September 30, 2022
by Zoe L. Tongue and Lewis Graham
On the 20th September 2022, the European Court of Human Rights handed down its judgment in Y.P. v Russia, a case concerning the non-consensual sterilisation of a 28-year-old women during a Caesarean section. The Court’s dismissal of the arguments made under Article 3 appears out of step with its previous jurisprudence on sterilisation. However, looking at other reproductive rights cases, namely those concerning abortion, can shed some light on the Court’s inconsistent application of the Article 3 test.
Facts of the Case
In 2008, Y.P. had to undergo an emergency Caesarean section due to a number of complications. During the surgery, while Y.P. was unconscious, the doctors identified that she had a ruptured uterus. An urgent medical panel was convened to decide whether to suture the rupture or perform a hysterectomy (that is, the full removal of the uterus). They decided to opt for suturing the rupture – however, the doctors decided that there was a real risk that the uterus would rupture if Y.P. was to become pregnant again, so they sealed her left fallopian tube (her right had already been removed due to complications with a previous pregnancy). The consent form she had signed before the Caesarean section explicitly excluded consent for sterilisation.
The following day, Y.P. was told that her remaining fallopian tube had been sterilised, but she was given no further details and did not understand what this meant. She was also advised by the doctor not to tell her husband. The couple only discovered that she had been non-consensually sterilised two years later when, upon facing difficulties conceiving, they visited a gynaecologist.
The District Court had rejected her subsequent civil claim, as there had been medical grounds for the sterilisation and Y.P. was free to conceive using in vitro fertilisation. The Krasnoyarsk Regional Court agreed, and the applicant appealed to the European Court of Human Rights alleging a violation of Articles 3 and 8.
The European Court of Human Rights highlighted that the consent form Y.P. had signed explicitly excluded consent for sterilisation, and that the sterilisation was not an emergency treatment (§53). The threat to the applicant’s life was not imminent and could have been prevented by less intrusive methods, so her consent could not have been justifiably dispensed with (§55). The Court also stated that her health and physical integrity had been ‘grossly affected’ by the procedure (§56-57). Accordingly, there had been an infringement of Y.P.’s right to respect of her private life in violation of Article 8 (§59-60). The state was ordered to pay compensation for this violation.
However, the Court rejected the applicant’s claim under Article 3. While the Court observed that the decision to sterilise Y.P. was clearly disrespectful of her autonomy, it held that this did not reach the threshold of severity required to find a breach of Article 3. Much of the Court’s reasoning focused on the intention of the doctors and the absence of any additional vulnerabilities.
In agreement with the majority, Judge Elósegui wrote a concurring opinion which expanded on these points. In relation to Article 8, Elósegui highlighted the paternalistic nature of the decision to dispense with informed consent. On Article 3, she expanded on vulnerability point to argue that this was not an instance of forced sterilisation with racist or eugenicist intentions aimed at women belonging to specific groups – which would indicate malicious intent, as absent in this case.
Judges Serghides and Pavli wrote dissenting opinions in disagreement with the majority’s finding on Article 3. The dissenting judges found the majority’s arguments around the doctors’ lack of ill-intention unpersuasive. While rejecting the suggestion that an additional element of vulnerability was necessary to meet the Article 3 threshold, both judges also highlighted the inherent vulnerability of a woman in Y.P.’s particular position. Judge Pavli concluded with a warning that the majority’s approach could cause ‘irreparable harm’.
Case law on forced sterilisations and other medical treatment
Whilst any judicial assessment as to whether a medical intervention breaches Article 3 is necessarily fact-sensitive, the Court has treated sterilisation – and the unique harms associated with it – as something of a special case. In the absence of consent, sterilisation is treated as an act which will by its very nature reach the Article 3 threshold or at least come close to it. Non-consensual sterilisation will ordinarily be “incompatible with the requirement of respect for human freedom and dignity, one of the fundamental principles on which the Convention is based” (V.C. v Slovakia §107; N.B. v Slovakia §51).
