Law and Policy Guide: Informed Consent

05.29.2019

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Informed Consent to Abortion

Women and girls must be afforded understandable, accurate and unbiased information about abortion services in order to guarantee their full and informed consent. Notably, informed consent does not include biased or directive counselling or the forced provision of information that a woman does not wish to receive, such as the forced viewing of ultrasound images. Informed consent is integral for ensuring women and girls electing to undergo an abortion understand the different facets of abortion care.

Human Rights Norms

UN Treaty Monitoring Bodies

United Nations Treaty Monitoring Bodies (TMBs) have made clear that full and informed consent is necessary for all reproductive health services, including abortion services. Full and informed consent requires that a woman be provided with information and counselling, if she so desires, in a way she is able to understand it, both about the procedure (including its risks and benefits) as well as about alternatives to the procedure, so as to ensure that she can make a well-considered and voluntary decision.1

The Committee on the Rights of People with Disabilities (CRPD Committee) has repeatedly called on States to revise their laws and policies to ensure the prohibition of forced sterilization and forced abortions of women with disabilities without their free and informed consent.2 The CRPD Committee has also recommended that states implement measures to ensure an individual’s right to free and informed consent to abortion services and that, as needed, supported decision-making mechanisms are provided for women with disabilities.3 Likewise, the Committee on the Rights of the Child (CRC) urged states to review their legislation in order to guarantee “the best interests of pregnant adolescents and ensure that their views are always heard and respected in abortion-related decisions.”4 The CRC also calls on states to ensure that “girls can make autonomous and informed decisions on their reproductive health.”5  In General Recommendation No. 35 on Gender-based Violence against Women the Committee on the Elimination of Discrimination against Women recognised that violations of women’s sexual and reproductive health and rights, including forced abortion, are forms of gender-based violence that can amount to torture or cruel, inhuman and degrading treatment.6

European Human Rights Bodies

The Council of Europe Convention on preventing and combating violence against women and domestic violence specifically requires state parties to take necessary steps to ensure that performing an abortion on a woman without her prior and informed consent is criminalized.7

In its Resolution on the Situation of Women with Disabilities, the European Parliament also acknowledged its concern of the denial of access to facilities in the area of sexual and reproductive health, forced sterilisation, and coerced abortion of women and girls with disabilities and called on member states to implement legislative measures “that safeguard physical integrity, freedom of choice and self-determination with regard to the sexual and reproductive life of girls and women with disabilities.”8

African Human Rights Bodies

In General Comment 2 on Article 14 of the Maputo Protocol, the African Commission on Human and Peoples’ Rights explicitly states that state parties must ensure the necessary legislative framework to guarantee that no woman, regardless of her status or any other situation, is forced to undergo an abortion, emphasizing that “use of family planning/contraception and safe abortion services by women should be done with their own informed and voluntary consent.”9 Moreover, the African Commission makes clear that the training of health workers should include “respect for the autonomy and free and informed consent of women and girls.”10

Global Medical Standards

The World Health Organization (WHO) makes clear in its Safe abortion: technical and policy guidance for health systems that in order to facilitate a woman’s decision-making and voluntary consent to an abortion, “complete, accurate and easy-to-understand information about the procedure and what to expect during and afterwards must be given to the woman in a format that is accessible to her…”11  The WHO also makes clear that while counselling can be important in facilitating the decision making process, it should at all times be voluntary and a woman’s decision to forgo counselling should be respected.12

The WHO also addresses healthcare provider’s duties in respect to women with disabilities, noting that the stigma and discrimination which may be associated with physical and mental disabilities (and health status, such as living with HIV) may be used as a reason to coerce a woman into having an abortion. The WHO states that “coercion violates women’s rights to informed consent and dignity” and that “… health-care providers have a human rights obligation to ensure that women are not subject to coercion and that they receive the necessary psychological, social and health services to support their choice.”13 The WHO is also clear that at a minimum, any counselling services requested should be voluntary, confidential, and non-directive, so as to enable the woman to make an informed decision.14

