Oja 2018 LAW

Who is the “Woman” in Human Rights Law:
Narratives of Women’s Bodies and Sexuality in

Reproduction Jurisprudence
Liiri Oja
Thesis submitted for assessment with a view to obtaining

the degree of Doctor of Laws of the European University Institute
Florence, 14 September 2018

European University Institute
Department of Law
Who is the “Woman” in Human Rights Law:

Narratives of Women’s Bodies and Sexuality in Reproduction Jurisprudence
Liiri Oja
Thesis submitted for assessment with a view to obtaining

the degree of Doctor of Laws of the European University Institute
Examining Board
Professor Martin Scheinin, European University Institute (Supervisor)
Professor Gábor Halmai, European University Institute
Dr Camilla Pickles, Oxford University
Professor Alicia Ely Yamin, JD MPH, Georgetown University
© Liiri Oja, 2018

No part of this thesis may be copied, reproduced or transmitted without prior
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Department of Law – LL.M. and Ph.D. Programmes
I Liiri Oja certify that I am the author of the work Who is the “Woman” in Human
Rights Law: Narratives of Women’s Bodies and Sexuality in Reproduction
Jurisprudence I have presented for examination for the Ph.D. at the European
University Institute. I also certify that this is solely my own original work, other than
where I have clearly indicated, in this declaration and in the thesis, that it is the work
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by the European University Institute (IUE 332/2/10 (CA 297).
The copyright of this work rests with its author. Quotation from this thesis is permitted,
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I declare that this work consists of 97 732 words.
Statement of inclusion of previous work (if applicable):

I confirm that chapters 1, 2, 3, 4, 5, 6 draw upon an earlier article:
OJA, L., YAMIN, A. E., “‘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, Vol. 32, No. 1 (2016)
Statement of language correction (if applicable):

This thesis has been corrected for linguistic and stylistic errors.
I certify that I have checked and approved all language corrections, and that these have
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Signature and date:
20 August 2018
ACKNOWLEDGEMENTS
When I was in secondary school 15 years ago I wrote a research paper titled (in a
rough translation) “Dance parties and get-togethers during 100 years” for a school project and
also a national competition. My only source of information was my mother who would sit
down and tell me for hours which dance party traditions my great grandmother, my maternal
grandmother and my mother herself had had, and I would diligently write it all down. In
hindsight it must have been a somewhat surprising choice of topic for my teachers and the
jury members of the competition because in early 2000s most Estonian students were trying
to record the horrors their grandparents and other family members had suffered during the
years of Soviet Occupation. Although I obviously did not win the competition I learned to
love stories and storytelling. If I went back to that paper today, I could see how these stories
of women were not just stories about what they wore to a party and which music they danced
to, but these are also telling a lot about what it meant to be a woman in Estonia during these
moments.
That school paper was not, however, the start of my feminist writings – although I
wish I could say so as it would be fairly elegant and fitting to have a beginning like that. But
my journey to this PhD research has been less linear and much longer. Someone once asked
which is more important – the doctoral thesis or the person who has taken the PhD journey.
For me it is an easy question. Although this manuscript is a labour of love, a result of hard
work and means a lot to me, the journey itself comes first. In fact, there is a whole second
story behind the thesis and its socio-legal analysis of jurisprudence. There is the story of six
different countries and nine different cities. There is the story of meeting people who have
made me cry, made me angry, made me feel frustrated, but more so the stories of people who
have taught me about kindness, patience and support, have made me a good writer, a more
critical thinker, a better person.
When I was unhappy about a “B” in Physics and my teacher told me “Girls don’t
need to get an ‘A’ in hard sciences” I knew he was wrong. When my undergraduate law
professor commented after a moot court speech that I should “smile more and appear softer”
I knew that also he was wrong. When my drunken graduate school classmate did not accept
my “no” and harassed me at the back of a taxi I knew that he was wrong, too.
I knew and it made me angry, but it has taken me some years of feminist research,
many books and those inspiring people – a whole journey – to find the suitable language for
my anger. So my story is a common one, full of unlearning and unpacking what has been
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presented as “natural” and “cultural”. I am not alone in this learning. I also know that despite
some negative experiences I have been able to be healthy, live without fear and pursue
education, professional and personal fulfilment – things many girls and women are not able
to do. Although I do not know great harm and violence I know how debilitating being
powerless is, even if just for a moment. Creating a supportive space for that anger and
translating it into actions and change is possible with the help of people who sometimes see
light before I do and who remind me to breathe.
I would like to acknowledge my supervisor Martin Scheinin for his support and
feedback and the Examining Board members Gábor Halmai, Camilla Pickles and Alicia Ely
Yamin for their insightful written comments.
I thank Paola Bergallo for being exceptionally kind with her time. Her dedication was
what connected me to Alicia Ely Yamin and brought me to Boston for the summer in 2015,
which in turn was the start of many wonderful things. I would like to thank Alicia for being a
friend, mentor, teacher ever since – she has the rare superpower of helping me be kinder to
myself. I think she will never actually really understand how much she has made a difference
for me because she is one of these people who take care of everyone along the way. Alicia
connected me to the brilliant Maya Unnithan. I thank Maya for hosting me at Sussex
University and being enthusiastic about my ideas. I will never forget how after carefully
listening to me for not more than 10 minutes she said: “Oh yes, I totally get your journey and
where you are going with all of this”. My time at CORTH working with Maya was happy and
extremely rewarding.
I am grateful to Berit Aaviksoo, my Constitutional Law professor who was the first
person at law school in Estonia to take my self-diagnosed passion for human rights seriously,
who was generous with her time and always invested in my success.
I would also like to thank Allyson Baughman, Yasmine Ergas, Samantha Halliday,
Hedda Lippus, Ülle Madise, Margit Muul, Kati Raudsepp, Shruti Rana, Mindy Roseman,
Karen Tikenberg and Katre Tubro for supporting me and being badass role models for me
and for many other women. I am grateful to Monika Mikiver and Nele Parrest for always
happily writing countless wonderful reference letters and welcoming me to the
Ombudsperson’s office many years ago despite my still little knowledge.
I would like to thank my first boss Aaro Mõttus for trusting me, allowing me to grow,
swim against the flow and not expecting me to ask for permission to do so. I am grateful to
my two professors at Georgetown: Susan L. Crockin who introduced me to reproductive
rights and judge Dennis Davis who was the first person to tell me to go for a PhD.
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A very special thanks goes to my chosen family. You remind me that there is a space
for me not despite, but exactly because of my many strong opinions and stubbornness. Eva
for being the best cheerleader – your love is always felt every step of the way even when I do
not say so, Marie for being the very reason I am in this field now, Triin for giving me advice
over the best cups of coffee, for the over 20 years of friendship and showing a new
perspective when no-one else could. Esther for providing me with a safe haven in London
and welcoming me to the UK with such care and warmth. I thank Saskia for inspiring me to
refocus and read more, Kaire for offering a home and never minding my early morning trains
or late night planes – your resilience, commitment and patience are admirable.
I thank my Brighton family – Tam and Arran, you made me feel at home during what
was a rather intense time. I am always grateful to my Sussex people – Ben and Ebru,
everything was better because of you. I thank my Spanish teacher and friend Edurne for
creating little spaces of happiness with her language classes and dinner parties– muchísimas
gracias! I would like to thank Benedikt, Birgit, Björn, Christian, Dieneke, Elena, Greg and
Maria for brightening up my days at the EUI (and beyond, of course).
I am grateful to Noemí for doing two things at the same time: being a loving friend
and a brilliant colleague. I thank Cheryl, Heldi and Nura for the long-distance support and
encouragement over many years. I am grateful to Noelia for making so much effort to see me
and helping me through some difficult moments. I thank my yoga teacher Nicole in Madrid
for creating balance during the final writing weeks.
I thank Francesca for making me less cynical about love and showing that I can climb
mountains better than I ever knew, the brilliant Raphaële for being my go-to-person with all
research related questions and bringing joy to my life, Marta for keeping me grounded with
her wisdom, Sonia for her knowledge and incredible calmness.
I thank my brothers Tajo and Kaspar – men who call themselves feminists and who
fight for a better world in their own way. Aitäh!
I am grateful to my parents – Eia and Urmas Oja – who are the masters of magical
childhoods and storytelling. Thank you, dad, for reading us Astrid Lindgren’s Pipi
Longstocking and Ronja the Robber’s Daughter so that I knew when the time came that yes,
GIRLS can do anything and everything. Thank you for the hundred times you picked me up
from different stations, patiently printed & scanned thousands of pages, sent me relevant
books-articles-films, stocked up on sweets, organised office spaces for me. Thank you, mum,
for the hundred times you helped me pack/unpack, urged me to be a dreamer and taught me
about education, people, forgiveness. Aitäh, isa ja emme! Sigrid Undset on kirjutanud: “Head
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päevad langevad osaks mõistlikele inimestele, parimad aga neile, kes julgevad olla
meeletud”. Ma olen saanud olla (natuke) meeletu tänu teile mõlemale.
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TABLE OF CONTENTS
ACKNOWLEDGEMENTS 1
TABLE OF CONTENTS 5
SUMMARY OF THESIS 9
ACRONYMS & ABBREVIATIONS 11
LIST OF CASES 13
1. INTRODUCTION: RESEARCH QUESTION, METHODOLOGY & OUTLINE 17
1.1 THE SEARCH FOR STORIES STARTS – THE RESEARCH QUESTION 17
1.2 THE DISCLAIMERS: A FEMINIST THESIS IN HUMAN RIGHTS LAW 20

1.2.1 “Questioning everything”: a feminist thesis 20
1.2.2 Overcoming the tension: the power and limitations of the “rights framework” 22
1.3 METHODOLOGY AND OUTLINE OF THE THESIS 25

1.3.1 Case-selection: overview and limitations 25
1.3.2 Human Rights Forums as Storytellers 27
1.3.3 Outline of the thesis: a reproductive rights-based approach and the narratives 29
2. CONSTRUCTING THE ANALYTICAL FRAME – FROM “QUESTIONING

EVERYTHING” TO A REPRODUCTIVE RIGHTS-BASED APPROACH 33
2.1 SETTING THE COURSE: OUTLINE & AIM OF THE CHAPTER 33
2.2 FEMINIST APPROACHES TO HUMAN RIGHTS LAW 34

2.2.1 Feminist legal theory 35
2.2.2 From feminist legal theory to women’s rights in human rights law 38
2.2.3 Toolbox: Tackling stereotypes in (human rights) case-law 40
2.3 HEALTH AND HUMAN RIGHTS: FROM SOCIAL DETERMINANTS TO

HUMAN RIGHTS-BASED APPROACHES 44
2.3.1 Understanding health within societal power systems 45
2.3.2 Health as a human rights issue 46
2.3.3 Human rights-based approaches to health 50
2.4 THE REPRODUCTIVE RIGHTS DISCOURSE 53

2.4.1 From feminist movements to the global United Nations recognition 54
2.4.2 The ICPD and the Programme of Action 57
2.4.3 Defining reproductive rights 61
2.5 CONCLUSION: “UNSCHOLARLY, DISRUPTIVE, OR MAD”

REPRODUCTIVE RIGHTS-BASED APPROACH 64
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3. WOMEN, BIRTH AND PREGNANCY NARRATIVES 66
3.1 “DANGEROUS MOTHERS-TO-BE OR SUFFERING VICTIMS INCAPABLE

OF AUTONOMOUS CHOICES” 66
3.2 ABORTION: ARE WE STILL PROTESTING THIS? 69

3.2.1 Abortion jurisprudence of the European Court of Human Rights 74
3.2.2 Abortion jurisprudence of the United Nations committees 87
3.3 “ALL WOMEN ARE MOTHERS(-TO-BE)” AND “WOMEN ARE SUFFERING

VICTIMS” 104
3.4 BIRTH: “A ‘good birth’ goes beyond having a healthy baby” 108
3.4.1 Birth jurisprudence of the European Court of Human Rights 112
3.4.2 Maternal mortality case of the United Nations CEDAW Committee 128
3.5 “WOMEN ARE DANGEROUS MOTHERS-TO-BE” AND “WOMEN ARE

INCAPABLE OF MAKING AUTONOMOUS CHOICES” 131
3.6 CONCLUSION: WOMEN ARE MOTHERS – SOMETIMES DANGEROUS 137
4. WOMEN AND VIOLENCE NARRATIVES 138
4.1 “DIRTY MISBEHAVING WOMEN, UNWANTED MOTHERS, AND THE

UNFORTUNATE VIOLENCE” 138
4.2 WHERE ARE VIOLENCE AND GENDER IN HUMAN RIGHTS LAW? 141
4.2.1 Gender-based violence against women and girls: international law responds? 141
4.2.2 Human rights-based approaches against gender-based violence 143
4.2.3 Women’s experiences with violence, and prohibition of torture and degrading
treatment 146
4.3 FROM DENIAL OF WOMEN’S SEXUALITY TO FORCED

GYNAECOLOGICAL EXAMINATIONS 152
4.3.1 “Virginity testing” jurisprudence of the European Court of Human Rights 154
4.3.2 A case concerning Women’s sexuality and age from the European Court of Human
Rights 161
4.4 “WOMEN’S STATUS AND RIGHTS DEPEND ON THEIR VIRGINITY” 164
4.5 PUNISHING AND DISCIPLINING WOMEN WITH FORCED

STERILISATIONS 168
4.5.1 Forced sterilisation jurisprudence of the European Court of Human Rights 174
4.5.2 The United Nations CEDAW Committee Case 182
4.5.3 The Inter-American Court of Human Rights Case 184
4.6 “SOME WOMEN CAUSE PROBLEMS WHEN THEY HAVE BABIES” 186
5. WOMEN AND (IN)FERTILITY NARRATIVES 190
5.1 SOCIAL DIMENSIONS OF INFERTILITY 192
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5.2 MANAGING PEOPLE & DISTRIBUTING ROLES AND POWER WITH
ASSISTED REPRODUCTIVE TECHNOLOGIES 195
5.3 SURROGACY: “MORAL AND ETHICAL DEGRADATION OF THE

SOCIETY” 200
5.3.1 Jurisprudence from the European Court of Human Rights 203
5.4 ACCESS TO ASSISTED REPRODUCTIVE TECHNOLOGIES 208

5.4.1 Jurisprudence from the European Court of Human Rights 208
5.4.2 Case from the Inter-American Court of Human Rights 218
5.5 (IN)FERTILITY NARRATIVES: WOMEN IN “HETEROSEXUAL, NUCLEAR,

GENETICALLY-RELATED” FAMILIES 221
6. CONCLUSION: WHO IS THE “WOMAN” IN HUMAN RIGHTS LAW? 226
6.1 SILENCING AS A LACK OF MEANINGFUL “LISTENING” 226
6.2 SILENCING IN SCHOLARSHIP, LEGAL DISCIPLINE AND

TRANSNATIONAL JURISPRUDENCE 227
APPENDICES 239
BIBLIOGRAPHY 243

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SUMMARY OF THESIS
This thesis asks who is the woman in human rights law and explores how transnational
human rights law forums are contributing to women’s silencing by reinforcing harmful
stereotypes. It constructs a special analytical frame – a reproductive rights-based approach –
to show the emerging narratives about women, their bodies and sexuality when jurisprudence
concerning abortion, birth, reproductive violence and assisted reproduction is connected and
read together. By using feminist approaches to law and understanding human rights through
power relationships to analyse a total of 35 cases (between 2003-2017) from the European
Court of Human Rights, the United Nations Human Rights Committee, the United Nations
CEDAW Committee and the Inter-American Court of Human Rights, the thesis shows how
despite good examples of anti-stereotyping done by courts or committees, by an large,
women are still given fixed roles that are all primarily connected to the idea of women as
mothers and women’s bodies as reproductive bodies. Thus, the human rights law forums are
still not putting women’s lived experiences at the centre of their analysis and are not doing an
effective listening work. Instead, there is still a resistance – especially in the European Court
of Human Rights – against taking women’s lived realities, life plans and what they say about
violence, suffering, disadvantages seriously.
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10
ACRONYMS & ABBREVIATIONS

ARTs Assisted reproductive technologies
CAT The Committee Against Torture
CEDAW United Nations Convention on the Elimination of All Forms of

Discrimination against Women
Convention of Inter-American Convention on the Prevention, Punishment and

Belem Do Para Eradication of Violence Against Women
DEVAW United Nations Declaration of Violence against Women
ECtHR European Court of Human Rights
FGM Female genital mutilation
GA General Assembly
GC General Comment
IACtHR Inter-American Court of Human Rights
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights
ICPD International Conference on Population and Development
Istanbul Council of Europe Convention on preventing and combating violence

Convention against women and domestic violence
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IVF In vitro fertilisation
SDG United Nations Sustainable Development Goal
UDHR Universal Declaration of Human Rights
UNCAT Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment
WHO World Health Organisation
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LIST OF CASES

A, B and C v. Ireland Application no. 25579/05 (2010)
A.S. v. Hungary CEDAW/C/36/D/4/2004 (2006)
Alyne v. Brazil CEDAW/C/49/D/17/2008 (2011)
Annen v. Germany Application no. 3690/10 (2016)
Artavia Murillo et al. v. Costa Rica Preliminary Objections, Merits,

Reparations, and Costs, Judgment,
IACtHR. (ser. C) No. 257 (2012)
Carvalho Pinto de Sousa Morais v. Portugal Application no. 17484/15 (2017)
Costa and Pavan v. Italy Application no. 54270/10 (2013)
Devrim Turan v. Turkey Application no. 879/02 (2006)
Dickson v. the United Kingdom Application no. 44362/04 (2007)
Dubska and Krejzova v. the Czech Republic Applications nos. 28859/11 and
28473/12 (2016)
Evans v. the United Kingdom Application no. 6339/05 (2007)
F.B. v. the Netherlands CAT/C/56/D/613/2014 (2015)
Hanzelkovi v. the Czech Republic Application no. 43643/10 (2015)
I.G. and Others v. Slovakia Application no. 15966/04 (2013)
Preliminary Objections, Merits,

I.V. v. Bolivia
Reparations, and Costs, Judgment,
IACtHR (ser. C) No. 329 (2016)
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Juhnke v. Turkey, Application no. 52515/99 (2008)
K.H. and Others v. Slovakia Application no. 32881/04) (2009)
K.L. v. Peru CCPR/C/85/D/1153/2003 (2005)
Konovalova v. Russia Application no. 37873/04 (2015)
Korneykova and Korneykov v. Ukraine Application no. 56660/12 (2016)
L.C. v. Peru CEDAW/C/50/D/22/2009 (2011)
LMR v. Argentina CCPR/C/101/D/1608/2007 (2011)
Mellet v. Ireland CCPR/C/116/D/2324/2013 (2016)
Mennesson v. France Application no. 65192/11 (2014)
NB v. Slovakia Application no. 29518/10 (2012)
Opuz v. Turkey Application no. 33401/02 (2009)
P. and S. v. Poland Application no. 57375/08 (2013)
Paradiso and Campanelli v. Italy Application no. 25358/12 (2017)
R.R. v. Poland Application no. 27617/04 (2011)
Salmanoğlu and Polattas v. Turkey Application no. 15828/03 (2009)
S.H. and Others v. Austria Application no. 57813/00 (2011)
Sylvie Bakatu-Bia v. Sweden CAT/C/46/D/379/2009 (2011)
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Ternovszky v. Hungary Application no. 67545/09 (2011)
Tysiac v. Poland Application no. 5410/03 (2007)
V.C. v. Slovakia Application no. 18968/07 (2012)
Whelan v. Ireland CCPR/C/119/D/2425/2014 (2017)
Y.F. v. Turkey Application no. 24209/94 (2003)
Yazgül Yilmaz v. Turkey Application no. 36369/06 (2011)
X and Y v. Georgia CEDAW/C/61/D/24/2009 (2015)
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1. INTRODUCTION: RESEARCH QUESTION, METHODOLOGY & OUTLINE
The problem with stereotypes is not that they are untrue, but that they are incomplete. They make
one story become the only story.
Chimamanda Ngozi Adichie
1.1 THE SEARCH FOR STORIES STARTS – THE RESEARCH QUESTION
Stories matter – it is through storytelling that people create communal, national,

transnational narratives that help to explain and make sense of the world. Importantly, this
goes beyond the reading of bedtime fairy-tales – stories are everywhere and come in all
different forms: they can be written down as letters, poetry, novels, or rules and regulations,
fixed in paintings, sculptures and photographs, narrated in films and cartoons, subtly
proposed through landmarks and buildings, passed on as songs and music, or kept only in
people’s minds, hearts and dreams. Stories about women have for example been captured in
stories as different as the mythological folk tales of women as wolves, in the trilogy of
Kristin Lavransdatter by the Nobel laureate Sigrid Undset, in Virginia Woolf’s ground
breaking feminist essays, in the award-winning contemporary novels with strong female lead
characters written by Elena Ferrante and Elif Shafak, in the speeches on gender equality by
the novelist Chimamanda Ngozi Adichie and actress-activist Emma Watson, in the paintings
of Frida Kahlo and Judy Chicago’s installation “Dinner Party”, in the music of Aretha
Franklin and Beyoncé, in the poetry of Maya Angelou and Nayyirah Waheed.
In all of these stories there are signalling moments that implicitly or explicitly
(through the plot of the book, choice of colours, angle of the viewer, building material)
reflect something about women’s experiences: their status in the society, struggles, successes,
and losses in their own time and specific geographic location, socio-legal, economic and
cultural space – and about the limitations of the very terms “gender”, “femininity”, “woman”.
Equally salient is to consider, how the stories that do not talk about women, are nevertheless
stories about women as the silences and exclusions speak volumes too. Whichever the form
of the story, the crucial aspect is that stories have the power to change the way a human being
experiences the world. Therefore, it is imperative to a person’s life what kind of stories she
can tell about herself, and what kind of stories others are telling about her.
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Playing an active role in one’s own life story means having a voice, and having a
voice is in turn a pre-requisite for a life lived with human dignity. Consequently, stories and
voices are essential to human rights, and silencing is a path to human rights breaches through
denying people from taking up space and making them small and insignificant. Rebecca
Solnit argues: “Having a voice is crucial. It’s not all there is to human rights, but it’s central
to them, and so you can consider the history of women’s rights and lack of rights as a history
of silence and breaking silence”.1 Solnit explains further, how silence is the “universal
condition of oppression”, and “who is heard and who is not defines the status quo”.2
Solnit’s idea of women’s voices forms the foundation for this thesis as an -how women have
no voice as to
whether they can
investigation into how acts of silencing play out in the narratives about women, power and use the hijab/nikab/
burka
-how women have
reproduction that human rights law forums create through high-level transnational legal no saying about
legislation on
abortion rights in the
interpretation. Thus, the main research question of this thesis asks: Who is the “Woman” in US (most of the
voters in the
Parliament were
human rights law? To answer, I show through six chapters, which narratives of women’s men)
bodies and sexuality are constructed in the 21st century in the jurisprudence concerning
reproduction of the selected transnational human rights law forums.
Aimee Carrillo Rowe and Sheena Malhotra challenge the assumption in the Western
culture that “locates silence as a site of reform and privileges voice as the ultimate goal of
and means to achieve empowerment”, and presumes that “for an individual or group who is
silenced to gain power, they must activate voice in order to resist and transform the
conditions of their oppression”.3 They explain, how the “lacuna within this formulation is that
the burden of social change is placed upon those least empowered to intervene in the
conditions of their oppression”, thus shifting the focus away from the “labor that might be
demanded of those in positions of power to learn to listen”.4 I am taking this challenge into
account as with this thesis I focus on how the human rights law forums are silencing women,
and show how in order to stop that they need place their analysis in the context of power
dynamics, in societies, and put women’s lived experiences in the centre of their analysis – i.e
using Carrillo Rowe and Malhotra’s words the human rights law forums need to listen and do
the labour.

1
R. Solnit, The Mother of All Questions (2017), p. 20.
2
3
A. Carrillo Rowe, S. Malhotra, “Still the Silence: Feminist Reflections at the Edges of Sound”, in: Silence,
Feminism, Power, A. Carrillo Rowe, S. Malhotra (eds.) (2013), pp. 1-2.
4
A. Carrillo Rowe, S. Malhotra, “Still the Silence: Feminist Reflections at the Edges of Sound”, in: Silence,
Feminism, Power, A. Carrillo Rowe, S. Malhotra (eds.) (2013), pp. 1-2. They also challenge Audre Lorde’s
work on silence and voice – see A. Lorde, “The Transformation of Silence into Language and Action”, in: Sister
Outsider: Essays and Speeches (1984).
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In summer 2017, just before I started writing up this thesis in its full length the
European Court of Human Rights decided a case against Portugal that in light of its other
previous cases concerning women, reproduction and sexuality stood out. Namely, it
concerned a woman in her 50s who had been discriminated by the Portuguese judiciary based
on her gender and age as the amount of damages awarded to her had been decreased based on
the stereotype that “for a woman in her age, sex is not that important”. The Strasbourg Court
found Portugal in breach of the right to non-discrimination and right to privacy rooting its
conclusions in the anti-stereotyping approach. I introduce the case in detail later, but to set up
the thesis I highlight one striking sentence from the court’s analysis. Namely, the European
Court of Human Rights argued that the assumption that sexuality is not as important for a
fifty-year-old woman and mother of two children as for someone of a younger age reflected
“a traditional idea of female sexuality as being essentially linked to child-bearing purposes
and ignores its physical and psychological relevance for the self-fulfillment of women as
people”.5 Indeed, in the context of all the jurisprudence regarding reproduction I use in this
thesis such an explicit challenge to stereotyping seems something to celebrate. However, if
put in the context of broader jurisprudence over the years that I have included into this piece
of research and taking into account the feminist scholarly works that have been pointing out
such limiting and harmful stereotypes for decades, my stronger sentiment is exasperation.
Accordingly I do not see that a human rights case affirming “women as people” with desires
beyond reproduction should be the benchmark for appraisal.
Before I unpack the research question by outlining my methodology, the structure of
the arguments, and the analytical frame I have constructed for the search and critique of the
narratives, I proceed with two paramount disclaimers.

5
Emphasis added. Carvalho Pinto de Sousa Morais v. Portugal, Application no. 17484/15 (2017), para. 52.
19
our work should equip
the next generation of women
to outdo us in every field
this is the legacy we’ll leave behind
– progress
(rupi kaur)
1.2 THE DISCLAIMERS: A FEMINIST THESIS IN HUMAN RIGHTS LAW
The following two disclaimers mark the theoretical frames of the arguments in this
thesis as I position my work in feminist approaches and human rights law.
1.2.1 “Questioning everything”: a feminist thesis
First, this thesis is grounded in, and guided by feminist analysis. There are many ways
to look at ideas and the world – or stories, for this matter, – and consequently, different
approaches are also analytically productive in distinct ways. Furthermore, choosing a
theoretical frame for a PhD thesis is inevitably also a statement about much broader questions
surrounding knowledge production, and power within and beyond scholarship.6 I agree with
Griselda Pollock who argues that demanding women to be considered not only “changes
what is studied and what becomes relevant to investigate”, but also challenges the existing
disciplines politically as “women have not been omitted through forgetfulness or mere
prejudice”.7 Thus, in this way my thesis becomes a demand for a space in which transnational
reproduction jurisprudence is considered through feminist approaches to law.
What are feminist approaches? I side with Christine Littleton who explains, how
feminist method “starts with the very radical act of taking women seriously, believing that
what we say about ourselves and our experience is important and valid, even when (or
perhaps especially when) it has little or no relationship to what has been or is being said
about us”.8 This “act of taking women seriously” also means that consequently there is no

6
See e.g.: G. K. Bhambra, (ed.), Current Sociology Special Issue: Knowledge production in global context:
Power and coloniality, Vol. 62, Issue 4 (2014), M. do Mar Pereira, Power, Knowledge and Feminist
Scholarship: An Ethnography of Academia (2017).
7
G. Pollock, Vision and Difference: Feminism, femininity and the histories of art, (2003), p. 1.
8
C. A. Littleton, “Feminist Jurisprudence: The Difference Method Makes”, Stanford Law Review, Vol. 41, No.
3 (1989), p. 764.
20
one single feminist approach. 9 Instead, like Hilary Charlesworth, Christine Chinkin and
Shelley Wright explained in their ground-breaking article on feminist approaches to
international law, different feminist writers can occasionally have conflicting views, which
however, does not undermine feminist inquiries, but is on the contrary essential to them and
enriching as conflicting views add diversity.10 For example, this diversity has called for
intersectional feminisms that invite a rigorous analysis of power distribution and silencing by
acknowledging women’s different identities within the constructed group of “women”.11
In summary, this means that feminist approaches are not tools for uncovering
“ultimate truth”: instead, feminist methods emphasise conversations and dialogue rather than
the production of “a single triumphant truth”.12 Thus, as Sandra G. Harding summarises,
there is a “permanent partiality” to the feminist inquiry.13 Methodologically this leads to what
Heather Ruth Wishik has called “questioning everything”.14
This “permanent partiality”, however, seems to construct an immediate clash with the
legal discipline and the legal method as it is traditionally understood and taught within the
discipline. Namely, Ruth Fletcher explains how combining the legal method and feminism
can seem impossible as law claims to be objective and neutral – and not differentiate between
people.15 Charlesworth, Chinkin and Wright add that although the central feature of many
Western theories about law is the “law’s autonomous character and the argument that law is
distinct from the society it regulates, operates on the basis of abstract rationality and is
consequently capable of achieving neutrality and objectivity”, the feminist approaches to law
challenge this.16 Accordingly, feminist methods must question the traditional “fundamentals

9
See further on feminist approaches e.g: C. Ramazanoglu, J. Holland, Feminist Methodology: Challenges and
Choices (2002), C. Hemmings, Why Stories Matter: The Political Grammar of Feminist Theory (2011),
Feminist Research Practice: A Primer, 2nd edition, S. Nagy Hesse-Biber (ed.) (2013).
10
H. Charlesworth, C. Chinkin, S. Wright, “Feminist Approaches to International Law”, American Journal of
International Law, Vol. 85, Issue 4 (1991), p. 613.
11
The term “intersectionality” was coined by Kimberle Crenshaw in 1989 as a critique of the single-axis-
approach to discrimination. See: K. Crenshaw, "Demarginalizing the Intersection of Race and Sex: A Black
Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics," University of
Chicago Legal Forum, Vol. 1989, Article 8. Crenshaw was not the first person to draw attention to the too
narrow definition of discrimination, but she is regarded as the person who theorised intersectionality. See also:
P. Hill Collins, S. Blige, Intersectionality (Key Concepts) (2017).
12
H. Charlesworth, “Feminist methods in international law”, in: The Methods of International Law, S. R. Ratner
and A.-M. Slaughter (eds.) (2003), p. 159. Charlesworth is referring to J. Ann Tickner.
13
14
H. R. Wishik, “To Question Everything: The Inquiries of Feminist Jurisprudence”, Berkeley Women’s Law
Journal, Issue 4 (1985).
15
R. Fletcher, “Feminist Legal Theory”, in: An Introduction to Law and Social Theory, R. Banakar, M. Travers
(eds.) (2002), p. 136.
16
21
of the legal persuasion”, e.g the language, the acceptance of abstract concepts as somehow
“valid” or “pure”, and the commitment to male, hierarchical structures in all legal and
political organisations.17 Further, Fletcher underscores how feminists have argued that legal
ideas of full objectivity and neutrality are not only impossible, but also problematic for
people who have been historically marginalised, thus, much feminist work focuses on
deconstructing these claims of objectivity and neutrality.18
As Hilary Charlesworth writes – maybe as a pre-emptive supportive warning for
scholars applying feminist approaches – since feminist methodologies challenge many
accepted scholarly traditions, they are regularly seen as “unscholarly, disruptive, or mad”.19
Thus, just as Charlesworth once wrote in her response to an invitation to participate in a
symposium on international law methods: “I also hope that one day I will stop being
positioned always as a feminist and will qualify as a fully fledged international lawyer”, I
would hope too that one day feminist methods become so obvious and natural that one does
not need to spell out that a thesis is a feminist thesis – as if there could be a thesis that was
not.20 Until that time comes, however, this thesis is explicitly a feminist thesis.21
1.2.2 Overcoming the tension: the power and limitations of the “rights framework”
The second disclaimer is connected to the first one. I employ feminist approaches to
“question everything”, and therefore criticise the ways in which human rights law forums are
failing to recognise women’s voices, and offer a better protection of their reproductive rights.
Furthermore, my work is aware of the many broader challenges that are not only pointing out
the missing gender perspectives in human rights law, but also questioning whether the human
rights project as such should be abandoned. However, although I do argue for a better and
more reflective human rights analysis, I do not call for a complete rejection of human rights
law.22
To repeat, human rights law frameworks are not free from stark criticism, doubt or

17
18
R. Fletcher, “Feminist Legal Theory”. In: An Introduction to Law and Social Theory, R. Banakar, M. Travers
(eds.) (2002), p. 136.
19
and A.-M. Slaughter (eds.) (2003), p. 160.
20
21
See also further: Feeling Academic in the Neoliberal University Feminist Flights, Fights and Failures, Y.
Taylor, K. Lahad, (eds.) (2018).
22
Some scholars are more pessimistic. See e.g.: E. Posner, The Twilight of Human Rights Law (2014).
22
scepticism (beyond feminist enquiries).23 For example, Stephen Hopgood, Jack Snyder and
Leslie Vinjamuri refer to critics who call for a better and more straightforward analysis of
where rights came from, whose interests they serve, and how they will fare in a rapidly
changing world in which the “hegemony of Western and liberal concepts is under challenge
in new ways”.24 This “rights vs. justice (or some other alternative to rights)” division is
familiar to the rights critique within feminist legal theory proposing that the rights-approach
and the rights-language are in fact disempowering (for women).25 Namely, some scholars
have argued that the rights-language oversimplifies gender-based power relations, or that
rights are indeterminate, receptive for manipulation, empty, or more generally, asking
whether it is possible to “dismantle the master's house with the master's tools” as famously
written by Audre Lorde.26
Moreover, Andrea Cornwall and Maxine Molyneux for example outline four
“feminist dilemmas” regarding rights (and international development).27 One of them is the
relationship between rights and realities, as Cornwall and Molyneux explain it: “It is the gulf
that exists between elegant laws and the indignities of women’s everyday realities, and
between being accorded a right and being in any position at all to make use of it”.28 Another
dilemma relevant here is the very relationship between rights, feminisms and the state.
Namely, Cornwall and Molyneux argue that since the state is the guarantor of rights the state
also becomes the focus of feminist advocacy.29 In other words, framing something as a right
essentially and fundamentally means including the state, inviting the state to intervene. And
that in itself can be potentially counter-productive or even dangerous as governance through
laws, regulations, guidelines defines the rules of the game which might not be in sync with
people’s lived experiences.

23
See e.g.: Human Rights Futures, S. Hopgood, J. Snyder, L.Vinjamuri (eds.) (2017), S. Marks, “Human rights
and root causes”, Modern Law Review, Vol. 74, Issue 1 (2011), S. Moyn, The Last Utopia: Human Rights in
History (2012), M. W. Mutua, “Savages, Victims, and Saviors: The Metaphor of Human Rights”, Harvard
International Law Journal, Vol. 42, No. 1 (2001).
24
S. Hopgood, J. Snyder, L.Vinjamuri, “Conclusion: Human Rights Futures”, in: Human Rights Futures, S.
Hopgood, J. Snyder, L.Vinjamuri (eds.) (2017), p. 313.
25
N. Lacey, “Feminist Legal Theory and the Rights of Women”, in: Gender and Human Rights, K. Knop (ed.)
(2004), pp. 38-53. See also: H. Charlesworth, C. Chinkin, The boundaries of international law. A feminist
analysis (2000), pp. 208-247.
26
H. Charlesworth, C. Chinkin, The boundaries of international law. A feminist analysis (2000), pp. 208-212;
A. Lorde, Sister Outsider: Essays and Speeches (1984).
27
A. Cornwall, M. Molyneux, “The Politics of Rights: Dilemmas for Feminist Praxis: An introduction”, Third
World Quarterly, Vol. 27, No. 7 (2006).
28
World Quarterly, Vol. 27, No. 7 (2006), p. 1183.
29
World Quarterly, Vol. 27, No. 7 (2006), p. 1185.
23
This thesis is a “reconstructive project” as I do not reject the framework of human
rights, but instead opting to show what the transnational human rights law forums are missing
in their human rights analysis.30 Throughout this thesis I criticise, re-consider and re-define
the rights framework, but I also simultaneously argue that there is positive (transformative
and protective) power potential in the human rights protection systems. Instead of rejecting
transnational human rights bodies as too distant from the “local” or too elitist, ethnocentric,
neo-colonial I again propose that a strong critique of the rights systems and regional human
rights bodies is not mutually exclusive with using these very systems to advance human lives.
I strongly side with scholars Alicia Ely Yamin, who understands rights as “bundles of
relationships that are supported by the state’s monopoly on force”, Maya Unnithan, who
maintains that “human rights are not simply discrete legal instruments but concepts whose
meaning is interpretive, relationally constituted, experientially based, and historically
shaped”, and Alison Brysk, who argues that human rights can move beyond binaries of
local/global, protection/empowerment, and insiders/outsiders by “introducing new voices,
new rights, and new pathways to fulfillment”.31 An allergy to fixed either/or binaries, and
critical reconsideration of human rights as power systems is part of the “disorderly” feminist
approach that as Hilary Charlesworth describes is seen as “unscholarly, disruptive, or mad”.32
My aim therefore is to submit the “demand” for a rights-based thinking that
challenges the legal discipline within the discipline itself by calling out stereotyping that
hides behind the “neutral” legal method, harmful language and terminology constructing
limiting narratives about women, and applying critical reading to some “untouchable” ideas.
Consequently in this thesis I draw material from other disciplines (i.e. sociology,
anthropology, medical science) because many questions have been under-researched by legal
scholars. Nevertheless, I am deliberately carving a space for criticism and change within and
not outside law.
Catharine MacKinnon’s uses the “butterfly effect” metaphor (originally coined by
Konrad Lorenz in 1972) according to which “some extremely small simple actions that are

30
About “reconstructive projects” see: N. Lacey, “Feminist Legal Theory and the Rights of Women”, in:
Gender and Human Rights, K. Knop (ed.) (2004), p. 43.
31
A. E. Yamin, “Taking the Right to Health Seriously: Implications for Health Systems, Courts, and Achieving
Universal Health Coverage”, Human Rights Quarterly, Vol. 39, No. 2 (2017) p. 346, M. Unnithan, “What
Constitutes Evidence in Human Rights-Based Approaches to Health? Learning from Lived Experiences of
Maternal and Sexual Reproductive Health”, Health and Human Rights, Vol. 17, No. 2 (2015), p. 54, A. Brysk,
Contesting regression: citizen solidarity vs. the decline of democracy, October 5, 2017, available at:
https://www.openglobalrights.org/Contesting-regression-citizen-solidarity-vs-the-decline-of-
democracy/?lang=English (accessed 7 February, 2018).
32
24
properly targeted can come to have highly complex and large effects in certain contexts”, and
explains how even small critical interventions can affect how the system behaves and thus
bring along transformation in the gender system.33 MacKinnon believes that the butterfly
metaphor can encourage multidimensional political thinking, inspire interventions (“even tiny
ones”) and open discussions/debate.34 I borrow from MacKinnon’s thinking and treat this
thesis as a version of a flap of a butterfly’s wings that challenges some of the thinking about
women, reproduction, infertility and violence that the transnational human rights law forums
do.
1.3 METHODOLOGY AND OUTLINE OF THE THESIS
I have now positioned this project as a feminist thesis in human rights law. In this last part
of the introduction I outline my methodology for answering the research question – to recall,
this thesis asks: Who is the “Woman” in human rights law? I have chosen to answer this
question through investigating transnational jurisprudence concerning reproduction. 35
Furthermore, I have picked a specific way of analysing the case-law. Namely, in the first
pages of this thesis I sketched out the connections between stories, having a voice, silencing,
and human rights. I argued that for a life lived with dignity one needs to have a voice, and be
able to tell and live her story, and if that voice is systematically silenced, then this silencing
could lead to human rights breaches.
Firstly, I describe my case-law selection – in other words, which specific cases regarding
reproduction from which transnational (and why) I have included as objects of my
investigation. Secondly, I explain, how I am reading the case-law as stories which when
brought together into one analytical framework form narratives. Accordingly, the
methodology part more specifically explains, how I extract narratives about women, their
bodies and sexuality to conclude who women are in the reproduction jurisprudence of the
transnational human rights law forums (i.e which roles they have been given).
1.3.1 Case-selection: overview and limitations

I have included case-law of the treaty monitoring bodies of the European Convention on
Human Rights (the European Court of Human Rights, hereafter the ECtHR), the United
Nations Convention on the Elimination of All Forms of Discrimination against Women (the

33
C. A. MacKinnon, Butterfly Politics (2017), pp. 1-8.
34
C. A. MacKinnon, Butterfly Politics (2017), p. 8.
35
In this thesis I understand “transnational” as not domestic/national (courts/jurisprudence).
25
CEDAW Committee), the International Covenant on Civil and Political Rights (the United
Nations Human Rights Committee, hereafter the HR Committee), and American Convention
on Human Rights (the Inter-American Court of Human Rights, hereafter the IACtHR).36
Based on a systematic review of the available jurisprudence from 2003 to 2017 I
consider a total of 35 cases (see Appendix 1). From the case-law of the regional human rights
court in Europe (the ECtHR) I have chosen five cases concerning abortion,37 five cases
concerning birth,38 six cases on assisted reproduction,39 four forced sterilisation cases,40 five
forced gynaecological examination cases 41 and one case concerning women’s sexuality
during their life course.42
From the IACtHR, the ECtHR’s American counterpart, I have two cases: one case
concerning assisted reproduction,43 and one case concerning forced sterilisation.44 And lastly,
from the UN treaty monitoring bodies I have picked seven cases: one abortion case,45 one
forced sterilisation case 46 and one maternal mortality case from the UN CEDAW
Committee47, and four abortion cases from the UN Human Rights Committee.48
My focus when choosing the relevant cases was the transnational space. This does not
mean that domestic courts are unimportant. On the contrary, human rights protection is a
construction with many vital parts that all need critical attention from scholarship. For the

36
The Human Rights Committee (on the basis of the First Optional Protocol to the ICCPR), the Committee on
the Elimination of Discrimination Against Women (on the basis of the Optional Protocol to the CEDAW).
37
Tysiac v. Poland, Application no. 5410/03 (2007), A, B and C v. Ireland, Application no. 25579/05 (2010),
R.R. v. Poland, Application no. 27617/04 (2011), P. and S. v. Poland, Application no. 57375/08 (2013), Annen
v. Germany, Application no. 3690/10 (2016).
38
Ternovszky v. Hungary, Application no. 67545/09 (2011), Konovalova v. Russia, Application no. 37873/04
(2015), Hanzelkovi v. the Czech Republic, Application no. 43643/10 (2015), Korneykova and Korneykov v.
Ukraine, Application no. 56660/12 (2016), Dubska and Krejzova v. Czech Republic, Applications nos. 28859/11
and 28473/12 (2016).
39
Dickson v. United Kingdom, Application no. 44362/04 (2007), Evans v. United Kingdom, Application no.
6339/05 (2007), S.H. and Others v. Austria, Application no. 57813/00 (2011), Costa and Pavan v. Italy,
Application no. 54270/10 (2013), Mennesson v. France, Application no. 65192/11 (2014), Paradiso and
Campanelli v. Italy, Application no. 25358/12 (2017).
40
K.H. and Others v. Slovakia, Application no. 32881/04) (2009), N.B. v. Slovakia, Application no. 29518/10
(2012), VC v. Slovakia, Application no. 18968/07 (2012), I.G. and Others v. Slovakia, Application no. 15966/04
(2013).
41
Y.F. v. Turkey, Application no. 24209/94 (2003), Juhnke v. Turkey, Application no. 52515/99 (2008),
Salmanoğlu and Polattas v. Turkey, Application no. 15828/03 (2009), Yazgül Yilmaz v. Turkey, Application no.
36369/06 (2011).
42
Carvalho Pinto de Sousa Morais v. Portugal, Application no. 17484/15 (2017).
43
Artavia Murillo et al. (“In vitro fertilization”) v. Costa Rica, Preliminary Objections, Merits, Reparations,
and Costs, Judgment, IACtHR (ser. C) No. 257 (2012).
44
I.V. v. Bolivia, Preliminary Objections, Merits, Reparations, and Costs, Judgment, IACtHR (ser. C) No. 329
(2016).
45
L.C. v. Peru, CEDAW/C/50/D/22/2009 (2011).
46
A.S. v. Hungary, CEDAW/C/36/D/4/2004 (2006).
47
Alyne da Silva Pimentel v. Brazil, CEDAW/C/49/D/17/2008 (2011).
48
K.L. v. Peru, CCPR/C/85/D/1153/2003 (2005), LMR v. Argentina, CCPR/C/101/D/1608/2007 (2011), Mellet
v. Ireland, CCPR/C/116/D/2324/2013 (2016), Whelan v. Ireland, CCPR/C/119/D/2425/2014 (2017).
26
purposes of this thesis, however, I am limiting my analysis to the transnational space.
Irrespective of the actual compliance and execution of these specific cases I argue that
transnational reproduction jurisprudence has a special function beyond the applicant and
respondent state.
Firstly, the nature and function of transnational jurisprudence is different from
domestic case-law as access to transnational courts and committees is restricted, e.g. there is
the requirement of exhaustion of local remedies. Moreover, transnational litigation is more
expensive and time-consuming, thus the cases that do reach the European Court of Human
Rights for example are usually examples of systematic or structural problems with
legislation, policies or practices. Secondly, compared to other human rights cases, there is
only a moderate number of reproductive rights related cases. The low number does not mean
that reproductive rights violations are not common (in fact the exact contrary is true), or that
these cases can be overlooked and disregarded, but quite the opposite – each of these cases
has a huge potential to call out systematic injustices, change socio-legal thinking about
reproduction and women, set new standards. Consequently, this thesis is tracing the
narratives about women flowing from the selected reproduction jurisprudence.
I recognise that my choice of case-law could raise a critical question whether
capturing women’s stories exclusively through reproduction jurisprudence could be described
as essentialising in itself – as if women’s stories could not be told without talking about their
bodies and reproductive systems. My response to this is pragmatic: conversations about
reproduction in the majority of these cases still take place in male-dominated power spaces
(governments, courts, parliaments), and only seem to be conversations about women when
they actually circumvent women as full citizens and rights-holders, and delve into defining
right/wrong, good mothers/bad mothers, motherhood, proper sexual behaviour etc. To
balance that reality, I indeed look at reproduction and women, but under terms I have defined
with the help of centuries-long feminist critique and by borrowing from other social science
disciplines that have more experience with analysing, theorising and contextualising
reproduction.
1.3.2 Human Rights Forums as Storytellers
Many social scientists collect personal stories through interviews and these narratives
feed into their scholarship. My thesis focuses on stories and narratives, but in this work the
storytellers are transnational human rights law forums. In this thesis I understand the stories
27
that emerge, when a human rights law forum (whether a tribunal, court, commission, or a
committee) brings together the human experience (factual circumstances of a case), and the
relevant treaty provision (the legal source) as narratives. I have gathered cases that all focus
on some aspect of reproduction – whether on forced sterilisations, assisted reproductive
technologies, maternal mortality, forced gynaecological examinations, obstetric care,
surrogacy, or access to abortion. Such storytelling by courts or committees through
transnational jurisprudence has a specific character, and is different for example from semi-
structured interviews with litigators, NGO-s or even judges from these forums. In fact, the
storytelling I investigate is so specific that it sparks the question, whether calling these cases
stories is accurate at all.
Namely, framing these cases as stories may seem to disregard that a case reaching a
transitional human rights law forum is more likely than not a result of strategic and well-
crafted litigation as the stories that reach for example the European Court of Human Rights,
or the UN CEDAW Committee are already someone’s summaries of life experiences,
designed and contextualised in a certain way.49 As Katherine M. Franke observes “the
translation of human suffering into vocabulary and a form that is acceptable and appropriate
to a judicial proceeding can be a dehumanizing experience”.50 She argues that the translation
of human suffering into the “language of law and rights” serves the interests of legal
authorities more than those “who are called to narrate their pain”.51 I do not disagree with
Franke’s argument, but the focus of this thesis is specifically the analysis (definitions,
concepts, framings) produced by transnational courts or committees – I am not looking these
cases from the perspective of the applicants, as I am not following up whether for example
they were satisfied with the outcome.
How do I read the chosen cases? The classic methodology for close reading and
analysis of case-law follows usually a two-question-structure used by most judicial bodies
and tribunals. Firstly, which human rights are involved in the case? This means identifying
relevant human rights provisions and specific dimensions, or the “attributes” that they carry.
The second question the courts, committees or tribunals ask is, what is the threshold for the
violation i.e has the limitation (interference) been permissible, or has there been a breach of
the particular human right. For this thesis, however, this two-question-structure is

49
Regarding individual narratives see e.g: D. Tietjens Meyers, Victims' Stories and the Advancement of Human
Rights (2016).
50
K. M. Franke, “Gendered subjects of transitional justice”, Columbia Journal of Gender & Law, Vol. 15, No. 3
(2006), p. 818.
51
K. M. Franke, “Gendered subjects of transitional justice”, Columbia Journal of Gender & Law, Vol. 15, No. 3
(2006), p. 821.
28
insufficient. Firstly, as I explain in more detail later on, reproductive rights do not appear in
the main human rights texts in the same explicit way other human rights do. In other words,
human rights treaty texts are silent on reproductive autonomy, abortion, maternal mortality,
surrogacy, or home birth. However, as I show in Chapter 2 there is a growing international
consensus that reproductive rights should be constructed through already recognised human
rights, and can be read into the existing human rights frameworks. Therefore the so-called
“entry points” of reproductive rights into human rights law vary: whether it is through the
right to health, right to privacy, or through the prohibition of torture/degrading treatment and
non-discrimination. Consequently, this means that human rights law forums have to move
beyond the labels of “abortion”, “surrogacy”, and “forced sterilisation”. This in turn requires
a deep knowledge of all aspects of women’s reproductive lives, and how the latter are
impacted by women’s socioeconomic status and by how much power they have in the
society. Secondly, questions regarding a violation threshold are similarly problematic if not
accompanied by critical questions about the missing gender perspectives in (human rights)
law – i.e if degrading treatment or torture is understood through masculine experiences,
and/or the violation threshold is rooted in (gender) stereotypes.52 I explain how I overcome
these shortcomings by adding different questions to the “classic” two-question-structure in
Chapter 2.
1.3.3 Outline of the thesis: a reproductive rights-based approach and the narratives
After this introductory chapter my thesis proceeds with four core chapters (Chapter 2-
5) and finishes with a concluding chapter (Chapter 6). As I set out above I am interested in
storytelling, voices and silencing and that I am looking at these notions and processes in the
space of transnational jurisprudence by employing feminist approaches, unpacking power
relations, and tracing narratives. Thus, Chapter 2 titled “Constructing the analytical frame –
from “questioning everything” to a reproductive rights-based approach” builds upon the
theoretical frames I have already introduced (feminist approaches to law and human rights

52
My methodology has similarities with different “rewriting projects”. See for example: The Women’s Court of
Canada, Rewriting Equality: http://womenscourt.ca/; H. Douglas, F. Bartlett, T. Luker, R. Hunter (eds.),
Australian Feminist Judgments. Righting and Rewriting Law (2014); J. Balkin (ed.), What Brown v. Board of
Education Should Have Said: The Nation’s Top Legal Experts Rewrite America’s Landmark Civil Rights
Decision (2002); J. Balkin (ed.), What Roe v. Wade Should Have Said: The Nation’s Top Legal Experts Rewrite
America’s Most Controversial Decision (2005); The US Feminist Judgments Project,
http://sites.temple.edu/usfeministjudgments/; R. Hunter, C. McGlynn, E. Rackley (eds.), Feminist Judgments:
From Theory to Practice (2010); Integrated Human Rights in Practice Rewriting Human Rights Decisions, E.
Brems, E. Desmet (eds.) (2017).
29
framework) and sketches additional layers and tools by borrowing elements from feminist
legal theory, human rights-based approaches to health, and the existing reproductive rights
discourse.
Specifically, I firstly explain, how feminist approaches have penetrated international
law/human rights law, and how anti-stereotyping within legal analysis is the available tool for
revealing power dynamics. Secondly, I show through the example of global health rights
discourse, how the power relations-based analysis already exists in law – there is a growing
emphasis on the human rights-based approaches to health that understand health through
social determinants. Thirdly, I explain the development of reproductive rights discourse.
More specifically, I arrive fairly late to the debates and discussions on the efforts of
conceptualising people’s reproduction experiences and reproductive lives through the human
rights discourse – the term “reproductive rights” was coined and substantiated within the
international human rights law already in the 1990s. Therefore it is important to connect my
thesis to that part of scholarship, and build on from what has been achieved and theorised.
I bring all these elements together under an analytical framework that I term as a
reproductive rights-based approach to help me trace, demonstrate and systematise the
emerging narratives about women’s bodies, reproduction and sexuality. The way women are
portrayed in cases concerning reproduction – whether as victims, empowered agents, villains,
or something else – plays an essential role in women’s human rights in general. In other
words, narratives matter: how a human rights court, commission or a committee
conceptualises and understands women’s bodies and gender roles in the reproduction context
lays the foundation for substantive gender equality, and full citizenship of women. This
understanding has also been expressed in 2016 General Comment (GC) on the Right to
Sexual and Reproductive Health issued by the UN Committee on Economic, Social and
Cultural Rights. The General Comment provides: “Due to women’s reproductive capacities,
the realization of women’s right to sexual and reproductive health is essential to the
realization of the full range of their human rights”.53
Furthermore, as noted by Alicia Ely Yamin, judicial and quasi-judicial interventions
can play an important role in the larger accountability circle that aims at “transforming
discriminatory and exclusionary health systems and practices that bear on women’s maternal

53
UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 22 on the Right to
sexual and reproductive health (Article 12). UN Doc. E/C.12/GC/22 (2016).
30
and reproductive health and well-being”.54 In this thesis I too am guided by this belief in the
transformative power of rights-based approaches changing the power relations governing
women’s life experiences in the context of reproduction. Eva Brems argues that the
interpretation of treaty provisions by the monitoring bodies through the individual complaints
mechanism is very important as a model for domestic courts that may wish to apply the
relevant treaty in their own jurisprudence.55 Sally Engle Merry supports my argument when
she writes, how “human rights are difficult for individuals to adopt as a self-definition in the
absence of institutions that take these rights seriously”.56 Accordingly, I underscore that the
human rights law forums must be much more conscious of their crucial role in creating new
transformative narratives that are rooted in women’s lived experiences, and not generalised
assumptions (stereotypes). Further, Andrea Cornwall and Alice Welbourn (like R. Solnit in
the introduction of this thesis) write how real participation is about “having a voice”, and it is
also about “being able to make choices, including whether to participate, and on what
terms”.57 Therefore, Cornwall and Welbourn argue similarly to Engle Merry and Yamin that
changes in gendered power relations and deeply rooted norms-values require more than
“working with those who are deemed most vulnerable”, as “contextual factors such as
poverty and discrimination” need to be tackled, too.58
Accordingly, my focus on power relations is of course not revolutionary (in
scholarship), as evidenced by feminist approaches highlighted above. Maria Sjöholm’s recent
book also looks at transnational case-law (reproduction issues included) through gender-
sensitive norm interpretation. 59 However, she does not focus only on reproduction
jurisprudence, and does not set up to look at narratives and processes of silencing as I do
here.
Chapters 3, 4 and 5 are dedicated to case-law and the emerging narratives. I have
divided the narratives into three themes. In Chapter 3, “Women, birth and pregnancy
narratives”, I show how motherhood, birth and pregnancy are understood and defined by the
human rights law forums in abortion, maternal mortality and birth cases. The narrative that

54
A. E. Yamin, “Towards transformative accountability: applying a rights-based approach to fulfill maternal
health obligations”, SUR, Vol. 7, No. 12 (2010), p. 108.
55
E. Brems, “Developing the full range of state obligations and integrating intersectionality in a case of
involuntary sterilization: CEDAW Committee, 4/2004, AS v Hungary”, in: Integrated Human Rights in
Practice Rewriting Human Rights Decisions, E. Brems, E. Desmet (eds.) (2017), pp. 238-239.
56
S. Engle Merry, Human Rights and Gender Violence (2009), p. 192.
57
A. Cornwall, A. Welbourn (eds.), Realizing Rights: Transforming Approaches to Sexual and Reproductive
Well-being: introduction (2002), p. 7.
58
A. Cornwall, A. Welbourn (eds.), Realizing Rights: Transforming Approaches to Sexual and Reproductive
Well-being: introduction (2002), p. 9.
59
M. Sjöholm, Gender-Sensitive Norm Interpretation by Regional Human Rights Law Systems (2017).
31
emerges from this chapter portrays women as a homogeneous group of people whose identity
is constructed through motherhood, and who have a duty to reproduce under circumstances
determined by the state or other entities. In Chapter 4, “Women and violence narratives”, I
present who the “woman” is in cases concerning forced sterilisations and forced
gynaecological examinations (“virginity testing”). I reveal that the human rights framework
on prohibition of torture and ill-treatment has failed to respond to the unique experiences of
women in the context of reproduction, and that there is a strong narrative telling women that
the violence deriving from over-medicalisation, obstetric mistreatment, forced “virginity
testing” and forced sterilisations is just an unavoidable misfortune that happens to women and
girls. Thus, a reproductive rights-based analysis must call out that these forms of violence
stem “from socially determined roles and expectations” and also that “gender stereotypes are
downplaying the pain and suffering that certain practices inflict”.60 Finally, in Chapter 5,
“Women and (in)fertility narratives”, I put forth the stories that emerge in case-law
concerning surrogacy, in vitro fertilisation and embryo freezing: how women – whether as
surrogates or egg donors, or patients receiving infertility treatment – become almost invisible
and also how assisted reproduction regulations are used to maintain “traditional” ideas about
procreation, families and power distribution.

