There are projects in some jurisdictions – including China, Brazil, and Argentina – as to how these technologies could be employed in the judicial decision-making process to reduce case backlogs and enhance the delivery of justice. Contrarily, some countries – such as the UK, Ireland, New Zealand, and Canada – have taken an opposing stance to prevent the adoption of LLMs in core judicial functions, including determination and adjudication. Instead, they permit LLMs as support tools for judges and court staff to perform routine work like summarising text, speech writing, searching for information, sources, and precedents, enhancing clarity and linguistic flourish, translating, and transcribing.

However, such ‘innocent’ use of LLM tools in routine or secondary court functions has the potential to influence judicial cognition and thereby affect the core judicial decision-making process. Institutional permission and repetitive use of these tools may lead to several cognitive effects, such as automation bias, cognitive offloading, anchoring, and the framing effect. Automation bias leads to over-reliance on automated recommendations, while cognitive offloading reduces mental effort through external tools. Anchoring causes over-dependence on initial information, and the framing effect shows how decision-making shifts based on information presentation.

Judging involves reading the case materials, identifying the issues, and developing the reasons by themselves, whereas a preliminary recommendation produced by an LLM system has the potential to serve as a starting point for such cognitive involvement of judges, anchoring the point of departure. On the other hand, when a judge outsources the meaning of legal lexicon, a summary of long texts, or the identification of precedents to an LLM, they ultimately engage in cognitive offloading. This cognitive offloading can lead to a superficial review process where judges make only ‘surface-level’ scrutiny or modifications to LLM-generated text, bypassing the deep cognitive work required to fully understand the legal reasoning and verdict.

Therefore, simply relying on a human judge to use LLM systems in preparatory stages, or to audit the veracity of the outcomes of such systems subsequently in the judicial decision-making process, is potentially problematic. Though judges are trained to be impartial, cognitive and behavioural science demonstrates that no decision-maker is immune to systematic cognitive biases. Decades of behavioural research demonstrate that professional expertise does not eliminate susceptibility to anchoring, framing, or automation bias. Judges, like other professionals, work within cognitive constraints.

These cognitive defects are significant because human judges are regarded as the principal safeguard to check and control any type of bias and are also regarded as neutral decision-makers to ensure justice. In the circumstances of heavy judicial workloads, exhaustion, and in some cases institutional pressure to deliver timely decisions with limited resources, cognitive issues can arise. As a result, it can undermine the fundamental principles of fair trial, including judicial independence, the judicial duty to provide well-reasoned decisions, and ultimately the rule of law.

The inherent persuasive features of LLMs that randomly generate text with human-like reasoning and confidence, in spite of factual or legal accuracy, may make human judges vulnerable to this uncritical adoption of LLMs even as a support tool for judicial decision-making. This creates a deep tension with the fundamental and uncompressible judicial duty of independent reasoning, signifying that without precise safeguards and a deep understanding of this cognitive susceptibility, the integration of LLMs in adjudication, even as secondary tools, could unintentionally undermine the deliberative process it seeks to augment. Hence, in an increasingly technology-driven judiciary, it is critical to examine whether judges’ cognitive limitations prevent them from effectively guarding against aggravating this tension.

This article argues that any such initiative would be incompatible with Brazil’s obligations under international human rights law, particularly as interpreted by the Inter-American Court of Human Rights. While Amnesty Law (No. 6,683/1979) was originally enacted in the context of the military dictatorship, current proposals to extend amnesty to the perpetrators of the recent attacks revive its underlying logic of shielding individuals from accountability, raising concerns about the reemergence of mechanisms of impunity.

The Brazilian Amnesty Law and Its Contested Scope

In recent years, the Brazilian federal courts have consistently reaffirmed the need to review the amnesty law adopted at the end of the military regime. Enacted during Brazil’s transition to democracy, the law granted amnesty for political crimes committed between 1961 and 1979 and has been interpreted to extend to state agents responsible for serious human rights violations, including torture, enforced disappearances, and extrajudicial killings. Brazilian courts have increasingly set aside its effects in cases involving crimes against humanity, in accordance with the jurisprudence of the Inter-American Court of Human Rights.

