 11.
40

Ibid., para. 3.

Ibid., para. 12.

"requires the removal of all barriers interfering with access to health services, education
and information, including in the area of sexual and reproductive health." 42
35.
In terms of States' obligations to respect, protect, and fulfill the right to
health in relation to access to information on reproductive matters, the ESCR Committee
indicated that the States must have a role in ensuring that third parties do not restrict
people's access to information and health‐related services. It also stated that other
obligations include the promotion of medical research and health education, as well as
information campaigns, in particular with respect to HIV/AIDS, sexual and reproductive
health, traditional practices, and domestic violence.
36.
Meanwhile, the provisions contained in the CEDAW underscore the
importance of guaranteeing access to information, particularly as regards health. Article
10, paragraph (h), establishes States' obligation to adopt all appropriate measures to
eliminate discrimination against women, in order to ensure to them equal rights with men
in the field of education and in particular to ensure, on a basis of equality of men and
women, "access to specific educational information to help ensure the health and well‐
being of families." 43
37.
Moreover, Article 16, paragraph 1, subparagraph (e), of CEDAW
establishes the obligation of States Parties to ensure, on a basis of equality of men and
women, the same rights to decide freely and responsibly on the number and spacing of
their children, and to have access to the information, education, and means to enable them
to exercise these rights. Along these lines, the CEDAW Committee has stated the following:
The duty of States parties to ensure, on a basis of equality between men
and women, access to health care services, information and education
implies an obligation to respect, protect and fulfil women's rights to
health care. States parties have the responsibility to ensure that
legislation and executive action and policy comply with these three
obligations. 44
38.
Meanwhile, the CEDAW Committee has emphasized that adult women
and adolescent girls in many countries lack sufficient access to necessary information and
services to ensure sexual health. This is particularly relevant in the case of women and
adolescents who are in a situation of exclusion. Thus it has maintained that "States parties
should ensure, without prejudice and discrimination, the right to sexual health information,
education and services for all women and girls." 45 In particular, the CEDAW Committee has
noted States' obligation to ensure the necessary information and services to address issues
42

Ibid., para. 21.

United Nations, Convention on the Elimination of All Forms of Discrimination against Women,

Article 10(h).
44

United Nations, Committee on the Elimination of Discrimination against Women, General
Recommendation No. 24, Women and health, para. 13.
45

Ibid., para. 28.

related to HIV/AIDS and other sexually transmitted diseases, including information and
counseling on all methods of family planning. 46
39.
The IACHR notes that the Inter‐American Court, in its judgment in Claude‐
Reyes et al. v. Chile, reiterated that "the general obligation contained in Article 2 of the
Convention involves the elimination of norms and practices of any type that result in
violations of the guarantees established in the Convention, as well as the enactment of
laws and the development of practices conducive to the effective observance of these
guarantees." 47 This reasoning, applied in the sphere of access to information in the area of
reproduction, implies that States have the obligation to adopt the necessary measures to
ensure protection of the right of access to information. This should include guaranteeing
the effectiveness of an appropriate administrative procedure for processing and deciding
on requests for information, one which sets deadlines for making a determination and
providing the information, and which falls under the responsibility of properly trained
officials.
40.
The IACHR believes that Article 2 of the American Convention, with
regard to access to information on reproductive matters, presupposes the provision of
effective, accessible, and transparent accountability mechanisms in the event that States
fail to fulfill their international obligations in this area.
41.
The Court, in the Case of Claude‐Reyes, went a step further and ordered
the State to provide training to the public entities, authorities, and agents responsible for
responding to requests for access to State‐held information on the laws and regulations
governing this right. Based on this premise, the States have the obligation to train their
professionals to inform women regarding their health, including information on aspects
related to reproductive health. Along these lines, the IACHR considers that access to
information on sexual and reproductive matters requires a State response across sectors.
While this report is based primarily on aspects of access to health‐related information, the
right of access to information on sexual and reproductive matters requires various sectors
to be involved in order to address this subject comprehensively.
42.
The IACHR will now analyze certain specific standards on access to
information on sexual and reproductive matters, which the States should observe in order
to guarantee this right: (a) access to information and informed consent; (b) access to
information and the protection of confidentiality; (c) access to information and the
obligation to provide information that is timely, complete, accessible, reliable, and
proactive; (d) access to information and access to medical records; and e) access to
information and the obligation to produce reliable statistics.

United Nations, Committee on the Elimination of Discrimination against Women, General
Recommendation No. 24, Women and health.
47

I/A Court H.R., Claude‐Reyes et al. v. Chile Case. Merits, Reparations and Costs. Judgment of
September 19, 2006. Series C No. 151, para. 163.

Access to information and informed consent

43.
The IACHR recognizes that access to information is an essential factor to
be able to receive medical care. Consent constitutes an ethical principle of respect for
individual autonomy, one that requires that people understand the different treatment
options among which they can choose. 48 Informed consent, meanwhile, implies the
existence of a horizontal relationship between doctor and patient. While health
professionals are the ones who best understand the physical conditions of the patients'
disorders and the most appropriate means for prevention and treatment, it is the patients
who better understand their disposition and temperament, including their prior experience
with earlier treatments, preferences, and fears. 49
44.
As will be laid out below, the issue of informed consent in reproductive
health has been subject to discussion and development by the various international,
regional, and national bodies for the protection of human rights. The IACHR notes some
factors that are an integral part of a process of informed consent: (i) informing patients
about the nature of the procedure, treatment options, and reasonable alternatives,
including the potential benefits and risks of proposed procedures; (ii) taking into account
the person's needs and ensuring that the person understands the information provided;
and (iii) ensuring that any consent provided is free and voluntary.
1.

Informing patients about the nature of the procedure, treatment
options, and reasonable alternatives, including the potential benefits
and risks of proposed procedures

45.
Access to information on reproductive matters requires that women have
sufficient information to make decisions about their health. To attain this objective, the
information provided must be timely, complete, accessible, reliable, and proactive. It must
also be understandable, using language that is accessible, and must be current. According
to Rebecca Cook, information that health professionals should offer includes, in principle: 50
•

The patient's current reproductive health condition in terms of the risks
of an unplanned pregnancy, sexually transmitted infections, the
conception and birth of a child affected by a reasonably preventable
disability, and infertility.

•

Reasonable access to the medical, social, and other means that respond
to the patient's conditions and reproductive intentions, including

B.M. Dickens and R.J Cook, Dimensions of informed consent to treatment, Ethical and legal issues in
reproductive health. International Journal of Gynecology & Obstetrics 85 (2004), pp. 309‐314.
49

The phrase "informed consent" is the most commonly used term. However, some would argue that
the term could be misinterpreted and that it should be replaced by the term "informed choice." This is due to the
fact that the choice not to consent is essential to the overall concept of voluntariness, or consent granted
voluntarily. See B.M. Dickens and R.J Cook, Dimensions of informed consent to treatment.
50

Rebecca J. Cook, Bernard M. Dickens, and Mahmoud F. Fathalla, Reproductive Health and Human
Rights: Integrating Medicine, Ethics, and Law, p. 104.

expected rates of success, side effects, and the risks involved with each
option.
•

The implications for the patient's sexual and reproductive health, as well
as for her general health and lifestyle, of declining any of the options.

•

The provider's recommendations and the reasons behind them.

