Forced Sterilisation before the Inter-American Court: Between Progress and Silence in Ramos Durand v. Peru

On 5 March, the Inter-American Court on Human Rights (IACtHR) notified its long-awaited judgment in Celia Edith Ramos Durand v. Peru. The case concerns the forced sterilisation of Celia Edith Ramos Durand and stands for thousands of predominantly Indigenous women who were sterilised under coercive conditions in Peru in the late 1990s. It is only the second judgment in which the Court addressed forced sterilisation, following I.V. v. Bolivia.

The judgment has been widely welcomed as an important step toward justice in a challenging domestic context. It also contains notable ‘firsts’, including the majority’s decision to analyse the facts under the right to health and their characterisation as reproductive violence. At the same time, it raises important concerns. Most notably, the Court declined to qualify the acts as torture or cruel, inhuman or degrading treatment and refrained from recognising the forced sterilisations as crimes against humanity – a qualification it has made in previous judgments in relation to other underlying acts.

The Facts

Celia Edith Ramos Durand, a mother of three, was 34 years old when she underwent a tubal ligation after health personnel repeatedly visited her home in a rural village in Piura to persuade her to undergo the procedure. On 3 July 1997, during the surgery, she suffered a severe allergic reaction. The health centre lacked the necessary equipment and medication to address the emergency. She fell into a coma and was transferred to a clinic, where she died 19 days later.

The complaint her husband lodged against the medical personnel did not result in any convictions, mirroring the outcome in more than 2,000 similar cases. In particular, former president Alberto Fujimori died before any judicial determination of his responsibility was made.

According to a congressional inquiry, 314,605 women and 24,563 men were sterilised in Peru between 1993 and 1999 during Fujimori’s rule (para. 52). The procedures were performed as part of the “Programme of Reproductive Health and Family Planning 1996 to 2000” (NRHFPP), implemented by the Ministry of Health. As noted by the Court, the ‘policy was organised and directed from the highest levels of the State’ (original in Spanish, para. 153). The programme established several targets, including ensuring ‘that 100% of patients receiving institutional care for childbirth or abortion are discharged after having started a safe method of contraception following individual counselling’ (original in Spanish, p. 27). The Programme prioritised surgical contraception and targeted primarily Indigenous women in rural and low-income areas. Indeed, 93 per cent of the procedures were performed on women. As early as 1997, testimonies began to emerge from women reporting that they had been coerced into undergoing the procedure (para. 56; some testimonies can be found here).

The Court’s Reasoning

The Court found Peru responsible for the forced sterilisation and death of Celia Edith Ramos Durand. In particular, the State failed to obtain her free, prior, full and informed consent. Although she had signed a consent form before the procedure, the document was obtained under coercion and did not inform her about the risks associated with tubal ligation. Instead, it emphasised the alleged serious health risks of not undergoing the procedure. The consent form, therefore, did not ensure the proper informed consent (para. 162).

Notably, for the first time, the IACtHR primarily examined the facts through the lens of the right to health. The Court had recognised the justiciability of this right only in 2018 in Poblete Vilches, two years after its forced sterilisation judgment in I.V. v. Bolivia. It is finally notable that the Court characterised the acts as forms of institutional and reproductive violence (para. 176). On this basis, the majority found violations of Ramos Durand’s right to health, access to information, life, personal integrity, private and family life, and equality before the law. The Court also assessed her case within the broader context, highlighting the massive scale of the policy and its disproportionate impact on women in particularly vulnerable situations, such as Ramos Durand, and concluding that the violations amounted to serious human rights violations (para. 170).

The Court additionally held that Peru failed to investigate the events with due diligence (paras 188-191), in violation of Articles 8(1) and 25(1) in relation to Article 24 of the ACHR. It also found violations of the rights to personal integrity, judicial guarantees, and protection of the family with respect to her daughters, mother, and husband, as well as violations of the rights of the child in relation to her daughters.

While the judgment represents an important step toward justice for Ramos Durand and her family, as well as the thousands of women sterilised in Peru, it leaves several important questions unaddressed.

