Around the world, laws and policies stigmatize and discriminate against people living with HIV/AIDS, violating their human rights. In reaction to this, people living with HIV are increasingly using the law to hold governments accountable for human rights violations and to ensure that others do not face the same discrimination and abuse.
In a recent article featured in the Outlook Report, the magazine of the Joint United Nations Programme on HIV/AIDS (UNAIDS) and distributed at the XVIII International AIDS Conference, the publication tackled the challenges facing HIV-positive people around the world. The article highlights the Center’s case, F.S. v. Chile , in which a pregnant HIV-positive woman (F.S.) was sterilized without her consent during a caesarean section. Chilean law requires that all sterilizations be voluntary and authorized in writing. Despite the fact that no authorization, written or oral, was provided for F.S.’s procedure, the Chilean courts dismissed F.S.’s case.
With the help of the Center and the Chilean organization Vivo Positivo, F.S. brought her case to the Inter-American Commission on Human Rights, where it is now pending. The petition seeks redress from Chile for the violations suffered by F.S., as well as substantive policy changes to ensure the rights of other HIV-positive women. According to a 2003 study by Vivo Positivo, F.S.’s case is not an isolated incident: 50 percent of HIV-positive women that underwent sterilization after learning their HIV status reported that healthcare providers pressured or forced them to sterilize.
The section featuring the Center’s case F.S. v. Chile:
For women, being HIV-positive can be a double burden. A stark example of the kind of gender-specific human rights violation that women face is their forced sterilization if found to be HIV-positive. In Namibia, a study conducted in 2008 by the International Community of Women Living with HIV/AIDS and the Namibian Legal Assistance Centre found that nearly one fifth of the 230 HIV-positive women they interviewed said that they had been forced to become sterilized. In Chile, the nongovernmental organization Vivo Positivo reported in a 2003 study that 50% of women in the country who had undergone surgical sterilization after learning about their HIV-positive status said they were pressured by health-care providers to do so, or that it was performed without their knowledge.
‘F.S.’, who has requested to remain anonymous, is a young Chilean woman. She says she continues to suffer the emotional scars of her sterilization, which she claims was forced. In 2002, she was excited to learn that she was pregnant, but when she went to her public rural hospital, she found out that she was HIV-positive. “I did not tell my family about the test result, but my husband was supportive so I was able to live with the news,” said F.S. Her husband is also HIV-positive, and after learning of her status F.S. began antiretroviral therapy to prevent mother-to-child transmission.
In November of 2002 she was scheduled for a caesarean section. While F.S. was in surgery and under anaesthesia, the surgeon delivered her baby, but apparently also performed a tubal ligation. F.S. alleges that at no time during her pregnancy or stay in the hospital did she request to be sterilized, nor did she consent verbally or in writing to the life-changing procedure.
In Chile, traditional values and gender roles can be very strong, and motherhood is an intrinsic part of many women’s identities.
“Being a mother is an extraordinary experience. It’s part of life. It’s part of being a woman,” said F.S. “I wanted to have at least two children, a boy and a girl. That was my dream, my ultimate goal in life.”
F.S. gave birth to a healthy baby boy, who is HIV-negative, but she feels she was wrongfully denied the further happiness that comes with having another baby. In 2007, she filed a criminal complaint against the operating surgeon, alleging that the sterilization was forced and without consent. Chilean law requires that all sterilizations be authorized in writing, with the patient’s fully informed consent. The surgical team has never contested the fact that no written authorization was ever provided for the procedure and has offered conflicting testimony regarding F.S.’s alleged oral consent.
The local court dismissed the case, and the appeal court upheld the dismissal. F.S. then filed a complaint with the Inter-American Commission on Human Rights in February 2009 in conjunction with the Center for Reproductive Rights and Vivo Positivo. The petition alleges that the Chilean state violated F.S.’s rights and seeks to compel the Chilean government to hold its doctors accountable for the rights violation. F.S. continues to wait for her case to be heard by the Commission.