INTRODUCTION

In its views issued on 15 May 2023, the UN Committee on the Rights of the Child (the Committee) held that the government of Peru had violated several children’s rights, including the right to health and the right to life of Camila, a 13-year-old girl and survivor of sexual violence. The focus of the case was whether the government's lack of information and failure to provide access to voluntary termination of pregnancy and Camila's prosecution for self-abortion violated her rights under the United Nations Convention on the Rights of the Child (CRC).

FACTS OF THE CASE

Camila was raped by her father and became pregnant at 13. According to the law and related health regulations, she was entitled to a therapeutic abortion. However, no one informed her of her legal rights. She made multiple requests to terminate the pregnancy, but these were either refused or ignored by the health facilities where she sought care. When she had a miscarriage later, law enforcement authorities prosecuted and convicted her for intentionally terminating her pregnancy. She successfully appealed against her conviction.

Following her loss of the pregnancy, the health and law enforcement authorities continued to follow up on her at home. The frequent visits by the police led to negative gossip in the community about her situation. Her family also mistreated her because of the rape. The cumulative experiences impacted her mental and physical health and well-being, for which the government did not provide support or intervention.

Camila complained to the Ministry of Health for failing to provide her with appropriate care and support when she had a high-risk pregnancy and for denying her access to therapeutic abortion provided for in the law and health regulations. Despite the Ministry of Health finding that the health facilities where Camila sought medical intervention for her pregnancy failed in their obligations to her, the institutions were not held accountable. The Ministry of Health did not provide any remedy to Camila for the injustices she had suffered at the hands of the health institutions.

CLAIMS BEFORE THE COMMITTEE

Camila pursued the following complaints with the Committee regarding the government of Peru's alleged violations under the CRC:

1. Violation of the right to health and life (Articles 24 and 6): Camila claimed that her rights to health and life were violated because the health institutions failed to intervene adequately when she had a high-risk pregnancy. Articles 24 and 6 of the CRC affirm children’s right to the highest attainable standard of health and the inherent right to life.
2. Torture due to forcing her to maintain a pregnancy resulting from sexual violence (Article 37(a)): Camila alleged that being compelled to maintain a pregnancy resulting from sexual violence amounted to torture, which is prohibited under Article 37 (a) of the CRC.
3. Violation of the right to privacy (Article 16): Camila claimed that the repeated and unwanted checks on her pregnancy status by the authorities infringed upon her right to privacy, which is guaranteed under Article 16 of the CRC.
4. Violation of the right to access information (Article 17): According to Camila's complaint, health authorities did not inform her of her right to a therapeutic abortion, thus violating her right to access information as stated in Article 17 of the CRC.
5. Violation of the right to participation (Article 12): Camila complained that her right to participation was violated because health institutions did not allow her to decide about her pregnancy. Article 12 of the CRC ensures that children can express their views freely in all matters affecting them.
6. Violation of the right to non-discrimination (Article 2): Finally, Camila claimed that her right to non-discrimination, guaranteed under Article 2 of the CRC, was violated. This article requires States to protect children from discrimination and provide special protection to those particularly vulnerable.

The Committee found that Camila had satisfied the conditions for it to hear her matter. She had pursued and exhausted the available domestic remedies, and that she had sufficiently substantiated the allegations. The Committee went ahead to determine her case.

A SUMMARY OF THE COMMITTEE’S FINDINGS

The Committee notes that abortion is a criminal offence in Peru, except in cases of therapeutic abortion, to save the pregnant woman’s life or prevent serious and permanent harm to her health (para 8.3). Yet, although Camila was entitled to therapeutic abortion and made several attempts to access abortion care, she was practically denied access because there was no definitive response to her requests. The Committee concluded that her lack of access to safe abortion services exposed her to a real and foreseeable risk of mortality and other health complications. The denial of access to abortion, therefore, violated her rights to life and health (para 8.7).

The Committee highlighted the lack of adequate psychological care for Camila's mental health and access to specialised medical personnel and equipment, which violated her right to the highest attainable standard of health (para 8.10).