46.
Through its various mechanisms, the CEDAW Committee has addressed
the relevance of access to information on reproductive matters and has maintained that
women "have the right to be fully informed, by properly trained personnel, of their options
in agreeing to treatment or research, including likely benefits and potential adverse effects
of proposed procedures and available alternatives." 51
47.
Indeed, access to information helps women make informed decisions
regarding the most intimate realm of their life, deciding to have children. On this point, the
IACHR has established that a couple's decision to have children falls within the most
intimate sphere of their private and family life. 52 It also stated that the way in which
couples arrive at that decision is part of a person’s autonomy and identity, both as an
individual and as a partner, and is therefore protected under Article 11 of the American
Convention. The European Court of Human Rights established that the concept of private life,
in addition to covering the physical and psychological integrity of a person, 53 can embrace
aspects of an individual's physical and social identity, including the right to personal
autonomy, personal development, and the right to establish and develop relationships with
other human beings and the outside world. 54 It also held that the protection of private life
incorporates the right to respect decisions regarding whether or not to become a parent. 55
Moreover, the European Court recently determined that the right to timely access to
information with regard to a prenatal genetic test falls within the ambit of private life and
includes a right to obtain available information on one’s condition. 56
48.
The IACHR considers that for the OAS Member States to ensure women's
right to access to information on reproductive matters, they should provide all available
information with respect to family‐ planning methods as well as to other lawfully provided
sexual and reproductive health services. With respect to family‐planning services, this at
the least includes making available all information regarding the family‐planning services
51

United Nations, CEDAW Committee, General Recommendation 24, para. 20.

Application to the Inter‐American Court of Human Rights, Gretel Artavia Murillo (In Vitro

Fertilization).
53

European Court of Human Rights, Pretty v. The United Kingdom, Application 2346/02, April 29, 2002,

para. 61.
54

European Court of Human Rights, Tysiac v. Poland, para. 107; European Court of Human Rights,
Pretty v. The United Kingdom, para. 61.
55

European Court of Human Rights, Pretty v. The United Kingdom, para. 61; European Court of Human
Rights, Evans v. The United Kingdom, Application 6339/05, April 10, 2007, para. 71.
56

European Court of Human Rights, R.R. v. Poland, Application 27617/04, May 26, 2011, para. 197.

allowed by law and the scope, risks, benefits, and side effects of each of them. With
respect to sexual and reproductive health services, this includes information on the
prevention of sexually transmitted infections, including HIV/AIDS, as well as a discussion of
the nature of any medical procedures that may be required, reasonable alternatives to the
proposed intervention, and information on the relevant risks and benefits. In both
situations, as will be explained below, health professionals should assess the patient's level
of understanding so that she can make a decision regarding the intervention or treatment.
That involves taking into account the specific information needs that some groups of
women may have due contexts of exclusion, marginalization or discrimination, including
indigenous and Afro‐descendant women, adolescent girls, women who live in rural areas
57
and migrant women .
49.
It is important to note that in some States of the Americas, case law has
developed the concept of access to information in the sphere of health as a guarantee
obligation of the States. By way of illustration, the Supreme Court of Canada, in its
judgment in McIrney v. MacDonald, established the positive obligation of healthcare
professionals to provide information to patients regarding their diagnosis and treatment. 58
For its part, the United States Court of Appeals for the District of Columbia, in Canterbury v.
Spence, rejected the proposition that a patient must request information before the doctor
is required to inform him or her. The Court indicated that the doctor has the obligation to
provide information, even if it has not been requested, so that the patient can make an
informed decision. 59
50.
Along these same lines, the European Court of Human Rights sanctioned
one of its Member States for failing to provide information on the health services
permitted by law. The Court found that the failure to provide the information constituted
a violation of the right to receive and impart information. 60 The Court in particular
underscored the possible prejudicial effects of the lack of information in some cases in
which an injunction imposed to prevent information from being provided may have had
more adverse effects on women who were not sufficiently resourceful or did not have the
necessary level of education to have access to alternative sources of information. 61
51.
In another decision, the Court established that during pregnancy, the
condition and health of the fetus constitute an element of the pregnant woman's health.
As a result, the effective exercise of the right of access to information is often decisive for
the possibility of exercising personal autonomy by deciding, on the basis of such

The IACHR also highlights the specific needs on reproductive health information that women of age

Supreme Court of Canada, McIrney v. MacDonald [1992] 2 S.C.R. 138.

Court of Appeals for the District of Columbia Circuit, Canterbury v. Spence 464 F.2d 772 (D.C. Cir.

require.

1972).
60

European Court of Human Rights, Open Door Counseling and Dublin Well Women v. Ireland (1992).
Judgment of October 29, 1992.
61

Ibid., para. 77.

16
information, on the future course of events relevant for the individual's quality of life. 62
The Court indicated that timely access to information concerning a particular health
condition "applies with particular force to situations where rapid developments in the
individual's condition occur and his or her capacity to take relevant decisions is thereby
reduced." It added that in the context of pregnancy, the effective access to relevant
information on the health of the mother and the fetus is directly relevant for the exercise
of personal autonomy, specifically where domestic legislation allows for abortion in certain
63
situations.
52.
Similarly, as will be laid out below, in A.S. v. Hungary the CEDAW
Committee affirmed that Article 10 of CEDAW includes a right to receive specific
information on family‐planning methods, in order to prevent procedures from being
performed on women without their being able to make fully informed decisions.
2.

Providing appropriate information, taking into account the person's
needs and ensuring that the person understands the information
provided

53.
The IACHR observes that healthcare professionals are under the
obligation to guarantee that any decisions that women make regarding sexual and
reproductive matters are made freely, for example when it comes to choosing a preferred
contraceptive method. The IACHR has stated that when women's decision‐making
freedom is compromised by circumstances such as poverty, or the fact that they belong to
a particular race or social origin, their human rights are at risk. This is especially pertinent
when it comes to certain groups of women who are particularly vulnerable, such as
indigenous women, women of African descent, migrant women, women living in rural
areas, and women living in poverty, who because of their particular circumstances face
64
greater difficulties in accessing information on reproductive health.
54.
According to the Inter‐American Court, "any person who is in a
vulnerable condition is entitled to special protection, which must be provided by the States
if they are to comply with their general duties to respect and guarantee human rights." 65
This requires the elimination of provisions or practices that discriminate against women,
such as for example requiring that their partners be present to receive information about
their health.
55.
The former United Nations Special Rapporteur on the right of everyone to
the enjoyment of the highest attainable standard of physical and mental health has
indicated that States have a duty to ensure that health information and services are made
available to vulnerable groups, in the context of their obligations to combat discrimination.
As an example, he notes that States "must take steps to empower women to make
62

European Court of Human Rights, R.R. v. Poland, para. 197.

Ibid.

IACHR, Access to Maternal Health Services from a Human Rights Perspective.

