February 17, 2023
by Dr. Rebecca Smyth
In S.F.K. v. Russia and G.M. and Others v. The Republic of Moldova , the European Court of Human Rights (the Court/ECtHR) found both States responsible for violations of Article 3 of the European Convention on Human Rights (ECHR) due to the applicants being forced to have an abortion against their will or without their informed consent. These cases represent an interesting development in the Court’s jurisprudence on abortion specifically and sexual and reproductive health and rights (SRHRs) more broadly. In terms of promising developments, these judgments contribute to jurisprudence on the reproductive autonomy of disabled women and people who can become pregnant, and they recognise the severity of someone being forced to undergo reproductive healthcare procedures without their informed consent and/or against their express wishes. Regarding potential pitfalls, these judgments represent the ongoing unwillingness or inability of the Court to draw upon the full range of international human rights standards regarding abortion and SRHRs. These rulings may also indicate the influence of conservative and even reactionary influences on the Court’s approach to abortion. As such, these two recent cases merit closer analysis within the wider context of abortion rights in international human rights law.
In S.F.K. v. Russia, the applicant’s parents and two medical professionals forced her to have an abortion at around five weeks’ gestation. At no point did she receive any information, undergo medical examination, or sign any documents. Investigating officers undertook three separate pre-investigation inquiries but decided each time that there were insufficient grounds to open a criminal investigation, despite irregularities including there being no record of S.F.K.’s admission to hospital or the procedure. S.F.K. contacted the local prosecutor’s office, which called on the hospital’s Chief Medical Officer to undertake disciplinary measures against those responsible. No such action was taken. S.F.K. also lodged a complaint against the hospital with the District Court. Following appeal, the federal state’s Supreme Court ruled that the healthcare professionals had breached national healthcare legislation and regulations. It also ruled that the medical professionals had violated S.F.K.’s right to respect for her private life and had caused her psychological suffering. She was awarded 20,000 roubles (approx. €500) in non-pecuniary damages.
In G.M. and Others v. Moldova, three applicants with ‘intellectual disabilities of varying levels of severity’ — G.M, T.M., and M.P. — alleged that they had been forced to have abortions without their consent and had been fitted with intrauterine devices (IUDs) without their knowledge while institutionalised in the Bălți neuropsychiatric residential facility. G.M. and M.P. had become pregnant after the head doctor of one of the facility’s units, F.S., raped them. From 2014 to 2017, the three applicants and their representatives attempted unsuccessfully to instigate criminal proceedings. They filed multiple requests and appeals with the prosecutor, a superior prosecutor, the Court of Appeal, and an investigating judge. Throughout, the prosecutor maintained that there were no grounds for opening a criminal investigation because the first and second applicants’ abortions had been carried out in accordance with the law (which included mental impairment as an ‘illness in respect of which pregnancy is contraindicated’) and/or with their consent; there were no medical records indicating that the third applicant had ever been pregnant; and none of the applicants had been sterilised. The doctor F.S. was convicted of raping sixteen female residents of the facility in November 2015, including all three applicants. The final judgment cited two witness statements mentioning the third applicant’s pregnancy and referral to the maternity hospital for an abortion.
S.F.K. claimed that she had been subjected to treatment falling within the scope of Article 3, and that her rights to privacy (Article 8) and to an effective remedy (Article 13) had also been violated (§58, §91, §96). The Court found that there were violations of both the substantive and procedural limb of Article 3 (§82, §90), and that it was therefore unnecessary to examine the complaints’ merits separately under Article 8 or 13 (§95, §99). Regarding the substantive limb, the Court noted that the state bore no responsibility for S.F.K.’s parents’ acts as private individuals, but that it did bear direct responsibility for inhuman and degrading treatment involving medical personnel at the public hospital (§80). It described the forced abortion and breach of medical rules as ‘an egregious form of inhuman and degrading treatment’ that resulted in both immediate and long-term negative physical and psychological effects (§81). Regarding the procedural limb, the Court ruled that Russia failed to discharge its duty to investigate ill-treatment by failing to open a criminal investigation, take effective measures against S.F.K.’s parents or the two healthcare professionals, or ensure any kind of punishment (§84-89).