60
Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment,
(A/HRC/31/57) (5 January 2016).
32
2. CONSTRUCTING THE ANALYTICAL FRAME – FROM “QUESTIONING
EVERYTHING” TO A REPRODUCTIVE RIGHTS-BASED APPROACH

2.1 SETTING THE COURSE: OUTLINE & AIM OF THE CHAPTER
I start unfolding my analysis from the fundamental idea of how, for a life lived with
human dignity, having a voice is pivotal. In simple terms, having a voice in one’s life story
means having power over one’s life course, and vice versa – being silenced leads to a state of
powerlessness. In this thesis I understand voices and silencing in a broad sense, not
restricting it just to a person’s freedom to speak, or to verbal expressions exclusively. Having
a voice means determining one’s life course irrespective of one’s identity and background.
Thus, I see silencing as a societal phenomenon; as a systematic and structural process that
may happen through instances of violence, discrimination, and exclusion.
Specifically I am looking at voice, power and silencing of women in the transnational
reproduction jurisprudence. How are transnational human rights law forums contributing to
these processes of silencing-empowering with their case-law? Which narratives about
women’s bodies and sexuality emerge – are women’s experiences at the heart of the
reproduction jurisprudence I am considering? With this investigation into narratives I am
engaging with two simultaneous tasks. Firstly I answer my research question about the
emerging narratives: who is the “woman” in reproduction jurisprudence. Second, I also
challenge the legal discipline by carving a space in which I consider jurisprudence through
the narrative approach that prioritises unpacking power dynamics over more traditional tools
of analysis.
Chapter 2 explains the essence and origins of what I term as a reproductive rights-
based approach, which I use as a frame in this thesis to make sense of the selected
reproduction jurisprudence; trace and extract the narratives about women, their bodies and
sexuality. As I said above, a reproductive rights-based approach is constructed with mainly
already existing critical approaches, thus it is not revolutionary per se. However, it is a
toolbox that sharpens human rights analysis, and – as the jurisprudence analysed in this thesis
demonstartes – is unfortunately still to date largely missing from the legal analysis apparatus
of the international human rights law forums. A reproductive rights-based approach serves
as a lens through which I discover sometimes explicit, but often hidden broader conversations
about gender, power, and reproduction in different reproduction cases ranging from abortion
33
to surrogacy – thus, throughout this piece I see reproductive rights through power
relationships, not as specific exhaustive lists of services or/and entitlements.61
I have divided Chapter 2 into three sections: firstly, I explain feminist approaches to
human rights law (2.2), the second section is dedicated to health: the definitions and
dimensions of health and reproductive health, the right to health in human rights law, and
most importantly, human rights-based approaches to health (2.3). And lastly, in the third
section I give an overview of the development of the reproductive rights discourse as part of
the international human rights law, and explain how reproductive rights have been defined
(2.4).
2.2 FEMINIST APPROACHES TO HUMAN RIGHTS LAW
As I explained in the introduction throughout this thesis I am employing feminist

approaches. Generally, this means “questioning everything” (including different feminist
viewpoints), and engaging with how power distribution impacts people’s lives. In the
following part (2.2) I explore this idea further and establish, how feminist approaches have
specifically penetrated legal theory, international law and human rights. I end the section by
showing anti-stereotyping as a specific tool that courts or committees could use to analyse,
how harmful stereotypes impact women’s lived experiences, and can act as short-cuts to
human rights breaches. The aim of this part is three-fold: firstly, as promised, I add layers to
the analytical frame of this thesis; secondly I lay the groundwork for the narrative tracing in
the following chapters as I introduce here the language and main arguments of feminist
approaches to human rights; last but definitely not least I am showcasing how much
resistance there has been and continues to be in law against feminist approaches and critical
questions about power distribution. As I demonstrate in Chapters 2, 3 and 4 of this thesis, the
same resistance feeds into, and fuels the resistance of the transnational human rights courts or
committees to call out sexism and harmful stereotypes. Thus, I go back to Griselda Pollock’s
argument underscoring that women have not been omitted “through forgetfulness or mere
prejudice”.62 Instead, it has been a conscious choice, a resistance to accept that law can be a
tool of oppression or stagnation for some groups in the society; that international human

61
I have referred to a reproductive rights-based approach also in my previous work. See: L. Oja, “Why is a
‘Good Abortion Law’ Not Enough? The Case of Estonia, Health and Human Rights Journal , Vol. 19, No. 1
(2017), L. Oja, A. E. Yamin, “‘Woman’ in the European Human Rights System: How is the Reproductive
Citizenship?”, Columbia Journal of Gender and Law , Vol. 32, No. 1 (2016).
62
G. Pollock, Vision and Difference: Feminism, femininity and the histories of art, (2003), p. 1.
34
rights law, like most economic, social, cultural, and legal constructs can also contribute to
silencing, and thus reinforce powerlessness.63
2.2.1 Feminist legal theory
Nicola Lacey gives an excellent overview of the development of feminist legal

theory.64 The aim of describing these different stages here is to highlight how reluctant the
legal discipline has been to the idea of “questioning everything”, and furthermore, to
underscore once again, how there does not exist one single “feminist critique”. The latter is
also evident throughout this thesis as I showcase how in the context of reproductive rights
some feminist authors take completely opposite views of what is for example empowering or
disempowering (for women).
Lacey explains that despite the common perception that legal feminism is the creation
of the late 20th century, the feminist thought about law actually stretches back for many
centuries.65 However, Lacey also notes that it was the second wave women’s movement in
the 1960s and 1970s that gave “a fresh impetus to feminist thought”, and importantly also
stimulated the “gradual entry of feminist ideas” into scholarship and academia – in other
words, feminist movement not only affected societal awareness and culture, but also put on
the intellectual agenda issues that had been ignored – e.g questions about sexual violence,
equal pay, gender discrimination.66
As expected, Lacey notes that these developments were however slow to reach legal
scholarship: the earliest feminist legal scholarship focused on the absence of women from the

63
H. Charlesworth, “What Are ‘Women’s International Human Rights’?” in: Human Rights of Women:
National and International Perspectives, R. J. Cook (ed.) (1994), p. 60.
64
(2004). See also e.g: The Oxford handbook of transnational feminist movements, R. Baksh, W. Harcourt (eds.)
(2015).
65
(2004), p. 13.
66
(2004), p. 14. It is important to acknowledge that just as there is no one single feminism, there also does not
exist one feminist movement. For example, the Eastern and Central European feminist movements were
different from USA, the UK. See further: R. Koobak, R. Marling, “The decolonial challenge: “Framing post-
socialist Central and Eastern Europe within transnational feminist studies”, European Journal of Women's
Studies, Vol. 21, Issue 4 (2014), and e.g, B. Havelková, Gender equality in law: uncovering the legacies of
Czech State socialism, (2017) where Havelková describes feminism in Czech Republic: “What is not seen is the
structural nature of the underlying causes. By contrast, Western feminism has from the 1970s onwards brought
about a paradigmatic shift, largely intellectually internalised, at least by the elites, including large parts of the
legal communities in the West, that inequality is not the problem of women but the problem of patriarchy”.
Furthermore, on Latin America see e.g: Y. Espinosa Miñoso, Aproximaciones críticas a las prácticas teórico-
políticas del feminismo latinoamericano, Volumen 1 (2010).
35
agenda of legal study, and gradually the “woman question” started to make its way into
family law, criminal law and labour law.67 The problem with that approach, however, was
that it did not question patriarchy’s categories, stereotypical assumptions, but simply
suggested that there had been an error: “the failure to include women”.68 The “women and
law” work that was concerned with the “woman-centredness” of feminism (term used by J.
Conaghan) was however criticised for being essentialist and rendering the targets of feminist
critique to something that was exclusively a “woman problem”.69 Thus, there was another
shift to “gender and law”, but also this move did not come about without criticism, either.70
Feminist legal theory has also developed by virtue of other disciplines. Namely, Ruth
Fletcher notes that feminist thought has made law’s location within humanities and social
sciences more explicit, and thus the parameters of legal research have broadened: “Although
the term “socio-legal” is problematically broad. Its use does signify an acknowledgement that
law is a social phenomenon which cannot be understood by attention to internal technical
detail alone”.71
I have already explained through the voices of several feminist scholars, how
although there is a plurality in feminist approaches, the common elements at the heart of
these approaches are “questioning everything” and “permanent partiality”. As Joanne
Conaghan explains:
First, feminist legal scholars seek to highlight and explore the
gendered content of law and to probe characterizations positing themselves as
neutral and, more specifically, ungendered. Secondly, they are part of a cross-
disciplinary feminist effort to challenge traditional understandings of the
social, legal, cultural, and epistemological order by placing women, their
individual and shared experiences, at the centre of their scholarship. Thirdly,
feminist legal scholars seek to track and expose law's implication in women's
disadvantage with a view to bringing about transformative social and political

67
(2004), p. 14.
68
H. R. Wishik, “To Question Everything: The Inquiries of Feminist Jurisprudence”, Berkeley Women’s Law
Journal, Issue 1 (1985), p. 68.
69
J. Conaghan,"Reassessing the Feminist Theoretical Project in Law", Journal of Law and Society, Vol. 27, No.
3 (2000), p. 363, and N. Lacey, “Feminist Legal Theory and the Rights of Women”, in: Gender and Human
Rights, K. Knop (ed.) (2004), p. 15.
70
(2004), p. 15.
71
R. Fletcher, “Feminist Legal Theory”, in: An Introduction to Law and Social Theory, R. Banakar, M. Travers
(eds.) (2002), p. 137.
36
change.72
Nicola Lacey goes into more methodological details about feminist legal theories and
explains that feminist legal theories aspire to produce a critical interpretation of legal
practices. 73 She then spells out main theoretical points of distinction between feminist
theorists. Firstly, there is a differentiation in methodology and style – whether more
rhetorical, polemical, classically academic or metaphorical.74 Lacey underscores that this is,
however, not just a question of personal style of writing, but rather a strategic choice as new
forms of expression can challenge “the way in which particular intellectual disciplines and
discourses have developed makes it impossible to conceptualize certain types of harm or
wrong, or to reveal certain kinds of interest or subject position” - in other words, this means
that different methodologies in style can conceptualise certain things that would otherwise be
left to the margins, or “fall between a number of existing social and legal concepts”.75
The second important differentiation is grounded in the variety of underlying theories
of sexual difference: e.g whether the maintenance of sexual difference lies in “domination
grounded in the abuse of sexual power and the exercise of sexual violence”, or the sexual
difference is rooted in women’s distinctive bodily experiences and relationships that generate
a “particular female culture” (for example some radical or cultural feminists).76
The third axis of differentiation comes from the extent to which different feminist
theories exhibit substantive or methodological continuities with other legal and social
theories: some theorists would insist that feminist theory is autonomous as a method, but
some would argue that feminist legal theory is not an autonomous theoretical or
methodological approach, but rather it is “an interpretive approach which seeks to get beyond
the surface level of legal doctrine and legal discourse, and which sees traditional
jurisprudence as ideological“ - accordingly, there are different political versions of feminist

72
J. Conaghan “Reassessing the Feminist Theoretical Project in Law” , Law and Society, Vol. 27, No. 3 (2000),
p. 359.
73
(2004), p. 17.
74
See Lacey giving examples in: N. Lacey, “Feminist Legal Theory and the Rights of Women”, in: Gender and
Human Rights, K. Knop (ed.) (2004), p. 17
75
(2004), p. 18. See additionally e.g: The Oxford handbook of feminist theory (electronic resource), L. Disch, M.
Hawkesworth (eds.) (2015-2016), The Ashgate research companion to feminist legal theory (electronic
resource), M. Davies, V. E. Munro (eds.) (2013), C. Hughes, Key concepts in feminist theory and research
(2002).
76
(2004), p. 18.
37
theory – liberal feminism, radical feminism, Marxist and Socialist feminism, and difference
feminism.77
In my thesis I borrow freely from all of these differentiations where justified and
necessary. More important than a theoretical label is how a specific element of a critique can
be useful for an analytical exercise in practice. Such “mixed approach” has been endorsed by
Hilary Charlesworth who writes that although there is a tendency within feminist scholarship
to “pigeonhole” theorists into fixed categories as “liberal” or “radical”, a range of feminist
theories are actually needed to “excavate” different issues.78
2.2.2 From feminist legal theory to women’s rights in human rights law
I now move on from the general overview of feminist legal theory to human rights
and feminism more specifically. Feminist legal theory has indeed inspired a vast and a
growing literature about the intersection of gender and international (human rights) law.79
Again, Hilary Charlesworth’s work is essential. Charlesworth asks what “women’s
international human rights” are, why is there a need to emphasise the “women” part, and
consequently, how can women be taken seriously across the entire spectrum of human
rights.80 Charlesworth explains how the very common response to women’s human rights is a
reference to law’s universality and accordingly how human rights are universally applicable,
therefore making the term women’s human rights a “distracting redundancy” – again this
response showcases the reluctance to acknowledge that the development of human rights law
has been partial and androcentric privileging a masculine worldview.81 Anne Hellum and
Henriette Sinding Aasen, too, reflect how for most of human history, men have been assigned
a superior status in law, this started to change only in the 20th century as with the “drafting of
international and regional human rights conventions, and with the emerging women’s

77
(2004), pp. 19-26. See also: H. Charlesworth, C. Chinkin, The boundaries of international law. A feminist
analysis (2000), pp. 23-59.
78
79
For example: H. Charlesworth, C. Chinkin, The boundaries of international law. A Feminist Analysis (2000);
Women’s rights. Human Rights. International Feminist Perspectives. J. Peters, A. Wolper (eds.) (1995); Human
Rights of Women. National and International Perspectives, R. J. Cook (ed.) (1994).
80
H. Charlesworth, “What Are ‘Women’s International Human Rights’?”, in: Human Rights of Women:
81
38
movement the political and legal atmosphere changed and discrimination based on sex an
gender became a human rights concern”.82
Hilary Charlesworth underscores, how the problem is structural powerlessness, and
international human rights law, like most economic, social, cultural, and legal constructs,
reinforces this powerlessness.83 With this, Charlesworth as other feminist scholars contests
the idea of law being something inherently neutral, and also acknowledges that the
powerlessness and marginalisation of women is not accidental or incidental, but actually
institutionalised. Susan Marks also writes that indeed, “flaws have been illuminated at the
level of law, procedure and policy”, but these flaws have been made to seem like “simple
misunderstandings or oversights, deficiencies of leadership or accountability, or quirks of
local history or culture” not “man-made” and consequential to “some wider systemic
context”.84
Karen Engle maps the development of feminist critiques of human rights law, and
identifies three eras: liberal inclusion critique (1985-1990), structural bias critique (1987-
1995) and third world feminist critique (since 1992). 85 According to Engle, the liberal
inclusionists argued that women should and could be included in international human rights
and humanitarian law, which for structural bias critics was a simple “add women and stir”
strategy that did not address how the “structure of international law prevented women’s
assimilation”. 86 And lastly, the “third world feminist critiques” (as Engle terms them)
suggested that the effects of international law on women must be examined in the light of
class, culture and race, and that “Western feminism” has misrepresented women and
disregarded issues that have the greatest importance to women in the third world.87
Indeed, there are many things that have changed and improved, and some of these

82
Women’s human rights. CEDAW in International, Regional and National Law, A. Hellum, H. Sinding Aasen
(eds.) (2013).
83
84
S. Marks, “Human rights and root causes”, Modern Law Review, Vol. 74, Issue 1, (2011), p. 78.
85
K. Engle, “International Human Rights and Feminisms: When Discourses Keep Meeting”, in: International
Law: Modern Feminist Approaches, D. Buss, A. Manji (eds.) (2005). Engle builds on her earlier article: K.
Engle, “International Human Rights and Feminism: When Discourses Meet”, Michigan Journal of International
Law, Vol. 13, Issue 3 (1992).
86
K. Engle, “International Human Rights and Feminisms: When Discourses Keep Meeting”, in: International
Law: Modern Feminist Approaches, D. Buss, A. Manji (eds.) (2005), pp. 51-52.
87
K. Engle, “International Human Rights and Feminisms: When Discourses Keep Meeting”. In: International
Law: Modern Feminist Approaches, D. Buss, A. Manji (eds.) (2005), p. 61. See further on postcolonial
criticisms of feminisms, e.g.: C. Talpade Mohanty, Feminism without borders: decolonizing theory, practicing
solidarity (2003), S. de Jong, Complicit Sisters: Gender and Women's Issues across North-South Divides
(2017) and A. Sisson Runyan, (guest ed.), International Feminist Journal of Politics: “Decolonizing
knowledges in feminist world politics”, Vol. 20, Issue 1 (2018).
.
39
reflect also in the cases introduced in later chapters of this thesis. However, the “feminist
project” has definitely not lost its momentum and relevance. Chinkin, Wright and
Charlesworth were reflecting almost 15 years after their revolutionary article what has
changed in the feminist approaches to international law. They respond to criticism about how
the feminist project of reconceiving international law might contribute to the latter’s
“fragility”: “Our argument is, however, that international law does not provide even a
momentary distance from subjectivity. It is intertwined with a sexed and gendered
subjectivity, and reinforces a system of male power”.88 Chinkin, Wright and Charlesworth
conclude that although conventions, declarations and challenges before international forums
are not enough to protect and enhance the international standing and rights of women, they
are nevertheless important for “both theorising difference and putting that difference into
practice in a way that empowers women, men and children”.89
2.2.3 Toolbox: Tackling stereotypes in (human rights) case-law

The challenges that feminist legal theory and feminist approaches present to law,
human rights, legal thinking and legal education can express and manifest themselves in
many ways. I have chosen in this thesis to look at narratives of power, and ask who the
women in these narratives are. Thus, I have chosen to communicate the emerging narratives
about women in the reproduction jurisprudence through stereotypes. The United Nations
CEDAW, the Inter-American Convention on the Prevention, Punishment and Eradication of
Violence Against Women (the Convention Of Belem Do Para), and the Council of Europe
Convention on preventing and combating violence against women and domestic violence (the
Istanbul Convention) are transnational human rights treaties that explicitly legally bind
countries to take measures against harmful stereotyping.90

88
C. Chinkin, S. Wright, H. Charlesworth, “Feminist Approaches to International Law Reflections from
Another Century”, in: International Law: Modern Feminist Approaches, D. Buss, A. Manji (eds.) (2005), p. 44.
See also: Feminist perspectives on contemporary international law: between resistance and compliance? S.
Kouvo, Z. Pearson (eds.) (2011).
89
C. Chinkin, S. Wright, H. Charlesworth, “Feminist Approaches to International Law Reflections from
Another Century”, in: International Law: Modern Feminist Approaches, D. Buss, A. Manji (eds.) (2005), p. 44.
90
CEDAW: Article 2 States Parties condemn discrimination against women in all its forms, agree to pursue by
all appropriate means and without delay a policy of eliminating discrimination against women and, to this end,
undertake:
(...) (f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations,
customs and practices which constitute discrimination against women;Article 5 States Parties shall take all
appropriate measures:(a) To modify the social and cultural patterns of conduct of men and women, with a view
to achieving the elimination of prejudices and customary and all other practices which are based on the idea of
the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women; Article 10
States Parties shall take all appropriate measures to eliminate discrimination against women in order to ensure
40
Rebecca J. Cook and Simone Cusack explain that stereotype is a “generalised view or
preconception of attributes or characteristics possessed by, or the roles that are or should be
performed by, members of a particular group”.91 Cook and Cusack emphasise that in reality it
does not even matter whether all members of that group actually correspond to these
stereotypes (for example, if they possess certain characteristics), but the “key consideration is
that, because a particular group is presumed to possess those attributes or characteristics or
perform those roles, an individual, simply by virtue of membership in that group, is believed
to conform to the generalised view or preconception”.92 Lourdes Peroni and Alexandra
Timmer add a “typology of stereotypes”, which explains different forms of stereotypes – e.g.
descriptive, prescriptive, role-typing, negative, positive stereotypes.93
Stereotyping helps people make sense of the world – they act as shortcuts, and not all
stereotypes have harmful effects, or lead to human rights breaches.94 However, if stereotypes
define what roles people can (are allowed to) take in their life projects, and lead to silencing
and penalties when people reject these stereotypical roles , then stereotypes have become
harmful. Harmful stereotypes can in turn set people up for human rights violations. Thus, this
is the problem and danger of “a single story” as explained above by Sandra G. Harding and
Chimamanda Ngozi Adichie. Here intersectionality is also important, as Raphaële Xenidis
explains: "Every individual is in fact embedded into a complex network of social
memberships and identity groups, potentially cumulating disadvantage".95 Xenidis refers to

to them equal rights with men in the field of education and in particular to ensure, on a basis of equality of men
and women: (...)
(c) The elimination of any stereotyped concept of the roles of men and women at all levels and in all forms of
education by encouraging coeducation and other types of education which will help to achieve this aim and, in
particular, by the revision of textbooks and school programmes and the adaptation of teaching methods;
Istanbul convention
Article 12 – General obligations
1 Parties shall take the necessary measures to promote changes in the social and cultural patterns of behaviour
of women and men with a view to eradicating prejudices, customs, traditions and all other practices which are
based on the idea of the inferiority of women or on stereotyped roles for women and men.
Convention of Belem do Para
Article 8 – b, Article 6 – b.
91
R. J. Cook and S. Cusack, Gender Stereotyping: Transnational Legal Perspectives, (2010), p. 9. See also
insights into whether anti-stereotyping has been taken on by transnational human rights law forums in:
Stereotypes and human rights law, E. Brems, A. Timmer (eds.) (2016).
92
R. J. Cook and S. Cusack, Gender Stereotyping: Transnational Legal Perspectives, (2010) p. 9.
93
L. Peroni, A. Timmer, “Gender Stereotyping In Domestic Violence Cases An Analysis Of The European
Court Of Human Rights' Jurisprudence”, in: Stereotypes and human rights law, E. Brems, A. Timmer (eds.)
(2016), pp. 40-41.
94
See: E. Brems, A. Timmer, “Introduction”, in: Stereotypes and human rights law, E. Brems, A. Timmer (eds.)
(2016), pp. 2-3.
95
R. Xenidis, “Multiple Discrimination in EU Equality Law”, in: U. Belavusau, K. Henrard (eds.), EU Anti-
Discrimination Law Beyond Gender: Achievements, Flaws, and Prospects (Hart Publishing, forthcoming).
41
situations where for example a woman is disadvantaged due to her gender and race, or
gender, religion and sexual orientation, or gender, refugee status and disability etc.
Nevertheless, Cook and Cusack note how, regrettably, despite the progress made in
finding that the application of gender stereotypes violates women’s and men’s rights, “courts
and human rights treaty bodies are still generally reluctant to find that resort to gender
stereotypes constitutes discrimination or violates other human rights”.96 Thus, as a cure they
propose a step-by-step methodology to address gender stereotyping within legal
interpretation work. The first step is naming (gender) stereotypes: identifying their forms and
describing how they harm women. They explain that “naming is an important tool for
revealing otherwise hidden harm, explaining its implications, and labelling it as a human
rights concern, grievance, or possible human rights violation”, and underscore how law is an
effective and powerful tool for the “naming” process precisely because it can “publicly and
authoritatively proclaim and transform an unacknowledged harmful experience into an
experience, or wrong, that is recognized at law as one that is harmful and that requires legal
redress”.97 How does one recognise a stereotype, i.e know that a stereotype is, indeed, a
stereotype? Cook and Cusack explain how there is no “single correct way” to determine
whether a law, policy, or practice applies, enforces, or perpetuates a gender stereotype and
thus a variety of approaches might be employed.98 They continue to list different “symptoms
or indicators of stereotyping” and also suggest that some feminists have relied on asking the
“woman question” which aims to expose the gendered nature of a law/practice by directing
attention to what a law, policy, or practice implies about women.99
I echo Cook and Cusack’s view that there is no one single recipe because
identification of stereotypes requires many things such as understanding different sociolegal
and historic contexts, how power dynamics impact people’s lived experiences, the structural
nature of human rights violations etc. Therefore asking the “woman question” has many
necessary layers to it that go beyond gender. In any case, the key point of departure is that
women’s experiences are taken seriously and what they say about their lived experiences is
sought after and regarded as evidence by courts or committees.

96
R. J. Cook and S. Cusack, Gender Stereotyping: Transnational Legal Perspectives (2010).
97
R. J. Cook and S. Cusack, Gender Stereotyping: Transnational Legal Perspectives (2010), p. 39.
98
99
42
The second step requires “articulating normative obligation to eliminate the
stereotypes”, and the third step devises appropriate remedies.100 In this thesis I focus on the
first and second step: through the jurisprudence analysis I demonstrate stereotypes regarding
women’s reproductive roles, bodies and their sexuality that led to human rights breaches and
when left unchallenged are influencing the analysis of the human rights law forums.101 I show
how stereotypes are feeding into harmful narratives about women.102 Lourdes Peroni and
Alexandra Timmer note that their argument for anti-stereotyping does not mean that they
think the European Court of Human Rights can eliminate gender stereotypes, however, they
do see the Strasbourg Court as “one actor in a larger effort”.103
Barbara Havelková also investigates, how courts – specifically the European Court of
Human Rights – consider stereotypes. Havelková notes how “several European judges in
recent years have made a number of statements in discrimination cases that are striking in
their forthright and blatant hostility towards anti-discrimination and equality law”. 104
Similarly to feminist approaches to law discussed above Havelková too underscores how
anti-discrimination law, and indirect discrimination especially depend on “several
acknowledgements about social reality” – one of them being the awareness that
discrimination is a consequence of socio-economic and socio-cultural structures that
disadvantage certain groups, and accordingly it is vital to recognise how seemingly “neutral”

100
101
Other scholars have argued for anti-stereotyping as a tool/method for courts. See e.g: A. Timmer, “Toward
an Anti-Stereotyping Approach for the European Court of Human Rights” Human Rights Law Review, Vol. 11,
Issue 4 (2011), L. Peroni, “Deconstructing ‘Legal’ Religion in Strasbourg”, Oxford Journal of Law and
Religion, Vol. 3, Issue 2 (2014) and “Religion and Culture in the Discourse of the European Court of Human
Rights: The Risks of Stereotyping and Naturalizing”, International Journal of Law in Context, Vol. 10, Issue 2
(2014); S. Fredman, “Emerging from the Shadows: Substantive Equality and Article 14 of the European
Convention on Human Rights”, Human Rights Law Review, Vol. 16, Issue 2 (2016); L. Clerico, C. Novelli,
“The Inclusion of the Social Question within the Gender Perspective: Notes to Rewrite Cotton Fields”, Inter-
American and European Human Rights Journal, Vol. 9, Issue 2 (2016).
102
I used similar approach with Alicia Ely Yamin in our co-authored article: L. Oja, A. E. 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 , Vol.
32, No. 1 (2016). L. Peroni and A. Timmer use a similar method of spelling out stereotypes in their chapter
“Gender Stereotyping In Domestic Violence Cases An Analysis Of The European Court Of Human Rights'
Jurisprudence”, in: Stereotypes and human rights law, E. Brems, A. Timmer (eds.) (2016).
103
L. Peroni and A. Timmer, “Gender Stereotyping In Domestic Violence Cases An Analysis Of The European
Court Of Human Rights' Jurisprudence”, in: Stereotypes and human rights law, E. Brems, A. Timmer (eds.)
(2016), p. 40.
104
B. Havelková, “Judicial Scepticism of Discrimination at the ECtHR”, in: H. Collins, T. Khaitan (eds.)
Foundations of Indirect Discrimination Law (2018), p. 83. Havelková refers to the European Court of Human
Rights’ Ladele case (2013). Ms Ladele was a registrar who refused to officiate civil partnerships on the grounds
of her religion and conscience, which led to disciplinary proceedings against her and loss of job. The European
Court of Human Rights ruled that the UK had not exceeded margin of appreciation. However, two dissenting
judges noted how “gay rights” had been “clearly favoured over fundamental human rights”. Havelková writes
how the judges’ “contrast of anti-discrimination rights with fundamental rights, along with their use of inverted
commas, betrays an unusually conspicuous hostility towards gay rights”.
43
rules will impact the advantaged and disadvantaged groups differently.105 She offers a useful
analytical frame when she writes that the judges’ or governments’ objections to effects-based
and substantive doctrine of indirect discrimination can be categorised into three: first the
“belief in the existence of a fair world based on a confidence that existing institutional set-ups
are fair and neutral”, second, how anti-discrimination law should target only “hostile
animus”, and therefore not implicit bias – which leads to the third: the burden of overcoming
the disadvantage is put on the person who is discriminated.106 These positions, however,
“seriously impede the formation and the application of an effects-based and substantive
doctrine of indirect discrimination”.107
There are many incredibly strong and persistent stereotypes about women, their roles
in the society and all aspects about their life projects and experiences with reproduction, e.g.
“all women desire to become mothers”, “women seeking abortions are careless”, “women
desiring to give birth at home are dangerous”, “women’s sexuality is a question of her dignity
and honour”. Putting stereotypes at the heart of my analysis allows me to trace narratives
about women and their bodies, draw conclusions about the processes of silencing, and
consequently answer the research question: Who is the “Woman” in human rights law?
2.3 HEALTH AND HUMAN RIGHTS: FROM SOCIAL DETERMINANTS TO

HUMAN RIGHTS-BASED APPROACHES

Feminist legal theory is challenging the idea that law is a neutral and objective space,
free of power dynamics otherwise present in the society. In my thesis the spirit of this
challenge translates more specifically into critical approaches to the definitions courts, or
committees adopt for science, medicine, violence, access, autonomy, harm. In the fields of
global health, and health & human rights scholars and activists are facing similar challenges.
Namely, although the acknowledgment of social dimensions of health is penetrating
international (but also consequently domestic) laws regarding health, and general thinking
about health rights this has not happened without resistance. Reproductive health is included
into these developments and discussions as I show below. Thus, in the following sections I

105
Foundations of Indirect Discrimination Law (2018), pp. 85-86, and the further references therein to the works of
S. Fredman and T. Khaitan.
106
Foundations of Indirect Discrimination Law (2018), p. 88.
107
44
demonstrate, how in the context of global health critical analysis of power and rights has
developed and been termed as human rights-based approaches to health. These processes
have not been easy successes, facing no resistance. Therefore, there are obvious similarities
between what human rights based approaches to health and feminist approaches are both
trying to achieve. However, it nevertheless emerges that when the obvious gender component
of reproduction (reproductive health) is added into the discussion on health, rights and power,
the resistance increases and strengthens. Consequently, arguing for a reproductive rights-
based approach carries a double challenge.
2.3.1 Understanding health within societal power systems
Iris Borowy explains in her work two different approaches to health. First, a
biomedical view that defines health primarily as a function of disease – thus, according to
this view, improving health requires fighting diseases by improving medical therapy, which
essentially means more and better doctors and medicine, biomedical prevention, therefore
this approach is “marked by its seemingly apolitical character, devoid of moral
connotations”.108 Borowy adds, how the biomedical view perceives diseases as “regrettable
but natural” events for which nobody bears responsibility, and which call for “technical
fixes”, rather than social or political change; its main strategies are thus “vertical” policies
“designed to fight a specific disease until its incidence declines substantially or, ideally, it
disappears”.109 It is impossible to miss the similarities between this understanding of health,
and the idea that human rights violations can be cured with approaches that do not address
the connection of power distribution and the rights breaches. In simple terms, as long as the
law applies to everyone the same way, and is blind of a person’s identity, inequalities should
not occur.
The second approach to health as Borowy describes has a social dimension that
perceives health not as a medical, but a social phenomenon – therefore, requiring policies that
redistribute power, resources and opportunities in contrast to mere extensions of modern
medical technology.110 As Ritu Sadana writes, the underlying causes are complex – often
reflecting systematic social, political, historical, economic, and environmental factors that

108
I. Borowy, “Shifting Between Biomedical and Social Medicine: International Health Organizations in the
20th Century”, History Compass, Vol. 12, Issue 6 (2014), pp. 517-518.
109
20th Century”, History Compass, Vol. 12, Issue 6 (2014), p. 518.
110
20th Century”, Vol. 12, Issue 6 (2014), p. 526.
45
indeed interface with biological factors, are often accumulated during a lifetime, and could be
trans-generational.111 Many if not most scholars who build their work on this understanding
use Amartya Sen’s scholarship.112 Accordingly, Tim Evans describes the social dimension as
the “social patterning of health”.113 Ritu Sadana writes that the term often used as shorthand
for all different factors is “social determinants”. 114 Michael Marmot explains how
acknowledging the impact of the social gradient “changes the discussion fundamentally” as it
implies that the central issue is inequality, not simply poverty 115 Therefore, he argues that
“tackling disempowerment” is crucial for improving health.116 Norman Daniels agrees when
he argues, how “social justice in general is good for population health and its fair
distribution”.117
Furthermore, scholars have applied this thinking to global development context:
Ashley M. Fox and Benjamin M. Meier argue for a collective human right to development
that could reconceptualise public health systems as “core social institutions that define the
very experience of poverty and development, scaling up the provision of underlying
determinants of health to realize the highest attainable standard of health”.118 Thus, again we
witness that the challenge to biomedical view of health is in sync with the challenge to
neutrality and objectivity of law. Another important take-away that sets the context for the
following part is the idea that although a social dimension of health (i.e seeing health through
power relations) is not an abstract concept, but an evidence-based understanding, it is still not
given, but something scholars, advocates, policy-makers need to push for.
2.3.2 Health as a human rights issue
Just like feminist approaches to law the story of connecting human rights and health is
also complicated and uneven, – full of successes and failures. I explained above the different

111
R. Sadana, “Reflections on Global Monitoring of Social Determinants of Health and Health Equity”, in: N.
Eyal et al (eds.), Inequalities in Health: Concepts, Measures, Ethics (2013), p. 4.
112
See e.g.: A. Sen, Development as freedom (2000), The Idea of Justice (2009).
113
T. Evans, “Global Health”, in: International Development: Ideas, Experience, and Prospects, B. Currie-
Alder et al (eds.) (2014), p. 4.
114
R. Sadana, “Reflections on Global Monitoring of Social Determinants of Health and Health Equity”, in:
Inequalities in Health: Concepts, Measures, Ethics, N. Eyal et al (eds.) (2013), p. 4.
115
M. Marmot, The Health Gap: The Challenge of an Unequal World (2015), p. 28.
116
M. Marmot, The Health Gap: The Challenge of an Unequal World (2015), p. 46.
117
N. Daniels, Just Health: Meeting Health Needs Fairly (2008), p. 82.
118
A. M. Fox, B. M. Meier, “Health as freedom: addressing social determinants of global health inequities
through the human right to development”, Bioethics, Vol. 23, Issue 2 (2009), p. 122.
46
concepts of health and I continue now by looking at the difficult process of confirming the
links between social dimension of health and human rights.119
Benjamin Mason Meier writes, how human rights are heralded as a modern guide for
public health, but “it was not always so”. 120 After the United Nations Charter (the first
international legal document that recognised the concept of human rights) came into force in
1945, the participating countries also signed the World Health Organisation’s Constitution in
1946. John Tobin comments that the World Health Organisation’s Constitution was the first
document in international law where the idea of the right to the highest attainable standard of
health was expressed: “The enjoyment of the highest attainable standard of health is one of
the fundamental rights of every human being without distinction of race, religion, political
belief, economic or social condition”. 121 The World Health Organisation was officially
founded in spring 1948, which made it the United Nations first specialised agency.122
The issue of health also found its way to the first document of the International Bill of
Human Rights – the Universal Declaration of Human Rights (UDHR) was proclaimed in
1948, and the declaration made an explicit reference to health in its Article 25.123 Indeed,
although the right to health was not included as a specific right, it was also not abandoned – it
was bundled together with a series of economic and social rights in Article 25 (1).124 It is
important to note how this first framing of the right to health already took into account the
underlying social determinants of health.125 Meier and William Onzivu comment, how with
the Universal Declaration of Human Rights and World Health Organisation coming into
existence, there was a great promise that these two institutions would complement each other,
and the World Health Organisation would also support the great human rights project with its
own programmes and policies.126

119
See also: Health and human rights in a changing world, M. Grodin et al. (eds.) (2013).
120
B. M. Meier, “The World Health Organization, the evolution of human rights, and the failure to achieve
Health for All”, in: Global Health and Human Rights. Legal and philosophical perspectives, J. Harrington, M.
Stuttaford (eds.) (2010), p. 163.
121
Constitution of the World Health Organisation (New York, 22 July 1946, entered into force 7 April 1948, 14
UNTS 185).
122
B. M. Meier, W. Onzivu, “The evolution of human rights in World Health Organization policy and the future
of human rights through global health governance”, Public Health, Vol. 128, Issue 2 (2013), p. 2.
123
Everyone has the right to a standard of living adequate for the health and well-being of himself and of his
family, including food, clothing, housing and medical care and necessary social services, and the right to
security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in
circumstances beyond his control.
124
J. Tobin, The Right to Health in International Law (2012), p. 17.
125
Health for All”, in: Global Health and Human Rights. Legal and philosophical perspectives. J. Harrington, M.
Stuttaford (eds.) (2010).
126
B. M. Meier, W. Onzivu, “The evolution of human rights in World Health Organization policy and the future
47
Unfortunately the reality was different: the first phase full of great promise of
upholding human rights was followed by a period where the World Health Organisation
intentionally neglected the right to health, and projected itself as “a technical organisation
above legal rights”.127 During the neglect-period the World Health Organisation adopted a
medicalised view of health, shifted from its previous emphasis on global health priorities for
the disadvantaged groups in the society, and took no specific actions to explain broadly
defined human rights for health promotion: e.g it did not respond to requests for comments
on the final drafts of the International Covenant on Economic, Social and Cultural Rights
(ICESCR) adopted in 1966, and consequently did not object when the definition of health and
references to social well-being were deleted.128
The World Health Organisation tried to change the course in the early 1970s – “after
twenty years shunning human rights law”, and sought to re-engage with human rights.129 Iris
Borowy explains that the social approaches to health made a really strong comeback in the
early 21st century. 130 For example, in 2005 the World Health Organisation set up the
Commission on Social Determinants of Health to investigate inequities in health. The
Commission published its final report in 2008. 131 It took a holistic view of social
determinants of health and noted, how an unequal distribution of health-damaging
experiences is not a ‘natural’ phenomenon but the result of “a toxic combination of poor
social policies and programmes, unfair economic arrangements, and bad politics”.132
Although Audrey R. Chapman calls the 2008 report “unequivocal in its condemnation
of the disparities in life opportunities and health status between rich and poor countries and
between the rich and poor within the country”, she criticises it for its lack of a human rights
dimension. 133 Paul Hunt also argues that the report’s rights-based analysis remained
unfortunately weak: ”Despite the multiple, dense connections between social determinants

127
128
129
B.M. Meier, W. Onzivu, “The evolution of human rights in World Health Organization policy and the future
130
20th Century”, History Compass, Vol. 12, Issue 6 (2014), p. 525.
131
“Closing the gap in a generation: Health equity through action on the social determinants of health”, Final
Report of the WHO Commission on Social Determinants of Health (2008), available at:
http://www.who.int/social_determinants/thecommission/finalreport/en/ (accessed 8 February 2018).
132
The Final Report, p. 1.
133
A. R. Chapman, “Missed Opportunities: The Human Rights Gap in the Report of the Commission on Social
Determinants of Health”, Journal of Human Rights, Vol. 10, Issue 2 (2011), p. 133.
48
and human rights, the report’s human rights content is disappointingly muted. The human
rights analysis is not absent, but underdeveloped and understated”.134 Chapman’s criticism is
more particular, and she explains how the “justice claims” in the report rely principally on the
“persuasiveness of its ethical reasoning”, and not on internationally recognised human rights
principles and norms, which made the report weaker, and additionally, it did not link the
findings of the report to existing the international, regional, and national human rights
institutions that monitor and evaluate the implementation of human rights.135
Chapman argues that although the report does borrow principles of empowerment and
participation from human rights, it does not incorporate the conceptual foundation of the
human rights-based approach, thus resulting in an outcome that is “an uncomfortable hybrid
in which advocacy of community empowerment is grafted onto a report that focuses
primarily on top-down initiatives through changes in government policy” – which is for
Chapman “a weak conception of empowerment”. 136 Meier wrote in 2012, how, “given
WHO’s inconstant commitment to human rights, it remains to be seen whether WHO will
adhere to this evolving rights-based imperative or revert to its previous institutional neglect
of human rights for the public’s health”.137 Paul Hunt has commented in 2016 that in the
development of the international right to health there is “a drive towards its ‘real-life’
implementation for the benefit of individuals, communities, and populations, and a
movement from short, general, abstract, legal treaty provisions towards specific, practical
human rights guidance”.138 It is fair to say that the WHO is part of that movement, and has
fortunately not reverted again to a complete “neglect of human rights”, but rather makes
continuous efforts to translate health concerns into the language of human rights.139

134
P. Hunt, “Missed opportunities: Human Rights and the Commission on Social Determinants of Health”,
Global Health Promotion, Vol. 16, Issue 1 (2009) p. 36.
135
Determinants of Health”, Journal of Human Rights, Vol. 10, Issue 2 (2011), p. 135. For example, Chapman
describes how although the report calls the governments, international organisations and the civil society to
increase and strengthen political commitment and also add resources to sexual and reproductive health services,
it makes no mention of the CEDAW, and the work and case-law of the CEDAW Committee (p. 136).
136
Determinants of Health”, Journal of Human Rights Vol. 10, Issue 2 (2011), p. 142.
137
Health for All”, in: Global Health and Human Rights. Legal and philosophical perspectives. J. Harrington, M.
138
P. Hunt, “Interpreting the International Right to Health in a Human Rights-Based Approach to Health”,
Health and Human Rights Journal Vol. 18, No. 2 (2016).
139
For example, the WHO has published several guidelines regarding reproductive health that give
recommendations for good practices, and entail explicit references to relevant human rights: the “WHO
recommendations on antenatal care for a positive pregnancy experience” (2016), “WHO guidelines on the
management of health complications from female genital mutilation” (2016), and “Technical Guidance on the
49
Nevertheless, the United Nations Sustainable Development Goals 2030 have for
example again been criticised for a lack of human rights language. Namely, Audrey R.
Chapman writes that although the declaration part of the Sustainable Development Goals
references to human rights, the goals do not adopt a human rights approach: “None of the
SDGs are framed as a human rights entitlement guaranteeing that all people having a right to
the services and benefits with governments accountable for its availability and for equal
access”. 140
2.3.3 Human rights-based approaches to health
The last part of this section explains human rights-based approaches to health, which
serves as an inspiration for what I term as a reproductive rights-based approach.
What human rights-based approaches to health mean is best articulated in Alicia Ely
Yamin’s work: she argues, how “we understand the reason for people’s suffering is crucial to
enabling us to apply transformative human rights frameworks to health”.141 Yamin gives an
example of morphine being a cheap and effective pain medicine, thus the question is not
whether there are resources and means to relieve the pain, but whether the relief is distributed
to everyone because they have a right to it – in other words, we do not accept suffering as
natural and inevitable.142 Sara Bennett et al also point out that across the world 100 million
people are pushed into poverty each year because of health care expenditures, but “this is an
avoidable tragedy”.143 Human rights advocates have expressed their concern for treating
health as a commodity subject to a person’s ability to pay for it as “when access to health

Application of a Human Rights Based Approach to the Implementation of Policies and Programmes for
Reduction of Preventable Maternal Mortality and Morbidity” (2014).
140
A. R. Chapman, “Evaluating the health-related targets in the Sustainable Development Goals from a human
rights perspective”, International Journal of Human Rights, Vol. 21, Issue 8 (2017), p. 1099. Chapman
acknowledges that there is indeed one exception – target 5.6 to ensure universal access to sexual and
reproductive health and reproductive rights does use the rights language. Chapman notes two things however –
first, the reproductive health targets in the Sustainable Development Goals “refrain from taking a rights-based
approach”, and focus on a technical approach instead. Second, the Sustainable Development Goal 5 to achieve
gender equality and empower all women and girls could potentially fill the gap and as Chapman writes: “If even
some of these objectives are met, it would strenghten women’s status in society and their likelihood of
achieving control of their sexual and reproductive health” (p. 1104).
141
A. E. Yamin, Power, Suffering, and the Struggle for Dignity Human Rights Frameworks for Health and Why
They Matter (2016), p. 41.
142
A. E.Yamin, Power, Suffering, and the Struggle for Dignity Human Rights Frameworks for Health and Why
143
S. Bennett et al, “Which Path to Universal Health Coverage? Perspectives on the World Health Report
2010” PLoS Med, Vol. 7, Issue 11 (2010).
50
care is dependent on income, it explicitly legitimates inequalities and the exclusion of the
poor.144
In the context of human rights-based approaches to health Yamin sews together three
elements: the strength of human rights, the social dimension of health, and the need to take
into account how power is divided in a society. The rights-based framework will shape the
way we see suffering and shift the blame from “destiny, natural causes, and individual
behaviour and blame” to state accountability: “Taking seriously the suffering of women,
children, sexual minorities, and others requires a shift in the conception of rights and ensuing
state obligations from the way in which they were set out in theories of the traditional liberal
state.” 145 More specifically, as Yamin argues, human rights-based approaches can be
deployed to open medical and other institutions that are cloaked in “technical authority” to
scrutiny their reasoning, and thereby challenge hierarchies of knowledge and power that have
historically been used against women.146 Further, Yamin together with Leslie London both
emphasise the role of agency and participation in rights-based approaches. 147 Yamin
explains: “A fundamental distinction of a human rights approach to development and policy-
making that affects health is that it aims to enable those who are most impacted by poverty,
patriarchy, and disease to be active participants in constructing the solutions to their
problems”.148 Thus, human rights-based approaches that tackle powerlessness are in sync
with my understanding of how having a voice and being able to use one’s own lived
experience as evidence are antidotes against silencing.
Audrey R. Chapman echoes Yamin’s arguments and adds that unfortunately many
countries see the requirements in the human rights treaties they have ratified in the sphere of
economic, social and cultural rights to be more in the nature of “aspirational goals or perhaps
‘even optional’”, whereas human rights actually differ from other types of ethical claims by
conferring specific claims or entitlements on right holders and assuring a standard of

144
A. R. Chapman, Global Health, Human Rights and the Challenge of Neoliberal Policies (2016), p. 75.
145
146
A. E. Yamin, “Will we take suffering seriously? Reflections on what applying a human rights framework to
health means and why we should care”, Health and Human Rights, Vol. 10, No. 1 (2008). See further: A. E.
Yamin, Power, Suffering, and the Struggle for Dignity Human Rights Frameworks for Health and Why They
Matter (2016).
147
See: L. London, “Issues of equity are also issues of rights: Lessons from experiences in Southern Africa”,
BMC Public Health, Vol. 7 (2007); A. E. Yamin, “Suffering and powerlessness: The significance of promoting
participation in rights-based approaches to health”, Health and Human Rights Journal,Vol. 11, No. 1 (2009).
148
A. E. Yamin, “Suffering and powerlessness: The significance of promoting participation in rights-based
approaches to health”, Health and Human Rights Journal, Vol. 11, No. 1 (2009), p. 6.
51
accountability”.149 Chapman expands this point by arguing, that the political, social and
economic environment in which rights are to be implemented sets extra challenges (i.e
resistance): “the increasing hegemony of market-based approaches” that is inspired by
neoliberalism makes rights-based approaches far more difficult to implement.150 That is
because for a human rights-based approach to health a high state interference is necessary,
whereas in the market-based approach promoted by neoliberalism the role of the state is
minimal:
A human rights approach rests on a conception of health and health care
as social or public goods of special moral importance that are designed to
benefit whole populations. In contrast, neoliberalism tends to promote a
view of health care as a commodity whose cost, price, availability, and
distribution, like other consumer goods, should be left to the
marketplace.151
Audrey Chapman is not the only scholar who has been critical of the compatibility of
neoliberalism and human rights. Paul O’Connell also argues that there is an “irreducible
tension” between neo-liberal globalisation and protection of human rights in their ideological
premises, in the different roles the two assign to the state, and in practice.152 O’Connell
similarly to Chapman agrees that neoliberalism does embrace certain framings of rights, but
“with respect to subsistence rights, such as housing, health-care, etc., the neo-liberal outlook
simply cannot countenance such matters as being human rights or general entitlements”, and
instead of seeing structural denial of human rights, neo-liberals see “failures by individual
consumers to make adequate provision for their own health-care needs”.153
Although as Chapman notes, all human rights confront challenges and resistance, she
agrees with Yamin who describes health as perhaps the most radical of subjects – in part
because a rights-based approach to health challenges our assumptions about justice, society,
and humanness itself.154 As I already noted above, reproductive rights and reproductive

149
150
151
152
P. O’Connell, “On Reconciling Irreconcilables: Neo-liberal Globalisation and Human Rights”, Human
Rights Law Review, Vol. 7, Issue 3 (2007). A discussion fuelled by this article between O’Connell and R. E.
Howard-Hassmann can be found in: R. E. Howard-Hassmann, “Reply to Paul O’Connell’s Article on Neo-
liberal Globalisation and Human Rights”, Human Rights Law Review, Vol. 9, Issue 1 (2009), and in P.
O’Connell, “Not Seeing the Forest for the Trees: A Reply to Rhoda Howard-Hassmann”, Human Rights Law
Review, Vol. 9, Issue 1 (2009).
153
P. O’Connell, “On Reconciling Irreconcilables: Neo-liberal Globalisation and Human Rights”, Human
Rights Law Review, Vol. 7, Issue 3 (2007), p. 497, and D. Harvey, Neoliberalism: A Brief History (2005).
154
A. R. Chapman, Global Health, Human Rights and the Challenge of Neoliberal Policies (2016), pp. 17-18.
52
health are even more challenging as reproduction itself is a highly loaded issue for states, and
reproductive rights are strongly impacted by gender biases and harmful stereotyping. Yamin
also recognises this resistance and argues: “No area more dramatically illustrates the
importance of human rights frameworks in expanding understandings of health as well as
how contested challenging of the power relations that determine health can be than sexual
and reproductive health”.155
Maya Unnithan underlines that a human rights focus puts the spotlight not only on
“who is disadvantaged and who is not”, but draws the attention “toward process
(mechanisms) as much as outcome, and to the workings of power”. 156 Consequently,
Unnithan highlights another essential dimension of human rights-based approaches – they
require additional ways of thinking what constitutes as evidence since quantitative forms of
evidence and random controlled trials are unable to capture the lived experience of a person
in a evolutionary, historical, environmental, social and cultural context.157
In summary a human rights-based approach transforms not only the way we
understand health, but how we approach and understand human rights institutions as it draws
attention to power relations that are formed, reinforced or institutionalised by these human
rights systems. Consequently, new challenges emerge within the ways we understand and
define science, medical space, violence and harm. In other words, thinking along the frame of
challenge/resistance, a rights-based approach to health penetrates many of the existing power
dynamics and the idea of law being objective and neutral within it – just as feminist
approaches.
2.4 THE REPRODUCTIVE RIGHTS DISCOURSE
In the last part of Chapter 2 I add the final layer to my analytical frame. So far I have
engaged with broader ideas about feminist challenges to power, the social dimension of
health and human rights-based approaches to health that spill over to and set up this section.
The aim now in the following paragraphs is to look at reproduction and rights more

155
156
M. Unnithan, “What Constitutes Evidence in Human Rights-Based Approaches to Health? Learning from
Lived Experiences of Maternal and Sexual Reproductive Health”, Health and Human Rights, Vol. 17, No. 2
(2015), p. 46.
157
M. Unnithan, “What Constitutes Evidence in Human Rights-Based Approaches to Health? Learning from
Lived Experiences of Maternal and Sexual Reproductive Health”, Health and Human Rights, Vol. 17, No. 2
(2015), pp. 46-47.
53
specifically. However, instead of viewing reproduction and reproductive rights as narrow
questions, I emphasise again that when unpacked layer-by-layer reproduction issues offer a
fundamental snapshot of how law approaches violence, autonomy, kinship, gender and
citizenship broadly. I come to the scholarship on reproductive rights matters at the moment
when a lot has already been argued, (re-)considered, and achieved. Therefore, in order to
conceptualise what I term as a reproductive rights-based approach, I first give an overview
of the relevant discourse specific developments.
2.4.1 From feminist movements to the global United Nations recognition
The concept of reproductive rights has gained some, (admittedly somewhat limited
and contested) global acceptance.158 Freedoms and rights regarding women’s reproductive
lives have been – and most crucially continue to be – important struggles for feminist
movements in all parts of the world – however exasperated women themselves and scholars-
advocates might be.159 The high rates of maternal mortality, limited or completely restricted
access to safe and legal abortion, denial of sex education, obstetric violence, and evidence of
forced sterilisations have not caused among important stakeholders – governments,
communities, law-makers, doctors, courts, policy-makers – an outrage significant enough to
motivate them to take women’s experiences seriously. As also I show in this thesis through
case-law analysis the human rights analysis of reproduction matters is not completely absent,
but using Paul Hunt’s words, it is underdeveloped and understated to say the least. As
Adrienne Germain comments, women’s reproductive rights issues are “still on the side burner
because of the imbalance of power between men and women”, and although “women have
mobilised in virtually every country, we are still very often marginalised when it comes to

158
A. M. Miller, “Sexual but not Reproductive: Exploring the Junction and Disjunction of Sexual and
Reproductive Rights” Health and Human Rights, Vol. 4, No. 2, Reproductive and Sexual Rights (2000). On the
differentiation between reproductive and sexual rights see also: A. M. Miller, M. J. Roseman. “Sexual and
reproductive rights at the United Nations: frustration or fulfilment?”, Reproductive Health Matters, Vol. 19,
Issue 38 (2011). Miller and Roseman explain on p. 104: “While both sexual and reproductive rights claims have
a common grounding in these other rights [privacy rights, economic rights etc.], they have been theorised
differently: reproduction (and heterosexuality) in the last two decades have been more “naturalised” and less
theorised today as a question of social production. Sexuality, on the other hand, being more recent in its
appearance, has been explicitly addressed in the last decade as being socially produced – with advocates joining
the scholars to argue about “naturalness” and social construction”.
159
See e.g: J. Orr, Abortion wars: the fight for reproductive rights (2017), S. Combellick-Bidney, Reproductive
rights as human rights: stories from advocates in Brazil, India and South Africa (2017), A. Frank, A. Betül
Çelik, “Beyond Islamic versus Secular Framing A Critical Analysis of Reproductive Rights Debates in Turkey”,
Journal of Middle East Women’s Studies, Vol. 13, No. 2 (2017), J. Mishtal, The politics of morality: the church,
the state, and reproductive rights in postsocialist Poland (2015).
54
budgets, laws and policy-making”.160
Historically, the language of reproductive health, gender and sexuality used to almost
exclusively belong in the academic milieu and social movements before it underwent a
process of legitimisation in the 1990-s.161 The etymology of the term “reproductive rights” is
mostly to be found among women’s groups and in non-institutional framework: its
conceptualisation was directly linked to the struggle for the right to safe, legal abortion and
contraception in industrialised countries in the 1970-1980-s.162 Thus, it can be stated that the
reproductive rights concept began to emerge from the very practical concerns around
women’s reproductive health.
Veronique Mottier emphasises three features of reproduction that explain its
importance to feminist theory and praxis: firstly, reproduction is traditionally considered as
something that belongs to the “woman’s domain”, secondly, normative femininity is defined
in relation to reproduction and motherhood, and thirdly, the fact that reproduction involves
the engendering of future generations turns it into an object of collective interest and anxiety
– it was in the context of such struggles a new vocabulary of reproductive rights,
reproductive health and reproductive justice emerged.163
As explained above, feminist movements are not identical, and thus women’s
struggles are also different – for example, framing the notion of “reproductive freedom”
primarily through Western feminists’ calls for access to abortion has been criticised for being
“a luxury concern of privileged women” by advocates from developing countries where
women are subjected to forced abortions or coerced sterilisations, and similarly also the
questions around genital mutilation can be seen as an expression of Western
ethnocentrism.164 Essentially these challenges were targeting not “reproductive freedom” per
se, but existing global and local power divisions and biases against “the other”.165 Such

160
S. Corrêa, A. Germain, R. P. Petchesky, “Roundtable: Thinking Beyond ICPD+10: Where Should Our
Movement Be Going?”,Reproductive Health Matters, Vol. 13, Issue 25 (2005), p. 113.
161
S. Corrêa, “From Reproductive Health to Sexual Rights: Achievements and Future Challenges”,
Reproductive Health Matters, Vol. 5, No. 10, The International Women’s Health Movement (1997), p. 107.
162
163
V. Mottier. “Reproductive rights”, in: The Oxford Handbook of Gender and Politics, G. Waylen, K. Celis, J.
Kantola, S. Laurel Weldon (eds.) (2013), p. 215.
164
Kantola, S. Laurel Weldon (eds.) (2013), p. 215. I come back to this theme in this thesis in chapter on “Women
and violence narratives” where I discuss “virginity testing”.
165
See further: J. Silliman, M. Gerber Fried, L. Ross, E. Gutiérrez, Undivided Rights: Women of Color
Organizing for Reproductive Justice, 2nd edition (2016), J. Nelson, Women Of Color And The Reproductive
Rights Movement (2003), S. Combellick-Bidney, A. Genis, “Only Through the Body: Reproductive Justice and
the Practice of Embodied Theory”, Women’s studies, Vol. 47, No. 1 (2018), L. J. Ross, “Reproductive Justice as
55
critique led to the emergence of reproductive justice, which was claimed to be different from
reproductive rights as it “aims to shed light to the gap between legal rights, and the actual
usage of such rights”, thus making a connection between reproductive rights and social
justice”.166 Other authors also emphasise the need for a more comprehensive understanding
of how to theorise structural injustices that are present in the sexual and reproductive lives of
women and men, and how a rights-based approach could be substituted with alternative
approaches: Maya Unnithan and Stacy Leigh Pigg explain how “rights are salient in a legal
domain, justice engages with morality in a broader sense and challenges power inequalities,
which makes reproductive justice distinct from rights in its function as a moral indicator”.167
They give an overview of some of the scholarly work criticising the limitations of rights and
argue, how applying rights analysis on the “messiness of everyday life” requires a closer (re)-
examination of how rights are framed, not just operationalised.168
Rosalind Pollack Petchesky similarly emphasises how “as part of collective feminist
efforts to reclaim a property in our bodies” there is a need to redefine all essential health care
and services as common property to which all people are entitled access. 169 Petchesky writes
how the language of reproductive freedom is “burdened with 300 years of the dominant
Euro-American model of dichotomization between the self and community, body and
society”, and hopes that the idea of women owning their bodies could be seen as not “an
individualistic, exclusionary interest”, but rather a fundamental condition for women’s
development and strength as a social group and thus for their full participation as citizens.170
In addition to a call for re-consideration and more nuance there is also a stronger criticism
that suggests that the rights approach is simplistic and excludes and marginalises certain
people and agendas, and thus enabling new forms of inequalities to arise.171
The first stage of international legitimisation happened at a relatively marginalised
feminist gathering – the 4th International Women and Health Meeting in Amsterdam in 1984

Intersectional Feminist Activism”, Souls: A Critical Journal of Black Politics, Culture, and Society, Vol. 19,
Issue 3 (2017).
166
Kantola, S. Laurel Weldon (eds.) (2013), p. 216.
167
M. Unnithan, S. Leigh Pigg, “Sexual and reproductive health rights and justice – tracking the relationship”
Culture, Health & Sexuality, Vol. 16, Issue 10 (2014), p. 1181.
168
169
R. Pollack Petchesky, “The Body as Property: A Feminist Re-vision” in: Conceiving the New World Order:
The Global Politics of Reproduction, F.D. Ginsburg, R. Rapp (eds.) (1995), pp. 403-404.
170
R. Pollack Petchesky, “The Body as Property: A Feminist Re-vision” in: Conceiving the New World Order:
The Global Politics of Reproduction, F.D. Ginsburg, R. Rapp (eds.) (1995) p. 403
171
56
where the participating women reached an agreement that this terminology was adequate to
the political goals of the feminist movement – the advancement of women’s reproductive
lives across the world.172 The second and more important stage came in the 1990-s when the
language of reproductive rights in the context of human rights protection was adopted on the
United Nations level. Reproductive rights had first been recognised as a subset of basic
human rights in the non-binding Proclamation of Tehran of the UN International Conference
on Human Rights in 1968 where it was stated in paragraph 16 that parents should have the
right to determine freely and responsibly the number and spacing of their children. This
statement was reinforced with the non-binding Cairo Programme of Action adopted at the
UN International Conference on Population and Development in 1994 – also called the
international conceptual anchor of reproductive rights”. 173
The latter contained the first UN definition of reproductive health, including
individuals’ right to have a satisfying and safe sex life and the capability to reproduce and the
freedom to decide if, when and how often to do so.174 This was further expanded at the UN
4th World Conference on Women in Beijing in 1995.175
2.4.2 The ICPD and the Programme of Action

The abovementioned Report of the UN 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

172
173
Programme of Action of the International Conference on Population and development. Report of the
International Conference on Population and Development, Cairo, 5-13 September 1994,
1995, A/CONF.171/13/Rev.1. A. M. Miller, M. J. Roseman. “Sexual and reproductive rights at the United
Nations: frustration or fulfilment?”, Reproductive Health Matters, Vol. 19, Issue 38 (2011), p. 104.
174
“Reproductive health is a state of complete physical, mental and social well-being, and not merely the
absence of disease or infirmity – in all matters relating to the reproductive system and to its functions and
processes. Consequently, reproductive health implies that people are able to have a satisfying and safe sex life,
that they are able to reproduce and that they have the freedom to decide if, when and how often to do so.
Implicit in this is right of men and women to be informed and to have access to safe, effective, affordable and
acceptable methods of family planning of their choice, as well as other methods of their choice for regulation of
fertility, which are not against the law, and the right of access to health-care services that will enable women to
go safely through pregnancy and childbirth.” UN Population Fund (UNFPA), Report of the International
Conference on Population and Development, Cairo, 5-13 September 1994, 1995, A/CONF.171/13/Rev.1.
175
UN Doc. A/CONF. 177/20 (1995) and A/CONF. 177/20/Add. 1 (1995)
http://www.un.org/womenwatch/daw/beijing/beijingdeclaration.html.
57
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 of all to make
decisions concerning reproduction free of discrimination, coercion and
violence as expressed in human rights documents.176
Commenting on this development, Alicia Ely Yamin explains how prior to the ICPD,
elements of reproductive health (including family planning, maternal health, and sexually
transmitted diseases) were treated as fragmented aspects of women’s health, whereas
population policy revolved largely around utilitarian goals based on demographic imperatives
and control of women’s fertility leaving women and their needs and rights invisible, but the
ICPD declaration united these disparate aspects under a comprehensive definition.177 Mindy
Jane Roseman and Laura Reichenbach similarly praise the ICPD Programme of Action for
taking “a radically different approach to the population ‘problem’”, and showing that
population concerns could not be separated from economic and social development agendas –
especially the need for women’s empowerment.178 Thus, the ICPD “transformed population
and development into reproductive health” by defining it as:
Reproductive health is a state of complete physical, mental and social

well-being, and not merely the absence of disease or infirmity – in all matters
relating to the reproductive system and to its functions and processes.
Consequently, reproductive health implies that people are able to have a
satisfying and safe sex life, that they are able to reproduce and that they have
the freedom to decide if, when and how often to do so.179
However, Roseman and Reichenbach add that the concept of “reproductive health”
was not newly minted at ICPD, as the term had first been introduced by Dr. Mahmoud

