Should over-50s be entitled to sex? Court must decide

Judges said that, at 50, the woman had been at "an age in which sexuality does not hold as much importance."

Story highlights

  • Botched surgery in 1995 left a Portuguese woman, then 50, unable to enjoy sex
  • In 2014 she was awarded 172,000 euros in damages, later reduced to 111,000 euros
  • Judges said she had been "at an age in which sexuality does not hold as much importance"

Priego De Cordoba, SPAIN (CNN)The European Court of Human Rights is being asked to decide a case that's raised questions about whether sex is important for women over the age of 50, re-igniting a Portuguese house cleaner's 20-year battle to win what she sees as an appropriate reward for botched surgery that left her unable to enjoy sex.

Lisbon-based attorney Vitor Manuel Parente Ribeiro said his client, who is identified as "A" in court papers, is challenging Portugal's highest court's decision to lower her legal compensation for a mismanaged gynecological operation performed in Lisbon's state-run Alfredo da Costa Maternity nearly 20 years ago, when she was 50-years-old. She turned 70 this year.
    Ribeiro says he will take the fight for his client's reproductive rights and personal dignity to the highest levels available.
    Ribeiro's client says she is undergoing treatment for severe depression, but she agreed to answer a few questions through him via email.
    She told CNN that "she was really saddened by the Portuguese tribunal's decision and felt discriminated against for being a woman and a mother."
    "The treatment of the court in relation to women is very different," she said.
    "She understands the court's decision is a violation of her human rights and that the state is obligated to compensate this for that decision," Ribeiro added.

    Physically and emotionally devastated

    The European Court of Human Rights is the ultimate place of appeal for citizens of the European Union beyond their national courts.
    In May of 1995, according to the court's verdict, "A," entered Lisbon's Alfredo da Costa Maternity for a routine procedure. She had developed cysts on her Bartholin glands, which are in the female genitalia and provide lubrication. The cysts had led to painful swelling and discomfort.
    But her lawyer says that during the procedure, her pudendal nerve was cut -- a nerve that controls all sensations and functions in the interior pelvis and the anus, leaving her incontinent. The hospital does not dispute this.
    The result was both physically and emotionally devastating for a woman, according to court documents, who was very active and enjoyed a normal life.
    Ribeiro told CNN that "after several attempts to eliminate these glands, they cut too deeply."
    "Her life was shattered," said Ribeiro.
    "Already facing the challenges of aging, her husband went away with other women, scarring her psychologically," he said.
    "My client now, in addition to her humiliation, has to wear diapers all day."

    Award reduced

    After a lengthy legal battle, she was awarded 172,000 euros in damages by a Lisbon court in 2014. But the hospital, now called Centro Hospitalar de Lisboa, appealed and Portugal's Supreme Administrative Court reduced the damage award to 111,000 euros.
    But it was the way they explained their decision that provoked outrage in Portugal and beyond.
    In one paragraph of the ruling, the judges stated: "It is important not to forget that the plaintiff was already 50-years-old by the date of the surgery and had two children. So she was at an age in which sexuality does not hold as much importance as with younger people, becoming less important with the advancement of age."
    The decision made headlines worldwide, enraging women's groups in Portugal, such as the National Association of Women Jurists who claimed the court's decision was "unconstitutional."
    In praise of the Association's letter, Amnesty International's Portuguese chapter said her case was fundamental to the goal of promoting equal reproductive rights in Portugal.
    Critics maintain that in recent history, Portuguese women have enjoyed fewer rights than their European counterparts. They were unable to obtain a passport or leave the country without a man's permission until 1969 and were only accorded equality under the 1976 constitution brought in after the end of the Salazar regime -- known for its ultra-conservative stance on women's rights -- in 1974.

    Women's rights

    In a written response, Secretary of State for Parliamentary Affairs and Equality Teresa Morais told CNN that her government's commitment to equal rights, given its recent past, is indisputable and widely recognized internationally.
    "While numbers are still concerning, never in history we have spoken out against domestic violence as we have today," said Morais, who would not comment on the specific case.
    Morais cited a recent study by the European Union's Human Rights Agency, "Violence against women: an EU-wide survey."
    Published in 2014, it places Portugal as one of the nations with the lowest cases of violence against women and highest levels of education and awareness.
    But Ribeiro said the Portuguese high court decision was a judicial setback and prejudicial to women's rights.
    "It is a form of sexual and age discrimination. It affects the dignity of mothers and women," he said.
    "The irony is that two women presided over her case ... one was over 55. I don't know what their problem was."