In its first decision regarding obstetric violence, the Committee on the Elimination of Discrimination against Women (CEDAW Committee) has found that Spain violated the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) when domestic courts did not adequately assess a woman’s claims that she had been subjected to excessive and unnecessary exams, medication, and other interventions without her consent during labor, resulting in “lasting physical and mental trauma.” [OHCHR Press Release] The CEDAW Committee concluded that the domestic courts deferred to the hospital instead of respecting the principle of informed consent, relied on gender stereotypes, and did not fairly evaluate her claims, in violation of CEDAW articles 2(b), (c), (d), and (f), 3, 5 and 12. See CEDAW Committee, S.F.M. v. Spain, Communication No. 138/2018, Views of 28 February 2020, UN Doc. CEDAW/C/75/D/138/2018 (Spanish only). The Committee urged Spain to provide appropriate reparations to the applicant, including financial compensation, and take specific steps to ensure respect for women’s human rights in the context of pregnancy and reproductive health care. See id. at paras. 7.2, 8.
Case Overview & Procedural Background
In September 2009, the applicant, S.M.F., was 39 weeks pregnant when she went to a Spanish hospital to get advice on the mild contractions she was experiencing. See id. at para. 2.1. Although she had had a normal pregnancy up to that point and was not yet in labor, the medical staff admitted S.M.F. and began a series of interventions that ended when her daughter was born approximately 40 hours later. The baby required seven days of hospitalization because of a bacterial infection contracted during S.M.F.’s labor, and hospital staff strictly limited S.M.F.’s access to her.
In December 2011, after the hospital failed to respond to the applicant’s complaint, she filed a claim before a ministry of health for pecuniary damages. See id. at paras. 2.1-2.5, 2.13. The ministry of health dismissed her claim and, on appeal, a national administrative court agreed with the ministry of health. See id. at paras. 2.14-2.17. The applicant filed an appeal with the relevant Superior Court, which concluded that administrative court’s assessment was more generalized than what would be preferable and did not thoroughly assess the information provided by the applicant, but nevertheless held that there had been no violation of informed consent regulations for the procedures that the applicant underwent given that “the provision of consent under such conditions and during birth was impossible.” See id. at para. 2.18. The Superior Court also concluded that it was “perfectly understandable” that the father could not be present during birth. See id. Finding insufficient evidence of medical malpractice, the Superior Court found against the applicant. See id. The Spanish Constitutional Court held the final appeal inadmissible. See id. at para. 2.19.
In October 2018, the applicant submitted a complaint to the CEDAW Committee alleging violations of CEDAW articles 2 (State duties), 3 (equality), 5 (stereotypes and cultural prejudices), and 12 (health) of the CEDAW due to the State’s failure to provide access to adequate health services, free of violence and discrimination, and for not being able to exercise her personal autonomy during childbirth. See id. at para. 3.1. The CEDAW Committee admitted the complaint, concluding that the applicant had adequately exhausted domestic remedies. See id. at para. 6.3. The CEDAW Committee also rejected the State’s argument that the applicant was asking the Committee to reassess the facts and evidence evaluated by the domestic courts, which would be outside the Committee’s competence. See id. at paras. 6.4-6.5. The Committee noted that the applicant alleged that the domestic judicial process was itself discriminatory because it was based on gendered stereotypes and, therefore, the Committee had competence to evaluate her complaints. See id. at para. 6.4.
CEDAW Committee’s Analysis
The CEDAW Committee’s analysis focused on the administrative and judicial proceedings in Spain, rather than on the applicant’s treatment in the hospital itself, and drew on the recent report on obstetric violence by the United Nations Special Rapporteur on violence against women. See id. at para. 7.3. The CEDAW Committee noted that the UN Special Rapporteur defines obstetric violence as “violence experienced by women during facility-based childbirth” and that this problem is “widespread and systemic in nature.” See id. In particular, the Committee highlighted the UN Special Rapporteur’s conclusion that episiotomies “may have adverse physical and psychological effects on the mother, can lead to death and may amount to gender-based violence and torture and inhuman and degrading treatment.” See id.
The Committee first analyzed whether the State met its obligation to exercise due diligence in its administrative and judicial proceedings with respect to the author’s complaints, and to eliminate gender stereotypes from its proceedings. See id. at para. 7.4. While the State claimed that it had conducted a thorough and exhaustive examination of the evidence presented, the CEDAW Committee concluded that the national courts “only gave credibility to the hospital reports and assumed stereotypes.” See id. Taking into account the information presented by the parties, the Committee found that the State did not conduct a thorough analysis of the facts or give equal weight to the evidence presented by the applicant. See id.
The Committee reiterated that States parties have an obligation to abolish laws and regulations, as well as customs and practices that constitute discrimination against women. See id. at para. 7.5. It also explained that stereotypes, which constitute discrimination against women, impact the right of women to be protected against gender-based violence, including obstetric violence, and that national authorities must exercise caution to not perpetuate stereotypes. See id. at paras. 6.4, 7.5. The Committee found the Spanish courts had perpetuated gender stereotypes – and, therefore, discrimination – by deferring to the doctors’ judgments rather than requiring the S.M.F’s consent to treatment and by expressing sympathy for S.M.F.’s husband because he and S.M.F. did not have sex for two years, while downplaying the harm to S.M.F. See id. at para. 7.5. As such, the CEDAW Committee held that the State violated articles 2, 3, 5 and 12 of the Convention and issued several “general” recommendations to the State to ensure changes in its healthcare protocols. See id. at para. 7.6.
In addition to urging Spain to provide appropriate reparations to the applicant, including financial compensation for the damage to her physical and mental health, the CEDAW Committee called on Spain to: (1) ensure that all women have access to adequate obstetric care, in line with CEDAW General Recommendation No. 24 on Article 12 of the Convention, and are able to provide free, prior and informed consent before medical procedures; (2) conduct studies on obstetric violence to guide public policy; (3) provide adequate training to medical staff on women’s reproductive health and rights; and, (4) ensure access to effective remedies for cases of obstetric violence, including by providing training to judicial and administrative personnel who may deal with cases concerning women’s reproductive health. See id. at para. 8.
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