176
United Nations Population Division, Report of the International Conference on Population and Development,
UN Doc A/CONF. 171/13, 18 October 1994, Programme of Action of the International Conference on
Population and Development, para. 7.3.
177
178
M. J. Roseman, L. Reichenbach, “Global Reproductive Health and Rights: Reflecting on ICPD”, in:
Reproductive Health and Human Rights. The Way Forward, M. J. Roseman (ed.) (2009), p. 4.
179
United Nations Population Division, Report of the International Conference on Population and Development,
UN Doc A/CONF. 171/13, 18 October 1994, Programme of Action of the International Conference on
Population and Development.
58
Fathalla from the World Health Organisation and was based on the WHO’s definition for
“health”: Fathalla’s view was that the reproductive health definition should definitely entail
the following core elements: people’s ability to have children and control their fertility,
guarantee of safe pregnancy and childbirth and people’s ability to enjoy and have safe sex.180
Roseman and Reichenbach explain that the ICPD contained what has been called the “Cairo
Paradigm” which shifted population policy away from fertility regulation and toward the
notion of reproductive health, predicated on the exercise of reproductive rights and women’s
empowerment, and underscore that the ICPD was “an innovative model for understanding the
connections between health, human rights, population, and development”, but also a product
of a compromise among different groups – feminists, public health professionals,
development economists, demographers, environmentalists, faith communities, donors and
governments.181
Roseman and Reichenbach note how this innovation of linking health outcomes to
rights promotion and protection was twofold: first, human rights meant concrete legal
obligations for governments and second, the rights-language enable addressing power
imbalances hidden behind reproduction issues – it built on the idea of applying human rights
to women’s experiences related to reproduction:
Human rights, therefore, provided a tangible, legitimate methodology
as well as an agenda for social transformation, through which international
and national health policies and programs could be revised in ways that
would improve health and its underlying social determinants.182
Lance Gable praises the ICPD for having been “a clear articulation of reproductive
health as a human right and remains the most compelling international statement of a rights-
based conception of reproductive health”, and notes that the legacy of ICPD “goes beyond its
explicit recognition of the link between reproductive health and human rights” as the rights-
based approach - despite persistent shortcomings – has “revolutionized global health practice
and inspired the application of rights-based strategies in subsequent international policy

180
181
Reproductive Health and Human Rights. The Way Forward, M. J. Roseman (ed.) (2009), pp. 4-5.
182
59
agreements and initiatives”.183 Marge Berer has also described the Programme of Action of
the ICPD as an extraordinary document, but in opposition to other scholars points out that
there was an “exception to its brilliance”, a let-down: the way it addressed induced abortion.
Namely, paragraph 8.25 of the Programme stated: “in circumstances where abortion is not
against the law, such abortion should be safe”.184 Berer explains that such moral judgment on
abortion constantly trumped the public health imperative to save women’s health/lives, and
allowed safe abortion be seen as an issue (obligation) for the governments only insofar as
“Governments should take appropriate steps to help women avoid abortion”, but did not
address what the state’s duty is when a woman has indeed an unwanted pregnancy, and seeks
an abortion.185
Thus, Berer has written that the Programme of Action took an ambiguous (she called
it “a masterpiece of equivocation”) tone to abortion: not treating it as a means of fertility
regulation or as a legitimate reproductive health service, but rather as something that should
just be prevented.186 However, Berer noted the long-term outcome despite its ambiguity: the
ICPD put the problem of unsafe abortion on the global agenda in a way it had never been
done before: “As powerful as the alliance against abortion was in 1994, the momentum
generated by ICPD and the overwhelming acceptance at country level of the need to protect
and promote sexual and reproductive health rights has been far stronger” - Berer asks
whether women would have been worse off in terms of access to abortion if the Cairo
compromise had not taken place, and answers herself that yes, women would have been

183
L. Gable, “Reproductive Health as a Human Right”, Case Western Reserve Law Review, Vol. 10, Issue 4
(2009-2010), pp. 988-989. Gable also notes that ICPD acted as a predecessor, and influential model for the
above-mentioned General Comment 14 to the ICESCR
184
M. Berer, “The Cairo ‘Compromises’ on Abortion and Its Consequences for Making Abortion Safe and
Legal”, in: Reproductive Health and Human Rights. The Way Forward, M. J. Roseman (ed.) (2009), p. 152.
185
Legal”, in: Reproductive Health and Human Rights. The Way Forward, M. J. Roseman (ed.) (2009), pp. 153-
154.
186
Legal”, in: Reproductive Health and Human Rights. The Way Forward, M. J. Roseman (ed.) (2009), pp. 153-
155. For example, Programme of Action, paragraph nr 7.24 stipulated that; “Governments should take
appropriate steps to help women avoid abortion, which in no case should be promoted as a method of family
planning, and in all cases provide for the humane treatment and counselling of women who have had recourse
to abortion”. Berer comments, how such framing meant that women seeking abortions in countries where it is
legally restricted and/or not provided safely were left with the “option” of having an unsafe abortion - in other
words, the Programme of Action also did not recognise that requiring women to travel to other jurisdictions for
a safe abortion affected women living in poverty and young women most severely and that abortion may be
necessary as a consequence of sexual coercion (pp. 154-155).
60
worse off.187 Sonia Corrêa also comments at ICPD+10 roundtable that the Programme of
Action reflects “what the political conditions allowed us to achieve at that point”.188
And just like Berer, Roseman and Reichenbach also conclude by stating that there is
little doubt that ICPD has been “a major, if not proximate, factor in promoting the use of law,
policy, and international human rights mechanisms in the service of reproductive health”.189
In other words, ICPD has been the framework that “joined together underlying social
determinants, health systems, policies, laws, and human rights related to reproductive
health”, and as Roseman and Reichenbach write: “whether reproductive health today
resembles the way ICPD articulated it may be less important than ensuring that the
connections between gender, rights, health, and development are maintained and
strengthened”.190
2.4.3 Defining reproductive rights

I introduced in the previous section the ICPD’s definitions for reproductive rights and
reproductive health. Shortly put, reproductive health is a state of complete physical, mental
and social well-being, and not merely the absence of disease or infirmity – in all matters
relating to the reproductive system and to its functions and processes, and the protection of
reproductive health happens through reproductive rights which embrace “already recognised
human rights”. Many scholars working in the field of reproduction and human rights have
built their own framings of these definitions and emphasised different aspects.
For example, Lynn P. Freedman defined reproductive and sexual rights in 1995 as
“constellations of legal and ethical principles that relate to an individual woman’s ability to
control what happens to her body and her person by protecting and respecting her ability to
make and implement decisions about her reproduction and sexuality”.191 Freedman explains
that this definition purposely opts not to focus on the exact content of women’s choices, but
instead concentrates on her ability to maintain full control of her body, and such control over

187
Legal”, in: Reproductive Health and Human Rights. The Way Forward , M. J. Roseman (ed.) (2009), pp. 156,
159, 162.
188
S. Corrêa, A. Germain, R. P. Petchesky, “Roundtable: Thinking Beyond ICPD+10: Where Should Our
Movement Be Going?”,Reproductive Health Matters, Vol. 13, Issue 25 (2005),, p. 110.
189
Reproductive Health and Human Rights. The Way Forward , M. J. Roseman (ed.) (2009), p. 9.
190
191
L. P. Freedman, “Censorship and manipulation of reproductive health information. An issue of human rights
and women’s health”, in: The Right to Know. Human rights and access to reproductive health information, S.
Coliver (ed.) (1995), p. 5.
61
one’s reproduction and sexuality is an essential element of human dignity and protecting and
respecting this full bodily autonomy guarantees that women are subjects, and never objects –
or instruments of reproductive politics.192
Furthermore, Sara E. Davies sees that specific thresholds and indicators should be
adopted in addition to declarations about reproductive rights – Davies argues for a
“measurable change in reproductive health care” as despite the appalling number of women
dying from lack of reproductive health care and seeming global commitment to improve
women’s health, the “persistent inequalities remain” due to a lack of political will at the
domestic and international level, and thus the key solution would be to “enumerate the
precise rights essential for advancing women’s reproductive health through developing a
framework of indicators and then link this framework to an incentive structure that
encourages political will to change this situation”.193
She postulates that although the ICESCR and the General Comment 14 from 2000
have been “essential for identifying the responsibility of the state with respect to human
rights, moving from commitment to action remains the key obstacle to achieving health as a
human right”, and reproductive health is especially difficult since “it is often the states that
are responsible for violating women’s rights in general”.194 I think that Davies is definitely
after something with this approach– she makes links between women’s reproductive health
and the general state of women’s human rights. My argument supports that since I propose
that the way women’s reproduction and sexuality is constructed – whether the narratives are
harmful or not – without a doubt influences women as human rights holders in general.
However, when Davies seems to argue for specific indicators since responsibilities of the
state need to be more defined, I see a need for a change in narratives. Naturally, what Davies
is proposing (indicators) is not mutually exclusive with my focus (narratives).
Davies argues that there is also a debate within the reproductive health movement as
it does not always agree on how the “provision versus access tension” in human rights can
best deliver the advances that women need in order to control and improve their reproductive
health: the right to reproductive self-determination advocates generally argue that women do
not need just family planning services, they also need the autonomy to decide when they

192
Coliver (ed.) (1995), p. 5.
193
S. E. Davies, “Reproductive Health as a Human Right: A Matter of Access or Provision?”, Journal of Human
Rights, Vol. 9, Issue 4 (2010), p. 388.
194
S. E. Davies, “Reproductive Health as a Human Right: A Matter of Access or Provision?”, Journal of Human
Rights, Vol. 9, Issue 4 (2010),, pp. 392-393. Davies refers to UNGA 2008.
62
should have sex and with whom, and a choice of reproductive health care options, and the
right to reproductive health care advocates generally argue that women need to enjoy access
to safe, high-quality reproductive and sexual health care, and the reproductive self-
determination is an end product, a result of the fulfilment of essential health care rights.195
Lance Gable notes how the recognition of reproductive health as a human right under
international human rights law has been “sporadic, piecemeal, and indirect”, and the
recognition of reproductive health as a human right remains “in flux, its development
unfinished, its contours uncertain, and its widespread international acceptance
196
tenuous”. Gable argues for a combination of a “reproductive health model”, and a
“reproductive rights model”: as according to him reproductive health rights sit at the
“junction of these two evolving models”, and thus a combined model for reproductive health
rights should “swing toward supporting the foundational aspects of reproductive health
rights, while maintaining strong support for the decisional aspects of reproductive health
rights”.197
Lastly, Rebecca J. Cook has listed reproductive interests: reproductive security and
sexuality, reproductive health, reproductive equality, reproductive decision-making.198 As
emphasised previously, such lists are not wrong or useless, but the “normative expression”199
in the form of spelled out services and freedoms are in truth only one important part of the
story – what is more important, is the change in the general lens.
The ICPD definition of reproductive rights went beyond a simple desire to list these
“certain human rights”, or to fix in black letter all “reproductive rights”. Instead, a new of a
way of thinking, a (transformative) way of seeing and legally understanding human
reproduction and women’s experiences with reproduction – this is far more important than
listing and labelling rights. Namely, the ICPD does neither offer a list of the “certain human
rights” nor a list of “reproductive rights”. The ICPD Programme of Action does however
explicitly recognises the ways in which culture and law are shaped by patriarchal
assumptions about women and their capacity for roles other than motherhood, and calls for
these underlying assumptions to be subverted in order to realise reproductive rights for

195
S. E. Davies, “Reproductive Health as a Human Right: A Matter of Access or Provision?”,Journal of Human
Rights, Vol. 9, Issue 4 (2010), p. 393.
196
(2009-2010), p. 959.
197
(2009-2010), p. 985.
198
R. J. Cook, “Human Rights and Reproductive Self-Determination”, American University Law Review, Vol.
44, No. 4 (1994-1995), p. 979.
199
This term is borrowed from J. Tobin.
63
women. 200 In short, reproductive rights are constructed by making visible the gender
dimensions of human rights.201 It is through this kind of conscious naming that women’s
reproductive interests can be advanced through human rights that are already enshrined in
international law, which range from affirmative entitlements to services and care to freedoms
from coercion. 202 Therefore I understand reproductive rights as human rights that are
constructed through a gender-conscious reading of already recognised human rights – as I
have previously defined together with Alicia Ely Yamin.203
2.5 CONCLUSION: “UNSCHOLARLY, DISRUPTIVE, OR MAD”

REPRODUCTIVE RIGHTS-BASED APPROACH

In the next chapters of this thesis I introduce 35 cases from four different human
rights law forums. These cases involve many aspects of reproduction – from abortion and
surrogacy to maternal mortality and home birth restrictions. I show how, despite some
commendable examples that could be labelled as “landmark cases”, as a whole this part of
transnational jurisprudence still sees women’s lives through not their own lived experiences
and life plans, but through harmful stereotypes (going beyond gender stereotypes) that act as
short-cuts to systematic human rights breaches.
In order to see these shortcomings, however, one needs to ask more questions than
what the body of transnational courts/committees is asking, stop believing the beautiful, but
harmful myth of a world that is fair place where structural injustices disappear if law is
objective and neutral. Thus, I constructed a reproductive rights-based approach, which is
rooted in feminist approaches to human rights, in human rights-based approaches to health,
and in the global reproductive rights discourse. I paid special attention to anti-stereotyping,
and how human rights law (scholarship) engages with stereotypes. Mapping these discussions
demonstrated clearly that there is a lot of resistance against these ideas – historically
speaking, but also in 2018, and both in theory (academia & scholarship), and praxis.
Therefore, a reproductive rights-based approach is an analytical framework that “questions

200
E. Nelson, Law, Policy and Reproductive Autonomy (2013) p. 65.
201
This approach has been supported by the majority of human rights law scholars. See e.g R. J. Cook, “Human
Rights and Reproductive Self-Determination”, American University Law Review, Vol. 44, No. 4 (1994-1995),
M. Scheinin, “Sexual Rights as Human Rights – Protected under Existing Human Rights Treaties?”, Nordic
Journal of International Law, Vol. 67, Issue 1 (1998), E. Kismödi et al., “Advancing sexual health through
human rights: The role of the law”, Global Public Health, Vol. 10, Issue 2 (2015).
202
44, No. 4 (1994-1995).
203
L. Oja, A. E. 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 , Vol. 32, No. 1 (2016).
64
everything”, considers power relations from all different angles – also within feminist
thinking itself, and is as “unscholarly, disruptive, or mad” as possible and necessary.
65
all the women.
in me.
are tired.
(Nayyirah Waheed)
3. WOMEN, BIRTH AND PREGNANCY NARRATIVES
3.1 “DANGEROUS MOTHERS-TO-BE OR SUFFERING VICTIMS INCAPABLE
OF AUTONOMOUS CHOICES”
As introduced above, I capture the answer to my question “Who is the ‘woman’ in
human rights law?” by investigating harmful stereotypes that are cutting off women’s voices,
and disregarding their lived experiences in reproduction jurisprudence. I separate the results
into three: pregnancy and birth narratives (Chapter 3), violence narratives (Chapter 4), and
(in)fertility narratives (Chapter 5). These divisions here are rudimentary as in reality every
category spills over its boundaries, and could be merged with another – e.g all of the included
reproduction cases could be also discussed through violence narratives only. This
interconnectedness is, however, not a flaw, but speaks instead to the purpose of this thesis;
how I have set the thesis up to go beyond single issues to demonstrate links between different
questions regarding women’s reproductive lives, and how irrespective of the specific matter
in each piece of jurisprudence (whether abortion or surrogacy) such cases are foremost and
fundamentally about power that women have/do not have in a society. Thus, the three-part-
structure serves the purpose of organising clearly how both – process of silencing, and
recognition of women’s voices – appear in my chosen transnational reproduction
jurisprudence.
I begin by tracing pregnancy and birth narratives in jurisprudence concerning
abortion, birth and maternal mortality: ten abortion stories from the period of 2005-2017: five
66
decisions from the European Court of Human Rights, four cases from the UN Human Rights
Committee, and lastly one from the UN CEDAW Committee, and six stories about women
and birth –five from the European Court of Human Rights (2011-2016), and one on maternal
mortality from the UN CEDAW Committee (2011) (see the illustration below).
Looking at cases concerning access to abortion, birth regulations-practices, and
maternal mortality together holds a strategic purpose. For one it allows me to underscore the
World Health Organisation’s statistics that connects these issues through empirical data, but
which seems to be overlooked or ignored in legal analysis of abortion and birth: namely, the
three biggest causes of maternal mortality are unsafe abortion, sepsis and haemorrhage at
childbirth, which can all be avoided through proper (i.e. available and accessible)
reproductive health care services (access to safe abortion and obstetric care included).
67
Second, moving further beyond the data, bringing these cases onto one spectrum and placing
them next to each other helps to (re)conceptualise issues regarding abortion and childbirth.
Drawing links between abortion, obstetric care, and maternal mortality reveals that similar
patterns of harmful (gender) stereotyping are present in all three.
Judge Ganna Yudkivska of the European Court of Human Rights notes in her separate
concurring opinion to the de Sousa Morais case, that although “there is a great temptation to
believe that all of these millennia-old social stereotypes, persistent ideas and practices are
nowadays just ‘water under the bridge’ at least in Europe” the unfortunate reality is that they
are not. 204 Yudkivska’s pessimism is unfortunately supported by my thesis, too, as the
analysis below shows how narratives that would explicitly put women’s lived experiences in
the centre of human rights analysis are still absent or need to be “assumed and hoped for”.
Namely, in the case of the European Court of Human Rights, the court has so far never
conceptualised abortion as a human right of all women irrespective of their reasons for
termination of pregnancy or really considered the consequences of unsafe abortions, grasped
the reproductive rights dimensions of childbirth adequately, or more generally speaking -
understood fully how power dynamics, and stereotypes impact these matters. Although the
CEDAW Committee and the UN Human Rights Committee show more commendable
reproductive rights protection – especially in recent abortion cases regarding Ireland – the
spill-over effect to the Strasbourg’s Court’s analysis has not taken place.
A reproductive rights-based approach allows me to tie narratives about birth to
maternal mortality and abortion narratives to ask what happens to a woman’s human rights
and autonomy when she is in labour, and why are those women who do indeed have safe and
legal access to facility-based birth nevertheless seeking alternatives such as home birth
assisted by a midwife. Are the women who are challenging complete home birth bans

204
Carvalho Pinto de Sousa Morais v. Portugal, Application no. 17484/15 (2017), Concurring Opinion of Judge
Yudkisvka.
68
“irresponsible”, and do not the newborn’s best interests in mind, or are they reacting to
human rights violations that take place in medical facilities, the hospitals and clinics that for
most people seem unequivocally neutral, objective and safe.
Accordingly, in the context of this thesis that focuses on case-law it means that the
human rights law forums must not just be very mindful about how they frame abortion,
pregnancy and birth, but also understand the transformative potential their conceptualisations
and interpretations could have. Namely, I argue that taking a reproductive rights-based
approach challenges harmful and essentialising stereotypes that may act as shortcuts to
human rights breaches. This rights-based approach that is concerned with how power is
distributed also changes the dominant thinking about reproductive (health) services (“human
rights of everyone”, “privileges of a few” or “favours of the compassionate state”).
Moreover, a reproductive rights-based approach challenges the standards for providing
reproductive health services in countries that do not stand out with a high death toll, but
should nonetheless not escape scrutiny: just providing these services is not enough – human
rights must go far beyond avoiding maternal mortality and guaranteeing “survival”. The idea
of “receiving some services is better than no services” should under no circumstances be the
guiding principle for human rights protection.205
3.2 ABORTION: ARE WE STILL PROTESTING THIS?206
Nayyirah Waheed’s poem cited at the beginning is relevant for all parts of this thesis
since as I have demonstrated, for decades and decades women (whether through scholarship
or national/transnational advocacy for example) have been trying to convince societies and
power structures that women are human beings, and women’s rights are human rights.

205
I have borrowed this thought from A. Solnes Miltenburg et al, “Maternity care and Human Rights: what do
women think?”, BMC International Health and Human Rights, Vol. 16, Article 17 (2016), p. 7.
206
Different versions of this question have been appearing on posters at many recent women’s rights marches to
underscore that similar or almost identical struggles for women’s rights are happening also after decades of
human rights and feminist movements.
69
Nevertheless, her three short lines resonate especially well with the global fight for access to
safe and legal abortion – it is exasperating that one of the fundamental elements of women’s
reproductive self-determination – access abortion in a safe and timely manner without any
obstacles if they choose to terminate a pregnancy – continues to be a daily fight that costs
millions of lives every year.207 Namely, according to the World Health Organisation (WHO)
the number of induced abortions decreased globally to 43.8 million in 2008 from 45.6 million
in 1995.208 However, the proportion of unsafe abortion to the total worldwide induced
abortions has unfortunately increased from 44% in 1995 to 49% in 2008.209 The WHO notes
that induced abortion exists in absolutely every region of the world, but the “configuration of
safe and unsafe abortions differs distinctively”. 210 One of the 17 UN Sustainable
Development Goals sets out two relevant targets both by year 2030: first, reducing the global
maternal mortality ratio to less than 70 per 100,000 live births, and second, that countries
ensure universal access to sexual and reproductive health-care services, including for family
planning, information and education, and integrate reproductive health into national strategies
and programmes”.211
Access to contraception would help women worldwide avoid unwanted pregnancies, and
also the need for abortion. However, as Gilda Sedgh et al explain: “even if all couples who
wished to avoid pregnancy used contraception, unintended pregnancies and abortions would
occur because no method is perfect and methods are sometimes used imperfectly”, or “some
women who want to have a child face circumstances that lead them to seek an abortion after

207
Jurisprudence of the European Court of Human Rights Constructing Narratives of Women’s Citizenship?”
Columbia Journal of Gender and Law, Vol. 32, No. 1 (2016).
208
“WHO Information Sheet – Safe and unsafe induced abortion” (2012), available at:
http://apps.who.int/iris/bitstream/10665/75174/1/WHO_RHR_12.02_eng.pdf (accessed 8 February 2018), p. 3.
209
210
211
United Nations Sustainable Development Goals, available at:
http://www.un.org/sustainabledevelopment/sustainable-development-goals/ (accessed 8 February 2018).
70
they become pregnant”.212 Additionally, there are some women who for different reasons
cannot or do not wish to use any of the contraception methods available. Thus, women’s
access to safe, legal and timely abortion must be guaranteed as otherwise women are forced
to seek recourse to unsafe procedures.
Induced abortion (generally called simply “abortion”), i.e. termination of pregnancy is to
date without a doubt the most discussed – both in scholarship and in politics – reproductive
rights issue (although, indeed, in majority of these discussions it is not presented as a
reproductive rights question). There are countless books, articles, films and more generally
stories about abortion – new ones appearing all the time.213 Furthermore, even all but three of
the transnational abortion cases I present in this thesis have been already widely analysed,
discussed, deconstructed, criticised, contextualised.214 However, the distinction I want to
emphasise here is that my thesis is not a thesis about abortion per se, and I have intentionally
excluded a detailed analysis of the beginning of life, different limitations to abortion, or
critical accounts of country specific domestic abortion regulations.215 Instead, to reiterate, I
am interested in looking at abortion stories as part of the broader narratives about women,

212
G. Sedgh et al, Abortion incidence between 1990 and 2014: global, regional, and subregional levels and
trends, Lancet (2016), Vol. 388, p. 266.
213
See for example: C. Sanger, About Abortion: Terminating Pregnancy in Twenty-First-Century America
(2017); K. Greasley, Arguments about abortion: personhood, morality, and law (2017); S. De Zordo, J. Mishtal,
L. Anton (eds.), A fragmented landscape: abortion governance and protest logics in Europe (2017); A. E.
Yamin, P. Bergallo, M. Berer (eds.) Health and Human Rights Journal, Vol. 19, Issue 1, June 2017 Special
Section: Abortion and Human Rights; M. Unnithan, S. De Zordo (eds.) Global Public Health, (2017) Special
Issue: “Re-situating Abortion: Bio-politics, Global Health and Rights in Neo-liberal Times”.
214
See for example: J. Erdman, “The Procedural Turn: Abortion at the European Court of Human Rights”, in:
Abortion Law in Transnational Perspective: cases and controversies, R.J. Cook, J. Erdman and B. Dickens
(eds.) (2014); C. Cosentino, “Safe and Legal Abortion: An Emerging Human Right? The Long-lasting Dispute
with State Sovereignty in ECHR Jurisprudence”, Human Rights Law Review, Vol. 15, Issue 3 (2015); J.
Westeson, “Reproductive Health Information and Abortion Services: Standards Developed by the European
Court of Human Rights”, International Journal of Gynecology & Obstetrics, Vol. 122, Issue 2 (2013); R.
Rebouché, “Abortion Rights as Human Rights”, Social & Legal Studies, Vol. 25, Issue 6 (2016).
215
See for example: J. Erdman, “Theorizing Time in Abortion Law and Human Rights”, Health and Human
Rights Journal, Vol. 19, Issue 1 (2017); N. Sedacca, “Abortion in Latin America in International Perspective:
Limitations and Potentials of the Use of Human Rights Law to Challenge Restrictions”, Berkeley Journal of
Gender, Law & Justice, Vol. 32 (2017); C. Ngwena, “Access to Safe Abortion as a Human Right in the African
Region: Lessons from Emerging Jurisprudence of UN Treaty-monitoring Bodies”, South African Journal on
Human Rights, Vol. 29,Issue 2 (2013).
71
their bodies, sexuality, and reproduction constructed by the chosen human rights law forums,
and in connection to other reproduction issues.
Rebecca J. Cook and Bernard M. Dickens trace the evolution of abortion laws worldwide,
and propose that, by and large, usually three phases can be identified: first, abortion is
regulated within criminal law, second, it moves from penal codes through decriminalisation
to being a public health issue, and third, most recent and desirable for human rights scholars
and abortion rights advocates, abortion is framed through constitutional law, or as a human
rights matter.216 In other words, the third phase links abortion to the rights language. If we
consider the number of abortion cases in constitutional courts and human rights law forums,
litigation efforts, and the judicialisation of sexual and reproductive rights more broadly then
it is clear that the third phase is gaining momentum.217
Nonetheless, I have argued together with Alicia Ely Yamin elsewhere, how the rights
phenomenon alone is not enough – it is not sufficient that several questions regarding access
to abortion have reached transnational human rights forums (i.e deemed admissible), that
these forums have applied legal provisions, and even established violations.218 What I term as
a reproductive rights-based approach goes beyond that and considers power relations, it
questions how rights are framed and challenges these constructions more deeply. To
illustrate, if we take a step back for a moment and really consider the phenomenon of
abortion and law, then it is not difficult to realise that (paradoxically) even the a
liberal/permissive regulation of pregnancy termination is still oppressive – women need a
specific law to have been passed and enforced to protect and guarantee that they can make

216
R. J. Cook, B. M. Dickens, “Human rights dynamics of abortion law reform,” Human Rights Quarterly, Vol.
25, No.1 (2003), pp. 1–59.
217
In addition to the transnational case-law I have included into this thesis consider also these projects funded
by the Norwegian Research Council: “Sexual and Reproductive Rights Lawfare: Global battles”
(https://www.cmi.no/projects/1836-sexual-and-reproductive-rights-lawfare; accessed November 2017), and
“Abortion Rights Lawfare in Latin America” (https://www.cmi.no/projects/1841-abortion-rights-lawfare-in-
latin-america, accessed November 2017).
218
72
decisions about their reproductive lives. In other words, abortion cases are inherently about
power dynamics that control women’s lives and roles they take in a society.
Indeed, it is somewhat easy to overlook such power dynamics as anti-abortion and so-
called pro-life movements (both religiously rooted and non-religious conservative actors)
have achieved something very powerful that has affected legal framings and jurisprudence:
visually abortion is more associated with the images of a foetus and a “dangerous selfish”
woman, or alternatively, a foetus and a “troubled woman” who would become to regret the
219
abortion. These stereotypical constructions are also feeding into human rights
jurisprudence as becomes apparent below where I introduce abortion cases from the
European Court of Human Rights. This is happening despite the available global statistics on
maternal mortality cited above – associating abortion with horrific images of the violent,
bloody, or potentially deadly consequences of unsafe abortions is rare. Lynn P. Freedman
describes this problem with a different example. Freedman notes how although censorship
and manipulation of reproductive health information are human rights violations that might
not have the “stomach-turning quality” of a report on the torture of prisoners or rape in war,
this does not mean that there is no “fundamental assault” involved.220 Rather, Freedman
underscores how this just demonstrates that we have been “conditioned to think about health,
about women’s reproduction, and the concept of human rights itself”.221 In other words, how
little we – both men and women themselves – are conditioned to think of women.
At the same time, in cases where the human rights law forums have agreed that a state
restricting a woman’s access to safe, legal and timely abortion had breached her human

219
Consider for example the famous images of “a foetus sucking thumb” by the Swedish photojournalist
Lennart Nilsson published in Life magazine “The Drama of Life Before Birth” (1965).
220
Coliver (ed.) (1995).
221
Coliver (ed.) (1995) p. 1.
73
rights, the most convincing argument seems to still stem from proving “enough” additional
suffering (applicant is a minor, foetus not compatible with life, applicant was raped etc.)
instead of highlighting the woman’s simple wish to not be pregnant and give birth and her
different life plan. Thus, in this I too look beyond the final conclusion of the courts and
committees to rather ask, how these four human rights law forums are conditioned to “think
about” women’s reproductive functions, bodies, sexuality more broadly, and simultaneously
abortion, birth, pregnancy more specifically.
3.2.1 Abortion jurisprudence of the European Court of Human Rights
I present here five cases from the European Court of Human Rights (ECtHR). In short,
the Strasbourg Court found a human rights violation in all of them, but did not use a
reproductive rights-based approach to contextualise abortion in relation to power dynamics
in the society. Thus, despite confirming some specific standards for abortion services, it did
not put women’s lived experiences at the centre of its analysis to tackle stereotypes about
women’s bodies and sexuality that feed into restrictive abortion regulations-practices. Using
again Barbara Havelkova’s work on stereotyping and human rights, which considers also
dissenting opinions, the abortion jurisprudence in this thesis similarly reveals a resistance –
namely, a reluctance to confirm abortion as a human right of all women and girls.
For example, in Tysiac v. Poland concerning a woman who needed to terminate her
pregnancy due to her health, but whose doctors disagreed on the certainty of this risk some
ECtHR judges wrote, how that the Strasbourg Court was not concerned with “any abstract
right to abortion” (Judge Bonello), and “if five experts did not think the woman’s health
would be threatened by the pregnancy and birth this should have been decisive” (Judge
74
Borrego Borrego).222 In A, B and C v. Ireland the ECtHR, by referring that the two women –
A and B – were not prevented from travelling abroad for abortion, failed to consider
intersectionality and how women’s socio-economic situations are different. Although in two
other Polish abortion cases tried in the ECtHR (R.R. v Poland, and P. and S. v. Poland) the
court did move beyond constructing abortion through “privacy” only, and established that the
standard of “degrading treatment” was met, it did not arrive at such a conclusion because
inflicting unwanted pregnancy or unsafe illegal abortion on someone in itself is already a
degrading treatment, but rather because in these cases the applicants were able to show “extra
suffering” – R.R. could not secure genetic tests for five months, and S. was a minor who had
been raped and then bullied by the media, a Catholic priest, and was forced to get her
abortion 500 km away from her home. The last abortion case I introduce from the ECtHR is
not a “typical” abortion case: Annen v. Germany showcases how women’s reproductive rights
can also be potentially harmed through upholding someone’s freedom of expression. This
point was indeed put forward to some extent by Judges Yudkivska and Jäderblom’s
dissenting opinion in which they write how “derision of abortion doctors to which the
applicant resorted, pushes more and more doctors to refuse to perform abortions, to the
detriment of women in difficult situations”, and the two doctors were “singled out as the
victims of the applicant’s struggle against women’s procreative liberty”. Thus, although not
being a “typical” abortion case, Annen’s dissent adds more nuance to ECtHR’s abortion
jurisprudence.
In summary, the ECtHR mainly applied Article 8 (right to privacy) when analysing
abortion cases, has established a violation of Article 3 (degrading treatment) by exception
only (a 5-month delay in getting a necessary genetic screening or in case of a minor), and has

222
Tysiac v. Poland, Application no. 5410/03 (2007), Separate Opinion of Judge Bonello, and Dissenting
Opinion of Judge Borrego Borrego.
75
never referred to Article 14 (non-discrimination) and/or framed access to abortion as a
gendered issue.
Tysiac v. Poland
In the first case, Tysiac v. Poland the applicant Alicja Tysiac was seeking an abortion
as pregnancy and birth constituted a serious risk to her health, including to her eyesight. 223
However, since the consulting doctors disagreed about the certainty of this health risk she
could not get an abortion, had to give birth and consequently suffered from severely
deteriorated eyesight. 224 She submitted to the ECtHR that Articles 3, 8 and 14 of the
European Convention on Human Rights (the Convention) had been violated by Poland.
Article 3 prohibits torture, inhuman or degrading treatment,225 Article 8 protects private and
family life226 and Article 14 prohibits discrimination, including on the basis of gender.227

223
Tysiac v. Poland, Application no. 5410/03 (2007).
224
Case, para. 14.
225
Article 3 of the Convention states:
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
226
76
Regarding inhuman or degrading treatment the Court found that the facts of the case
did not disclose a breach of Article 3.228 The Court also established that it was not necessary
to examine the complaint under Article 14 (prohibition of discrimination).229 Rather, it found
only the right to private life (Article 8) relevant as “legislation regulating the interruption of
pregnancy touches upon the sphere of private life since whenever a woman is pregnant her
private life becomes closely connected with the developing foetus”.230
Importantly, the Court also explicitly established that the woman’s right to private life
is not of an absolute nature – “the woman’s right to respect for her private life must be
weighed against other competing rights and freedoms invoked including those of the unborn
child”.231 The Court noted that “while the state regulations on abortion relate to the traditional
balancing of privacy and the public interest, they must be in case of a therapeutic abortion be
assessed against the positive obligations of the state to secure the physical integrity of
mothers-to-be.”232 In considering how the availability of a therapeutic abortion in Polish law
was applied to the applicant’s case, the Court concluded that the procedures put in place to
determine whether the applicant had met the conditions for obtaining a lawful abortion were
inadequate.233 Thus, the Court held that there had been a breach of the right to private life
(Article 8) due to the lack of adequate information and procedural mechanisms.

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 wellbeing 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.
227
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin,
association with a national minority, property, birth or other status.
228
Tysiac v. Poland, Application no. 5410/03 (2007), para. 66.
229
Case, para. 144.
230
Case, para. 106.
231
Case, para. 106.
232
Case, para. 107.
233
The Court noted at para. 117 that in the context of access to abortion a relevant procedure should guarantee
to a pregnant woman at least a possibility to be heard in person and to have her views considered. The
competent body or person should also issue written grounds for its decision.
77
The decision also had a separate opinion by Judge Bonello. Namely, according to
Judge Bonello, the Court was neither concerned with “any abstract right to abortion” nor
“with any fundamental human right to abortion lying somewhere in the penumbral fringes of
the Convention”. 234 In addition to Judge Bonello, Judge Borrego Borrego provided a
dissenting opinion in which he argued that “the Court is neither a charity institution nor the
substitute for a national parliament”, and if “five experts . . . did not think that the woman’s
health would be threatened by the pregnancy and the delivery”, then this should have been
decisive.235 Borrego Borrego concluded that the violation was found “only on the sole basis
of the applicant’s fears”.236
A, B and C v. Ireland
In the case of A, B and C v. Ireland three women needed to consider travelling to the
United Kingdom to have abortions as the domestic laws of Ireland prevented them from
getting legal abortions in their home country. 237 A, B and C were seeking abortions for
different reasons: A felt that an unwanted pregnancy would harm her mental health and
socioeconomic well-being, B did not want to be a mother without a partner, and C was
advised against pregnancy due to her cancer. The Court dismissed applicants’ allegations of
degrading treatment (Article 3) and discrimination (Article 14), and again only considered
Article 8 – right to respect for private life. The applicants accepted that the abortion
restrictions were in accordance with Irish law and were aimed at protecting foetal life, but
claimed that the law’s restrictiveness no longer reflected the popular sentiment on abortion in
Ireland –they therefore argued for a substantive violation.238 In rejecting this claim, the Court

234
Tysiac v. Poland, Application no. 5410/03 (2007), Separate Opinion of Judge Bonello, para. 1.
235
Tysiac v. Poland, Application no. 5410/03 (2007), Dissenting Opinion of Judge Borrego Borrego, para. 10.
236
Tysiac v. Poland, Application no. 5410/03 (2007), Dissenting Opinion of Judge Borrego Borrego, para. 14.
237
A, B and C v. Ireland, Application no. 25579/05 (2010).
238
Case, para. 170, see also: J. Erdman, “The Procedural Turn: Abortion at the European Court of Human
Rights”, in: Abortion Law in Transnational Perspective: cases and controversies, R. J. Cook, J. Erdman and B.
Dickens (eds.) (2014), p. 121.
78
provided the Irish Government a wide margin of appreciation.239 In A, B and C v. Ireland this
margin could have been narrowed by the existence of relevant European consensus to which
the Court referred.240 Instead, the Court showed deference, finding no violation of the right to
private life (Article 8) regarding applicants A and B, as they were able to travel abroad and
secure access to abortion:
Accordingly, having regard to the right to travel abroad lawfully for
an abortion with access to appropriate information and medical care in
Ireland, the Court does not consider that the prohibition in Ireland of abortion
for health and well-being reasons, based as it is on the profound moral views
of the Irish people as to the nature of life (…) and as to the consequent
protection to be accorded to the right to life of the unborn, exceeds the margin
of appreciation accorded in that respect to the Irish State. In such
circumstances, the Court finds that the impugned prohibition in Ireland struck
a fair balance between the right of the first and second applicants to respect
for their private lives and the rights invoked on behalf of the unborn.241
The Court separated C’s case from the rest as she was seeking an abortion due to her
cancer and there was a risk to her life – which was an accepted exception in Irish abortion
law. The Court held accordingly, as in the case of Tysiac v. Poland, that the state had failed

239
Case, paras. 231-241.
240
Case, para. 235: “In the present case, and contrary to the Government’s submission, the Court considers that
there is indeed a consensus amongst a substantial majority of the Contracting States of the Council of Europe
towards allowing abortion on broader grounds than accorded under Irish law. In particular, the Court notes that
the first and second applicants could have obtained an abortion on request (according to certain criteria
including gestational limits) in some 30 such States. The first applicant could have obtained an abortion justified
on health and well-being grounds in approximately 40 Contracting States and the second applicant could have
obtained an abortion justified on well-being grounds in some 35 Contracting States. Only 3 States have more
restrictive access to abortion services than Ireland namely, a prohibition on abortion regardless of the risk to the
woman’s life”.
241
Case, para. 241. This conclusion was criticised by Judges Rozakis, Tulkens, Hirvelä, Malinverni and
Poalelungi in their joint partly dissenting opinion.
79
to comply with its positive obligation to put procedures in place for women to obtain
therapeutic abortions, finding a violation of the right to private life (Article 8). 242
R.R. v. Poland
In another case against Poland, R.R. v. Poland the applicant R.R. also gave birth after
having been refused a therapeutic abortion even though several ultrasounds confirmed the
likelihood of the foetus suffering from severe malformation. 243 For five months, the doctors
delayed R.R. from getting a genetic test, which eventually did confirm a serious congenital
disease, by forcing her to obtain continuous referrals to different hospitals.244
Noting there were no objective reasons for the delays in genetic tests, the Court found
that as a result of “procrastination of the health professionals”, she had to “endure weeks of
painful uncertainty concerning the health of the foetus, her own and her family’s future and
the prospect of raising a child suffering from an incurable ailment”.245 The Court concluded
that the applicant was treated “shabbily” and the required minimum threshold of severity for
establishing a violation of the prohibition of degrading treatment (Article 3) had been
reached.246
The Court distinguished this case from the case concerning Alicja Tysiac’s case, by
arguing that the issue was not access to abortion as such, but essentially timely access to a
medical diagnostic service that would make it possible to determine whether conditions for a
lawful abortion were obtained.247 It confirmed with R.R that if the domestic laws allow for
abortion in cases of foetal malformation, there must be an adequate legal and procedural

242
243
R.R. v. Poland, Application no. 27617/04 (2011).
244
Turner syndrome is a chromosomal condition that affects development in females. The most common feature
of Turner syndrome is short stature, which becomes evident by about age five. An early loss of ovarian function
(ovarian hypo function or premature ovarian failure) is also very common.
245
Case, para 159.
246
Case. para. 160.
247
Case, para. 196.
80
framework to guarantee that relevant, full and reliable information on the foetus’ health is
available to pregnant women.248
This construction of lack of information and procedural access to abortion as a form
of degrading treatment was, however, questioned by Judge Bratza in his partial dissent,
where he argued that the Court’s analogy with cases of enforced disappearances was
erroneous. He explained how in such cases authorities “systematically prevaricate or provide
false information to applicants about the whereabouts and fate of their missing relatives”, but
he insisted that the actions of the doctors in the R.R. case “even if they were prompted to
deter the applicant from pursuing the possibility of a termination of her pregnancy” were not
comparable to institutional deception.249
P. and S. v. Poland
The last of the three infamous Polish abortion cases is P. and S. v. Poland.250 On 9
April 2008, P. (the first applicant) went to the Public University Health Care Unit in Lublin.
She said that she had been raped on 8 April 2008 by a boy of her own age. The medical staff
told P. that they could neither examine her nor provide medical assistance because she was a
minor and the consent of her legal guardian was necessary. The doctor also reported the case
to the police and notified P’s parents. Later that day, after reporting the rape, P. attended the
hospital with her mother S. accompanied by a female police officer. S. gave her consent for
the examination of her daughter, who was in a state of emotional shock. At the hospital,
psychological help was offered and a family doctor confirmed bruises on her body. As a
result of the rape P. became pregnant, and the applicants decided together that an abortion
would be the best option, considering that P. was a very young minor, the pregnancy was the
result of forced intercourse, and she wanted to pursue her education.

248
Case, para. 201.
249
Case, para. 5.
250
P. and S. v. Poland, Application no. 57375/08 (2013).
81
On 20 May 2008, the District Prosecutor issued a certificate stating that P’s
pregnancy had resulted from unlawful sexual intercourse with a minor under 15 years of age.
P’s mother S. then went to different hospitals to ask for a termination of pregnancy, but was
faced with doctors’ suggestions to “meet with a Catholic priest” and to “get her daughter
married” and how “under communism when abortion had been freely available no one had
made her perform abortions, and that no doctor would have given permission for an abortion
to be performed”. S. was also asked to sign a statement: “I am agreeing to the procedure of
abortion and I understand that this procedure could lead to my daughter’s death”. Moreover,
P. was separated from her parents, locked up in a juvenile shelter, harassed by media, anti-
abortion activists, a Catholic priest and finally forced to seek the abortion 500 km away from
her home.
The Court found that “the events surrounding the determination of the first applicant’s
access to legal abortion were marred by procrastination and confusion” they were given
“misleading and contradictory information”, and they did not receive “appropriate and
objective medical counseling”.251 Furthermore, regarding the relationship between P. and S.,
the Court underscored that “legal guardianship cannot be considered to automatically confer
on the parents of a minor the right to take decisions concerning the minor’s reproductive
choices, because proper regard must be had to the minor’s personal autonomy”, but
continued: “it cannot be overlooked that the interests and life prospects of the mother of a
pregnant minor girl are also involved in the decision whether to carry the pregnancy to term
or not”.252
Accordingly, the Court established that the state must guarantee a “procedure for the
determination of access to a lawful abortion whereby both parties can be heard and their
views fully and objectively considered, including, if necessary, the provision of a mechanism

251
Case, para. 108.
252
Case, para. 109.
82
for counselling and reconciling conflicting views in favour of the best interest of the
minor”.253
The Court concluded that “the authorities failed to comply with their positive
obligation to secure to the applicants effective respect for their private life”, and thus there
had been a breach of Article 8.254 Furthermore, it established that the authorities treated P. in
a “deplorable manner”, and that “her suffering reached the minimum threshold of severity
under Article 3 of the Convention” – thus, the Court found that Poland had breached Article
3.255
Annen v. Germany
The last abortion case from the European Court of Human Rights is Annen v.
Germany, which is not a “typical” abortion case, but the views adopted by the ECtHR are
nonetheless important for the purposes of my analysis.256
The applicant in this case was Mr Klaus Günter Annen. He campaigned against
abortion and distributed leaflets in the immediate vicinity of the medical practices of
anaesthetists Dr M. and Dr R, who were running a day clinic. Mr Annen also distributed the
leaflets to all the letterboxes in the vicinity of the clinic. The front page of the leaflets stated:
“In the day clinic Dr M/Dr R [full name and address] unlawful abortions are performed”.
This statement was followed by an explanation in smaller print: “which are, however,
allowed by the German legislator and are not subject to criminal liability. The attestation of
counselling protects the “doctor” and the mother from criminal responsibility, but not from
their responsibility before God”.
A box below contained the following text: “According to international criminal law
murder is the international “bringing-to-death” of an innocent human being”. Furthermore,

253
Case, para. 109.
254
Case, para. 112.
255
256
Annen v. Germany, Application no. 3690/10 (2016).
83
the other side of the leaflet Mr Annen had quoted the German Constitutional Court’s leading
judgment regarding abortion, made references to Auschwitz and to a webpage called
www.babycaust.de. The latter was an online site operated which contained, inter alia, an
address list of “abortion doctors” (Dr M and Dr R were also both mentioned).
Dr M and Dr R filed a civil injunction against Mr Annen and submitted that only legal
abortions were performed at their clinic, but the leaflet created an impression that these
abortions were illegal. The civil injunction was granted in the domestic legal system, and Mr
Annen was ordered to not disseminate these leaflets in the immediate vicinity of the day
clinic, and desist from mentioning Dr M and Dr R in the list of “abortion doctors” on the
www.babycaust.de website.
The ECtHR analysed whether Mr Annen’s right to freedom of expression (Article
10,) had been violated .257 First, the Court investigated, whether there had been a breach of
Article 10 in respect of the order to desist from further disseminating the leaflets. The Court
established that Mr Annen’s campaign “contributed to a highly controversial debate of public
interest”, and thus “there can be no doubt as to the acute sensitivity of the moral and ethical
issues raised by the question of abortion”.258 The Court found that it is not clear, whether the
applicant’s activities actually caused the closure of the clinic.259
Furthermore, the Court said that it “cannot agree with the domestic courts’
interpretation that the applicant had compared the doctors and their professional activities to

257
Article 10:
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to
receive and impart information and ideas without interference by public authority and regardless of frontiers.
This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema
enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic
society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder
or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or for maintaining the authority and
impartiality of the judiciary
258
Case, para. 62.
259
Case, para. 62.
84
the Nazi regime” as Mr Annen’s reference to Auschwitz could also be understood as a “more
general fact that law may diverge from morality”.260 The Court also noted that Mr Annen’s
statement about unlawful abortions was actually not incorrect from a judicial point of
view.261 Thus, the Court concluded that the domestic courts had failed to strike a fair balance
between Mr Annen’s right to freedom of expression and the doctors’ personality rights, and
found a violation of Article 10.262
The Court analysed further whether prohibiting Annen from having the doctors’
names listed on the website under “abortion doctors” violated Article 10. In short, the Court
considered that the doctors had not submitted the exact content, screenshots of or the general
layout of the website at question to the domestic courts and accordingly the domestic court of
appeal had “limited itself to finding that the same principles which had been elaborated with
regard to the leaflet should also apply to the website”.263
Consequently, the Court noted that the domestic courts did not draw a distinction
between “the applicant’s statement on the leaflet, which had a geographically limited impact,
and (…) his statements on the Internet, which could be disseminated worldwide”.264 Thus,
the Court found that by “failing to address specific elements related to the applicant’s Internet
site, the domestic courts cannot be said to have applied standards which were in conformity
with the procedural principles embodied in Article 10”, and found a violation of Article 10.265
This decision has a dissenting opinion that brings in themes the majority decision
does not touch upon. Judges Yudkivska and Jäderblom summarise that the majority operated
on a presumption that “the applicant’s leaflets about two doctors, as well as mentioning their
names and addresses on the website “contributed to a highly controversial debate of public

260
Case, para. 63.
261
Case, para. 60.
262
Case, paras. 64-65.
263
Case, para. 70.
264
Case, para. 72.
265
Case, para. 74.
85
interest”. They continue to explain, how “it goes without saying that the very issue of
abortion constitutes a matter of public interest, and society remains divided over abortion
rights” and thus, “a similar campaign against those responsible for government policy in this
respect would undoubtedly warrant strong protection under article 10”.266
They write further that in the case of Mr Annen the public interest threshold had not
been reached as the case involved “ordinary doctors, merely performing their professional
duties in strict accordance with the relevant rules, like many other gynaecologists in
Germany”.267 Thus, according to judges Yudkivska and Jäderblom, these two doctors were
“singled out as the victims of the applicant’s struggle against women’s procreative liberty”.
Moreover, the dissenting judges found it convincing that the activities of Mr Annan
could have caused the closure of the clinic as “potential patients” would choose to not be
treated by doctors whose practices were associated with the word “unlawful”. They explain
how Mr Annan was able to “demonise them by mixing their names with notions related to the
most horrifying crime in the history of humankind – “Holocaust”, “Auschwitz”, “Nazi” and
how this would be “tolerable as an artistic device to describe mass abortion as such in
general”, but not with respect to “individual doctors faultlessly performing their ordinary
duties”.
The dissent also sheds light to another aspect not voiced in the majority opinion:
namely, the “broader consequences of the harassment actions against abortion doctors”.
Judges Yudkivska and Jäderblom explain how “derision of abortion doctors to which the
applicant resorted, pushes more and more doctors to refuse to perform abortions, to the
detriment of women in difficult situations”. The judges conclude: “It could be perfectly
legitimate to distribute leaflets and run a website criticising abortion as a phenomenon, which
the applicant continues to do, but in the present case the actions prohibited by the domestic

266
Joint Dissenting Opinion of Judges Yudkivska and Jäderblom.
267
86
judicial authorities were limited to the continued destruction of the professional reputation of
two doctors”.268
3.2.2 Abortion jurisprudence of the United Nations committees
Both of the United Nations committees have abortion jurisprudence that, in contrast with
the European Court of Human Rights, at least to some extent uses a reproductive rights-based
approach. The United Nations Human Rights Committee has decided four important abortion
cases, and the CEDAW Committee one abortion case.
Rebecca J. Cook’s and Simone Cusack’s three-step methodology cited in Chapter 2 of
this thesis explains the transformative power of naming (gender) stereotypes: how naming
stereotypes reveals “otherwise hidden harm”, and also, understands stereotypes as human
rights concern.269 The abortion jurisprudence of the European Court of Human Rights, for
example, does not name stereotypes or understand abortion laws as reflections of women’s
lack of power in a society. Instead, as I elaborate below, the ECtHR jurisprudence enforces
the normative motherhood stereotype.
The abortion jurisprudence of the United Nations two committees is indeed more
progressive in its character even though this has not always been the case: in K.L. v. Peru and
L.M.R. v. Argentina the Human Rights Committee did not explicitly acknowledge harmful
stereotypes, but fortunately in its more recent cases brought against Ireland (Whelan and
Mellet) the Human Rights Committee has sharpened its tools.

268
269
R. J. Cook, S. Cusack, Gender Stereotyping: Transnational Legal Perspectives (2010), p. 39.
87
K.L. v. Peru
The author of this communication to the Human Rights Committee was K.L. 270 She
became pregnant in March 2001 when she was 17 years old. On 27 June 2001 she went to a
hospital in Lima and received a scan, which showed that she was carrying an anencephalic
foetus, i.e a foetus that is missing a major portion of the brain, skull, and scalp. On 3 July a
gynaecologist and obstetrician informed K.L. of the foetal abnormality and the risks to K.L.’s
life if the pregnancy continued. The doctor told K.L. that she had two options: to continue the
pregnancy or to terminate it. K.L. decided to terminate the pregnancy, and the necessary
clinical studies were carried out again confirming the foetal abnormality.
On 19 July K.L. reported to the hospital together with her mother for admission to the
preparatory phase of the operation. The doctor informed K.L. that she needed to obtain
written authorization from the hospital director. Since K.L. was underage her mother
submitted the request on her behalf. On 24 July the hospital director replied in writing that
the termination of pregnancy could not be carried out since it would be unlawful as under the

270
K.L. v. Peru, CCPR/C/85/D/1153/2003 (2005).
88
Peruvian Criminal Code abortion was punishable by a prison term also in cases when it was
likely that at birth the child would suffer serious physical or mental defects. Therapeutic
abortion was permitted only to save the life of the pregnant woman or avoid serious and
permanent damage to her health.
On January 13 2002 K.L. gave birth to an anencephalic baby who survived for four
days during which K.L. had to breastfeed the baby. After the birth K.L. was diagnosed with
depression, and also suffered from an inflammation of the vulva, which required medical
treatment.271 K.L. submitted to the Human Rights Committee that Peru had violated Articles
2, 3, 6, 7, 17, 24, 26 of the International Covenant on Civil and Political Rights (the ICCPR).
The Committee found that Peru had violated Article 7 (the prohibition of torture and
other cruel, inhuman or degrading treatment)272 of the ICCPR as K.L. suffered from deep
depression due to the hospital’s refusal of abortion, and that could have been foreseen. The
Committee thus established that “the omission on the part of the State in not enabling the
author to benefit from a therapeutic abortion was (…) the cause of the suffering she
experienced”.273
The Human Rights Committee referred to the General Comment No. 20, which
explains how “the right set out in article 7 of the Covenant relates not only to physical pain
but also to mental suffering, and that the protection is particularly important in the case of
minors”.274 Thus, the Committee also noted that in the light of this finding it was not
necessary to consider Article 6 (the right to life).