I/A Court H.R., Ximenes Lopes v. Brazil Case. Judgment of July 4, 2006. Series C No. 149, para. 103.

decisions in relation to their sexual and reproductive health, free of coercion, violence and
discrimination." 66 In this regard, the CEDAW Committee has maintained that acceptable
healthcare services are those that are delivered in a way that ensures that a women gives
her fully informed consent, respects her dignity, guarantees her confidentiality, and is
sensitive to her needs and perspectives. 67
56.
CEDAW General Recommendation No. 21 states that in order to make an
informed decision about safe and reliable contraceptive measures, women must have
information about contraceptive measures and their use, and guaranteed access to sex
education and family‐planning services, as provided in Article 10 (h) of CEDAW. 68
57.
For that purpose, the information should be complete, understandable,
and up to date. 69 The IACHR underscores the importance that the information provided be
adapted to the language of the person who requests or needs it. The Office of the Special
Rapporteur for Freedom of Expression has held that ethnic and cultural groups have the
right to have the State design policies aimed at adapting the right of access to their cultural
needs, such as their language. 70 Thus, to guarantee effective access to information on
sexual and reproductive matters, the States must ensure that women receive information
and education in their own languages and in such a way that respects their cultures. Along
these lines, the ESCR Committee has held that information about public services, for
example, should be available, as far as possible, in languages spoken by minorities. 71
58.
The Human Rights Council recently indicated that States should ensure
the availability of a wide range of prevention programs that take into account local
circumstances, ethics, and cultural values, including information, education, and
communication in languages most understood by communities and respectful of their
cultures, aimed at reducing risk‐taking behaviors and encouraging responsible sexual
behavior. 72

United Nations, Report of the Special Rapporteur, Paul Hunt. The right of everyone to the enjoyment
of the highest attainable standard of physical and mental health, E/CN.4/2004/49, February 16, 2004, para. 39.
67

United Nations, Committee on the Elimination of Discrimination against Women, General
Recommendation 24, para. 22.
68

United Nations, Committee on the Elimination of Discrimination against Women, General
Recommendation 21, para. 22; United Nations, Committee on the Elimination of Discrimination against Women,
A.S. v. Hungary, Communication No. 4/2004, CEDAW/C/36/D/4/2004.
69

IACHR, The Inter‐American Legal Framework regarding the Right to Access to Information. Office of
the Special Rapporteur for Freedom of Expression, December 30, 2009, para. 32.
70

IACHR, 2008 Annual Report, Office of the Rapporteur for Freedom of Expression.

General Comment No. 20, Non‐discrimination in economic, social and cultural rights (art. 2, para. 2,
of the International Covenant on Economic, Social and Cultural Rights), July 2, 2009.
72

United Nations, Resolution of the Human Rights Council, The protection of human rights in the
context of human immunodeficiency virus (HIV) and acquired immunodeficiency syndrome (AIDS),
A/HRC/RES/12/27), October 22, 2009, para. 6.

59.
In addition, the IACHR notes that another group requiring access to
timely, complete, accessible, reliable, and proactive information are adolescents. In its
report on Access to Maternal Health Services from a Human Rights Perspective, the IACHR
addressed the problem of high rates of maternal mortality among adolescent girls and the
need to provide them with information and education on the subject. 73
60.
On this point, the ESCR Committee has established that "the realization
of the right to health of adolescents is dependent on the development of youth‐friendly
health care, which respects confidentiality and privacy and includes appropriate sexual and
reproductive health services." 74 Along these same lines, the former United Nations Special
Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of
physical and mental health maintained that "States should ensure that adolescents are able
to receive information, including on family planning and contraceptives, the dangers of
early pregnancy and the prevention of sexually transmitted infections including HIV/AIDS,
as well as appropriate services for sexual and reproductive health." 75
3.

Ensuring that any consent provided is free and voluntary

61.
The various systems for the protection of human rights have emphasized
the need for States to ensure that the decisions women make about their reproductive
health are free of any form of coercion. That accounts for the importance of guaranteeing
women's consent in the provision of medical treatment or surgical intervention. The IACHR
has deemed that the practice of a surgical intervention without the required consent may
constitute a violation of the patient's human rights. 76 Specifically, it may constitute a
violation of the person's right to personal integrity protected by Article 5 of the American
Convention. This close relationship between access to information and women's right to
integrity was addressed by the European Court in a recent judgment, in which the Court
established that compliance with the State's positive obligation to secure to its citizens
their right to effective respect for their physical and psychological integrity may necessitate
the adoption of regulations concerning access to information about an individual's
77
health.
62.
Indeed, a lack of voluntariness of medical procedures may constitute a
violation of the rights to integrity, life, and equal protection before the law, pursuant to the
American Convention, as well as forms of violence and discrimination against women,
73

For more information, see IACHR, Access to Maternal Health Services from a Human Rights

Perspective.
74

United Nations Committee on Economic, Social and Cultural Rights. The right to the highest
attainable standard of health, General Comment No. 14, para. 23.
75

United Nations, Report of the Special Rapporteur, Paul Hunt. The right of everyone to the enjoyment
of the highest attainable standard of physical and mental health, para. 39.
76

According to the World Health Organization, "Male and female sterilization should be regarded as
permanent methods and all individuals and couples considering these methods should be counselled accordingly.
rd
No other methods result in permanent infertility." Medical eligibility criteria for contraceptive use (3
Edition)(2005), p. 8.
77

European Court of Human Rights, R.R. v. Poland, para. 188.

pursuant to provisions of the Inter‐American Convention on the Prevention, Punishment
and Eradication of Violence against Women (hereinafter “Convention of Belém do Pará”).
The IACHR has expressed its concern over cases of sterilization performed in Peru without
women's consent, related to the implementation of family‐planning policy and the
Voluntary Contraceptive Surgery program. 78 The IACHR held that when a family‐planning
program ceases to be voluntary and turns women into mere objects of control so as to
make adjustments to population growth, it poses a danger of violence and direct
discrimination against women. 79 The Commission found that "a campaign to disseminate
family planning methods is a positive action, so long as it is voluntary family planning."
63.
Through its case system, the IACHR received a petition that referred to a
forced sterilization performed at a public health center in Peru, which resulted in the death
of the victim, María Mamérita Mestanza. In this case, the victim was not informed about
the procedure the medical authorities were going to perform on her and thus was deprived
of the possibility of accepting or rejecting the medical intervention, which led to an
infringement of various human rights. The case was resolved with a friendly settlement
agreement between the parties signed in 2001, by which the State of Peru recognized its
responsibility for violating the victim's right to life, to physical and psychological integrity
and humane treatment, and to equality before the law, and the right to be free from
80
violence. Among its commitments, the State pledged to implement measures to ensure
that women can provide informed consent within a 72‐hour period prior to sterilization.
The IACHR is monitoring compliance with the agreement.
64.
On July 23, 2008, the IACHR admitted a petition in which the State of
Bolivia is alleged to have international liability over the alleged forced sterilization of a
woman in a public hospital. The petitioner maintains that in the year 2000, Mrs. I.V. was
submitted to a tubal ligation surgical procedure without her informed consent, and that
this was therefore an involuntary sterilization, in which she permanently lost her
reproductive capacity. The State, for its part, indicates that while the alleged victim was
undergoing a caesarean section, she presented with multiple adhesions and as a result was
told that any future pregnancy could put her life at risk. Because of this, the State
indicates, it was suggested to her that a ligation of her fallopian tubes be performed, to
81
which she gave her verbal consent. It is important to note that for the first time, the
Commission deemed that the facts should be analyzed under Article 13 of the American
Convention in relation to the obligations enshrined in Article 1(1) of the same instrument,
insofar as it was argued that the alledged victim had not "been adequately informed of the
effects, risks and consequences of the surgical operation she was submitted to, and/or

IACHR, Second Report on the Situation of Human Rights in Peru, June 2, 2000, see Chapter VII,
Women's Rights.
79

Ibid.