By way of illustration, the 5th Chamber of the Federal Regional Court of the 3rd Region (TRF-3) upheld an appeal by the Federal Public Prosecutor’s Office (Ministério Público Federal), ordering the acceptance of criminal charges against two forensic doctors for false statements and concealment of corpses in connection with deaths during the dictatorship. In its decision, the reporting judge emphasized that Brazil is subject to the jurisdiction of the Inter-American Court of Human Rights, whose judgments must be respected in their effects and in the interpretation of domestic law.

This approach has also been reinforced by institutional measures within the National Council of Justice aimed at monitoring compliance with Inter-American Court decisions.

Inter-American Court of Human Rights and Obligations to Prevent Impunity

The Inter-American Court of Human Rights has been categorical in landmark cases such as Gomes Lund et al. (Guerrilha do Araguaia) v Brazil and Herzog et al. v Brazil: States may not resort to legislative measures, including amnesties, to prevent the investigation, prosecution, and punishment of serious human rights violations.

This interpretation is not limited to transitional justice contexts involving past authoritarian regimes. In Márcia Barbosa de Souza v Brazil, and Leite, Peres Crispim et al v Brazil, both decided in a democratic setting, the Court reaffirmed that political or legislative obstacles preventing the investigation and punishment of serious human rights violations violate the American Convention on Human Rights. These cases are particularly relevant because they demonstrate that the prohibition of impunity is not confined to addressing crimes committed under dictatorship, but extends to contemporary failures of the State to ensure accountability.

Conclusion

Any amnesty for the acts of January 8 would reproduce, in the twenty-first century, a logic of structural impunity already condemned in the context of the military dictatorship, not because of the identity of the facts, but because of the similarity of the legal mechanisms used to erase responsibility. Such an initiative would expose Brazil to renewed international scrutiny and undermine the credibility of the Public Prosecutor’s Office, the judiciary, and the mechanisms created to enforce international decisions.

In this sense, the precedent set in Direct Action of Unconstitutionality (ADI) No. 7.330, demonstrates that a state measure that significantly reduces penalties for serious crimes may produce effects equivalent to impunity.

Similarly, the text approved in December 2025 by the Chamber of Deputies, which modifies the rules for determining sentences, substantially reduces the penalties applicable to those involved in the events of January 8 and is therefore capable of producing a comparable effect.

Rosa Weber, in her capacity as President of the Federal Supreme Court, recognized in a preliminary ruling delivered in January 2023 that favoring perpetrators of serious human rights violations undermines human dignity and neutralizes the State’s duty to investigate, prosecute, and punish.

By recreating a mechanism of impunity incompatible with the American Convention on Human Rights, they function as forms of indirect amnesty already rejected by both the Supreme Federal Court and the Inter-American Court of Human Rights.

In practice, this meant that, until judicial intervention, content could remain accessible without consequences for the providers, except in the situation addressed by Article 21, which deals with the non-consensual dissemination of intimate or nude images, where a victim’s complaint alone sufficed to compel the provider to act.

However, on 26 June 2025, Brazil’s Supreme Federal Court (STF) ruled that, until Congress enacts new legislation on the matter, Article 19 must be interpreted in conformity with the Constitution, in order to provide stronger protection for individuals against criminal, unlawful, and harmful online content. In Brazil’s civil law tradition, this technique — known as “interpretation in conformity with the Constitution” — forms part of the broader system of constitutional review. Its purpose is not to strike down legislation whenever possible, but rather to preserve it by aligning statutory provisions with constitutional principles, thereby avoiding a declaration of unconstitutionality.

Within this framework, the Court determined, inter alia, that internet application providers may be held liable without a prior court order when, having received private notice of unlawful or criminal material on their platforms, they negligently or willfully fail to remove it. This interpretation extends the model already provided in Article 21 of the Brazilian Internet Civil Framework, originally confined to the non-consensual disclosure of intimate images.

In two specific scenarios, platforms may also be held liable absent a court order or private notice: where unlawful content appears in paid advertisements or sponsored posts and where illicit material is disseminated through artificial distribution networks employing bots.

