January 03, 2023
By Eva Sevrin and Emma Várnagy
G.M. and Others v The Republic of Moldova concerns the imposition of abortions and contraceptive measures upon women with intellectual disabilities. In finding an Article 3 violation, the Court has not only added to its case law on reproductive rights, but also contributed to disability rights under the convention, most notably through foregrounding the importance of autonomous decision-making. In this post, we focus on two main take-aways. Firstly, we show that the Court embraces a rights- and agency-based approach in addressing reproductive rights of women with intellectual disabilities. Secondly, we argue that the judgment could have given more emphasis to the concepts of vulnerability and intersectionality by adding Article 14 to its considerations.
This case concerns the imposition of forced abortions and birth control measures on three women with intellectual disabilities of varying severity, who had not been deprived of their legal capacity, after a head doctor of the neuropsychiatric asylum where the women were residents raped them, between 1998 and 2007. The three applicants all claimed that they had not only been subjected to forced abortions, but that subsequently intrauterine contraceptive devices (IUD’s) were implanted against their will to prevent further pregnancies. The first applicant had been in her fifth month of pregnancy when she was forced to undergo an abortion.
All three applicants consecutively lodged criminal complaints in 2014 relating to both the forced abortions and the non-consensual birth control measures. A judicial ping-pong of refusals and appeals ensued where the public prosecutor repeatedly refused to initiate criminal proceedings. The prosecutor put forward that the termination of the pregnancies of the first two applicants were lawful, and that there was no evidence that the third applicant had ever been pregnant (§24, §28, §32, §36). The prosecutor further noted that at the time of the complaints, Moldavian national law did not require the patient’s consent for the termination of a pregnancy (while also adding that all three applicants did indeed agree to the procedures) (§28). As a result of separate criminal proceedings, the head doctor was convicted in 2019 of raping sixteen female residents in total, including all three applicants.
This case is but one example of the overall context where women with intellectual disabilities are “often treated as if they have no control, or should have no control, over their sexual and reproductive choices”.
The applicants put forward a complaint under Article 8 ECHR (right to respect for private and family life), the ‘standard’ article for complaints relating to non-consensual medical proceedings. However, the Court reclassified the case and assessed the issues at hand under Article 3 (prohibition of torture, inhuman and degrading treatment). The Court has done this before when the medical treatment at hand could be seen as intrusive (for example in Akopyan v Ukraine) or when the person concerned belonged to a vulnerable group (for example in V.C. v Slovakia). The Court stated that both the alleged forced abortions and forced contraception fell within the ambit of Article 3, due to the invasive nature of the medical interventions in combination with the applicant’s vulnerability, described by the Court as “resulting from such elements as their gender, disability and institutionalisation” (§89).
The Court held that there has been a violation of Article 3, both in its procedural and substantive aspects. Regarding the procedural violation, it noted that the Moldovan authorities had failed to carry out an effective investigation (§106) despite the applicants’ repeated appeal against the public prosecutor’s refusal to investigate the facts. As the applicants made arguable claims about the non-consensual procedures, further steps should have been taken by the authorities (§102). Failing to go beyond consulting the applicants’ medical files, by for example conducting interviews with other residents, the Court found the investigations had been unsatisfactory (§103-4).
The Court next took a twofold approach to assessing the substantive limb of Article 3. First, it found a violation in the structural shortcomings of the paternalistic Moldovan legal framework and its implementation, which did not protect intellectually disabled women from forced medical interventions (§123-6). The legal system as a whole did not ensure that these intrusive procedures could only happen after the women in question, also when having an intellectual disability, would be able to express valid and fully informed consent. On top of this, the criminal legislation targeting those enabling or imposing such practices, was also deemed inadequate (§126).
Second, the Court focused on the personal situations of the different applicants. Here the Court was faced with having to make factual assessments in order to determine whether or not the evidence was sufficient to establish the forced abortions and forced contraception. It carried out this exercise “sensitive to the subsidiary nature of its task and recognising that it must be cautious in taking on the role of a first-instance tribunal of fact where this is not rendered unavoidable by the circumstances of a particular case” (§97). For the first two applicants, it was not the termination of the pregnancies which was disputed, but the lack of consent. The Court noted that the patient’s consent could not have been presumed and written confirmation was required by domestic law (§131). For the second applicant, the Moldovan authorities had submitted a consent form with a handwritten letter ‘M’ as evidence of written consent, but this was still found to be insufficient, in light of the “gross disregard for [the applicants’] right to autonomy and choice” (§134).
As regards the third applicant, the Moldovan authorities consistently rejected the claims that she had ever been pregnant, because her medical file did not contain any records on her pregnancy. The Court established a presumption in favor of the applicant, as the “events in issue [lay] wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody” (§137). Consequently, the burden of proof shifted to the government to take away any doubts about the account of the victim. In this case, the Court concluded that witness statements, the proven rape, and the lack of protection within the legal framework, allowed it to establish that the forced abortion had taken place.