IACHR, Report No. 71/03, Petition 12.191, Friendly Settlement, María Mamérita Mestanza Chávez
(Peru), October 3, 2003.
81

IACHR, Report No. 40/08, Admissibility, I.V. (Bolivia), July 23, 2008.

alternative methods as demanded by Bolivian law and the international standards of
human rights in this area." 82 This case is now in the merits stage.
65.
In its report on Access to Maternal Health Services from a Human Rights
Perspective, the IACHR stated that the Convention of Belém do Pará "recognizes the crucial
linkage between the right to live free of discrimination and the recognition of other
fundamental rights, particularly the right to be free of violence based on gender." 83 The
Convention of Belém do Pará, in Article 6, establishes that the right of every woman to be
free from violence includes, among others:
−
−

The right of women to be free from all forms of discrimination; and
The right of women to be valued and educated free of stereotyped
patterns of behavior and social and cultural practices based on concepts of
inferiority or subordination.

66.
In accordance with the parameters established in the Convention of Belém
do Pará, the lack of information with respect to a sterilization performed without a
woman's consent, as well as the physical and psychological consequences of such an
intervention, are examples of forms of violence against women. Likewise, failing to inform
women victims of sexual violence about the services that are available to them in these
circumstances may also amount to a form of violence.
67.
The IACHR has stated that subparagraph (e) of Article 7 of the Convention
of Belém do Pará imposes on States the obligation to take all appropriate measures,
including legislative measures, to amend or repeal existing laws and regulations or to modify
lawful or customary practices that sustain the persistence and tolerance of violence against
women. Given the clear relationship that exists between discrimination and violence, this
precept should be interpreted in the sense of imposing on States the obligation to review
public regulations, practices, and policies that are discriminatory or could lead to
discriminatory effects against women (for example, legal norms that do not guarantee
women a process for free and voluntary consent for a medical intervention).
68.

For its part, the CEDAW Committee has maintained the following:

States parties should not permit forms of coercion, such as non‐
consensual sterilization, mandatory testing for sexually transmitted
diseases or mandatory pregnancy testing as a condition of employment
that violate women's rights to informed consent and dignity. 84
82

Ibid., para. 81.

IACHR, Access to Maternal Health Services from a Human Rights Perspective.

United Nations, Committee on the Elimination of Discrimination against Women, General
Recommendation No. 24, para. 22. It is important to note that Article 14(2)(b) of the Convention on the
Elimination of All Forms of Discrimination against Women establishes that "States Parties shall take all
appropriate measures to eliminate discrimination against women in rural areas in order to ensure, on a basis of
equality of men and women, that they participate in and benefit from rural development and, in particular, shall
ensure to such women the right...to have access to adequate health care facilities, including information,
counselling and services in family planning."

69.
In the A.S. v. Hungary case, the petitioner argued to the CEDAW
Committee that Hungary had violated several provisions of CEDAW as a result of her having
been subjected to sterilization, during a surgical intervention to extract a fetus, without
having received specific or understandable information on the sterilization or on the effects
it would have on her ability to reproduce. She also argued that she was unable to give
informed consent on account of the incomplete information provided to her, which
constituted a violation of the right to appropriate healthcare services. She also indicated
that the surgical intervention to which she was subjected limited her capacity to
reproduce.
70.
An opinion issued on August 29, 2006, pursuant to paragraph 3 of Article
7 of the Optional Protocol of CEDAW, expanded on the interpretation of Article 10 of
CEDAW. The Committee reasoned that the petitioner had a right protected by Article 10(h)
of the Convention to specific information on sterilization and alternative procedures for
family planning in order to guard against such an intervention being carried out without
her having made a fully informed choice. 85 Given the circumstances of the particular case,
the CEDAW Committee evaluated the petitioner's state of health on arrival at the hospital
and determined that any counseling she received must have been given "under stressful
and most inappropriate conditions." 86
71.
As a result, the CEDAW Committee found "a failure of the State party,
through the hospital personnel, to provide appropriate information and advice on family
planning," which constitutes a violation of the victim's right under Article 10(h) of the
Convention and Article 16, paragraph 1(e) of the same instrument [CEDAW]. 87
72.
The CEDAW Committee's decision emphasizes that, in order for consent
not to be flawed, it must not be obtained under coercion or influence of any kind. On this
point, the Commission emphasizes that while consent may be granted verbally or in
writing, in practice, for greater legal protection and in the event of possible future disputes,
consent should be granted in writing. The Commission understands that the greater the
consequences of a decision to be made, the more rigorous the controls should be to ensure
that consent was truly given. The situation and conditions under which consent is given
should be strictly analyzed on a case‐by‐case basis. In addition, the Commission recognizes
that the mere statement or record of consent does not constitute full proof of consent.
The statement of consent is used as evidence with respect to the contents of the
88
conversation between the healthcare provider and the patient.

United Nations, Committee on the Elimination of Discrimination against Women, A.S. v. Hungary,
Communication No. 4/2004, CEDAW/C/36/D/4/2004.
86

Ibid.

Jocelyn Downie, Timothy Caulfield, Colleen Flood, Canadian Health Law and Policy, Second Edition,

2000, p. 112.

73.
The United Nations International Conference on Population and
Development, held in Cairo in 1994, emphasized the importance of people being well‐
informed so they can make decisions responsibly, based on their needs.
The success of population education and family‐planning programmes in
a variety of settings demonstrates that informed individuals everywhere
can and will act responsibly in the light of their own needs and those of
their families and communities. The principle of informed free choice is
essential to the long‐term success of family‐planning programmes. Any
form of coercion has no part to play. 89
74.
The Commission recognizes that exceptional circumstances exist in which
consent does not apply. Such exceptions are related to emergency situations, for example
when it is necessary to treat a person medically to save his or her life or health but neither
the person nor a close family member can provide consent. Other cases in which consent
may not apply involve the existence of legal mandates tied to issues of mental health and
public health. In this regard, the IACHR considers it important that in those cases in which
public health is invoked to not apply consent, the States ensure that situations do not exist
in which the obligatory nature of some evidence runs contrary to women's right to be free
from all forms of discrimination.
B.

Access to information and the protection of confidentiality

75.
The IACHR deems that one important aspect to consider in terms of
access to information on sexual and reproductive matters is closely tied to the professional
relationship between healthcare professionals and women who use health services. The
World Health Organization (WHO) defines confidentiality as the duty of providers "to
protect patients’ information against unauthorized disclosures." 90
76.
Confidentiality is a duty of healthcare professionals who receive private
information in a medical environment, and maintaining the confidentiality or privacy of
information they obtain from their patients is of critical interest in sexual and reproductive
health. 91 Professional confidentiality and secrecy were addressed by the Inter‐American
Court of Human Rights in its judgment in De La Cruz‐Flores v. Peru. This case involves María
Teresa De La Cruz, a medical professional who was prosecuted, convicted, and sentenced
for terrorism, based on the argument that she was providing health treatment to alleged
terrorists. In its decision, the Inter‐American Court established that "the medical act is
acknowledged in numerous normative and declarative documents relating to the medical
profession." For informational purposes, the Court made reference to Article 18 of the First
Geneva Convention of 1949, which states that “[n]o one may ever be molested or
89