Finally, in respect of certain crimes, providers are required to ensure that such material is not published at all. Here, a duty of care applies, obliging companies to act diligently and proactively to prevent the circulation of such content, regardless of any notice or judicial order.

With respect to crimes against honour, the STF maintained its previous position that content removal requires a court order, due to the subjective nature of the assessment and the potential risk to freedom of expression.

At this juncture, freedom of expression remains a fundamental right in Brazil; however, as in any established constitutional democracy, it is subject to limitations and does not protect hate speech, defamation, libel, or threats to social harmony. This approach is consistent with Brazil’s obligations under both Article 19 of the International Covenant on Civil and Political Rights (ICCPR) and Article 13 of the American Convention on Human Rights (ACHR).

Additionally, for-profit platforms cannot claim neutrality while exploiting engagement-driven algorithms that monetise harmful content. In this way, given legislative omissions on this complex and urgent matter, it is considered the STF’s role to act as guardian of the Constitution, deciding in accordance with constitutional principles and the protection of fundamental rights — even when such decisions may be unpopular.

However, although the STF’s attempt to curb the superpowers of big tech companies is legitimate, it cannot be denied that the approved thesis is very broad and abstract, and did not adhere to the facts of the concrete cases — which concerned claims for damages in situations where platforms had complied with court orders to remove content, but only after undue delay. Such conduct leaves room for divergent interpretations and creates legal uncertainty due to the difficulties of its practical application.

In other words, at this point, the STF effectively “legislated” by reshaping Article 19, which violates the principle of legal reservation under Article 19 of the ICCPR, as well as Advisory Opinion OC-5/85 of the Inter-American Court of Human Rights, issued under Article 64 of the ACHR.

In effect, Brazil has moved toward a regulatory framework similar to the European Digital Services Act (2024). Providers of digital applications are now required to act promptly to remove seriously unlawful content and may be held liable if systemic failures occur.

Thus, the ongoing judicial and legislative efforts in Brazil reflect the global challenge of balancing freedom of expression with the duty to prevent the spread of harmful content online. This landmark ruling fundamentally reshapes the responsibilities of digital platforms in Brazil, representing a significant step in regulating online content and safeguarding fundamental rights globally.

The Santos Nascimento and Ferreira Gomes case deals with the structural racial discrimination that was suffered by Neusa dos Santos Nascimento and Gisele Ana Ferreira Gomes in the recruitment process and labour relations at a medical insurance company in the state of São Paulo. The IACtHR condemns the Brazilian State but is innovative in requiring that Brazil adopts legislative, political and administrative measures to guide corporations to implement actions to prevent acts of discrimination in their personnel recruitment processes. The Inter-American Commission of Human Rights (IACHR) also requested the Brazilian State to adopt legislative measures and public policies to guide corporations in the implementation of human rights due diligence. Therefore, the Santos Nascimento and Ferreira Gomes case evidences an important shift in the IACtHR’s lenses towards BHR through the adoption of judgments directed to the furtherance of corporate responsibility, indirectly shaping corporate’s actions towards human rights through public policies.

Previously, in the Fireworks Factory case, in matters referring to BHR, the IACtHR in condemning the Brazilian State only required it to present a report on the application of its National Guidelines on Business and Human Rights. Both cases are embedded in the UN Guiding Principles on Business and Human Rights (UNGP) and condemns the structural racism present in Brazil, revealing an important dialogue between the Inter-American System and the United Nations’ framework on BHR in the judgement of crimes of racism.

The Da Silva case concerned the murder of Manoel Luiz da Silva, a member of the Brazil’s Landless Workers’ Movement (MST), by private security agents of a rural farm in the state of Paraíba. The only reference to BHR in the Da Silva judgment is a cross-reference to the IACHR’s recommendation that the Brazilian State recognize and promote the UNGP to guarantee the protection of peasants and investigate crimes committed by private agents in rural areas [para 110, f. 114]. In contrast, both Santos Nascimento and Ferreira Gomes case and Fireworks Factory case refer to human rights violations in regard to industrial or urban contexts.

