ECHR mandate on reproductive rights, especially Abortion

The European Convention on Human Rights, ratified in the year 1953, established the European Court of Human Rights to “ensure the observance of the engagements undertaken by the High Contracting Parties.”[1] The Convention, formerly known as the Convention for the Protection of Human Rights and Fundamental Freedoms, was enacted to protect the basic Human Rights of the people, by subsequent judicial enforcement through the European Court. In Europe, the statistics show that the number of deaths resulting from pregnancy has been far less than those in other continents. However, there are disparities within the countries of the continent.[2] Article 8 of the Convention deals with the Reproductive Rights and sexual health in quite a broad manner.[3] The ECtHR has ruled on issues of whether a Right to Abortion exists under Article 8[4] and whether the fetus has a right to life under Article 2[5].[6] The Court has ruled that Abortion is not a right under the Convention, and hence there is no resultant right to have[7] or practice[8]Abortion. However, in a landmark decision of P. and S. v. Poland, the Court explained that individually the states might decide the circumstances under which Abortion may be permitted.[9] With respect to the right to life of a fetus, the Court held that the fetus does not enjoy an ‘absolute right to life.’[10] However, the Court took a dicey approach in opining further that because pregnancy cannot be said to be entirely under the ambit of the ‘private life of the mother,’ the fetus does have rights under certain circumstances.[11] Thus, it is evident that the Court was unwilling to “come off the fence” to advance the laws related to Abortion.[12]

From the year 2007 onwards, Article 8 has been interpreted in a procedural manner such that it is not just the state’s obligation to ensure that these rights are not violated, but also, that the state takes some ‘positive action’ to respect such rights.[13] This affirmative action arises in two situations- the first is where the state action ensures that these rights are respected and the second that the state has an incumbent duty to protect individuals from breach of such rights.[14] A pertinent example of the first situation would be the case of R.R. v. Poland[15], wherein the Court held it to be a failure on the part of the state of Poland when the hospitals denied the applicant an abortion, especially when the risky pregnancy fell under the ambit of Abortion under the Polish Law.[16] The second situation can be illustrated through the landmark case of A.B. and C. v. Ireland[17] where the European Court held in favor of procedural right under Article 8 that imposes a duty on the state to provide useful and accessible procedures that allow a woman to establish her right to a lawful abortion in Ireland.[18] Over the years many case studies suggesting that the European Court adopts a procedural approach towards the abortion rights to satisfy its political leanings[19], to serve the progressives and the conservatives alike, have come up, and looking at the trajectory of these case laws along with the regional disparity in statutes related to Abortion, the relevance of such case studies cannot be disputed.

As LiiriOja& Alicia Ely Yamin rightly opine – Disputed citizenship of women from the earlier era to the non-cognizance of reproductive rights as Human Rights, Europe has been the torch-bearer of the stereotypes associated with women.[20] It was not until the adoption of the 1953 Convention of Europe when the role of women started changing with respect to citizenship rights and reproductive rights too. The Court played the pre-inscribed stereotypes and flawed conceptions of gender in the garb of such progressive case laws. The whole idea of Article 8 under which the reproductive rights are adjudged, limit the area of women’s sexualities and reproductive freedom only to the ‘Private Sphere.’ This approach of segregating fundamental human rights into a private sphere contributes to the public-private debate as brought to light by Katherine MacKinnon.[21]Patricia Londoño finds such an approach extremely problematic for two reasons. Firstly because restricting reproductive rights to a private sphere contributes to the structural problem of the violence, abuse, and mental traumas experienced by women within their own families for adopting adoption over rearing the child. Secondly, such an approach also absolves the state to take concrete steps for the advancement of reproductive rights. Thereby making Abortion and reproduction a ‘private’ issue in which the state has no say.[22]

