"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?

• Author: Oja, Liiri

Abstract

Reproductive rights are constructed through a gender-conscious reading of already recognized human rights. We argue that despite the increasingly strong recognition of reproductive rights in international human rights law by the treaty-monitoring bodies and international tribunals, the jurisprudence of the European Court of Human Rights ("ECtHR" or "the Court") reflects a limited understanding of women's experiences, does not adequately challenge gender stereotypes, and often ignores reproductive rights dimensions in the standards it is setting, as well as the narratives it is creating. Our analysis of the Court's jurisprudence on abortion, home birth, non-consensual gynecological examinations, forced sterilizations, and assisted reproduction reveals that a woman's reproductive capacity continues to be her defining feature. Motherhood is seen as a woman's default life plan, her decisions regarding her body, health, and ultimately life, are perpetually under scrutiny and the contours of her agency subject to medical professionals ' views, the legislators and the general public.

INTRODUCTION

In her much-celebrated novel The Handmaid's Tale, Margaret Atwood created a society where women's function was reduced to breeding, and those who failed or tried to escape from this labor were labeled as "Unwomen" and punished. (1) Atwood's 1985 book may have been science fiction, but the story she tells is distressingly not too dissimilar from women's stories in the twenty-first century--even in what is known as the most progressive of regions: Europe. Indeed, when we study how "woman" has been constructed in the human rights system that was founded upon the European Convention on Human Rights (hereafter, "the Convention"), we find disturbingly essentialist gender roles.

The ECtHR is the judicial forum of the most established regional human rights system in the world, grounded in the norms of the European Convention on Human Rights. The Court's decisions are binding upon the forty-seven member states of the Council of Europe, and are implemented through domestic legislation and regulations. Moreover, the ECtHR's jurisprudence is regularly looked to and cited by other regional tribunals, treaty-monitoring bodies that adjudicate cases, and domestic courts. (2) Thus, the ECtHR sets standards in human rights law both within and beyond Europe and presents an important construction site for rights narratives, including reproductive rights narratives. As questions around women's reproductive health are often deeply contested, the ECtHR arguably has an especially important role to play in fostering public learning regarding reproductive rights as integral to the full participation of women in European society. Indeed, we argue in this Article that by using the law to "publicly and authoritatively proclaim and transform" unacknowledged harmful experience into legally cognizable wrongs requiring redress, the Court could play a potentially transformative role in narratives of women's citizenship in the European context. (3)

The Court has decided a number of cases concerning the matters of human reproduction (for example, restrictive abortion laws and access to in vitro fertilization). Nevertheless, the ECtHR itself has neither referred to reproductive rights as human rights (and accordingly forming a part of the Convention) nor specified that cases about reproduction entail questions of reproductive and decisional autonomy that go beyond private sphere and could entail needed shifts in social norms as well as institutional practices. Through examining how the Court has addressed specific issues relating to reproduction, we reflect on what the ECtHR's jurisprudence tells us about narratives of women's identity and citizenship in Europe more broadly.

Based on a systematic review of the Court's jurisprudence from 2003 to 2015, we consider nineteen cases that the Court has decided regarding issues of reproductive freedoms and entitlements: four abortion cases, (4) two cases concerning home birth, (5) six cases about assisted reproduction, (6) three forced sterilization cases, (7) three forced gynecological examination cases, (8) and one landmark domestic violence decision. (9) Although women's reproductive rights are closely linked to sexual orientation and gender identity, the scope of the Article does not permit analysis of those cases.

The Article is divided into four Sections. After setting out a brief overview of gender and citizenship narratives and reproductive rights in relation to human rights, in subsequent Sections we present the case law of the ECtHR regarding each of the above issues, dividing them into the following Sections: women, birth and pregnancy; women and assisted reproduction; and women, dignity and violence. Analysis of cases relating to each of these issues reveals that the way in which the Court addresses (or fails to address) harmful gender stereotypes implicitly, if not explicitly, reinforces narratives that paint a reductionist portrait of women's agency and role in the society. Following the argument set out by Rebecca Cook and Simone Cusack, we suggest that for the Court to play a transformative role would require first, identifying the gender stereotype (for example, does a policy/law imply that women are sexually passive and/or only should be mothers) and second, asking whether this gender stereotype denies women a benefit or imposes an undue burden, and whether it diminishes their dignity or otherwise marginalizes them. (10) We conclude that it is only through consciously naming and dismantling the narratives that exist that the ECtHR can begin to build an alternative construction of women's identity in the European context, as have other international human rights tribunals. (11)

1. CITIZENSHIP, GENDER, AND REPRODUCTIVE RIGHTS

   Feminist scholars have engaged with the relation between citizenship and gender quite extensively, and offered nuanced understandings of what citizenship means in different circumstances. (12) For the purpose of our enquiry into the stories of the "woman" in the ECtHR's reproductive rights jurisprudence, we use the term citizenship in a fairly loose and broad sense to describe a person's status and belonging: who is included and who is excluded from decision-making, from being a full and autonomous subject. Women have been historically excluded from full legal citizenship--from being able to vote and run for office, to having property rights, educational opportunities, and parental authority. The status of women in Europe began to formally change only in the twentieth century, and is indeed enshrined in the European Convention. Yet gender stereotypes--generalized views or preconceptions concerning sex, sexual characteristics or qualities, and sex roles (13)--continue to be embedded in some national laws as well as practices, and to limit women's citizenship in the sense of their ability to participate fully in their communities and societies as equals in different ways across Europe, often in response to cultural and religious traditions ranging from Catholicism to Islam. As Europe is today in the throes of re-thinking notions of citizenship beyond state borders and formal legal notions of citizenship, questions regarding narratives of women's identities--considering that they make up over half the population--and the extent to which women are able to carry out their chosen life projects, present a fundamental part of that larger social deliberation.

   Empowering women through the human rights law that governs the Council of Europe requires naming, understanding, and acknowledging the impacts of harmful gender stereotypes that are often taken for granted as "the way things are" and then articulating the ways in which norms can transform social roles for women in the European context. (14) Understanding the importance of language in structuring our thoughts makes the converse equally true; that is, it is critical to explicitly name reproductive rights as human rights, rather than merely as cultural, religious or moral issues. International human rights documents provide guidance in this regard. The Report of the U.N. International Conference on Population and Development ("ICPD") describes the concept of reproductive rights as follows:

   [Reproductive rights embrace certain human rights that are already recognized in national laws, international human rights documents and other [relevant United Nations] consensus documents. These rights rest on the recognition of the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so, and the right to attain the highest attainable standard of sexual and reproductive health. It also includes the right to make decisions concerning reproduction free of discrimination, coercion and violence as expressed in human rights documents. (15) Further, the ICPD Programme of Action "appears to recognise the ways in which culture and law are shaped by patriarchal assumptions about women and their capacity for roles other than motherhood. These underlying assumptions must be subverted in order for society to accept the need for reproductive rights for women." (16) The 1995 Platform of Action of the Fourth World Conference on Women, which extended the ICPD, added: "The human rights of women include their right to have control over and decide freely and responsibly on matters related to their sexuality including sexual and reproductive health, free of coercion, discrimination and violence." (17) In short, reproductive rights are constructed by making visible the gender dimensions of human rights. (18) It is through this conscious process of naming and exposing what is often so taken for granted as to be invisible that women's reproductive interests can be advanced through the rights that are already enshrined in international...