271
Case, paras. 2.1-2.6.
272
Article 7.
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular,
no one shall be subjected without his free consent to medical or scientific experimentation.
273
Case, para. 6.3.
274
Case, para. 6.3.
89
Furthermore, the Committee also found that Peru had violated Article 17 (the right to
privacy).275 The Committee explained that the doctor at the hospital told K.L. that she had the
option of terminating her pregnancy, thus “in the absence of any information from the State
Party, due weight must be given to the author’s claim that at the time of this information, the
conditions for the lawful abortion as set out in the law were present”.276
Moreover, the Committee noted “the special vulnerability of the author as a minor
girl” and as K.L. did not receive any medical or psychological support necessary in her
circumstances, Peru had violated article 24 (special mention of the rights of a child) of the
ICCPR.277 The Committee also established that there had been a violation of Article 2 (non-
discrimination)278 in conjunction with Articles 7, 17 and 24 as K.L. lacked an adequate legal
remedy.279
The Committee did not comment on K.L.’s submission that there had been a breach
of Article 3 (equal treatment of men and women) as well. K.L. had submitted that her
“different and special needs were ignored because of her sex”, and although she was entitled
to a therapeutic abortion, she was denied because of “social attitudes and prejudices, thus
preventing her from enjoying her right to life, to health, to privacy and to freedom from cruel,
inhuman and degrading treatment on an equal footing with men”.280

275
Article 17
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or
correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.
276
Case, para. 6.4.
277
Case, para. 6.5.
278
Article 2.
1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its
territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any
kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin,
property, birth or other status. (…)
279
Case, para. 6.6.
280
Case, para. 3.2.
90
L.M.R. v. Argentina
This case concerned L.M.R., a young woman with a permanent mental impairment
living in Guernica, Buenos Aires province. 281 L.M.R. lived with her mother, attended a
special school and received neurological care as she had been diagnosed with having a
mental age of between 8 and 10 years. L.M.R. was represented in this case by her mother
(V.D.A.).
In June 2006 V.D.A. took her daughter to Guernica Hospital because L.M.R. said that
she was feeling unwell. At the hospital L.M.R. was found to be pregnant and her mother
requested a termination of the pregnancy. The hospital staff, however, refused to perform the
abortion and referred L.M.R. to San Martín Hospital in La Plata, a public hospital 100
kilometres from where L.M.R. and V.D.A. lived. The hospital staff also told V.D.A. that she
needed to file a complaint with the police. On 24 June 2006 V.D.A. filed a complaint against
L.M.R.’s uncle who was suspected of raping her. V.D.A. noted in her communication that
Guernica Hospital had the resources necessary to perform the procedure, without needing to
refer the case elsewhere, and that its refusal forced the family to travel 100 kilometres to the
provincial capital and to incur the related costs and inconvenience.
L.M.R. was approximately 14 weeks pregnant on her arrival at San Martín Hospital.
She was admitted on 4 July 2006 and the hospital authorities requested an urgent meeting
with the Bioethics Committee to solicit its opinion. Since this was a case of non-punishable
abortion, the hospital staff began the pre-surgical examinations necessary for the procedure.
The Argentinian domestic regulation provided that, in principle, female rape victims
with a mental disability do have the right to terminate a pregnancy, but the law specified
neither any deadlines nor the type of medical procedure to be used. In addition, it established
no requirement for judicial authorisation of any form. The only requirements were that the

281
L.M.R. v. Argentina, CCPR/C/101/D/1608/2007 (2011).
91
disability should be diagnosed, the victim’s legal representative should give consent and a
licensed physician should perform the abortion.
However, the hospital was issued with an injunction on all procedures and judicial
proceedings were initiated to prevent the abortion. The juvenile court judge ruled that the
termination of pregnancy should be prohibited because she did not find it acceptable to
respond to a wrongful assault (sexual abuse) “with another wrongful assault against a new
innocent victim, i.e. the unborn child”. This decision was confirmed by the Civil Court,
which instructed the juvenile court judge to perform regular checks on L.M.R’s pregnancy to
monitor the health of her and her unborn child directly.
V.D.A. contested this decision before the Supreme Court of Justice of Buenos Aires
province, which overturned it on 31 July 2006, and ruled that the termination of pregnancy
could proceed. Consequently, the Court informed San Martín Hospital that the abortion was
legal and did not require judicial authorization. This ruling was issued almost a month and a
half after V.D.A. had reported the rape, and requested the abortion.
Despite the ruling, San Martín Hospital and the family came under enormous pressure
from various sources opposed to the termination, and the hospital refused to perform the
procedure on the grounds that the pregnancy was too advanced (between 20 and 22 weeks).
The press reports indicated that both the Rector of the Catholic University and the
spokesperson of the Corporation of Catholic Lawyers contributed to the pressure exerted on
the family and the doctors.282
The family contacted various health centres and hospitals, but none of them agreed to
carry out a termination. However, the family managed to arrange an illegal termination on 26
August 2006.283 V.D.A. submitted to the HR Committee that forcing L.M.R. to continue
pregnancy, even though she should have enjoyed protection under domestic regulation

282
283
92
constituted cruel and inhuman treatment and therefore a violation of Article 7 (prohibition of
torture and degrading treatment) of the ICCPR.
Argentinian Government argued that, while forcing L.M.R. “to endure a pregnancy
resulting from rape and undergo an illegal abortion could have been a contributing factor to
the mental injury that the victim suffered, it did not constitute torture”.284 The Committee,
however, concluded that the State party’s failure to guarantee L.M.R.’s right to a termination
of pregnancy “caused L.M.R. physical and mental suffering constituting a violation of article
7 of the Covenant that was made especially serious by the victim’s status as a young girl with
a disability”.285 The Committee recalled its General Comment No. 20 in which it states that
the right protected in Article 7 “relates not only to acts that cause physical pain but also to
acts that cause mental suffering”.286
Further, V.D.A. also submitted how the impossibility of obtaining a termination of
pregnancy constituted a violation of the right to equality and non-discrimination (Article 3):
“the State's failure to exercise due diligence in safeguarding a legal right to a procedure
required solely by women, coupled with the arbitrary action of the medical staff, resulted in
discriminatory conduct that violated L.M.R.'s rights. The victim's status as a poor, disabled
woman adds to the seriousness of the violation since it heightened the State's obligation to
protect her rights and eradicate the cultural and religious prejudices that were undermining
her well-being”.287 V.D.A. further referred to the Committee's concluding observations in a
periodic report regarding Argentina which stated that "traditional attitudes towards women
continue to exercise a negative influence on their enjoyment of Covenant rights", and
submitted that “since abortion is an issue that affects women only and is shrouded in all kinds
of prejudices in the collective imagination, the attitude of the judicial officers and the medical

284
Case, para. 9.2.
285
Case, para. 9.2.
286
Case, para. 9.2.
287
Case, para. 3.5.
93
staff at San Martín Hospital, and the authorities' failure to enforce the law, were
discriminatory, depriving L.M.R. of her right to a safe, lawful abortion”.288 The Committee
considered this “allegation to be closely related to those made under other articles of the
Covenant, and that they should therefore be considered together”.289
The Committee also considered V.D.A.’s submission that there had been an arbitrary
interference with L.M.R.’s private life –a violation of Article 17 of the ICCPR (right to
privacy).290 The Human Rights Committee noted how “the State’s unlawful interference,
through the judiciary, is an issue that should have been resolved between the patient and her
physician” respecting L.M.R.’s right to privacy, and thus the facts reveal a violation of
Article 17, paragraph 1 of the ICCPR.291
Lastly, the Committee found that Argentina was by omission responsible for the
violation of article 2 of the ICCPR.292 Namely, the Committee observed that although the
judicial remedies sought at the domestic level to guarantee access to a termination of
pregnancy were indeed resolved favourably for L.M.R. by the Supreme Court ruling, to
achieve this result, V.D.A. had to “appear before three separate courts, during which period
the pregnancy was prolonged by several weeks, with attendant consequences for L.M.R.’s
health that ultimately led the author to resort to illegal abortion”.293
For these reasons, the Committee concluded that the author did not have access to an
effective remedy and the facts described constitute a violation of Article 2, paragraph 3 in
relation to Articles 3, 7 and 17 of the ICCPR.294

288
Case, para. 3.6.
289
Case, para. 8.5.
290
Case, para. 9.3.
291
Case, para. 9.3.
292
Case, para. 9.4.
293
Case, para. 9.4.
294
Case, para. 9.4.
94
L.C. v. Peru
This communication was submitted to the United Nations CEDAW Committee by T.P.F.
on behalf of her daughter L.C.295 When L.C. was 11 years old, an adult man named J.C.R.
began to sexually abuse her. As a result of the abuse, L.C. became pregnant at the age of 13.
In a state of depression she attempted suicide by jumping from a building on 31 March 2007.
She was taken to a hospital where she was diagnosed with several traumas and with “a risk of
permanent disability”.
The damage to her spine in addition to other medical problems caused paraplegia of the
lower and upper limbs requiring emergency surgery. The surgery was scheduled for 12 April
2007. On 4 April L.C. revealed during a psychological evaluation that her suicide attempt
was caused by the sexual abuse and her fear of being pregnant. The following day a
gynaecologist examined her and confirmed the pregnancy. Consequently the doctors told
L.C. that the spinal surgery had to be postponed due to her pregnancy. L.C. was also
diagnosed with moderate anxiety-depression syndrome for which she was, however, not
given treatment as it was contraindicated during pregnancy. L.C.’s mother made several
requests for a therapeutic abortion, which were denied. On June 16 2007 L.C. miscarried
spontaneously and on 11 July she had the surgery for her spinal injuries – almost three and a
half months after it had been decided that she needed the operation. After two weeks she was
discharged and her medical records indicated that she needed intensive physical therapy and
rehabilitation, but she was able to start the therapy only in December that year.
L.C. remained at the rehabilitation institute for two months, but had to abandon her
treatment due to lack of means. Currently, she is paralysed from the neck down and has
regained only partial movement in her hands. Thus, she depends on a wheelchair to get
around and has a catheter, which must be changed five times a day under sterile conditions,

295
L.C. v. Peru, CEDAW/C/50/D/22/2009 (2011).
95
which prevents her from attending school. L.C.’s mother is unable to work because she has to
take care of L.C. full time and thus L.C.’s brothers had to leave school and start working.296
L.C.’s mother submitted to the CEDAW Committee that Peru has violated Articles 1, 2,
3, 5, 12 and 16 paragraph 1 (e) of the CEDAW. The Committee first established that despite
Peru’s objections there was indeed a direct relationship between the withdrawal of the
emergency surgery and L.C.’s pregnancy. The Peruvian Government argued that L.C.’s
surgery was postponed due to an infection, but the Committee refers that the surgery was
scheduled for 12 April, but the first mention of the infection in L.C.’s medical records is only
from 23 April.
The Committee established that L.C. did not have access to the emergency spinal surgery
and the needed therapeutic abortion. The Committee also adds that “this is even more serious
considering that she was a minor and a victim of sexual abuse”.297Thus, the Committee
establishes that Peru has violated Article 12 (non-discrimination in women’s health).298
Furthermore, the Committee also held that Article 5 (anti-stereotyping)299 had been violated
as “the decision to postpone the surgery due to the pregnancy was influenced by the
stereotype that protection of the foetus should prevail over the health of the mother”.300
Lastly, the Committee found that Peru’s failure to “protect women’s reproductive rights and

296
297
Case, para. 8.15.
298
Article 12
1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of
health care in order to ensure, on a basis of equality of men and women, access to health care services,
including those related to family planning.
2. Notwithstanding the provisions of paragraph I of this article, States Parties shall ensure to women
appropriate services in connection with pregnancy, confinement and the post-natal period, granting free
services where necessary, as well as adequate nutrition during pregnancy and lactation.
299
Article 5
States Parties shall take all appropriate measures:
(a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the
elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or
the superiority of either of the sexes or on stereotyped roles for men and women;
300
Case, para. 8.15.
96
establish legislation to recognize abortion on the grounds of sexual abuse and rape are facts
that contributed to L.C.’s situation”.301
Mellet v. Ireland
The author of this communication to the Human Rights Committee was Amanda Jane
Mellet, an Irish citizen living in Ireland.302 Mellet became pregnant in 2011, and on 11 and 14
November in 2011, i.e in her 21st week of pregnancy, she received scans at a hospital in
Dublin which showed that her foetus had congenital heart defects. The doctor at the hospital
also stated: ”Terminations are not available in this jurisdiction. Some people in your situation
may choose to travel”. The doctor did not explain what “travel” involved, and did not
recommend a suitable abortion provider in the United Kingdom. Mellet had another
examination at the hospital and was informed that the foetus had trisomy 18 (Edwards
syndrome), and would die in utero or shortly after birth.303 Again, the midwife indicated to
Mellet that she could either carry to term knowing that the foetus would most likely die
inside of her, or she could “travel” – without explaining what “travelling” would entail.
Thus, Mellet was not referred by the hospital to a provider abroad that could terminate
her pregnancy since health providers in Ireland are not permitted to make such appointments.
Mellet used a family planning organisation to book an appointment in the United Kingdom.
She flew to Liverpool with her husband where at the Women’s Hospital she received
medication to start the process of terminating the pregnancy and then once more to induce the
labour. Mellet was in labour for 36 hours and delivered a stillborn baby. She had to return to
Ireland already 12 hours after the labour, as she did not have funds to stay longer in
Liverpool.
In Ireland Mellet did not receive any aftercare and counselling as she did not qualify
for it since the “service does not extend to those who choose to terminate the pregnancy as a

301
Case, para. 8.18.
302
Mellet v. Ireland, CCPR/C/116/D/2324/2013 (2016).
303
97
result of fatal foetal impairments”.304 Eventually, Mellet received post-abortion counselling at
a family planning organisation, but not bereavement counselling specifically. Mellet
submitted to the Human Rights Committee that Ireland had violated Article 7 (prohibition of
cruel, inhuman or degrading treatment), Article 17 (right to privacy), Article 19 (freedom of
information) and Articles 2(1), 3, 26 (non-discrimination) of the ICCPR.
The Human Rights Committee stated that the fact that a particular conduct or action is
legal under domestic law does not mean that it cannot violate Article 7 – as claimed by
Ireland.305 The Committee found that Ireland had subjected Mellet to cruel, inhuman or
degrading treatment as Mellet had her:
(…) physical and mental anguish exacerbated by: not being able to continue
receiving medical care and health insurance coverage for her treatment from
the Irish health care system; the need to choose between continuing her non-
viable pregnancy or travelling to another country while carrying a dying
foetus, at personal expense and separated from the support of her family, and
to return while not fully recovered; the shame and stigma associated with the
criminalization of abortion of a fatally ill foetus; the fact of having to leave the
baby’s remains behind and later having them unexpectedly delivered to her by
courier; an the State’s refusal to provide her with necessary and appropriate
post-abortion and bereavement care.306
The Committee noted how many of these experiences could have been avoided if
Mellet had not been prohibited from terminating her pregnancy in Ireland.
Furthermore, the Committee also found that Ireland had breached Mellet’s right to
privacy as “the options open to her were inevitably a source of intense suffering”, and

304
Case, para. 2.5.
305
Case, para 7.4.
306
Case, para 7.4.
98
the interference in her decision as to how best cope with her non-viable pregnancy
was unreasonable and arbitrary.307
Lastly, the Committee found that Ireland had violated Article 26 of the ICCPR –
the right to not be discriminated. The Committee considered how under the Irish legal
regime women pregnant with a foetus with a fatal impairment, but who nevertheless
decide to carry the foetus to term, continue to receive the full protection of the public
health care system, and receive such protection even after a miscarriage or delivery of
a stillborn child as they would qualify for post-natal medical attention and
bereavement care.
By contrast, women who choose to terminate a non-viable pregnancy must rely on
their own financial resources and are left entirely outside of the public health system:
they must travel abroad at their own expense, and incur the financial, psychological
and physical burdens that such travel imposes, and are denied much-needed post-
termination care, and bereavement counselling. The Committee considered that such
differential treatment of Mellet “in relation to other similarly situated women failed to
adequately take into account her medical needs and socio-economic
circumstances”.308
Mellet referred in her complaint, how the Irish abortion regulation is inherently
discriminatory as it reduces women to their reproductive capacity by prioritizing the
protection of the “unborn” over the health needs of the woman and her decision to
terminate the pregnancy. Thus, Mellet notes in the complaint how she “was subjected
to a gender-based stereotype that women should continue their pregnancies regardless
of the circumstances, their needs and wishes, because their primary role is to be

307
Case, para 7.8.
308
Case, para 7.11.
99
mothers and self-sacrificing caregivers”.309 The Committee took note of that, but
found a violation of Article 26 based on the discriminatory different treatment
compared to women deciding to not terminate a pregnancy. The Committee also
decided that it would not examine Articles 2(1), 3 and 19 separately.
The decision comes with five separate opinions from which three criticise the
Committee’s view on Article 26 violation, and deem it too narrow or reductionist. For
example, Committee member Yadh Ben Achour echoes Mellet’s complaint and
argues that the prohibition of abortion in Ireland which is “indirectly punitive and
stigmatizing targets women because they are women” and that Mellet had indeed
been a victim of the sexist stereotype.310
Further, Sarah Cleveland, another member of the Committee remained critical of
the view according to which “differences in treatment that are based on biological
differences unique to either men or women cannot be sex discrimination” as,
according to Cleveland, “modern gender discrimination law is not so limited”.
Namely, she explains, non-discrimination means accommodating the fundamental
biological differences between men and women in reproduction so that the unique
needs of each sex are respected and there is no indirect or direct discrimination.311
Committee members Victor Rodriquez Rescia, Olivier de Frouville and Fabian
Salvioli also added in their concurring opinion that the violation of Article 26 “should
have been broader in scope, inasmuch as it also entailed structural discrimination
against the author vis-à-vis men on the basis of sex and gender”.312

309
Case, paras. 3.15 and 3.19.
310
Case, Appendix I, Individual opinion of Committee member Yadh Ben Achour, para. 4.
311
Case, Appendix II, Individual opinion of Committee member Sarah Cleveland, para. 7.
312
Case, Appendix IV, Individual opinion of Committee members Victor Rodriquez Rescia, Olivier de
Frouville and Fabian Salvioli (concurring), para. 11.
100
Whelan v. Ireland
The most recent case regarding abortion from the UN Human Rights Committee
concerned the communication of Siobhan Whelan against Ireland (2017).313 Whelan was in
the 20th week of her pregnancy when on 4 January 2010 she underwent an ultrasound scan in
an Irish hospital. The obstetrician believed that the foetus was affected by holoprosencephaly
(brain malformation). The doctor told Whelan that the foetus would likely die in utero or if
carried to term, the baby would die during labour or very soon after birth. Additionally, the
doctors raised concerns about the formation of the heart, kidneys and other organs. The
obstetrician mentioned how “in another jurisdiction [they] would be offered a termination but
obviously not in this country due to Irish law”.314 Whelan was not given further information,
was not referred to anyone to discuss the diagnosis, the care she would be offered in Ireland
or the possibility of travelling abroad to terminate the pregnancy. Instead, the obstetrician
stated that Whelan “would continue with the pregnancy, attend ante-natal appointments ‘as
normal’ and wait for nature to take course”.315
The brain malformation was confirmed with another scan five days later and the
doctor gave Whelan a report of the scan “in case [they] wanted to travel”. When Whelan
asked where she could go if she did want to “travel”, she was told that there had been good
reports about Liverpool Women’s Hospital. Whelan indicated that she did not discuss it
further as she “felt it was illegal to even discuss this or ask too many questions for fear of
having the door slammed in our faces or of not receiving any help whatsoever”. She was later
also informed over the phone that the foetus also had Patau syndrome and this condition was
“incompatible with life”.316

313
Whelan v. Ireland, CCPR/C/119/D/2425/2014 (2017).
314
Case, para. 2.1.
315
Case, para. 2.1
316
Case, para. 2.2.
101
Whelan decided to terminate the pregnancy so she contacted several crisis pregnancy
agencies to seek information on travelling to the United Kingdom. After several hurdles
Whelan feeling like “a criminal leaving [her] country”, was able to travel to a hospital in
Liverpool where she received an injection that stopped the heartbeat of the foetus. Whelan
gave birth to a stillborn baby at 21 weeks and 5 days.317 She submitted to the Committee that
the Irish abortion law had subjected her to cruel, inhuman and degrading treatment (thus a
breach of Article 7 of the ICCPR), and encroached on her dignity and physical and mental
integrity by denying her the reproductive health care and information she needed and forcing
her to continue carrying a dying foetus, by compelling her to terminate her pregnancy abroad
and subjecting her to intense stigma for terminating her pregnancy.318 Additionally, Whelan
submitted that there had been a violation of Article 17 (right to privacy), Article 19 (right to
information), and of articles 2(1), 3, 26 (rights to equality and non-discrimination).319 She
noted in her application that she had been subjected to gender-based discrimination as she
was stereotyped as “a reproductive instrument whose needs were subordinate to those of her
unborn, non-viable foetus”, and since her health was not endangered by the pregnancy she
was “expected to sacrifice her own mental health and well-being for her dying foetus”.320
The Irish Government rejected all the claims and remained at the position that the
Irish law that denied Whelan from terminating her pregnancy in Ireland was striking a fair
balance between the right to life of a foetus and women’s rights. 321 The Committee
established that “a high level of mental anguish” was caused to Whelan by “a combination of
acts and omissions attributable to the State party”, and thus there had been a violation of
Article 7 (prohibition of torture and degrading treatment).322 The Committee also established

317
318
Case, para. 3.1.
319
320
Case, para. 3.11.
321
322
102
that preventing Whelan from terminating her pregnancy in Ireland caused her mental anguish,
and constituted “an intrusive interference in her decision as to how best cope with her
pregnancy”, thus leading to an “unreasonable interference” with Whelan’s decision. The
latter constituted an “arbitrary interference” in Whelan’s right to privacy and violated Article
17 of the ICCPR.323
Lastly, the Committee analysed whether Ireland had been in breach of Article 26 of
the ICCPR (non-discrimination). The Committee noted Whelan’s claim that she was denied
on the basis of her sex access to medical services that she needed in order to preserve her
autonomy, dignity and physical and psychological integrity, how, in contrast, male patients
and other patients in other situations in Ireland were not expected to disregard their health
needs and travel abroad in relation to their reproductive functions, and how criminalisation of
abortion subjected Whelan to a gender based stereotype that defines women’s primary roles
through maternity and reproduction.324 It also considered, how the differential treatment of
Whelan to other women “who decided to carry to term their unviable pregnancy created a
legal distinction between similarly situated women which failed to adequately take into
account hermedical needs and socioeconomic circumstances and did not meet the
requirements of reasonableness, objectivity and legitimacy purpose”.325Thus, the Committee
concluded that Ireland’s failure provide Whelan with the services she required constituted
discrimination and violated her rights under Article 26.326
Four Committee members wrote an individual opinion. Notably, Committee member
Yadh Ben Achour’s concurring opinion points out how the Committee seemed to have
focussed on the unjustified differential treatment between women from different
socioeconomic groups whereas to Achour’s the heart of the issue is the “disproportionate,

323
324
Case, para. 7.12.
325
Case, para. 7.12.
326
Case, para. 7.12.
103
abnormal and unjust existential burden on women”, i.e all women by “virtue of being
women”.327
3.3 “ALL WOMEN ARE MOTHERS(-TO-BE)” AND “WOMEN ARE
SUFFERING VICTIMS”
I ask in this thesis who the “woman” in human rights law is. One of the stereotypes
that emerges from abortion case-law is what has been termed as “normative motherhood”:
regardless of women’s individual choices or capacities, society ascribes “motherhood” as an
essential attribute of being a woman.328 Normative motherhood in other words means that
“all women, regardless of their actual intention of having children become defined in
important ways by the mere possibility of them becoming mothers”.329 Katherine Franke
suggests another term – “repronormativity”.330 This stereotype appears in the above case-law
in both explicit and implicit ways. One of the explicit expressions is for example the
European Court of Human Rights’ language in its abortion jurisprudence – in many occasions
instead of referring to “women” or even “pregnant women”, the Court prefers using the terms
“mothers-to-be”, or just “mothers”.331 Thus, just as the normative motherhood stereotype
prescribes, – the European Court of Human Rights describes all women through the potential
of motherhood. The harmful impact of such stereotype is however much deeper than what
may seem an erroneous use of language. An excessive focus on motherhood can undermine
women’s full citizenship because if the value of women is perceived to arise solely through

327
Individual opinion of Committee member Yadh Ben Achour (concurring), paras. 5-6.
328
J. E. Hanigsberg, “Homologizing pregnancy and motherhood: a consideration of abortion”, Michigan Law
Review, Vol. 94, No. 2 (1995-1996), referring to M. Fineman’s work p. 374 in footnote 12.
329
Review, Vol. 94, No. 2 (1995-1996), p. 375.
330
K. M. Franke, “Theorizing Yes: An Essay On Feminism, Law, And Desire”, Columbia Law Review, Vol.
101, No. 1 (2001).
331
E.g. in Tysiac v. Poland (para. 107) the Court noted that “while the state regulations on abortion relate to the
traditional balancing of privacy and the public interest, they must be in case of a therapeutic abortion be
assessed against the positive obligations of the state to secure the physical integrity of mothers-to-be.”
104
motherhood, women acquire status only through pregnancy and childbirth.332 Thus, women’s
(biological) capacities are replacing “women” as full human beings and equal members of
society and consequently, women who choose not to mother can come to be seen as
representing anti-maternalism.333 Somewhat paradoxically, however, normative motherhood
does not mean automatically that motherhood is perceived as positive.334
Furthermore, normative motherhood means normativity on two levels: the first level
is the expectation that all women want to become mothers under any circumstances. The
second level is the normativity within the motherhood. As Claudia Malacrida explains:
“Despite the normative belief that motherhood is a natural set of practices common to all
‘proper’ or ‘real’ women, motherhood, like other aspects of femininity, is a set of behaviors,
attitudes and actions that is learned and reproduced by social actors”.335 Therefore, as she
summarises, there exists another role for women to perform – the “ideal motherhood” which
in short means that mothers are ideally expected to be “all things, at all times, to their
dependent children”, which, as Malacrida argues, no woman, however motivated, can
achieve.336 Thus, the normative motherhood stereotype sets women inevitably up for failures
and can thus justify punitive reproductive policies: i.e if a society sees women as mothers(-to-
be), then those women who attempt to deviate from that role will need to accept
consequences (restrictive abortion regulations).
Namely, abortion jurisprudence of the European Court of Human Rights relies on
privacy doctrine which allows balancing between women’s human rights, and what a society

332
44, No. 4 (1994-1995), p. 984 referring to M- F. Fathalla’s work.
333
Review, Vol. 94, No. 2 (1995-1996), p. 375.
334
For example, Julia Hanigsberg gives and example of how employers might act on a presumption that women
are likely to leave their jobs in order to bear and raise children at some point in their work lives and discriminate
them based on such assumption. J. E. Hanigsberg, “Homologizing pregnancy and motherhood: a consideration
of abortion”, Michigan Law Review, Vol. 94, No. 2 (1995-1996), p. 375.
335
C. Malacrida, “Performing motherhood in a disablist world: dilemmas of motherhood, femininity and
disability”, International Journal of Qualitative Studies in Education, Vol. 22, No. 1 (2009), p. 102.
336
105
has constructed as the interests of a foetus.337 To date, the European Court of Human Rights
has neither recognised nor tackled the normative motherhood stereotype in its abortion
jurisprudence. Although showing better understanding of reproductive rights the UN Human
Rights Committee too had shortcomings in anti-stereotyping until the most recent case
Whelan. Unsurprisingly, the CEDAW Committee established in L.C. v. Peru that “the
decision to postpone the surgery due to the pregnancy was influenced by the stereotype that
protection of the foetus should prevail over the health of the mother”.338
The analysed case-law also demonstrates what Lisa M. Kelly has termed in her work
as “innocent suffering narrative” – cases that involve an adolescent girl who has been raped
(emphasis on her sexual innocence), becomes pregnant and with the support of her parents
seeks to terminate the pregnancy and that reinforce narrow conceptions of “reasonable” or
“deserved” abortions.339 In other words this often means that women can access reproductive
health services not because they have human rights to those services, but because they are
able to demonstrate (enough) suffering. For example, the European Court of Human Rights
turned from its privacy doctrine to the prohibition of degrading treatment in two cases. First,
in R.R. v. Poland, where the European Court of Human Rights established that the R.R.’s
treatment by the doctors amounted to degrading treatment under Article 3, and second, in P.
and S. v. Poland, where a minor, who was seeking an abortion after having been raped was

337
Patricia Londoño has criticised the European Court of Human Right’s reliance on Article 8 (right to privacy):
“this exceptionally limited approach marginalises entirely the reproductive rights of women in terms of
substantive human rights protections and is out of keeping with international and European moves in this
regard”. See: P. Londoño, “Redrafting abortion rights under the Convention: A, B and C v. Ireland”, in:
Diversity and European Human Rights. Rewriting Judgments of the ECHR, E. Brems (ed.) (2013).
338
L.C. v. Peru, CEDAW/C/50/D/22/2009 (2011), para. 8.15.
339
L. M. Kelly, “Reckoning with Narratives of Innocent Suffering in Transnational Abortion Litigation”, in:
Abortion Law in Transnational Perspective: cases and controversies, R. J. Cook, J.Erdman and B. Dickens
(eds.) (2014), p. 304.
106
harassed, mistreated by the media and doctors and finally forced to have an abortion – that
she had a legal right to – 500 km away from home.340
As Kelly notes, however, framing cases through the suffering narrative seeks to avoid
“the contested terrains of wanted sex, non-procreative desire, and family discord”.341 This, in
turn, is again also linked to the normative motherhood stereotype, which prescribes roles for
women in both the public and private spheres.342 The special “suffering narrative” is not
exclusive to reproductive rights issues – scholarship on human trafficking has shown how
stereotypes about what a trafficking victim should be (i.e act and look like) create a reality
where only some victims are seem as deserving of rights protection.343
Rachel Camp argues that if cultures and laws link women’s sexuality only to child-
bearing and assume that consent for sex means consent for pregnancy then women are left
with no room to autonomously construct their experiences with pregnancy, and unintended
pregnancy is seen either as an appropriate consequence (punishment) of having sex, or
alternatively the “positive constructions of motherhood and anticipated joys of a resulting
child offset any ‘harm’ an unintended pregnancy may impose”.344 Therefore, Camp rightly
notes that in order to challenge coerced pregnancies there must be a change in our view of
pregnancy itself – meaning that we need to challenge the normatively positive constructions
of pregnancy and motherhood that provide little flexibility.345

340
Columbia Journal of Gender and Law, Vol. 32, No. 1 (2016), p. 75.
341
L. M. Kelly, “Reckoning with Narratives of Innocent Suffering in Transnational Abortion Litigation”, in:
Abortion Law in Transnational Perspective: cases and controversies, R. J. Cook, J. Erdman and B. Dickens
(eds.) (2014), p. 305.
342
343
See e.g.: N. Christie, “The Ideal Victim”, in: From Crime Policy to Victim Policy: Reorienting the Justice
System, E. Fattah (ed.) (1986); M. Lee, “Constructing and Denying Victimhood in Trafficking”, in: Trafficking
and Global Crime Control (2011); J. Srikantiah, “Perfect Victims and Real Survivors: The Iconic Victim in
Domestic Human Trafficking Law”, Boston University Law Review, Vol 87, No. 157 (2007).
344
R. Camp, “Coercing pregnancy”, William and Mary Journal of Women and the Law, Vol. 21 (2015), p. 278.
345
R. Camp, “Coercing pregnancy”, William and Mary Journal of Women and the Law, Vol. 21 (2015), p. 279.
107
Placing women’s actual lived experiences in societies with unequal power distribution
at the centre of all abortion jurisprudence would mean re-theorising abortion restrictions as
tools of coercion, punishment (forcing a woman to be pregnant and give birth) irrespective of
whether a woman was raped or the foetus is malformed is essential for women’s reproductive
rights protection. If needed, the human rights law forums could look for inspiration from the
international criminal law: forced pregnancy is a war crime and a crime against humanity
under international law – the Rome Statute defines forced pregnancy as “the unlawful
confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic
composition of any population or carrying out other grave violations of international law”.346
3.4 BIRTH: “A ‘good birth’ goes beyond having a healthy baby”347
It becomes apparent in the abortion jurisprudence that in discussions concerning
termination of pregnancy the actual lived experiences and life plans of women with unwanted
pregnancies are profusely overlooked. Instead – with some exceptions in very recent case-law
– the centre stage is occupied by a (constructed) conflict between a woman and the foetus in
her body that needs to be protected (from the woman) by a society. In other words, abortion

346
Rome Statute, Article 7, para. 2 (f). In fact, in December 2016, the trial in the case of Prosecutor v. Dominic
Ongwen started. Dominic Ongwen is an alleged senior commander in the Lord’s Resistance Army who is
charged with responsibility for war crimes and crimes against humanity committed in various locations in
Northern Uganda between 2002-2005. Ongwen is the first person in front of the International Criminal Court to
face charges of forced pregnancy (among other charges). The Prosecution’s Pre-Trial Brief provided: “The
value protected by the criminalisation of forced pregnancy is primarily reproductive autonomy”. Thus, we see
an explicit reference to reproductive rights. The Brief further explains that forced pregnancy includes both:
“(en)forced impregnation (pregnancy as a result of rape or of an illegal medical procedure) and (en)forced
maternity (being forced to carry the pregnancy)”. Importantly, the Prosecutor further adds that the act causing
the pregnancy “need not have occurred during the period of woman’s unlawful confinement, nor need be
attributed to the perpetrator of the confinement”. Thus, my reading of this is that the violation in forced
pregnancy is the confinement itself that is not allowing a woman to make decisions about the pregnancy, i.e
about her body. And indeed, the Brief supports my understanding as it notes that in the Confirmation Decision,
the Pre-Trial Chamber ruled: “it is (…) the act of confinement which must be carried out with the required
special intent. Indeed the crime of forced pregnancy does not depend on the perpetrator’s involvement in the
women’s conception; it is only required that the perpetrator knows that the women is pregnant and that she has
been made pregnant forcibly. It is apparent that the essence of the crime of forced pregnancy is in unlawfully
placing the victim in a position in which she cannot choose whether to continue the pregnancy”. See: No.: ICC-
02/04-01/15 Date: 6 September 2016, https://www.icc-cpi.int/CourtRecords/CR2016_06511.PDF.
347
N. Simelela,“A ‘good birth’ goes beyond having a healthy baby”, available at:
http://www.who.int/mediacentre/commentaries/2018/having-a-healthy-baby/en/ (accessed 15 February, 2018).
108
jurisprudence is to a large extent silencing and excluding women’s perspectives and voices,
disregarding or belittling women’s lived experiences.
I now move from case-law concerning access to safe, timely and legal abortion
services to jurisprudence concerning birth and maternal mortality. As I set out at the
beginning of the thesis, I argue that conversations about maternal mortality, birth and
abortion belong together. The World Health Organisation defines maternal death as “death of
a woman while pregnant or within 42 days of termination of pregnancy, irrespective of the
duration and site of the pregnancy, from any cause related to or aggravated by the pregnancy
or its management but not from accidental or incidental causes”. It estimates that each year
about 287 000 women and girls die of maternal causes, and an additional 10 to 15 million
suffer debilitating complications. Research shows that as much as 98% of maternal mortality,
however, is preventable.348
Alicia Ely Yamin’s work is rooted in this evidence and she notes, how “maternal
mortality is not principally a medical problem”, but instead a social, and an issue of political
will.349 Yamin explains that the great majority of women who die as a result of pregnancy-
related complications have lived lives “marked by poverty, deprivation and
discrimination”.350 It is what Yamin calls a “funnel of narrowing choices” which means that
women cannot exercise their agency in a meaningful way whereas a rights-based approach to
women’s health would open “spaces for women to exercise choices and subverting the social-
and power-relations that deny them their full humanity”.351 Yamin summarises this well: the
reason that hundreds of thousands of women and girls are still dying every year is not that

348
Trends in maternal mortality: 1990 to 2015. Estimates by WHO, UNICEF, UNFPA, World Bank Group and
the United Nations Population Division.
349
350
351
A. E. Yamin, “Will we take suffering seriously; reflections on what applying a rights framework to health
means and why we should care”, Health and Human Rights, Vol. 10, No. 1, pp. 45-63.
109
“we do not know how to save them”, but instead it is because “women’s lives are not valued,
because their voices are not listened to, because they are discriminated against and excluded
in their homes and communities – and by health care systems that do not prioritize their
needs”.352
In short, I argue that broadening the focus from individual issues and instead
analysing abortion, birth and maternal mortality cases together, next to one another, can help
reveal stereotypes threading through the jurisprudence. Furthermore, measuring maternal
mortality essentially means counting the number of deaths, which in its seriousness can help
shape the way we understand the importance of guaranteeing safe and legal access to
abortion, and obstetric-antenatal care. Maternal mortality is not a result of random, isolated
unfortunate incidents, but echoing Yamin’s words, it starts with how we treat women who
wish to terminate an unwanted pregnancy, or who give birth. Just as the right to terminate an
unwanted pregnancy and women’s full and unwaivering control over the circumstances of
delivering a wanted child are fundamental parts of reproductive rights.
However, although all of this might sound as a straightforward conviction, it is not
mirrored by the practice and case-law regarding women’s birth experiences. I argue
elsewhere together with Yamin, how antenatal and obstetric care stand out as in no other area
of medicine are the recipients of interventions (women) so often not the actual beneficiaries
of that care or active agents in the design of the kind of care they wish to receive.353 In other
words, pregnancy (whether wanted or unwanted) has been socially constructed to
instrumentalise women and strip them of some human rights, control and voice. Such
instrumentalisation happens when women’s identity is defined through childbearing, the
result of the normative notion of motherhood. The idea that all women desire and are

352
A. Yamin, “Towards transformative accountability: applying a rights-based approach to fulfill maternal
353
110
destined for motherhood inevitably leads to disciplining women’s bodies during pregnancy
and birth-related care in a way that is deemed by the society both necessary and natural.
Consequently, women who dare deviate from, and challenge these socially constructed ideas
of motherhood – “that self-effacing, altruistic condition that requires ‘mothers’ or (…)
pregnant women to do whatever is necessary” – are seen as villains for not fulfilling (or
fulfilling them with gaps and errors) the roles for which they have been assigned.354
Thus, gender stereotypes play an important role in the over-medicalisation of
women’s bodies during pregnancy and childbirth.355 Over-medicalisation is a possible side-
effect and a tool for silencing and instrumentalisation as it can reduce women to objects
without agency, causing a neglect of women’s differential needs in pregnancy and
delivery.356
To date, the European Court of Human Rights has discussed human rights regarding
birth in five cases, all decided between 2011-2016. Additionally, there are two pending
cases.357 In this chapter I also analyse a landmark case on maternal mortality from the United
Nations CEDAW Committee – the case of Alyne da Silva Pimentel Teixeira v. Brazil – to
showcase anti-stereotyping as part of human rights analysis.

354
S. Halliday, Autonomy and Pregnancy. A Comparative Analysis of Compelled Obstetric Intervention (2016),
p. 212.
355
K. Martin, “Giving Birth Like a Girl”, Gender & Society, Vol. 17, Issue 1, p. 55 (2003). Legal scholarship
has not given enough attention to childbirth, but this is compensated by an expansive sociological work. For
example, see: C. Malacrida, T. Boulton, “The best laid plans? Women’s choices, expectations and experiences
in childbirth”, Health, Vol 18, Issue 1 (2014), J. C. A. Shaw, “The Medicalization of Birth and Midwifery as
Resistance”, Health Care for Women International Vol. 34, Issue 6 (2013).
356
J. Erdman, “Bioethics, Human Rights, and Childbirth”, Health and Human Rights Journal, Vol. 17, No. 1
(2015), p. 47.
357
In Kosaitė-Čypienė and Others v. Lithuania the applicants complain about their inability to obtain assistance
of a health professional at childbirth at home, and the ECtHR gave notice of the application to the Lithuanian
Government and put questions to the parties under Articles 34 (right of individual application) and 8 (right to
respect for private and family life) of the ECHR. In the second pending case, Pojatina v. Croatia the applicant
submits that Croatian law dissuaded health professional from assisting her when giving birth at home. The
ECtHR gave notice of the application to the Croatian Government and put questions to the parties under Articles
8 (right to respect for private and family life) and 13 (right to an effective remedy) of the ECHR.
111
3.4.1 Birth jurisprudence of the European Court of Human Rights
The European Court of Human Rights jurisprudence concerning women and birth
from the starts with Ternovszky v. Hungary, a case which concerned a woman who wished to
give birth at home, but was unable to find a medical professional to assist her in that as the
doctor or midwife would have faced the risk of being convicted for a regulatory offence. In
that case the European Court of Human Rights again did not display a sufficiently advanced
level of reproductive rights-based analysis, but nevertheless found a breach of right to
privacy.
However, five years later, Dubska and Krejzova v. the Czech Republic changed its
position, and found no violation of human rights in a situation where women had not been
able to give birth at home. The Court disregarded Dubska’s and Krejzova’s negative previous
experiences with facility-based birth, and the risk of obstetric violence. Interestingly, the
dissenting judges did indeed underscore, how patronising attitudes among health personnel
should not be taken lightly, and how the Court had ignored the international trends towards
allowing assisted home births.
Although in the rest of the three cases the Court found a violation, it still lacked a
deeper understanding of how power dynamics operate both in a society more broadly and in
medical settings more specifically, and how stereotypes impact women’s birth experiences.
For example, the dissenting opinion of Hanzelkovi v. Czech Republic reveals disturbing
under-currents as Judges Zupančič and Yudkivska write how in their opinion the majority
“interferes with the expert medical considerations, which is something that the Court is not
equipped to do”, and how the applicant – a woman who has a human right to reproductive
(obstetric) care - “was perfectly aware of Czech medical procedures and had agreed to abide
112
by the rules of the hospital on being admitted to it, could not reasonably expect that her
escape would be tolerated in view of the above-mentioned risks”.
Ternovszky v. Hungary
In Ternovszky v. Hungary the applicant Anna Ternovszky wished to give birth at
home. 358 A decree issued by the Hungarian Government, however, provided that any health
professional assisting a home birth would face the risk of being convicted for a regulatory
offence. While there was no legislation banning home birth per se in Hungary, Ternovszky
submitted that since this decree prevented her from getting professional assistance in case she
did indeed opt for home birth, there was a discriminatory interference with her right to
respect for private life – she relied on Article 8 (right to privacy) read in conjunction with
Article 14 (non-discrimination).359
The Court analysed only Article 8, and affirmed that private life under Article 8
“incorporates the right to respect for both the decisions to become and not to become a

358
Ternovszky v. Hungary, Application no. 67545/09 (2011).
359
Case, para. 12.
113
parent”, and “the notion of freedom implies some measure of choice as to its exercise”.360
The Court continued:
Therefore the right concerning the decision to become a parent includes the
right of choosing the circumstances (emphasis added) of becoming a parent.
The Court is satisfied that the circumstances of giving birth incontestably form
part of one’s private life. 361
When analysing whether there had been an interference with Anna Ternovszky’s
private life, the Court noted:
For the Court, legislation which arguably dissuades such professionals
who might otherwise be willing from providing the requisite assistance
constitutes an interference with the exercise of the right to respect for private
life by prospective mothers such as the applicant” and “the right to choice in
matters of child delivery includes the legal certainty that the choice is lawful
and not to subject sanctions, directly or indirectly.362
The Court commented on the states parties’ deference:
It is true that, in this regard, the State has a wide margin of
appreciation; however, the regulation should ensure a proper balance
between societal interests and the right at stake. In the context of home
birth, regarded as a matter of personal choice of the mother, this implies
that the mother is entitled to a legal and institutional environment that
enables her choice, except where other rights render necessary the
restriction thereof. For the Court, the right to choice in matters of child

360
Case, para. 22.
361
Case, para. 22.
362
Case, paras. 22 and 24.
114
delivery includes the legal certainty that the choice is lawful and not
subject to sanctions, directly or indirectly.363
However, the Strasbourg Court also noted how “it is debated in medical science
whether, in statistical terms, homebirth as such carries significantly higher risks than giving
birth in hospital”.364 The Court concluded that the “lack of legal certainty and the threat to
health professionals limited the choices of the applicant considering home delivery”, and
therefore the right to respect for private life (Article 8).365 The Court did not comment on
Article 14, and concluded: “The foregoing considerations are sufficient to enable the Court to
find that there has been a violation of Article 8 of the Convention”.366
In their concurring opinion Judges Sajó and Tulkens add: “as the expectant mother
has to interact during the period of pregnancy with authorities and regulated professionals
who act as figures of some kind of public authority vis-à-vis the pregnant person, who is
understandably very vulnerable because of her dependency” there is a need for “a positive
regulatory environment, which will produce the legal certainty providing the right to choose
with effectiveness”, and how “without such legal certainty there is fear and secrecy, and in
the present context this may result in fatal consequences for mother and child”.367 The
concurring opinion also adds that “adequate legal security” cannot be “equated with
liberalising home birth as such” as that is “obviously a matter of balancing in view of
available (currently disputed) medical knowledge, the health of the mother and the child, the
structure of health care services, etc”.368

363
Case, para. 24.
364
Case, para. 24.
365
Case, para. 26.
366
Case, para. 27.
367
Joint Concurring Opinion of Judges Sajó and Tulkens.
368
Joint Concurring Opinion of Judges Sajó and Tulkens.
115
Konovalova v. Russia
The case of Konovalova v. Russia involved Yevgeniya Alekseyevna (the applicant)
who submitted to the ECtHR that she had been compelled to give birth in front of medical
students without her consent. 369 On the morning of 23 April 1999, Yevgeniya Alekseyevna
was taken to the hospital after her contractions had started. After her admission, she was
handed a booklet issued by the hospital, which entailed among other things a notice warning
patients about the clinical teaching that takes place at the hospital.
The notice read: “We ask you to respect the fact that medical treatment in our hospital
is combined with teaching for students studying obstetrics and gynaecology. Because of this,
all patients are involved in the study process”. 370 A doctor examined Alekseyevna and
established that she was 40 weeks pregnant, but there were complications because she had
excess amniotic fluid in the amniotic sac. The doctor noted that Alekseyevna’s contractions
were premature and that she was suffering from fatigue, so she was put in a drug-induced
sleep for 2 hours.371
The the doctors then gave her anti-contraction medication to suppress premature
labour and in the afternoon of the same day she was informed that her delivery was scheduled
for the next day and that medical students would be present. She was again put in a drug-
induced sleep. The next day the frequency and intensity of her contractions increased and the
doctors found traces of meconium in her amniotic fluid, which indicated there was a risk that
the foetus suffered from hypoxia.
The doctors examined Alekseyevna and the foetus and found their health satisfactory.
The doctors decided to conduct a vaginal delivery. According to Alekseyevna, she objected
to the presence of medical students in the delivery room.372 However, there were still medical

369
Konovalova v. Russia, Application no. 37873/04 (2015).
370
Case, para. 7.
371
Case, paras. 9-10.
372
Case, paras. 10-15.
116
students present when she gave birth later that day. Alekseyevna submitted to the European
Court of Human Rights that the unauthorised presence of medical students at her birth
violated Article 8 of the Convention (right to privacy). She explained that she had not given
written consent, and the notification about the presence of medical students had been belated,
resulting in her inability to choose a different hospital. She explained that she had only
learned of the presence of the students at 3pm on the day she was admitted to the hospital, but
at that time she was nearly unconscious, had no access to phone to contact her relatives to
arrange to give birth elsewhere, and given her physical condition was unable to leave the
hospital on her own.373
The Russian Government submitted that there had been no interference with her
rights as “the students’ presence did not amount to “an interference” since she had implicitly
given her consent in this respect and had never objected to her treatment at the hospital.374
The Government further argued that the students were not involved in the medical procedure
themselves, but they were only spectators, and even if there was an interference, it was lawful
and pursued “the legitimate aim of providing for the needs of the educational process”.375
The Court first established that Article 8 encompasses the physical integrity of a
person and: “given the sensitive nature of the medical procedure which the applicant
underwent (…), and the fact that the medical students witnessed it and thus had access to the
confidential medical information concerning the applicant’s condition (…), there is no doubt
that such an arrangement amounted to “an interference”.376 The ECtHR further analysed
whether the interference was in accordance with the law and found that although the

373
Case, para. 37.
374
Case, para. 36.
375
Case, para. 36.
376
Case, para. 41.
117
domestic Health Care Act allowed medical students to assist in medical treatment the law did
not contain any safeguards protecting patients’ private lives.377
The European Court of Human Rights concluded therefore: “the absence of any
safeguards against arbitrary interference with patients’ rights in the relevant domestic law at
the time constituted a serious shortcoming”.378 Furthermore, the ECtHR argued how “the
applicant learned of the presence of medical students during the birth the day before.
Between two sessions of drug-induced sleep, when she had already been for some time in a
state of extreme stress and fatigue (…)”, and thus “it is unclear whether the applicant was
given any choice regarding the participation of students on this occasion and whether, in the
circumstances, she was at all capable of making an intelligible informed decision”.379
The ECtHR further noted that “the domestic courts did not take into account other
relevant circumstances of the case, such as the alleged insufficiency of the information
contained in the hospital’s notice, the applicant’s vulnerable condition during notification
(…), and the availability of any alternative arrangements in case the applicant decided to
refuse the presence of the students during the birth”.380
Thus, the Court concluded that Russia had not complied with the lawfulness
requirement and accordingly there was a breach of Article 8 (right to privacy). 381
Alekseyevna also submitted that Article 3 of the convention (prohibition of torture and
degrading treatment) had been breached as the management of the birth was deficient and her
delivery had been intentionally delayed, but the ECtHR found this complaint unsubstantiated,
and rejected it.382

377
Case, para. 44.
378
Case, para. 45.
379
Case, para. 47.
380
Case, para. 48.
381
Case, paras. 49-50.
382
Case, paras. 51-53.
118
Hanzelkovi v. the Czech Republic
This case concerned Eva Nolčová (the first applicant, born in 1977) and her son
Miroslav Hanzelka (the second applicant, born in 2007). 383 Eva Nolčová had had regular
medical check-ups during her pregnancy and attended ante-natal classes at the hospital. Prior
to giving birth she had expressed, among other things, that she wishes to leave the maternity
ward as soon as possible provided that there were no complications.384 On 24 October 2007
she contacted a paediatrician, S., who agreed to take charge of her future child and visit both
of them at their home after they will have been discharged from the maternity ward. S. also
informed Nolčová that she would be away the following weekend. Nolčová told her that she
intended to leave the hospital “earlier” without explaining this further. The paediatrician
subsequently stated that it had not been her understanding that Nolčová wanted to leave the
hospital a few hours after the birth.385
Nolčová gave birth to her son, the second applicant on 26 October 2007 at the
hospital. It was a natural and spontaneous delivery with no complications. As the applicants
did not have any health problems and the Apgar score of the second applicant was the highest
possible, Nolčová decided to, despite meeting opposition from the medical team, leave the
hospital the same day.386
After the applicants had left the hospital, the staff informed the police, this was
standard practice in “situations where a patient left hospital prematurely without the doctor’s
consent and this could have repercussions on his or her health”.387
The paediatrician S. then contacted the hospital, and the hospital staff “found it
regrettable that the first applicant had not expressed her wish to leave the hospital only hours
after the birth during the ante-natal classes” as, had she done so, “the staff would have

383
Hanzelkovi v. the Czech Republic, Application no. 43643/10 (2015).
384
Case, para. 6.
385
Case, para. 7.
386
Case, para. 8.
387
Case, para. 9.
119
recommended that she obtain a personal care plan for the newborn baby and secure
agreement from the paediatrician (…) whereupon her decision would have been accepted”.388
The social services were also informed of the situation at the request of the social welfare
authority a doctor from the hospital drew up a note that said “given the short period of time
since the birth, the health and potentially the actual life of the child [would] be at risk if he
[were] deprived of hospital care”.389
Based on this note a court granted the welfare authority the right to take the second
applicant to the care of the hospital as an interim measure.390 Thus, in the evening of October
26th 2007 a court bailiff and a social worker accompanied by police officers went to the
applicants’ house and explained to the child’s father that the first applicant could go to the
hospital with the second applicant. The child’s father refused to take them there and
consequently an emergency medical team was summoned. After examining the newborn
baby, the doctor observed that he had no health problems, but “agreed with the others that for
the purposes of implementing the interim measure the mother and child would be taken back
to the hospital in the ambulance”.391 The baby was examined again art the hospital and he did
not have any health problems, but the applicants were made to remain at the hospital for two
days with no medical acts being carried out. Eva Nolčová refused neonatal screening and
vaccination of the newborn and both applicants were released on 28 October 2007 after
Nolčová had signed the form refusing further medical treatment.392
The applicants submitted to the ECtHR that ordering the second applicant’s return to
hospital a few hours after his birth had been neither lawful nor necessary and thus there had
been a breach of the right to respect for private and family life (Article 8).393 The applicants

388
Case, para. 9.
389
Case, para. 12.
390
Case, paras. 13-14.
391
Case, para. 15.
392
Case, para. 16.
393
Case, para. 42.
120
argued that their case illustrated a “general problem of obstetrical practice in the Czech
Republic – which placed the emphasis on hospital care – and the prevalence of an
authoritarian attitude on the part of doctors”.394
The Court first established whether there had been an interference with the right. The
Czech Government argued that there had not been interference under Article 8, since the
applicants “had never been physically separated and had not been subjected to any medical
intervention”.395 The Court found that the applicants’ complaint fell within Article 8 since the
“decision to admit the second applicant to hospital against the express will of his parents,
resulting in the admission to hospital of the first applicant, who did not want to leave her
baby alone” did concern the applicants’ private and family life. The Court emphasised how
“neither the brief length of the stay in hospital nor the fact that the applicants were not
subjected to any medical intervention there should affect its finding that the situation of
which they complain amounted to an interference with their right to respect for their private
and family life”.396
The Court then analysed whether the interference had been justified – in accordance
with the law and necessary. It found that there was a legal basis for the situation and there
was a legitimate aim – the protection of the health and rights of the second applicant.397 As to
the necessity, the Court found that “taking of a newborn baby into care at the moment of its
birth is an extremely harsh measure” and thus: “there must be extraordinarily compelling
reasons before a baby can be physically removed from its mother, against her will,
immediately after birth as a consequence of a procedure in which neither she nor her partner
has been involved”.398

394
Case, para. 56.
395
Case, para. 66.
396
Case, para. 67.
397
Case, paras. 69-71.
398
Case, para. 72.
121
The Court established that in such “delicate matters the imminent danger should be
actually established”.399 Although the “conduct of the first applicant could have aroused
concern among the hospital staff”, the interim measure relied on “a general risk, without
referring to concrete factors specific to the applicants’ situation” and thus the domestic court
“should have examined whether some less intrusive interference in the applicants’ family life
at such a critical point in their lives, was not possible”.400 Consequently, the Court found that
the Czech Government had exceeded the national margin of appreciation. The interference
had been disproportionate and there had been a violation of Article 8.401
The decision comes with a dissenting opinion that deserves attention. Judges
Zupančič and Yudkivska open the dissent with: “We are sorry not to be able to agree with the
majority judgment in this case. We feel that the substance of the judgment interferes with the
expert medical considerations, which is something that the Court is not equipped to do”.402
The dissent continues: “The first applicant, who was perfectly aware of Czech medical
procedures and had agreed to abide by the rules of the hospital on being admitted to it, could
not reasonably expect that her escape would be tolerated in view of the above-mentioned
risks”.403 Furthermore, the two dissenting judges argue:
The problem we perceive is that the mother’s departure from the hospital,
whatever her personal reasons for doing so, did not affect simply or even
primarily her own well-being (…). However, the mother’s unexpected
departure after delivery affected the well-being of another person. We do not
believe that a woman, simply by virtue of being the newborn’s mother, has the

399
Case, para. 73.
400
Case, paras. 75-78.
401
Case, paras. 79-80.
402
Dissenting Opinion of Judges Zupančič and Yudkivska.
403
122
automatic right – despite clear medical contraindications – to put at risk the
well-being, and perhaps even the survival, of the newborn child”.404
The judges add that the newborn child “cannot be captive to his or her mother’s
preferences”. The dissent also underscores that the Court is not in a position to “assess
potential medical problems and therefore in a position to decide whether the order to return
the second applicant to the hospital to protect his well-being ‘[was] disproportionate in [its]
effects on the applicants’ potential for enjoying a family life as from the birth of the second
applicant’”.405 The dissent asks “what the reaction of this Court would have been if the child
had developed certain post-natal problems”.
Lastly, the dissent notes that “premature departure from the obstetrics department” is
not permissible just because home birth with the help of a midwife is permissible. Judges
Zupančič and Yudkivska explain: “For obvious reasons, the two situations are incomparable.
The role of the trained obstetrics nurse (the midwife) is not over with the delivery as such.
She accompanies the mother and child for a few days after the delivery and is trained to
recognise the immediate need for help of a neonatal paediatrician and the need for a transfer
to hospital”.406
Korneykova and Korneykov v. Ukraine
This case concerned Viktoriya Yuryevna Korneykova.407 On 16 January the police
detained her on suspicion of robbery. On the day of detention, Korneykova was five months
pregnant. On May 22 2012 she was admitted to the hospital where she gave birth to a baby.
Korneykova submitted to the Court that three female security officers guarded her in the
hospital and stayed on the maternity ward during the delivery. Moreover, Korneykova also

404
405
406
407
Korneykova and Korneykov v. Ukraine, Application no. 56660/12 (2016).
123
submitted that she had been continuously shackled to either her hospital bed or to a
gynaecological examination chair – the shackles were only removed during the delivery.408
She argued that the shackling breached Article 3 of the ECHR. The Ukrainian Government
disputed this and provided that Korneykova had not been shackled to her bed while staying in
the hospital, and she had failed to provide any evidence.
The Court found that based on the evidence it had at hand, it was sufficiently
established that Korneykova had been subjected to continuous shackling in the maternity
hospital. The Court added that there had been no risk of Korneykova “behaving violently or
attempting to escape”, and the police or the hospital staff never alleged that she had been
aggressive.409 The Court also noted, how Korneykova’s “unjustified shackling continued
after the delivery, when she was particularly sensitive”.410 Furthermore, the Court held that
since Korneykova was guarded by three guards at all times this measure was already “severe
enough to respond to any potential risks”.411 Thus, in conclusion the Court established: “in
the circumstances of the present case, where the impugned measure was applied to a woman
suffering labour pains and immediately after the delivery, it amounted to inhuman and
degrading treatment”.412
Dubska and Krejzova v. the Czech Republic
The next case to my analysis of birth-related jurisprudence is Dubska and Krejzova v.
the Czech Republic in which the factual circumstances were similar, but the outcome
opposite to Ternovszky.413 In Dubska and Krejzova, the two applicants, Šárka Dubská and

408
Case, paras. 13-14.
409
Case, para. 112.
410
Case, para. 113.
411
Case, para. 114.
412
Case, para. 115.
413
Dubska and Krejzova v. the Czech Republic, Applications nos. 28859/11 and 28473/12 (2016).
124
Alexandra Krejzová, wished to give birth at home, but this wish was met with the state’s
denial to offer the midwife service in a private home.
Šárka Dubská gave birth to her first child at the hospital in 2007 without any
complications. However, according to her, during the birth the medical personnel was urging
her to agree to undergo various kinds of medical intervention even though she had expressly
stated her wish not to be subjected to any unnecessary medical treatment. She was also forced
to give birth in a position she did not find comfortable. She wanted to leave the hospital a few
hours after the birth as both she and the baby were healthy, but the doctor ordered her to stay
in the hospital.414 In 2010 Dubská became pregnant for the second time. This pregnancy was
free from complications and since she considered that giving birth in a hospital had been
stressful for her, she decided to give birth at home and searched for a midwife to assist at the
birth. However, she was unable to find a midwife willing to assist her with a home birth, so
Dubská gave birth to her son alone at home.415
The second applicant, Alexandra Krejzová, had two children who had been born at
home in 2008 and 2010 with the assistance of a midwife (without any authorisation from the
state). Krejzová explained that before deciding to give birth at home, she had visited several
hospitals which had all refused her requests to deliver the baby without any medical
intervention that was not strictly necessary. They had also refused to agree to her wish for
uninterrupted contact with the baby from the moment of birth, as the hospitals’ regular
practice was to take the child away from the mother immediately after the birth to be weighed
and measured and for further medical observation for a period of two hours.
At the time of the application to the European Court of Human Rights Krejzová was
pregnant again. The pregnancy was free from complications and she wished to give birth at
home, but was unable to find a midwife willing to assist because of the risk of a heavy fine if

414
Case, para. 9.
415
Case, para. 10.
125
medical services were provided without authorisation.416 Thus, Krejzová gave birth to a child
in a maternity hospital where according to her, not all her wishes were respected: despite the
fact that both she and the child were healthy and that no complications had occurred during
the birth, they had to stay in the hospital for seventy-two hours, the newborn baby was
separated from Krejzová after the birth, and before leaving the maternity hospital the remains
of the child’s umbilical cord had been cut off despite her wishes to the contrary.417
Accordingly, the applicants submitted that the right to respect for their private lives
(Article 8) had been violated. The Court reiterated what it had said in Ternovszky: “the
circumstances of giving birth incontestably form part of one’s private life for the purposes of
this provision”.418 Additionally the European Court of Human Rights expanded on this:
(…) while Article 8 cannot be interpreted as conferring a right to
give birth at home as such, the fact that it is impossible in practice for
women to be assisted when giving birth in their private home comes
within the scope of their right to respect for their private life and
accordingly of Article 8. Indeed, giving birth is a unique and delicate
moment in a woman’s life. It encompasses issues of physical and moral
integrity, medical care, reproductive health and the protection of health-
related information. These issues, including the choice of the place of
birth, are therefore fundamentally linked to the woman’s private life and
fall within the scope of that concept for the purposes of Article 8 of the
Convention.419
When analysing the legitimate aim of the interference the Court found “that there are
no grounds for doubting that the Czech State’s policy of encouraging hospital births (…) was

416
Case, paras. 17-19.
417
Case, para. 23.
418
Case, para. 162.
419
Case, para. 163.
126
designed to protect the health and safety of the mother and the child during and after
delivery”.420 Krejzová, however, maintained that the “monopolisation of hospital care did not
represent any safety benefit for newborns but actually increased the risks for the mother,
including the risk of obstetric violence, and that home births did not have any adverse impact
on perinatal mortality”.421
The Court constructed that, in this case, it had to decide whether the fact that it was
impossible in practice to be assisted by a health professional during a home birth struck a fair
balance between the applicants’ right to respect for their private life (Article 8), and the
interest of the State in protecting the health and safety of the child and of the mother, and
whether introducing legislation that did not allow such assistance overstepped the margin of
appreciation.422 The Court found that “while the question of home birth does not as such raise
acutely sensitive moral and ethical issues (…) it can be said to touch upon an important
public interest in the area of public health”.423 It established that the margin of appreciation to
be afforded to the national authorities must be a wide one.424
Thus, the Court supported the Government’s argument that the risk for mothers and
newborns is higher in cases of home births than in cases of births at maternity hospitals and
that “even if a pregnancy proceeds without any complications and can therefore be
considered a “low-risk” pregnancy, unexpected difficulties can arise during the delivery
which would require immediate specialist medical intervention, such as a Caesarean section
or special neonatal assistance”.425 In conclusion, the Court found that the interference with

420
Case, para. 172.
421
Case, para. 100.
422
Case, para. 180.
423
Case, para.181.
424
Case, para. 184.
425
Case, para. 186.
127
the applicants’ right to respect for their private life was not disproportionate and, accordingly,
there had been no violation of Article 8.426
The decision has a dissenting opinion written by Judges Sajó, Karakas, Nicolaou,
Laffranque and Keller. The dissent criticized the blanket ban on home births as the Czech law
de facto prevents home births and has a “chilling effect on mothers wishing to give birth at
home”.427 Furthermore, the dissent referred to the “broader context” of obstetric services in
Czech Republic that is characterized by “the widespread dissatisfaction with the failure to
respect women’s choices during childbirth in Czech hospitals and the economic dimension of
the obstetric services provided”, and to the previous case-law regarding Czech Republic that
serve as “worrying signs”.428
The dissenting judges underscored how “patronising attitudes among health personnel
should not be taken lightly, as they may constitute a violation of an individual’s right to self-
determination”. 429 Furthermore, the dissent noted that the Court “did not consider the
international trends towards assisted home births and the efforts made to regulate
midwifery”.430 In conclusion, the dissenting judges emphasised that providing for “only one
option for giving birth, namely in hospital, cannot be viewed as proportionate and constitutes
(…) an unnecessary interference with women’s rights under Article 8”.431
3.4.2 Maternal mortality case of the United Nations CEDAW Committee
Alyne da Silva Pimentel Teixeira v. Brazil
To this date, there has only been one case from a transnational human rights law
forum that frames maternal mortality as a human rights violation. The author of the

426
427
Dissenting opinion, para. 11.
428
Dissenting opinion, paras. 13-18.
429
430
431
128
communication to the CEDAW Committee is Maria de Lourdes da Silva Pimentel, mother of
Alyne (deceased).432 Alyne da Silva Pimentel Teixeira was a Brazilian woman of African
descent, born in 1974.
In 2002 on November 11th da Silva Pimentel Teixeira went to a health centre
suffering from severe nausea and abdominal pain. She was in her sixth month of pregnancy.
The attending doctor prescribed some medicine against nausea, vitamins and a local
medication for vaginal infection. The doctor additionally scheduled blood and urine tests to
be conducted in 2-days-time, on 13 November 2002, and sent da Silva Pimentel Teixeira
home. She started taking the prescribed medicine , but her condition worsened considerably.
On 13 November da Silva Pimentel Teixeira’s accompanied by her mother, Maria de
Lourdes da Silva Pimentel, went to the health centre in order to see if the obstetrician-
gynaecologist could examine her before the scheduled urine and blood tests. She was
examined and admitted to the health centre. The ultrasound confirmed that there was no
foetal heartbeat, so she was given medication to induce the labour, and da Silva Pimentel
Teixeira gave birth to a still-born foetus. She became disoriented immediately afterwards.
About 14 hours after the delivery da Silva Pimentel Teixeira underwent a surgery to remove
parts of the placenta and afterbirth after which her condition worsened (severe
haemorrhaging, vomiting blood, low blood pressure).
She was given antibiotics and the doctors told her mother that Alyne da Silva
Pimentel Teixeira’s symptoms were consistent with those of a woman who had never
received prenatal care and that she needed a blood transfusion. The health centre contacted
hospitals and the only hospital that had room for her refused to use its only ambulance to
transport her at that hour. Alyne da Silva Pimentel Teixeira’s family was unable to secure a
private ambulance and consequently she waited for 8 hours in a critical condition.