Even though the Fireworks Factory in Santo Antônio de Jesus was located in a rural area, it was a case of clandestine industrial production. On the contrary, the Da Silva case refers to human rights violations against rural workers and concerns a private security corporation. Neither the UNGP nor the Voluntary Principles on Security and Human Rights were mobilized in the legal analysis promoted in the IACtHR’s judgement in the Da Silva case.

Even though the judgment of the Santos Nascimento and Ferreira Gomes case evidences an important development of the IACtHR’s approach towards BHR, the Da Silva case’s minor focus on the theme brings up a question over the extent of the IACtHR’s interpretation of BHR’s frameworks in its own case law. The Da Silva case could have been an opportunity to the IACtHR develop its own interpretation over human rights violations committed by private security corporations and, especially, concerning the BHR agenda over land rights and rural conflicts in the Americas.

The centrality of the IACtHR’s BHR lenses over urban and industrial contexts represents a methodological limitation that must be disrupted by the urgent requirement of rights requested by peasants and rural workers in Brazil. The UNGP should be in dialogue with the international human rights treaties in this cause. On the other side, the Santos Nascimento and Ferreira Gomes case is an important opportunity in the strengthening of Brazilian legislative measures in the promotion of corporate human rights due diligence as a framework to businesses fight against racism.

Unfortunately, the law has posed a number of issues because it does not contain criteria that differentiates between mere drug users and drug traffickers. Each judge can determine the limit of narcotics that can be considered for personal use, leading to significant discrepancies in judgments and a tendency to consider poor, black individuals as traffickers. For this reason, there is an urgent need for objective criteria to differentiate drug users from traffickers. Moreover, Brazilian law contradicts itself since, despite this mitigation in punishment for use of drugs, possession of drugs is still punishable by imprisonment.

To resolve this interpretative gap, the Supreme Federal Court of Brazil has been adjudicating, since 2015, Extraordinary Appeal No. 635,659. This case will determine the constitutionality of criminalising the possession of small quantities of cannabis for personal use through police investigations and criminal proceedings. The Court is also expected to establish clearer rules for the application of the law, defining the quantity of cannabis that can be considered for personal use.

Currently, five out of the eleven Supreme Court justices have voted in favour of decriminalising the possession of small quantities of cannabis, while three justices have voted against it. The idea of setting a quantity limit to differentiate between a user and a trafficker, however, has been supported by all eight justices who have voted on the matter. Currently, there is no consensus on what that quantity should be; it is to be defined by the justices once the trial has concluded. Although the judgment has evolved over the last year, there is currently no set timeline for when the final judgment will be made.

As a point of comparison, Chile, Colombia, Ecuador, Paraguay, Peru, Uruguay, and Venezuela, all situated in Latin America, do not regard the use of cannabis as a criminal offence. They have already established, within their legislation, the quantity threshold that distinguishes a user from a drug dealer. Outside the Americas, the same happened in Portugal, a nation that has exerted significant historical and cultural influence on Brazil due to its colonial heritage.

This case is of the utmost importance, as the Brazilian judicial system continues to classify individuals possessing small amounts of drugs as traffickers. Over the last 20 years, this has led to a significant increase in the prison population, primarily affecting the poor, homeless, black people, women, and people living in low-income areas.

It can be concluded that a one-size-fits-all criminal punishment for the simple possession of a small amount of illegal drugs often has disproportionate negative effects, stigmatising the user and hindering prevention and harm reduction efforts. Additionally, these measures exacerbate structural racism and hinder the research and development of medicinal uses for these substances, all while not effectively combating drug use. It is essential to cease the classification of casual drug users as criminals, in accordance with the legislator’s intent and the country’s latest regulations, which allow, with certain authority and in limited situations, the medicinal use and distribution of cannabis by the public health system.

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The news has catalysed debate in feminist circles. This opens a window of opportunity to bring to the surface, in a simple and direct way, a legal argument for decriminalisation, and to synthesise ideas emerging from years of collaboration between social justice advocates, lawyers and academics committed to the issue. These groups have long claimed that the criminalization of abortion clearly violates the principle of equality in Brazil. Moreover, this inequality lies at the intersection of patriarchy, racism, economic deprivation, and other systems of oppression.