Both the landmark cases of R.R. v. Poland[23] and P. & S. v. Poland[24] have been adjudged by the Court in the sense of pity for the suffering that the woman is going through. This narrative completely ignores the conscious choice of women to have non-reproductive sex. The Court prescribes a paternalistic approach to the states concerning the procedural lapses in hospitals, thereby reinforcing the ideological stereotypes denying women any agency over their bodies.[25] With the lack of uniform laws on reproductive rights and Abortion per se, conscientious objection is now a common phenomenon wherein healthcare providers, or institutions refuse to provide reproductive health care services based on their religious or moral beliefs.[26] While religious beliefs are common, moral beliefs operate on a much broader stratum, especially in Poland and Italy, with ‘Nationalist’ and ‘Pronatalist’ beliefs being the most common not just historically but at present as well. The nationalist or pronatalist beliefs blame women for ‘irrational non-reproduction,’ which contributes to the narrative of such women being anti-nationalists because they are restricting higher fertility, which is required to ‘save the nation.’ This reproductive rhetoric has time and again comes in the way of an absence of set laws that advance women’s reproductive rights, including abortion ban.[27] Wanda Nowicka, a feminist activist, specializing in reproductive and health rights from Poland, opines that Europe does not have concrete legislation on reproductive rights and Abortion and instead invests in these areas through development aids. Her study concludes this lack of legislation, not a willful abstention but rather an indeterminacy to understand the issues around gender equality in the continent. Major laws in Europe revolve around the concept of equal pay as the only determinant of fundamental human rights of women. Gender-based discrimination and hence reproductive rights are not considered as human rights as such.[28]

[1] Former Article 19 of the ECHR.

[2] Id. at 14.

[3] Article 8 – 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

[4] Silva Monteiro Martins Ribeiro v. Portugal [GC], no. 16471/02, ECtHR 2004; P. and S. v. Poland, no. 57375/08, ECtHR 2013.

[5] Vo v France [GC], no. 53924/00, §80, ECtHR 2004.

[6]<> accessed on 03.07.19.

[7] Silva Monteiro Martins Ribeiro v. Portugal [GC], no. 16471/02, ECtHR 2004.

[8] Jean-Jacques Amy v. Belgium, no. 11684/85, EcmHR 1988.

[9] P. and S. v. Poland, no. 57375/08, ECtHR 2013.

[10] X v United Kingdom, no.8416/79, ECmHR 1980.

[11] Vo v France [GC], no. 53924/00, §80, ECtHR 2004.

[12] Joanna N Erdman, ‘Procedural abortion rights: Ireland and the European Court of Human Rights’, Reproductive Health Matters, Vol. 22, No. 44, Using the law and the courts (November 2014), pp. 22-30 <> accessed on 03.07.19.

[13]<> accessed on 03.07.19.

[14] Jacobs, White &Ovey, ‘the European Convention on Human Rights’, Oxford University Press, 4th edition, 2010, p. 243.

[15] R.R. v. Poland, Application No. 27617/04, Eur. Ct. H.R. (2011).

[16] Id. at 23.

[17] A, B, and C v. Ireland, [2010] E.C.H.R. 2032, Eur. Ct. H.R.

[18] Id. at 23.

[19] Id. at 23.

[20]LiiriOja& Alicia Ely Yamin, ‘“Woman” In The European Human Rights System: How Is The Reproductive Rights Jurisprudence Of The European Court Of Human Rights Constructing Narratives Of Women’s Citizenship?’, Columbia Journal of Gender and Law. <> accessed on 03.07.19.

[21] Ruth Gavison, ‘Feminism and the Public/Private Distinction’, Stanford Law Review Vol. 45, No. 1 (Nov., 1992), pp. 1-45 (45 pages)

[22] Id. at 31.

[23] Id. at 26.

[24] Id. at 20.

[25] Id. at 31.

[26] Christina Zampas, Ximena Andion-Ibanez, ‘Conscientious objection to sexual and reproductive health services: international human rights standards and European law and practice’, European journal of Health Law 2012. <> accessed on 03.07.19.

[27] JOANNA MISHTAL, ‘Reproductive Governance in the New Europe: Competing Visions of Morality, Sovereignty and Supranational Policy’, Anthropological Journal of European Cultures, Vol. 23, No. 1, THEMATIC FOCUS: Culture, Power and Policy in the New Europe (2014), pp. 59-76, < > accessed on 04.07.19

[28] Wanda Nowicka, ‘Sexual and reproductive rights and the human rights agenda: controversial and contested’, Reproductive Health Matters, Vol. 19, No. 38, Repoliticising sexual and reproductive health and rights (November 2011), pp. 119-128.<> Accessed on 04.07.19.

Kanak Mishra
Kanak Mishra
'The Author is a fourth year law student at Jindal Global Law School, India with a keen interest in International Laws and Women Rights.