A Womb of One’s Own?
How the ECtHR Fails Reproductive Justice by Treating Reproduction as a Strictly Private Matter
Reproduction is one of the most intimate and fundamental human experiences, and inextricably linked to our bodily autonomy. Despite significant progress in European health care, abortion remains a crime in numerous States, and healthcare is often structurally inadequate. With restrictive reproductive policies on the rise (especially in Poland), the jurisprudence of the European Court of Human Rights (‘ECtHR’) on reproductive rights deserves closer scrutiny. This post will analyse how the ECtHR neglects the discriminatory dimension of reproductive rights cases. Relying on the decisions of the Committee on the Elimination of Discrimination against Women (‘the Committee’) as counterpoints, it will further demonstrate how a non-discrimination analysis contributes to reproductive justice.
From Rights to Justice
Reproductive rights are not a new, distinct set of rights. Rather, they encompass certain rights already recognized under national and international law, such as the right to life, the right to freedom from torture and ill-treatment, the right to privacy and the right to non-discrimination. As such, reproductive rights may not seem as much of a revolutionary project. However, matters of reproduction are matters of power and control. Controlling child-bearing bodies means controlling population growth and structure, and thus – in a distorted Neo-Malthusian logic – the distribution of limited economic and environmental resources.
Against this background, the 1994 Cairo Plan of Action was a watershed: For the very first time, 184 States formally recognized reproductive rights as human rights, guaranteeing freedom and non-discrimination in all aspects of reproductive life – from sexual education, family planning and contraception to pregnancy, abortion, childbirth and parenting (Cairo Plan of Action, Chapter VII).
But rights remain hollow without access. The concept of ‘reproductive justice’ insists that safe and dignified reproduction ultimately depends on access to material resources which remain unevenly distributed along the lines of race, class, and gender. The legal tool for a just redistribution of these resources are equality rights. Equality rights describe who enjoys freedom, while freedom rights describe what is to be enjoyed (see Baer, 449). However, the European Court of Human Rights (‘ECtHR’) does not engage with equality in its jurisprudence on reproductive rights.
Reproductive Rights Before the ECtHR
As most human rights conventions, the European Convention on Human Rights (ECHR) does not address reproductive rights specifically. The ECtHR handles reproductive cases mainly under an Article 8 paradigm, constructing them as – substantive or procedural – interferences with private and family life that require justification under Article 8(2), subject to a certain margin of appreciation.
As such, the ECtHR found that limited access to home births (Ternovsky v. Hungary) as well as to abortions (A, B and C v. Ireland; P. and S. v. Poland) violates Article 8. Similarly, it considered the unauthorised presence of medical students during childbirth (Konovalova v. Russia), the removal of a new-born from the mother’s care without consent (Hanzelkovi v. Czech Republic) and a medical intervention carried out on a pregnant woman without her informed consent (Csoma v. Romania) to be violations of Article 8. In so doing, the ECtHR specified several reproductive rights under the umbrella of Article 8, such as the right to choose the circumstances of becoming a parent and of giving birth (Ternovsky v. Hungary, para 22), the right to informed consent (Csoma v. Romania, para 41) the right to personal autonomy and the “right to respect for both the decisions to have and not to have a child” (V.C. v. Slovakia, para 138).
Additionally, if a case attains a ‘minimum level of severity’, the ECtHR may find a violation of the prohibition of torture and inhuman or degrading treatment in Article 3. This minimum level ‘depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim’ (ibid, para 101). In the context of medical interventions, the ECtHR reiterates that every intervention without the informed consent ‘of a mentally competent adult patient would interfere with his or her right to physical integrity’ (ibid, para 105), violating Article 3.
Applying those standards, the ECtHR held that a forced sterilization during childbirth violated Article 3 even without the medical staff’s intention of ill-treating the applicant (ibid, § 119). Likewise, non-consensual gynaecological examinations of a minor (Y.F. v. Turkey, § 47-48) and denials of access to abortion in cases of particular vulnerability (P. and S. v. Poland; R. R. v. Poland) amounted to violations of Article 3.
Article 14 ECHR in the Shadows
But what about Article 14 (in conjunction with Article 8 or 3)? International bodies such as the CEDAW Committee and the Committee on Economic, Social and Cultural Rights have long recognised that restricting access to reproductive health services amounts to discrimination based on sex (or potentially based on multiple intersecting grounds) due to women’s reproductive capabilities. The ECtHR, however, ignores discrimination in the context of reproduction.
