INTERIGHTS Bulletin

INTERIGHTS Bulletin
Volume 16 Number 4 2011
181
International
Law Reports
correspondence and to protection of the law against
such interference or attacks – of the ICCPR
L.M.R. v Argentina
Communication no. 1608/2007
Decision of the HRC, 29 March 2011
LMR is a young woman with a permanent mental
impairment, having a mental age between eight and ten
years old. LMR was raped and became pregnant. VDA,
LMR’s mother, sought to have LMR’s pregnancy
terminated. Under Argentine law, an abortion is
permitted if the pregnancy results from the rape of a
woman with a mental disability and the woman’s legal
representative consents.
The staff of the first hospital that LMR visited in June
2006 refused to perform the abortion. VDA took LMR to
a second hospital, SMH, which was willing to perform
the abortion. LMR was almost 15 weeks pregnant at the
time. However, before the procedure could be
performed, the juvenile court issued an injunction
against SMH performing the procedure on the grounds
that a wrongful assault (the rape) could not be repaired
‘with another wrongful assault against a new innocent
victim, i.e. the unborn child’. On 31 July 2006 the
Supreme Court of Justice of Buenos Aires overruled this
decision and held that the abortion could proceed.
Following the Supreme Court’s ruling, SMH came under
enormous pressure from sources opposed to abortion
(including various Catholic groups) and refused to
perform the procedure on the grounds that the
pregnancy was, at that time, too far advanced. LMR
subsequently underwent an illegal abortion.
VDA filed a communication with the HRC on behalf of
LMR alleging that forcing LMR to continue her
pregnancy constituted cruel and degrading treatment in
violation of Article 7 of the ICCPR. The communication
also alleged that, in taking a decision concerning LMR’s
life and reproductive health on LMR’s behalf, Argentina
had arbitrarily interfered in her private life, in violation
of Article 17 of the ICCPR. VDA complained that
Argentina’s failure to safeguard LMR’s legal right to a
procedure required solely by women was discriminatory
conduct in violation of Article 3 of the ICCPR, and that
Argentina had forced LMR to undergo a risky illegal
abortion, in violation of VDA’s right to life. The
communication further alleged that, because Argentina
lacked the mechanism to ensure that LMR could exercise
her legal right to an abortion, Argentina had violated
Article 2 of the ICCPR. Finally, VDA complained that the
failure of Argentina to protect LMR’s rights in the face of
coercion by various Catholic groups was a violation of
Article 18 of the ICCPR.
Argentina conceded that it could be concluded from the
Supreme Court’s ruling that the lower court had possibly
interfered unlawfully with LMR’s right to an abortion in
violation of Article 2. However, Argentina argued that the
judiciary had acted promptly since the matter was
resolved by the Supreme Court in less than four weeks
and that the choice by the hospital not to terminate the
pregnancy was due to the advanced stage of the
pregnancy. Argentina acknowledged that its unlawful
interference, through the judiciary, in an issue that
should have been resolved between LMR and her
physician could be considered a violation of LMR’s right
to privacy in violation of Article 17. Nonetheless,
Argentina argued that forcing LMR to endure a
pregnancy resulting from rape and to undergo an illegal
abortion did not rise to the level of torture or cruel
treatment in violation of Article 7 and that LMR’s
decision to resort to an unsafe abortion was her own
decision, therefore the illegal abortion should not be
considered a direct consequence of state action. Finally,
Argentina contended that it had not committed a
violation of Article 18, in that the activities of the Catholic
groups were unconnected to the actions of state officials.
The Committee held that: (1) there is nothing in the case
file to indicate that LMR’s life was exposed to particular
danger as a result of the illegal abortion, therefore, the
allegation that Argentina violated LMR’s right to life
under the ICCPR is inadmissible; (2) the author has not
adequately substantiated her complaint of a violation of
Article 18, therefore it is inadmissible; (3) Argentina’s
failure to guarantee LMR’s right to an abortion caused
LMR physical and mental suffering in violation of Article
7; (4) Argentina’s unlawful interference through the
judiciary, in an issue that should have been resolved
between the patient and her physician, violated Article
17(1) of the ICCPR; (5) LMR did not have access to an
effective remedy to lawfully terminate her pregnancy in
violation of Article 2(3) in relation to Articles 3, 7 and 17
of the ICCPR; (6) under Article 2(3)(a) of the ICCPR,
Argentina is obligated to compensate LMR and to take
steps to prevent future violations; (7) within 180 days,