The unconstitutionality of criminalisation is a matter of jurisprudential coherence. Here I focus on a specific line of cases which have equality as their central issue. These cases draw attention to the need to adopt a perspective of substantive equality, which recognises that equality demands challenging the practices that are the result of subordination and which perpetuate oppression.

Examples include ADPF 186, in which the court ruled affirmative action constitutional. This is because, despite being treated differently, such measures aim to improve the status of certain groups historically treated as second class. Racism, for example, was seen as a structural problem to be combated. A similar understanding appeared in ADO 26 (“Request for Declaration of Omission), which resulted in the criminalisation of violence perpetrated against the LGBTQIA+ community. The rationale for this decision was that harms against the group is the result of structural prejudice and that impunity perpetuates the marginalisation of the group. A final example is the declaration of unconstitutionality of the ban on blood donation by homosexual and bisexual men. In this case, ADI 5543 (“Request for Declaration of Unconstitutionality”) the court also understood that the measure was the result of stigma which upheld the group’s subordinate position, and which therefore constituted a violation of the principle of equality.

If structural inequalities are to be categorically denounced in Brazil, then the criminalisation of abortion remains one of the most glaringly unconstitutional legal issues. It remains criminalised due to enduring prejudice towards women and people who have uteruses, and these groups’ persistently subordinate status. Social norms perpetuate the idea that women’s ultimate destiny is motherhood, which promotes the idea that female sexuality must be controlled. However, unwanted pregnancies are associated with social inequalities more broadly: violence, poverty, lack of information, fear, lack of access to contraceptives, and social stigma combine to make society’s most vulnerable groups those most likely to have their reproductive freedom violated. As such, criminalisation of abortion reifies women’s subordination. But, more than that, forced pregnancy perpetuates it, given that the burden of domestic labour and care responsibilities are disproportionately allocated to women. Moreover, parental abandonment by men and an absence of state-supplied maternal welfare regimes mean that the birth of a child can lead to helplessness, poverty and, ultimately, the exclusion of women from the public sphere.

Despite criminalisation, many women resort to backdoor procedures. Wealthy white women tend to have access to safe abortions in private clinics, while poor women, mostly Black or Indigenous, and from the poorest parts of the country, in turn, have unsafe clandestine abortions as a way out. This is also a question of equality: the lives of the most vulnerable women are treated with contempt, which is especially ironic when we consider that many defend criminalisation as protecting the sanctity of life.

If the criminalisation of abortion is both the result and the means of subordination, the court’s interpretative coherence demands the declaration of its unconstitutionality. This is respect for the law and the court’s jurisprudence at its simplest: you don’t have to be a feminist or radical to understand this. But as a feminist advocate, I will continue to fight for the decriminalisation of abortion and for the substantiative equality of the women of all backgrounds. It is to be hoped that this opportunity will enable Brazil to make a landmark decision that proudly affirms the principles of non-discrimination and human dignity.

Want to learn more?

• Read: Access to Abortion at the Federal Level: Another Step Towards Reproductive Justice in Mexico
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• Read: #JusticiaparaBeatriz Beatriz v El Salvador – A Matter of Equality and Case Law Consistency
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• Listen: Gendered Constitutionalism
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]]> https://ohrh.law.ox.ac.uk/the-wait-is-coming-to-an-end-the-brazilian-supreme-courts-promising-opportunity-to-finally-decriminalise-abortion-up-to-12-weeks/feed/ 0 82792 https://ohrh.law.ox.ac.uk/depathologising-gender-identity-at-the-united-nations-a-call-to-south-africa/ https://ohrh.law.ox.ac.uk/depathologising-gender-identity-at-the-united-nations-a-call-to-south-africa/#respond Mon, 24 Apr 2023 08:00:49 +0000 https://ohrh.law.ox.ac.uk/?p=82166 On 29 March 2023, a cross-regional group of countries led by Argentina, called for United Nations Member States to implement laws and policies based on self-determined gender identity. This reform is representative of calls to depathologise gender recognition by moving away from medico-legal criteria for recognition that compels people to undertake medical interventions such as gender reassignment surgery.