United Nations, International Conference on Population and Development, Cairo, 1994, Programme
of Action, para. 7.12.
90

World Health Organization. Safe Abortion: Technical and Policy Guidance for Health Systems.
Geneva: WHO, 2003, p. 68.
91

Rebecca J. Cook, Bernard M. Dickens, and Mahmoud F. Fathalla, p. 115.

convicted for having nursed the wounded or sick.” It also referred to Article 16 of Protocol I
and Article 10 of Protocol II, both Protocols to the 1949 Geneva Conventions, which
establish that “Under no circumstances shall any person be punished for carrying out
medical activities compatible with medical ethics, regardless of the person benefiting
therefrom.” 92
77.
The Court also established that the information a physician obtains in the
exercise of his or her profession is privileged by professional confidentiality. On that point,
it referred to a provision in International Code of Medical Ethics of the World Medical
Association establishing that “a physician must keep absolutely secret everything that has
been confided in him, even after the death of the patient.” 93 The Court also emphasized
that the Human Rights Committee has already recommended that domestic legislation be
modified to protect the confidentiality of medical information. 94
78.
In its decision, the Court considered that physicians have a right and an
obligation to protect the confidentiality of the information to which, as physicians, they
have access. 95 The Inter‐American Court of Human Rights determined that the State of
Peru had violated the principle of legality established in Article 9 of the American
Convention, among other reasons because it penalized a medical activity which is not only
an essential lawful act, but which it is also the physician’s obligation to provide. 96 It also
found a violation of the principle of legality for imposing on physicians the obligation to
report the possible criminal behavior of their patients, based on information obtained in
the exercise of their profession. 97
79.
In his separate opinion, Judge Sergio García Ramírez indicated that the
State may not violate the protection of health and life for which doctors are responsible,
through norms or interpretations of norms that dissuade a doctor from complying with his
duty, either because they threaten him with the imposition of a penalty (a threat that could
prevent him from providing medical services), or because they induce him to make
distinctions contrary to the principles of equality and non‐discrimination, or because they
force him to deviate from his proper functions and assume others that conflict with them,
pose unacceptable dilemmas, or change the basis of the relationship between doctor and
98
patient, as would happen if doctors were obliged to inform on the patients they treat.
92

I/A Court H.R., De La Cruz‐Flores v. Peru Case. Judgment of November 18, 2004. Series C No. 115,

Ibid., para. 97.

para. 95.

Ibid., para. 100, citing the Final observations of the Human Rights Committee, Chile, U.N. Doc.
CCPR/C/79/Add.104. (1999).
95

I/A Court H.R., De La Cruz‐Flores v. Peru Case. Judgment of November 18, 2004. Series C No. 115,

Ibid., para. 102.

Ibid.

para. 101.

Ibid., para. 100, citing the Final observations of the Human Rights Committee, Chile, U.N. Doc.
CCPR/C/79/Add.104. (1999).

A similar situation would arise, if lawyers were forced to report the
unlawful acts committed by their clients (which they learn about through
their relationship of assistance and defense), or priests to reveal the
secrets of the confessional.
80.
Judge García Ramírez emphasized the need to prohibit incriminating the
conduct of a doctor who abstains from providing information to the authorities about his
patient’s punishable conduct, which he is aware of through information provided to him by
the patient in connection with the medical procedure. 99
I consider that it is inadmissible—a consideration that coincides with the
opinion of the Inter‐American Court, as stated in the judgment in this
case—to criminally penalize the conduct of a doctor who provides care
designed to protect the health and life of other individuals,
notwithstanding their characteristics, activities and beliefs, and the origin
of their injuries or illnesses.
81.
The IACHR notes that issues related to sexuality and reproduction are
extremely sensitive, and thus the fear that confidentiality will not be respected can have
the effect of women not seeking the medical care they need. By contrast, if a person feels
safe and trusting, she will provide all the information needed so the medical professional
can more effectively diagnose and treat her.
82.
On that specific point, the CEDAW recognizes the importance of
respecting the confidentiality of the information obtained in the medical environment,
especially so that women are not deterred from seeking needed care.
While lack of respect for the confidentiality of patients will affect both
men and women, it may deter women from seeking advice and
treatment and thereby adversely affect their health and well‐being.
Women will be less willing, for that reason, to seek medical care for
diseases of the genital tract, for contraception or for incomplete abortion
and in cases where they have suffered sexual or physical violence. 100
83.
The former United Nations Special Rapporteur on the right of everyone to
the enjoyment of the highest attainable standard of physical and mental health has also
expressed himself in this regard, indicating the importance of confidentiality in the medical
context. In the words of the former Rapporteur:
...in the context of sexual and reproductive health, breaches of medical
confidentiality may occur. Sometimes these breaches, when
accompanied by stigmatization, lead to unlawful dismissal from
99

Ibid., Separate opinion of Judge Sergio Ramírez.

100

United Nations, Committee on the Elimination of Discrimination against Women, General
Recommendation 24, Women and health, para. 12(d).

employment, expulsion from families and communities, physical assault
and other abuse. Also, a lack of confidentiality may deter individuals from
seeking advice and treatment, thereby jeopardizing their health and well‐
being. Thus, States are obliged to take effective measures to ensure
medical confidentiality and privacy. 101
84.
For its part, the ESCR Committee has noted that "accessibility of
information should not impair the right to have personal health data treated with
confidentiality." 102 Consequently, guaranteeing confidentiality in access to information
regarding reproductive matters is critical to guaranteeing that women seek medical care in
a timely manner. This is particularly relevant in some countries of the region where some
medical services have been completely criminalized and healthcare professionals are
required to report them. In this regard, the Committee Against Torture has classified as
torture the practice of providing life‐saving medical care for women suffering complications
from illegal abortions only on condition that they first provide information on whether they
103
had had an abortion.
C.

Access to information and the obligation to provide information that is
timely, complete, accessible, reliable, and proactive

85.
As has already been noted, it is important that the information that is
provided helps women make informed decisions about their reproductive health. In this
framework, the obstruction of access to information or the provision of inadequate or
erroneous information contravenes the right to access to information.
86.
On this point, the IACHR emphasizes that States have an obligation to
refrain from censoring, either administratively or judicially, information on reproductive
matters that falls within existing laws in this area, for example on the effects and
effectiveness of family‐planning methods. This means, for the States, that the public

101

United Nations, Report of the Special Rapporteur, Paul Hunt. The right of everyone to the
enjoyment of the highest attainable standard of physical and mental health, para. 40.
102

United Nations Committee on Economic, Social and Cultural Rights. The right to the highest
attainable standard of health General Comment 14, para. 12.
103

The Committee Against Torture has expressed its concern about reports "that life‐saving medical
care for women suffering complications after illegal abortions is administered only on condition that they provide
information on those performing such abortions. Such confessions are reportedly used subsequently in legal
proceedings against the women and against third parties, in contravention of the provisions of the Convention."
Conclusions and recommendations of the Committee against Torture, Chile, U.N. Doc. CAT/C/CR/32/5 (2004),
para. 6(j).
The Committee therefore recommended that the State should: "Eliminate the practice of extracting
confessions for prosecution purposes from women seeking emergency medical care as a result of illegal abortion;
investigate and review convictions where statements obtained by coercion in such cases have been admitted into
evidence, and take remedial measures including nullifying convictions which are not in conformity with the
Convention. In accordance with World Health Organization guidelines, the State party should ensure immediate
and unconditional treatment of persons seeking emergency medical care." Conclusions and recommendations of
the Committee against Torture, Chile, U.N. Doc. CAT/C/CR/32/5 (2004), para. 7(m).