The Committee further noted that the treatment Camila experienced, including denying access to abortion and the subsequent prosecution, constituted cruel, inhuman, and degrading treatment as protected under Article 37 (a) CRC. Additionally, the failure of the government entities to provide information to Camila about sexual and reproductive health violated her right to seek and receive information. The authorities also failed to give due weight to Camila's views and preferences, thus violating her right to be heard (para 8.11).

The Committee also found that Camila was discriminated against because of her age, gender, ethnic origin, and social status in how she was treated by the health authorities, law enforcers and the judiciary. Her vulnerability as a child victim of rape was not adequately protected, which resulted in re-victimisation and further harm, violating her right to be protected from violence and her right to recovery and reintegration paras 8.15 & 8.17).

THE DECISION OF THE COMMITTEE

The Committee, therefore, held that the government of Peru had violated Camila’s rights under Articles 2, 6, 12, 13, 16, 19, 24, 37 (a), and 39 of the CRC.

The Committee recommended that the State of Peru provide effective remedies to Camila, including adequate compensation and support to rebuild her life, access to mental health services, and continued education. To prevent similar violations in the future, they recommended that the government of Peru:

a) Decriminalises abortion in all cases of child pregnancy;

b) Ensures access to safe abortion services and post-abortion care for pregnant girls, particularly in cases of risk to the life and health of the mother, rape or incest;

c) Amends regulations governing access to therapeutic abortion to provide for specific application to pregnant girls considering the special risk to the health and life of the pregnant child;

d) Establishes clear and expeditious remedy and accountability measures for non-compliance;

e) Provides precise guidance and training for health professionals and other duty-bearers on the application and interpretation of the legislation on therapeutic abortion;

f) Ensures education and effective access of children to sexual and reproductive health information;

g) Establishes cross-sectoral mechanisms to provide comprehensive care and support to child survivors of sexual violence.

COMMENTARY

Stigma compromises access to legal abortion

When I think about Camila’s case, one word looms large: stigma. The stigma surrounding abortion can significantly affect access to abortion even when it is permitted by law. Stigma is a social construct that attaches negative perceptions and judgments to certain behaviours or conditions, such as abortion (See the article by Roosbelinda Cárdenas and others). When there is a prevalent stigma surrounding abortion, it creates a hostile environment for both the individuals who seek abortions and the health professionals who offer abortion services. Therefore, though Camila was eligible for therapeutic abortion, she could not get it, no matter how hard she tried.

Stigma operates against access to legal abortion in many ways, as observed in the case of Camila.

1. Stigma deterred health professionals from offering abortion services that are otherwise legal for reasons including fear of backlash from their communities, colleagues, or religious institutions.

1. Stigmatization of abortion emboldened the health authorities and law enforcers to follow up on Camila’s pregnancy status overzealously. They were more determined to pounce upon her and prosecute her for a criminal offence when she miscarried than to offer her an appropriate remedy for the risky pregnancy.
2. Stigma exacerbated Camila’s emotional distress and shame for seeking an abortion. Despite her traumatic experience from the sexual violation leading to a high-risk pregnancy and that she was a child in need of protection, she did not get empathy or support from the authorities and even her family.
3. Criminalising abortion sustains stigma, so even therapeutic abortion is stigmatised. Criminalisation fosters harmful institutional practices, including a lack of transparency and accountability. Camila was not only denied abortion care to which she was legally entitled but no one could be held accountable.

The Committee’s call to decriminalise abortion in all cases of child pregnancy is critical because it removes a powerful reinforcer of stigma: fear of criminal prosecution.

Examples of the effect of stigma enhanced by criminal law

For example, Kenya: Despite abortion being legal, including for survivors of sexual violence in Kenya, many eligible girls and women could not access the service because the Kenyan Ministry of Health did not have guidelines on the provision of abortion care, and girls and women did not have information about abortion. It involved JMM (child survivor of rape) taking the matter to the High Court, where the Court, in its determination, affirmed that survivors of sexual violence are legally entitled to access safe abortion and that the Ministry of Health should produce guidelines and train health professionals to enable girls and women to access quality abortion care.

