CONCURRING OPINION OF JUDGE EDUARDO FERRER MAC-GREGOR POISOT CASE OF I.V. v. BOLIVIA JUDGMENT OF NOVEMBER 30, 2016 (Preliminary objections, merits, reparations and costs) 1. Although I am essentially in agreement with the decisions made in the judgment and adopted unanimously, I find it necessary to place on record, as I stated during the respective deliberations, that the case clearly involves the right to health, so that it could have been examined in light of Article 26 of the American Convention on Human Rights in application of the iura novit curia principle, instead of subsuming this right in other precepts of the Pact of San José that were declared to have been violated in the judgment. As I have stated on other occasions, this traditional approach of subsuming rights by connectivity does not contribute to the interdependence and indivisibility of the rights, whether civil, political, economic, social, cultural or environmental, especially at the current stage of development of international human rights law. 2. In the judgment, the Court chose to consider “health as an integral part of the right to personal integrity.”1 Whereas an approach that focused on the social rights would have provided greater conceptual clarity to the real reason for the violations suffered by the victim. Indeed, it should not be overlooked that the central dispute in this case consisted in determining whether the medical procedure of bilateral tubal ligation performed on I.V. by a public official in a State hospital, was contrary to the State’s international obligations. Thus, the crucial aspect was to elucidate whether this procedure was performed following the patient’s informed consent, under the parameters established in international law for this type of medical act at the time of the facts. The Court found it “pertinent to proceed, first, to provide content to the scope of the rights established in the American Convention that have been alleged in this case and that are applicable with regard to sexual and reproductive health.”2 3. The Inter-American Court considered that, at the time of the facts (2000), “the State had an international obligation to obtain, through its health personnel, the consent of patients for medical procedures and, especially, of women in the case of female sterilizations, and this should have complied with the characteristics of being prior, free, full and informed following a process of informed decision-making”;3 and that, for the effects of this case, sterilization without consent that had these characteristics was considered “as non-consensual or involuntary sterilization,” over and above the different terminology adopted by different regional and international human rights agencies. 4 4. A careful reading of the judgment is sufficient to note that, in reality, the right to health (sexual and reproductive) is one of the core aspects of the case, as can be seen 1 2 3 4 Para. 155 Para. 147 Para. 201 See para. of the judgment. of the judgment. of the judgment. 204 of the judgment.