432
Alyne da Silva Pimentel Teixeira v. Brazil, CEDAW/C/49/D/17/2008 (2011).
129
When she finally arrived at the hospital she was hypothermic, had acute respiratory
distress, and presented a clinical picture compatible with disseminated intravascular
coagulation. Her blood pressure dropped to zero and she had to be resuscitated. She was
placed in a makeshift area in the emergency room hallway because there were no available
beds. The medical attendants did not bring her medical records from the centre to the
hospital, and when her mother went to bring them herself she was questioned and had to wait
for them.
Alyne da Silva Pimentel Teixeira died in the evening of November 16. An autopsy
found the official cause of death to have been digestive haemorrhage and according to the
doctors this had resulted from the delivery of the stillborn foetus. The doctor at the health
centre told da Silva Pimentel Teixeira’s mother that the foetus had been dead for several days
already and that this had caused Alyne’s death.433 Lourdes da Silva Pimentel submitted that
Brazil violated da Silva Pimentel Teixeira’s right to life and health under Articles 2 and 12 in
conjunction with Article 1 of CEDAW as it did not ensure appropriate medical treatment in
connection with pregnancy and did not provide timely emergency obstetric care – thus
infringing the right to non-discrimination based on gender, race and socio-economic
background.
The CEDAW Committee rejected Brazil’s submission that Alyne da Silva Pimentel
Teixeira’s death cannot be framed as a “maternal death” as the cause was digestive
haemorrhage. Instead, the Committee confirmed that the sequence of events indicates that da
Silva Pimentel Teixeira’s death “was indeed linked to obstetric complications related to
pregnancy”.434
The Committee also noted how access to quality medical care during delivery was a
“systematic problem in Brazil” and how the lack of appropriate maternal health services that

433
Alyne da Silva Pimentel Teixeira v. Brazil, CEDAW /C/49/D/17/2008, paras. 2.1-2.14.
434
Case, para. 7.3.
130
“clearly fails to meet the specific distinctive health needs and interests of women not only
constitutes a violation of article 12, paragraph 2 (…), but also discrimination against women
under article 12, paragraph 1, and article 2 (…).”435 The Committee established that Ms da
Silva Pimentel Teixeira had been “discriminated against, not only on the basis of her sex, but
also on the basis of her status as a woman of African descent and her socio-economic
background”.436
3.5 “WOMEN ARE DANGEROUS MOTHERS-TO-BE” AND “WOMEN ARE
INCAPABLE OF MAKING AUTONOMOUS CHOICES”
Reading abortion jurisprudence together with birth jurisprudence in one analytical
framework that asks about narrative construction and women’s voices reveals a more specific
dimension of the “normative motherhood” stereotype: “mothers-to-be are
dangerous/subversive”, and thus (potential) motherhood needs to be “measured” and
“monitored” early on.
Constructing such false conflict between a “dangerous/subversive woman”, and her
newborn baby starts with separating a woman from her body, and forming a conflict between
her and potential life (foetus).437 For example, as seen above the European Court of Human
Rights framed abortion as a conflict between the unborn and the woman in Tysiac v. Poland
(“the woman’s right to respect for her private life must be weighed against other competing
rights and freedoms invoked including those of the unborn child”), and has since then not

435
Case, para 7.6.
436
Case, para 7.7.
437
Linda Layne’s work on pregnancy loss is also relevant for my argument. Layne writes about a woman-
centered health care approach to pregnancy loss, and concludes: “Women who labor deserve to be treated with
dignity regardless of whether their labor will result in a live birth”. Layne argues that information pregnancy
loss (how common it is, what are the physical/emotional implications) should be part of pre-natal/reproductive
healt care. Although I have some reservations about to the extent of what Layne considers necessary
(“pregnancy loss plans”) her argument is useful for putting women’s lived experiences with birth and pregnancy
into focus to substitute mainstream narratives where women are defined through perfect motherhood and foetal
stories. See: L. Layne, “Designing a Woman-Centered Health Care Approach to Pregnancy Loss: Lessons from
Feminist Models of Childbirth”, in: Reproductive Disruptions: Gender, Technology, and Biopolitics in the New
Millennium, M. C. Inhorn (ed.) (2009), p. 94.
131
reconsidered it, opting instead to remain loyal to what Samantha Halliday terms as the
“separate entities pregnancy model”: the pregnant woman and the foetus are seen as distinct
entities, this, as Halliday criticises, marginalises women and makes conflict between the
foetus and the woman “almost inevitable”.438 This “automatic conflict” travels together with
every woman to her obstetric care, and birth experiences– irrespective of whether their
pregnancy is wanted or not. This can be seen above in the Dubska and Krejzova case
concerning home birth where a woman’s wish to give birth in an environment chosen by her
is overridden by the “potential threat to the newborn”, or in the Hanzelkovi case, where the
dissent constructed the applicant through her “intolerable escape”, and noted, how a newborn
child “cannot be captive to his or her mother’s preferences”.
Camilla Pickles argues for a relational view of pregnancy that is neither the single-
entity nor the separate-entities approach. 439 Pickles explains how the “not-one/not-two
approach requires that pregnant women are viewed as more than one but do not constitute
two, as a result of the connection between the pregnant woman and the unborn”, and how
such approach recognises women’s interests in their unborn which therefore also includes the
decision to continue with pregnancy, and the decisions how to progress through that
pregnancy and birth.440 Thus, she argues that a “focus on pregnancy as a relationship even
though the pregnant woman and the unborn are not on an equal footing in law” articulates a
view of pregnancy that is based on women’s “lived realities” and is non-adversarial.441 This
relational view of pregnancy that goes beyond termination of pregnancy to include questions
about the treatment and care women receive when they have decided to continue with a
pregnancy is also relevant for the birth jurisprudence introduced above. Moreover, in Chapter

438
p. 178.
439
C. Pickles, Pregnancy Law in South Africa. Between Reproductive Autonomy and Foetal Interests (2017).
440
C. Pickles, Pregnancy Law in South Africa. Between Reproductive Autonomy and Foetal Interests (2017),
pp. 303-304, 324.
441
C. Pickles, Pregnancy Law in South Africa. Between Reproductive Autonomy and Foetal Interests (2017),
pp. 335-336.
132
4 where I discuss women and violence narratives I show how some minority women
experience reproductive violence (forced sterilisations) exactly because they have decided to
continue with pregnancy.
In none of the cases concerning birth has the European Court of Human Rights
considered stereotypes and power dynamics in the way we can see in the CEDAW
Committee’s Alyne case, where the Committee recognised the intersectional discrimination –
that Ms da Silva Pimentel Teixeira was discriminated against, not only on the basis of her
gender, but also on the basis of her status as a woman of African descent and her socio-
economic background.
Negative framings of women mirror Rebecca Kukla’s work on motherhood (similar to
C. Malagrida’s arguments above) where she argues that there is a tendency to “measure
motherhood”, not in “extended narratives” but rather by “a set of signal moments that we
interpret as emblematic tests and summations of women’s mothering abilities”. 442 For
example, she calls child birth “a maternal achievement test”, and explains how the symbolic
importance of birth has been elevated to the point where it appears to serve as a make-or-
break test of a woman’s mothering abilities – in order to “make it” the woman needs to
manage her birth successfully by making “proper, risk-adverse, self-sacrificing choices, and
maintaining both proper deference to doctors and control over her own body”, and,
accordingly, a woman fails the test, when she reveals herself as “selfish or undisciplined and
risks deforming her baby’s character, health, and emotional well-being”.443
Thus, continuing the narrative of abortion jurisprudence: women are not only
expected to take up a role (mother), but this very role has specifically been scripted for them.
This means that women can fail on two levels: by refusing to take the assigned role and by

442
R. Kukla, “Measuring mothering”, International Journal of Feminist Approaches to Bioethics, Vol. 1, No. 1
(2008), p. 69.
443
(2008), p. 74.
133
challenging the script of the role, i.e not behaving in a certain way. Kukla’s conclusion
echoes perfectly my findings as she summarises: “Our cultural insistence that women make
‘proper’ birth choices and maintain control over their birth narratives is not about minimizing
real risks, rather, it supports our desire to measure mothering in terms of women’s personal
choices and of self-discipline exercised during signal moments”.444
As I have argued previously together with Alicia Ely Yamin, conceptualising abortion
or other women’s reproductive health issues through a private life doctrine might create a
space that might seem private, but not safe – where the woman is left alone. In this example,
hospitals, medical settings, doctor’s offices might be closed private systems just as family
settings were traditionally a private sphere where abuse and violence was taking place out of
the reach of the state’s protection.445 Namely, in the abortion and birth cases from the
ECtHR, the Strasbourg Court shows a strong deference to medical professionals as
representatives of science and thus assumes that the medical setting is free from power
relations thus failing to engage in an inquiry about the systemic and institutional biases and
personal incentives that may undermine “authoritative” opinions. 446 Samantha Halliday
describes doctors as “gate-keepers” who control access to abortion and hold significant
influence in determining what medical treatment women are required to accept during

444
(2008), p. 78.
445
Columbia Journal of Gender and Law, Vol. 32, No. 1 (2016), p. 74. As pointed out in our references, see further
on how maintaining the divide between the public and the private sphere within the human rights framework
hinders addressing intimate partner violence as traditionally human rights deals with acts taking place in the
public sphere: C. Bunch, “Women’s Rights as Human Rights: Towards a Re-envision of Human rights”, Human
Rights Quarterly, Vol. 12, No. 4 (1990).
446
134
pregnancy/birth – women, on the other hand, are portrayed as incapable of making a
responsible decision on their own without a doctor’s “guiding hand”.447
Halliday shows in her work with case-law how “medical evidence is seen as
scientific, rational and objective”, and how, by contrast, women are portrayed as “incapable
of making a responsible decision” and as “selfish hedonists willing to sacrifice the life of the
foetus”, “irresponsible individuals making decisions that are morally repugnant”. 448 She
explains that a woman must be permitted to determine for herself what constitutes an
acceptable level of risk, conducting her own cost-benefit analysis in determining whether or
not to allow treatment to take place” and very importantly – she must be allowed to make
decisions that are “wrong”.449 Similarly, Rebecca Kukla et al emphasise, how any judgment
about an option being “too risky” to be medically sound is already “encoding someone’s
valuation of different outcomes” as the size of different risks will vary greatly depending on
the meaning of the various outcomes for the particular woman, her larger narrative, her
needs, life projects, care responsibilities, cultural values, her sense of dignity and identity.450
Rajat Khosla et al argue that identifying the human rights standards is the “first step towards
addressing violations of human rights during facility-based childbirth”.451 Once we have
acknowledged that childbirth is an issue of human rights, we can guarantee respectful
treatment that does not violate a woman’s dignity, and thus “improve the overall quality of
maternal care”.452 The 2018 World Health Organisation’s guidelines for intrapartum care also
underscore that it is important to guarantee that women and their babies not only survive

447
p. 172.
448
p. 212.
449
p. 220.
450
R. Kukla et al, “Finding autonomy in birth”, Bioethics, Vol. 23, Issue 1, (2009), pp. 4-5.
451
R. Khosla et al, “International Human Right and the Mistreatment of Women during Childbirth”, Health and
Human Rights Journal, Vol. 18, No. 2 (2016).
452
R. Khosla et al, “International Human Right and the Mistreatment of Women during Childbirth”, Health and
Human Rights Journal, Vol. 18, No. 2 (2016).
135
labour complications if they occur, but also that they thrive and reach their full potential for
health and life.453
Furthermore, the Konovalova case presents an interesting aspect of the suffering
narrative mentioned above. Namely, the European Court of Human Rights found a violation
of right to privacy, but did so by reasoning how Konovalova had been “some time in a state
of extreme stress and thus it was unclear whether she was at all capable of making an
intelligible informed decision”, and how “the applicant’s vulnerable condition during was not
taken into account”. Or similarly, in Ternovszky case concurring Judges Sajó and Tulkens
construct an “expectant mother” as “very vulnerable” which in turn calls for a “a positive
regulatory environment, which will produce the legal certainty providing the right to choose
with effectiveness”.
In a way, this shows that the Strasbourg Court accepts that pregnancy and birth are
special experiences and impact women. However, I think that such framing can also raise
questions, whether women can then actually make “intelligible and informed” decisions
about their health and determine what they feel comfortable with and what they want during
the labour – because determining that women in labour are in “vulnerable condition” can also
open leeway for women’s decreased autonomy and agency and, importantly, this approach
does not speak of rights (i.e women have a right to make decisions about their birth
experiences), but rather of again patronising vulnerability that would invoke compassion.

453
“WHO recommendations: Intrapartum care for a positive childbirth experience”, World Health Organization
(2018). See also previous guidelines: “Companion of choice during labour and childbirth for improved quality
of care”, World Health Organization (2016); “The prevention and elimination of disrespect and abuse during
facility-based childbirth”, World Health Organization (2014).
136
3.6 CONCLUSION: WOMEN ARE MOTHERS – SOMETIMES DANGEROUS
I have mapped four stereotypes about women in abortion, birth and maternal mortality
jurisprudence. The first stereotype is the widespread misbelief that all women want to
become mothers – such normative motherhood constructs all women regardless of their
individual desires and choices as mothers or mothers-to-be. The second stereotype derives
from the first, but adds another layer that is especially apparent in cases concerning birth – it
portrays women as dangerous mothers-to-be who would put their babies at risk if not
monitored and disciplined by doctors and or even state officials during prenatal and obstetric
care. The third stereotype depicts women as sufferers who need to prove enough suffering
and a certain type and degree of suffering to be awarded human rights protection, and space
for their choices, wishes, desires, needs.
The fourth, last stereotype constructs women as clueless, incapable of making
autonomous choices about their reproductive lives, i.e family planning. I demonstrated how
by not naming, describing and rejecting these stereotypes, which enforce narrow “single
stories” of women’s experiences, the reproduction jurisprudence is not transformative, but
instead adds to the silencing processes. Overall the “woman” in these stories is someone who
must throughout her existence endure the dangerous consequences of reproduction politics, is
subjected to persistent gender stereotypes rooted inter alia in plain disbeliefs or moral
judgments is obligated to fit into certain socially and legally constructed frames that assist her
to seem more deserving of her human rights.
137
our bodies
tell stories
no books have
the spine to
carry
– women of colour
(rupi kaur)
4. WOMEN AND VIOLENCE NARRATIVES
4.1 “DIRTY MISBEHAVING WOMEN, UNWANTED MOTHERS, AND THE

UNFORTUNATE VIOLENCE”
Who is the “woman” in human rights law if we consider the jurisprudence concerning
forced sterilisations, “virginity” testing, and women’s sexuality? I introduce a total of 12
cases from the European Court of Human Rights, the United Nations CEDAW Committee,
and the Inter-American Court of Human Rights. Jurisprudence dealing with forced
sterilisations has received relatively large amount of attention in human rights scholarship,
whereas the issue of forced gynaecological examination has largely gone under the radar in
the legal discipline.454 The European Court of Human Rights has four forced sterilisation
cases (all against Slovakia decided between 2009-2013 with almost identical factual
circumstances), the United Nations CEDAW Committee one case concerning Hungary, and
the most recent, and also progressive in how a reproductive rights-based approach is used is a
case against Bolivia from the Inter-American Court of Human Rights.
In the introduction of this thesis I cited Barbara Havelková’s which maps how courts
and governments use the “no intent” argument: how anti-discrimination law should target

454
An exception is M. Sjöholm’s book (Gender-Sensitive Norm Interpretation by Regional Human Rights Law
Systems (2017) I have cited in this thesis. For work on forced sterilisations see for example: E. Tilley et al.,
“‘The Silence is roaring’: sterilization, reproductive rights and women with intellectual disabilities”, Disability
and Society, Vol. 27, Issue 3 (2012), C. Zampas, A. Lamačková, “Ethical and legal issues in reproductive
health: Forced and coerced sterilization of women in Europe”, International Journal of Gynecology and
Obstetrics, Vol. 114, Issue 2 (2011), R. Sifris, “The involuntary sterilisation of marginalised women: power,
discrimination, and intersectionality”, Griffith Law Review, Vol. 25, Issue 1 (2016), R. Sifris, “Involuntary
Sterilization of HIV-Positive Women: An Example of Intersectional Discrimination”, Human Rights Quarterly,
Vol. 37, Issue 2 (2015), R. Sifris, “Conceptualising Involuntary Sterilisation as Severe Pain or Suffering for the
Purposes of Torture Discourse”, Netherlands Quarterly of Human Rights, Vol. 28, Issue 4 (2010).
138
only “hostile animus”, and therefore not implicit bias.455 This pattern also reveals itself in
the forced sterilisation jurisprudence of the European Court of Human Rights, where the
court argues in different cases, how “sterilisation without consent calls for serious
criticism”, but does not find enough evidence to show that forced sterilisations of the Roma
women in question were “organised policy or that the hospital staff’s conduct was racially
motivated”, or that the “doctors involved acted in bad faith”.
The European Court of Human Rights has heard five cases concerning forced
gynaecological examinations between 2003-2011, all against Turkey and all with similar
factual circumstances. The ECtHR did find a breach of human rights in most of these cases
(either under prohibition of degrading treatment or right to privacy), but focused on the
absence of consents and remaining silent on the practice of “virginity testing” itself and on
the gender stereotypes justifying it. The last case is the already familiar case of Carvalho
Pinto de Sousa Morais also from the European Court of Human Rights concerning a
woman’s sexuality in her 50s.
There is a strategic reason behind coupling forced sterilisations and “virginity testing”
with the de Sousa Morais case which demonstrates a broader understanding of women’s
sexuality. Namely, I argue that more severe forms of reproductive violence such as forced
sterilisations of certain women (e.g Black women, Roma women) and “virginity testing” as a
form of punishment and control of women, is more likely to occur in an environment that
accepts, allows and encourages general stereotypical framings of women’s reproductive
choices and sexuality more broadly. To put it simply, stereotypes serve as shortcuts to human
rights breaches: just like maternal mortality, forced sterilisations do not happen “overnight”
or unexpectedly, tolerating stereotypes lays the groundwork for these human rights
violations.
Four harmful stereotypes emerge from these cases. The first stereotype involves women’s
sexuality – an expectation that women need to keep their “purity” through maintaining their
“virginity”, and consequently, a sexually active woman is shameful: women should not
(openly) enjoy sex, govern their sexuality and/or determine their sex life. The second and
third stereotype summarise how women’s experiences of violence in medical settings are
framed: mistreating women in clinics, health care centres and hospitals proves permissible as
the context of reproduction justifies/requires said mistreatment. The fourth stereotype is a
reversed version of the “normative motherhood” stereotype I discussed previously in Chapter

455
139
3: the jurisprudence here reveals that some women from specific marginalised groups (Roma
women, Black women) are expected not to reproduce, not to become mothers. In other
words, to some women the “normative motherhood” expectation does not apply.
140
4.2 WHERE ARE VIOLENCE AND GENDER IN HUMAN RIGHTS LAW?

4.2.1 Gender-based violence against women and girls: international law responds?
How to talk about gender-based violence against women and girls?456 One approach
is to speak through numbers: to showcase the available quantitative data that demonstrates
the prevalence of physical/sexual violence as I first did with unsafe abortions and maternal
mortality in the previous part of this thesis (Chapter 3). For example, a European Union-wide
survey from 2014 concluded that one in three women (33%) has experienced physical and/or
sexual violence since age 15.457 The World Health Organisation’s data from 2013 indicates a
very similar global trend: overall, 35% of women worldwide have experienced either
physical and/or sexual intimate partner violence or non-partner sexual violence.458
Another way to frame the discussion about violence against women is to speak of
violence as a violation of human rights. For example, the former United Nations Special
Rapporteur on Violence Against Women Rashida Manjoo writes that violence against women
impairs and nullifies women’s realisation of human rights and prevents women from
participating in their community as full, equal citizens. 459 The work of Alice Edwards
summarises how international law and human rights frameworks more specifically have
responded to gender-based violence and writes that prior to the 1990s violence against
women was seen as an issue for national governments, as a question of criminal law, not of
human rights law, even the Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW) adopted in 1979 did not have a provision outlawing violence
against women – a failure that the CEDAW Committee tried to fix with its two general
recommendations declaring violence against women sex discrimination. 460 Dubravka

456
Some scholars prefer using the term “gender-based violence” instead of violence against women as the
former seems to be more inclusive, and captures more precisely the idea how this form of violence is rooted in
gender stereotypes. I use “violence against women” and “gender-based violence” interchange” is more precise
term as it makes explicit the “gendered causes and impacts of the violence” and “further strengthens the
understanding of this violence as a social - rather than an individual- problem, requiring comprehensive
responses, beyond specific events, individual perpetrators and victims/survivors” (CEDAW/C/GC/35).
457
EU Fundamental Rights Agency, “Violence against women: an EU-wide survey” (2014). See also: C.
Bradbury-Jones et al., “A Profile of Gender-Based Violence Research in Europe: Findings From a Focused
Mapping Review and Synthesis”, Trauma, Violence, & Abuse (2017).
458
“Global and Regional Estimates of Violence against Women: Prevalence and Health Effects of Intimate
Partner Violence and Non-Partner Sexual Violence”, World Health Organisation, Department of Reproductive
Health and Research, London School of Hygiene and Tropical Medicine, South African Medical Research
Council, (2013).
459
R. Manjoo, “Special Guest Contribution: Violence against women as a barrier to the realisation of human
rights and the effective exercise of citizenship”, Feminist Review, Vol. 112, issue 1 (2016), p. 11.
460
A. Edwards, Violence Against Women under international Human Rights Law (2011), p. 7. See further: A.
Edwards, “Violence against Women as Sex Discrimination: Judging the Jurisprudence of the United Nations
Human Rights Treaty Bodies”, Texas Journal of Women & the Law, Vol. 18 (2008).
141
Šimonovic writes also how although CEDAW does not have a provision explicitly
prohibiting violence against women, it “provides a gender specific framework on the
elimination of all forms of discrimination against women that encompasses violence against
women”, and how the adoption of the CEDAW “introduced two fundamental innovations in
human rights antidiscrimination law:
It acts as an asymmetric instrument for the protection of women against all
forms of direct and indirect discrimination in various facets of life; and 2) it
provides an obligation for state parties to adopt “all appropriate measures”
to fully develop and advance women or to empower women.461
It was not until the 1990s that the issue of violence against women started to feature
more seriously on the agenda of the international community as the attention was brought to
violence committed against women within the context of armed conflict, where women were
“routinely raped, sexually assaulted, incarcerated, and forcibly impregnated as part of
deliberate military and political strategies to debase and humiliate them”.462 Contemporary
scholars working with gender and international criminal law reflect how “the last decade has
seen unprecedented progress in the construction of an international legal framework for the
criminalisation and prosecution of gender crimes perpetrated against women and girls during
armed conflict or state repression”.463 Correspondingly, there is now a growing body of work
that discusses violence against women in armed conflicts.464 However, as Ruth Rubio-Marin
and Dorothy Estrada-Tanck note, it has become “increasingly clear” that the ones most
victimised in times of armed conflict are indeed women as they make up the majority of
civilian deaths, the majority of refugees and are targets of rape and forced pregnancy, but it
must not be overlooked that women’s “basic well-being” is severely threatened in daily life

461
D. Šimonovic, “Global and Regional Standards on Violence Against Women: The Evolution and Synergy of
the CEDAW and Istanbul Conventions”, Human Rights Quarterly, Vol. 36, No. 3 (2014), pp. 590, 592, 599.
462
A. Edwards, Violence Against Women under international Human Rights Law (2011), p. 7.
463
C. Duggan, R. Jacobson, “Reparation of Sexual and Reproductive Violence: Moving from Codification to
Implementation”, in: The Gender of Reparations, R. Rubio-Marin (ed.) (2009).
464
R. Copelon, “Gender Crimes as War Crimes: Integrating Crimes against Women into International Criminal
Law”, McGill Law Journal, Vol. 46 (2000), K. Askin, “Treatment of Sexual Violence in Armed Conflicts: A
Historical Perspective and the Way Forward”, in: Sexual violence as an international crime: interdisciplinary
approaches, A.-M. de Brouwer, C. Ku, R. Römkens, L. van den Herik (eds.) (2013), K. Engle, “Feminism and
Its (Dis)Contents: Criminalising Wartime Rape in Bosnia and Herzegovina”, The American Journal of
International Law, Vol. 99, No. 4 (2005), D. E. Buss, “The curious Visibility of Wartime Rape: Gender and
Ethnicity in International Criminal Law”, Windsor Yearbook of Access to Justice, Vol. 25, No. 1 (2007).
142
by unequal access to resources, services, opportunities and by the violence women
experience under “ordinary circumstances”.465
Considering this, the mid-1990s saw a shift taking place within the United Nations
human rights frameworks: for example, in 1993 the UN Declaration of Violence against
Women (DEVAW) was adopted, and in 1994 the UN Commission on Human Rights
(predecessor of UN Human Rights Council) appointed the first Special Rapporteur on
Violence against Women.466 In the 2000s the United Nations General Assembly adopted
several resolutions calling for the intensification of efforts to eliminate all forms of violence
against women and one of the targets of the 2030 UN Sustainable Development Goals agenda
is elimination of all forms of violence against all women and girls in the public and private
spheres. 467 There have also been regional developments.468
4.2.2 Human rights-based approaches against gender-based violence

Sally Engle Merry writes that in the area of violence against women, human rights
ideas are powerful precisely because they can offer “a radical break from the view that
violence is natural and inevitable”, and defined as a human rights violation, gender violence
becomes “a crime against the state that the state must punish”.469 Although I do agree with
Engle Merry, I would add that in addition to the importance of accountability, challenging
existing (gendered) power dynamics that cause, justify and validate violence against women
and children also matters. I echo here Alicia Ely Yamin, who underscores that the power of
human rights is the “capacity to challenge existing social relationships and power structures”,
and how human rights can provide a “radically different frame for thinking about the
relations of power and inequality in society”.470 As Black feminist writers Dorothy Roberts

465
R. Rubio-Marin, D. Estrada-Tanck, “Violence against Women, Human Security, and Human Rights of
Women and Girls: Reinforced Obligations in the Context of Structural Vulnerability”, in: Gender, Violence, and
Human Security: Critical Feminist Perspectives, A. M. Tripp et al (eds.) (2013), p. 238.
466
UN Commission on Human Rights, Question of integrating the human rights of women into the human rights
mechanisms of the United Nations, 8 March 1995, E/CN.4/RES/1995/86, available at:
http://www.refworld.org/docid/3b00f18d30.html [accessed 17 February 2018].
467
See e.g. General Assembly resolution, Intensification of efforts to eliminate all forms of violence against
women (A/RES/61/143, of 19 December 2006) and similar resolutions thereafter. For more on General
Assembly’s work on violence against women see: http://www.un.org/womenwatch/daw/vaw/v-work-ga.htm#in
(accessed 17 February 2018).
468
The Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women
(Convention of Belém do Pará) entered into force in 1994, and in 2003 the Protocol to the African Charter on
Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol) was adopted. Furthermore, the
Council of Europe has adopted the Convention on preventing and combating violence against women and
domestic violence (Istanbul Convention), which provides that violence against women is “a manifestation of
historically unequal power relations between women and men”.
469
470
143
and Patricia Williams emphasise, rights can “elevate one’s status from human body to social
being”.471 More specifically, Rashida Manjoo stresses the need to go beyond the public
space.472 Accordingly, Engle Merry explains how human rights can open up private domains:
whereas Alicia Ely Yamin refers to medical settings, Merry talks about the family – “the
penetration of rights into this patriarchal sphere represents a radical break”.473 Furthermore,
the human rights-based approaches also need to be intersectional.474
The forms of violence that women can experience specifically in the context of
reproduction vary in the degree of harm and impact: on the one end of this spectrum are for
example giving women misinformation about reproductive health matters and micro-
aggressions such as verbal abuse towards women in health care facilities or in public space VERY important!
through patronising social campaigns. On the other end of the spectrum lie reproductive
penalties, obstetric violence, forced gynaecological examinations, forced sterilisations and
maternal mortality. More important than listing all different expressions of violence is the
understanding of the power dynamics that accept, permit or even encourage this violence.
Iris Marion Young argues that the oppression of violence is less about the particular
acts themselves, though these are often utterly horrible”, but rather the “social context
475
surrounding them, which makes them possible and even acceptable”. Young’s
understanding here is in line with my conceptualisation of reproductive violence against
women: it is possible and socially acceptable due to (gender) stereotypes that justify, pardon
or sometimes even romanticise such expressions of violence. I also echo Young’s call to turn
the main focus from describing the acts of violence to highlighting how human rights-based
responses can reject a social space where violence occurs and grows systematic indisputably.
Namely, in some cases gender stereotypes are so strong, effective and silencing of women’s
voices that reproductive violence does not count as “actual violence” in the eyes of judges,
policy-makers, doctors, but is instead framed as “a misfortune”, or “inconvenience”.
It is helpful to think about the “iceberg metaphor” that has been widely used for
example the in research and scholarship of cultural studies and psychology, not to mention
more general contexts. This metaphor has appeared as a useful tool for explaining gender-

471
D. Roberts, Killing the Black Body (1997), p. 303, and P. Williams, Alchemy of Race and Rights, pp. 153-
154.
472
R. Manjoo, “Special Guest Contribution: Violence against women as a barrier to the realisation of human
rights and the effective exercise of citizenship”, Feminist Review, Vol. 112, Issue 1 (2016), p. 13.
473
S. Engle Merry, Human Rights and Gender Violence (2009), pp. 181, 187.
474
See further: L. Sosa, Intersectionality in the human rights legal framework on violence against women: at the
centre or the margins? (2017).
475
I. M. Young, Justice and the Politics of Difference (1990), pp. 61-62.
144
based violence research.476 The iceberg metaphor essentially means that something has two
parts - a visible part above, and an invisible part below the surface.
On the topic of women and violence, I propose picturing three different icebergs. In
the first iceberg the violence women experience (i.e gender-based violence) would be under
the surface in its entirety, and above the surface we would see the “real” violence (as defined
from the masculine perspective) that happens in the public sphere and is committed by
strangers. This iceberg characterises the phase where the concept of gender-based violence is
not recognised at all. The second iceberg reflects the current reality of gender-based violence
– above the surface we see rape, killing, sexual assaults, physical abuse women experience,
and below the surface we find the cultures that set women up for the violence – verbal abuse,
catcalling, harassment, micro-aggressions, “everyday sexism”.477 Lastly, the third iceberg
could be titled “reproductive violence”, the visible part showing forced sterilisations,
maternal mortality, some elements of obstetric violence, and the invisible part under water
would depict for example “virginity testing”, misinformation, forced obstetric practices (see a
sum of these three icebergs in Appendix III).
These icebergs illustrate Iris Marion Young’s conceptualisation of how, due to its
systemic character, its existence as a social practice, violence is a phenomenon of social
injustice and not merely an “individual moral wrong”.478 In other words, this violence is
structural.479 The work of Suruchi Thapar-Björket et al helps further unpack this phenomenon
of social practices as their research explains how social dynamics of everyday practices are
often governed and shaped in many ways by gendered inequalities and “micro contexts of
power” which in turn enable some forms of violence to continue without impunity – this is
how violence becomes normalised and normative: practices that would usually be seen
problematic gain social acceptance through particular discourses, practices and policies.480

476
See Appendix II (El iceberg de la violencia de género. Infografía de Amnistía Internacional).
477
See e.g.: L. Bates, Everyday Sexism (2014).
478
I. M. Young, Justice and the Politics of Difference (1990), pp. 61-62.
479
The term “structural violence” was coined by Johan Galtung (see: J. Galtung, “Violence, Peace, and Peace
Research”, Journal of Peace Research, Vol. 6, No. 3 (1969)). Although Galtung offered tools to think about
violence beyond single individual dimension and through social injustice and social structures his work did not
specifically explore gender-based violence. For works that critically engage with Galtung’s approaches see for
example, K. A. Parsons, “Structural Violence and Power”, Peace Review, Vol. 19, No. 2 (2007); A. Dilts,
“Revisiting Johan Galtung's Concept of Structural Violence”, New Political Science, Vol. 34, Issue 2 (2012); C.
C. Confortini, “Galtung, Violence, and Gender: The Case for a Peace Studies/Feminism Alliance”, Peace
Change, Vol. 31, Issue 3 (2006); K. Hirschfeld, “Rethinking ‘Structural Violence’”, Society, Vol. 54, Issue 2
(2017).
480
S. Thapar-Björket, L. Samelius, G. S. Sanghera, “Exploring symbolic violence in the everyday:
misrecognition, condescension, consent and complicity”, Feminist Review, Vol. 112, No. 1 (2016), pp. 145, 149.
145
Young’s analysis of violence and oppression also discusses what happens to the
person who is oppressed in the process. She comments on the effect of the oppression on the
victim’s identity and sense of wrong/right, and explains that violence is systemic because it
directs a member of a group based simply on them belonging to said group: the “oppression
of violence consists not only in direct victimization, but in the daily knowledge (…) that they
are liable to violation, solely on account of their group identity”.481 Therefore, if reproductive
violence against women is normalised, then women themselves are forced into positions of
victims – using the words of Suruchi Thapar-Björket et al: “Domination that arises from
symbolic violence is less a product of direct coercion, and more a product of when those who
are dominated stop questioning existing power relations”.482
This is why every case concerning reproductive violence that has reached a
transnational human rights law forum is crucially important – it is an opportunity for human
rights law to question and break down existing power relations. Accordingly, when
constructing (transformative) narratives within reproduction jurisprudence, the human rights
law forums must pay attention to language – explicitly refer to reproductive rights, and see
the gendered power relations since “language includes and excludes, it frames discourses
through which social reality is constructed, and consequently has implications of power” and
by “deciding to misrecognise, particular silences are produced and reproduced and particular
narratives about what is considered right and wrong are legitimised”.483 Therefore anti-
stereotyping is essential in human rights analysis.
4.2.3 Women’s experiences with violence, and prohibition of torture and

degrading treatment
The United Nations Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment published in January 2016 a report in which he argues
that the international framework on prohibition of torture and ill-treatment has failed to
respond to the unique experiences of women since it does not adopt a gendered lens to
adequately address patriarchal and discriminatory power structures and gender stereotypes.

481
I. M. Young, Justice and the Politics of Difference (1990), p. 62.
482
misrecognition, condescension, consent and complicity”, Feminist Review, Vol. 112, No. 1 (2016), p. 148.
483
misrecognition, condescension, consent and complicity”, Feminist Review, Vol. 112, No. 1 (2016), pp. 148 and
152.
146
484
The work of Alice Edwards and Ronli Sifris supports the Special Rapporteur’s findings.
Edwards argues that the torture prohibition reflects and responds to the experiences of men
rather than women: “traditionally conceived as a prohibition on physical assault perpetrated
by public officials against political dissidents or common criminals, it fits within the ‘male’
paradigm of international law”, whereas as Edwards explains, women are more likely to
suffer abuse at the hands of private citizens (thus, falling outside the scope of protection), or
if women’s experiences do get represented in the discourses then it is the experiences of
women as wives, mothers or daughters of male victims, i.e “by virtue of their relationship
with the victim rather than as autonomous actors”. 485 Ronli Sifris writes about how
preventing women from accessing abortion services or subjecting them to involuntary
sterilisation procedures renders women powerless.486
How does the transnational jurisprudence beyond reproduction speak to this
criticism? The Committee Against Torture (CAT) is the body monitoring implementation of
the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (UNCAT), and there are two cases to consider that give an insight into how CAT
understands gender and violence within its torture and inhuman treatment framework.
The first case, Bakatu-Bia, concerned Sylvie Bakatu-Bia, born in the Democratic
Republic of the Congo (DRC), who fled to Sweden as she had been tortured, beaten on her
legs and her back, and repeatedly raped for her political views.487 Her asylum application,
however, was rejected as the “general situation in DRC did not constitute grounds for
asylum”, and as the authorities questioned her trustworthiness indicating that she “failed to
adduce any documents proving her identity”.488 Sylvie Bakatu-Bia claimed that her forcible
deportation would amount to a violation of Article 3 of the UNCAT (non-refoulement) as she
would be arrested and tortured upon return to DRC due to her religious and political

484
UN Human Rights Council, Report of the Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment, 5 January 2016, A/HRC/31/57, available at:
http://www.refworld.org/docid/56c435714.html (accessed 17 February 2018)
Prohibition of torture is regarded as one of the most important human rights provisions – called also as a ius
cogens norm of customary law, an absolute/a non-derogable right. It can be found in the UDHR (Article 5), in
the ICCPR (Article 7) in the ECHR (Article 3). There are also special treaties against torture – the UN
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT)
adopted in 1984 and monitored by the Committee Against Torture (CAT), the Inter-American Convention to
Prevent and to Punish Torture adopted in 1985, and the European Convention for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment adopted in 1987.
485
A. Edwards, Violence Against Women under international Human Rights Law (2011), p. 210.
486
R. Sifris, Reproductive Freedom, Torture and International Human Rights: Challenging the Masculinisation
of Torture (2014), p. 182.
487
Sylvie Bakatu-Bia v. Sweden, CAT/C/46/D/379/2009, para. 2.2.
488
Case, para. 2.5.
147
beliefs.489 The Committee referred to United Nations expert report on the general dire human
rights situation in DRC, but emphasised additionally how, according to the High
Commissioner for Human Rights “sexual violence in DRC remains a matter of serious
concern, particularly in conflict torn areas, and despite efforts by authorities to combat it, this
phenomenon is still widespread and particularly affects thousand of women and children”.490
Thus, the Committee concluded that the removal of the complainant to DRC would violate
Article 3 of UNCAT (non-refoulement).491
The second case, F.B., concerned a Guinean woman whose asylum application was
denied by the Netherlands.492 F.B. was forced to undergo female genital mutilation (FGM), to
leave school and marry against her will, and was also sexually abused by her step-mother’s
brother.493 Consequently she argued that the Netherlands would violate Article 3 of UNCAT
if forcibly removing her to Guinea. The Netherlands acknowledged the problems with human
rights in Guinea, but F.B.’s “allegations that she was a victim of forced marriage to her
stepmother’s brother and her accounts about her family circumstances are not credible”, and
that “the fact alone that the complainant was a victim of FGM in the past, like 96,9% of girls
and women in Guinea, does not mean that her return would be contrary to article 3 (…). She
has provided no convincing arguments to support her claim that she would be subjected to
genital mutilation again”.494 The Dutch Government also argued that since F.B. had already
undergone FGM and there was no evidence to suggest that upon return she would be
subjected to a medical examination that would reveal the reconstruction surgery and,
although widespread, FGM is “usually instigated by parents or other female relatives”, there
is no threat of FGM for F.B.495
The Committee found that FGM is widespread in Guinea and that the pressure to
undergo FGM is “not limited to direct relatives, but is a common feature of Guinean
patriarchal society”. 496 The Committee also explicitly acknowledged: “the practice of

489
Case, para. 3. Article 3: 1. No State Party shall expel, return ("refouler") or extradite a person to another
State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
2. For the purpose of determining whether there are such grounds, the competent authorities shall take into
account all relevant considerations including, where applicable, the existence in the State concerned of a
consistent pattern of gross, flagrant or mass violations of human rights
490
Case, para. 10.6-10.7.
491
Case, para. 11.
492
F.B. v. the Netherlands, CAT/C/56/D/613/2014.
493
Case, para. 2.1.
494
Case, paras. 4.13-4.15.
495
Case, para. 6.2.
496
Case, para. 8.5.
148
subjecting a woman to FGM is contrary to the obligations enshrined in the Convention”.497
Furthermore, the Committee emphasised that the inconsistencies in the complainant’s
statements about her family are “not of nature as to undermine the reality of the prevalence of
female genital mutilation”.498 The Committee concluded that the Netherlands “has failed to
take into consideration the complainant’s allegations regarding the events she experienced in
Guinea, her condition as single woman within the Guinea society, the specific capacity of the
authorities in Guinea to provide her with protection (…), and the severe anxiety that her
return to Guinea may cause her (…)”499, thus there were substantial grounds for believing
that the complainant would be in danger of treatment contrary to UNCAT – in conclusion the
Committee found a violation of Article 3 of UNCAT (non-refoulement).
The first time the European Court of Human Rights held that domestic violence
constitutes a form of gender discrimination was in the Opuz case.500 The case concerned an
applicant who had been severely battered by her husband. The European Court of Human
Rights coupled Articles 2 (right to life) and 3 (prohibition of torture and degrading treatment)
with Article 14 (prohibition of discrimination) to demonstrate that domestic violence has a
distinct gender dimension and that women suffer from it disproportionally more than men. 501
The CEDAW Committee has also heard cases dealing with domestic violence. The X
and Y case concerned Georgian nationals X (a mother) and Y (her daughter), who submitted
that Georgia had violated their rights under articles 1, 2(b) – 2(f) and 5(a) of CEDAW.502 In
1987 a man raped X. As according to X the Georgian society perceives virginity as a young
woman’s virtue that is a guarantee of a successful marriage, X thought that nobody else
would marry her after she had been raped, and thus married the man who had raped her. They
had five children. During the marriage the husband was violent, threatening and battering X
and all of the children, and sexually abusing Y (one of the daughters).503 Despite X’s

497
Case, para. 8.7.
498
Case, para. 8.8.
499
Case, para. 8.8.
500
Opuz v. Turkey, Application no. 33401/02. Opuz was called a landmark case and a significant advance in the
Strasbourg Court’s approach to gender-based violence and it was hoped that it would have a spill-over effect.
See e.g.: C. Danisi, “How Far Can the European Court of Human Rights Go in the Fight Against
Discrimination? Defining New Standards in its Non-Discrimination Jurisprudence”, International Journal of
Constitutional Law, Vol. 9, No. 3-4 (2011); P. Londoño, “Developing Human Rights Principles in Cases of
Gender-based Violence: Opuz v Turkey in the European Court of Human Rights”, Human Rights Law Review,
Vol. 9, Issue 4 (2009). To some extent this has indeed happened. In a 2016 case of Halime Kılıç v. Turkey the
ECtHR found a violation of Article 2 (right to life) taken together with Article 14 (non-discrimination). But the
jurisprudence from the European Court of Human Rights analysed in this thesis does not indicate a similar
consistent trend.
501
502
X and Y v. Georgia, CEDAW/C/61/D/24/2009.
503
Case, para. 2.1- 2.9.
149
statements and reports to the police the authorities repeatedly decided not to open a criminal
case, asking the husband to simply submit a written document that he will not use violence,
and referring to how the husband “had been positively assessed by his neighbours and
business partners”.504
Thus, X and Y submitted that these facts reveal a violation of articles 1, 2(b) – 2(f)
and 5 (a) of the CEDAW because Georgia “has failed to comply with its duty to enact
criminal law provisions to effectively protect women and young girls from physical and
sexual abuse within the family, has failed to provide equal protection under the law to victims
of domestic violence and sexual abuse and has subjected the authors to torture by failing to
protect them from domestic violence”.505 The issue before the Committee was whether
Georgia, through its public authorities and institutions had adequately addressed the
complaints of X and provided her and Y with effective legal protection.506
The CEDAW Committee emphasised that provisions of CEDAW concerning fighting
against violence against women include also include private acts in cases where the states
have failed to act with due diligence to prevent violations of rights or to investigate and
punish acts of violence.507 The Committee criticised how “whenever a victim insisted on
making an official complaint, the prosecutor’s office would act as a mediator between the
spouses rather than investigate the incident and prosecute the perpetrator”.508 The Committee
concluded that the “unrefuted facts demonstrate that the State party’s authorities have failed
in their duty to adopt appropriate legislative and other measures”, and to take “all appropriate
measures to modify the social and cultural patterns of conduct of men and women, with a
view to achieving the elimination of prejudices and customary and all other practices that are
based on the idea of inferiority or the superiority of either sexes or on stereotyped roles for
men or women”.509 The Committee thus found that Georgia had failed to fulfil its obligations
and had thereby violated articles 2 (b)-2 (f), in conjunction with Articles 1 and 5 (a), of
CEDAW, as well as the Committee’s General Comment No. 19.510
In summary, these cases show a shift in human rights law, aimed at offering a
better response to women’s unique experiences with violence. However, as this thesis
demonstrates, there is still a long way to go. In Chapter 3 of this thesis I raised my concern

504
Case, para. 2.11.
505
Case, para. 3.1.
506
Case, para. 9.2.
507
Case, para. 9.3.
508
Case, para. 9.4.
509
Case, para. 9.6.
510
Case, para. 10.
150
with how some framings and interpretations in the abortion and birth-related case-law using
the provisions of degrading treatment prohibition constructed the stories of women as the
stories of “suffering victims”. The trouble with this phenomenon becomes even more acute in
this chapetr as the focus here is explicitly on women’s experiences as targets of violence.
For example, Alice M. Miller argues that the feminist focus on violence elevates
“women’s victimhood”, and emphasises sexual harm, which in turn minimises women’s
citizenship by reducing women to “suffering bodies” who are in need of protection by the law
and the state, rather than as needing participation and equality in addition to protection.511 I
share Miller’s view that overemphasising “suffering narrative” may be problematic.
However, I think that the solution is not asking women to “reject” victimhood or downplay
their suffering, and opt for the narrative of “survivors” instead as both such single-story
constructions can be harmful if they are presented through good/bad,
empowering/disempowering binaries. Instead, we should ask why is it that in human rights
law women’s victimhood is potentially stigmatising and “disempowering”; I argue that it is
not women’s responsibility to accommodate with the system and choose a role (a survivor or
a victim) that protects them from (further) violence and harm, but instead it is the institutions,
the society that need to change.
Treating gender-based violence against women as human rights violations offers a
venue for a conversation, which could in turn lead to these changes. I argue that rights-based
approaches to reproductive violence must work on two levels – firstly, we need to take this
mostly unnoticed, “under water” violence seriously and not treat it lightly or differently as if
women “were used to violence” or “were more accustomed to/deserving of pain” and
secondly, we have to use a reproductive rights-based approach to understand women’s
experiences with reproduction means not only changing the way law defines the violations
thresholds, but also explicitly challenging stereotypes that contribute to silencing of women.
It means encouraging the courts and committees analysing reproductive rights issues to create
with their case-law narratives which are truly empowering and that could be used by
legislators, policy makers, litigators, other (domestic) courts and by women themselves as
references and seeds of change. This is a holistic exercise that requires naming and unpacking

511
A. M. Miller, “Sexuality, Violence against Women, and Human Rights: Women Make Demands and Ladies
Get Protection”, Health and Human Rights, Vol. 7, No. 2, Sexuality, Human Rights, and Health (2004). The
“potential harm of victimhood” is one of the many questions feminist writers have discussed, and disagreed on.
For a recent overview that summaries some of these discussions see: R. Stringer, Knowing Victims: Feminism,
agency and victim politics in neoliberal times (2014).
151
the stereotypes, which is also an act of challenging the existing power dynamics. As Alicia
Ely Yamin writes about power and human rights:
The power of hegemony lies in the acceptance of the inevitability of a
given set of social structures and processes, to the point where they cease to
be seen as mutable political arrangements and become the “way things are”.
Speaking truth to power requires that the human rights community stand
outside the magical circle of belief about the neoliberal understanding of the
progress in the world.512
4.3 FROM DENIAL OF WOMEN’S SEXUALITY TO FORCED

GYNAECOLOGICAL EXAMINATIONS
Many feminist writings explore questions about women’s sexuality. I am more
specifically interested in how ideas of “virginity” and purity lead to reproductive violence.513
Sarah W. Rodriquez’s historical analysis of female circumcision and clitoridectomy shows,
how during the late 19th and early 20th centuries there was only one kind of female orgasm
(clitoral), and there was also only one kind of healthy sexual instinct for women –
“penetrative (hopefully procreative) sex with their husbands”.514 Thus, if women behaved
outside of this norm – by for example masturbating or by not responding to their husband’s
embrace – their sexual instinct was seen as “impaired and disordered” because healthy
women were not thought of as sexual beings – or rather, not as sexual beings on their own
“without the promptings of their husbands”. 515 Consequently, female circumcision and
clitoridectomy were performed as women’s bodies needed to “fit” better with their husbands
bodies: “knowing the clitoris to be key to female sexual instinct, doctors removed the clitoral
hood to promote stimulation from the penis to ensure that a woman’s instinct was in keeping

512
A. E. Yamin, “‘Speaking truth to power:’ a call for praxis in human rights”, 18 April 2017, available at:
https://www.opendemocracy.net/openglobalrights/alicia-ely-yamin/speaking-truth-to-power-call-for-praxis-in-
human-rights (accessed 19 February 2018).
513
Harmful ideas about women and girls being dirty or pure are present also in the context of menstrual cycle
shame and stigma. See for example: I. Johnston-Robledo, J. C. Chrisler, “The Menstrual Mark: Menstruation as
Social Stigma”, Sex Roles, Vol. 68, No. 1-2 (2013), L. Mason et al, “We Keep It Secret So No One Should
Know’ – A Qualitative Study to Explore Young Schoolgirls Attitudes and Experiences with Menstruation in
Rural Western Kenya”, PLoS ONE, Vol. 8, Issue 11, (2013), A. Dahlqvist, It’s Only Blood (2018).
514
S. W. Rodriquez, “Rethinking the History of Female Circumcision and Clitoridectomy: American Medicine
and Female Sexuality in the Late Nineteenth Century”, Journal of the History of Medicine and Allied Sciences,
Vol. 63, No. 3 (2007), p. 326 referring to T. Laquer’s writings.
515
and Female Sexuality in the Late Nineteenth Century”, Journal of the History of Medicine and Allied Sciences
Vol. 63, No. 3 (2007), p. 332.
152
with what was considered normal and healthy: heterosexual pleasure awakened by her
husband”.516 This shows how gendered power relations become medicalised – which is also
the case with “virginity testing”.
Forced gynaecological examinations or as Nadera Shalhoub-Kevorkian terms,
“imposed virginity testing”, is a practice aimed at determining, whether a woman has been
“sexually active” based on whether her hymen is intact or not. 517 Despite the existing
transnational jurisprudence I introduce here human rights law scholarship has overlooked the
issue of “virginity” testing, and how it is a form of gender-based violence; unfortunately, as
Maria Sjöholm points out, feminist legal scholars have also largely been silent on this
practice. 518 Shalhoub-Kevorkian explains how seeing women’s sexuality as dangerous,
harmful, uncontrollable and evil is universal to very diverse cultures and societies –
controlling women’s sexuality and bodies through laws, regulations, shaming-naming is a
global phenomenon that transcends cultures, religions, income levels. 519 To briefly go back
to previous chapters of this thesis–every abortion regulation or restrictive birth policy is also
aimed at controlling women and their sexuality trying to force women to live certain lives,
fulfil roles – and punish those who resist and reject such narrow paths.

516
and Female Sexuality in the Late Nineteenth Century”, Journal of the History of Medicine and Allied Sciences
Vol. 63, No. 3 (2007), p. 346.
517
N. Shalhoub-Kevorkian, “Imposition of virginity testing: a life-saver or a license to kill?”, Social Science &
Medicine, Vol. 60, Issue 6 (2005), p. 1188.
518
M. Sjöholm, Gender-Sensitive Norm Interpretation by Regional Human Rights Law Systems (2017), p. 363.
519
153
4.3.1 “Virginity testing” jurisprudence of the European Court of Human Rights
Y.F. v. Turkey
In Y.F. v. Turkey, the applicant Y.F. and his wife Mrs. F. were taken to custody with a
suspicion of aiding and abetting an illegal terrorist organization PKK (Workers’ Party of
Kurdistan). 520 After the police had detained Mrs. F. for three days they took her to a
gynaecologist for an examination. The police requested that the report should indicate
whether she had had vaginal or anal intercourse while in custody. Mrs. F. refused to undergo
the examination, but was subjected to it nevertheless. The police officers remained on the
premises while Mrs. F. was behind the curtain. The doctor reported that Mrs. F. had not had
any sexual intercourse in the days preceding the examination.521
Mrs. F. submitted to the European Court of Human Rights that she had not consented
to the gynaecological examination, but was still forced to undergo it and thus, her right to
privacy (Article 8) had been breached. The Government submitted that it would not have
been possible to perform such an examination without the consent of Mrs. F., thus she could
have objected to it when she was taken to the doctor’s consulting room. 522 The Court found
that, “in the circumstances, the applicant’s wife could not have been expected to resist

520
Y.F. v. Turkey, Application no. 24209/94 (2003).
521
Case, para. 12.
522
Case, para. 34.
154
submitting to such an examination in view of her vulnerability at the hands of the authorities
that exercised complete control over her”.523
The Court further evaluated whether the gynaecological examination had been
prescribed by law and whether such an examination was necessary in a democratic society. It
concluded that the Turkish Government neither demonstrated the existence of a medical
necessity or the circumstances defined by law nor did they suggest that the public prosecutor
had made a request for a medical examination.524 The Strasbourg Court added that although it
“accepts the Government's submission that the medical examination of detainees by a
forensic doctor can prove to be a significant safeguard against false accusations of sexual
molestation or ill-treatment”, it simultaneously considered that “any interference with a
person's physical integrity must be prescribed by law and requires the consent of that person”
as otherwise, a person in a vulnerable situation, such as a detainee, would be “deprived of
legal guarantees against arbitrary acts”. 525 Thus, as there was no domestic law prescribing
the gynaecological examination at the time of Mrs. F’s detention there had been a violation of
Article 8 (right to privacy).526
Devrim Turan v. Turkey

In Devrim Turan v. Turkey the applicant was Devrim Turan.527 In May 1999, she had
been taken into police custody on suspicion of membership of an illegal organisation. Before
her interrogation by the anti-terrorism branch of a regional security directorate, Turan was
taken to a maternal hospital for a gynaecological examination. As she had not given her
consent, she did not undergo a gynaecological examination. Turan was then taken to a
hospital for a rectal examination, but this, too, was not performed since expressed her refusal.
A week later, upon her release from the custody, she was again taken to the maternal hospital
for a gynaecological examination and a rectal examination. As Turan did not consent, neither
examination was performed. 528
Turan submitted to the ECtHR that taking her to the hospital twice for a
gynaecological examination constituted degrading treatment under Article 3. The Court noted
that although “being taken to the hospital for a gynaecological examination might have
caused distress to the applicant” the medical examinations of detainees by a forensic doctor

523
Case, para. 34.
524
Case, para. 43.
525
Case, para. 43.
526
Case, paras. 43-44.
527
Devrim Turan v. Turkey, Application no. 879/02 (2006).
528
Case, paras. 5-7.
155
“can prove to be a significant safeguard against false accusations of sexual molestations or
ill-treatment”.529 Further, the Court argued how “when the applicant refused to undergo a
gynaecological examination, no force was used against her and the doctors refrained from
performing the said examination”.530 The ECtHR concluded that the “sole fact the applicant
was taken to the hospital for a gynaecological examination on the first and last days of her
arrest does not attain the minimum level of severity which amounts to degrading
treatment”. 531 Consequently, the Court found that “this part of the application must be
rejected as being manifestly ill- founded”.532
Judge Hedigan, joined by Judge David Thor Björgvinsson, has written a partly
dissenting opinion to this decision. They first underscore how in its previous case-law the
Court has repeatedly held that Article 3 “enshrines on of the most fundamental values of
democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment
or punishment, irrespective of the circumstances and the victim’s behaviour”.533
They note how the Turkish Government argued that the purpose of the gynaecological
examination of female detainees was to avoid false accusations of sexual violence being
directed against the security forces, and how it additionally referred to the recommendations
set out in the report of the European Committee for the prevention of torture and inhuman or
degrading treatment or punishment following its visit to Turkey. Namely, the Turkish
Government claimed that this report emphasised how forensic medical examination of
detainees by a doctor was a significant safeguard against sexual violence, and thus it
connected this to the practice of sending female detainees for gynaecological examination.534
The dissent noted that the report deals with the medical examination of persons in custody
and welcomes the provision that detainees should be medically examined at the beginning
and end of police custody. But the dissenting judges maintained that the Turkish Government

529
Case, para. 20.
530
Case, para. 20.
531
Case, para. 21.
532
Case, para. 22. The Court also analysed other parts of Turan’s submission. Namely, Turan submitted that
during her detention she was being stripped naked, threatened with rape, beaten, hosed with cold water,
subjected to electric shocks and hung by her arms. The Court provided that “a number of elements in the case
raise doubts as to whether the applicant suffered treatment prohibited by Article 3 when she was detained in
police custody” and found that “the medical report prepared at the Tokat State Hospital revealed no traces of ill-
treatment on her body”. Thus as “the applicant has adduced no material which could call into question the
findings in that later report and add probative weight to her allegations” and the evidence before the Court “does
not enable it to find beyond all reasonable doubt that the applicant was subjected to ill-treatment”, the Court did
not it proven that there has been a violation of the substantive aspect of Article 3 (paras. 36-42). What appears
here is the Strasbourg Court’s narrow idea of what is degrading treatment– as stated before in this thesis,
degrading treatment can leave no physical marks – espacially gendered degrading treatment against women.
533
Partly Dissenting Opinion of Judge Hedigan joined by Judge David Thor Björgvinsson, para. 6.
534
Partly Dissenting Opinion of Judge Hedigan joined by Judge David Thor Björgvinsson, paras. 10-11.
156
had relied on the narrow ground that such medical examinations of detainees were for the
purpose of avoiding false accusations of sexual harassment against the police (“Nowhere in
this report have I found any recommendation made concerning the gynaecological
examination of female detainees.”). 535
They dissenting judges further disagree with the majority’s conclusion that merely
taking Turan to the hospital where she was able to refuse from the examination does not
amount to degrading treatment. Instead Judge Hedigan and Judge Björgvinsson underscore
that it is important to “reflect upon the vulnerability of any female detainee in such situation”
as “in custody, brought to a hospital, it is easy to imagine how even the strongest person’s
will might be overborne and consent formally given to that which is entirely repugnant to
her”.536 They continue explaining how such examination “may also result in the revelation of
a woman’s sexual history or, at the very least, information about her sexual status which is a
matter of the most intimate nature” and how “such information in the hands of detaining
authorities seems entirely inappropriate”. 537 They conclude that nothing supports the
proposition that female detainees may be sent for a gynaecological examination as a
“safeguard against false accusations of sexual molestation” as argued by the Government.
Hedigan and Björgvinsson underscore:
It may well be that a useful purpose could be served by such
examination but only where there are procedural safeguards in place to
ensure that any consent given is given in circumstances that are demonstrably
free of any coercion, intimidation or fear and where the results of such
examination remain confidential to the detainee and the medical doctor
involved.538
In conclusion, they argue that there had been a violation of Article 3 as “such
examination was subjected to treatment that was degrading because it was such as to arouse
feelings of fear, anguish and inferiority capable of humiliating and debasing her”.539
Juhnke v. Turkey
In Juhnke v. Turkey, the applicant was a German national Eva Tatjana Ursula
Juhnke.540 In 1997, she was arrested under the suspicion of having links to the PKK. An

535
536
537
Case, para. 13.
538
539
157
obstetrician examined Juhnke and performed a gynaecological examination. The doctor’s
report described Juhnke as aggressive and presenting signs of depression. The report also
dealt with whether or not she was a “virgin”. She did not consent freely to the examination
and submitted to the ECtHR that “the examination had been performed by a male doctor
during which the gendarmes took her clothes off, made her lie down and touched every part
of her body”. Thus, Juhnke argued that there had been violations of Article 3 and Article 8.541
The Turkish Government communicated that the gynaecological examination was
necessary to prevent accusations of rape.542 The Court reiterated how “the mere fact of being
taken to a hospital for a gynaecological examination does not attain the required minimum
level of severity within the meaning of Article 3”.543 Further, when analysing Article 3
violation, the Court found “the applicant’s allegations as regards the forced nature of the
gynaecological examination unsubstantiated” and additionally there was no “prima facie
evidence to support the applicant’s version of facts regarding the manner in which she was
examined”.544 The Court also noted that they did not find from the material presented to them
that Juhnke’s denial of the examination was overridden.545 Thus the ECtHR concluded that
“the facts of the case do not disclose a breach of Article 3”.546
However, the Court did find that “the applicant had resisted a gynaecological
examination until persuaded to agree to it”, and emphasised that in certain circumstances “a
person in detention cannot be expected to continue to resist submitting to a gynaecological
examination, given her vulnerability at the hands of the authorities, who exercise complete
control over her”.547 The Court did, however, find that as the gynaecological examination
was imposed on the applicant without her free and informed consent and the Government did
not show how the examination had been “in accordance with the law’” or “necessary in a
democratic society” there had been a violation of the applicant’s right to privacy (Article
8).548
The decision also had a dissent written by Judge David Thor Björgvinsson and Judge
Garlicki.549 The dissenting judges criticised that there had been no medical need for the

540
Juhnke v. Turkey, Application no. 52515/99 (2008).
541
Case, para. 57.
542
Case, para. 61.
543
Case, para. 70.
544
Case, para. 75.
545
Case, para. 75.
546
Case, para. 75.
547
Case, para. 76.
548
Case para. 82.
549
Partly Dissenting Opinion of Judge David Thor Björgvinsson joined by Judge Garlicki.
158
examination, and “even assuming that there may be situations in which a gynaecological
examination without free and informed consent may be justified, no such situation was
present” in Juhnke’s case.550 Instead the Turkish Government had explained that submitting
Juhnke to the examination was to protect the state from “possible allegations of rape or other
sexual harassment or abuse”.551 The dissent argues that the level of severity required by
Article 3 had been reached since: “a gynaecological examination in such situations gives rise
to feelings of inferiority and degradation” and “the kind of treatment the applicant was
subjected to (…) was degrading, and as such, aroused feelings of fear, aguish and inferiority
capable of humiliating and debasing her”.552
Yazgül Yilmaz v. Turkey

In Yazgül Yilmaz v. Turkey, the applicant was arrested and taken to a doctor without
her consent for a gynaecological examination in order to check if her hymen was still
intact.553 In this case the Court found that the severity threshold of degrading treatment of
Article 3 had indeed been met and thus the prohibition of degrading treatment under the
Convention had been violated. It appears from the Court’s analysis that the applicant’s age,
i.e. her being a minor, was relevant to the Court in qualifying this specific forced
gynaecological examination as an Article 3 violation.554
Salmanoğlu and Polattas v. Turkey

This case concerned Nazime Ceren Salmanoğlu and Fatma Deniz Polattas. 555
Salmanoğlu had been taken into police custody on suspicion of membership of the Worker’s
Party of Kurdistan (PKK), which was deemed an illegal organisation in Turkey. On the same
day as her arrest, she was taken to the hospital at the request of the anti-terrorist branch of the
police headquarters to establish her “virginity status and determine whether she had had
recent sexual relations”.556 The medical expert who conducted the examination concluded
that Salmanoğlu “was still a virgin and had not had recent sexual relations”.557