Another example is Malawi: Even though Malawi’s Gender Equality Act provides for sexual and reproductive health rights, including access to safe abortion, the coexistence of provisions that criminalise abortion has created a situation in which health professionals are not clear about the law, so that child survivors of sexual violence have been denied access to abortion. Indeed, there is a case where a traditional leader had to fight for an 11-year-old child who was sexually abused and became pregnant to access safe abortion. Currently, there is no clear and transparent information about access to legal abortion for child survivors of sexual violence in Malawi, so vulnerable children are compelled to carry high-risk pregnancies to term or forced to seek alternative means to terminate the pregnancy that may be unsafe and lead to complications.

The Committee’s call to protect and care for the pregnant child

The global consensus is that children require special care and protection from adults to survive and develop to their full potential. Considering this, governments should decriminalise abortion in all cases of child pregnancy. It should not matter how the pregnancy arose. A child may become pregnant because of child abuse or because they engaged in consensual sex but did not use protection, but this should not matter. Compelling children to carry a pregnancy to term should not be a means of punishing children. This is contrary to the rights espoused in the CRC.

For African States, the Committee’s call to decriminalise abortion for children reinforces statements made by the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) and the African Commission on Human and Peoples’ Rights (ACHPR) regarding the provision of legal abortion to address high-risk pregnancies among child survivors of child-marriages (see paragraph 37 of the Joint General Comment of the African Commission on Human and Peoples’ Rights and the African Committee of Experts on The Rights and Welfare of the Child on Ending Child Marriage. 2017). The ACERWC has also urged African States to provide safe abortion in cases of child survivors of sexual violence (see paragraph 145 of the General Comment No. 7 on article 27 on Sexual Exploitation of the African Charter on the Rights and Welfare of the Child. 2021).

Further, Article 14 (2) (a) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa requires States to provide services, information, and education, especially for girls and women in rural areas. However, it is challenging for health professionals to provide this information when the law is unclear about legal abortion. Indeed, the Committee emphasised that information about access to therapeutic abortion must be available in the most transparent terms to the public, including children.

To fulfil the obligations to provide legal abortion to children, States should ensure that clinical protocols provide precise guidance on how health professionals address high-risk pregnancies among children (See Godfrey Kangaude and others).

Access to justice for the Child

Camila’s case also demonstrates that access to justice is critical for the enjoyment of rights and that children can use the available mechanisms, including access to judicial mechanisms. This is one aspect of the right of the child to participate in matters affecting them. At the same time, it is an affirmation of non-discrimination and equality that children can take up matters regarding their interests and welfare with judicial bodies. Litigation is one of the means of accessing justice through which people have recourse to advance their interests and vindicate their rights. Engaging with the justice system can be daunting for vulnerable groups with relatively less power, such as children. It is critical to facilitate access to justice for children, for instance, to clarify the law on their access to safe abortion and grant them access to effective remedies in case they are denied their right to safe abortion (see CEDAW’s General recommendation No. 33 on Women’s Access to Justice para 24).

To protect, respect and fulfil sexual and reproductive health rights and justice of children, countries should heed the Committee’s call to decriminalise access to safe abortion for children and provide child-friendly services that address their rights to reproductive health services, including termination of pregnancy. This is crucial to ensure that children do not suffer discrimination, their best interests are considered, they participate in matters impacting their welfare and well-being and are assured a future in which they survive and develop to attain their full potential despite challenges that they may encounter along the way such as unintended pregnancy.

A NOTE OF GRATITUDE TO CAMILA

I want to join the Chair of the Committee, Ann Skelton, in saluting Camila for her courage in fighting against structural and systemic injustice. Indeed, there were so many obstacles along the way that could have discouraged her from pursuing her case. But with amazing fortitude, she persisted in defending her and all children's rights. I, therefore, urge everyone to support Camila’s fight for justice, equality, and children’s rights, to ensure that our governments comply with their obligations under the CRC and other related child rights instruments, to respect, protect and fulfil sexual and reproductive health rights and children’s rights and eliminate mortality and morbidity due to high-risk child pregnancies.