In their partly dissenting opinion, Judges Roosma and Lobov disagreed with the majority that there was a violation of the State’s negative obligation under the substantive limb of Article 3. They disagreed with classifying medical professionals employed by a public hospital as Stage agents, and they claimed that the medical personnel’s actions were ‘very far removed from the performance of their regular professional duties’ and did not indicate ‘any acquiescence or connivance’ on the part of hospital management or the public authorities (§7).
While the applicants relied on Article 8 to bring their claim, the Court decided that their complaints should be examined under Article 3 (§67-8). Regarding all three applicants, it found Moldova responsible for violating the procedural limb of Article 3 because the State failed to (a) include measures for obtaining intellectually disabled persons’ valid, free, and prior consent for medical interventions; (b) adopt adequate criminal legislation regarding non-consensual medical interventions on intellectually disabled people in general and women in particular; and (c) implement other mechanisms to prevent such abuse (§128). For carrying out abortions without the applicants’ consent, the Court found Moldova responsible for violations of the substantive limb of Article 3, specifically the positive obligation to protect the applicants’ physical integrity (§134, §141). For inserting an IUD without the first applicant’s knowledge or consent, the Court again found Moldova responsible for violating its positive obligation to protect her physical integrity under the substantive limb of Article 3 (§147). In the absence of clear evidence, the Court could not draw a similar conclusion regarding the second and third applicants, and so it did not find a violation (§150).
Both judgments make some welcome contributions to the Court’s SRHRs jurisprudence. They represent the first time that the Court has ruled on forced abortion. By considering violations of reproductive autonomy under Article 3 rather than Article 8 (as has more often been the case with the Court’s reproductive rights jurisprudence), the Court is emphasising just how harmful interfering with reproductive autonomy can be. The Court also makes effective use of some UN standards in G.M. and Others to illustrate the severe and systemic nature of the issues highlighted by the facts of the case. Among others, it refers to CEDAW General Recommendation No. 35 that describes forced abortion and sterilisation as forms of gender-based violence that may amount to torture or cruel, inhuman or degrading treatment (§45, 46), and the CRPD’s 2017 Concluding Observations on Moldova that expressed concern with the widespread nature of ‘forced contraceptive measures, forced abortion…and sexual abuse, including by medical staff’ in institutions (§52).
Throughout its assessment of the merits, the Court emphasises the severity of the allegations due to ‘the applicants’ vulnerability — resulting from such elements as their gender, disability and institutionalisation’ (§89), and the ‘structural’ and ‘systemic’ nature of the violations of Article 3 (§90, §110). Notwithstanding the need for the Court to adopt a nuanced approach to vulnerability that avoids essentialising applicants, such an approach is largely in keeping with a gender-sensitive and disability rights approach to adjudication. So too are the Court’s framing of the case in terms of the ‘systemic denial of agency to institutionalised women with intellectual disabilities concerning their reproductive rights’ (§90) and its criticism of the ‘paternalistic tone’ of the 1994 ministerial order that indicated intellectual disability as a contraindication for pregnancy without any further assessment of medical risks (§123).
However, both judgments are also characterised by certain oversights and potentially concerning influences. There is no reference in either judgment to the 2018 joint CRPD/CEDAW statement Guaranteeing sexual and reproductive health and rights for all women, in particular women with disabilities which states that ‘gender equality and disability rights are mutually reinforcing concepts’, and that ‘women should neither be stigmatized for voluntarily undergoing abortion nor forced to undergo an abortion or sterilization against their will or without their informed consent.’ Referring to this statement would have enabled the Court to recognise that forced abortion and criminalising abortion are interrelated and equally harmful.
In S.F.K., there is no engagement with or reference to any international human rights standards, including those on abortion or forced abortion, even though many had already been developed by 2010 when the facts of the case occurred. There is also no reference in either judgment to UN Committee on Economic, Social and Cultural Rights General Comment No. 22 on the right to sexual and reproductive health, nor to relevant thematic reports by the UN Special Rapporteur on the right to health including the thematic reports on the right to sexual and reproductive health, informed consent, and legal restrictions on sexual and reproductive health. This perhaps reflects the Court’s reticence to engage with economic, social, and cultural rights which are not explicitly included in the ECHR.