International and regional law: Developing a right to self-determined gender identity

The notion of self-determined gender identity has received widespread global support over the past two decades. Under frameworks for the recognition of legal gender identity, a few States have shifted from medico-legal criteria for recognition to those based on an individual’s self-determined gender identity. This is in line with the groundbreaking Yogyakarta Principles (YPs), a set of soft international law principles that have had a significant impact on legal gender recognition reform. Under the YPs, the recognition of gender identity is based on an individual’s internal and individual experience of gender. Importantly, it emphasises their personal sense of their body, which may or may not involve modification of bodily appearance.

The right to self-determined gender identity has also been considered by regional human rights courts. In a 2017 Advisory Opinion, the Inter-American Court recognised the right to a self-determined gender identity under the American Convention on Human Rights, emphasising that recognition should not be subject to medical certification or requirements.

Global trends

The right to legal gender identity is recognised in over 67 jurisdictions around the world. The ambit and extent of recognition differs from one jurisdiction to another.  In particular, the requirements for recognition vary considerably: the majority of States with gender recognition laws maintain the medico-legal approach. The current call to action instead highlights the barriers and human rights violations faced by transgender persons, which include access to healthcare, education, housing and participation in public life.

The cross-regional group led by Argentina comprises states as diverse as India, Greece, Ireland, Brazil and Uruguay. It also includes countries such as Malta and Australia which have some of the most progressive gender recognition laws. The Malta approach to gender recognition fully recognises the right to self-determined gender identity. Under Malta’s Gender Identity, Gender Expression and Sex Characteristics Act, individuals wishing to amend their legal gender identity are only required to make a declaration in front of a notary. They are not required to undertake any medical procedures, nor are they required to submit proof of any psychological or physical diagnosis such as gender dysphoria. In 2017, the Maltese government also introduced the possibility of an “X-marker” on ID cards and passports, thus signifying a shift away binary models (male-female) of gender classification.

The South African context

The cross-regional alliance provides an opportunity to reflect on the South African framework. South Africa’s Alteration of Sex Description and Sex Status Act of 2003 remains an example of pathologised gender identity. The Act requires medical diagnosis or certification and requires the alteration of sexual characteristics. These pathologised requirements are further compounded by the reported difficulties in accessing healthcare services and misinterpretations of the Act which have resulted in officials requesting proof of surgery, although this is not a statutory requirement.

Depathologising gender identity is firmly on the United Nations’ human rights agenda. The South African legislature needs to respond to the call made by the cross-regional group in order to better protect the rights of transgender South Africans. In doing so, this would set the foundation for improving access to healthcare services, education, housing and other socio-economic rights that remain unevenly distributed between cisgender and transgender populations.

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The right to health presents a possible avenue to human rights litigation. Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) guarantees the right “to the enjoyment of the highest attainable standard of physical and mental health”, which implies the obligation to “provide essential drugs”.

Unfortunately, a state’s failure to provide treatments for rare diseases probably would not constitute a violation of this duty. “Essential” medicines appear to be those that treat communicable, widespread diseases, which, by virtue of being primarily genetic and having low prevalence rates, rare diseases are not. Furthermore, states receive a high degree of deference when defining essential drugs. Accordingly, when a state justifies the exclusion of a medication on the basis of other priorities and financial constraints, it is unlikely to be acting in contravention of the law.

Claims framed under the right to life and the freedom from discrimination would also likely fail. On the right to life, consider Nitecki v Poland, a case before the European Court of Human Rights. It concerned a man who suffered from a life-threatening disease, for which a treatment was available. However, he could not pay his state-ordained 30% share of the drug, and Poland refused to exempt him from payment. The Court did not find a violation of the right to life, but it did admit that, had Nitecki “received no medical treatment . . . or [been made to pay] less than” 50% of the drug’s cost, “Article 2 may have been violated.” Nevertheless, subsequent case law has emphasised the state’s authority to determine how to allocate its limited resources in the healthcare realm.

