48
165. The Court has established that States have the international obligation to obtain informed
consent before performing any medical act based, above all, on the autonomy and self-determination
of the individual, and as part of respecting and ensuring the dignity of every human being, as well as
their right to personal liberty. This means that the individual may act according to his or her own
wishes, and ability to consider choices, take decisions and act without the arbitrary interference of
third parties, all of this within the limits established in the Convention. This is so, especially, in cases
of female sterilization, because such procedures entail the permanent loss of reproductive capacity.
The need to obtain informed consent protects not only the right of patients to decide freely whether
they wish to submit to a medical act, but is also an essential mechanism to achieve the respect and
guarantee of different human rights recognized by the American Convention, such as to dignity, to
personal liberty, to personal integrity – including health care and, in particular, sexual and
reproductive health care – to private and family life and to raise a family. In addition, the Court finds
that the guarantee of free consent and the right to autonomy in the choice of contraception methods
is an effective deterrence, especially in the case of women, of the practice of involuntary, nonconsensual, coercive or forced sterilization.
166. The Court considers that the concept of informed consent consists in a prior decision to accept
or to submit to a medical act in the broadest sense, which has been freely obtained – in other words,
without threats or coercion, improper induction or incentives – and given after obtaining adequate,
complete, reliable, comprehensible and accessible information, provided that this information has
really been understood, which would allow the individual to give their full consent. Informed consent
is the positive decision to submit to a medical act resulting from a decision process, or prior, free
and informed choice, which constitutes a two-way mechanism of interaction in the physician-patient
relationship, through which the patient plays an active role in the decision-making, thus moving away
from the paternalistic view of medicine, and focusing on the autonomy of the individual (supra paras.
160 and 161). This consists not only in an act of acceptance,194 but also in the result of a process in
which the following elements must be present for it to be considered valid: the consent must be
prior, free, full and informed. All these elements are interrelated, because consent cannot be free
and full if it has not been given after the patient has obtained and understood comprehensive
information.
167. In this regard, the Court finds it necessary to refer, first, to the State’s argument that, when
the facts of this case occurred, July 1, 2000, several of the standards for informed consent, in
particular regarding the information that health-care personnel should provide to the patient, were
not in force. The Court understands that the essential elements of consent have remained untouched
throughout the evolution of the concept, as will be referred to below. However, it is possible to note
that, nowadays, these elements have been incorporated into both international law and the domestic
law of the States including, for example, more detail and specificity concerning the type and content
of the information that must be provide to the patient so that the latter can take a decision, depending
on the medical intervention concerned. In the Court’s opinion, this means that, in a case of
sterilization in 2000, the basic essential information could not be omitted by the health personnel
(infra para. 190). Also, the Court finds it opportune to recall that, based on the facts of this case, the
obligation to obtain informed consent was a crucial mechanism for the effective enjoyment of other
rights recognized in the American Convention; thus, the year in which the wrongful acts took place
was irrelevant. The obligation to obtain informed consent should have been respected by the States
Parties from the moment they ratified this treaty; it did not arise following the Court’s application
and interpretation of the Convention in the exercise of its contentious jurisdiction.195
Cf. 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. 9.
194
Cf., mutatis mutandi, Case of Vélez Restrepo and family v. Colombia. Preliminary objection, merits, reparations and
costs. Judgment of September 3 2012. Series C No. 248, paras. 241 and 244, and Case of Tenorio Roca et al. v. Peru, supra,
para. 196.
195