Good news from Bogota on Sexual and Reproductive Rights

Sorry if this is rather long, but while I am waiting for the election results, I thought I’d post something to give you all hope regarding the state of reproductive rights here in Colombia– I promise a happy ending! Honest!

Approximately two years ago the Constitutional Court decriminalised the voluntary interruption of pregnancy (ie abortion) in the three cases we are all familiar with – malformations of the foetus, danger to health of the mother and where unlawful carnal access (ie rape) had been deemed to occur.  It is fair to say that in terms of women’s rights, the sentence C-355 de 2006 was groundbreaking largely as Colombia is, in many respects, a conservative country.  Notwithstanding, it has had a level of debate in its urban centres regarding sexual and reproductive rights that is pretty advanced, particularly in comparison with elements of the debate in the United States, but I digress.

Remarkably noteworthy was the stipulation that the mere act of reporting the rape to the competent was enough for the termination of the pregnancy; considering that many women have been raped by actors in the country’s notorious armed conflict, the Court recently ruled that, in theatres of action, the reporting of the rape to competent NGOs such as the Red Cross would suffice and the crime would not have to be reported to the Fiscalía – or the state prosecution service.

Unfortunately, many (private) health-care providers have not been complying.  An example is an infamous case which happened in the town of Cucutá – on the border with Venezuela.   A minor (in Colombia, under 14 years of age in sexual matters) reported her rape in 2007. 

She obtained the authorisation to proceed with the abortion, but could find no health-care provider in Cucutá wiling to carry out the procedure as all the doctors in the city of 750,000 people claimed to be contentious objectors.  After recurring to the acción de tutela (a judicial mechanism which is supposed to guarantee fundamental rights) to demand that her health-care provider (Coomeva), the first judge rejected the request as there was supposedly a lack of consistency between the date of the reported rape and the actual state of gestation, it was also rejected on appeal by a higher judge.   As much time had elapsed, the girl ended up giving birth to her child.

Following all this legal manoeuvring, the case was finally considered by the Constitutional Court and in its Sentence T-209 de 2008, it ruled that

1.       Coomeva was responsible for paying the girl compensation, remitting the case to a different jurisdiction to ‘haggle’ as it were over just how much this amount will be.

2.       The two judges shall be subject to disciplinary and legal procedures – as they were technically acting as constitutional judges, which means that as the only thing they were required to guarantee fundamental rights and not get involved in value judgements as to the certainty or not of the girl’s ‘claims.’ The case was remitted to the Procuaduría for this disciplinary case.

3.       The doctors should be investigated for possible disciplinary offences as the fundamental right to contentious objection is limited by the right to the mother to her health – in other words that somebody should have performed the abortion.

4.       The Court also clarified the position of the contentious objectors.  They should be registered in advance with the competent medical authorities, not all doctors in a health-care centre can claim to object to abortion on moral grounds, they have to be practicing members of a religious organisation and only doctors may object.

5.       It is of course worth stating that the indemnisation that Coomenva will have to pay has no effect whatsoever on any legal actions that the girl – or her representative – may chose to take against the doctors and the judges who ruled in the tutelas .

During the time we had to wait for this ruling, several other health-care providers tried to pull the same trick, and, as a result, several other cases have come to light

We still don’t know what the compensation for the girl will be, but the fact that liability has been declared and it’s only the actual financial worth that is in question ahs been a tremendous incentive to other health-care providers NOT to pull the same stunt.

But the other piece of good news is that the Constitutional Court has done it again!  On Friday, it issued a communication clearing the way for lawsuits seeking compensation against the health-care providers and the doctors.  It’s quite a step forward!