Finally, the Court addressed the issues of forced contraception. For the first applicant, who submitted medical records suggesting the possibility of an IUD, it established a similar presumption and thus found a violation (§143 and 147). The first applicant also put forward that this led to her inability to bear children, but the Court found it unnecessary to examine this fact separately (§148). For the last two applicants, the Court noted that due to the lack of evidence or details submitted, no similar presumption could be established and as such no conclusion on the forced contraception could be drawn (§150).
The agency of women with intellectual disabilities over their own reproductive health has long been a contested topic. A paternalistic approach has traditionally assumed that intellectual disability is a sufficient reason to prevent or even stop pregnancies, for the sake of both the mother and the child (similar to the stereotypes at the heart of the state policy to incentivise or force sterilization of Roma women in the former Czecho-Slovakia). Both eugenetic ideas and stereotypical assumptions about parenting capabilities have been reflected in laws regulating the reproductive rights of women. These laws may have left little room for the individual woman, her situation or choice.
These laws mirror broader perspectives on persons with disabilities and their – oftentimes limited – access to human rights. Scholars active in disability studies have used different models to describe the shifting perspectives on people with disabilities and their rights. Historically, persons with disabilities were often perceived as passive recipients of care and charity, and the result was that laws and policies excluded them from many aspects of society (‘the charity model’). Later on, the ‘medical model’ showed a shift towards inclusion of people in society, but through focusing on curing or ‘fixing’ the person, and thus primarily envisaging disabilities as ‘abnormalities’. In contrast, a more recent approach termed the ‘social model’ has emphasized the role of society in creating obstacles for people with disabilities, and the ‘human rights model’ put forward the importance of human dignity and autonomy, with the UN CRPD being an explicit expression of this last model.
For people with intellectual disabilities, the social barriers are not primarily external or physical, but rather legal and based on conceptions of (lack of) autonomy. Rather than having physical obstacles, such as inaccessible infrastructure, excluding them from day-to-day life, legal provisions taking away their decision-making power are perceived as the biggest issue for societal inclusion. A lack of self-determination or autonomy regarding reproductive choices, is an important aspect of these societal barriers.
What is relevant in G.M. is that the approach and the language employed by the Court seems to fully embrace this shift towards the human rights model. The Court has come a long way from its first case on persons with intellectual disabilities, namely X and Y v the Netherlands in 1985. In this case, an intellectually disabled woman who resided in a mental health institution, was not able to institute criminal proceedings after being raped by someone related to the head of the asylum, due to the fact that she was deemed legally incompetent. The Court did find an Article 8 violation, but nowhere did it mention the vulnerability of persons with intellectual disabilities, let alone that of women with intellectual disabilities. There is no attention given to the specific societal context and stereotypes that allow human rights breaches such as found in the case at hand. As A. Dimopoulos emphasizes, intellectual disabilities have long been a “hidden issue” in the Court’s case law. Despite the fact that a shift started to show in the Glass v. UK case in 2004, the Court continued to take a rather narrow view of the legal issues, focusing on very specific violations without overtly mentioning the broader or systemic issues concerning intellectual disabilities. In general, the Court’s track record on disabilities in a broader sense has been quite spotty as well (see these blog posts for example on Arnar Helgi Lárusson v. Iceland or Stoian v Romania).
In the present judgment, the contrast with X and Y could not be clearer. From the onset, the Court explicitly recognizes the systemic aspect that the individual case represents, stating that the use of non-consensual abortions and contraception “raises issues about a systemic denial of agency to institutionalised women with intellectual disabilities” (§90). It goes on to evaluate the broader legal framework and how it allows for systemic violations by not protecting this particularly vulnerable group. It even explicitly notes that the laws allowing for non-consensual abortions for these women have a “paternalistic tone” (§123) and that “harmful stereotypes exist according to which persons with mental disabilities should not procreate” (§122). As such, the Court’s approach has definitely become more attentive to the particular situation of women with disabilities, their need for autonomy and the general, potentially harmful context, in which they live.
Moreover, because the Court brought the issues within the scope of Article 3, the protection granted is more extensive than an Article 8 approach would have allowed for. Now the Court’s stance seems clear, at least for women who have not been deprived of their legal capacity: safeguards are needed to ensure that women with intellectual disabilities give valid, free and prior consent for medical interventions. Laws that supersede this consent on the basis that limited reproductive rights are ‘in the best interest of the intellectually disabled person’, do not seem to be acceptable by Convention standards anymore.
