Maria Elena Carbajal et al v Peru

CEDAW Committee, 30 October 2024. CEDAW/C/89/D/170/2021

Violations of women’s sexual and reproductive health and rights, such as forced sterilization, are forms of gender-based violence that may constitute torture or cruel, inhuman or degrading treatment. Forced sterilization disproportionately affects women, because of their gender, on the basis of perceptions about their primarily reproductive role and their inability to make responsible reproductive health and family planning decisions. Indigenous women who were sterilized forcibly experienced intersectional discrimination on the basis of their sex, gender, rural origins and socio-economic status.

The context to this case began in 1995, when the Peruvian government established a national campaign to promote surgical sterilization for men and women

“With the stated aim of improving the reproductive health of men and women at all stages of their lives, through promotion, prevention, treatment and rehabilitation of the best possible quality. The programme primarily entailed the use of voluntary surgical contraception, which was allegedly carried out without adequate infrastructure, specialized medical personnel or the proper informed consent of those who underwent procedures. Many women under the age of 25 and women without children were sterilized. More than 300,000 women (93 per cent of the total), mostly Indigenous, were sterilized without their consent, especially in low-income and rural areas of the State party. To a lesser extent, men, mostly Indigenous, were also subjected to vasectomies.” (paragraph 2.2)

María Elena Carbajal Cepeda, Gloria Basilio Huamán, Florentina Loayza Cárdenas, Rosa Loarte Sobrado and Elena Rojas Caballero were Indigenous women subjected to forced sterilization during 1996 and 1997.

Various investigations and cases were brought by many women in this situation, and also in the cases of women who died due to substandard medical care, their families.

The case of María Mamérita Mestanza Chávez, an Indigenous woman who died soon after the sterilization procedure, was prosecuted through the domestic courts, to the regional human rights authority, the Inter-American Commission, and a friendly settlement was reached on 10 October 2003. The government of Peru

“Acknowledged its international responsibility and undertook to adopt a series of material and moral reparation measures and to launch an exhaustive investigation aimed at punishing those responsible for the forced sterilization of María Mamérita Mestanza Chávez, which had been committed as part of a massive and systematic government policy targeting poor, Indigenous and rural women.” (paragraph 2.4)

Over time, investigations were shelved for various technical reasons, the rationale given was that the cases were extremely complex and difficult to investigate. Investigations were undertaken for the immediate perpetrators – those who carried out the policy – and the ministers in charge of the policy, including Alberto Fujimori, who was the president of Peru between 1990 to 2000.

“In 2016, the Office of the Supra-provincial Criminal Prosecutor Specializing in Human Rights and Interculturality initiated investigation No. 14-2016 with the aims of elucidating the forced sterilizations performed between 1993 and 2000 in the various healthcare centres, hospitals and medical stations located in various departments of the State party, and of identifying those responsible for the alleged commission of crimes against life, body and health in a context of serious human rights violations. In 2019, the Office initiated investigation No. 59-2019 against those responsible for the medical personnel, nurses and any other health personnel who had participated as the direct perpetrator or perpetrators of serious human rights violations. On 22 November 2022, the Office submitted to the court a request to expand the complaint at the pretrial investigation stage by broadening the scope of the order of 11 December 2021 to institute pretrial proceedings against Alberto Fujimori and his former health ministers, and by including 2,626 alleged victims in connection with case No. 59-2019. In addition, the Office proposed to take preliminary statements from 2,582 alleged women victims, mostly Indigenous, living in remote areas of the country. In 2023, the Supra-provincial Criminal Court returned the request for expansion to the Office and, on 25 August 2023, the constitutional law chamber, through an amparo procedure, decided to declare null and void the December 2021 order to institute pretrial proceedings.”(paragraph 2.5)

Further criminal investigations took place, including the legal re-framing of the policy as a widespread and systematic policy of enforced sterilizations, which were therefore of a scale constituting a crime against humanity. This identification of the policy as a crime under international criminal law led in 2024 to the Supreme Court of Chile deciding “to expand the grounds for its extradition of former President Alberto Fujimori to include the forced sterilization of women as a serious human rights violation.” (paragraph 2.5)

There were further initiatives by the Peruvian state, such as the Registry of Victims of Forced Sterilization. On 16 November 2022, special constitutional court No. 5 of the High Court of Lima recognized the constitutional right of such persons to reparations and ordered the Ministry of Justice and Human Rights to put in place a policy on reparations for women entered in the Registry of Victims of Forced Sterilization. The Ministry was to ensure the effective participation of, and coordination with, victims’ associations and organizations in the design, development and implementation of the policy.(paragraph 2.6)

The background to this case at the CEDAW Committee was therefore a complex mix of various initiatives, none of which had delivered real accountability or effective reparation.