550
551
552
553
Yazgül Yilmaz v. Turkey, Application no. 36369/06 (2011).
554
Case, paras. 47-48, 54.
555
Salmanoğlu and Polattas v. Turkey, Application no. 15828/03 (2009).
556
Case, paras. 5-7.
557
Case, para. 7.
159
Fatma Deniz Polattas was also arrested in the context of a police operation conducted
against the PKK. On the day of her arrest also she (similarly to Salmanoğlu) was taken to the
hospital after the request of the anti-terrorist branch of the police headquarters to establish her
“virginity status and determine whether she had had recent sexual relations”. A doctor
examined her and informed the police that Polattas “was a virgin and had not had recent
sexual relations”.558 The applicants additionally argued that they had been subjected to ill-
treatment and abuse during their detention, and thus submitted that there had been a violation
of Article 3.
Among other things the Court also analysed the virginity tests to what Salmanoğlu
and Polattas had been subjected to. The ECtHR first noted that the Government did not show
that these examinations “were based on and were in compliance with any statutory or other
legal requirement”. Furthermore, no evidence of any written consents were submitted to the
Court. The ECtHR continued:
Nevertheless, even assuming that the applicants’ consent was valid, the
Court considers that there could be no medical or legal necessity justifying
such an intrusive examination on that occasion as the applicants had yet not
complained of sexual assault when the tests were conducted. The tests in
themselves may therefore have constituted discriminatory and degrading
treatment.559
In conclusion, the Court established that there had been a breach of Article 3.
Salmanoğlu and Polattas also submitted that subjecting them to gynaecological examinations
constituted discrimination on the basis of their sex – thus, a violation of Article 14. The
Court, however, established that since it found a violation of Article 3, “there is no need to
make a separate ruling under this head”.560
The decision comes with a dissenting opinion by Judges Sajo, Tsotsoria and Karakas.
They first held that they found the “application of the virginity test troubling, bordering on
degrading treatment”, but they also noted how “the medical examination of persons in police
custody constitutes one of the essential safeguards against ill-treatment”. Judges Sajo,
Tsotsoria and Karakas continued to confirm that a female detainee “may not be compelled or
subjected to pressure to undergo such an examination against her wishes”. They also argue
that in the case of Salmanoğlu and Polattas “it seems that the applicants had a genuine

558
Case, para. 9.
559
Case, para. 88.
560
160
opportunity to refuse undergo the examination as, the second time they were asked, they were
able to refuse it without difficulty”, and there was no evidence of their refusal to the first
examination. The dissenting judges conclude:
For reasons of legal certainty, we find the requirement of written
consent indispensable, and we would welcome an exception to the general
rule regarding medical examinations. At least, very young people should not
have to undergo such tests as the humiliation is virtually inevitable while the
protection against ill-treatment resulting from such tests is limited, given the
possibility of alternative forms of sexual abuse.561
4.3.2 A case concerning Women’s sexuality and age from the European Court of
Human Rights
Carvalho Pinto de Sousa Morais v. Portugal

This case, decided in 2017, concerned Ms Maria Ivone Carvalho Pinto de Sousa
Morais.562 She was born in 1945 and in 1993 she was diagnosed with a gynaecological
disease that required a surgery. She had the surgery in 1995 and the glands on both sides of
her vagina were removed. After the surgery, she started experiencing intense pain and loss of
sensation in her vagina. De Sousa Morais found out that her pudendal nerve had been injured
during the operation. She was awarded damages, but in 2014 the Supreme Administrative
Court reduced the non-pecuniary damage and stated inter alia: “Additionally, it should not be
forgotten that at the time of the operation the plaintiff was already 50 years old and had
children, that is, an age when sex is not as important as in younger years, its significance
diminishing with age”.563
De Sousa Morais submitted to the European Court of Human Rights that this
judgment had discriminated against her on the grounds of her sex and age and relied on
Articles 8 and 14 of the Convention.564 She emphasised that the Supreme Administrative
Court had clearly discriminated against her based on an assumption and “by disregarding her
right to a sex life [it] had breached one of the most basic principles of human dignity and had
violated Articles 8 and 14 of the Convention”.565 The Government responded that “reading

561
Partly Dissenting Opinion of Judges Sajo, Tsotsoria and Karakas.
562
Carvalho Pinto de Sousa Morais v. Portugal, Application no. 17484/15 (2017).
563
Case, para. 16.
564
Case, para. 30.
565
Case, para. 40.
161
the impugned passage in the Supreme Administrative Court’s judgment out of context could
indicate prejudice and a belittling of the applicant’s suffering, in particular because of her
age” and how there had been “an unfortunate use of terms”.566
The Court first set out how “references to traditions, general assumptions or
prevailing social attitudes in a particular country are insufficient justification for a difference
in treatment on the grounds of sex”.567 The Court stated: “The question at issue here is not
considerations of age or sex as such, but rather the assumption that sexuality is not as
important for a fifty-year-old woman and mother of two children as for someone of a younger
age” and argued how “That assumption reflects a traditional idea of female sexuality as being
essentially linked to child-bearing purposes and ignores its physical and psychological
relevance for the self-fulfillment of women as people”. 568 The Court rejected the
Government’s claim that it was “an unfortunate turn of phrase”, and highlighted how the
applicant’s “age and sex appear to have decisive factors in the final decision, introducing a
difference of treatment based on those grounds”.569 The Court continued that in its view
“those considerations show the prejudices prevailing in the judiciary in Portugal”.570 Thus, it
concluded that Portugal had violated Article 14 taken in conjunction with Article 8.571
The judgment has two concurring opinions and one dissenting opinion. Judge
Yudkivska explains that although “there is a great temptation to believe that all of these
millennia-old social stereotypes, persistent ideas and practices are nowadays just ‘water
under the bridge’ at least in Europe” the unfortunate reality is that they are not, and the
Portuguese court had “in the best patriarchal traditions, connected the woman’s sexual life
with procreation”.572 Yudkivska also points out that although at first it could be argued that
the decision “presents a somewhat novel approach to discrimination cases”, a closer look
suggests that “it merely addresses the reality – the more equality is provided for by law, the
subtle gender discrimination becomes, precisely because stereotypes about the ‘traditional’
roles of men and women are so deeply rooted”.573 Yudkivska refers to S. Cusack’s work cited
throughout this thesis and criticises that the judiciary is failing at their role if they “facilitate
the perpetuation of stereotypes by failing to challenge stereotyping”.574 Yudkivska also points

566
Case, para. 42.
567
Case, para. 46.
568
Case, para. 52.
569
Case, para. 53.
570
Case, para. 53.
571
Case, para. 55.
572
Concurring Opinion of Judge Yudkisvka.
573
574
162
out how in this case “a long list of similar cases for comparison to find discrimination” was
not needed as “the language of the judgment [of the Portuguese court was] discriminatory in
and of itself”.575 Yudkivska concludes:
“The rejection of women’s sexuality can take very subtle forms (…) but
in the extreme it may transform into the most inhuman forms, such as a failure
to condemn a rape or performing FGM. Prejudice, passed down through
millennia, is a heavy burden that threatens both the present and the future. It
must therefore be prevented in the strongest possible manner”.576
Judge Yudkivska’s line of reasoning is supported by the second concurring opinion,

by Judge Motoc. Judge Motoc notes that “addressing stereotypes can be seen as a way of
achieving transformative equality”, and the ECtHR as “a human rights court can and should
also address the deep roots of discrimination”.577 Judge Motoc explains how: “Stereotypes
affect the autonomy of groups and individuals. For the disadvantage test it is enough to prove
that the stereotypes are harmful to the group to which the applicant belongs and that the rule
or practice applied by the State is based on such stereotypes”.578
The dissent by Judges Ravarani and Bošnjak argues that “the comparative exercise is
both delicate and potentially decisive” and “the choice of the comparator will often change
the outcome of the case”.579 Judges Ravarani and Bošnjak explain their position: “It is
important to note, in this context, that the applicant cannot dictate the scope of the
comparability exercise; this is a legal issue that the judge has to deal with and he has to take
‘into account the elements that characterise their circumstances in the particular context’ and
‘in the light of the subject-matter and purpose of the measure which makes the distinction in
question”. 580 The dissenting judges accept that he ECtHR has sometimes used the
stereotypes-based analysis.581The dissent criticises the majority for not having used the
comparator-based methodology and reject the stereotype-based analysis as the Portuguese
Court also referred to the applicant’s pre-surgery health complications and the dissenting
judges felt that “it is impossible to second-guess to what extent the age factor concretely

575
576
577
Concurring Opinion of Judge Motoc, paras. 4-5.
578
Concurring Opinion of Judge Motoc, para. 18.
579
Joint Dissenting Opinion of Judges Ravarani and Bošnjak, para. 9.
580
581
163
intervened in the assessment”.582 Furthermore, the dissenting judges contended that the case
was not about gender at all, but only about age as the Portuguese court had not stated
“women’s sexual life is less important than that of men”. 583 Consequently, the dissent
concluded: “A judge who intends to deliver a message on a legal issue of general importance
should wait for the right case to do so; otherwise he or she simply engages in politics”. 584
4.4 “WOMEN’S STATUS AND RIGHTS DEPEND ON THEIR VIRGINITY”

Nadera Shalhoub-Kevorkian explains how imposed “virginity tests” further harmful
gender patterns through medical systems, and how such tests become “an almost easy mode
of oppression”. 585 In other words, many harmful practices can be cloaked under the
seemingly neutral “science” and “medicine”. Although “virginity testing” is a highly
medicalised practice, there is no scientific foundation or what could be called “medical
relevance” involved: even though “virginity tests” are based on the assumption that a doctor
(a gynaecologist-obstetrician) can confirm after examining a woman’s sex organs whether
she has had sex, in reality this is blatantly false since it is impossible to determine that – even
if we define “sexual activeness” through only penetrative vaginal intercourse. “Virginity
testing” is rooted in the idea that all women have what is termed “hymen” – an embryological
remnant that breaks during the first vaginal penetrative intercourse, and thus a virgin must
bleed when she has sex for the first time. However, first of all, not all women have the
“hymen” as the remnant might rupture during the later stage of embryo development, and
thus does not exist after birth.586 Secondly, even if there is such remnant, it might not be torn
as a result of a penetrative vaginal intercourse as the vaginal orifice is elastic, which in turn
means that even if a woman has not been sexually active she might not “bleed” after the first
vaginal intercourse.587

582
583
584
585
586
Hanna Cinthio’s research in contemporary Sweden demonstrates that the imagination of the “popping
cherry” is widespread as many students are “flabbergasted when confronted with the rather undramatic truth of
the matter” that there is no lid-like membrane covering the vaginal opening, but that the opening is encircled by
elastic folds of mucous tissue, individually shaped in every female and that a majority of women do not bleed
during their first vaginal intercourse. See: H. Cinthio, “‘You go home and tell that to my dad!’ Conflicting
Claims and Understandings on Hymen and Virginity”, Sexuality and Culture, Vol. 19, No. 1 (2015), pp. 173-
174.
587
See for example: R. J. Cook, B. M. Dickens, M. F. Fathalla, “Hymen Reconstruction”, in: Reproductive
Health and Human Rights: Integrating Medicine, Ethics, and Law (2003), p. 298; R. J. Cook and B. M.
Dickens, “Hymen reconstruction: Ethical and legal issues”, International Journal of Gynecology and Obstetrics,
Vol. 107, Issue 3 (2009); B. Essen et al, “The experience and responses of Swedish health professionals to
164
Nonetheless, a woman’s “virginity” is framed as an issue of protection, and thus its
protection expands from the family to the collective patriarchal system –as Nadera Shalhoub-
Kevorkian explains how the “social anxiety over women’s virginity as manifested through
their hymen, accompanied by the unchanging needs of patriarchy to continually secure its
power” results in the creation and ritualisation of many gender oppressive practices, and such
“patriarchal practices relativize women’s value by looking at her through the rubics of purity
and contamination,”.588
The hymen myth and the focus on “virginity” remains unchallenged and has paved
the way for “virginity” certificates and hymen “reconstructions” – also termed as the hymen
repair, hymenoplasty, hymen construction, hymen re-virgination, or hymenorraphy589 Monica
Christianson and Carola Eriksson call forced virginity examinations and hymen
reconstructions gender-based violence that is abusive, cruel, and insulting.590 Hanna Cinthio
explains how doctors issuing the so-called virginity certificates that confirm a woman’s
virginity can protect women from the violent consequences of the myth, but simultaneously,
such certificates “stamped and signed by gynaecologists” become a part of upholding the idea
that there is in fact “a hymen which can be checked”.591 Some authors have also taken the
position that such certificates can potentially lead to a gradual “devaluation of the entire
concept of virginity”, and thus decrease women’s suffering and increase their agency and

patients requesting virginity restoration (hymen repair)”, Reproductive Health Matters, Vol. 18, No. 35 (2010);
N. Juth, N. Lynöe, “Zero tolerance against patriarchal norms? A cross-sectional study of Swedish physicians’
attitudes towards young females requesting virginity certificates or hymen restoration”, Journal of Medical
Ethics, Vol. 41, Issue 3 (2015).
588
589
M. Christianson, C. Eriksson, “Promoting women’s human rights: A qualitative analysis of midwives’
perceptions about virginity control and hymen ‘reconstruction’”, The European Journal of Contraception and
Reproductive Health Care, Vol. 20, Issue 3 (2015), p. 182. Hanna Cinthio writes, how there are different
versions of these procedures. For example it can mean that a doctor just uses dissolvable stitches to “suture back
the edges of the hymen”, or if that is not possible, “a new hymen can be created either using a flap of the vaginal
lining, complete with its blood supply, or through an incision in the vaginal membrane where both sides are
pulled and stitched together”. However, she refers to studies that show how the majority of women do not bleed
during the first vaginal intercourse even after undergoing the reconstructive surgery. Nevertheless, the myth of
hymen is so powerful that also women who have not been sexually active get such surgeries. (H. Cinthio, “‘You
go home and tell that to my dad!’ Conflicting Claims and Understandings on Hymen and Virginity”, Sexuality
and Culture, Vol. 19, No. 1 (2015), pp. 173-174). See further: B. van Moorst et al., “Backgrounds of women
applying for hymen reconstruction, the effect of counselling on myths and misunderstandings about virginity,
and the results of hymen reconstruction”, The European Journal of Contraception and Reproductive Health
Care, Vol. 17, Issue 2, (2012).
590
M. Christianson, C. Eriksson, “Acts of violence: Virginity control and hymen (re)construction”, British
Journal of Midwifery, Vol. 22, No. 5 (2014), p. 349.
591
H. Cinthio, “‘You go home and tell that to my dad!’ Conflicting Claims and Understandings on Hymen and
Virginity”, Sexuality and Culture, Vol. 19, No.1 (2015), p. 174.
165
authorship.592 Dilek Cindoglu remains critical of physicians rationalising the constructive
surgeries as being supportive of women: she argues that such “pseudo-feminist attitude” is a
clear manifestation of liberal gender ideology, which allows women to enjoy sexuality within
the patriarchal expectations. 593 She argues that even if these surgeries can be seen as
“survival strategies” for women who are living in patriarchal gender ideologies, medicine
plays a significant role in controlling women's bodies and the “alliance between patriarchy
and medicine exists as long as virginity tests and reconstructive surgery exist”.594 Nadera
Shalhoub-Kevorkian emphasises how although the practices such as hymen constructions
reinstate daily oppressions of women, they can also become “nothing short of a life or death
matter” as they can save women from harsh punishments, thus, she calls for “more elastic
feminism that takes into account the specificities of ‘contexts’, without incorporating that
term into an orientalist, progressive/regressive, us/them binary”.595
Sara Johnsdotter and Birgitta Essen discuss another crucial dimension– the politics of
genital modifications that showcases the need for intersectional feminist approaches.596 They
draw links between attitudes toward, on the one hand, genital cosmetic surgeries (e.g they
name: reduction of the inner labia, vaginal tightening, hymen reconstruction, clitoral “lifts”,
liposuction), and, on the other hand, “traditional” female genital cutting, and argue that
although essentially these are very similar, Western societies respond differently – allowing
one, but criminalising the other.597
From the five European Court of Human Rights cases against Turkey it is evident
how stereotypes about women and their sexuality can influence women’s treatment during
criminal detention. More often than not, this was, however, unfortunately not pointed out by
the Strasbourg Court. An exception to this pattern is the Carvalho Pinto de Sousa Morais
case, where the European Court of Human Rights explicitly stated that the assumption that
sexuality is not as important for a fifty-year-old woman reflects a traditional idea of female

592
Virginity”, Sexuality and Culture, Vol. 19, No. 1 (2015), p. 175. Referring to the works of N. Pekgul (in
Swedish, 2008) and I. Goksel (2012).
593
D. Cindoglu, “Virginity tests and artificial virginity in modern Turkish medicine”, Women’s Studies
International Forum, Vol. 20, No. 2 (1997), p. 259.
594
D. Cindoglu, “Virginity tests and artificial virginity in modern Turkish medicine”, Women’s Studies
International Forum, Vol. 20, No. 2 (1997), p. 260.
595
596
S. Johnsdotter, B. Essen, “Genitals and ethnicity: the politics of genital modifications”, Reproductive Health
Matters, Vol. 18, Issue 35 (2010). See also: A. Shahvisi, “Why UK doctors should be troubled by female genital
mutilation legislation”, Clinical Ethics, Vol. 12, Issue 2 (2017).
597
S. Johnsdotter, B. Essen, “Genitals and ethnicity: the politics of genital modifications”, Reproductive Health
Matters, Vol. 18, Issue 35 (2010).
166
sexuality as being essentially linked to child-bearing purposes and ignores its physical and
psychological relevance for the self-fulfillment of women as people”.
Maria Sjöholm importantly notes that the exclusiveness of female victims in the
”virginity testing” cases is less a result of physiological differences and more deeply rooted
in a stereotype according to which women file false claims of rape.598 I agree with Sjöholm
when she points out that the Court does not find “virginity” tests without a legitimate aim,
and how the Court’s judgments are notably genderless: “By not highlighting the gender
stereotypes upheld through the performance of such tests, the Court does little in dismantling
them”.599 Sjöholm’s work also showcases unfortunately that leaving harmful stereotypes
about women’s sexuality untouched is characteristic also to ECtHR’s jurisprudence beyond
cases concerning reproduction. 600 This unfortunate, but persistent resistance is also
demonstrated in the otherwise applaudable Carvalho Pinto de Sousa Morais case where the
dissenting judges concluded that the case was indeed not about gender and consequently
criticised the majority: “A judge who intends to deliver a message on a legal issue of general
importance should wait for the right case to do so; otherwise he or she simply engages in
politics”.
Similar unscientific myths about women’s bodies (including their sexuality and
reproductive systems) are apparent in other reproductive rights issues as I demonstrated
previously in this thesis: the “virginity” ideal is connected to the “normative motherhood
stereotype” discussed in Chapter 3. Namely, both of these speak of the failure to construct
women as “sexual agents” – as human beings who could express themselves through sexual
relations, who would want to enjoy sex outside of hetero-normative marriage or/and
procreative sex. Instead, women are seen as “reproductive agents” – although using the word
“agent” is actually misleading as it suggests agency (autonomy), which, however, women
also lack in their reproduction decisions. As Hanna Cinthio’s research demonstrates how
female sexuality is treated as something women “give away” like gifts to other people –
“something you do to please another, and not as something existing in its own right, and for

598
See also S. Cusack, A. S. H. Timmer, “Gender Stereotyping in Rape Cases: The CEDAW Committee’s
Decision in Vertido v The Philippines”, Human Rights Law Review, Vol. 11, Issue 2 (2011), where the authors
show how the stereotype “women are inherently untruthful and thus likely to fabricate allegations of rape”
influences rape cases.
599
M. Sjöholm, Gender-Sensitive Norm Interpretation by Regional Human Rights Law Systems (2017), pp. 375-
376.
600
See Chapter 6 on sexual violence in: M. Sjöholm, Gender-Sensitive Norm Interpretation by Regional Human
Rights Law Systems (2017).
167
your own sake”, and accordingly, Cinthio’s interviewees described men as sexual subjects
while for women “sex was thought to cause problems rather than pleasure”.601
4.5 PUNISHING AND DISCIPLINING WOMEN WITH FORCED

STERILISATIONS
In this part I introduce case-law concerning forced sterilisations of women. I look at
forced sterilisation in the wider context of violence narratives impacting women’s lives, as
forced sterilisation is a form of reproductive violence, which in turn is part of gender-based
violence against women and girls. The outrageous, but nevertheless persistent idea of how
violence that happens in a “private” setting (for example at home, between partners/spouses,
at a workplace between colleagues) does not concern (human rights) law is very familiar to
feminist scholarship and women’s rights advocates as I also showed above – it is only
recently that courts, legislators and policy makers have recognised the imbalances of power
in, and gendered nature of domestic violence for example. There is a parallel between
domestic violence and different forms of reproductive violence that women can be subjected
to in medical settings – just like domestic spaces (homes), hospitals, clinics and health
centres are also closed spaces (guarded with the confidentiality requirement) with very clear
power imbalances between the medical staff (also between doctors, nurses and staff members
themselves), and patients. These power imbalances become even more significant when a
woman is marginalised for, in addition to her gender, her race, disability, ethnicity, sexual
orientation, age, religion, or passport status.
As I explained in Chapter 3 with maternal mortality and in subsection 4.2.2 above
with the iceberg-analogy, forced sterilisations are an end-result of unchallenged negative
stereotypes and systematic mistreatment of women in medical settings. In simple terms – the
victims of forced sterilisations were set up for such degrading treatment through structural
de-humanisation.
There is a lot of evidence of how structural injustices affect people negatively in
medical settings. Diane E. Hoffmann and Anita J. Tarzian wrote in their ground-breaking
article in 2001 about the bias against women in the treatment of pain, and how “female
patients were more often perceived as anxious rather than in pain” (thus often receiving
sedatives instead of painkillers), or how female patients “experience disbelief or other

601
Virginity”, Sexuality and Culture, Vol. 19, No. 1 (2015), p. 182.
168
obstacles at their initial encounters with health-care providers”.602 Consequently, women who
seek help are less likely than men to be taken seriously when they report pain and are also
less likely to have their pain adequately treated.603 Hoffman and Tarzian refer to Gillian
Bendelow who has suggested that women are often thought to be equipped with a natural
capacity to endure pain because of their reproductive functioning.604
Hoffmann and Tarzian add that the Western medical model overemphasises objective,
biological indicators of pain, and underacknowledges women’s subjective, experiential
reports, and Eva E. Johansson et al expand this by explaining how “although pain is the
experience of the sufferer the voice of the subject is often lost”.605 In other words, there is no
room for women’s voices and lived experiences – just as in human rights law analysis that
turns a blind eye to structural injustices and stereotypes. Thus, as Dayna Bowen Matthew
suggests, structural injustices require adequate responses that tackle existing power systems:
“only changes to the overarching environment and social system itself will interrupt the flow
of messages that inform the stereotypes, class stratification, and unequal power distribution
that distort the interaction between physicians and patients”.606
It is important to note that gender is only one determinant causing the described
biases, race and religion have the same effects.607 For example, Vania Smith-Oka draws from
the works of many scholars and writes about micro-aggressions that are “subtle insults and
demeaning behavior typically aimed at people of color (or […] to “problematic others” […])
that reflect and enforce the perpetrators’ perceptions of their superiority”.608 Furthermore,

602
D.E. Hoffmann, A.J. Tarzian, “The Girl Who Cried Pain: A Bias Against Women in the Treatment of Pain”,
The Journal of Law, Medicine & Ethics, Vol. 29 (2001), p. 17.
603
D.E. Hoffmann and A.J. Tarzian, “The Girl Who Cried Pain: A Bias Against Women in the Treatment of
Pain”, The Journal of Law, Medicine & Ethics, Vol. 29 (2001), p. 19 referring to the research of C. Miaskowski
in footnote 45.
604
Pain”, The Journal of Law, Medicine & Ethics, Vol. 29 (2001), p. 19 referring to G. Bendelow’s work in
footnote 32. Bendelow has explained that “the perceived superiority of capacities of endurance is double-edged
for women – the assumption that they may be able to ‘cope’ better may lead to the expectation that they can put
up with more pain, that their pain does not need to be taken so seriously”.
605
Pain”, The Journal of Law, Medicine & Ethic, Vol. 29 (2001), p. 20; E. E. Johansson et al, “The meanings of
pain: an exploration of women's descriptions of symptoms” Social Science & Medicine, Vol. 48, Issue 12
(1999), p. 1792.
606
D. Bowen Matthew, “Toward a Structural Theory of Implicit Racial and Ethnic Bias in Health Care”, Health
Matrix, Vol. 25 (2015), p.76.
607
See further e.g.: K. Lutfey Spencer & M. Grace, “Social Foundations of Health Care Inequality and
Treatment Bias”, Annual Review of Sociology, Vol. 42 (2016), E.N. Chapman et al, “Physicians and Implicit
Bias: How Doctors May Unwittingly Perpetuate Health Care Disparities”, Journal of General Internal Medicine
Vol. 28, Issue 11 (2013), R. Tong, “Gender Justice in the Health Care System. An Elusive Goal”, in: Medicine
and Social Justice: Essays on the Distribution of Health Care, R. Rhodes, M. P. Battin, A. Silvers (eds.) (2012).
608
V. Smith-Oka, “Microaggressions and the reproduction of social inequalities in medical encounters in
Mexico”, Social Science & Medicine, Vol. 143 (2015), p. 9. See further Smith-Oka’s work regarding women’s
169
Derald Wing Sue et al explain micro-aggressions in the context of race, and how there are
three types of micro-aggressions: micro-assaults (overt verbal or nonverbal derogatory
actions), microinsults (rude or insensitive interactions) and micro-invalidations (interactions
that negate, dismiss, or nullify recipients’ responses to micro-aggressions, such as calling
them oversensitive).609 Smith-Oka adds a fourth form: the corporeal micro-aggressions that
emerge from “mainstream perceptions of moral superiority and are expressed as violent
bodily treatment, such as sterilization efforts that target single mothers”.610 She explains that
such violence can occur when unchallenged attitudes towards marginalised groups transform
into actions in medical settings: hospitals and clinics can be seen as places where the state
attempts to “shape motherhood”, and where the constructions of “good” and “bad” mothers,
supposed hypersexuality and hyperfertility of low-income women are woven into clinical
encounters:
When a patient seemed to be ignoring clinicians’ orders or she acted in
unexpected ways, she was typically perceived as non-cooperative and non-
compliance. This perception often seemed to justify not only verbal
reprimands but rough physical treatment and interventions that may have had
some medical justification but that to an outsider or patient appeared very
much like punishment.611
Such microaggressions can lead to what has been termed as obstetric violence
(violencia obstétrica) in Latin America - the Venezuelan law defines obstetric violence as
follows:
The appropriation of women’s body and reproductive processes by health
personnel, which is expressed by dehumanising treatment, abuse of
medicalisation, and pathologisation of natural processes resulting in a loss of

rights in Mexico: V. Smith-Oka, “’They Don’t Know Anything’: How Medical Authority Constructs
Perceptions of Reproductive Risk among Low-Income Mothers in Mexico”, in: Risk, Reproduction, and
Narratives of Experience, L. Fordyce and A. Maraesa (eds.) (2012).
609
D. Wing Sue et al, “Racial microaggressions in everyday life: Implications for clinical practice”, American
Psychologist, Vol. 62, No. 4 (2007), pp. 271-286. See further on microaggressions and individual responsibility
within structural oppression: C. Friedlaender, “On Microaggressions: Cumulative Harm and Individual
Responsibility”, Hypatia, Vol. 33, No. 1 (2018).
610
Mexico”, Social Science & Medicine, Vol. 143 (2015), p. 9. Smith-Oka explains that corporeal micro-
aggressions connect to the “growing concern with obstetric violence”, but says that whereas obstetric violence is
rooted within “medical habitus where deep-seated notions of medical hierarchy, status, and gender collude to
exert violence upon obstetric patients” the corporeal microaggressions are violent, but differing from obstetric
violence, they emerge from “a substrate that moralizes motherhood”.
611
Mexico”, Social Science & Medicine, Vol. 143 (2015), pp. 10, 14.
170
autonomy and ability to decide freely about their bodies and sexuality,
negatively impacting women’s life quality.612
The term has also been adopted in Mexico to describe hospital-based obstetric
practices that are not just medicalising women’s bodies, but are “structural modes of
violence” that reflect the “deeper patterns of inequality” – obstetric violence is gendered
violence.613 Rachelle Chadwick notes how choosing the term “obstetric violence” over more
neutral labels such as “mistreatment” is part of a “deliberate move to confront problematic
practices, which have often been hidden, invisible and unacknowledged, as forms of
violence”.614 There are many examples of different forms of obstetric violence: unnecessary
episiotomies, performing episiotomies after delivery for the purpose of training, manual
revision of women’s uterine cavities without pain relief, tying women’s legs to the delivery
table, but also over-emphasising foetal risk and understating maternal risk or silencing
women’s dissent, lying to women about the progression of labour, neglecting women as a
method of punishment for non-compliance.615
Camilla Pickles explains that the term “obstetric violence” is rooted in the notion that
the “way birthing women are treated in health-care facilities correlates with their broader
unequal social and economic standing and constitutes a form of gender-based violence”, and
it gives “expression to women’s physical experiences of abusive, dehumanising or violent
‘care’ and to the wrongs suffered by women despite surviving birth and having a live born

612
“Ley Organica sobre el derecho de las mujeres a una vida libre de violencia” G. O. (38668 De 23 /4/2007) La
Asamblea Nacional De La República Bolivariana De Venezuela
13. Violencia obstétrica: Se entiende por violencia obstétrica la apropiación del cuerpo y procesos
reproductivos de las mujeres por personal de salud, que se expresa en un trato deshumanizador, en un abuso de
medicalización y patologización de los procesos naturales, trayendo consigo pérdida de autonomía y capacidad
de decidir libremente sobre sus cuerpos y sexualidad, impactando negativamente en la calidad de vida de las
mujeres. See further: R. Pérez D'Gregorio, “Obstetric violence: a new legal term introduced in Venezuela”,
International Journal of Gynaecology and Obstetrics, Vol. 111, Issue 3, (2010).
613
L. Zacher Dixon, “Obstetrics in a Time of Violence: Mexican Midwives Critique Routine Hospital
Practices”, Medical Anthropology Quarterly, Vol. 29, Issue 4 (2015), p. 438.
614
R. Chadwick, “Obstetric violence in South Africa”, South African Medical Journal, Vol. 106, No. 5 (2016),
p. 423. Chadwick also suggests that often in the medical literature questions about mistreatment are
predominantly framed in relation to “quality-of-care issues and the failure of evidence-based obstetric practice”,
which consequently leads to an assumption according to which “informing and training practitioners about
evidence-based medicine is enough to change practices”. She reiterates how abusive treating of women and girls
in maternity services reflects the broader societal devaluation of women and girls and the normalisation of
violence against them - accordingly she argues that we need to address both the individual – the perpetrator’s –
level and the structural forms of violence that create the conditions for individual abuse.
615
See: C. Pickles, “Eliminating abusive ‘care’: A criminal law response to obstetric violence in South Africa”,
South African Crime Quarterly, No. 54 (2015), p. 7 and endnotes.
171
child”.616 Michelle Sadler et al theorise how obstetric violence can be seen as a “reflection of
how female bodies in labour are perceived as potentially opposing femininity – violence is
therefore necessary to dominate them, restoring their ‘inherent’ feminine submission and
passivity”.617 Thus, in this context violence is not only accepted, but also reinforced and
reproduced.618 Sara Cohen Shabot and Keshet Korem further stress how gendered shame is
one of the most important mechanisms of obstetric violence: “Attempting to feminize
women’s bodies, obstetric violence makes continual use of gendered shame as a (violent)
instrument with which to denigrate women for losing femininity or being too sexual or
messy. It is performed and perpetuated by shaming women for being bad mothers-to-be and
for acting against the myth of altruistic, self-sacrificing motherhood”.619 Cohen Shabot and
Korem write that such gendered shame does not only “put women in their place”, but it
serves as a “resilient tool of oppression effectively promoting silence and depoliticizing
experience” since women hide their oppressive experiences, believing themselves to be alone
and consequently participating in a “vicious cycle of silence that precludes political struggle
or social change”.620
Pickles discusses responses to obstetric violence in South Africa and argues for a
criminal law response, which however, as she adds, does not mean that applying other
approaches (e.g human rights-based approach, changes in the health-care system) is mutually
exclusive – Pickles recognises how “merely introducing a statutory crime in this context may
not bring about a normative change and thus more is needed”.621 Indeed, human rights-based
approaches do not support unaccountability, but their emphasis is nevertheless different:
human rights-based approaches focus on the question of why. For example, why do nurses
and doctors believe that abusive control and authority are necessary to achieve healthy births
and maternal survival, or why does a hospital’s medical staff feel it is acceptable to

616
C. Pickles, “Eliminating abusive ‘care’: A criminal law response to obstetric violence in South Africa”,
South African Crime Quarterly, No. 54 (2015), p. 7.
617
M. Sadler et al, “Moving beyond disrespect and abuse: addressing the structural dimensions of obstetric
violence”, Reproductive Health Matters, Vol. 24, No. 47 (2016), p. 51.
618
M. Sadler et al, “Moving beyond disrespect and abuse: addressing the structural dimensions of obstetric
violence”, Reproductive Health Matters, Vol. 24, No. 47 (2016), p. 52.
619
S. Cohen Shabot, K. Korem, “Domesticating Bodies: The Role of Shame in Obstetric Violence”, Hypatia,
Vol. 33, No. 3 (2018), p. 387.
620
S. Cohen Shabot, K. Korem, “Domesticating Bodies: The Role of Shame in Obstetric Violence”, Hypatia,
Vol. 33, No. 3 (2018), p. 394.
621
C. Pickles, “Eliminating abusive ‘care’: A criminal law response to obstetric violence in South Africa”,
South African Crime Quarterly, No. 54 (2015), p. 11.
172
circumvent a Roma woman’s consent, and proceed with sterilisation.622 To illustrate with the
discussed “virginity testing” jurisprudence – these women with links to Kurdish liberation
movement should never have been forced to have “virginity” tests not because there was no
informed real consent, but because such punitive and disciplining practices are human rights
violations per se. Thus, as Chadwick writes in her book for which she has recorded women’s
birth experiences in South Africa: “In order to improve maternity care for women and move
beyond unproductive binaries, polarizations and idealizations, we need to begin by listening
to what matters to women in relation to birth. The politics of birth can only be productively
built on the bedrock of (diverse) women’s perspectives”.623
Therefore it is again essential that a human rights law forum analyses power
dynamics, explicitly challenges harmful stereotypes and puts women’s lived experiences and
what they say as serious evidence in the focus of their analysis.

622
“Stop making excuses: Accountability for Maternal Health Care in South Africa”, Human Rights Watch,
(2011), available at: https://www.hrw.org/report/2011/08/08/stop-making-excuses/accountability-maternal-
health-care-south-africa. (accessed 28 February 2018).
623
R. Chadwick, Bodies That Birth: Vitalizing Birth Politics (2018), p. 171.
173
4.5.1 Forced sterilisation jurisprudence of the European Court of Human Rights
K.H. and Others v. Slovakia
In the case of K.H. and Others v. Slovakia the applicants were eight Slovakian women
of Roma ethnic origin. 624 They were treated at gynaecological and obstetrics departments in
two hospitals in Slovakia during their pregnancies and deliveries. Despite continuing to
attempt to conceive, none of the eight women had become pregnant since their last stay in the
hospital when they delivered via Caesarean section. They suspected that the reason for their
infertility was that the doctors had performed a sterilisation procedure on them during their
delivery. Several applicants had been asked to sign documents prior to their delivery or on
discharge from the hospital but they were not sure of the exact content of these documents.
The women submitted that they were unable to obtain photocopies of their medical
records and that amounted to a breach of Article 8 of the European Convention on Human
Rights. They argued that the “mere possibility of consulting the files and making handwritten
excerpts thereof did not provide them with effective access to the relevant documents
concerning their health”.625 The applicants explained that without the photocopies they are
not able to establish a basis for civil litigation and also “demonstrate to their families and
communities (…) that their infertility was not a result of any deliberate action on their
part”.626
The European Court of Human Rights established that the complaint concerned the
applicants’ “right of effective access to information concerning their health and reproductive
status”.627 The Court denied Slovakia’s arguments that the refusal to allow photocopies was
within the margin of appreciation and rejected the idea of how the aim of the prohibition was
information abuse: “the Court does not see how the applicants, who had in any event been
given access to the entirety of their medical files, could abuse information concerning their
own persons by making photocopies of the relevant documents”.628
V.C. v. Slovakia
In V.C. v. Slovakia, V.C. was a Slovakian woman of Roma ethnic origin. 629 V.C.’s
mother tongue was the Roma language, which she used together with a local dialect, as part
of her daily communication. On 23 August 2000, V.C. was sterilised at the hospital where

624
K.H. and Others v. Slovakia, Application no. 32881/04) (2009).
625
Case, paras. 38-39.
626
Case, para. 39.
627
Case, para. 44.
628
Case, para. 54.
629
V.C. v. Slovakia, Application no. 18968/07 (2012).
174
she had gone to give birth. V.C. gave birth via Caesarean section and her sterilisation entailed
tubal litigation by the Pomeroy method, which consists of severing and sealing the Fallopian
tubes in order to prevent fertilisation. During her pregnancy V.C. did not have regular check-
ups and visited her general practitioner only once. 630 V.C. submitted to the Court that after
she had been in labour for several hours and was in pain, the medical staff approached her
and asked if she wanted to have more children. V.C. responded “yes”, but the medical
personnel told her that if she had one more child, either she or the baby would die. V.C.
started to cry, and as she was convinced that her next pregnancy would be fatal, she told the
doctors “Do what you want to do”. She was then asked to sign the delivery record under a
note indicating that she is requesting a sterilisation. V.C. did not understand the term
“sterilisation”, but she signed the form out of her fear for fatal consequences.631
The words “Patient is of Roma origin” appeared on V.C.’s medical records folder.632
During her stay at the hospital, V.C. was accommodated in a room occupied exclusively by
women of Roma ethnic origin and she was prevented from using the same bathrooms and
toilets as women who were not of Roma origin. V.C. has since been ostracised by the Roma
community and her husband left her – V.C. maintained that her infertility was one of the
reasons for their separation.633
V.C. submitted to the ECtHR that she had not given her free, full and informed
consent to the sterilisation, and that the sterilisation had not been a life-saving procedure. The
sterilisation had been carried out without considerations for alternative ways of protecting her
from the alleged risks linked to a possible future pregnancy. She also maintained that the
procedure was to be seen “in the context of the widespread practice of sterilising Roma
women which had its origins in the communist regime and in the enduringly hostile attitudes
towards persons of Roma ethnic origin”.634 Thus, V.C. submitted to the ECtHR that there had
been a violation of Article 3 (prohibition of inhuman and degrading treatment).
The Government rejected this and explained how “the applicant’s sterilisation was to
be considered in the broader context, namely, with due regard to her health status and her
failure to seek the appropriate pre-natal medical care”, and how the decision for sterilisation

630
Case, paras. 8-11.
631
Case, para. 15.
632
Case, para. 17.
633
Case paras. 17, 18, 20.
634
Case paras. 88-90.
175
was made after determining that a future pregnancy would present “a real threat to the
applicant’s life and/or that of her child”.635
The Court underscored that Article 3 “enshrines one of the most fundamental values
of democratic society”, and prohibits “in absolute terms torture or inhuman or degrading
treatment or punishment, irrespective of the circumstances and the victim’s behaviour”.636
The Court noted: “Sterilisation constitutes a major interference with a person’s reproductive
health status. As it concerns one of the essential bodily functions of human beings, it bears on
manifold aspects of the individual’s personal integrity including his or her physical and
mental well-being and emotional, spiritual and family life”.637 The Court established that
although it is not the Court’s role to “review the assessment by medical doctors of the state of
health of the applicant’s reproductive organs” sterilisation is not generally considered to be a
life-saving surgery, and a free informed consent was a prerequisite even “assuming that
sterilisation was a ‘necessity’ from a medical point of view”.638
Furthermore, the Court argued that the way in which the medical personnel acted was
“paternalistic” as V.C. was not “offered any option but to agree to the procedure which the
doctors considered appropriate”.639 The Court concluded that since the sterilisation “grossly
interfered with the applicant’s physical integrity as she was thereby deprived of her
reproductive capability”, V.C. was only “at an early stage in her reproductive life”, and
although there was no indication that “the medical staff acted with the intention of ill-treating
the applicant” there had been a violation of Article 3.
V.C. also submitted that there had been a violation of Article 8 (right to respect for
private and family life). She argued that her infertility was irreversible as “a future in vitro
fertilisation was not accessible to her for both religious and financial reasons” and that the
sterilisation had resulted in the deterioration of her relationship with her husband and
“impaired her standing in the Roma community”.640
The Court found that the “absence (…) of safeguards giving special consideration to
the reproductive health of the applicant as a Roma woman resulted in a failure (…) to comply
with positive obligation”, and thus established that there had been a violation of Article 8.
The Government argued that the reference to V.C.’s Roma origin on her medical file “had
been necessary as Roma patients frequently neglected social and health care and therefore

635
Case para. 93.
636
Case para. 100.
637
Case para. 106.
638
Case, para. 110.
639
Case, para. 114.
640
Case, para. 134.
176
requested special attention”. 641 The Court rejected it, however, and explained: “Even
assuming this to have been the reason for the entry, the reference in the record to the
applicant’s ethnic origin without further details being given indicates (…) a certain mindset
on the part of the medical staff as to the manner in which the medical situation of a Roma
woman should be managed”.642
V.C. submitted that there had been a violation of Article 14 as she had been subjected
to racial discrimination and sex discrimination as she had been subjected to a difference in
treatment in connection with her pregnancy. 643 The Court, however, found that “the
information available is not sufficient to demonstrate in a convincing manner that the doctors
acted in bad faith with the intention of ill-treating the applicant” and “notwithstanding the
fact that the applicant’s sterilisation without her consent calls for serious criticism, the
objective evidence is not sufficiently strong in itself to convince the Court that it was part of
an organised policy or that the hospital staff’s conduct was racially motivated”.644 Thus the
Court held that it “was not necessary to separately determine whether the facts of the case
also gave rise to breach of Article 14”.645
The decision comes with a dissenting opinion by Judge Mijovic. She argues that the
Government’s argument regarding the “special attention” was “totally unacceptable” as
according to her the “special attention” was in fact the sterilisation itself. Furthermore,
Mijovic found: “Finding violations of Articles 3 and 8 alone (…) reduces this case to the
individual level, whereas it is obvious that there was a general State policy of sterilisation of
Roma women under the communist regime (…), the effects of which continued to be felt
(…).”646Judge Mijovic concluded that the sterilisations were not “of an accidental nature”,
but V.C. was “marked out” because of her origin, and this represented “the strongest form of
discrimination and should have led to a finding of a violation of article 14 in connection with
the violations found of Articles 3 and 8”.647

641
Case, para. 151.
642
Case, para. 151.
643
Case, para. 171.
644
Case, para. 177.
645
Case, para. 180.
646
Dissenting Opinion of Judge Mijovic.
647
Dissenting Opinion of Judge Mijovic.
177
N.B. v. Slovakia
In the case of N.B. v. Slovakia, N.B. was a woman of Roma ethnic origin who was
sterilised during the delivery of her second child by means of tubal ligation at the hospital. 648
At the time of her delivery, N.B. was underage and her legal guardian was not present. N.B.
submitted that after she arrived at the hospital the doctors gave premedication in view of the
envisaged Caesarean section. She was then approached by a member of the medical staff who
was carrying papers, and who had taken the applicant’s hand to sign the papers. N.B. was in
labour and did not have the strength or the will to ask what the documents contained.
N.B. said that a doctor had told her that she would die unless she signed the papers.
N.B.’s medical records also revealed that during the surgery the doctors discovered a rupture
of her uterus and “since the applicant’s uterus was severely damaged, it had been considered
certain that a similar situation would occur in any future pregnancy and would pose a grave
risk to the life of the applicant and her foetus”.649
N.B. learned about her sterilisation in December 2002. She described that she had
experienced inferior treatment during her stay at the hospital: in particular she indicated that
patients in the gynaecological and obstetrics ward had been segregated according to their
ethnic origin – N.B. had been accommodated in a “Gypsy room” –, separated from women
who were not of Roma ethnic origin.650
N.B. submitted that she had been subjected to inhuman and degrading treatment – a
violation of Article 3. The Slovakian Government submitted that the sterilisation had been
carried out because there was a serious damage to N.B.’s uterus, she had given her consent
and it was ex post approved by the committee. The Government maintained that N.B. had not
been submitted to treatment contrary to Article 3 as “the doctors had acted with the intention
of protecting her life and health, as well as the life of her child” and “had the doctors
deliberately wished to deprive the applicant of her reproductive capacity, they would have
carried out a hysterectomy which (…) would have been considered as a life-saving
intervention given the state of the applicant’s reproductive organs”.651
The Court established that N.B.’s sterilisation had not been a life-saving medical
intervention and that it had been carried out without her informed consent, i.e “the procedure
was therefore incompatible with the requirement of respect for the applicant’s human

648
N.B. v. Slovakia, Application no. 29518/10 (2012).
649
Case, para. 13.
650
Case, para. 19.
651
Case, para. 70.
178
freedom and dignity”.652 Furthermore, the Court argued how “the fact that the doctors had
considered the procedure necessary because the applicant’s life and health would be seriously
threatened in the event of her further pregnancy cannot affect the position”.653
The Court established:
(…) by removing on of the important capacities of the applicant and
making her formally agree to such serious medical procedure while she was in
labour, when her cognitive abilities were affected by medication, and then
wrongfully indicating that the procedure was indispensable for preserving her
life, violated the applicant’s physical integrity and was grossly disrespectful of
her human dignity”.654
Although the Court established that the doctors acted with “gross disregard for her
human freedom”, there is no proof that the medical staff had acted with the “intention of ill-
treating the applicant”.655 The Court noted that N.B. was “still legally underage, and at an
early stage of her reproductive life”, and thus “the sterilisation grossly interfered with her
physical integrity, as she was thereby deprived of her reproductive capacity”.656
Furthermore, the Court underscored how, “given its serious nature and consequences,
the sterilisation procedure, including the manner in which the applicant was asked to agree it,
was liable to arouse in her feelings of fear, anguish and inferiority and to entail lasting
suffering”.657 The Court also referred to N.B.’s ethnic background as a Roma woman: “the
Court finds no reason to doubt that her inability to have children strongly diminished her
position as a woman living within a Roma community and entailed mental suffering”.658
Thus, the Court established that there had been a violation of Article 3.
Additionally the Court established that Slovakia had also breached Article 8 of the
Convention. Namely, the Court argued that N.B.’s sterilisation “affected her reproductive
health status and had repercussions on various aspects of her private and family life” and
since the Slovakian Government failed to fulfil its positive obligation by not “putting in place

652
Case, para. 74.
653
Case, para. 74.
654
Case, para. 77.
655
Case, para. 78.
656
Case, para. 79.
657
Case, para. 80.
658
Case, para. 80.
179
effective legal safeguards to protect the reproductive health of, in particular, women of Roma
origin”, there had been also a violation of Article 8.659
Lastly, N.B. also submitted how “her race/ethnic origin played a determining role in
her sterilisation and that she had also been discriminated against on the grounds of her sex in
that respect”.660 The Court found that “it cannot be established that the doctors involved acted
in bad faith, that the applicant’s sterilisation was a part of an organised policy, or that the
hospital staff’s conduct was intentionally racially motivated”.661 Thus the Court concluded
that it was not “necessary to separately determine whether the facts of the case also gave rise
to a breach of Article 14 of the Convention”.662
I.G. and Others v. Slovakia

The case of I.G. and Others v. Slovakia concerned three women of Roma ethnic
origin: I.G., M.K. and R.H. They were all sterilised in the gynaecology and obstetrics
department of a public hospital. 663 The first applicant I.G. was sterilised on 23 January 2000.
After her admittance and preliminary checks, a gynaecologist ordered her to be transferred to
theatre for a Caesarean section. During the operation I.G. was sterilised by tubal ligation.
When she woke up from anaesthetic, she was told that she had given birth to a girl, but she
was not informed about the tubal ligation. The next day a doctor approached I.G., and asked
her to sign a document. I.G. was told that she had undergone a Caesarean section, and all
women who had Caesarean sections had to sign this form.
On January 28 she was transferred to the hospital due to an inflammation as a post-
surgery complication, where she underwent further surgery due to serious sepsis and
infection. This operation was considered life-saving and during the operation the doctors
performed a hysterectomy. I.G. found out about her sterilisation in 2003. I.G. submitted that
she has been living “in constant fear that her partner will leave her because she is not able to
bear him any more children”.664
The second applicant M.K. gave birth on 10 January 1999. Shortly after having been
admitted to the hospital, M.K. was approached by a nurse who told her that delivery would be
by Caesarean section. During the surgery the doctors also performed a tubal ligation. At the
time of the delivery, M.K. was a minor and neither she nor her legal guardian had given

659
Case, paras. 96-98.
660
Case, para. 118.
661
Case, para. 121.
662
Case, para. 123.
663
I.G. and Others v. Slovakia, Application no. 15966/04 (2013).
664
Case, paras. 8-17.
180
consent to the sterilisation. When M.K.’s partner learned that she would not be able to have
another child due to the sterilisation, he left her.665
The third applicant R.H. gave birth to her fourth and fifth children (twins) by
Caesarean section. She was hospitalised on 10 April 2002. After she had been taken to the
theatre a nurse gave her a pre-medication injection as a precursor to the anaesthetic. R.H. felt
that her head was spinning. The nurse then asked her to sign a paper, which R.H. was unable
to read due to her dizziness. The nurse explained that she needed to sign this as she was going
to have a Caesarean delivery. At her discharge, R.H. was asked to sign another document. A
doctor explained to R.H. that this paper confirmed her sterilisation.666
All three women submitted that they had received inferior treatment at the hospital
due to their Roma origin. In particular, the applicants stated that they had been
accommodated separately from non-Roma women in what were called “Gypsy rooms”,
prevented from using the same bathrooms and toilets as non-Roma women, and could not
enter the dining room.
The Court first decided that after R.H.’s death her children did not have standing to
continue the proceedings.667 With regard to I.G. and M.K. the Court analysed whether there
had been a violation of Article 3. Similarly to V.C. and N.B., the Court established that the
sterilisations were incompatible with “the requirement of respect for human freedom and
dignity”. The Court also found a violation of Article 8 as Slovakia failed to fulfil its positive
obligations regarding the reproductive health of the applicants.668
Lastly, I.G. and M.K. complained that they had been discriminated on the grounds of
sex, they argued that their sterilisation “performed without their full and informed consent
was a form of violence against women” and there existed “no race-neutral explanation
justifying their sterilisation during Caesarean delivery”.669 The Court reiterated that it could
not be established that the sterilisation had been part of an “organised policy” or that the
hospital staff’s conduct had been “intentionally racially motivated”, and thus the Court did
not find it “necessary to determine separately whether the facts of the case also gave rise to a
breach of Article 14”.670

665
Case, paras. 18-22.
666
Case, paras. 23-29.
667
Case, paras. 89-93.
668
Case, para. 145.
669
670
181
4.5.2 The United Nations CEDAW Committee Case
A.S. v. Hungary
A.S. was a Hungarian Roma woman, a mother of three children, who discovered in
May 2000 that she was pregnant. The delivery date was estimated to be in December 2000.
A.S. followed antenatal treatment and attended all the scheduled appointments with the
district nurse and gynaecologist. In January 2001 she went into labour and amniotic fluid
broke which was accompanied by heavy bleeding. A.S. was taken to a hospital (an hour by an
ambulance).
A doctor examined her upon her arrival and determined that the foetus had died in her
uterus. The doctor therefore told her that a Caesarean section needed to be performed
immediately in order to remove the dead foetus. While on the operating table, A.S. was asked
to sign a form confirming her consent to the Caesarean section. She signed it together with a
barely legible note that had been hand-written by the doctor, which said: “Having knowledge
of the death of the embryo inside my womb I firmly request my sterilization [a Latin term
unknown to the author was used]. I do not intend to give birth again; neither do I wish to
become pregnant”.671
The hospital records showed that, within 17 minutes of the ambulance arriving at the
hospital, the Caesarean section was performed, the dead foetus and placenta were removed
and the author’s fallopian tubes were tied. Before leaving the hospital, A.S. asked the doctor
information about her state of health and when she could try to have another baby. She then
learned about the meaning of “sterilisation”.
A.S. submitted to the CEDAW Committee that Hungary had violated Articles 10 (h),
12 and 16 paragraph 1 (e) of the CEDAW Convention. A.S. noted in her submission that
sterilisation is never a life-saving intervention that needs to be performed on an emergency
basis without the patient’s full and informed consent. A.S. explained that she received no
specific information about the sterilisation, the effects of the operation on her ability to
reproduce, or advice on family planning and contraceptive measures – thus she was unable to
make an informed decision about the procedure.672
Hungary submitted that since the sterilisation procedure is not irreversible, since A.S.
already has three living children, she “must have been familiar with the nature of pregnancy
and childbirth without further education”, and she was given all the information “in a way
that was appropriate in the given circumstances”.

