Gauer v France
Forum: European Court of Human Rights
INTERIGHTS’ role: Joint third party intervener
Keywords: Disability, discrimination, sterilisation, informed consent, torture, gender based violence
On 16 August 2011 INTERIGHTS along with the Centre for Reproductive Rights, the Mental Disability Advocacy Centre, the International Disability Association and the European Disability Forum, submitted a third party intervention to the European Court of Human Rights in the case of Gauer v France. The case concerns five women with intellectual disabilities, each under guardianship, who allege they underwent a process of tubal ligation without their informed consent and against their wishes. INTERIGHTS and its partner organisations believe this case provides the Court with an opportunity to examine important questions relating to the practice of forced sterilisation from the standpoint of the right to free and informed consent, the right to be free from torture and cruel, inhuman and degrading treatment, the right of access to justice, the right to respect for private and family life, the right to found a family and the right not to be discriminated against.
The applicants in this case were initially represented before the French court by the Association for Protection of Rights of Persons with Disabilities (ADHY), which lodged a criminal complaint in September 2000 when it became aware of the sterilisations. An investigation was opened but the ADHY was found not to have standing to act as a civil party in the proceedings. Following the applicants’ request, in July 2004 the judge appointed an ad hoc representative to represent the applicants in the criminal proceedings.
In April 2006 the court dismissed the criminal complaint. It found that the surgical procedure had not been illegal as the applicants’ consent had not been required. That decision was upheld on appeal in March 2007. The appeal court found that the sterilisations had been carried out for medical reasons, that the tubal ligations had not been irreversible and that the applicants had not been disfigured or permanently disabled within the meaning of the French Criminal Code. Considering that it was extremely difficult, or even impossible, for persons with severe mental disabilities (such as the applicants) to undertake a parental role, the court found that the doctors had acted in the applicants’ interest. The criminal chamber of the Cassation Court declared the applicants’ appeal inadmissible. In their application to the European Court of Human Rights the applicants allege numerous violations of their human rights.
The third party intervention sets out international human rights and medical standards on the issue of forced sterilisation, particularly as it affects women with disabilities. These standards demonstrate that informed consent is a critical component of any sterilisation procedure and that it is a violation of international human rights when sterilisation is performed on women with disabilities, a particularly vulnerable group, without their free and informed consent. In principle, free and informed consent is a precondition to any medical intervention and the written comments rely on statements and guidelines issued by the World Health Organization (WHO) and the International Federation of Gynecology and Obstetrics (FIGO) in this regard. The international and comparative law standards set out in the written comments demonstrate that States have a positive obligation to apply stringent and effective safeguards so as to ensure persons with disabilities are protected from forced sterilisation.
INTERIGHTS contact: Pádraig Hughes