The five women bringing this case to the CEDAW Committee were Indigenous women from the highlands of Peru. They alleged that they

“Were captured through the use of violence, deception or coercion by State agents and sterilized without their consent, that the benefits and risks of those procedures were not explained to them and they were not offered alternatives, and that they received no post-operative medical assistance, all of which had serious consequences for their physical and mental health. The authors also allege that they belong to a vulnerable sector of the population, most of them being rural and Indigenous women, that the forced sterilizations affected their life plans and that they have suffered non-material damage as a result of a cultural context in which sterility is assumed to be a “punishment” that affects the status of women in their communities, in violation of articles 2, 3, 12, 14 and 24 of the Convention.” (paragraph 3.3)

All of them had similar testimonies about how the procedures were inflicted on them without informed consent, or indeed any consent at all:

being picked up in trucks by medical teams and physically forced into having the procedure, (Elena Rojas Caballero, paragraph 2.10, Gloria Basilio Huamán paragraph 2.11)
coerced into having the sterilization, by being forcibly separated from their other children to put pressure on them to agree, (María Elena Carbajal paragraph 2.7)
not being told what was happening to them (Rosa Loarte Sobrado, paragraph 2.9)
being told that the sterilization was only temporary. (Florentina Loayza paragraph 2.8)

All five had similar outcomes, in terms of physical pain and suffering, and some women were rejected by their husbands and communities, because motherhood was highly valued, and childlessness was seen as misfortune.

Despite the multiple inquiries and attempts to investigate, and the establishment of a Registry of Victims of Forced Sterilization, the government of Peru persisted in their position that the applicants in this case had not exhausted domestic remedies. The CEDAW Committee was robust in responding that (paragraph 7.4)

“Legal remedies are not always truly available to alleged victims either de jure or de facto. On that point, the [CEDAW] Committee recalls that in accordance with General Recommendation 39 (2022) [on the rights of Indigenous women] justiciability, availability, accessibility and the provision of remedies for victims are among the components necessary to ensure access to justice with an intersectional and intercultural gender perspective.

[…]

The [CEDAW] Committee notes that no victim is required to pursue multiple avenues for redress in order for domestic remedies to be considered exhausted. Furthermore, given that the wrong suffered by the authors of the communication clearly requires comprehensive reparations based on a survivor-centred approach, which would result from criminal proceedings, administrative and civil remedies alone would not have provided sufficient reparations and would not have resulted in an effective remedy.”

The CEDAW Committee was also firm that the Peruvian government had all the information from the applicants that was needed to undertake a proper investigation, and there was no excuse for the government to fail to investigate, prosecute and provide remedies.

The CEDAW Committee made the following findings:

“The context in which the authors were sterilized, namely, by non-specialized medical personnel and in inadequate sanitary conditions, which constitutes a form of sexual discrimination.” (paragraph 8.2)
Confirming the finding in General Recommendation 35, paragraph 18, “violations of women’s sexual and reproductive health and rights, such as forced sterilization, are forms of gender-based violence that may constitute torture or cruel, inhuman or degrading treatment.” – (paragraph 8.3)
“Although sterilization is used as a form of contraception for both women and men, forced sterilization disproportionately affects women, because of their gender, on the basis of perceptions about their primarily reproductive role and their inability to make responsible reproductive health and family planning decisions, about their not being fit to be “good mothers” or about their offspring not being desirable.”(paragraph 8.4)

In summing up their findings, the CEDAW Committee “considers that the cumulative facts of the present case, in particular, all the events that led to physical and psychological repercussions for the authors, constitute a form of gender-based violence against women and of intersectional discrimination based, inter alia, on the authors’ sex, gender, rural origins and socioeconomic status.”

The Committee notes that forced sterilization, when widespread or systematic, constitutes a crime against humanity under the Rome Statute of the International Criminal Court and this is also of relevance to this case, although it is an issue that is beyond the purview of the CEDAW Committee.(paragraph 8.9)

On 12 September 2024, Alberto Fujimori died, and the CEDAW Committee decided this case on 4 October 2024. On 22 May 2025, the case of Celia Ramos (who died after forced sterilisation) was heard at the Inter-American Court, and at the time of writing, the judgment has not been issued.