How these findings will translate onto the situation of women who have formally been deemed legally incompetent, remains to be seen. However, the Court’s vigilance towards vulnerabilities in this case, its emphasis on autonomy and attention to the particular circumstances of each individual (§122 and §120) should definitely allow for a nuanced approach. If the Court aims to continue its ‘human rights model’ approach towards women with disabilities, attention to the human dignity of the individual cannot allow for forced procedures on the mere basis of disability-related legal incompetence. The CRPD is clear on this matter: persons with disabilities retain their “right to equality and nondiscrimination in all aspects of life, including the rights to found and maintain a family and to retain their fertility”. In fact, the CRPD has moved away from the formal ‘legal (in)capacity’ divide, foregrounding the fact that each person’s live and their rights to decide needs to be protected. On the topic of abortions, the CRPD Committee has explicitly established that only the informed consent of a woman with a disability, whether she has been deemed legally incompetent or not, can justify such procedures, and no third-party consent can serve as a substitute. In G.M., the Court has aligned itself with the UN CRPD’s approach. As such, if the Court wants to continue the reasoning of G.M., a declaration of legal incompetence should not be a blanket excuse in future cases to deny the right to informed consent.
While the Court clearly extended the protection afforded to the applicants by bringing their case under Article 3 on its own motion, we cannot help but wonder why the Article 14 aspect of the case has once again been neglected. While nothing prevents it from doing so (in fact, the Court has been invited to requalify as well as to raise new issues) it is generally not its approach to assess aspects that have not been addressed in the domestic proceedings. At the same time, the question arises what can be done if the domestic procedure is not conducive to the recognition of discrimination. As far as the authors are aware, legal recourses against discriminatory practices applicable in the context of such interventions in Moldova have been introduced from the early 2010’s, thus have not been self-evident at the time the applicants filed their complaints.
A search of the Court’s online database[i] seems to suggest that it has not on its own motion recharacterized an issue as discrimination in a case where the original complaints did not concern this area, and it may well be subject to debate whether such activism from the Court would be desirable. Yet, we submit that this case is a clear example of intersecting vulnerabilities leading to discrimination, which, if pronounced as such, could have further strengthened the judgment in the present case.
The Court emphasized the applicants’ vulnerability which led it to assess the case under Article 3 rather than Article 8. The approach taken may be understood as group vulnerability, basing the source of vulnerability on the existence of stereotypes and historical prejudice against members of a specific group. Findings of group vulnerability are typical in disability as well as racial discrimination cases (see eg. in Horváth and Kiss v Hungary a case of school segregation of Roma children with mild mental disability). There are, however, examples of another approach to vulnerability in the Court’s case law, recognizing that it is certain situations that expose individuals to violations of their dignity. The Court takes this more individualistic approach for example with regards to persons under the exclusive control of the state (eg. persons in custody or, as acknowledged by the Court in the present case, persons in institutional care). It could be argued that pregnancy and childbirth could also make a person vulnerable. Whichever vulnerability typology we follow, it is important to recognize what we may refer to as compound or intersectional vulnerability: where two or more conditions make the applicant more vulnerable to human rights violations, particularly discrimination. In the present case, it could be argued on the one hand that primarily women bear the burden of forced medical interventions regulating reproduction and sexuality, due to the fundamental biological differences between the sexes. On the other hand, it is equally unlikely that non-institutionalised rape victims should be subject to forced interventions to cover up past-, and even to create the conditions for possible future abuse. The Court has, however, not expressly endorsed intersectionality in its judgments thus far. Instead, it refers to ‘particular vulnerability’ – as it does four times in the present judgment – to hint at the several different layers of the situation which may enhance one another.
Despite not counting and exploring the intersections of the applicants’ vulnerabilities, the Court in G.M. was mindful of the paternalistic views towards people with disabilities and the existence of stereotypes about their reproductive freedom, as well as the applicants being in the care of a public institution, which taken together with their gender exposed them to rape and abuse of their reproductive rights, a practice revealed to be happening on a systemic level. Acknowledging these in the context of Article 3, as in this judgment, is extremely important, but as a rather high threshold right it is not always helpful in denouncing systemic discriminatory issues (see in Y.P. v Russia where a ‘non-vulnerable’ applicant’s sterilization did not meet the severity of this article). To truly advance rights of non-dominant groups, however, both from a legislative/policy as well as a procedural justice perspective, such findings would be equally vital under Article 14. It is only by naming an issue of systemic discrimination what it is under the specific provision that is meant to protect from discrimination that can send a sufficiently strong and clear message against discriminatory practices. As Arnardóttir summarizes in her article on vulnerability under Article 14 ECHR the recognition of (intersecting) vulnerability ‘is a distinct step in the direction of imbuing Article 14 with clearer normative content.’
In conclusion, G.M. and others has centralized the autonomy of intellectually disabled women. Through targeting a broader context, the Court has addressed a more complete legislative reality that can lead to severe human rights abuses of intellectually disabled women. Unlike other disability-related case law, the Court seems to have aligned itself with other international human rights instruments and their enforcement mechanisms, most notably the CRPD. While the judgment’s strength thus lies with its emphasis on the structural and systemic issues at play, explicit attention to the discriminatory aspects of the case could have brought the rights of women with disabilities even further.
[i] A text-search was carried out for the standard phrasing ‘master of the characterisation to be given in law to the facts‘ in conjunction with Article 14. This search yielded 37 results, which were then checked for the recharacterized rights. It appeared that save for one case, in which the Grand Chamber invited the parties to address Article 14, recharacterization occurred to narrow the scope of the examination.
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