77
by the State to differentiate treatment must be particularly significant and based on a thorough
substantiation. In addition, the burden of proof is inversed, which means that it is for the authority
to prove that neither the purpose nor the effects of the decision were discriminatory.”324
245. When examining the facts of this case and the State’s arguments that the purpose of the
sterilization procedure was to safeguard I.V.’s life in view of the danger that a future pregnancy could
involve for the patient’s life, the Court notes that the differentiating measure – that is the tubal
ligation performed on I.V. as a method of contraception – could, in principle, have had an objective
that was not only legitimate, but even imperative, insofar as it was appropriate to protect her health
and possibly her life in view of the risk of another pregnancy, because she was permanently deprived
of her reproductive capacity. However, it was not strictly necessary, because the same objective
could have been achieved with measures that were less harmful for her autonomy and reproductive
freedom and less invasive of her private and family life.
246. Thus, the sterilization procedure denied I.V. the possibility of knowing and weighing up
alternative contraceptive methods and the possibility of choosing a non-permanent and less invasive
method. Moreover, she did not receive information on alternative contraceptive methods that could
have been taken by her husband to avoid a future pregnancy, so that I.V. was assigned the burden
of family planning and reproduction. The Court considers that the sterilization procedure annulled
I.V.’s decision-making power and also her autonomy in a discriminatory manner because the
physician only took into account his criteria and failed to take into consideration the specific wishes
and needs of his patient. Also, the fact that the physician tried to locate the husband to obtain his
authorization or, in the best-case scenario, ratify the consent supposedly obtained from I.V. during
the peri-operative period (supra para. 65), reveals that he acted based on the stereotype that she
was not capable of taking an autonomous decision about her body. The circumstances in which the
State alleges that I.V.’s consent was obtained, denied her the opportunity to take a free and informed
decision in keeping with her life project. Thus, the physician performed an unjustified paternalistic
medical procedure, because curtailing her reproductive capacity without her prior, free, full and
informed consent severely restricted I.V.’s autonomy and freedom to take a decision regarding her
body and her reproductive health, and interfered abusively with her private and family life, motivated
by the desire to avoid harm to her future health, but without taking into consideration her wishes
and with grave consequences for her personal integrity (infra Chapter VIII-2) based on the fact that
she was a woman.
247. That said, the Court has also been asked to determine whether, in the case of I.V., multiple
forms of discriminations occurred, and whether the different criteria alleged (supra para. 242)
converged and intersected to configure a particular and specific situation of discrimination. 325 The
Court has recognized that identifiable subgroups of women suffer from discrimination throughout
their lives based on more than one factor combined with their sex, which increases their risk of
suffering acts of violence and other human rights violations.326 On this point, the Court underlines
that non-consensual sterilization is a phenomenon that, in different contexts and parts of the world
has had a greater impact on women who form part of subgroups with greater vulnerability to suffer
this human rights violation, due either to their socio-economic status, their race, their disabilities, or
to the fact that they are living with HIV. 327
324
Case of Gonzales Lluy et al. v. Ecuador, supra, para. 257, and Case of Flor Freire v. Ecuador, supra, para. 125.
325
Cf. Case of Gonzales Lluy et al. v. Ecuador, supra, para. 290.
326
Cf. Case of Gonzales Lluy et al. v. Ecuador, supra, para. 288.
Cf. UN, Report of the Special Rapporteur on violence against women, its causes and consequences, Rashida Manjoo,
Multiple and intersecting forms of discrimination and violence against women, A/HRC/17/26, May 2, 2011, para. 72, and
Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez,
A/HRC/22/53, February 1, 2013, para. 48.
327