In addition to this starting point, which is a de facto presumption of incompatibility with Article 3, a number of additional factors are relevant to the Court’s assessment, including:
Applying these factors to Y.P.’s case, the Court firstly had clear evidence of the nature, extent, and effect of the procedure. Secondly, the Court was prepared to give significant leeway to doctors as they were faced with the “urgent” and “sudden” situation of the ruptured uterus and the possibility of future rupturing (§36). However, as the Court itself later acknowledges in their reasoning under Article 8, urgent action was only required in relation to the current rupture, which they had sutured (§ 54-55). There was no immediate risk to Y.P.’s life or health that was remedied by the sterilisation. Rather, the sterilisation was preventative rather than strictly necessary, to avoid a potential future harm if Y.P. were to become pregnant again. In past cases where a breach of Article 3 was found, sterilisation on the basis of similar future-oriented concerns had not been considered medically necessary (e.g. V.C. v Slovakia).
Thirdly, Court also places great weight on the fact that the “doctors had not acted in bad faith, let alone with an intent of ill-treating or degrading her” (§37). But as the case law shows, and as Judge Elósegui notes in her concurrence, “good intentions” cannot shield doctors from a finding that they breached Article 3. The lack of any bad faith in previous cases has been considered an irrelevant, rather than a mitigating, factor. Further, a gender-sensitive reading of the situation would highlight that the doctors had acted in a paternalistic manner in breaching Y.P.’s reproductive autonomy. Judges Serghides and Pavli, in their respective dissenting opinions, highlight that the doctors caused “humiliation and disrespect to her as a human being and in particular as a woman” and acted “with utter contempt as regards her autonomy and her ability to make informed decisions about her own reproductive life” (p.27; 32). The Court itself highlighted in relation to Article 8 that the doctors had assumed that Y.P. would act irresponsibly if she was not sterilised (§55). From this perspective, this paternalistic attitude towards Y.P.’s reproductive autonomy need not have been actively malicious in order to be harmful; the intention of the doctors was to take away Y.P.’s ability to choose to become pregnant in future.
Fourthly, the consent issues in Y.P.’s case are particularly troubling. Whilst most sterilisation cases involve some degree of technical consent (albeit that which is clearly not effective and informed), Y.P. had signed a form which explicitly ruled out consent for sterilisation. The doctors did not just act in spite of a lack her consent, they acted in direct opposition to her wishes.
Fifthly, the lack of information provided by doctors also distinguishes Y.P.’s case from others. Neither Y.P. nor her husband, who attended the operated and acted on her behalf, were told about the implications of the procedure for her fertility. She was left in the dark, only realising that she was unable to conceive some years later when trying to have another child.
Finally, in relation to identity and vulnerability, the Court (and Judge Elósegui in her concurrence) emphasised that Y.P., in contrast to the applicants in some of the previous sterilisation cases, was not of Roma identity, nor did she belong to any other minority ethnic group. There was no prospect that the sterilisation had been carried out on the basis of (racial) discrimination or for eugenic purposes. For the majority, this factor weighed against a finding that the procedure had breached Article 3. Of course, sterilisation carried out for eugenic or racist purposes would surely compound with the lack of consent to elevate the seriousness of the incident. Yet no reported case has suggested or implied that racist or discriminatory intent (or effect) is necessary in order to meet the Article 3 threshold. As Judge Pavli states in his dissent, the “general principle is not qualified by reference to any form of special vulnerability of the victim, though these can certainly add to the gravity of the prohibited treatment” (p.33). Both Judges Serghides and Pavli also note that Y.P. was situationally vulnerable as a pregnant woman undergoing an emergency Caesarean section in the context of current and previous pregnancy complications. This aspect barely features in the majority judgment.
