49
168. That said, the Court notes that the inter-American system for the protection of human rights
does not include a treaty-based norm on regional bioethics and human rights that develops the scope
and content of the rule of informed consent.196 Therefore, to interpret the scope of the State
obligations in relation to the facts of this case, the Court will have recourse, based on the general
rules of interpretation established in Article 29 of the American Convention, and in the Vienna
Convention on the Law of Treaties,197 to the international corpus juris on the matter, as it has on
previous occasions.198 Regarding consent, the corpus juris is based on international declarations,
guidelines, opinions of expert medical committees, directives, criteria and other authorized
statements by specialized bodies, such as the World Health Organization (hereinafter “WHO”), the
International Federation of Gynecology and Obstetrics (hereinafter “FIGO”), the World Medical
Association (hereinafter also “WMA”), the United Nations Educational, Scientific and Cultural
Organization (hereinafter “UNESCO”), the United Nations Treaty Bodies, the Council of Europe, and
the European Court of Human Rights. These agencies have established common legal standards that
constitute general protection for the prior, free, full and informed nature of consent.
169. Regarding the State's argument that the Commission had made numerous references to its
thematic reports,199 seeking to use them to analyze the facts of the case, the Court notes that, among
other sources, these were cited in the Merits Report to interpret the scope and content of the
obligations established in the American Convention. Even though the Court considers that the criteria
established in these reports do not generate binding obligations for the State, this does not prevent
the Commission from taking them into account because, when appropriate, they may guide or
reinforce the Court’s interpretation and application of the international corpus juris in this case insofar
as they identify, systematize and analyze the relevant regional and international legal criteria.
B.2.a
The elements of consent in international law and jurisprudence
170. The Court will now examine how informed consent and its elements have been treated and
developed at the international level, with regard to both medical interventions in general 200 and to
the consent that should be obtained in cases of female sterilization.
171. Informed consent was codified in the aftermath of the Second World War and in reaction to
the atrocities committed with the publication of the 1947 Nuremberg Code of medical ethics. Even
The Court notes that, within the framework of the Council of Europe and the European system, diverse documents
exist that expressly regulate the patient’s prior, free, full and informed consent for the performance of any medical
intervention. Cf. Articles 1 to 3 of A Declaration on the Promotion of Patients’ Rights in Europe, adopted by the WHO Regional
Office for Europe in 1994; articles 5 and 6 of the Convention for the Protection of the Human Rights and Dignity of the Human
Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine (hereinafter
“Oviedo Convention”), adopted by the Council of Europe on April 4, 1997, which entered into force on December 1, 1999, and
its Explanatory report, and article 3 of the Charter of Fundamental Rights of the European Union, adopted in 2000, and
amended in 2007.
196
Cf. The Right to Information on Consular Assistance within the Framework of Due Process of Law. Advisory Opinion
OC-16/99 of October 1, 1999. Series A No. 16, para. 114, and Case of Gonzales Lluy et al. v. Ecuador, supra, para. 21.
197
Cf. The Right to Information on Consular Assistance within the framework of Due Process of Law. Advisory Opinion OC16/99, supra, para. 120; Juridical Status and Rights of Undocumented Migrants. Advisory Opinion OC-18/03 of September
17, 2003. Series A No. 18, para. 117; Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala. Merits. Judgment
of November 19, 1999. Series C No. 63, paras. 192 to 194, and Case of the Pacheco Tineo Family v. Bolivia. Preliminary
objections, merits, reparations and costs. Judgment of November 25, 2013. Series C No. 272, paras. 129, 135, 216 and 217.
198
Access to Maternal Health Services from a Human Rights Perspective of June 7, 2010, and Access to Information on
Reproductive Health from a Human Rights Perspective of November 22, 2011.
199
In general, the term medical interventions will be understood in its broad sense; that is, it encompasses all the medical
interventions performed for prevention, diagnosis, treatment, rehabilitation and surgical procedures; scientific research, and
the participation of subject patients during medical practice to teach students.
200