671
672
Case paras. 3.1-3.8.
182
The CEDAW Committee first analysed whether Hungary had violated Article 10 (h)
of the CEDAW Convention by failing to provide information and advice on family
planning. 673 The Committee established that A.S. had not been provided with “detailed
information about the sterilisation, including the risks involved and consequences of the
surgery, alternative procedures or contraceptive methods”. The Committee also noted that
any counselling A.S. received “must have been given under stressful and most inappropriate
conditions”. Thus, the Committee established that Hungary had violated Article 10 (h).
Further, the CEDAW Committee analysed A.S.’s submission regarding Article 12.674 The
Committee emphasised, how A.S. during 17 minutes “was prepared for surgery, signed the
statements of consent for the caesarean section, the sterilisation, a blood transfusion and
anaesthesia and underwent two medical procedures, namely the caesarean section to remove
the remains of the dead foetus and the sterilization”.675
The Committee found that “it is not plausible that during that period of time hospital
personnel provided the author with thorough enough counselling and information about
sterilization, as well as alternatives, risks and benefits, to ensure that the author could make a
well-considered and voluntary decision to be sterilized”.676 The Committee referred to its
general recommendation No. 24 on women and health, which provides that states should not
allow forms of coercion, such as non-consensual sterilisation that violate women’s rights to
informed consent and dignity. Thus, the Committee established that Hungary had also
violated Article 12.
Lastly, the Committee also found that Hungary had violated Article 16, paragraph 1
(e) of the CEDAW Convention.677 The Committee established that “the sterilization surgery

673
Article 10
States Parties shall take all appropriate measures to eliminate discrimination against women in order to ensure
to them equal rights with men in the field of education and in particular to ensure, on a basis of equality of men
and women:
(h) Access to specific educational information to help to ensure the health and well-being of families, including
information and advice on family planning.
674
Article 12
1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of
health care in order to ensure, on a basis of equality of men and women, access to health care services,
including those related to family planning.
2. Notwithstanding the provisions of paragraph I of this article, States Parties shall ensure to women
appropriate services in connection with pregnancy, confinement and the post-natal period, granting free
services where necessary, as well as adequate nutrition during pregnancy and lactation.
675
Case para. 11.3.
676
Case para. 11.3.
677
Article 16
1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters
relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and
women:
183
was performed on the author without her full and informed consent and must be considered to
have permanently deprived her of her natural reproductive capacity”.678
4.5.3 The Inter-American Court of Human Rights Case

I.V. v. Bolivia
The Inter-American Court of Human Rights has also decided a case concerning
forced sterilisation – I.V. v. Bolivia.679 I.V. was a woman born in Peru who fled from
persecution to Bolivia, where the authorities gave her and her family asylum in 1994. I.V.
became pregnant with her third child in 2000. In July 2000 she went to the hospital after a
spontaneous rupture of the membranes at week 38,5 of her pregnancy. At the hospital, the
doctors decided that I.V. should deliver via a Caesarean section. A resident started the
Caesarean section, but due to some complications an obstetrician-gynaecologist took over.680
After the baby had been born the doctors performed another procedure – the tubal ligation.
The doctors did not have I.V.’s consent – I.V.’s husband signed the consent form for the
Caesarean section, but for the sterilisation the medical staff could not find him.681 The Court
considered Articles 5.1, 7.1, 11.1, 11.2, 17.2, 3 and 1.1 in conjunction with Article 7 of the
Belem do Para convention.682
The Court recognised that there is a power relationship between a doctor and a
patient, which can be worsened by the unequal power dynamics between men and women
and by persistent gender stereotypes that reinforce the position of women as dependents and
subordinates.683 It continued with the power analysis and explained how harmful gender
stereotypes can impact and affect women's access to information on sexual and reproductive
health, as well as the process and manner in which consent is obtained – since a woman who
is not aware of her rights may adopt a less assertive attitude towards her rights. This can lead
to further paternalism and situations where health professionals make decisions without

(e) The same rights to decide freely and responsibly on the number and spacing of their children and to have
access to the information, education and means to enable them to exercise these rights;
678
Case para. 11.4.
679
I.V. v. Bolivia, Preliminary Objections, Merits, Reparations, and Costs, Judgment, IACtHR (ser. C) No. 329
(2016) (Only Spanish version available). See gender analysis of the awarded reparations: D. Alaattinoğlu,
“Gender-Sensitive Reparations in the I.V. v. Bolivia Case: A Missed Opportunity?”, March 24, 2017, available
at: https://ilg2.org/2017/03/24/gender-sensitive-reparations-in-the-i-v-v-bolivia-case-a-missed-opportunity/.
680
Case, paras. 63-64.
681
Case, para. 65
682
Inter-American Convention On The Prevention, Punishment And Eradication Of Violence Against Women
"Convention Of Belem Do Para".
683
Case, para. 186.
184
taking into account the patient’s autonomy and wishes.684 The Court gave examples of
stereotypes frequently applied to women in the health sector: women are identified as
vulnerable and unable to make reliable or consistent decisions, women are considered
impulsive and fickle in need of guidance, women should bear the responsibility of sexual
health of the couple.685 Thus, the Court concluded it was integral to recognise and reject the
stereotypes that might violate the rights established in the Convention.686 It also underscored
the importance of consent particularly in cases where the woman has scarce economic
resources and/or low levels of education as harmful stereotypes might act as justification of
population control.687
The Court concluded that the sterilisation in a public hospital, under stress and
without informed consent causing I.V. serious physical and psychological damage that
implied the permanent loss of her reproductive capacity, constituted an act of violence and
discrimination against her – thus violating Articles 5.1, 7.1, 11.1, 11.2, 13.1 and 17.2 in
relation to 1.1 of the American Convention and Article 7.a) of the Convention of Belém do
Pará.688
The Court also analysed whether Bolivia had violated the prohibition of torture and
other cruel, inhuman or degrading treatment (Article 5).689 It first noted the context – how
historically the framework for protection against torture and ill-treatment had developed in
the context of deprivation of liberty, as an instrument of punishment or intimidation for
interrogation, but how the international community has recognised that torture and other
inhuman treatment can also occur in other contexts, e.g. in the field of health services and
specifically of reproductive health.690 Thus, the Court highlighted the need to adopt a gender
lens to analyse women’s experiences with violence, torture and ill-treatment.691 In this regard,
the Court quotes I.V.’s words and notes that the sterilisation “radically marked the life of
I.V.”.692 In conclusion, it found that I.V. was subjected to cruel, inhuman and degrading

684
Case, para. 187.
685
Case, para. 187.
686
Case, para. 187.
687
Case, para. 188.
688
689
Article 5. Right to Humane Treatment
1. Every person has the right to have his physical, mental, and moral integrity respected.
2. No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons
deprived of their liberty shall be treated with respect for the inherent dignity of the human person.
690
Case, para. 263.
691
Case, para. 263.
692
Case, para. 269.
185
treatment, and Bolivia had breached Article 5.1 and 5.2 of the American Convention in
relation to Article 1.1.693
4.6 “SOME WOMEN CAUSE PROBLEMS WHEN THEY HAVE BABIES”
As I explained in subsection 4.5 how micro-aggressions are silencing women’s voices
in medical settings, and can lead to reproductive violence. The forced sterilisation
jurisprudence is an expression of this violence that can be conceptualised through a reversed
version of the “normative motherhood” stereotype discussed in Chapter 3 (subsection 3.3).
Namely, the “reversed normative motherhood” is an appalling belief according to which
some women should not have children, or at least not more children than they already have,
which can in turn lead to systematic policies of forced sterilisation of women from a specific
ethnicity group, race, socioeconomic backgrounds, mental health problems and/or with
disabilities. Barbara Gurr explains, how a state’s interest in producing a collective national
identity “assigns different values to different reproductive bodies, reflecting and producing
different reproductive experiences”, and in this context diversity and heterogeneity are
perceived as a “challenge to security, to cultural normativity, and to the availability of
resources”, which means that women’s reproductive bodies become “a site of both active and
passive regulation” since the “other” must be eliminated, managed, or contained.694 In other
terms, regulations or practices regarding reproduction become punitive.695 This stereotype is
present in all the forced sterilisation cases of Roma women presented above.696
Priti Patel explains that although countries might argue that cases of forced
sterilisations happen due to medical negligence or malfeasance on the part of individual
providers, the root causes are structural stigmatisation and discrimination of certain women,
which shows the importance of framing forced sterilisation of women as discrimination, and
Patel therefore writes that the “failure of courts to acknowledge that the coerced or forced
sterilization of marginalized women amounts to a violation of their right to be free from
discrimination points to a misunderstanding of the nature of forced and coerced sterilization
as targeting women specifically because they are from population groups deemed unworthy

693
Case, para. 270.
694
B. Gurr, Reproductive Justice : The Politics of Health Care for Native American Women (2015), pp. 27-29.
695
Open Society Foundations, “Against Her Will: Forced and Coerced Sterilization of Women Worldwide”
(2011) available at: https://www.opensocietyfoundations.org/publications/against-her-will-forced-and-coerced-
sterilization-women-worldwide (accessed 26 February, 2018).
696
See further specifically on Roma women: A. Oprea, “Toward the recognition of critical race theory in human
rights law: Roma women's reproductive rights”, in: Realizing Roma rights, J. Bhabha, A. Mirga, M. Matache
(eds.) (2017), G. Albert, M. Szilvasi, “Intersectional Discrimination of Romani Women Forcibly Sterilized in
the Former Czechoslovakia and Czech Republic”, Health and Human Rights Journal, Vol. 19, No. 2 (2017).
186
of procreation”.697 As I have expressed above I agree with Patel that understanding forced
sterilisation as “gender discrimination” is essential for recognising gendered power dynamics
that enable and encourage such violence, but I would not describe the absence of gender and
power dimension and feminist approaches in courts’ rights analysis as a “misunderstanding”.
Instead, there is a deliberate resistance to leave it out as a holistic reading of different
reproductive rights cases demonstrates – some judges showcase sexism in their dissenting
opinions, and some might perceive such analysis as “political” or disruptive/unlawyerly.
Feminist writers have demonstrated, how racism leads to grave reproductive rights
violations of Black women and indigenous women. 698 Dorothy Roberts terms the
phenomenon as the “devaluation of Black motherhood”, which traces back to slavery and
defines Black women as “welfare queens”, dangerously “superfertile”, poor, drug addicts
deviant and in summary unworthy of procreation.699 Roberts gives examples of forced birth
control in her book.700 Furthermore, women with disabilities are in general not expected to
become pregnant and give birth or be mothers, as women significant mobility disability may
not have the “physical grace or ease” central to “male notions of attractiveness”.701 Women
with disability are not expected to be sexual, and even further – depending on the nature of
their disability, some women should be prohibited from being sexual beings, becoming
pregnant, giving birth, and choosing parenthood for themselves.702
Alexandra Gartrell, Klaus Baesel and Cornelia Becker write how women with
disabilities can be excluded from activities that promote access to sexual and reproductive
rights information, screening, prevention and care services because disability is tied to

697
P. Patel, “Forced sterilization of women as discrimination”, Public Health Review, Vol. 38, No. 15 (2017),
pp. 2-3.
698
See e.g: D. Roberts, Killing the Black Body: Race, reproduction, and the meaning of liberty (1997), A.
Davis, Women, Race, & Class (1983), P. Williams, Alchemy of Race and Rights (1991), B. Gurr, Reproductive
Justice : The Politics of Health Care for Native American Women (2015).
699
D. Roberts, Killing the Black Body: Race, reproduction, and the meaning of liberty (1997).
700
D. Roberts, Killing the Black Body: Race, reproduction, and the meaning of liberty (1997), pp. 104-149.
Also, forced contraception has been very briefly mentioned (but largely understudied) in the context of post-
conflict Timor-Leste. The Chega report: “Some attackers, moreover, had access to relatively sophisticated
contraceptive technology, including medication that they injected into their victims prior to raping them” (p.
2667), The Final Report of the Timor-Leste Commission for Reception, Truth and Reconciliation (CAVR).
Similarly, Rukmini Callimachi reports on forced birth control by fighters of Islamic State to prevent Yazidi
women and girls held as sex slaves from becoming pregnant:
https://www.nytimes.com/2016/03/13/world/middleeast/to-maintain-supply-of-sex-slaves-isis-pushes-birth-
control.html.
701
A. Asch, M. Fine, “Introduction: beyond pedestals”, in: Women With Disabilities, Essays in Psychology,
Culture, and Politics, A. Asch, M. Fine (eds.) (1988); V. Kallianes, P. Rubenfeld, “Disabled Women and
Reproductive Rights”, Disability & Society, Vol. 12, No. 2 (1997).
702
See e.g. E. Tilley et al., “‘The silence is roaring’: sterilization, reproductive rights and women with
intellectual disabilities”, Disability & Society, Vol. 27, No. 3 (2012); L. I. Iezzoni et al, “‘How did that happen?’
Public responses to women with mobility disability during pregnancy”, Disability and Health Journal, Vol. 8,
Issue 3 (2015).
187
incorrect stereotypes of asexuality, and an inability/lack of desire to bear and parent
children.703 Women with mental health problems may often be perceived as “inadequate” or
“dangerous”. 704 If they have indeed become mothers then they are facing additional
“monitoring” from the society.705 Claudia Malacrida argues that while ideal motherhood is
both unachievable and blaming for all women, it is particularly challenging construct to
negotiate for women with disabilities: mothers with disabilities face many economic, social
and environmental barriers such as poverty, limited access to public spaces, heightened
vulnerability to abuse, unemployment, and violence.706 Similarly, women with disabilities are
vulnerable to mistreatment during their pregnancy (antenatal care), or birth (obstetric care).707
Women with disability might be automatically qualified as “high-risk”, and their right to
remain autonomous throughout the birth experience might be interfered with.708 Thus, an
intersectional approach is needed to fully unpack the impact of “normative motherhood”
stereotypes for different women with different identities, backgrounds, socio-economic
status. Borrowing from the research of Alexandra Gartrell, Klaus Baesel and Cornelia Becker
– women with disabilities should be treated as experts of their own experience.709
The forced sterilisation jurisprudence of the Strasbourg Court demonstrates the
court’s resistance to framing reproductive violence against Roma women as discrimination
based on gender and ethnicity. Although the applicants’ stories show how they were put in
separate rooms for the “Gypsies”, or the medical files indicated their ethnic background, and
how they were treated in a degrading way, the majority opinions resisted this framing,

703
A. Gartrell, K. Baesel, C. Becker, “‘We do not dare to love”: women with disabilities’ sexual and
reproductive health and rights in rural Cambodia”, Reproductive Health Matters, Vol. 25, No. 50 (2017), p. 32.
For example, they write how relevant information and services may be “physically inaccessible, communication
modalities mayb be inappropriate, health care systems may lack disability awareness and be poorly prepared to
cater for women with disabilities”.
704
705
See e.g. L. Grue, K. Tafjord Laerum, “’Doing Motherhood’: Some experiences of mothers with physical
disabilities”, Disability & Society, Vol. 17, No. 6 (2010).
706
disability”, International Journal of Qualitative Studies in Education, Vol. 22, No. 1 (2009), pp. 100, 102.
707
See e.g. country specific studies: M. W. Gichane, “‘They must understand we are people’: Pregnancy and
maternity service use among signing Deaf women in Cape Town”, Disability and Health Journal, Vol. 10, Issue
3 (2017); B. Höglund, “Midwives’ knowledge of, attitudes towards and experiences of caring for women with
intellectual disability during pregnancy and childbirth: A cross-sectional study in Sweden”, Midwifery, Vol. 29,
Issue 8 (2013), in this study e.g more than one-third of midwives considered that women with intellectual
disability “should not be pregnant and give birth at all”.
708
See e.g.: D. Walsh-Gallagher et al, “Normalising birth for women with a disability: The challenges facing
practitioners”, Midwifery, Vol. 29, Issue 4 (2013).
709
A. Gartrell, K. Baesel, C. Becker, “‘We do not dare to love”: women with disabilities’ sexual and
reproductive health and rights in rural Cambodia”, Reproductive Health Matters, Vol. 25, No. 50 (2017), p. 32.
They write how women’s access to reproductive and sexual rights should not depend on the hope that their
spouse or another family member will pass on necessary information for example as “whilst a spouse can be a
source of support, love and care, they can also be abusive and unsupportive” (p. 40).
188
concluding for example that “the information available is not sufficient to demonstrate in a
convincing manner that the doctors acted in bad faith with the intention of ill-treating the
applicant”, “notwithstanding the fact that the applicant’s sterilisation without her consent
calls for serious criticism, the objective evidence is not sufficiently strong in itself to
convince the Court that it was part of an organised policy or that the hospital staff’s conduct
was racially motivated”, thus finding that it “was not necessary to separately determine
whether the facts of the case also gave rise to breach of Article 14”.
Indeed, Judge Mijovic’s dissent in V.C. case criticised similarly: “Finding violations
of Articles 3 and 8 alone (…) reduces this case to the individual level, whereas it is obvious
that there was a general State policy of sterilisation of Roma women under the communist
regime (…), the effects of which continued to be felt (…)”. Judge Mijovic concluded that the
sterilisations were not “of an accidental nature”, but V.C. was “marked out” because of her
origin, and this represented “the strongest form of discrimination and should have led to a
finding of a violation of article 14 in connection with the violations found of Articles 3 and
8”.
In contrast, as seen above in the I.V. case, the Inter-American Court of Human Rights
recognised the power relationship between a doctor and a patient, which can be “worsened by
the unequal power dynamics between men and women and by persistent gender stereotypes
that reinforce the position of women as dependents and subordinates”, and explained how
harmful gender stereotypes can impact and affect women's access to information on sexual
and reproductive health, which can in turn lead to more paternalism and situations where
health professionals make decisions without taking into account the patient’s autonomy and
wishes.

189
never
trust anyone
who says
they do not see color.
this means
to them
you are invisible
– is
(Nayyirah Waheed)
5. WOMEN AND (IN)FERTILITY NARRATIVES
Chapter 5 analyses women and (in)fertility narratives by considering assisted

reproduction jurisprudence. Legal scholarship usually looks at assisted reproduction through
familiar legal categories such as access, consent or accountability attempting to define clearly
and exhaustively which assisted reproduction services should be available for which people
under what circumstances – what should be legal, illegal. The legal discipline also attempts to
create and then reinforce a perception according to which questions about assisted
reproduction are layered and nuanced matters of “lived experiences” only for sociologists and
anthropologists whereas law (the legal discipline) can with its normative and legalistic
approach clear out controversies and set up a neutral system. However, a legal analysis that
does not consider the social context in which assisted reproduction fails to recognise that
neither assisted reproduction nor the science behind it are neutral, but impacted by race,
gender, class, religion, ethnicity and other identity elements.
Therefore, the transnational human rights law forums – courts and committees – should
explicitly acknowledge that with their high level legal interpretation they are creating and
reinforcing (if not challenging) power systems through human rights law by defining sex,
reproduction, families, framing and compartmentalising people: determining who is in, who
is out when it comes to the “game of reproduction”. The approach the European Court of
190
Human rights has adopted for example may seem balanced, objective and neutral as it awards
the member states the margin of appreciation. However, by holding on to what Barbara
Havelková called the “belief in the existence of a fair world based on a confidence that
existing institutional set-ups are fair and neutral” (cited in Chapter 2), the Strasbourg Court
may actually fall short in understanding the rights framework as an expression of power
relationships.
The total number of cases in Chapter 5 is lower than in previous chapters, but I am
following a similar structure in demonstrating the narratives. I begin with explaining the
social dimensions of infertility and the power dynamics behind assisted reproduction
regulations and follow by introducing seven cases: two decisions concerning surrogacy from
the European Court of Human Rights and five judgments regarding access to assisted
reproductive technologies: four from the European Court of Human Rights and one from the
Inter-American Court of Human Rights.
191
5.1 SOCIAL DIMENSIONS OF INFERTILITY
What is infertility? The World Health Organisation offers a clinical definition
that sees infertility as a “disease, defined by the failure to achieve a clinical pregnancy after
12 months or more of regular unprotected intercourse”.710 The time limit of 12 months is
arbitrary, but corresponds with the fact that the majority of couples who achieve pregnancy
without medical interference will do so within 12 months – the main purpose of this time
limit as explained by Liberty Walther Barnes is to alert patients to seek medical help in the
“race against the woman’s biological clock”.711
The World Health Organisation’s definition does not currently capture the social
dimensions of infertility.712 Arthur Greil, Julia McQuillan and Kathleen Slauson-Blevins on
the contrary explain how the social construction of health and illness is “even more striking
in the case of infertility than for other health conditions”.713 They highlight for example that
irrespective of how medicine defines infertility, couples do not define themselves infertile or
turn to treatment unless they “embrace parenthood as a desired social role”, thus infertility is
signalled by the “absence of desired state”, and how there exist other possibilities than
pursuing cure – e.g. voluntary childlessness, adoption, changing partners.714 Furthermore,
Walther Barnes notes how some infertility treatments are designed to resolve the social issues
that infertility presents rather than to fix biological problems: this means that in vitro
fertilisation for example does not treat the cause of a couple’s inability to achieve pregnancy,
but it simply “circumvents whatever is impeding conception to make pregnancy possible” –
or in other words: the ultimate goal is not “necessarily to repair or replace broken parts; it is
to make a baby and turn people into parents”.715
Infertility is a global problem.716 However, despite the proved worldwide prevalence,
Margaret E. Greene and Ann E. Biddlecom demonstrate in their work how demographic

710
See: http://www.who.int/reproductivehealth/topics/infertility/definitions/en/ (also for other definitions of
infertility). See beyond the WHO definition in a recent collection: The Palgrave Handbook of Infertility in
History: Approaches, Contexts and Perspectives, G. Davis, T. Loughran (eds.) (2017).
711
L. W. Barnes, Conceiving Masculinity: male infertility, medicine, and identity (2014), p. 10.
712
See a discussion about changing the definition: G. Nargund, “Involuntary childlessness: extending fertility
treatment to single people and same-sex couples”, Bionews, 14 November 2016, available at:
https://www.bionews.org.uk/page_95783 (accessed 28 February 2018).
713
A. Greil, J. McQuillan, K. Slauson-Blevins, “The Social Construction of Infertility”, Sociology Compass,
Vol. 5, Issue 8 (2011), p. 737.
714
A. Greil, J. McQuillan, K. Slauson-Blevins, “The Social Construction of Infertility”, Sociology Compass,
Vol. 5, Issue 8 (2011), p. 737
715
L. W. Barnes, Conceiving Masculinity: male infertility, medicine, and identity (2014), pp. 10-11.
716
M. N. Mascarenhas et al, “National, Regional, and Global Trends in Infertility Prevalence Since 1990: A
Systematic Analysis of 277 Health Surveys”, PLOS Medicine (2012). Research estimating infertility prevalence
between 1990-2010 demonstrates that it was the highest in South Asia, Sub-Saharan Africa, North
Africa/Middle East, and Central/Eastern Europe and Central Asia.
192
studies on reproduction have been strongly influenced by Western ideas of kinship, family,
gender roles. 717 Furthermore, an edited collection on ethnicity and fertility by Lorraine
Culley, Nicky Hudson, and Floor van Rooij explains how infertility treatment in less
developed countries “evokes feelings of disbelief and discomfort, since the dominant image
of such societies is that of ‘over-population’”.718 Moreover, the collection reveals how similar
fixed ideas impact public perceptions of marginalised communities within “Western
societies”, resulting in “a desire to limit the reproductive capacity of such groups” instead of
making any efforts to assist people’s procreative choices, which means that infertility and
new reproductive technologies are differentially experienced “according to an individual's or
couple's location in a social space, and their agency in negotiating and navigating that
location”.719
Mindy Jane Roseman comments how the World Health Organisation’s framing is a
“heterosexual biomedical model of infertility” in which women bear more of the “conceptual
and actual burden”:
Fertility and sterility are demographic measures recorded as the
number of children born to women, in the case of the former and women’s
inability to conceive a pregnancy in the latter. Men do not figure as
participants in reproduction or infertility.720
Accordingly, Roseman suggests that de-medicalising infertility would allow the focus
to shift to social and structural factors: “Reconceptualising infertility as a disabling status
having bio-medical and social/structural causes, coupled with more inclusive norms
surrounding family formation, has the potential to recast state’s human rights”. 721
Furthermore, in a similar vein Jasmine Fledderjohann and Liberty Walther Barnes argue that
“reproductive imaginaries” – prevailing social beliefs about who can and should re-produce –
shape the design and conclusions of infertility research and consequently, some social groups

717
M. E. Greene, A. E. Biddlecom, “Absent and Problematic Men: Demographic Accounts of Male
Reproductive Roles”, Population and Development Review, Vol. 26, No. 1 (2000).
718
L. Culley, N. Hudson, F. van Rooij, “Introduction: Ethnicity, Infertility and Assisted Reproductive
Technologies”, in: Marginalized Reproduction: Ethnicity, Infertility and Reproductive Technologies, L. Culley,
N. Hudson, F. van Rooij (eds.) (2013).
719
L. Culley, N. Hudson, F. van Rooij, “Introduction: Ethnicity, Infertility and Assisted Reproductive
Technologies”, in: Marginalized Reproduction: Ethnicity, Infertility and Reproductive Technologies, L. Culley,
N. Hudson, F. van Rooij (eds.) (2013).
720
M. J. Roseman, “The fruits of someone else’s labor: gestational surrogacy and the promise of human rights
in the 21st Century”, in: New Human Rights in the 21st Century (forthcoming in 2018).
721
in the 21st Century”, in: New Human Rights in the 21st Century (forthcoming in 2018). However, Roseman also
considers that people may not want to frame their family desires as illness or disability.
193
or populations “fall under the radar of infertility tracking practices, rendering their infertility
and reproductive health needs invisible”.722 They identify these people as the “invisible
infertile”, and refer to their omission from infertility data and statistics—whether intentional
or unintentional—as the “process of invisibilization”.723
Furthermore, the World Health Organisation’s disease-based framing of infertility
does not capture the gender dimensions of infertility. Infertility is a women’s reproductive
health issue as secondary infertility is commonly a consequence of unsafe abortion or
insufficient obstetric care.724 Unsafe abortion and insufficient obstetric care are not purely
biomedical problems as I showed in Chapters 3 and 4, but have a strong social dimension as
they are caused by societal power dynamics that do not value women, and do not see
women’s decisions about reproduction as human rights issues.
Liberty Walther Barnes writes how despite the fact that infertility is equally common in
men and in women it is very often considered as “a women’s issue, the “wife’s problem, a
female disorder”, and thus women are more likely to bear the social stigma of childlessness,
and are more likely to undergo medical treatments even in the cases of male infertility as a
result of a strong cultural belief (that influences medicine and the sociological constructions
of infertility) according to which healthy testicles and potent sperm are the symbols of power,
strength and thus also manliness and masculinity: “a real man can get the sex he wants and
impregnate a woman when he so desires”.725 Thus, Walther Barnes notes how women are
portrayed as responsible for all aspects of reproduction from “contraception to conception,
from fetal health to breastfeeding”.726
Maya Unnithan adds how the fear of infertility is especially widespread in poorer parts of
the world: “The gendered burden of infertility in these contexts falls heavier on the woman,
for whom childbearing and motherhood remain the key determinants of what it means to be

722
J. Fledderjohann, L. Walther Barnes, “Reimagining infertility: a critical examination of fertility norms,
geopolitics and survey bias”, Health Policy and Planning, Vol. 33, Issue 1 (2018), p. 35.
723
J. Fledderjohann, L. Walther Barnes, “Reimagining infertility: a critical examination of fertility norms,
geopolitics and survey bias”, Health Policy and Planning, Vol. 33, Issue 1 (2018), p. 35.
724
Secondary infertility: “When a woman is unable to bear a child, either due to the inability to become
pregnant or the inability to carry a pregnancy to a live birth following either a previous pregnancy or a
previous ability to carry a pregnancy to a live birth, she would be classified as having secondary infertility.
Thus those who repeatedly spontaneously miscarry or whose pregnancy results in a stillbirth, or following a
previous pregnancy or a previous ability to do so, are then not unable to carry a pregnancy to a live birth would
present with secondarily infertile”. (http://www.who.int/reproductivehealth/topics/infertility/definitions/en/).
725
L. W. Barnes, Conceiving Masculinity: male infertility, medicine, and identity (2014), pp. 3, 5.
726
L. W. Barnes, Conceiving Masculinity: male infertility, medicine, and identity (2014), p.14. See further: L.
Ying Ying et al, “Gender differences in experiences with and adjustments to infertility: A literature review”,
International Journal of Nursing Studies, Vol. 52 (2015).
194
an adult woman”. 727 Additionally, scholars have explored whether infertility can make
women more vulnerable to domestic/interpersonal gender-based violence.728 The evidence
showing how women experience the social stigma of infertility more violently and
aggressively is linked to the “normative motherhood” narrative explained in Chapter 3.
5.2 MANAGING PEOPLE & DISTRIBUTING ROLES AND POWER WITH

ASSISTED REPRODUCTIVE TECHNOLOGIES
Assisted reproduction becomes relevant when there is an obstacle to a person’s wish to
reproduce. This obstacle does not need to be necessarily a purely biomedical one however as
explained above – infertility is not a purely biomedical phenomenon. Mindy Jane Roseman
explains that assisted reproductive technologies have opened novel possibilities for family
formation and thus it is “not surprising that politics, not biology, guard the gates of
reproduction in the 21st century”.729 Accordingly, as Roseman contends, laws regulating
surrogacy and in vitro fertilisation attempt to “stabilise, reproduce and protect” or “diverse” a
state’s vision of the family – heterosexual, nuclear, genetically-related.730.
Infertility treatment was changed forever when the first “test-tube-baby”, Louise
Brown, was born in 1978 in the United Kingdom after a successful in vitro fertilisation.731
Since that time the field of assisted reproductive technologies has evolved extensively, but in
vitro fertilisation itself is only one of the technologies. Sarah Franklin explains, how
“artificial insemination, surrogacy, surgery, and hormonal enhancement of fertility, as well as
contraception and abortion can all be counted as forms of technological assistance to
reproduction, or what are known as reproductive technologies”.732 However, despite assisted
reproduction seemingly creating more opportunities, one must not forget that they are

727
M. Unnithan, “Learning from infertility: gender, health inequities and faith healers in women’s experiences
of disrupted reproduction in Rajasthan”, South Asian History and Culture, Vol. 1, No. 2 (2010), p. 320. See
further on how infertility/childlessness impacts women’s status and position: e.g. S. De Vos, “Biologically
childless women 60+ often live in extended family households in Latin America”, Journal of Cross-Cultural
Gerontology, Vol. 29, Issue 4 (2014), J. J. Fledderjohann, “‘Zero is not good for me’: implications of infertility
in Ghana”, Human Reproduction, Vol. 27, No. 5, L. Remennick, “Childless in the Land of Imperative
Motherhood: Stigma and Coping Among Infertile Israeli Women”, Sex Roles, Vol. 43, Nos. 11/12 (2000).
728
See e.g: M. Shah et al., “Infertility and gender based violence in Kampala, Uganda”, Fertility and Sterility,
vol.100 (3) (2013); R. Ozturk et al., “Another face of violence against women: Infertility”, Pakistan journal of
medical sciences, Vol. 33, No. 4 (2017); F. Akpina et al., “Intimate partner violence in Turkey among women
with female infertility”, Sexual and Relationship Therapy (2017).
729
730
731
See also further: K. Dow, “Now She's Just an Ordinary Baby": The Birth of IVF in the British
Press”, Sociology (2018).
732
S. Franklin, Biological Relatives. IVF, Stem Cells, and the Future of Kinship (2013), p. 189.
195
situated in specific power dynamics and are thus (as noted above) experienced differently by
different social groups.
Feminist literature on assisted reproduction is quite expansive, but what is more
remarkable (although not surprising in the context of feminisms as explained in the beginning
of this thesis) how contradictive views different feminist writers have. In 1985 Gena Corea
published the first major feminist monograph addressing assisted reproductive technologies
where she argued that assisted reproductive technologies are tools of patriarchal oppression
as these technologies facilitate and expand the male technological control over women’s
bodies.733 A year later, in 1986 Barbara Katz Rothman published her book in which she
defends the opposite: to her reproductive technology is not inherently patriarchal, but merely
an opportunity: she underscores how these new technologies can push the society to rethink
the definitions of parenthood, motherhood, and fatherhood.734 Maria Sjöholm’s work too
discusses whether assisted reproductive technologies can provide women with more
autonomy and freedom and challenge gender roles and relations, or actually reinforce them,
expose women bodies to over-medicalisation, and create the expectation that women should
do everything they can to become mothers, and accept all pain (violence), financial
costs.735Letizia Palumbo argues that the question whether assisted reproductive technologies
are potentially liberating or restrictive does not have a universal linear answer, but instead it
is determined by the “interplay of economic, social, cultural, and normative factors within
different countries”.736
Liberty Walther Barnes also highlights how infertility is not life-threatening, but it is
“life-defining”: meaning that having biological children is seen as an important part of a
person’s (especially women’s) identity and thus there is a social expectation according to
which people who want a baby, but cannot conceive “should take advantage of the medical
opportunities”.737 In other words, there is an expectation to try, i.e take advantage of assisted
reproductive technologies at whatever cost – as Maya Unnithan asks whether access to
assisted reproductive technologies creates an expectation (a pressure) to make use of the

733
G. Corea, The Mother Machine: From Artificial Insemination to Artificial Wombs (1985).
734
B. Rothman, The Tentative Pregnancy: Prenatal Diagnosis and the Future of Motherhood (1986).
735
M. Sjöholm, Gender-Sensitive Norm Interpretation by Regional Human Rights Law Systems (2017), pp. 582-
584.
736
L. Palumbo, “The Borders of Legal Motherhood”, in: Reassembling motherhood: procreation and care in a
globalized world, Y. Ergas, J. Jenson, S. Michel (eds.) (2017), p. 77.
737
L. W. Barnes, Conceiving Masculinity: male infertility, medicine, and identity (2014), p. 9.
196
available technology, are women (and men) expected to at least to be seen to “strive” for
parenthood, to be at least “trying”.738
Furthermore, Yasmine Ergas, Jane Jenson, and Sonya Michel write how in one way
we could see the expanding of choices for women without viable oocytes, women
approaching or in menopause, women without wombs as they can also become pregnant and
achieve parenthood that is rooted in shared genetics/biology.739 Thus they argue that although
assisted reproductive technologies are potentially “redefining who may procreate, whether by
direct gestation or through surrogacy, and with what or whose genetic material”, the
possibility to choose how to mother is not equally available to everyone within one country
or globally as “compulsion and coercion, exclusion and privilege persist”. 740 Similarly,
Merete Lie and Nina Lykke note that although assisted reproductive technologies are
positioned as “means to achieve the ‘democratization’ of childbirth and queer family-
building, including same-sex and single parent families”, which might be accurate to some
extent, this “democratization” is happening in the context of “gendered and geopolitical
inequalities and power differentials”.741
Sarah Franklin underscores that over 30 years of ethnographic research demonstrates
two contrasting global trends: the enormous variation in the governance and regulation of
assisted reproductive technologies, and the “equally striking consistency of people’s reasons
for choosing to pursue technologies like IVF or PGD, and their descriptions of their
experiences of doing so, which remarkably constant and predictable patterns across the globe
and over time”.742 She also confirms the power patterns and identity politics within assisted
reproduction when she writes how assisted reproductive technologies have a highly symbolic
role “as markers of modernity, tests of religious conviction, or proofs national scientific

738
of disrupted reproduction in Rajasthan”, South Asian History and Culture, Vol. 1, No. 2 (2010), p. 318. Also
Sarah Franklin asks, why despite the less-than-50%-success-rate the use of IVF has expanded rapidly, and
proposes that maybe it is because the pursuit of IVF itself offers something and/or at least “being seen to try to
procreate is preferable to doing nothing”, see in: S. Franklin, Biological Relatives. IVF, Stem Cells, and the
Future of Kinship (2013), p. 153.
739
Y. Ergas, J. Jenson, S. Michel, “Introduction: Negotiating “Mother” in the Twenty-First Century”, in:
Reassembling motherhood: procreation and care in a globalized world, Y. Ergas, J. Jenson, S. Michel (eds.)
(2017), pp. 2-3.
740
Y. Ergas, J. Jenson, S. Michel, “Introduction: Negotiating “Mother” in the Twenty-First Century”, in:
(2017), p. 2.
741
M. Lie, N. Lykke, ”Editorial Introduction” in: Assisted Reproduction Across Borders: Feminist Perspectives
on Normalizations, Disruptions and Transmissions, M. Lie, N. Lykke (eds.) (2017).
742
S. Franklin, “Changing Global Fertilities: a third demographic transition?” (2016) available at:
http://www.reprosoc.sociology.cam.ac.uk/blog-and-podcasts/blog/changing-global-fertilities-a-third-
demographic-transition.
197
achievement”, thus assuring that legislation in this area is never “simply (or even primarily)
practical or administrative”.743 Instead, as Franklin theorises, in vitro fertilisation is not only
about “managing or improving reproduction, but is itself a means of producing other things,
other relationships, other values, or other identities”.744
Maria Sjöholm also considers assisted reproductive technologies in her work on
reproductive rights and writes: “Whether access to IVF should be considered to be a human
rights norm is appoint of contention, as is the question regarding the appropriate scope of
state obligations if it were to be included within the human rights framework”.745 With this
Sjöholm frames one way to consider assisted reproduction within human rights law
(scholarship). However, determining “appropriate scope of state obligations” is mainly
focusing on framing human rights through specific goods or services, but as I laid out in
Chapter 2 I am interested in this thesis how human rights and power(lessness) intersect. I
adopted Alicia Ely Yamin’s definition of rights as “bundles of relationships”, which allows a
different reading of assisted reproduction cases, and connects them to other narratives
regarding women’s lives, their bodies, experiences with violence and their silencing.
The narrative analysis in Chapter 5 is somewhat distinct from the previous chapters
on women and pregnancy/birth/violence narratives as the cases regarding assisted
reproduction I have included concern couples and there is no explicit focus on women alone.
Also the jurisprudence occasionally demonstrates a tendency that Merete Lie et al describe as
“stories of egg and sperm”: the focus in the story of human reproduction has shifted from
human beings to the level of the cells so that gametes have become the central agents.746
I argue that the central agents need to be human beings and their lived experiences.
Therefore, the deconstruction work to find the stories about women is different, but it does
not mean that just because the courts do not explicitly talk about women, they are not
nevertheless constructing women’s identities. As Cicely Martson, Alicia Renedo and

743
S. Franklin, “Changing Global Fertilities: a third demographic transition?” (2016) available at:
demographic-transition. Franklin proposes a term “repronationalism” to describe, how each country uses
reproductive policy to shape its national identity, while also similarly expressing its national identity through its
reproductive policy, and how the turn to technology is changing how people understand fertility, parenthood,
reproduction and family. Also Marcia C. Inhorn talks about repronationalism in the context of the United Arab
Emirates and describes, how “emiratization appears to be consolidating the privileges of an already privileged
citizen-minority, leading to reproductive discrimination and disenchantment among infertile ‘outsiders’ living
in, or travelling to, this global reprohub”, in: M. C. Inhorn, “Cosmopolitan conceptions in global Dubai? The
emiratization of IVF and its consequences”, Reproductive BioMedicine and Society Online (2016).
744
S. Franklin, Biological Relatives. IVF, Stem Cells, and the Future of Kinship (2013), p. 153
745
746
M. Lie, M. Ravn, K. Spilker, “Reproductive Imaginations: Stories of Egg and Sperm”, Nordic Journal of
Feminist and Gender Research, Vol. 19, Issue 4 (2011), p. 243.
198
Gertrude Nsorma Nyaaba confirm, analysing fertility regulations must take into account
women’s “subject positions (i.e positions made available to women in society via particular
practices, cultural discourses and social relationships) and the social identities that develop
through women’s experiences and negotiations of such subject positions”.747 Also Maya
Unnithan writes how “infertility is a relational condition” that therefore entails “a
contextually defined biology caught within webs of social obligation and expectation”, and
thus, infertility is an “especially appropriate means through which to understand how
reproductive identity is gendered and how power is exercised by the family as well as by the
state, medical institutions and health-service personnel”.748
In Chapter 2 I referred to Maya Unnithan and Stacy Leigh Pigg’s idea how applying
rights analysis on the “messiness of everyday life” requires a closer (re)-examination of how
rights are framed, not just operationalised.749 Infertility and assisted reproduction can make
the “everyday life” even messier, but not in a light-hearted way. Namely, Merete Lie and
Nina Lykke write that even though assisted reproductive technologies today are “solidly
founded in standardized and routinized biomedical procedures and practices, their
performative effects, their entanglement in global and local power relations, and their way of
reinforcing or deconstructing intersecting power differentials are by no means clear or
given”.750
Thus, understanding the social dimensions of infertility is vital as Maya Unnithan notes:
“Focusing on the social meanings of infertility and its connection with construction of
identity provides important insights into not only how infertile individuals and couples feel
about their condition, but, linked to this, also how they seek to act in response to their
infertility”, and suggests that the conviction that infertility requires only or primarily a

747
C. Marston, A. Renedo, G. Nsorma Nyaaba, “Fertility regulation as identity maintenance: Understanding the
social aspects of birth control”, Journal of Health Psychology, Vol. 23, Issue 2 (2018), p. 240. Consequently
they add: “Family planning programmes that fail to take social dimensions into account risk maintaining the
reproductive status quo of the women they aim to help, reproducing social spaces where women still struggle
both to claim their reproductive rights and to constitute themselves as subjects of those rights”, p. 249.
748
of disrupted reproduction in Rajasthan”, South Asian History and Culture, Vol. 1, No. 2 (2010), pp. 316, 323.
749
Culture, Health & Sexuality, Vol. 16 (2014), p. 1183.
750
M. Lie, N. Lykke, “Editorial Introduction”, in: Assisted Reproduction Across Borders: Feminist Perspectives
on Normalizations, Disruptions and Transmissions, M. Lie, N. Lykke (eds.) (2017), p.7.
199
biomedical intervention needs to be challenged by scholars.751 This means that law needs to
turn to other disciplines to reflect people’s lived experiences and realities.752
5.3 SURROGACY: “MORAL AND ETHICAL DEGRADATION OF THE

SOCIETY”
Surrogacy is a practice whereby a woman becomes pregnant with the intention of
giving the child away upon birth. While surrogacy is not a new reproductive practice, it is an
increasingly prevalent phenomenon.753 Generally two types of surrogacy are talked about:
first, traditional surrogacy (also called low-technology or partial surrogacy) describes an
arrangement whereby the surrogate’s eggs are used and she would be the genetic mother and
second, gestational surrogacy is a form of surrogacy in which the surrogate provides the
uterus whereas the egg comes from another woman. Another division is based on whether the
woman who is a surrogate gets paid: commercial surrogacy and altruistic surrogacy.
Surrogacy is criminalised or just simply legally impossible in most of the world.754
Some countries have opened a discussion for moving from criminalisation to legalisation –
for example Estonia has considered allowing altruistic surrogacy if there is a medical
indication.755 Others have, however, moved from permissive regulations to restrictions as a
result of becoming a popular global destination for surrogacy arrangements. 756 Such

751
of disrupted reproduction in Rajasthan”, South Asian History and Culture, Vol. 1, No. 2 (2010), p. 321.
752
Anthropologists whose work should inform also legal scholarship record people’s experiences with infertility
and assisted reproductive technologies in different parts of the world. See e.g: A. Whittaker, Thai In Vitro:
Gender, Culture and Assisted Reproduction (2015), M. Inhorn, Cosmopolitan Conceptions: IVF Sojourns in
Global Dubai (2015) & The New Arab Man: Emergent Masculinities, Technologies, and Islam in the Middle
East (2012), A. Greil, Not yet pregnant: Infertile Couples in Contemporary America (1991); K. Ram, Fertile
Disorder: spirit possession and its provocation of the modern (2013); G. Becker, The Elusive Embryo: How
Women and Men approach the New reproductive technologies (2000).
753
A Comparative study on the regime of surrogacy in EU Member States. European Parliament, Directorate
General for Internal Policies, Policy Department C: Citizen’s rights and constitutional affairs (May 2013), p. 9.
754
Meaning that the civil law usually defines motherhood through birth: the woman who gives birth is the
mother. For example, the Estonian Family Act: § 83. Mother: The woman who gives birth to a child is the
mother of the child (https://www.riigiteataja.ee/en/eli/527012015010/consolide); the German Civil Code:
Section 1591: Maternity: The mother of a child is the woman who gave birth to it (http://www.gesetze-im-
internet.de/englisch_bgb/). See further: International surrogacy arrangements: legal regulation at the
international level, K. Trimmings, P. Beaumont (eds.) (2013).
755
To date surrogacy is still criminalised in Estonia. The Penal Code: § 132. Illegal surrogate motherhood
(1) Transfer of a foreign ovum, or an embryo or foetus created therefrom to a woman whose intention to give
away the child after birth is known is punishable by a pecuniary punishment.
(2) The same act, if committed by a legal person, is punishable by a pecuniary punishment.
756
See on India for example: D. Deomampo, Transnational reproduction: race, kinship, and commercial
surrogacy in India (2016); S. Rudrappa, Discounted life: the price of global surrogacy in India (2015); F.
Nahavandi, Commodification of Body Parts in the Global South: Transnational Inequalities and Development
Challenges (2016); A. Pande, “Transnational Commercial Surrogacy in India: Gifts for Global Sisters?”,
Reproductive Biomedicine Online, Vol. 23, Issue 5 (2011); M. Unnithan, “Thinking through Surrogacy
200
acumination, however, has also raised questions about global inequality, poverty, racism and
colonialism. 757 Anthropologists have researched surrogacy arrangements in different
countries to show people’s lived experiences with this reproduction practice.758 Also human
rights law scholars have increasingly discussed surrogacy.759
Furthermore, growingly more research is available that looks at how surrogacy
connects with other reproduction (reproductive rights) issues.760 This is important because
firstly, surrogacy issues cannot be separated from assisted reproductive technologies as
gestational surrogacy is impossible without in vitro fertilisation - in other words, legalising
surrogacy requires a permissive in vitro fertilisation regulation. Secondly, surrogacy is also
connected to questions about abortion and birth (i.e the decision of termination of her
pregnancy and autonomy over birth experience remains with the surrogate and does not
transfer to the intended parent(s)). And thirdly, questions about women’s roles, narratives of
their bodies and sexuality and harmful gender stereotypes naturally travel between different
reproduction issues. Surrogacy cases offer an additional dimension for understanding
dominant pregnancy and motherhood narratives. Namely, if the prevailing narrative is that all
women wish/choose to be mothers and pregnancy is as necessary precondition for full
motherhood then gestational surrogacy entails a deep conflict as motherhood and
pregnancy/birth are split between women.
Andrea Mulligan analyses the two surrogacy cases from the Strasbourg Court and
notes that since across Europe there are varied approaches to surrogacy (from permissive
laws to criminalisation) the European Court of Human Rights “faces a difficult task in
seeking to define and apply Convention rights in the surrogacy context” as it is “essential to
understand what, precisely, the Convention requires from domestic surrogacy regimes”.761
The European Court of Human Rights itself also seems to frame issues as “difficult tasks”
using the language of “sensitive moral and ethical issues” – in abortion jurisprudence as seen

Legislation in India: Reflections on Relational Consent and the Rights of Infertile Women”, Journal of Legal
Anthropology, Vol. 1, No.3 (2013).
757
F. Winddance Twine, Outsourcing the Womb: Race, Class and Gestational Surrogacy in a Global Market
(2011).
758
E. Teman, Birthing a Mother: the Surrogate Body and the Pregnant Self (2010); H. Ragone, Surrogate
Motherhood: Conception in the Heart (1994).
759
See e.g: Y. Ergas, “Babies without Borders: Human Rights, Human Dignity, and the Regulation of
International Commercial Surrogacy”, Emory International Law Review, Vol. 27, Issue 1 (2013); Surrogacy,
law and human rights, P. Gerber, K. O'Byrne (eds.) (2015).
760
(2017).
761
A. Mulligan, “Identity Rights and Sensitive Ethical Questions: The European Convention on Human Rights
and the Regulation of surrogacy Arrangements”, Medical Law Review, Vol. 0, No. 0 (2018).
201
in Chapter 3 and also in assisted reproduction jurisprudence as I show below in subsection
5.3.1.
Although I agree that human rights protection and guaranteeing dignified life for all
are complicated matters with no easy and quick solutions, I challenge such “difficult task”
and “sensitive moral and ethical issue” framings as in my view they hinder human rights-
based analysis that engages with how power is divided in the society, and shifts the
responsibility of creating transformative narratives away from the European Court of Human
Rights. Mulligan maintains that the European Court of Human Rights is “reluctant to enforce
on the Member States an orthodoxy which does not exist, or perhaps more accurately, an
orthodoxy which does not yet exist”, and shows “a marked reluctance to involve itself in
sensitive ethical and moral questions”.762
My reading of the Strasbourg Court’s surrogacy decisions is different and what
Mulligan describes as “reluctance” I perceive as resistance – especially when surrogacy cases
are read together with other cases concerning reproduction. I argue that the European Court
of Human Rights is engaging in what Mindy Jane Roseman describes as “stabilising,
reproducing and protecting” of a certain vision of the family – heterosexual, nuclear,
genetically-related. 763 And maintaining such a strict normative vision is connected to
silencing. Jill Allison’s work on infertility in Ireland argues that silence around infertility in
Ireland “sustains the myth of fertility as a universal experience, suppressing contrary
experiences in an ideology of motherhood and symbolic ideal of family”, and thus silence
becomes the “mechanism through which people maintain contingent identities as both moral
citizens and prospective parents”.764 To illustrate, in Judge Dedov’s separate opinion to the
Paradiso and Campanelli case he suggests that “surrogacy is carried out by poor people or in
poor countries”, the “recipients are usually rich and glamorous” and the European Court of
Human Rights needs to “prevent the moral and ethical degradation of the society”. As Mindy
Jane Roseman argues – behind “morality concerns” is often a concern for the
heteronormative nuclear family.765

762
and the Regulation of surrogacy Arrangements”, Medical Law Review, Vol. 0, No. 0 (2018), p. 8.
763
764
J. Allison, “Conceiving Silence: Infertility as Discursive Contradiction in Ireland”, Medical Anthropology
Quarterly, Vol. 25, Issue 1 (2011), p. 17 (Emphasis added by L. Oja).
765
202
5.3.1 Jurisprudence from the European Court of Human Rights
Mennesson v. France
Mennesson v. France involved a husband and wife holding French citizenship (first and
second applicants) and their two children who were born through a surrogacy arrangement in
the USA (third and fourth applicants).766 The used embryo was created with the husband’s
sperm and a donor’s egg (the wife was infertile) and implanted into a surrogate’s uterus in
California. A Californian court ruled that the applicants were the parents, but the French
authorities refused to register the children’s birth certificates. The European Court of Human
Rights first observed how “there is no consensus in Europe on the lawfulness of surrogacy
arrangements or the legal recognition of the relationship between intended parents and
children thus conceived abroad,” and argued consequently how “this lack of consensus
reflects the fact that recourse to a surrogacy arrangement raises sensitive ethical
questions”.767
Characterising the issue as “ethical” led the Court to grant France a margin of
appreciation in this matter—but since “an essential aspect of the identity of individuals is at
stake where the legal parent-child relationship is concerned,” that margin was reduced.768
This distinction enabled the Court to differentiate between the first and second “applicants’
right to respect for their family on the one hand and the right of the third and fourth
applicants to respect for their private life on the other”.769 The Strasbourg Court held that
there was no violation of the first and second applicants’ (the parents) right to respect for
their family life (Article 8), since France’s denial to register the birth certificates did not
prevent the applicants from living in France with their children, and thus France had struck a
fair balance “between the interest of the community in ensuring that its members conform to
the choice made democratically within that community and the interest of the applicants”.770
Regarding the children (the third and fourth applicants), however, the Court found that
although “the children have been identified in another country as the children of the first and
second applicants, France nonetheless denies them that status under French law” and that “a

766
Mennesson v. France, Application no. 65192/11 (2014).
767
Case, paras. 78-79.
768
Case, para. 80.
769
Case, para. 86.
770
Case, paras. 84-85.
203
contradiction of that nature undermines the children’s identity within French society”.771
According to the ECtHR, France had violated Article 8 when it overstepped the permissible
margin of appreciation by not recognising the importance of biological parentage as a
component of each individual’s identity and the child’s legal relationship with their
biological father.772
Paradiso and Campanelli v. Italy

The case Paradiso and Campanelli v. Italy concerned two Italian nationals, Donatino
Paradiso and Giovanni Campanelli – a married couple.773 Paradiso and Campanelli tried to
have a child and had also resorted to medically assisted reproduction technologies, but were
unsuccessful. They then put themselves forward as adoptive parents. Paradiso and
Campanelli subsequently decided to a make a surrogacy arrangement and contacted a clinic
based in Moscow. The clinic certified in February 2011 that Campanelli’s sperm had been
used for the embryos that were implanted into a surrogate’s uterus. The child was born in
Moscow on February 26th 2011, and on the same day the surrogate gave her written consent
to the child being registered as Campanelli’s and Paradiso’s child. In the following days
Paradiso moved with the baby into a flat in Moscow that she had rented in advance and
Campanelli who had remained in Italy was communicating with them regularly.
On March 10 2011 the Registry Office in Moscow registered Campanelli and Paradiso as
the newborn’s parents. The birth certificate was certified in accordance with the provisions of
the Hague Convention. On 29 April 2011 Paradiso went to the Italian consulate in Moscow
with the birth certificate to obtain the documents that would enable her to return to Italy with
the child. The Italian Consulate issued the necessary documents. When already in Italy, the
Italian authorities started the proceedings to suspend Campanelli’s and Paradiso’s parental
responsibility as they had brought the child to Italy in breach of the procedure provided for
international adoption. It was also established that the child did not have any genetic link to
Campanelli although the applicants had assumed that his sperm was used to create the
embryos – the clinic in Moscow had made an error.
It was also established that the child was in good health, Campanelli and Paradiso took
very good care of him and they asked for the child to be placed with them – with a view to
adopting him if necessary. The Italian domestic court, however, ordered that the child must

771
Case, para. 96.
772
Case, para. 100.
773
Paradiso and Campanelli v. Italy, Application no. 25358/12 (2017).
204
be removed from Campanelli and Paradiso, taken into the care of the social services and
placed in a children’s home. The child was placed in a children’s home for about 15 months
in a location that was unknown to the applicants and all contact between the applicants and
the child was prohibited. In January 2013 the child was placed in a new family with a view to
his adoption. During the European Court of Human Rights proceedings the Italian
Government confirmed that the child had been given a new identity and had been adopted.774
Paradiso and Campanelli submitted to the Strasbourg Court that permanently removing
the child had breached their right to respect for private and family life guaranteed by Article
8. The Court first established, whether Paradiso’s and Campanelli’s relationship with the
child could have been regarded as family life under Article 8, and regarded:
“ (…) the absence of any biological tie between the child and the intended
parents, the short duration of the relationship with the child and the
uncertainty of the ties from the legal perspective, and in spite of the existence
of a parental project and the quality of the emotional bonds, the Court
considers that the conditions enabling it to conclude that there existed a de
facto family life have not been met.”775
Thus, the Court concluded that no family life existed in the case of Paradiso and
Campanelli.776 The Court moved on to analyse whether the facts of the case fell within the
scope of “private life” instead. It established that since Paradiso and Campanelli had “a
genuine intention to become parents” and “a major part of their lives was focused on realising
their plan to become parents, in order to love and bring up the child” then what was at issue
was the “right to respect for the applicants’ decision to become parents and the applicants’
personal development through the role of parents”.777 Thus, the ECtHR concluded that the
facts of the case did fall within the scope of the applicants’ private life.778 The Court
established that the interference – giving the baby a status of “an abandoned child” and
removing him from Paradiso and Campanelli – was “in accordance with the law”. This
interference pursued a legitimate aim of “preventing disorder”, and the Court also regarded
legitimate the Italian authorities’ wish to “reaffirm the State’s exclusive competence to
recognise a legal parent-child relationship – and this solely in the case of biological tie or

774
Case, paras. 8-56.
775
Case, para. 157.
776
Case, para. 158.
777
Case, para. 163.
778
Case, para. 164.
205
lawful adoption – with a view to protecting children”.779 The ECtHR also argued that in this
case Italy enjoyed a wide margin of appreciation and analysed whether a fair balance had
been struck. It found that:
(…) public interests at stake weigh heavily in the balance, while
comparatively less weight is to be attached to the applicants’ interest in their
personal development by continuing their relationship with the child.
Agreeing to let the child stay with the applicants (…) would have been
tantamount to legalising the situation created by them in breach of important
rules of Italian law. The Court accepts that the Italian courts, having assessed
that the child would not suffer grave or irreparable harm from the separation,
struck a fair balance between the different interests at stake, while remaining
within the wide margin of appreciation (…).780
Thus, the Strasbourg Court found that there had been no violation of Article
781
8. The judgment has three concurring opinions and one dissenting opinion. In the
Joint Concurring Opinion of Judges De Gaetano, Pinto de Albuquerque, Wojtyczek
and Dedov the judges agree that there had been no violation, but they “regret that the
Court did not take a clear stance against such practices” as gestational surrogacy. The
concurring judges commented on surrogacy:
More generally, we consider that gestational surrogacy, whether
remunerated or not, is incompatible with human dignity. It constitutes
degrading treatment, not only for the child but also for the surrogate mother.
Modern medicine provides increasing evidence of the determinative impact of
the prenatal period of human life for that human being’s subsequent
development. Pregnancy, with its worries, constraints and joys, as well as the
trials and stress of childbirth, create a unique link between the biological
mother and the child. From the outset, surrogacy is focused on drastically
severing this link. The surrogate mother must renounce developing a lifelong
relationship of love and care. The unborn child is not only forcibly placed in
an alien biological environment, but is also deprived of what should have been
the mother’s limitless love in the prenatal stage. Gestational surrogacy also

779
Case, para. 177.
780
Case, para. 215.
781
Case, para. 216.
206
prevents development of the particularly strong bond which forms between the
child and a father who accompanies the mother and child throughout a
pregnancy. Both the child and the surrogate mother are treated not as ends in
themselves, but as means to satisfy the desires of other persons. Such a
practice is not compatible with the values underlying the Convention.782
Judge Dedov also presented a separate opinion. He noted, how “the phenomenon of
surrogacy is itself quite dangerous for the wellbeing of society”. Judge Dedov explains: “In a
successfully developing society all of its members contribute by means of their talents,
energy and intellect. (…) Yet even if the only valid resource available to an individual is a
beautiful or healthy body, this is not enough to justify earning money via prostitution,
pornography or surrogacy”. Dedov argues how since “not everyone is capable of using
intellect” it is “much easier to earn money using the body”, but he sees that it would
“compromise with human rights and fundamental values”. Moreover, Judge Dedov suggested
how “surrogacy is carried out by poor people or in poor countries”, and the “recipients are
usually rich and glamorous”. He concluded that in order to “prevent the moral and ethical
degradation of the society” the Court must support value-based actions and not “hide behind
the margin of appreciation”.
The dissent by Judges Lazarova, Trajkovska, Bianku, Laffranque, Lemmens and
Grozev disagreed with the majority and suggested that there had been an interference with
Paradiso’s and Campanelli’s right to respect for their family life. The dissenting judges
explained: “For us it is important that the cohabitation started from the very day the child was
born, lasted until the child was removed from the applicants, and would have continued
indefinitely if the authorities had not intervened to bring it to an end”.783 Moreover, the
dissenting judges explained that they “fear that the majority thus make a distinction between
a “legitimate” and an “illegitimate” family”.784 The dissenting judges further added:
We do not intend to express any opinion on the prohibition of
surrogacy arrangements under Italian law. It is for the Italian legislature to
state the Italian policy on this matter. However, Italian law does not have
extraterritorial effects. Where a couple managed to enter into surrogacy
agreement abroad and to obtain from a mother living abroad a baby, which

782
Joint Concurring Opinion of Judges De Gaetano, Pinto de Albuquerque, Wojtyczek and Dedov.
783
Dissent, para. 4.
784
Dissent, para. 4.
207
subsequently is brought legally into Italy, it is the factual situation in Italy
stemming from these earlier events in another country that should guide the
relevant authorities in their reaction to that situation.785
The dissent concluded that the Italian authorities did not strike a fair balance.786
5.4 ACCESS TO ASSISTED REPRODUCTIVE TECHNOLOGIES

There are five cases that address assisted reproductive technologies – one case concerning
access to in vitro fertilisation from the Inter-American Court of Human Rights and four cases
from the European Court of Human Rights that touch several issues – embryo preservation,
access to in vitro fertilisation, gamete donation and pre-implantation genetic diagnosis.
5.4.1 Jurisprudence from the European Court of Human Rights

Evans v. the United Kingdom
In Evans v. the United Kingdom the applicant was Natalie Evans. 787 Evans and her
partner J. were informed during an appointment at an assisted conception clinic that Evans
had serious pre-cancerous tumours in both ovaries and that her ovaries would have to be
removed. The doctors also told Evans and J. that since the tumours were growing slowly it
would be possible first to extract eggs for in vitro fertilisation. Thus, they created six embryos
before her ovaries were removed due to cancer. Natalie Evans and J. both consented to the
procedure and signed a document stating that these embryos would be implanted into the
applicant’s uterus. They were also informed that it would be possible for either to withdraw
his or her consent at any time before the embryos have been implanted in the uterus. Evans
also inquired about the possibility of freezing her unfertilised eggs, but the doctor informed
her that this procedure “had a much lower chance of success” and was not performed at that
clinic. At that point J. reassured Evans that they would not split up, she did not need to
consider freezing her own eggs and that “she should not be negative and that he wanted to be
the father of her child”.
However, after their relationship ended in May 2002, J. requested the clinic to destroy the
embryos and the clinic informed Evans that they have the legal obligation to do so.788 Evans
submitted to the European Court of Human Rights that the domestic provisions which
permitted J. to withdraw his consent after the fertilisation of her eggs with his sperm, violated

785
Dissent, para 11.
786
Dissent, para. 12.
787
Evans v. the United Kingdom, Application no. 6339/05 (2007).
788
Case, paras. 13-19.
208
her right to respect for her private and family life under Article 8.789 She explained that “in
the case of a woman with the applicant’s medical history, she would never again have the
opportunity to attempt to create a child using her gametes”, how the “female’s role in IVF
treatment was much more extensive and emotionally involving” as the woman donates eggs
from a finite limited number available her after series sometimes painful medical
interventions designed to maximise the potential for harvesting eggs.790 Evans submitted to
the ECtHR that the domestic regulation operated so that her “rights and freedoms in respect
of creating a baby were dependent on J.’s whim”.791
The Court noted that Evans “does not complain that she is in any way prevented from
becoming a mother in a social, legal or even physical sense, since there is no rule of domestic
law or practice to stop her from adopting a child or even giving birth to a child originally
created in vitro from donated gametes”, but rather the consent provisions prevented her from
using the embryos she and J. had created together and thus “from ever having a child to
whom she is genetically related”.792 The ECtHR that in this case “each person’s interest is
entirely irreconcilable with the other’s” since if Evans is permitted to use the embryos, J. will
be forced to become a father, whereas if J.’s refusal is upheld, Evans is denied the
opportunity to become a genetic parent.793
The Strasbourg Court established that “since the use of IVF treatment gives rise to
sensitive moral and ethical issues against a background of fast-moving medical and scientific
developments, and since the questions raised by the case touch on areas where there is no
clear common ground amongst the member States (…) the margin of appreciation to be
afforded to the respondent State must be a wide one”.794 Thus, the Court noted that it needed
to evaluate whether the “application of a law which permitted J. effectively to withdraw or
withhold his consent to the implantation in the applicant’s uterus of the embryos created
jointly by them struck a fair balance between the competing interests”. 795 Although it
acknowledged that both interests were protected under Article 8, and it had “great sympathy
for the applicant, who clearly desires a genetically related child above all else,” it did not
consider that “the applicant’s right to respect for the decision to become a parent in the

789
Case, para. 57.
790
Case, para. 62.
791
Case, para. 62.
792
Case, para. 72.
793
Case, para. 73.
794
Case, para. 81.
795
Case, para. 83.
209
genetic sense should be accorded greater weight than J.’s right to respect for his decision not
to have a genetically related child with her.”796
Thus, the Court considered that “given the lack of European consensus on this point, the
fact that the domestic rules were clear and brought to the attention of the applicant and that
they struck a fair balance between the competing interests, there has been no violation of
Article 8 of the Convention”.797
The decision also had a dissent written by Judges Türmen, Tsatsa-Nikolovska, Spielmann
and Ziemele. The dissenting judges found that “the applicant’s right to decide to become a
genetically related parent weighs heavier than that of J.’s decision not to become a parent”.798
The dissent criticises the majority for suggesting that the UK Government had struck a
balance when “no balance is possible in the circumstances of the present case since the
decision upholding J.’s choice not to become a parent involves an absolute and final
elimination of the applicant’s decision. Rendering empty or meaningless a decision of one of
the two parties cannot be considered as balancing the interests”. 799 Furthermore, the
dissenting judges add that J. gave Evans “an assurance that he wanted to be the father of her
child”, but the majority gives no weight to this assurance.800 The dissent explains that the
decisive date was “the date when the eggs were fertilised and six embryos created” as “from
that moment on, J. was no longer in control of his sperm” and “an embryo is a joint product
of two people, which, when implanted into the uterus, will turn into a baby”.801
Thus, the dissent suggested that the “applicant’s interests weigh more heavily than J.’s
interests and that the United Kingdom authorities’ failure to take this into account constitutes
a violation of Article 8”.802 Lastly, the dissent also added that the Court should have found a
violation of Article 14 in conjunction with Article 8 as “a woman is in different situation as
concerns the birth of a child, including where the legislation allows for artificial fertilisation
methods” and due to the “excessive physical and emotional burden and effects” caused by the
condition of Evans.803

796
Case, para. 90.
797
Case, para. 92.
798
Dissent, para. 6.
799
Dissent, para. 7.
800
Dissent para. 8.
801
Dissent, para. 8.
802
Dissent, para. 9.
803
Dissent, para. 15.
210
Dickson v. the United Kingdom
The case of Dickson v. the United Kingdom concerned two applicants, Kirk and Lorraine
Dickson.804 Kirk Dickson was convicted of murder in 1994 and was in prison during the time
of the case. Kirk and Lorraine Dickson met in 1999 through a pen-pal network while
Lorraine was imprisoned. They got married in 2001 and Lorraine Dickson was released. The
Dicksons wished to have a child together and in October 2001 Kirk Dickson applied for the
facilities for artificial insemination. They relied on the length of their relationship and the fact
that, given Kirk’s earliest release date and Lorraine’s age (born in 1958) it was unlikely that
they would be able to have a child together without the use of artificial insemination
facilities.805
The application was refused for the following reasons: first, the Dicksons had established
their relationship while in prison, and had thus not “tested it in the normal environment of
daily life”, which in turn meant that “a reasoned and objective assessment of whether the
relationship would subsist” could not have carried out. Secondly, the child would remain
without the presence of a father “for an important part of his or her childhood years”, and
thirdly, the Secretary of the State argued that there would be “legitimate public concern” that
the punitive and deterrent elements of the imprisonment were being “circumvented” if Kirk
Dickson was allowed to “father a child by artificial insemination while in prison”.806
The Dicksons submitted to the European Court of Human Rights that the refusal to give
access to the artificial insemination facilities breached their right to respect for their private
and family life guaranteed by Article 8.807 The Court considered that Article 8 was applicable
to the applicants as “the refusal of artificial insemination facilities concerned their private and
family lives, which notions incorporate the right to respect for their decision to become
genetic parents”.808 It also reiterated its previous argument, how a person “retains his or her
Convention rights on imprisonment, so that any restriction on those rights must be justified in
each individual case”, and how it “cannot be based solely on what would offend public
opinion”. 809 The Court considered that since artificial insemination remained “the only
realistic hope” of having a child together given Lorraine Dickson’s age and Kirk Dickson’s