Taking these factors together, and in clear contrast to the Court’s view, the relevant facts point clearly towards a breach of Article 3. The Court’s justifications for dismissing Y.P.’s circumstances as below the threshold (the doctors’ concern for her future health; the lack of ill-intent; and the lack of any additional vulnerabilities) are either irrelevant, marginal, or erroneous. In addition, the factors ignored or downplayed by the Court (the clear and intentional nature of the act; the overriding of clear consent; the lack of information provided; the vulnerable nature of the applicant; and the gender-based implications of violating her reproductive autonomy) ought to have been taken much more seriously.
At first glance, it appears that the European Court’s decision in Y.P. is at odds with its previous jurisprudence on non-consensual sterilisation and medical interventions. However, as the lack of ill-intent and additional vulnerabilities meant that the primary harm in Y.P.’s case was a violation of her reproductive autonomy, we might consider how the Court has responded to reproductive rights in other situations.
Case law on abortion
The Court has thus far avoided finding that restrictions on abortion violate Convention rights; violations have only been found where an applicant was denied access to an abortion they should have been entitled to under domestic law. Even in such cases, the Court has inconsistently applied Article 3.
Tysiąc v Poland concerned an applicant who had severe myopia and was told by doctors that her pregnancy posed a serious risk to her eyesight. She was, however, denied a therapeutic abortion (a legal ground for abortion in Poland) and as a result was left almost blind while raising three children alone. Despite the obvious medical and psychological effects of the refusal, the Court rejected the applicant’s claim under Article 3 with very little explanation and simply stated that the arguments would be best examined under Article 8 (§66).
However, some years later in P and S v. Poland, the ECtHR found that the denial of abortion services to a fourteen-year-old victim of rape (a legal ground for abortion in Poland) and her subsequent harassment by anti-abortion activists amounted to a violation of Article 3. The Court emphasised that it was of ‘cardinal importance’ that the victim was in a situation of great vulnerability due to her age and the circumstances of her pregnancy (§161-162).
Yet, in A, B, and C v. Ireland the Court again refused to find a violation of Article 3. All three applicants had been forced to travel to England for abortions – including the third, who was concerned for her life if her cancer returned while she was pregnant – but this was deemed insufficient to meet the threshold of severity and the claims were held to be manifestly ill-founded (§164-165). Under Article 8, the Court then applied the margin of appreciation to the first two applicants, finding a violation only in the case of the third who should have been entitled to a therapeutic abortion under domestic law.
The Court has tended to ignore factors in some circumstances that are given a great deal of weight in others, while in other cases very little explanation is given as to the rejection of an Article 3 claim. The applicant in Tysiąc and the third applicant in A, B, and C were arguably in situations of great vulnerability as a result of the risks posed to their life or health as a result of being denied an abortion, but this was not considered. Further, if the Court had placed emphasis on the ill-intent of the doctors, as it did in Y.P., it would have surely found a violation in Tysiąc as the doctors involved had deliberately claimed that she did not meet the legal ground for an abortion, instead of invoking conscientious objection, to obstruct her from accessing this procedure.
This inconsistency, however, appears to be intentional insofar as the Court is unwilling to impose substantive obligations to uphold reproductive autonomy (we note, in a similar vein, the Court’s reluctance to examine these issues from the perspective of Article 14). From this view, the dismissal of the Article 3 claim in Y.P. is therefore consistent with the Court’s reluctance to find such violations in reproductive rights cases unless exceptional circumstances arise (such as where age or race are relevant factors). Instead, applying qualified rights such as Article 8, under which the margin of appreciation comes into play, means that the ECtHR can impose less demanding – and thereby less controversial – standards.
The European Court has been consistently inconsistent in applying the Article 3 threshold to reproductive rights cases. Nonetheless, the decision in Y.P. v Russia is extremely concerning in its downplaying of the harm caused by non-consensual sterilisation. This case only reaffirms that the Court offers limited protection to victims – usually women – of reproductive rights violations.