Similarly, various human rights fora excuse what would otherwise be violations of the prohibition of discrimination when a state acts in pursuit of a “legitimate aim”. Depending on the forum in question, these aims can include economic considerations and the protection of health, among others. This indicates that, even if a state’s denial of medications to certain populations is discriminatory, such a denial may be excusable under human rights law.

Notwithstanding these dead ends, lesser-explored avenues present opportunities for prospective litigants. The right to health also requires states to “adopt and implement a national public health strategy and plan of action” that “give[s] particular attention to all vulnerable or marginalized groups”. People with different rare diseases could join to allege a collective claim, arguing that the state’s systemic ignorance of their health needs of people constituted a violation of the right to health.

Such groups could also invoke ICESCR Article 12(1)(c), which requires that all existing medicines be made available and accessible to prevent, treat, and control “epidemic, endemic, occupational and other diseases”. This obligation appears directed toward diseases that afflict larger proportions of a state’s population, but by collectively pointing to a phenomenon of neglect, people with rare diseases may triumph.

Lastly, claimants could allege a violation of the right to benefit from scientific progress (ICESCR Article 15(1)(b)). Within this right lies the obligation “to take steps necessary ‘for the diffusion of science,’ . . . in a non-discriminatory manner”. Consequently, people with rare diseases could point to the failure of a state to expand its patent legislation framework in a manner favorable to the development of affordable, widespread treatments as a violation. Although it could not address the failure to provide specific medications, this approach could “facilitate the manufacture of genetic gene therapies” in the future.

Ultimately, human rights jurisprudence on rare disease treatments is slim, so these strategies’ chances of success are unclear. Nevertheless, the General Assembly’s aim of universal health coverage for “all persons living with a rare disease by 2030” may signal increased willingness by human rights bodies to impose more stringent demands on states with respect to rare disease treatments.

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La Opinión Consultiva No. 29 (2022) se refirió por primera vez específicamente al concepto de violencia obstétrica, ejercida contra las mujeres embarazadas que se encuentran en condiciones de detención durante el parto, post-parto y lactancia. Se aplican los estándares de la Convención Belém de Pará en cuanto a las obligaciones de los estados de prevenir este tipo de violencia en el ámbito penitenciario, de garantizar el contacto de las mujeres en situación de parto con el personal de salud y con los familiares de manera sencilla y culturalmente aceptable, del acceso a la justicia como asimismo canales de denuncia. Sin embargo, debido a que estos estándares solo afectan a las mujeres detenidas, no atienden adecuadamente a la mayoría de las mujeres embarazadas.

Más recientemente, en el caso Brítez Arce vs Argentina (2022) la Corte finalmente profundizó el concepto de violencia obstétrica. Cristina Brítez Arce, embarazada de nueve meses, llegó al hospital en 1992 con molestias lumbares, fiebre y pérdida de líquidos por sus genitales. Se le realizó una ecografía que indicó que el feto había muerto, por lo que se realizó una inducción del parto. Cristina murió en el hospital unas horas después. Según el certificado de defunción, la víctima falleció ese mismo día debido a un paro cardiorrespiratorio no traumático. Sin embargo, pudo comprobarse que fue debido al tratamiento y diagnóstico negligente del hospital.

En base a estos hechos, la Corte sostuvo que los Estados tienen la obligación de brindar servicios de salud adecuados, especializados y diferenciados durante el embarazo y el parto en un plazo razonable, antes y después del parto, a fin de garantizar el derecho a la salud de la madre y prevenir la mortalidad materna (párr. 68 y ss.). Principalmente, señaló que el Estado tiene la obligación de garantizar el acceso a la información en salud, especialmente sobre salud reproductiva y materna durante todas las etapas del embarazo, la cual debe estar basada en evidencia científica, emitida sin prejuicios, libre de estereotipos y discriminaciones. Además, se debe acordar previamente un plan de parto con la institución de salud que atenderá el parto. Asimismo, el Estado debe garantizar el derecho al contacto materno-infantil (párr. 73 y ss.).

