underlying prejudices and inequalities.”160 This guideline has been interpreted to mean that
States should support the development of adequate, accessible and effective HIV-related
prevention and care services by and for vulnerable communities, and that they should
ensure that all women of child-bearing age have access to accurate and comprehensive
information and counselling on the prevention of HIV transmission and the risk of vertical
transmission of HIV, as well as to resources available to minimize that risk.161
135. In this regard, the Court notes that 25 of the presumed victims in this case are
women, of whom five were pregnant when they were diagnosed with HIV or became
pregnant after their diagnosis.162
136. In this regard, the Court notes the following: (i) Sandra Lisbeth Zepeda Herrera was
diagnosed with HIV when she was seven months pregnant, but did not receive adequate
treatment to avoid the vertical transmission of the virus that occurred;163 (ii) Pascuala de
Jesús Mérida Rodríguez was five months pregnant when she was diagnosed with HIV, and
although she received antiretroviral treatment from MSF during her pregnancy, the medical
staff of the hospital where she gave birth to her son refused to perform the planned
cesarean section, which meant that she risked transmitting the virus to her son, 164 and (iii)
regarding the care received by Saira Elisa Barrios, Corina Dianeth Robledo Alvarado and
Dora Marina Martínez Sofoifa, the Court has insufficient information to determine any State
acts or omissions related to their care as pregnant women living with HIV.
137. Consequently, the Court considers that the failure to provide antiretroviral treatment
to Mrs. Zepeda Herrera when she was pregnant, and to perform a cesarean section in the
case of Mrs. Jesús Mérida when this had been programmed as a preventive measure
constituted a form of gender-based discrimination, because the State failed to provide
adequate medical care to pregnant women living with HIV, and this had a differentiated
impact and resulted in a risk of vertical transmission of HIV to their offspring. The Court
notes that, according to information submitted by expert witness Oscar Cabrera, preventing
mother-to-child transmission of HIV is a priority for eliminating HIV in children, because
more than 90% of children with HIV are infected through their mothers during pregnancy,
labor, birth, and breast-feeding and, without treatment, more than half the children with
HIV will die within their first two years of life.165
138. Furthermore, the Court considers that the conditions of being women living with HIV
and being pregnant coalesced in an intersectional manner for Mrs. Zepeda Herrera and Mrs.
Jesús Mérida who, owing to their situation, formed part of a vulnerable group so that the
discrimination against them was the result of several factors that intersected and
Cf. Office of the United Nations High Commissioner for Human Rights (OHCHR) and the Joint United
Nations Program on HIV and AIDS (UNAIDS), International Guidelines on HIV/AIDS and Human Rights.
Consolidated version, 2006, eighth guideline.
160
Cf. Office of the United Nations High Commissioner for Human Rights (OHCHR) and the Joint United
Nations Program on HIV and AIDS (UNAIDS), International Guidelines on HIV/AIDS and Human Rights.
Consolidated version, 2006, eighth guideline, pp. 52 to 54.
161
The following persons fall within this category: Sandra Lisbeth Zepeda Herrera, Pascuala de Jesús Mérida,
Saira Elisa Barrios, Corina Dianeth Robledo and Dora Marina Martínez.
162
163
11544).
Cf. Affidavit prepared by Sandra Lisbeth Zepeda Herrera on December 15, 2016 (evidence file, folio
Cf. Affidavit prepared by Pascuala De Jesús Mérida Rodríguez de Maldonado on January 11, 2017
(evidence file, folio 11763).
164
165
Cf. Expert opinion provided by Oscar Cabrera on March 6, 2018 (merits file, folio 1707).
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