The International Federation of Gynaecology and Obstetrics (FIGO) has also published Guidelines Regarding Informed Consent, defining informed consent as:

“consent obtained freely, without threats or improper inducements, after appropriate disclosure to the patient of adequate and understandable information in a form and language understood by the patient on:

  1. a) the diagnostic assessment;
  2. b) the purpose, method, likely duration and expected benefit of the proposed treatment;
  3. c) alternative modes of treatment, including those less intrusive, and
  4. d) possible pain or discomfort, risks and side effects of the proposed treatment.”15

FIGO emphasizes that the opinion of children and adolescents should be assessed according to their level of development and understanding, and that women who are unable to make a decision because of their mental incapacity should nevertheless be involved in the decision-making process to the fullest extent their capacity allows.16

Comparative Law

The vast majority of countries generally recognize the importance of informed consent for medical procedures and have created sanctions for administering abortion without the woman’s full and informed consent. For example, Uruguay’s abortion laws provide criminal sanctions of between two to eight years imprisonment for causing an abortion without the consent of the woman.17 Likewise in Austria, performing an abortion without the consent of the woman is only permitted to save her life, otherwise the person performing the abortion faces up to five years imprisonment.18

Some countries specifically articulate how consent is to be obtained from women before an abortion procedure can take place. Chile’s Health Code specifies that consent to abortion must be provided in writing in advance of the procedure. It also states that alternative means of communication must be available for women with disabilities in accordance with the Convention on the Rights of People with Disabilities.

  • 1. A.S. v. Hungary, CEDAW Committee, Commc’n No. 4/2004, para. 11.3, U.N. Doc. CEDAW/C/36/D/4/2004 (2006).
  • 2. Concluding observations of the CRPD: China, 2012 (UN Doc CRPD/C/CHN/CO/1); Concluding observations of the CRPD: Hungary, 2012 (UN Doc CRPD/C/HUN/CO/1); Concluding observations of the CRPD: Peru, 2012 (UN Doc CRPD/C/Per/CO/1).
  • 3. CRPD, Concluding Observations: Thailand, para 36, U.N. Doc CRPD/C/THA/CO/1 (2012).
  • 4. CRC Committee, Gen. Comment No. 20, supra note 1, para. 60.
  • 5. CRC Committee, General Comment 15: The Right of the Child to the Enjoyment of the Highest Attainable Standard of Health, (62nd Sess.), para. 56, U.N. Doc. CRC/C/GC/15 (2013) [hereinafter CRC Committee, Gen. Comment No. 15].
  • 6. CEDAW, General Recommendation No. 35 on gender-based violence against women, updating general recommendation No. 19, 2017, para 18.
  • 7. Council of Europe Convention on preventing and combating violence against women and domestic violence, art 39(a), Council of Europe Treaty Series No. 210.
  • 8. European Parliament, Resolution on the situation of women with disabilities, para 19 (2018/2685(RSP).
  • 9. The African Commission on Human and Peoples’ Rights (African Commission), General Comment No. 2 on Article 14 (1) (a), (b), (c) and (f) and Article 14 (2) (a) and (c) of the Maputo Protocol, online: African Commission on Human and People’s Rights at para 47.
  • 10. Id. At para 58.
  • 11. World Health Organization, Safe Abortion: Technical and Policy Guidance for Health Systems 31 (2d ed. 2012).
  • 12. Id. At 36.
  • 13. Id, at 69.
  • 14. Id., at 64.
  • 15. FIGO Committee for the Study of Ethical Aspects of Human Reproduction and Women’s Health, Guidelines Regarding Informed Consent, in Ethical Issues in Obstetrics and Gynecology, 23 (2015) [hereinafter Guidelines Regarding Informed Consent].
  • 16. Id.
  • 17. Penal Code, Law No. 9.155 of December 4th of 1933, art. 325. (Uruguay).
  • 18. Federal Act of 23 January 1974 on actions threated with legal punishment (Criminal Code – StGB), arts. 98(1)-(2) (Austria).