policies and programs on sexual and reproductive health should be based on scientific
evidence that provides certainty.
87.
The IACHR has maintained that prior censorship “implies restricting or
preventing expression before it has been circulated, so preventing not only the individual
whose expression has been censored, but also all of society, from exercising their right to
the information. In other words, prior censorship produces ‘a radical suspension of
freedom of expression through preventing the free circulation of information, ideas,
opinions, or news.’" This "constitutes a radical violation not only of the right of each
person to express himself, but also of the right of every person to be well informed, and
104
therefore constitutes one of the basic conditions of a democratic society.”
88.
As the case law of the inter‐American system has held, cases of prior
censorship "result in the radical violation of each person's right of expression, as well as the
right of all people to be well‐informed and to receive and know the expressions of others;
as such, one of the basic conditions of a democratic society is adversely affected." 105 The
Declaration of Principles on Freedom of Expression establishes, "Prior censorship, direct or
indirect interference in or pressure exerted upon any expression, opinion or information
transmitted through any means of oral, written, artistic, visual or electronic communication
must be prohibited by law." 106 It also states, "Restrictions to the free circulation of ideas
and opinions, as well as the arbitrary imposition of information and the imposition of
obstacles to the free flow of information violate the right to freedom of expression." 107
89.
In the area of reproductive health, the ESCR Committee noted that States
have an obligation to refrain from censoring, withholding, or intentionally misrepresenting
health‐related information such as contraceptive methods—including sexual education and
related information—as well as from preventing people's participation in health‐related
matters. 108
90.
For its part, the Committee on the Rights of the Child addressed prior
censorship as regards children's access to information about HIV/AIDS. It emphasized that
effective HIV/AIDS prevention requires States to refrain from censoring, withholding, or
intentionally misrepresenting health‐related information, including sexual education and
information, and that consistent with their obligations to ensure the survival, life, and
104

IACHR, 2008 Annual Report, Office of the Rapporteur for Freedom of Expression, citing IACHR.
Report on the Merits No. 90/05. Case No. 12.142. Alejandra Matus Acuña (Chile). October 24, 2005, para. 35.
105

IACHR, 2008 Annual Report, Office of the Rapporteur for Freedom of Expression, citing IACHR. Case
of Palamara‐Iribarne v. Chile, Judgment of November 22, 2005, Series C No. 135, para. 68. I/A Court H.R.,
Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29
American Convention on Human Rights), Advisory Opinion OC‐5/85 of November 13, 1985, Series A No. 5, para.
54. IACHR, Arguments before the Inter‐American Court of Human Rights in the Case of Herrera‐Ulloa v. Costa Rica,
cited in the judgment of July 2, 2004, Series C No. 107, para. 101(5).
106

Declaration of Principles on Freedom of Expression, para. 5.

107

Ibid.

108

United Nations Committee on Economic, Social and Cultural Rights. The right to the highest
attainable standard of health, General Comment 14, para. 34.

development of the child, they must ensure that children have the ability to acquire the
knowledge and skills to protect themselves and others as they begin to express their
sexuality. 109 For his part, the former Rapporteur on the Right to Health, Paul Hunt, has
stated, "Some traditional views about sexuality are obstacles to the provision of sexual and
reproductive health services, including reliable information, and these views have an
especially damaging impact upon adolescents." 110
91.
As an example of this situation, on March 8, 2002, the IACHR received a
petition alleging the violation of the human rights of the minor child Paulina Ramírez
Jacinto, who was a victim of a rape that resulted in pregnancy and was prevented by State
authorities from exercising her right to interrupt the pregnancy, in accordance with
Mexican law. Among other methods employed to dissuade her from getting a legal
abortion, she and her mother were given incomplete and erroneous information about the
medical procedure and its consequences. The case was resolved through a friendly
settlement agreement dated March 8, 2006. In that agreement, the IACHR stated that
women cannot fully enjoy their human rights without having timely access to
111
comprehensive health care services, and to information and education in this sphere.
The IACHR is monitoring compliance with the agreement.
92.
Consequently, the IACHR considers that to guarantee access to
information on reproductive matters, the OAS Member States must refrain from censoring,
withholding, or misrepresenting information. Moreover, pursuant to the respect and
guarantee obligations imposed by the IACHR, and under the principles of equality and non‐
discrimination, the States must guarantee that women have access to information that is
timely, complete, accessible, reliable, and proactive on reproductive matters; this should
include information about the sexual and reproductive health services that are legally
available.
1.

Access to information and conscientious objection

93.
The IACHR recognizes that health professionals have the right to have
their freedom of conscience respected. Article 18(1) and (2) of the United Nations
International Covenant on Civil and Political Rights establishes the following:
1.
Everyone shall have the right to freedom of thought, conscience
and religion. This right shall include freedom to have or to adopt a
religion or belief of his choice, and freedom, either individually or in
community with others and in public or private, to manifest his religion or
belief in worship, observance, practice and teaching.
109

United Nations, Committee on the Rights of the Child, General Comment 3, HIV/AIDS and the rights
of the child, March 17, 2003, para. 16.
110

United Nations, Report of the Special Rapporteur, Paul Hunt. The right of everyone to the
enjoyment of the highest attainable standard of physical and mental health, para. 14.
111

IACHR, Report No. 21/07, Petition 161/02, Friendly Settlement, Paulina del Carmen Ramírez Jacinto
(Mexico), March 9, 2007.

2.
No one shall be subject to coercion which would impair his
freedom to have or to adopt a religion or belief of his choice.
94.
In addition, Article 18(3) establishes: "Freedom to manifest one's religion
or beliefs may be subject only to such limitations as are prescribed by law and are
necessary to protect public safety, order, health, or morals or the fundamental rights and
freedoms of others." That is to say, while healthcare professionals demand respect for
their right to conscience, they must also show equal respect for their patients' rights to
conscience.

95.
Conscientious objection is a very relevant issue when it comes to access
to information in the area of reproductive health. Many health professionals have their
own convictions with respect to the use of family‐planning methods, emergency oral
contraception, sterilization, and legal abortion, and they prefer not to provide these
services. As was indicated in the preceding paragraph, the health professional's right to
conscientious objection is a freedom. However, this freedom could come into conflict with
patients' freedoms. Consequently, the balance between the rights of healthcare
professionals and the rights of patients is maintained through referrals. In other words, a
health professional may refuse to take care of a patient, but should transfer the patient
without objection to another health professional who can provide what the patient is
seeking. For example, if a woman needs family‐planning information and services and/or
other lawful reproductive health services, and the health professional has his or her own
convictions with respect to the utilization of such services, the professional has the
obligation to refer the patient to another health provider who can provide the information
and services in question. This is in order not to create barriers in access to services.

