International Planned Parenthood Federation – European Network (IPPF EN) v. Italy,
Complaint No. 87/2012
(Adopted by the Committee of Ministers on 30 April 2014
at the 1198th meeting of the Ministers' Deputies)
The Committee of Ministers,1
Having regard to Article 9 of the Additional Protocol to the European Social Charter providing for a system of collective complaints;
Taking into consideration the complaint lodged on 9 August 2012 by the International Planned Parenthood Federation – European Network (IPPF EN) against Italy;
Having regard to the report transmitted by the European Committee of Social Rights containing its decision on admissibility and the merits, in which it concluded:
- by 13 votes to 1, that there is a violation of Article 11§1 of the Charter
The provisions of Section 9§4 of Act No. 194/1978, which governs the conscientious objection of medical practitioners and other health personnel in relation to the termination of pregnancy, establish a balanced statutory framework for the fulfillment of the goals of the Act. In particular, as far as the Charter is concerned, the obligation for hospitals and nursing homes to take steps to ensure that abortion procedures are carried out “in all cases” as laid down in Sections 5, 7 and 8 of the said act, and the regions’ responsibility to ensure that this requirement is met, represent a suitable legal basis to ensure a satisfactory application of Article 11.
The high number of objecting health personnel in Italy does not per se constitute evidence that the domestic legal provisions at stake are being implemented in an ineffective manner.
The provision of abortion services must be organised so as to ensure that the needs of patients wishing to access these services are met. This means that adequate measures must be taken to ensure the availability of non-objecting medical practitioners and other health personnel when and where they are required to provide abortion services, taking into account the fact that the number and timing of requests for abortion cannot be predicted in advance.
It would not be in conformity with the Charter if the resolution of any possible problems encountered by women with respect to gaining access to abortion procedures is left in the hands of administrative or judicial authorities to be determined after the fact. As with other health services provided under Italian law, adequate measures must be put into place to ensure that women are able to access abortion services as and when they are required: the provision of retrospective remedies after the point of demand only supplements the primary obligation under Article 11 to make health care available as it is needed, which applies with particular force to time-sensitive procedures such as abortion.
In practice, women seeking access to abortion services in Italy can face substantial difficulties in obtaining access to such services, notwithstanding the provisions of the relevant legislation.
These difficulties appear to be the result of an ineffective implementation of Section 9§4 of Act No. 194/1978, given that a number of health facilities providing maternity services in Italy do not ensure that, “in all cases”: a) “the procedures referred to in Section 7 [of the above-mentioned act] are satisfactorily carried out” and, b) “pregnancy terminations, requested in accordance with the procedures referred to in Sections 5, 7 and 8 [of the same act], are adequately performed”.
The aforesaid health facilities do not adopt the necessary measures in order to compensate for the deficiencies in service provision caused by health personnel who decide to invoke their right of conscientious objection. The competent regional supervisory authorities do not ensure a satisfactory implementation of Section 9§4 within the territory under their jurisdiction.
With respect to the women who decide to terminate their pregnancy, the competent authorities did not take the necessary measures in order to remove the causes of ill-health, in particular by ensuring that, as provided by Section 9§4 of Act No. 194/1978, abortions requested in accordance with the applicable rules are performed in all cases, even when the number of objecting medical practitioners and other health personnel is high.
- by 13 votes to 1, that there is a violation of Article E read in conjunction with Article 11 of the Charter
As a result of the lack of non-objecting medical practitioners and other health personnel in a number of health facilities in Italy, women who decide to terminate their pregnancy are forced in some cases to move from one hospital to another within the country or to travel abroad; in some cases, this is detrimental to the health of the women concerned.
Women who are denied access to abortion facilities in their local region may be deprived of any effective opportunity to avail of their legal entitlement to such services, as the tight time-scale at issue may prevent them from making alternative arrangements.
Women denied access to abortion facilities may have to incur substantial economic costs if they are forced to travel to another region or abroad to seek treatment.
Women who decide to terminate their pregnancy are treated differently than other persons in the same situation with respect to access to health care, without justification.