En suma, la Corte sostuvo que la violencia obstétrica, prohibida por diferentes instrumentos de derechos humanos, constiuye una forma de violencia de género ejercida por las personas encargadas de la atención de la salud sobre las mujeres embarazadas, durante el acceso a los servicios durante el embarazo, el parto y el postparto (párr. 75). Esto se manifiesta mayoritariamente, aunque no exclusivamente, en un trato deshumanizado, irrespetuoso, abusivo o negligente hacia las mujeres embarazadas; en la negativa de tratamiento e información completa sobre el estado de salud y los tratamientos adecuados; en intervenciones médicas forzadas o coaccionadas, y en la tendencia a patologizar los procesos reproductivos naturales. Tales manifestaciones en el contexto de la atención de la salud durante el embarazo, el parto y el puerperio tienen el potencial de poner en peligro la vida de las mujeres y violan inequívocamente las obligaciones del Estado en materia de derechos humanos (párr. 81). Los estándares establecidos por la Corte IDH en el caso Brítez Arce vs. Argentina son, por lo tanto, un paso positivo en la lucha para garantizar el derecho humano de las mujeres a vivir libres de violencia obstétrica.

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• Read: The Husband’s Stitch: A Violation of Patients’ Bodily Autonomy

Advisory Opinion No. 29 (2022) referred for the first time specifically to the concept of obstetric violence against pregnant women who are in conditions of detention during childbirth, postpartum and breastfeeding. The case applies the standards of the Belem do Pará Convention, addressing state obligations to prevent this type of violence in prison settings, to guarantee contact with health personnel and family members of women in labor (in a culturally acceptable manner), and to guarantee access to justice and adequate reporting channels. Yet because these standards only affect women in detention, they do not adequately cater to the majority of pregnant women.

More recently, in Brítez Arce v Argentina (2022) the Court seriously developed the concept of obstetric violence. Cristina Brítez Arce, who was nine months pregnant, arrived at hospital in 1992 with lumbar discomfort, fever, and fluid loss. An ultrasound was performed, which indicated a  dead fetus, for which she was admitted in order to induce labor. However, Cristina died in hospital a few hours later. According to the death certificate, the victim died due to non-traumatic cardiorespiratory arrest. However, it could be proven that it was due to the hospital’s negligent treatment and diagnosis.

On the basis of these facts, the Court held that states have the obligation to provide adequate, specialised, and differentiated health services during pregnancy and childbirth (within a reasonable period before and after childbirth), in order to guarantee the mother’s right to health and to maternal deaths [68]. Moreover, the state has an obligation to guarantee accessibility of health information, especially relating to reproductive and maternal health during all stages of pregnancy, and this must be evidence-based, issued without bias, and free of stereotypes and discrimination. In addition, a birth plan must be agreed in advance with the health facility that assists in the birth. The state must also guarantee the right to mother-child contact [73].

In sum, the Court held that obstetric violence is prohibited by numerous human rights instruments and constitutes a form of gender-based violence exercised by those in charge of health care of pregnant people, during access to services that take place during pregnancy, childbirth and postpartum [75]. It is typically – though not exclusively – illustrated by dehumanising, disrespectful, abusive or negligent treatment of pregnant women; the refusal of treatment or of complete information about the woman’s state of health and suitable treatments; forced or coerced medical interventions; and the tendency to pathologise natural reproductive processes. Such manifestations in the context of health care during pregnancy, childbirth and postpartum have the potential to endanger women’s lives, and unequivocally breach the state’s human rights obligations [81]. The IACoHR’s ruling in Brítez Arce v Argentina is therefore a welcome step forward in the fight to secure women’s human right to live free of obstetric violence.

Want to learn more?

• Watch: Shaping the Future of Safe Childbirth
• Read: Obstetric Violence as a Violation of Human Rights: CEDAW’s Second Decision a Welcome Addition but Not Enough 
• Read: The Violence of Care: Obstetric Violence during Covid-19
• Read: Ockenden and Beyond: The Potential for a Human Rights Approach to Tackling Obstetric Violence
• Read: The Husband’s Stitch: A Violation of Patients’ Bodily Autonomy