46
and information, education and the means that allow the exercise of the right to decide freely and
responsibly on the number of children desired and the spacing between births. 188 The Court has
considered that “the lack of legal safeguards to take into consideration reproductive health may result
in a serious impairment of reproductive freedom and autonomy.”189
158. In particular, it is worth emphasizing that according to the Committee on Economic, Social
and Cultural Rights, “[r]eproductive health means that women and men have the freedom to decide
if and when to reproduce and the right to be informed and to have access to safe, effective, affordable
and acceptable methods of family planning of their choice as well as the right of access to appropriate
health-care services […].”190 Consequently, the Court finds that States must guarantee access to
information on health matters, especial in the area of sexual and reproductive health,191 and the
denial of this has often signified a barrier for the full exercise of this right and an impediment to free
and full decision-making. Therefore, the Court considers that, with regard to sexual and reproductive
health, the State obligation of active transparency includes the duty of health care personnel to
provide information that helps ensure that people are able to take free and responsible decisions
concerning their own body and sexual and reproductive health, and this relates to intimate aspects
of their personality and their private and family life.
159. In this sense, the Court understands that the informed consent of the patient is a condition
sine qua non in medical practice, and is based on respect for the patients’ autonomy and freedom to
take their own decisions in keeping with their life project. In other words, informed consent ensures
the practical effects of the norm that recognizes autonomy as an essential element of the dignity of
the person
160. In this context, the special relationship between doctor and patient acquires special relevance.
However, the Court notes that this relationship is characterized by the asymmetry in the exercise of
power by the physician based on his special professional knowledge and control of information. This
differentiated power is regulated by certain principles of medical ethics; above all, the principles of
the patient’s autonomy, beneficence and not maleficence, and justice. Given that the physician is a
person who also acts on the basis of his own convictions and preferences, it is plausible that some
of his actions may run counter to the life project of his patients. In this regard, the Court notes that
the World Medical Association’s 1981 Lisbon Declaration on the Rights of the Patient, which is the
first declaration that sets out general rules for physician-patient relations and, specifically, the rights
of patients, starts out by indicating that [w]hile a physician should always act according to his/her
conscience, and always in the best interests of the patient,[192] equal effort must be made to
guarantee patient autonomy and justice. […].” Therefore, the principle of autonomy acquires vital
health, May 2, 2016, para. 5.
188
Article 16(e) of the Convention for the Elimination of All Forms of Discrimination against Women.
189
Case of Artavia Murillo et al. (“In vitro fertilization”) v. Costa Rica, supra, para. 147.
Cf. Case of Artavia Murillo et al. (“In vitro fertilization”) v. Costa Rica, supra, para. 148, citing UN, Committee on
Economic, Social and Cultural Rights, General Comment No. 14, The right to the highest attainable standard of health, August
11, 2000, footnote 12.
190
The Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment made a special
analysis of reproductive rights in his 2013 report and considered that: “[a]ccess to information about reproductive health is
imperative to a woman’s ability to exercise reproductive autonomy, and the rights to health and to physical integrity.” UN,
Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez,
A/HRC/22/53, February 1, 2013, para. 47.
191
The World Medical Association also adopted an International Code of Medical Ethics in 1949, revised in 2006, in which
it declared as one of the duties of doctors that they must “respect the right of a patient with capacity to accept or reject a
treatment” and “respect the rights and preferences of patients” “[…] providing a competent medical service […] respecting
human dignity.”
192