Having regard to the information communicated by the Italian delegation at the meeting of 18 March 2014,
1. takes note of the statement made by the respondent government and the information it has communicated on the follow-up to the decision of the European Committee of Social Rights and welcomes its commitment to bring the situation into conformity with the Charter (see appendix to the resolution);
2. looks forward to Italy reporting, at the time of the submission of the next report concerning the relevant provisions of the Revised European Social Charter, that the situation has been brought into full conformity.
Appendix to Resolution CM/ResChS(2014)6
Italian intervention on the first examination of Complaint No. 87/2012
International Planned Parenthood Federation ‒ European Network (IPPF EN) v. Italy,
(GR-SOC, 13 and 18 March 2014)
1. On 10 September 2013, the European Committee on Social Rights, on the basis of the report presented by Karin Lukas, delivered a decision on the complaint lodged by the International Planned Parenthood Federation – European Network in August 2012 recognising a breach of article 11 of the Charter as well as a violation of Article E, read in conjunction with Article 11.
2. This complaint alleged that the high number of medical practitioners and other health personnel electing to be conscientious objectors rendered paragraph 4 of Section 9 of the Act No. 194 of 22 May 1978 on “Norms on the social protection of motherhood and the voluntary termination of pregnancy” ineffective in guaranteeing the legal right of women to have access to procedures for the termination of pregnancy and that this amounted to a breach of the right to health guaranteed by Article 11 of the Charter. The complainant organisation also alleged that the right to health of women wishing to terminate their pregnancy is not secured without discrimination and that this constitutes a violation of Article E of the Charter read in conjunction with Article 11.
3. The Italian Constitution states that the management of health structures is under the competence of the Regions. However, given the importance of women’s health and motherhood in Italy also at political level, the Minister of Health presents every year a report on the application of Act No. 194/78 to be discussed in the Parliament with national aggregated data.
4. As a national trend, the number of conscientious objectors scaled up from 59% in 1983 to almost 70% in 2011, but in the same period, the number of voluntary termination of pregnancies decreased by 52,4%. On the one hand, this significant drop in the termination of pregnancies has been deemed as a success in defending the health of women. In almost 30 years, abortion prevention services have worked very well, Italian women have a good attitude vis-à-vis fertility control measures and the tools for responsible and conscious parenthood were successful. On the other hand, if we relate the number of voluntary terminations of pregnancy with the number of non-objectors we can see that from 1983 to 2011, the number of interventions passed from 145,6 per non objector in 1983 (meaning an average of 3.3 intervention a week on a working year of 44 weeks) to 73.9 interventions in 2011 (meaning 1.7 a week). Despite this data at national level, the application of this law is always able to raise reactions in some parts of our civil society.
5. The main issue that was pointed out in this decision of the European Committee on Social Rights is the uneven distribution of non-objectors at regional level. As I mentioned in the beginning of my intervention, health management is dealt with at regional level and is subject as a whole to the broader problematic of asymmetries between Regions within a politically decentralised State, as pointed out in the dissenting opinion of President Quesada.
6. Having said that, Letta’s Government took note of the decision of the Committee considering it as a stimulus to better the application of Act No. 194/78. In June 2013, the Ministry of Health opened a “Technical table” calling Regional Assessors, appointed to supervise Health Management in the Regional Governing Bodies, to gather data in order to assess the impact of conscientious objectors at local level. The results of this monitoring activity, that is about to be concluded, will shed light on the details of the phenomenon. The Minister of Health, Minister Lorenzin, who was confirmed in her duty even with the recent change of government, expressed her will that if any difficulty in the access of women to pregnancy termination services will emerge, the Technical Table will put in place all the suitable initiatives, in respect of National and Regional competences.
7. The Permanent Representation of Italy will communicate to the Committee of Ministers the outcome of this monitoring process as soon as possible and asks that a resolution is drafted taking note of the initiative of our Minister of Health Lorenzin in order to tackle this delicate issue.
1 In accordance with Article 9 of the Additional Protocol to the European Social Charter providing for a system of collective complaints the following Contracting Parties to the European Social Charter or the revised European Social Charter have participated in the vote: Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Republic of Moldova, Montenegro, Netherlands, Norway, Poland, Portugal, Romania, Russian Federation, Serbia, Slovak Republic, Slovenia, Spain, Sweden, “the former Yugoslav Republic of Macedonia”, Turkey, Ukraine and United Kingdom.