“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?

Abstract

Abstract Reproductive rights are constructed through a gender-conscious reading of already recognized human rights. We argue that despite increasingly strong recognition of reproductive rights in international human rights law by treaty-monitoring bodies and international tribunals, jurisprudence of 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 standards it is setting, as well as narratives it is creating. Our analysis of 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 contours of her agency subject to medical professionals ' views, legislators and 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 story she tells is distressingly not too dissimilar from women's stories in twenty-first century--even in what is known as most progressive of regions: Europe. Indeed, when we study how woman has been constructed in human rights system that was founded upon European Convention on Human Rights (hereafter, the Convention), we find disturbingly essentialist gender roles. The ECtHR is judicial forum of most established regional human rights system in world, grounded in norms of European Convention on Human Rights. The Court's decisions are binding upon forty-seven member states of Council of Europe, and are implemented through domestic legislation and regulations. Moreover, ECtHR's jurisprudence is regularly looked to and cited by other regional tribunals, treaty-monitoring bodies that adjudicate cases, and domestic courts. (2) Thus, 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, ECtHR arguably has an especially important role to play in fostering public learning regarding reproductive rights as integral to full participation of women in European society. Indeed, we argue in this Article that by using law to publicly and authoritatively proclaim and transform unacknowledged harmful experience into legally cognizable wrongs requiring redress, Court could play a potentially transformative role in narratives of women's citizenship in European context. (3) The Court has decided a number of cases concerning matters of human reproduction (for example, restrictive abortion laws and access to in vitro fertilization). Nevertheless, ECtHR itself has neither referred to reproductive rights as human rights (and accordingly forming a part of 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 Court has addressed specific issues relating to reproduction, we reflect on what ECtHR's jurisprudence tells us about narratives of women's identity and citizenship in Europe more broadly. Based on a systematic review of Court's jurisprudence from 2003 to 2015, we consider nineteen cases that 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. …