96.
The IACHR notes that the European Court addressed the issue of
conscientious objection in the provision of family‐planning services. In this case, the
petitioners alleged that they refused to sell birth‐control pills at a pharmacy because this
went against their religious beliefs. The European Court held that "as long as the sale of
contraceptives is legal and occurs on medical prescription nowhere other than in a
pharmacy, the applicants cannot give precedence to their religious beliefs and impose
them on others as justification for their refusal to sell such products." That is because they
112
are able to manifest their beliefs "in many ways outside the professional sphere." In
another decision handed down recently, the European Court ruled that the States "are
obliged to organise the health services system in such a way as to ensure that an effective
exercise of the freedom of conscience of health professionals in the professional context
does not prevent patients from obtaining access to services to which they are entitled
under the applicable legislation." 113

112

European Court of Human Rights, Pichon and Sajous v. France. App. No. 49853/99, 2001.

113

European Court of Human Rights, R.R. v. Poland.

97.
In addition, the IACHR notes that the Constitutional Court of Colombia, in
a decision handed down in 2008, determined some factors that are worth noting with
respect to objections of conscience. 114
‐
‐

‐
‐
‐

Conscientious objection is not a right to which juridical persons or the
State are entitled; it can be recognized only for natural persons;
In cases in which a physician invokes a conscientious objection, he or she
must proceed to refer the woman to another physician who can provide
the medical service being requested, without prejudice to a later
determination as to whether the conscientious objection was applicable
and relevant through the mechanisms established by the medical
profession.
Conscientious objection is an individual, not an institutional or collective,
decision.
Conscientious objection applies only to direct providers and not to
administrative personnel.
Conscientious objection applies when it truly involves a religious
conviction that is properly reasoned and submitted in writing. The
physician who invokes it must follow the obligation to immediately refer
the woman to a physician who can provide the reproductive health
service being requested, this so as to prevent the refusal from becoming
a barrier in access to reproductive health services.

98.
In its decision, the Constitutional Court of Colombia underscores that the
exercise of the right to conscientious objection must fall within the law, and thus may not
constitute a mechanism for discrimination and the violation of women's fundamental
rights.
99.
In this regard, the IACHR considers that the States must guarantee that
women are not prevented from accessing information and reproductive health services,
and that in situations involving conscientious objectors in the health arena, the States
should establish referral procedures, as well as appropriate sanctions for failure to comply
with their obligation.
D.

Access to information and access to medical records

100.
The IACHR has indicated that, apart from the general right of access to
State‐held information, "Every person has the right to access to information about himself
or herself, whether this is in the possession of a government or private entity." This right
"includes the right to modify, remove or correct such information due to its sensitive,
erroneous, biased or discriminatory nature." 115 Moreover, the Declaration of Principles on
Freedom of Expression establishes: "Every person has the right to access to information
114
115

Constitutional Court of Colombia, Judgment T‐209/08.

IACHR, 2008 Annual Report, Office of the Rapporteur for Freedom of Expression, para. 94. IACHR,
Report on Terrorism and Human Rights. Chapter III, E): Right to Freedom of Expression. OEA/Ser.L/V/II.116.
October 22, 2002. Available at: http://www.cidh.oas.org/Terrorism/Eng/toc.htm.

about himself or herself or his/her assets expeditiously and not onerously, whether it be
contained in databases or public or private registries, and if necessary to update it, correct
it and/or amend it." 116
101.
In addition, the IACHR has established, "The right to access to and control
over personal information is essential in many areas of life, since the lack of legal
mechanisms for the correction, updating or removal of information can have a direct
impact on the right to privacy, honor, personal identity, property, and accountability in
information gathering." 117
102.
The IACHR notes that the matter of access to personal information
contained in medical records was addressed by the European Court of Human Rights. In
K.H. and Others v. Slovakia, the applicants alleged a violation of their right to respect for
private and family life, established in Article 8 of the European Convention on Human
Rights, because they did not have access to photocopies of the medical records of the
alleged victims, whom they considered to have been victims of sterilization without their
consent and without having been informed. The European Court framed the case as one
involving "the exercise by the applicants of their right of effective access to information
concerning their health and reproductive status," and determined a violation of the victims'
118
"right to respect for private and family life."
103.
In its reasoning, the Court reiterated that "in addition to the primarily
negative undertakings in Article 8 of the Convention, there may be positive obligations
inherent in effective respect for one’s private life." According to the European Court, the
original records, which could not be reproduced manually, contained information which
the applicants considered important from the point of view of their moral and physical
integrity, as they suspected that they had been subjected to an intervention affecting their
reproductive status. 119
104.
The European Court determined that the obligations derived from the
exercise of the right to respect for private and family life should extend, in particular in
cases like the one that is the subject of the complaint, which concerned personal data. The
Court indicated that "protection of medical data is of fundamental importance to a
person’s enjoyment of his or her right to respect for private and family life as guaranteed
by Article 8 of the Convention and that respecting the confidentiality of health data is a
vital principle in the legal systems of all the Contracting Parties to the Convention." The
Court likewise determined that while protection of medical data is of fundamental

116

IACHR Declaration of Principles on Freedom of Expression.

117

2008 Annual Report, Office of the Rapporteur for Freedom of Expression, para. 94. IACHR, Report on
Terrorism and Human Rights. Chapter III, E): Right to Freedom of Expression. OEA/Ser.L/V/II.116. October 22,
2002. Available at: http://www.cidh.oas.org/Terrorism/Eng/toc.htm.
118

European Court of Human Rights, K.H. and Others v. Slovakia, Judgment 32881/04 of April 28, 2009.

119

Ibid., para. 50.

importance, the risk of abuse by third persons "could have been prevented by means other
than denying copies of the files to the applicants." 120
105.
Meanwhile, in comparative case law, the IACHR has referred to case law
of the Constitutional Court of Colombia, which has indicated that the right to petition, and
indirectly the right to health, is breached when a patient is prevented from accessing his or
her clinical records. 121 In that regard, in Judgment T‐275 of 2005, the Constitutional Court
held: "The clinical history held by the petitioned entity in principle comprises not simply a
private document subject to confidentiality, which may be seen only by the patient and the
institution, and in exceptional cases by a third party, but in addition, all the evaluations,
tests, interventions, and diagnoses done on the patient, in the only file or database where
they are legitimately kept. In this regard, not allowing the patient access to his clinical
history violates the petitioner's right to petition, and indirectly his right to health...." 122
106.
The IACHR considers that the right to access to information is also
adversely affected when access to information regarding medical history is denied.
Consequently, the States of the Americas must guarantee that people can access the
information contained in their clinical records, or face possible sanction.
E.

Access to information and the obligation to produce reliable statistics

107.
The obligation to produce information has been the subject of various
pronouncements and specific recommendations at the international level. Information on
people's health, whether through statistics or other means, is essential for identifying
major problems, formulating public polices, and assigning the necessary resources. The
IACHR has indicated that "the State has the obligation to produce or obtain the information
it needs to fulfill its duties, pursuant to international, constitutional, or legal norms." 123
This obligation extends to the sphere of health. In fact, in its 1998 regional report on the
status of women in the America, "the Commission was able to confirm serious deficiencies
in statistics, generally owing to a lack of resources and suitable infrastructure." 124
108.
The IACHR has indicated that international laws include clear and explicit
obligations on production of information tied to the exercise of the rights of sectors that
historically have been excluded or discriminated against. Indeed, the Convention of Belém
do Pará establishes the States’ obligations to "ensure research and the gathering of
statistics and other relevant information relating to the causes, consequences and
120

European Court of Human Rights, K.H. and Others v. Slovakia.

