Did European Court of Human Rights Recognize Right to Have Sex after 50?
3June 1, 2020 by Aleksandra Łuczak
Case of Carvalho Pinto v. Portugal
The applicant, Maria Ivone Carvalho Pinto de Sousa Morais, is a Portuguese national who was born in 1945 and lives in Bobadela (Portugal).
The applicant, suffering from a gynaecological disease, had surgery in May 1995. The surgery was made improperly, it caused a long-lasting pernicious effect on both the physical and mental state of the women. Lady had a husband and two children, but intolerable pain made it difficult to perform domestic chores and have sexual relations. The woman appealed to the national courts demanding reimbursement of medical negligence. At first instance, she was awarded EUR 80,000 for the physical and mental suffering caused by medical error and EUR 16,000 for the services of a maid to help with household tasks.
However, the Portuguese Supreme Administrative Court reduced the compensation by a third. Supreme Court claimed that the applicant did not deserve such significant compensation because of the following reasons:
- The age of the applicant. Portuguese Supreme Administrative Court’s Decision had been based on the general assumption that sexuality is not as important for a 50-year-old woman and mother of two children as for someone of a younger age.
- The court found that the lady had already raised children, she only had to take care of her husband and therefore she does not need a maid.
The decision of the Portuguese Supreme Court has received widespread criticism. Mrs Morais challenged him in the *ECtHR, alleging violations of Articles 8 and 14 ECHR. In particular, Maria Morais claimed that a Portuguese court had discriminated against her by age and sex.
In its judgment, the ECtHR drew similarities between the applicant’s case and two other judgments concerning medical malpractice experienced by two men at the ages of 55 and 59, who became impotent and incontinent as a result of medical error in operations they underwent. The ECtHR observed that in those judgments, the SAC did not find the amounts awarded excessive, considering the “tremendous shock” or “strong mental shock” experienced by plaintiffs who would suffer irreversible consequences to their sex lives. Contrary to the applicant’s case, the SAC had taken into account neither the plaintiffs’ age nor whether they had any children in these similar cases.
The ECtHR ruled in favour of Mrs Morais, stating:
“At the moment, it’s not about age or gender as such, but rather the presumption that sexuality is not as important for a fifty-year-old woman and mother of two as for younger people. This presumption reflects the traditional notion that a woman’s sexuality is only important for procreation. This approach ignores the physical and psychological importance of sex life for a woman to feel self-sufficient.”
Do you agree with the decision of ECtHR? Have your say!
*ECtHR is the European Court of Human Rights in Strasbourg
Category miscellaneous | Tags: court, discrimination, ECtHR, sex
In my opinion, this approach is a scandal. No matter im what age people are, if they are adults they should have the same rights, and the fact that the injured woman had already a family does not matter. It deprives her of the opportunity to do what she wants and the money received is not able to compensate for it
I would say that, first of all, described situation is a bright example of discrimination. It is ageism – discrimination that depends of an age of the person. No one can decide what person can and what person cannot do in a certain age. I completely agree with previous comment by Igor Melaniuk that no money can compensate the fact that someone decided that it is okay to leave the situation like that. People should not care about age, family status of a person, her personal life and sexuality. All people have the same rights, so why some people have less rights than other ones?
The medical error during that operation basically ended normal life of the lady. In such young age as 50 years it is very tragical to be not able to walk, sit and have sexual life. It is a big trauma and it is unacceptable to decide that it is not a big deal. So, I have to say that I completely disagree with the decision made by court.
Personally, I certainly agree with the ECHR’s decision. Human diversity presupposes different life paths. For some people sexuality ceases to be necessary at the age of 40, for others at 50, and for others it does not cease to be important for the rest of their lives. I believe that it is clearly beyond the competence of a court to decide when sexuality ceases to be important for a person. Given that for the other two male plaintiffs the court found compensation in full appropriate, it is likely that in this woman’s case there was discrimination on the basis of sex and age. This may be a more global problem than meets the eye. Not all people know how the court system works. Likewise, not all people have the tenacity to fight to the end. I believe that a truly democratic state must fully educate its citizens about what rights they have and how they can protect them. Also, the government should support non-profit organizations that fight injustice and discrimination.