60
clear that the decision corresponds to the woman alone, although it may be discussed with her
partner (supra para. 182). Similarly, it is necessary to mention that, even though sterilization may
be medically appropriate, it is neither an urgent nor emergency measure (supra paras. 177 and 178).
194. The Court considers that, in general, the special considerations inherent in informed consent
for sterilization and the necessary aspects that health care personnel should address to enable the
woman to take a prior, free, full and informed decision accord with the standards established by WHO
since 1993 and FIGO since 1989.250 Additionally, FIGO and the UN Interagency Statement have given
great relevance to the obligation not to intentionally censure, retain or misinterpret information on
sterilization and alternative contraceptive methods, in order to obtain consent, as this could endanger
both health and basic human rights.251
195. In addition, even though there is no international consensus or one resulting from the
domestic law of the States with regard to whether consent should be given verbally or in writing, the
Court considers that the evidence of its existence should be documented or recorded formally in
some instrument.252 This will evidently depend on each case and situation. However, the Court finds
it relevant to stress that, pursuant to comparative law, all the States that regulated female surgical
sterilization in their domestic law up until 2000, as well as the States that required informed consent
in writing, required this, above all, for medical procedures that, owing to their invasive nature or
gravity, warranted greater safety and formality in the process to obtain consent (infra para. 199).
196. Notwithstanding the above, the Court agrees with the Commission that, in cases of female
sterilization, owing to the relevance and implications of the decision and for greater legal certainty,
consent should be given in writing insofar as possible. The more important the consequences of the
decision to be taken, the more rigorous should be the controls to ensure that valid consent is given.
B.2.b
The elements of consent derived from domestic legal systems
to 2454 and 2457).
Cf. WHO, Female sterilization: a guide to provision of services, 1993 (evidence file, volume XIII, annex 3 to the State’s
final arguments, folios 5510 to 5520 and 5530 and 5531); WHO, Ensuring human rights in the provision of contraceptive
information and services; Guidance and recommendations, 2014; Ensuring human rights within contraceptive programmes.
A human rights analysis of existing quantitative indicators, 2014, pp. 25 and 26; Framework for ensuring human rights in the
provision of contraceptive information and services, 2014, pp. 3 to 6; Medical eligibility criteria for contraceptive use, first
edition, 1996, pp. 87 and ff.; second edition, 2000, pp. 105 and ff.; third edition, 2005, pp. 105 and ff.; and fourth edition,
2009, pp. 105 and ff.; FIGO, Recommendations on ethics issues in obstetrics and gynecology by the FIGO Committee for the
Study of Ethical Aspects of Human Reproduction and Women’s Health of November 2003, October 2012 and October 2015,
which include the Guidelines regarding informed consent, adopted in 1995 and reaffirmed and supplemented in 2007, pp. 166
and 167 (2003), pp. 316 to 318 (2012) and pp. 399 to 401 (2015), as well as the Ethical recommendations on female
sterilization of 1989, 1990, 2000 and 2011, pp. 55 to 57 and 213 to 218 (2003), pp. 436 to 440 (2012) and pp. 537 to 541
(2015), and United Nations Interagency Statement “Eliminating forced, coercive and otherwise involuntary sterilization,”
adopted by OHCHR, UN Women, UNAIDS, UNDP, UNFPA, UNICEF and WHO, 2014 (evidence file, volume VIII, annex 25 to
the brief with motions, pleadings and evidence, folios 2452 to 2457).
250
Similarly, the World Medical Association Statement on Forced and Coerced Sterilisation establishes that a full range of
contraception services, including sterilization, should be accessible and affordable to every individual. Cf. WMA, the World
Medical Association Statement on Forced and Coerced Sterilisation, adopted by the 63rd General Assembly, Bangkok, Thailand,
October 2012, which underlines that “[c]onsent to sterilisation should be free from material or social incentives which might
distort freedom of choice” (evidence file, volume VIII, annex 31 to the brief with motions, pleadings and evidence, folios 2613
and 2614).
251
Principle 23 of the Declaration of Helsinki indicates that consent should be given “preferably in writing [but i]f the
consent cannot be obtained in writing, the non-written consent must be formally documented and witnessed.” Similarly, see
WHO, Female sterilization: a guide to provision of services, 1993 (evidence file, volume XIII, annex 3 to the State’s final
arguments, folios 5518 to 5520), and UN, Report of the Special Rapporteur on the right of everyone to the highest attainable
standard of physical and mental health, Anand Grover, A/64/272, August 10, 2009, para. 13.
252