Interestingly, in employment law, the ECtHR easily identifies the discriminatory nature of regulations related to pregnancy and childbirth. In Napotnik v. Romania, the court “observes that only women can be treated differently on grounds of pregnancy, and for this reason, such a difference in treatment will amount to direct discrimination on grounds of sex if it is not justified” (para 77). Plain and simple.
The ECtHR’s reluctance to adopt a non-discrimination approach is also puzzling given that it routinely relies on the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) as relevant international law, and even ‘has to have regard’ to CEDAW when determining the definition and scope of discrimination under Article 14 (Opuz v. Turkey, para 185). This invites a closer look at how the CEDAW Committee deals with comparable cases. Given the different mechanics of both institutions, I do not endeavour a strict comparison. Instead, following Dembour, I will use the Committee’s case law strategically as a “counterpoint” to Strasbourg’s jurisprudence, in order to further my criticism.
The CEDAW Way
In Alyne da Silva Pimentel v. Brazil, a poor woman of Afro-Brazilian descent died from obstetric complications after being denied maternal health care in private and public facilities. The Committee found Brazil systematically failed to meet the specific health needs of women, amounting to ‘multiple discrimination’ based on gender, race, and socio-economic status (para 7.7). In S.F.M. v. Spain, the applicant underwent a cascade of interventions without her consent, and initiated judicial proceedings against the hospital to no avail. The Committee found that S.F.M. was subjected to stereotypical and thus discriminatory treatment both in the hospital and in the judicial proceedings (para 7.5). In both cases, the Committee obligated the State to implement structural improvements, such as professional training, specific research, and adequate information campaigns.
CEDAW’s discrimination lens brings the structural dimension of reproductive cases to light and allows to challenge these discriminatory structures through tailored measures. In contrast, the ECtHR curtails the structural dimension of reproductive cases through the lens of ‘private and family life’. This lens is blind to the deeply engrained stereotypes as root causes of reproductive violations. It sees an individual case but deflects the gender-based social reality.
The Difference This Makes
This has direct consequences on the execution of the ECtHR’s judgments. Normally, the court does not ‘determine what may be the appropriate measures of redress’ under Article 46 ECHR. However, where a whole group is affected by the practice violating the ECHR, general measures are called for ‘such as to remedy the ECtHR’s finding of a violation in respect of a general practice’ in order to prevent similar violations (Baybaşin v. the Netherlands, para 79). Finding a violation of Article 14 helps to identify if a whole group is affected or not, and consequently whether general measures are appropriate (for the transformative potential of such measures see Henn).
A point in case: In Opuz v. Turkey, the ECtHR found for the first time that domestic violence affected mainly women and was thus discriminatory. Appropriate general measures included investigating the reasons for violence against women and identifying the necessary preventive as well as protective measures. The Committee of Ministers closely monitored their execution (and criticized e.g. measures confined to married women).
The only reproductive rights case where the ECtHR engaged with Article 14 concerned a forced sterilization of a Roma woman (V.C. v. Slovakia). The applicant invoked discrimination both on the grounds of her ethnic origin (para 170) and of her sex (para 171). However, the ECtHR only engaged with a discrimination based on her ethnic origin, holding that the evidence was not sufficient to demonstrate an “intentionally racially motivated” treatment (para 177). Eventually, the court – as it routinely does – satisfied itself with a violation of Article 8 and did not consider it necessary to examine the complaint separately under Article 14 (para 180). Instead, the ECtHR cloaked Article 14 considerations in its Article 8 analysis: It found a violation of the positive obligation under Article 8 ‘to secure to the applicant a sufficient measure of protection enabling her, as a member of the vulnerable Roma community, to effectively enjoy her right to respect for her private and family life in the context of her sterilisation’ (para 179, emphasis added). By halfheartedly engaging with the discrimination of Roma women under Article 8, the ECtHR fails to acknowledge that forced sterilizations are a historically common racist tool to oppress minorities by controlling their reproductive capabilities.
Towards Reproductive Justice
The concept of reproductive justice draws attention to the social reality in which reproduction takes place, spanning a variety of lived experiences in different stages of life. It highlights that reproduction is not a question of morals, but one of health, material resources, autonomy, and discrimination.
Through a non-discrimination lens, the ECtHR would be better equipped to detect and dismantle structural obstacles to reproductive justice that persist within social reality. This would be the way forward towards safe and dignified conditions in reproductive health which continue to be threatened by restrictive reproductive policies. What is at stake are key facets of our lives and relationships, autonomy over our bodies and most intimate life choices, whether we choose to reproduce or whether we do not.
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