804
Dickson v. the United Kingdom, Application no. 44362/04 (2007).
805
Case, paras. 9-12.
806
Case, para. 13.
807
Case, para. 37.
808
Case, para. 66.
809
Case, para. 68.
211
release date the matter was “of vital importance to the applicants”.810 The UK Government
cited throughout the proceedings in the ECtHR three justifications for the policy.
Firstly, before the Grand Chamber they relied on the suggestion that “losing the
opportunity to beget children was an inevitable and necessary consequence of
imprisonment”.811 Secondly, the Court refers how “the Government appeared to maintain,
although did not emphasise (..) that public confidence in the prison system would be
undermined if the punitive and deterrent elements of a sentence would be circumvented by
allowing prisoners guilty of certain serious offences to conceive children”.812 The ECtHR
commented “(…) while accepting that punishment remains one of the aims of imprisonment,
the Court would also underline the evolution in European penal policy towards the increasing
relative importance of the rehabilitative aim of imprisonment”.813 Thirdly, the Government
argued how “the absence of a parent for a long period would have a negative impact on any
child conceived and, consequently, on society as a whole”.814 The Court found that it is
“prepared to accept” that the authorities “should concern themselves as a matter of principle
with the welfare of any child”, but “that cannot go so far as to prevent parents who so wish
from attempting to conceive a child in circumstances like those of the present case, especially
as the second applicant was at liberty and could have taken care of any child conceived until
such time as her husband was released”.815
The ECtHR argued that although in this case the UK enjoyed a wide margin of
appreciation the policy did not permit “a required proportionality assessment in an individual
case”.816 Thus, it concluded: “the absence of such an assessment as regards a matter of
significant importance for the applicants (…) must be seen as falling outside of any
acceptable margin of appreciation so that a fair balance was struck between the competing
public and private interests involved”, and accordingly it found that UK had violated Article
8.817
Judges Wildhaber, Zupancic, Jungwiert, Gyuluman and Myjer wrote a joint dissenting
opinion. The dissenting judges criticised the majority for not awarding the UK the margin of
appreciation it should have enjoyed in this matter. The dissent furthermore commented how

810
Case, para. 72.
811
Case, paras. 73-74.
812
Case, para. 75.
813
Case, para. 75.
814
Case, para. 76.
815
Case, para. 76.
816
Case, para. 84.
817
Case, para. 85.
212
“the majority did not weigh several interests that ought to have deserved consideration”, and
suggested that “the Court might have wished to discuss the very low chances of a positive
outcome of in vitro fertilisation of women aged 45”, and how the Court also “fails to address
the question whether all sorts of couples (for example, a man in prison and a woman outside,
a woman in prison and a man outside, a homosexual couple with one of the partners in prison
and the other outside) may request artificial insemination facilities for prisoners”.818 Lastly
the dissent found:
In conclusion, in the specific circumstances of the case (the couple
established a pen-pal relationship while both were serving prison sentences;
the couple had never lived together; there was a 14-year age difference
between them; the man had a violent background; the woman was at an age
where natural or artificial procreation was hardly possible and in any case
risky; and any child which might be conceived would be without the presence
of a father for an important part of his or her childhood years), it could not be
said that the British authorities had acted arbitrarily or had neglected the
welfare of the child which would be born”.819
S.H. and Others v. Austria

The case of S.H. and Others v. Austria concerned two married couples in Austria who
needed to resort to either egg or sperm donation in order to take advantage of in vitro
fertilisation.820 The first and the second applicants were Ms S.H. and Mr D.H. (married). The
third and fourth applicants were Ms H.E.-G. and Mr M.G. (married). Ms S.H. suffered from
fallopian-tube-related infertility that did not allow her ova to pass to the uterus, which meant
that natural fertilisation was impossible for her. However, although she was able to produce
ova, Mr D.H. was infertile. Thus, they needed to access in vitro fertilisation with the option
of using sperm from a donor.
Ms H.E.-G. and Mr M.G. had a different problem – Mr M.G. was fertile, but Ms H.E.-G.
did not produce ova. Thus, they needed to access in vitro fertilisation with the option of using
the ova from a donor. However, the Austrian domestic law allowed homologous methods
(such as using ova and sperm from the spouses or from cohabitating couple itself) and
methods which did not involve a particularly sophisticated technique and were not too far

818
Dissent.
819
Dissent.
820
S.H. and Others v. Austria, Application no. 57813/00 (2011).
213
removed from natural means of conception. Accordingly, in fact donor sperm was allowed in
the case of in vivo, but in vitro fertilisation and ovum donation was always prohibited.
The applicants submitted that the prohibition of heterologous artificial procreation
techniques for in vitro fertilisation laid down by the Austrian domestic law violated their
rights under Article 8 (right to respect for private and family life).821 The Court established
that the right of a couple to conceive a child and to make use of medically assisted
procreation for that purpose is protected by Article 8 as “such a choice is an expression of
private and family life”. 822 The Court then moved on to analyse, whether Austria had
exceeded the margin of appreciation. When determining whether there was a European
consensus on the matter the Court said:
The Court would conclude that there is now a clear trend in the legislation
of the Contracting States towards allowing gamete donation for the purpose of
in vitro fertilisation, which reflects an emerging European consensus. That
emerging consensus is not, however, based on settled and long-standing
principles established in the law of the member States but rather reflects a
stage of development within a particularly dynamic field of law and does not
decisively narrow the margin of appreciation of the State.823
It added however:
Since the use of in vitro fertilisation treatment gave rise then and
continues to give rise today to sensitive moral and ethical issues against a
background of fast-moving medical and scientific developments, and since the
questions raised by the present case touch on areas where there is not yet
clear common ground among the member States, the Court considers that the
margin of appreciation to be afforded to the respondent State must be a wide
one.824
The Court considered the justifications presented by the Austrian Government. The
Government argued how “medically advanced techniques of artificial procreation (…)
carried the inherent risk that they would not be employed for therapeutic purposes only, but
also for other objectives such as the ‘selection’ of children”.825 Furthermore, it explained that

821
Case, para. 49.
822
Case, para. 82.
823
Case, para. 96.
824
Case, para. 97.
825
Case, para. 101.
214
“there was a risk that ovum donation might lead to the exploitation and humiliation of
women, in particular those from economically disadvantaged backgrounds”, and how
“pressure might be put on a woman who would otherwise not be in a position to afford in
vitro fertilisation to produce more ova than necessary”.826 The Court noted that the Austrian
legal framework for assisted reproduction “was guided by the idea that medically assisted
reproduction should take place similarly to natural procreation”, and thus the Court “cannot
overlook the fact that the splitting of motherhood between a genetic mother and the one
carrying the child differs significantly from adoptive parent-child relations and has added a
new aspect to this issue”.827
When commenting the different approaches to using donor sperm in the case of in
vitro (prohibited) and in vivo (allowed) fertilisation the Court accepted that some of the
arguments raised by the Government in defence of the prohibition of gamete donation were
not applicable (i.e. reference to exploitation of women donating ovum). However, the Court
underlined how “the intervention of third persons in a highly technical medical process was a
controversial issue in Austrian society raising complex questions of a social and ethical
nature on which there was not yet a consensus in society and which had to take into account
human dignity, the well-being of children thus conceived and the prevention of negative
repercussions or potential misuse”, and thus, “the prohibitions must be seen in this wider
context”.828
The Court added, how “there is no prohibition under Austrian law on going abroad to
seek treatment of infertility that uses artificial procreation techniques not allowed in
Austria”.829 Thus, in conclusion the Court found that Austria had not exceeded the margin of
appreciation afforded to it and accordingly, did not find a violation of Article 8.830
Judge de Gaetano wrote a separate opinion for the judgment. He commented how
Article 8 cannot be “construed as granting a right to conceive a child at any cost” and
accordingly, how the “desire” for a child cannot “become an absolute goal which overrides
the dignity of every human life”. Judge de Gaetano referred to the Dickson case and criticised
how in this case the Court held that “procreation detached from the conjugal act fell within
the ambit of Article 8”, and how “that decision did not advance human dignity but merely
played second fiddle to advances in medical science”. Thus, the Judge underlined how

826
Case, para. 101.
827
828
Case, para. 113.
829
Case, para. 114.
830
215
“human procreation, instead of being personal act between a man and a woman, was reduced
to a medical or laboratory technique”.831
Judges Tulkens, Hirvelä, Lazarova Trajkovska and Tsotsoria submitted a joint
dissenting opinion in which they criticise the majority for taking “the unprecedented step of
conferring a new dimension on the European consensus and applies a particularly low
threshold to it, thus potentially extending the States’ margin of appreciation beyond
limits”.832 The dissent noted, how already in 2001 it was established that more than 80
million people worldwide are affected by infertility and how the International Covenant on
Economic, Social and Cultural Rights recognised the right to enjoy the benefits of scientific
progress and its applications, and the right to health. Accordingly it put forward: “Ultimately,
what is at stake here is not a question of choice between different techniques but, more
fundamentally, a restriction on access to heterologous in vitro fertilisation constituting denial
of access to available treatment”.833
The dissenting judges found particularly problematic that the majority accepted the
argument of how couples could go abroad to access the necessary services:
In our view, the argument that couples can go abroad (without taking
into account the potential practical difficulties or the costs that may be
involved) does not address the real question, which is that of interference with
the applicants’ private life as a result of the absolute prohibition in Austria
(…). Furthermore, by endorsing the Government’s reasoning according to
which, in the event that treatment abroad is successful, the paternity and
maternity of the child will be governed by the Civil Code in accordance with
the parents’ wishes, the Grand Chamber considerably weakens the strength of
the arguments based on “the unease existing among large sections of society
as to the role and possibilities of modern reproductive medicine”, particularly
concerning the creation of atypical family relations (…). Lastly, if the
concerns for the child’s best interests – allegedly endangered by recourse to
prohibited means of reproduction – disappear as a result of crossing the
border, the same is true of the concerns relating to the mother’s health

831
Separate opinion, paras. 2-3.
832
Dissent, para. 8.
833
Dissent, para. 9.
216
referred to several times by the respondent Government to justify the
prohibition.834
Costa and Pavan v. Italy

In Costa and Pavan v. Italy the applicants Ms Rosetta Costa and Mr Walter Pavan were
healthy carriers of cystic fibrosis—a hereditary disease that manifests itself in breathing
difficulties and generally culminates in severe respiratory failure.835 Rosetta Costa became
pregnant in 2010 and had a prenatal test carried out. After the results showed that the foetus
was affected by cystic fibrosis Costa decided to terminate the pregnancy. The applicants then
wanted to take advantage of assisted reproductive technologies and pre-implantation genetic
diagnosis (PGD), as it would have allowed identifying genetic abnormalities in embryos
conceived by in vitro fertilisation before the implantation. The Italian law, however, had a
blanket ban on pre-implantation genetic diagnosis. At the same time couples in which the
man suffered from sexually transmissible viral disease (for example HI virus, or hepatitis B
and C) were allowed to use sperm washing before the in vitro fertilisation in order to avoid
the risk of contamination of the woman and/or the foetus. Costa and Pavan submitted to the
ECtHR that the ban on pre-implantation genetic diagnosis meant for them that the only way
to make sure the foetus was not affected by the disease, was to commence the pregnancy,
then have a prenatal test, and terminate the pregnancy if needed. They argued that forcing
them into such situation violated Article 8.836
The Court considered that the applicants’ desire to conceive a child unaffected by cystic
fibrosis and to use assisted reproductive technologies and pre-implantation genetic diagnosis
was protected under the right to respect for privacy and family life (Article 8).837 Although
the Italian Government justified the interference by referring to the “concern to protect the
health of ‘the child’ and the woman, the dignity and freedom of conscience of the medical
professions and the interest in precluding a risk of eugenic selection”, the Court was not
convinced.838 The Government suggested that the woman’s health would be “susceptible to
depression on account of ovarian stimulation and oocyte retrieval”.839 The Court, however,
stressed that “the concept of ‘child’ cannot be put in the same category as that of ‘embryo’”,
and found that the Italian legislation lacked consistency in that area—allowing therapeutic

834
Dissent, para. 13.
835
Costa and Pavan v. Italy, Application no. 54270/10 (2013).
836
Case, para. 36.
837
Case, para. 50
838
Case, para. 54.
839
Case, para. 39.
217
abortion in cases of foetal malformation, but banning pre-implantation genetic diagnosis.840
That is, it would have been possible for the applicants to start the pregnancy by natural means
and then terminate it if a prenatal genetic test showed that the foetus was unhealthy. In
finding that that the applicant should not be faced with such a scenario, the Court very
importantly noted in this case that although “access to PGD raises sensitive moral and ethical
questions (…) the solutions reached by the legislature are not beyond the scrutiny of the
Court”.841 Thus, the Court established that there had been a violation of Article 8.842
5.4.2 Case from the Inter-American Court of Human Rights

Artavia Murillo et al v. Costa Rica
The case of Artavia Murillo et al. (“in vitro fertilization”) v. Costa Rica concerned
nine Costa Rican married couples who were not able to legally access in vitro fertilisation in
Costa Rica.843 The Costa Rican Ministry of Health issued an Executive Decree in 1995 that
authorised in vitro fertilisation for married couples and regulated its practice. So accordingly
in vitro fertilisation was practiced in Costa Rica from 1995-2000 by a private entity (Instituto
Costarricense de Infertilidad) before the Constitutional Chamber declared the Executive
Decree unconstitutional in March 2000. The Constitutional Chamber determined that in vitro
fertilisation “clearly jeopardizes the life and dignity of the human being” as “once conceived,
a person is a person”.844 The Constitutional Chamber reasoned: “The human embryo is a
person from the time of conception; hence it cannot be treated as an object for investigation
purposes, be submitted to selection processes, kept frozen and, the most essential point for
the Chamber, it is not constitutionally legitimate to expose it to a disproportionate risk of
death”. 845 The stories of the nine couples are all similar in how the decision of the
Constitutional Chamber affected them. Grettel Artavia Murillo and Miguel Mejias Carballo
got married in 1993. Mejias Carballo had a work-related accident when he was 19 years old
and as a result he was permanently paraplegic.
Their doctor diagnosed that the couple would be unable to procreate naturally and
accordingly they underwent eight artificial insemination treatments that were all
unsuccessful. In February 2000 their doctor informed them that their last alternative was to
undergo in vitro fertilisation. But a month later, in March 2000 the Constitutional Chamber

840
Case, paras. 55-57.
841
Case, para. 61.
842
Case, para. 64.
843
Preliminary Objections, Merits, Reparations, and Costs, Judgment, IACtHR. (ser. C) No.257 (2012).
844
Case, para. 71-74.
845
Case, para. 76.
218
banned the IVF practice in Costa Rica. Artavia Murillo and Meijas Carballo however did not
have the financial resources to go abroad to undergo the treatment. The couple divorced in
March 2001 and one of the reasons was the impossibility of having biological children.846
First the Court (IAmCtHR) analysed the scope and applicability of Article 11 of the
American Convention.847 It emphasised that the American Convention contains an additional
provision protecting family life–Article 17 of the American Convention recognises the
“central role of the family and family life in a person’s existence and in society in general,
and consequently the family’s right to protection entails, among other obligations,
facilitating, in the broadest possible terms, the development and strength of the family
unit”.848 Further, the Court linked the right to private life to reproductive autonomy, and
access to reproductive health services, which as provided by the Court “includes the right to
have access to the medical technology necessary to exercise this right” and “respect for the
decisions both to become a mother or a father, and a couple’s decision to become genetic
parents”.849
Lastly, the Court referred to CEDAW, the ICPD and the WHO’s definitions of the
right to health and reproductive health (all discussed in Chapter 2) and concluded that “the
right to private life and reproductive freedom is related to the right to have access to the
medical technology necessary to exercise that right” and thus the scope of the rights to
private life, reproductive autonomy and to found a family extends to the right of everyone to
benefit from scientific progress and its applications.850 The Court also substantiated this by
explaining how “the right to have access to scientific progress in order to exercise
reproductive autonomy and the possibility to found a family gives rise to the right to have
access to the best health care services in assisted reproduction techniques, and, consequently,
the prohibition of disproportionate and unnecessary restrictions, de iure or de facto, to
exercise the reproductive decisions that correspond to each individual”.851
The Court discussed the meaning of Article 4 (1) of the American Convention in
relation to embryos and “beginning of life”. After using different methods of interpretation it

846
Case, paras. 85-88.
847
Article 11. Right to Privacy
1. Everyone has the right to have his honor respected and his dignity recognized.
2. No one may be the object of arbitrary or abusive interference with his private life, his family, his home, or
his correspondence, or of unlawful attacks on his honor or reputation.
3. Everyone has the right to the protection of the law against such interference or attacks.
848
Case, para. 145.
849
Case, para. 146.
850
Case, para. 150.
851
Case, para. 150.
219
concluded that an embryo cannot be understood to be a person for the purposes of Article 4
(1), and that “conception” in the sense of Article 4(1) occurs at the moment when the embryo
becomes implanted in the uterus, which explains why, before this event, Article 4 of the
Convention would not be applicable.852 The Court analysed the Costa Rican ban on in vitro
fertilisation in relation to disability, gender, and socio-economic situation.853 It analysed the
degree of harm to the right to private life and to found a family, and to the right to personal
integrity, taking into account the impact of the prohibition of in vitro fertilisation on the
intimacy, autonomy, mental health and reproductive rights of the applicants.854
The Court cited the lived experiences of some of the applicants and noted how
couples suffered a severe interference in relation to their decision-making concerning the
methods or practices they wished to attempt in order to procreate a biological child – e.g were
forced to travel abroad.855 Regarding gender the Court considered, how “the ban on IVF can
affect both men and women and may have differentiated disproportionate impacts owing to
the existence of stereotypes and prejudices in society”, and referred to an example of how in
some societies the blame for infertility is attributed mainly and disproportionately to
women. 856 The Court emphasised that such gender stereotypes are “incompatible with
international human rights law and measures must be taken to eliminate them”, i.e the Court
was not “validating these stereotypes”, but only “recognizes them and defines them in order
to describe the disproportionate impact of the interference caused”.857 Lastly, it noted how the
ban on in vitro fertilisation had a disproportionate impact on the infertile couples that did not
have the financial resources to undergo in vitro fertilisation abroad.858 In conclusion, the
Court found that with its total ban on in vitro fertilisation Costa Rica had violated Articles 5
(1), 11 (2) and 17 (2) of the American Convention.

852
Case, para. 264.
853
Case, para 276; regarding disability the Court found in para. 293: “Based on these considerations and taking
into account the definition developed by the WHO according to which infertility is a disease of the reproductive
system (…), the Court considers that infertility is a functional limitation recognized as a disease and that
persons with infertility in Costa Rica, faced with the barriers created by the Constitutional Chamber’s decision,
should consider that they are protected by the rights of persons with disabilities, which include the right to have
access to the necessary techniques to resolve reproductive health problems”.
854
Case, para. 278.
855
Case, para. 279.
856
857
Case, para. 302.
858
Case, para. 303.
220
5.5 (IN)FERTILITY NARRATIVES: WOMEN IN “HETEROSEXUAL,
NUCLEAR, GENETICALLY-RELATED” FAMILIES
Compared to assisted reproduction case-law, finding harmful stereotypes in cases
concerning abortion, maternal mortality, forced sterilisations, obstetric care and “virginity
testing” seems easier as in those cases the human rights law forums usually reveal their
understandings of women’s sexuality, gender roles and expectations for women’s
reproductive bodies. Accordingly, using the anti-stereotyping methodology proposed by
Rebecca J. Cook and Simone Cusack (introduced in Chapter 2) becomes a more
straightforward task. Namely I highlighted both: positive examples of human rights analysis
that considers power dynamics and creates transformative narratives, and negative ones,
where women’s stories and life experiences are disregarded by human rights law forums and
the transnational human rights jurisprudence is consequently contributing to the processes of
silencing of women.
However, although the step-by-step methodology Cook and Cusack propose is easy-to-
follow and comprehensible, my thesis demonstrates that the problem with the reproductive
rights jurisprudence is not technical, i.e the transnational human rights law forums do not
know how to recognise and challenge stereotypes. Instead, as argued also by Barbara
Havelková and showcased also in this thesis, there is a resistance to the very idea that
stereotypes marginalise people and impact their human rights. Therefore, although the anti-
stereotyping methodology is a useful tool, it is not enough if, simply put, a court or a
committee does not see stereotypes and unequal power distributions in a society. A
fundamental change in thinking is required: willingness from the human rights law courts or
committees to listen and do the labour (using the words of Carrillo Rowe and Malhotra from
Chapter 1). Accordingly, in the context of assisted reproduction a reproductive rights-based
thinking would require courts and committees to explicitly consider all the different social
dimensions of infertility and the ambitions to enforce certain power dynamics behind assisted
reproductive technologies or surrogacy regulations, as explained at the beginning of this
chapter.
By and large, in the introduced assisted reproduction cases the Strasbourg Court has
neither acknowledged the social dimensions of infertility nor asked how power dynamics and
stereotypes intersect with assisted reproduction. Instead, from the analysed jurisprudence it is
possible to find examples for “stabilisation, reproduction and protection” of the
“heterosexual, nuclear, genetically-related” family as framed above by Mindy Jane Roseman.
221
Maria Sjöholm notes regarding the Evans case how the European Court of Human
Rights took a consent-based approach, which, as Sjöholm argues, is limiting the focus of
autonomy without fully examining the potentially different impact based on gender.859 For
example, Ilana Löwy explains that even in the process of in vitro fertilisation, egg retrieval is
not only medically much more complicated, but also culturally and socially more loaded than
sperm retrieval.860 Maura Ryan has likewise shown how a conventional bioethical analysis
would ignore the interplays of gender, status and health, revealing why discussions around
assisted reproduction should go beyond questions of choice and access.861 In the Evans case
the dissenting judges, indeed, added that the European Court of Human Rights should have
found a violation of Article 14 (non-discrimination) in conjunction with Article 8, as “a
woman is in different situation as concerns the birth of a child, including where the
legislation allows for artificial fertilisation methods”.
At first sight, this could serve as a sign of the dissent considering gender dimensions of
assisted reproduction. However, the dissenting judges are not saying that the applicant would
suffer stigmatisation due to a “normative motherhood” stereotype in the British society
and/or due to a perverse higher value given to genetic links between children and their
parents – both of which are harmful and should be therefore challenged. Instead, my reading
of the case is that the dissenting judges indeed perceived “giving birth to a genetically related
child” as integral to a woman’s identity. The Paradiso case too connects to the “normative
motherhood” narrative discussed in Chapter 3 – the majority opinion does not voice these
thoughts, but the concurring judges spell out their understanding of motherhood, pregnancy
and women’s roles in these: “pregnancy, with its worries, constraints and joys, as well as the
trials and stress of childbirth, creates a unique link between the biological mother and the
child” and surrogacy is focused on “drastically severing this link”.
In addition to the “unique link developed through pregnancy” the assisted reproduction
jurisprudence also gives insight into how much value the European Court of Human Rights
gives to genetic links. Andrea Mulligan explains how in the Paradiso case the “absence of a
genetic link was decisive in the Court’s finding that the right to respect for family life was not

859
See further: M. Ford, “Evans v United Kingdom: What Implications for the Jurisprudence of Pregnancy?”,
Human Rights Law Review, Vol. 8(1) (2008). Another piece criticising a “gender-neutral approach”: A.
Donchin, “Toward a gender-sensitive assisted reproduction policy”, Bioethics, Vol. 23, Issue 1 (2009).
860
K. Parizer-Krief, “Gender Equality in Legislation on Medically Asssited Procreation in France”, 29
International Journal of Law, Policy and the Family (2015), p. 208 (referring to Ilana Löwy’s work).
861
M. A. Ryan, “The Introduction of Assisted Reproductive Technologies in the “Developing World”: A Test
Case for Evolving Methodologies in Feminist Bioethics”, Signs, Vol. 34. No. 4 (2009), p. 805.
222
engaged” as without that the applicants had no entitlement to assert the child’s interests, and
as a result, the “whole orientation of the case differed fundamentally from that in Mennesson
where the child took centre stage”.862
Letizia Palumbo comments on the gender perspective in the S.H. and Others case and
writes that the European Court of Human Rights was “privileging a questionable
moral/ethical approach that does not take into account the issue of the health and well being
of couples and, especially, of women”. 863 Namely, Palumbo argues that the Austrian
Government together with the European Court of Human Rights were unconcerned with “the
unusual family forms resulting from a split between the biological and the legal father” – as
opposed to “splitting” up motherhood by allowing egg donation.864 Merete Lie explains how
assisted reproductive technologies involve conception outside of the body and “whereas
sperm has always left the body, it is more controversial to retrieve egg cells and use them
outside of a woman’s body”.865 Therefore, in contrast to egg donation, sperm donation does
not create a situation different from natural reproduction.866 Mike Sanderson similarly argues
that there is an assumption that male reproduction is “simple and easily controlled” whereas
female reproduction is “complex and easily confused” and how consequently unlike the
“male biological market (in sperm)” the “female biological market (in ova)” requires
control.867 Such need for control also gets translated into paternalism – by only expressing
concern for women’s exploitation and humiliation the Austrian Government “implicitly
reinforced gender-biased stereotypes, in particular with regard to women’s particular

862
and the Regulation of surrogacy Arrangements”, Medical Law Review, Vol. 0, No. 0 (2018), pp. 19-20. Linda
Hart analyses adoption cases of the European Court of Human Rights and suggests that in addition to biological,
legal, and social relations in the order of family life there is also the symbolic order, made up of gendered,
structural relations that set out the rules of genealogy and the normative complementarity of the sexes in
procreation and child rearing. And accordingly, if extra-familial adoption or other forms of family formations
comply with the symbolic order then they show resemblance to “natural facts” and are more likely to be
accepted by the Court. See: L. Hart, “Individual Adoption by Non-Heterosexuals and the Order of Family Life
in the European Court of Human Rights”, Journal of Law and Society, Vol. 36 (2009).
863
globalized world, Y. Ergas, J. Jenson, S. Michel (eds.) (2017), p. 80
864
The emphasis here is mine as they were concerned with “split motherhood” - L. Palumbo, “The Borders of
Legal Motherhood”, in: Reassembling motherhood: procreation and care in a globalized world, Y. Ergas, J.
Jenson, S. Michel (eds.) (2017), p. 82.
865
M. Lie, “Reproduction inside/outside: Medical imaging and the domestication of assisted reproductive
technologies”, European Journal of Women’s Studies, Vol. 22 (1) (2015), p. 63.
866
M. Lie, “Reproduction inside/outside: Medical imaging and the domestication of assisted reproductive
technologies”, European Journal of Women’s Studies, Vol. 22 (1) (2015), p. 64.
867
M. Sanderson, “A new approach to sex-based classifications in the context of procreative rights: S.H. &
Others V. Austria in context”, European Journal of Health Law, Vol. 20, Issue 1 (2013), p. 38.
223
vulnerability in the context of gamete donation”, i.e women needing protection – a stereotype
that the European Court of Human Rights did not challenge.868
In the Dickson case the dissenting judges criticised the majority for failing to address
the question whether “all sorts of couples (for example, a man in prison and a woman
outside, a woman in prison and a man outside, a homosexual couple with one of the partners
in prison and the other outside) may request artificial insemination facilities for prisoners”.
More specifically, the dissent provided its idea of who should not become parents: they found
the Dicksons problematic as potential parents, as they were inter alia a couple that had a “14-
year age difference”, had “established a pen-pal relationship while both were serving prison
sentences”, had “never lived together, and therefore, “any child which might be conceived
would be without the presence of a father for an important part of his or her childhood years”.
Similarly to other reproduction issues also in assisted reproduction we find the
narrative of deserving/undeserving people (as the example of Roma women in Chapter 4).
Maili Malin’s work on infertility physicians’ perceptions of women patients in Finland
describes this well in the context of assisted reproductive technologies.869 Her research shows
that women need to demonstrate that they are “deserving” – this means, for example that
“mentally ill, alcoholic and asocial persons are not supposed to be intellectual, purposeful or
patient enough for IVF”.870 The question of who should preserve their fertility and have
access assisted reproductive technologies needs a more nuanced analysis than what stems
from the women/men binary – just like with other reproduction issues people’s gender
identities, race, religion, socio-economic status are all impacting how much power they have
in their reproductive choices.871
Furthermore, Judge de Gaetano’s separate opinion in the S.H. and Others case gives a
sense of what according to him human procreation should look like: he underlined how
“human procreation, instead of being personal act between a man and a woman, was reduced
to a medical or laboratory technique” (de Gaetano was referring to the Dickson case).
Similarly, the Paradiso case speaks not only of regulations and restrictions that are shaping a

868
globalized world, Y. Ergas, J. Jenson, S. Michel (eds.) (2017), p. 84.
869
M. Malin, “Good, Bad and Troublesome: Infertility Physicians’ Perceptions of Women Patients”, The
European Journal of Women’s Studies, Vol. 10, Issue 3 (2003).
870
M. Malin, “Good, Bad and Troublesome: Infertility Physicians’ Perceptions of Women Patients”, The
European Journal of Women’s Studies, Vol. 10, Issue 3 (2003), p. 308.
871
See for example: K. Mitu,“Transgender Reproductive Choice and Fertility Preservation”, AMA Journal of
Ethics, Vol. 18, Issue 11 (2016); E. F.S. Roberts, “Resources and race: assisted reproduction in Ecuador”,
Reproductive Biomedicine & Society Online (June 2016).
224
nation, but of a punitive system that punishes those who “circumvent” prohibitions: Judge
Dedov suggested how “surrogacy is carried out by poor people or in poor countries”, and the
“recipients are usually rich and glamorous”. He concluded that in order to “prevent the moral
and ethical degradation of the society” the European Court of Human Rights must support
value-based actions and not “hide behind the margin of appreciation”.
However, there are also moments in the discussed jurisprudence that seem to represent
different views less concerned with guarding the “traditional nuclear heterosexual genetically
related families”, but focusing on people’s lived realities. For example, in Artavia Murillo
case the Inter-American Court of Human Rights referred to the applicants’ own lived
experiences with infertility to substantiate its analysis. Furthermore, in the S.H. and Others
case the dissent noted the global prevalence of infertility and how “what is at stake is not a
question of choice between different techniques but, more fundamentally, a restriction on
access to heterologous in vitro fertilisation constituting denial of access to available
treatment”. Moreover, in Costa and Pavan case, the European Court of Human Rights noted
that although access to pre-implantation genetic diagnosis does raise “sensitive moral and
ethical questions” the solutions reached by the legislature are not beyond the scrutiny of the
European Court of Human Rights.
225
“We believe the one who has the power. He is the one who gets to write the story. So when
you study history, you must always ask yourself, Whose story am I missing? Whose voice was
suppressed so that this voice could come forth? Once you have figured that out, you must find
that story too. From there, you begin to get a clearer, yet still imperfect, picture”.
(Y. Gyasi, Homegoing)
6. CONCLUSION: WHO IS THE “WOMAN” IN HUMAN RIGHTS LAW?

6.1 SILENCING AS A LACK OF MEANINGFUL “LISTENING”
To answer the question of this thesis – “Who is the ‘woman’ in human rights law?” – I
explored women’s voices and silencing in transnational human rights jurisprudence.
Specifically, I analysed a total of 35 cases regarding reproduction between 2003-2017 from
four transnational human rights law forums (the European Court of Human Rights, the Inter-
American Court of Human Rights, the United Nations CEDAW Committee and the United
Nations Human Rights Committee). These cases concern a range of issues: access to safe and
legal abortion, forced gynaecological examinations, forced sterilisations, women’s sexuality,
surrogacy, birth experience and obstetric care, maternal mortality, assisted reproductive
technologies.
The writings of two contemporary feminist thinkers, Chimamanda Ngozi Adichie and
Rebecca Solnit, highlighted the general frame and context for my inquiry. Firstly, from
Adichie I borrowed the idea how stereotypes are dangerous because they enforce one single
story about people. Secondly, from Solnit’s work I picked her conceptualisation of human
rights, voices and silencing. Namely, Solnit underscores how oppression happens when
people’s voices are silenced and thus a person’s power over their life experience is either
reduced or completely taken away. I connected these two ideas and, accordingly, in this
thesis I considered stories, voices and power in the context of human rights to analyse how
harmful stereotypes in the context of reproduction and sexuality are either challenged or
reinforced by the four different human rights law forums.
Very importantly, I geared my thesis towards showing the gaps in the work of the
transnational human rights forums. In other words, I operated from the premise that it is not
the silenced individual or group who must “activate” and “find their voice” in order to resist
and transform the conditions of their oppression, but instead, the burden of social change
must be placed on the institutions that are part of the oppressive systems – as Aimee Carrillo
226
Rowe and Sheena Malhotra argue in their work. In the context of my thesis this implies that
the human rights law forums need to listen and do the labour. Another contemporary feminist
writer, Mary Beard notes similarly how women are still perceived as belonging “outside
power” since women’s access to power is described as “women knocking on the door”,
“storming the citadel”, “smashing the glass ceiling”.872
This means, as Beard explains, that women are seen as breaking down barriers and
taking something to which “they are not quite entitled” and thus, if women are not perceived
to be fully within the structures of power, it is power that needs to be redefined rather than
women.873 Accordingly, when analysing jurisprudence I focused on how the human rights
law forums are silencing women when they disregard societal power dynamics, fail to put
women’s lived experiences in the centre of their analysis and instead rely on stereotypes, i.e
on what they believe to be true about women’s life plans.
My thesis does not focus only on the jurisprudence but, in fact, I explored how the
silencing of women’s voices is happening in three interconnected spaces: in the legal
discipline in general, in human rights law and finally, in the analysed transnational human
rights case-law. Thus, the silencing of women is a result of systematic, intentional and
structural processes as opposed to the idea how women have been omitted through
“forgetfulness” (G. Pollock).
6.2 SILENCING IN SCHOLARSHIP, LEGAL DISCIPLINE AND

TRANSNATIONAL JURISPRUDENCE
Firstly, in Chapters 1-2 I positioned this thesis as a feminist work to underscore the
still persistent resistance against feminist approaches in scholarship and in legal discipline
more specifically. I explained how feminist methods stem from the “very radical act of taking
women seriously” (C. Littleton), how they celebrate a “permanent partiality” (S. G. Harding),
emphasise conversations and dialogues rather than the production of “a single triumphant
truth” (H. Charlesworth), “question everything” (H. R. Wishik) and strategically use styles of
writing to conceptualise certain types of harm or wrong, or to reveal certain kinds of interest
or subject position” that would otherwise be left to the margins (N. Lacey). Therefore,
feminist methodologies challenge many accepted scholarly traditions and are regularly seen
as “unscholarly, disruptive, or mad” (H. Charlesworth). Thus, by combining feminist works
from many different disciplines and asking questions beyond “traditional” legal analysis this

872
M. Beard, Women & Power. A Manifesto (2017), pp. 56-57.
873
M. Beard, Women & Power. A Manifesto (2017), p. 83.
227
thesis serves as an attempt to penetrate a space – scholarship – where it is still considered if
not completely unwanted, then troublesome and unruly.
Secondly, in Chapters 1-2 I also demonstrated how women’s voices are silenced
specifically in the legal discipline and human rights law. I showed how the feminist
approaches to law challenge the central feature of many Western theories: law being “distinct
from the society” and consequently capable of achieving “neutrality and objectivity” (H.
Charlesworth, C. Chinkin, S. Wright). And such challenges are, as highlighted in Chapter 2,
still met with a lot of resistance in international human rights law and also in global health.
Flaws and shortcomings of human rights law have been illuminated at the level of “law,
procedure and policy”, but these flaws have been made to seem like “simple
misunderstandings or oversights, deficiencies of leadership or accountability, or quirks of
local history or culture” not “man-made” and consequential to “some wider systemic
context” (S. Marks). However, a human rights law framework that does not accept that
powerlessness and marginalisation of women is not accidental or incidental, but actually
institutionalised only reinforces powerlessness of already marginalised people (H.
Charlesworth).
I dedicated Chapter 2 to explaining my tailored analytical framework – a reproductive
rights-based approach – to read the selected 35 cases in a way that allowed me to extract
narratives about women and their experiences with reproduction. Namely, this thesis is not an
in-depth analysis of each case or a specific reproductive rights issue (e.g abortion or
surrogacy). Instead, it showed conversations between the cases by considering the
jurisprudence in an analytical frame that asked about power distribution and silencing
processes within spaces of power.
I referred to R. Cook’s and S. Cusack’s anti-stereotyping methodology that includes
naming, describing and challenging stereotypes as a useful and clear toolbox but I also
argued that the problem of stereotyping is not something that can always be fixed with
technical step-by-step guidelines. Because as the systematic reading of reproductive rights
jurisprudence showed, the problem is not a lack of knowledge or misunderstandings in expert
bodies or judiciaries, but a resistance to the idea that inequalities are structural. This is in line
with what B. Havelková’s work demonstrates: there is a “belief in the existence of a fair
world based on a confidence that existing institutional set-ups are fair and neutral” in the
European Court of Human Rights.
Thus, what is needed is a fundamental change in thinking. Consequently, I argued for
a different human rights thinking that understands rights as “bundles of relationships that are
228
supported by the state’s monopoly on force” (A. E. Yamin), not just “simply discrete legal
instruments but concepts whose meaning is interpretive, relationally constituted,
experientially based, and historically shaped” (M. Unnithan) and that moves beyond binaries
of local/global, protection/empowerment, and insiders/outsiders by “introducing new voices,
new rights, and new pathways to fulfillment” (A. Brysk).
This means that methodology and analytical frames matter since, as Allison Corkery
writes, the methods “determine what injustices we see and prioritize, making methodology
far more than just a technical choice”.874 It is vital to deny that in order to protect law’s
objectivity and fairness law needs to resist any engagement with gender, race, religion, and
“messiness of life” (M. Unnithan, S. L. Pigg). Human rights analysis that considers power
dynamics and people’s lived realities does not equal with “biased” and “unscientific”. As I
spelled out in the very beginning of this thesis and showcased throughout all the chapters –
the strength of feminist approaches is the constant “questioning” also within the women’s
movements and between feminist scholars. Suspicious or hostile responses to feminist
approaches are rooted in the need to keep certain voices out of the discourse in order to
maintain power structures. Thus, it is important to welcome criticisms and concerns from
other disciplines into the legal discipline (and vice versa) instead of bluntly rejecting such
cross-overs by saying “this is not law” or creating either competing polarising binaries such
as rights/justice, law/non-law or separate spaces for “women’s issues”.
In conclusion I proposed in Chapter 2 an analytical frame that captures all of the
above: a reproductive rights-based approach which rooted in feminist legal theory, social
dimension of health, human rights-based thinking and the reproductive rights discourse.
Thus, it is an analytical framework that “questions everything”, considers power relations
from all different angles – also within feminist thinking itself – and is as “unscholarly,
disruptive, or mad” as possible and necessary.
The third and space in which I explored silencing is the chosen reproductive rights
jurisprudence: 35 cases from four different transnational human rights law forums. I divided
the emerging narratives into three: women and pregnancy/birth narratives (Chapter 3),
women and violence narratives (Chapter 4), and women and (in)fertility narratives (Chapter
5).

874
A. Corkery, “Methodological choices in human rights research are political, not just technical”, 21 December
2017, available at: https://www.openglobalrights.org/methodological-choices-in-human-rights-research-are-
political-not-just-technical/?lang=English (accessed 8 February, 2018).
229
In Chapter 3 I considered case-law regarding abortion, maternal mortality and birth –
a total of 16 cases between 2005-2017 from the European Court of Human Rights and the
two United Nations Committees: the Human Rights Committee and the CEDAW Committee.
Analysing jurisprudence concerning birth regulations-practices, maternal mortality and
abortion together was strategic as it allowed me to draw links between access to safe
abortion, obstetric care and the global maternal mortality emergency and reveal that similar
patterns of harmful (gender) stereotyping are present in all three. Namely, the main narratives
emerging from stories about pregnancy and birth have given all women the role of mothers –
irrespective of their own life-plans.
Furthermore, I showed in Chapter 3 how this harmful “normative motherhood” (or
“repronormativity” as K. Franke terms) stereotype has also travelled from abortion
jurisprudence to case-law regarding birth and obstetric care, where the conflict between the
woman and the foetus grew into a conflict between the woman and her new-born. This
“automatic conflict” travels together with every woman to her obstetric care, and birth
experiences– irrespective of whether their pregnancy is wanted or not as seen in the Dubska
and Krejzova case concerning home birth where a woman’s wish to give birth in an
environment chosen by her is overridden by the “potential threat to the newborn”, or in the
Hanzelkovi case, where the dissent constructed the applicant through her “intolerable
escape”, and noted, how a newborn child “cannot be captive to his or her mother’s
preferences”.
To date, the European Court of Human Rights has neither recognised abortion as a
human right of all women and girls nor considered abortion restrictions as possible gender
discrimination. Instead, the Strasbourg Court has opted for a gender-neutral analysis that
treats abortion as any other health service and instead contributed to the “innocent suffering”
narrative (L. M. Kelly). This “innocent suffering” narrative leaves women the role of victims,
but tailors it in a very specific way – women need to seem deserving (ideal victims) and show
enough specific kind of suffering (e.g. an underage rape victim needs to terminate the
pregnancy). Indeed, as a contrast, the recent abortion cases from the United Nations Human
Rights Committee (Wheland and Mellet case) show a positive development towards framing
abortion as a human rights issue with a gender dimension, but against the backdrop of what is
happening to women’s reproductive rights globally the Committee’s analysis still comes
across as somewhat hesitant and cautious.
The birth jurisprudence of the European Court of Human Rights reads similarly to its
abortion jurisprudence. Admittedly, in all but one (Dubska and Krejzova) the Strasbourg
230
Court found a violation of women’s human rights. However, as explained, in this thesis I am
interested in the analysis before the final resolution as this is where narratives about women,
their sexuality and reproductive bodies are created. And in that respect Korneykova,
Hanzelkovi, Konovalova and Ternovszky all fall short since the European Court of Human
Rights does not consider how gendered power dynamics and paternalistic medical settings
can harm the human rights of women seeking obstetric care.
Namely, I argued in Chapter 3 that placing women’s actual lived experiences in
societies with unequal power distribution at the centre of abortion jurisprudence would mean
re-theorising all abortion restrictions as tools of coercion, punishment (forcing a woman to be
pregnant and give birth) irrespective of whether a woman was raped or the foetus malformed.
This would, however, also call for a different thinking about pregnancy – a non-adversarial
relational view of pregnancy that is based on women’s “lived realities” (as argued by C.
Pickles). A relational view of pregnancy goes beyond termination of pregnancy to include
questions about the treatment and care women have a right to receive when they have
decided to continue with a pregnancy regardless of whether their labour will result in a live
birth (L. Layne). Women’s lived realities of birth and pregnancy should substitute current
debilitating narratives of perfect motherhood, hostile/dangerous women and defenseless
foetuses that can in most serious cases lead to not only silencing, but to death as global
maternal mortality rates demonstrate.
Chapter 4 on women and violence narratives explored who are women in
reproductive violence jurisprudence. I introduced five forced gynaecological examination (i.e
“virginity testing”) cases from the European Court of Human Rights and altogether six forced
sterilisation cases: four from the Strasbourg Court, one from the United Nations CEDAW
Committee and one from the Inter-American Court of Human Rights. Additionally, I also
included the full case of Carvalho Pinto de Sousa Morais from the European Court of Human
Rights concerning a woman’s sexuality in her 50s. I used this case throughout the thesis as in
this 2017 decision the European Court of Human Rights explicitly used anti-stereotyping to
demonstrate the prejudices within the Portuguese judiciary and explained how the assumption
that for a woman in her 50s sexuality is less important reflected a “traditional idea of female
sexuality as being essentially linked to child-bearing purposes” and “ignored its physical and
psychological relevance for the self-fulfillment of women as people”.
Similarly to Chapter 3 I had a strategic reason behind coupling cases concerning
forced sterilisations and “virginity testing” with the de Sousa Morais decision that
demonstrated a broader understanding of women’s sexuality. Namely, I argued in Chapter 4
231
that severe forms of reproductive violence such as forced sterilisations of certain women and
“virginity testing” as a form of punishment or control of women are more likely to occur in
an environment that accepts, allows and encourages general stereotypical framings of
women’s reproductive choices and sexuality. I other words I argued that stereotypes serve as
shortcuts to human rights breaches: like maternal mortality, forced sterilisations do not
happen “overnight” or unexpectedly, but leaving stereotypes unchallenged is what lays the
groundwork for these human rights violations.
I showed how with the “virginity testing” jurisprudence of the European Court of Human
Rights in which the Strasbourg Court does not challenge such practice per se women are
given the roles of passive objects of male sexual pleasure which denies them of any sexual
autonomy as they are not seen as “sexual beings on their own” (S. W. Rodriquez). Again,
although the European Court of Human Rights sees harm in unconsented medical procedures
its gender-neutral focus on consent does little for actually dismantling such a degrading
practice (M. Sjöholm).
Furthermore, a reversed version of the “normative motherhood” stereotype discussed in
Chapter 3 reveals itself in Chapter 4. Namely, women from marginalised groups (Roma
women, Black women, disabled women) are presumed to be either asexual or hypersexual
(hyper-fertile) and expected to not reproduce, not become mothers, as their procreation is
undesirable and disruptive for a society. Such ideas of women as potentially “dangerous,
misbehaving and with poor judgment” were also present in Chapter 3 where I discussed
obstetric care. Portraying women in such roles makes medical paternalism acceptable, forced
treatments or invasive procedures (sterilisations) excusable if not justifiable and constructs
for example the question of home birth as a matter of convenience or preference rather than a
human right – therefore consequently ignoring the reasons (obstetric violence) why women
would decline a hospital birth. Furthermore, stereotypes about women making no
reliable/consistent decisions in medical settings leads to circumventing them – if they cannot
make decisions in an acceptable way their involvement in decision making is not needed.
This creates cultures where violence against some bodies is either not actual violence as it is
permissible, justified or even if unfortunate still inevitable, but not a breach of human rights.
Although the European Court of Human Rights does recognise Roma women as a
marginalised group, it refuses to accept that the forced sterilisation of these women were
expressions of power relations present in the Slovakian society and thus intentional and
racially motivated. In contrast, the Inter-American Court of Human Rights in its I.V. case
explicitly explained and challenged gendered power relations that caused the human rights
232
violations (forced sterilisation) of I.V. Thus it highlighted the need to adopt a gender lens to
analyse women’s experiences with violence, torture and ill-treatment.
Lastly, in Chapter 5 I analysed the (in)fertility narratives emerging from the cases
concerning assisted reproductive technologies and surrogacy. I considered two surrogacy
cases from the European Court of Human Rights and five judgments regarding access to
assisted reproductive technologies: four from the European Court of Human Rights and one
from the Inter-American Court of Human Rights. This chapter explored women’s roles
within larger systems of kinship and family formations.
I again explained the importance of considering societal power relations since ideas about
which people should/should not reproduce and form families (“reproductive imaginaries”)
characterise also assisted reproduction laws and regulations (J. Fledderjohann, L. Walther
Barnes) and as although assisted reproductive technologies appear as “standardised and
routinised biomedical procedures and practices”, they have deep “performative effects” as
they impact global and local power relations (M. Lie, N. Lykke).
Nevertheless, the jurisprudence of the European Court of Human Rights demonstrated
how, by and large, the Strasbourg Court is using its power to attempt to “stabilise, reproduce
and protect” a specific vision of the family – heterosexual, nuclear, genetically-related (M. J.
Roseman). By and large, in the introduced assisted reproduction cases the Strasbourg Court
has neither acknowledged the social dimensions of infertility nor asked how power dynamics
and stereotypes intersect with assisted reproduction. Instead, from the analysed jurisprudence
it is possible to find examples for “stabilisation, reproduction and protection” of the
“heterosexual, nuclear, genetically-related” family as framed above by Mindy Jane Roseman.
For example the Paradiso case connects to the “normative motherhood” narrative
discussed in Chapter 3 when the concurring judges describe their understanding of
motherhood, pregnancy and women’s roles in these: “pregnancy, with its worries, constraints
and joys, as well as the trials and stress of childbirth, creates a unique link between the
biological mother and the child” and surrogacy is focused on “drastically severing this link”.
In the Dickson case the dissenting judges criticised the majority for missing the important
question whether “all sorts of couples may request artificial insemination facilities”, in the
S.H. and Others case a separate opinion gives a sense of what human procreation should look
like (“a personal act between a man and a woman and not and act reduced to a medical or
laboratory technique”) and one separate opinion of the Paradiso case argues for prohibition
of surrogacy as a “prevention of the moral and ethical degradation of the society”. Indeed,
there are also moments in the discussed jurisprudence that represent different views less
233
concerned with guarding the “traditional nuclear heterosexual genetically related families”,
but focusing on people’s lived realities (for example, Artavia Murillo case, Costa and Pavan
case or the dissent in S.H. and Others). However, in larger narratives about women their
gendered roles and the state of women’s reproductive rights, such occasional exceptions do
not speak volumes.
In summary, the woman in transnational jurisprudence regarding reproduction is still
unfortunately given very limiting roles that are not rooted in women’s own life plans and do
not take women seriously, but instead assume and stereotype violently. Rebecca Solnit writes
how “a free person tells her own story” and “a valued person lives in a society in which her
story has a place”.875 Accordingly, the transnational human rights law forums must accept
explicitly the very reality that human rights violations are structural thus needing
corresponding structural intersectional responses. Therefore, it is the power structures and
institutions (courts and committees) that need to assume responsibility and do the labour of
listening.
What could be the further implications of this work, i.e how to move forward? My thesis
put into one conversation different forms of resistance against the critical thinking of feminist
approaches that trouble and challenge many taken-for-granted concepts, definitions, binaries
and practices. I showed how this resistance can be found in the legal discipline that calls
feminist approaches “unscholarly, disruptive, or mad” (H. Charlesworth), in international
human rights law that desires remaining “gender-blind” instead of recognising how structural
inequalities create shortcuts to human rights violations and most importantly, within
transnational human rights jurisprudence regarding women’s sexual and reproductive rights
that disregards women’s lived experiences and centuries-old harmful stereotypes about
women’s roles, bodies and sexuality.
I demonstrated how in reproductive rights protection single harmful narratives such as
denying women from having home births as if this put “a woman’s convenience ahead of the
baby’s safety” are eventually becoming the very building blocks of a whole culture of not
taking women – and what they say about their bodies, pain, and experiences – seriously. In
contrast, acknowledging that obstetric violence or maternal mortality for example are not
individual failures or isolated cases but structural issues impacted by societal power
dynamics creates a space where women can share their experiences without fearing victim
blaming, penalisation or dismissal. Accordingly, if the transnational human rights law forums

875
234
do not explicitly challenge harmful narratives, they are complicit in further enforcing
silencing cultures. Therefore, to move forward, the human rights law forums must commit to
not just “allowing” evidence that has investigated women’s lived experiences, but seeking
after it and taking it seriously, thus doing the active labour of listening. Connecting women’s
lived experiences to human rights language can really shift the conversations: having the
appropriate and suitable language can be transformative – we can start pinpointing,
unpacking, challenging and unlearning harmful stereotypes: the transnational human rights
law forums need to interpret human rights law provisions so that they create and free up
space for experiences that go beyond of the experiences of white male able cis bodies.
Furthermore, I would like to come back to the Carvalho Pinto de Sousa Morais v.
Portugal cited throughout this thesis. The European Court of Human Rights found that
Portugal had discriminated against the applicant as the domestic court decision “reflects a
traditional idea of female sexuality as being essentially linked to child-bearing purposes and
ignores its physical and psychological relevance for the self-fulfillment of women as
people”. 876 Although the wording is both clumsy and rather unfortunate the thought is
important for conceptual reasons as I highlighted already before: conversations about
women’s reproductive rights need to also discuss how is women’s sexuality perceived in a
society – are women sexual agents who have an equal say in their sexuality and what is
sexual pleasure for them, or is women’s sexuality only serving male pleasure and/or
reproductive purposes. In this thesis I looked at violence and suffering narratives to a great
extent, but there are strong arguments for the empowering benefits of a positive approach to
sexuality, which do not necessarily replace, but instead complement the focus on
reproduction, violence and diseases by adding conversations about desire and pleasure.877
Focusing on pleasure can open a space for a better understanding of women’s experiences of
violence and violation without defining survivors by their negative experiences and
restricting them to move beyond these to enjoy sexual relationships again.878 Consequently,
the Carvalho Pinto de Sousa Morais can illustrate a dimension that should be included much
more into reproductive and sexual rights analysis.
Lastly, the implications of my work are not solely contained in how reproductive and
sexual rights are understood by transnational human rights law forums, or how my work
could serve as a blueprint for lobbying, litigation, advocacy efforts in sexual and reproductive

876
Carvalho Pinto de Sousa Morais v. Portugal, Application no. 17484/15 (2017), para. 52.
877
See: S. Jolly, A. Cornwall, K. Hawkins (eds.), Women, Sexuality and the Political Power of Pleasure (2013).
878
S. Jolly, A. Cornwall, K. Hawkins (eds.), Women, Sexuality and the Political Power of Pleasure (2013), p. 8.
235
rights. Instead, as I showed how the resistance against taking women’s lived experiences
seriously is happening on many levels there also needs to be a push for better science, better
research, teaching, and training strategies more broadly.879 Handing out anti-stereotyping
methodologies to judges or committee members is not a solution. Indeed, transnational
human rights jurisprudence should be unpacked in different ways that reveal new dimensions
as I have done in this thesis but in order to bring about change the criticism needs to travel
further. It is crucial to ask what is being researched: whose experiences are being traced,
recorded, theorised, translated into policies? Feminist approaches can advocate for more
inclusive and better research agendas. For example, Anna Dahlqvist writes how menstrual
pain, menstrual protection and menstruation poverty have been considered “low-priority” and
thus remained “underexplored”.880 Or similarly with endometriosis: how it is as common as
diabetes but has been historically overlooked by researchers and science as women’s pain is
considered “natural” or “inevitable” resulting in slow diagnosis and limited treatment
options.881 Consequently, if there is no research that has asked about women’s experiences,
the fight against stereotypes will remain rather weak and superficial.
At the same time it is significant that even when the research does exist it is often
ignored. This again requires questions about knowledge production and academia: who is
being hired, promoted, whose work is cited? Who are the people teaching law and what are
they teaching? Is “gender and law” an elective course for some or a natural part of every law
student’s curriculum? Furthermore, it is not an accident that there are many (predominantly
male) human rights scholars who do neither consider nor engage with feminist works as if the
decades’ long conversations have not been happening.882 Or how many scholars from the
Global North whose scholarship – even when it discusses countries and case-studies outside
of Europe or North America – ignores scholarly work from the Global South. These gaps in
research directly affect policy-making, laws, education and what gets considered/accepted as
“evidence” in courts and tribunals.

879
See: A. Saini, Inferior: How Science Got Women Wrong - and the New Research That’s Rewriting the Story
(2017).
880
A. Dahlqvist, It’s Only Blood (2018), p. 100. Furthermore, Dahlqvist writes on p. 107: “No one knows. No
one listens. Ignorace and Indifference are common denominators for the entire family of menstruation-related ill
health: menstrual pains, endomentriosis, PMS, PMDD. There is no doubt that it is an exceptionally
underexplored are in relation to the very large group who are affected – like the infections connected with
menstrual management. Not to say alarmingly low priority. It is as if it does not even belong in the medical
sphere”.
881
H. Massy-Beresford, “Non-invasive tests to provide quicker diagnosis of endometriosis”, 19 July 2018,
available at: https://horizon-magazine.eu/article/non-invasive-tests-provide-quicker-diagnosis-
endometriosis_en.html?utm_source=twitter&utm_medium=s (accessed 16 August 2018).
882
See for example: M. L. Dion, J. L. Sumner, S. M. Mitchell, “Gendered Citation Patterns across Political
Science and Social Science Methodology Fields”, Political Analysis, Vol. 26, Issue 3 (2018).
236
Another important further conclusion is that the understanding of human rights-based
approaches to health (reproductive and sexual health included) cannot remain within the legal
discipline only – be something that “lawyers do, understand and define”. Instead, in order to
design health care systems that put their focus on human rights, the conversations about
rights need to transcend the legal community. Health care professionals need to be asked how
they define and understand autonomy, violence, consent, sexuality, and sexual and
reproductive rights should also feature in every medical school curriculum – again, not as an
occasional elective course but as something fundamental.
Thus, my work can be read in several ways and it can inspire an push for multiple
conversations by problematising the ways in which transnational reproduction jurisprudence
narrates women’s roles, sexuality and bodies and more broadly how such harmful depictions
are part of a larger resistance against feminist approaches in the legal discipline. Therefore, as
Yaa Gyasi in the motto of this concluding chapter suggests, one must always ask: “Whose
story am I missing? Whose voice was suppressed so that this voice could come forth?” and
once we have looked for that missing story, we begin to get “a clearer, yet still imperfect,
picture”.
237
238
APPENDICES
Appendix I
239
Appendix II
240
Appendix III
241

242
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Who is the “Woman” in Human Rights Law:

Narratives of Women’s Bodies and Sexuality in

Thesis submitted for assessment with a view to obtaining

Florence, 14 September 2018

Who is the “Woman” in Human Rights Law:

Thesis submitted for assessment with a view to obtaining

© Liiri Oja, 2018

Statement of inclusion of previous work (if applicable):

Statement of language correction (if applicable):

ACRONYMS & ABBREVIATIONS 11

1. INTRODUCTION: RESEARCH QUESTION, METHODOLOGY & OUTLINE 17

1.1 THE SEARCH FOR STORIES STARTS – THE RESEARCH QUESTION 17

1.2 THE DISCLAIMERS: A FEMINIST THESIS IN HUMAN RIGHTS LAW 20

1.3 METHODOLOGY AND OUTLINE OF THE THESIS 25

2. CONSTRUCTING THE ANALYTICAL FRAME – FROM “QUESTIONING

2.1 SETTING THE COURSE: OUTLINE & AIM OF THE CHAPTER 33

2.2 FEMINIST APPROACHES TO HUMAN RIGHTS LAW 34

2.3 HEALTH AND HUMAN RIGHTS: FROM SOCIAL DETERMINANTS TO

2.4 THE REPRODUCTIVE RIGHTS DISCOURSE 53

2.5 CONCLUSION: “UNSCHOLARLY, DISRUPTIVE, OR MAD”

3.1 “DANGEROUS MOTHERS-TO-BE OR SUFFERING VICTIMS INCAPABLE

3.2 ABORTION: ARE WE STILL PROTESTING THIS? 69

3.3 “ALL WOMEN ARE MOTHERS(-TO-BE)” AND “WOMEN ARE SUFFERING

3.5 “WOMEN ARE DANGEROUS MOTHERS-TO-BE” AND “WOMEN ARE

3.6 CONCLUSION: WOMEN ARE MOTHERS – SOMETIMES DANGEROUS 137

4. WOMEN AND VIOLENCE NARRATIVES 138

4.1 “DIRTY MISBEHAVING WOMEN, UNWANTED MOTHERS, AND THE

4.3 FROM DENIAL OF WOMEN’S SEXUALITY TO FORCED

4.4 “WOMEN’S STATUS AND RIGHTS DEPEND ON THEIR VIRGINITY” 164

4.5 PUNISHING AND DISCIPLINING WOMEN WITH FORCED

5. WOMEN AND (IN)FERTILITY NARRATIVES 190

5.1 SOCIAL DIMENSIONS OF INFERTILITY 192

5.3 SURROGACY: “MORAL AND ETHICAL DEGRADATION OF THE

5.4 ACCESS TO ASSISTED REPRODUCTIVE TECHNOLOGIES 208

5.5 (IN)FERTILITY NARRATIVES: WOMEN IN “HETEROSEXUAL, NUCLEAR,

6. CONCLUSION: WHO IS THE “WOMAN” IN HUMAN RIGHTS LAW? 226

6.1 SILENCING AS A LACK OF MEANINGFUL “LISTENING” 226

6.2 SILENCING IN SCHOLARSHIP, LEGAL DISCIPLINE AND

CAT The Committee Against Torture

CEDAW United Nations Convention on the Elimination of All Forms of

Convention of Inter-American Convention on the Prevention, Punishment and

DEVAW United Nations Declaration of Violence against Women

ECtHR European Court of Human Rights

FGM Female genital mutilation

IACtHR Inter-American Court of Human Rights

ICCPR International Covenant on Civil and Political Rights

ICESCR International Covenant on Economic, Social and Cultural Rights

ICPD International Conference on Population and Development

Istanbul Council of Europe Convention on preventing and combating violence

SDG United Nations Sustainable Development Goal

UDHR Universal Declaration of Human Rights

UNCAT Convention against Torture and Other Cruel, Inhuman or Degrading

WHO World Health Organisation

A.S. v. Hungary CEDAW/C/36/D/4/2004 (2006)

Alyne v. Brazil CEDAW/C/49/D/17/2008 (2011)

Annen v. Germany Application no. 3690/10 (2016)

Artavia Murillo et al. v. Costa Rica Preliminary Objections, Merits,

Carvalho Pinto de Sousa Morais v. Portugal Application no. 17484/15 (2017)

Costa and Pavan v. Italy Application no. 54270/10 (2013)