121

Constitutional Court of Colombia, Judgment T‐232/09, Reference: case file T‐2171774, Injunction
(acción de tutela) filed by María Isabel Isaza against Francisco Javier Villegas Alzate.
122

Constitutional Court of Colombia, Judgment T‐275 of 2005 (MP: Antonio Humberto Sierra Porto),
See Judgment T‐232/09, Reference: case file T‐2171774, Injunction filed by María Isabel Isaza against Francisco
Javier Villegas Alzate.
123
124

IACHR, 2008 Annual Report, Office of the Rapporteur for Freedom of Expression, para. 162.

IACHR, Report of the Inter‐American Commission on Human Rights on the Status of Women in the
Americas, October 13, 1998.

frequency of violence against women, in order to assess the effectiveness of measures to
prevent, punish and eradicate violence against women and to formulate and implement
the necessary changes." 125
109.
In its report on Guidelines for Preparation of Progress Indicators in the
Area of Economic, Social and Cultural Rights, the IACHR noted that the State’s obligation to
take positive steps to safeguard the exercise of social rights raises important implications,
for example, concerning the type of statistical information the State should produce. 126 It
also stated:
From this perspective, the generation of information suitably
disaggregated to identify these disadvantaged sectors or groups deprived
of the enjoyment of rights is not only a means to ensure the effectiveness
of a public policy, but a core obligation that the State must perform in
order to fulfill its duty to provide special and priority assistance to these
sectors. For example, the disaggregation of data by sex, race or ethnicity
is an essential tool for highlighting problems of inequality. 127
110.
In the same document, the IACHR recalled that “The Committee on
Economic, Social and Cultural Rights has drawn attention to the state obligation to produce
information bases with which to validate indicators and, in general, access to many of the
guarantees covered by each social right. Accordingly, this obligation is essential for the
enforceability of these rights." 128 The IACHR also noted that international law includes
clear and precise obligations on the production of information tied to the exercise of rights
by sectors that have traditionally suffered exclusion and discrimination. 129
111.
Specifically in the area of health, in the report on Guidelines for
Preparation of Progress Indicators in the Area of Economic, Social and Cultural Rights, the
IACHR included indicators relating to access to information and participation. These
indicators include those relating specifically to information on reproductive matters:
statutory protection of personal health information, including its scope and limits;
government dissemination of information on sexual and reproductive health policy,
including its scope and coverage; and advisory services for pregnant women on mother‐
child HIV/AIDS transmission.

125

Article 8(h), Convention of Belém do Pará.

126

IACHR, Guidelines for Preparation of Progress Indicators in the Area of Economic, Social and Cultural
Rights, July 19, 2008, para. 58.
127

Ibid.

128

IACHR, Guidelines for Preparation of Progress Indicators in the Area of Economic, Social and Cultural
Rights, para. 78. IACHR, The Inter‐American Legal Framework regarding the Right to Access to Information. Office
of the Special Rapporteur for Freedom of Expression, December 30, 2009, para. 37.
129

IACHR, Guidelines for Preparation of Progress Indicators in the Area of Economic, Social and Cultural
Rights, para. 81. IACHR, The Inter‐American Legal Framework regarding the Right to Access to Information. Office
of the Special Rapporteur for Freedom of Expression, December 30, 2009, para. 37.

112.
The IACHR considers that the States should compile information on the
status of women’s human rights and reproductive health—including specific information
on groups that have suffered exclusion, such as indigenous women, women of African
descent, migrant women and women who live in rural areas—in order to identify and
address the specific problems of these populations in this sphere.
113.
For its part, the CEDAW Committee has encouraged States to include in
their reports information on diseases or conditions hazardous to health that affect women
or certain groups of women differently from men, as well as information on possible
intervention in this regard. 130 The CEDAW Committee has also maintained that the States
should report on their understanding of how policies and measures on health care address
the health rights of women from the perspective of women’s needs and interests, and how
health care addresses distinctive features and factors which differ for women in
comparison to men. 131
114.
Likewise, the Committee on Economic, Social and Cultural Rights has
stated that a gender‐based approach recognizes that biological and socio‐cultural factors
play a significant role in influencing the health of men and women. The disaggregation of
health and socio‐economic data according to sex is essential for identifying and remedying
inequalities in health. 132
115.
The IACHR concludes that the production of reliable statistics on
reproductive matters and the dissemination of that information will help to bring greater
attention to countries' public health policies so the States can meet their international
obligations in this area. Moreover, being aware of the true situation regarding women’s
sexual and reproductive health will raise collective awareness about the real needs that
must be addressed.
IV.

RECOMMENDATIONS

116.
This report has reviewed the minimum principles the OAS Member State
should observe in order to guarantee the protection, under equal conditions, of the right of
access to information on reproductive health.
The Commission trusts that its
recommendations will contribute to the efforts the States are carrying out in this area:
1.

Adapt domestic laws on access to information and education on sexual
and reproductive health so that they meet the international standards
the States have pledged to follow with regard to the right of access to
information. Ensure that policies and programs, designed with the
participation of women themselves, are consistent with the goals

130

United Nations, CEDAW Committee, General Recommendation 24, Women and health, para. 10.

131

Ibid., para. 12.

132

United Nations Committee on Economic, Social and Cultural Rights. The right to the highest
attainable standard of health, General Comment 14, para. 20.

established by the States to improve the flow of information related to
reproductive health.
2.

Analyze—at the level of the legislative, executive, and judicial branches,
and with strict scrutiny—all laws, regulations, practices, and public
policies in the area of health so that they guarantee the right to access to
information on sexual and reproductive health and the obligation of the
State to provide such information. Ensure, therefore, that the
information provided is timely, complete, accessible, reliable, and
proactive.

Incorporate simple, effective, and appropriate administrative procedures
which can be used by anyone to request needed information.

Incorporate effective judicial procedures for reviewing decisions by public
officials that deny women the right of access to certain information or
that simply fail to respond to requests.

Guarantee confidentiality in access to information on sexual and
reproductive health.

Ensure health professionals’ obligation to inform women about their
health so that women can make free, informed, and responsible
decisions related to sexuality and reproduction.

Ensure that the information provided is adapted to the audience that
needs it, particularly so that women who speak other languages can have
access to the information in their own tongue.

Establish protocols for effective access to information in cases involving
conscientious objection.

Revise criminal‐law provisions that force health professionals to violate
confidentiality and professional secrecy in accordance with international
standards in this area.

10.

Guarantee that patients can have access to their medical records when
needed, and establish mechanisms for sanctioning the failure to comply
with such a provision.

11.

Implement measures so that information systems adequately reflect the
situation of women’s health, at the national and local level, including
figures on family‐planning needs, maternal morbidity and mortality, and
neonatal mortality, along with their causes, so that effective decisions
and actions can be taken.

12.

Establish systematic policies for training and capacitating government
officials on the right of access to information in all spheres of the State.

13.

Promote the widespread dissemination of information on the health and
the rights of indigenous and Afro‐descendant women, and women who
live in rural areas, to ensure their effective participation in decision‐
making concerning their reproductive health. Include adolescent girls,
with a focus on preventing early motherhood.

14.

Ensure that national budgets contemplate producing reliable statistics on
sexual and reproductive matters, broken down at the very least by sex,
gender, ethnicity, and age.

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Acceso A La Informacin En Materia Reproductiva Desde Una Perspectiva De Derechos Humanos OEA Womenaccessinformationreproductivehealth

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