Avoiding the Qualification of Torture and Ill-Treatment

In particular, the question whether the treatment amounted to torture or other ill-treatment was not addressed by the Court. There can be little doubt that the severity threshold was met. The Court itself acknowledged that Ramos Durand ‘suffered severe physical and psychological pain during the sterilisation’ and was heard screaming and crying (original in Spanish, para. 169). The Court, however, considered that the evidentiary record did not allow it to establish the element of intent. In its words,

‘no evidence or information was submitted […] that would allow it to precisely define the factual framework necessary to analyse the element of intent required to prove the alleged torture’ (original in Spanish, para. 172).

Its reticence in characterising the forced sterilisation as torture may, hence, hinge on the doctor’s purported good faith (see, similarly, the ECtHR in Y.P. v. Russia, para. 37). In doing so, unfortunately, the Court leaves unaddressed how intent should be understood in contexts of structural and institutionalised abuse. In the present case, the intervention was not an isolated act of negligent medical treatment, but formed part of a broader policy characterised by institutional pressure, numerical targets, the systematic absence of informed consent, under-equipped medical facilities, and the targeting of women in situations of particular vulnerability. Where medical personnel operate within a framework that incentivises and normalises coercive practices in inadequately equipped facilities, the suffering inflicted can hardly be regarded as an accident or force majeure. In this sense, Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, has concluded that ‘sterilizations carried out by State officials in accordance with coercive family planning laws or policies may amount to torture’ (para. 69).

Even more strikingly, the Court also refrained, unlike in I.V. v. Bolivia, from characterising the treatment as cruel, inhuman and degrading treatment in violation of Article 5(2) ACHR.

Avoiding the Question of Crimes against Humanity

A second issue the Court declined to address is the characterisation of the forced sterilisation as a crime against humanity, despite the victims’ representatives having raised the issue. The majority considered such a determination unnecessary, stating that  ‘having established the international responsibility of Peru […] and in light of the classification of these violations as serious human rights violations, the Court will not rule on whether the implementation of this policy constituted a crime against humanity’ (original in Spanish, para. 171).

In contrast, Judge Nancy Hernández argued in her concurring opinion that the Court should have addressed the question, and that doing so would have led to the conclusion that the forced sterilisation constituted a crime against humanity (para. 47).

As she acknowledged, the Court lacks jurisdiction to determine individual criminal liability for crimes against humanity (para. 4). Yet, in her view, characterising violations as such allows for the ‘adequate naming of a form of structural and discriminatory violence’ (para. 48). Indeed, the Court has repeatedly characterised acts as crimes against humanity in the past (see e.g. Almonacid Arellano et al. v. Chile, para. 104, La Cantuta v. Peru, para. 225 and Herzog et al. v. Brazil, para. 242). Expectations were consequently high that the Court would make a similar finding in the present case (see, e.g., here and here).

Most importantly, Judge Nancy Hernández considered that the programme constituted both a widespread and systematic attack directed against a civilian population (para. 27): widespread, since it involved the sterilisation of hundreds of thousands of women across the country, and systematic, as it was carried out pursuant to a national programme characterised, among others, by the setting of numerical targets, incentives and pressure on medical personnel, and the repeated use of similar methods involving deception, coercion, and the exploitation of vulnerability.

Within this context, Ramos Durand’s case represented, in her view, ‘the materialisation of the policy’s logic’ (para. 42) and constituted itself a crime against humanity (para. 47). 

Her reasoning is particularly significant since, in Peru, the existence of a state policy has long been the subject of debate (particularly in light of Keiko Fujimori’s, Alberto Furjimor’s daughter, continued political prominence), with public actors framing the abuses at most as isolated incidents (see, e.g., here and here). Judge Hernández’s analysis directly challenges this narrative, insisting that the abuses cannot be reduced to a series of isolated acts but instead reflect the implementation of a coordinated state policy of birth control (para. 29).

The majority’s characterisation of the violations as ‘serious human rights violations’ (para. 170), in turn, while clearly significant, falls short of contextualising the sterilisation and recognising the widespread and systematic nature of the abuses.

Peru’s Domestic Context: A Relevant Factor?

Given these two aspects left unaddressed by the Court, the question arises whether its cautious approach must be situated within the broader context of Peru’s recent threats to denounce the ACHR, and whether this may have encouraged a degree of ‘strategic restraint’. Whatever the explanation, the judgment in Ramos Durand combines notable advances with omissions that are difficult to reconcile with its broader reasoning and prior jurisprudence and, from a victims’ perspective, constitute important missed opportunities.