The ongoing dichotomy between civil and political rights on the one hand and economic and social rights on the other in the European human rights system, with the former being accorded higher priority than the latter, represents a considerable conceptual and structural impediment to the universality, indivisibility, and interdependence of human rights. This dichotomy has specific implications for historically oppressed and marginalised groups including women and people who can become pregnant, and disabled people. This dichotomy has long been critiqued by feminist legal scholars as failing to identify the specific spheres and manifestations of gendered human rights violations; failing to accord them the same importance as other forms of human rights violations; and forcing oppressed groups to twist their experiences to fit into an existing framework that cannot represent or respond to their lived realities. While the Court is making progress in taking a more gender-sensitive approach to legal reasoning, including in these two cases, the overarching structure of the European human rights system is not as conducive to progress as that of the other human rights systems.
In both S.F.K. and G.M and Others, the Court missed an opportunity to develop its Article 3 jurisprudence from a gender-sensitive and disability rights-sensitive perspective. The UN Committee Against Torture (UNCAT) and UN Special Rapporteur on torture (UN SR on torture) have dedicated increasing attention to torture and ill-treatment in healthcare settings and from a gendered and disability rights perspective since the mid-1990s. Although the Court did engage with some UN human rights standards in G.M and Others, it did not engage with any of those developed by UNCAT or UN SR torture.
The most concerning aspect of the reasoning in both judgments is the potential influence of anti-choice rhetoric and lobby groups. In S.F.K., the Court rightly noted that the forced abortion was ‘an egregious form’ of inhuman and degrading treatment, but it referred to ‘the loss of her unborn child’ as one of the main reasons for it being so egregious (§81). In conversation, people often refer to their pregnancy as their baby or their child, including people who have abortions. This is absolutely valid, and it is sensitively explored in this article by Jeannie Ludlow. However, it would be more appropriate for the Court to use correct medical terminology or refrain from potentially emotive and inaccurate language when discussing abortion in its judgments. The awfulness of forcing someone to end a wanted pregnancy can be acknowledged without using terms that can contribute to misconceptions about pregnancy and abortion, even unintentionally.
More concerning than this probably unconscious oversight are two of the three the third-party interventions in G.M. and Others. The European Centre for Law and Justice (ECLJ) and Ordo Iuris both provided third-party interventions. These two organisations, which are affiliated with each other, are highly conservative lobby groups that oppose abortion access and LGBTQ+ rights. Ordo Iuris describes itself as concerned with countering ‘radical ideologies that aggressively question the social order’ and ‘seek to destroy its very foundation.’ It has been actively involved in efforts to restrict abortion access, undermine LGBTQ+ people’s rights, and impede the introduction of comprehensive sexuality education in Poland. It is hard to believe that Ordo Iuris is sincerely concerned with disabled women’s reproductive autonomy when one of its bioethics centre members said that women planning to have abortions should be forcibly placed in mental health units. While these organisations are of course legally entitled to submit third party interventions, the Court should exercise circumspection in how much space and attention it affords to submissions by organisations with a clear track record of undermining the human rights and equality of minority groups.
Fortunately, it would seem that the Court drew more on the intervention by Validity — a Hungarian and UK-based disability rights NGO — than those by ECLJ and Ordo Iuris. In their intervention, Validity ‘emphasised the systemic dimension of forced abortions and sterilisations performed on women with intellectual or psychosocial disabilities’ and how they are ‘a form of structural gender-based and disability-based discrimination’ (G.M. and Others, §81). As mentioned above, the Court used similar language when it referred to the ‘systemic denial of agency to institutionalised women with intellectual disabilities concerning their reproductive rights’ (§90). Referring to the international human rights standards discussed above concerning abortion and SRHRs would have enabled the Court to develop this approach even further, and to contribute to a more coherent and assertive approach to reproductive autonomy in international human rights law.
S.F.K. and G.M. and Others represent a milestone in the Court’s SRHR jurisprudence. The judgments make some positive contributions to the growing body of international standards and case-law in this area, including recognising the severity of forced abortion, and an increasingly gender-sensitive and disability rights-sensitive approach to adjudication. However, these rulings also speak to the ongoing contradictions, tensions, and contestations surrounding SRHRs in international human rights law. Why is it that certain practices, such as forced abortion, are easier for the Court to recognise as human rights violations than others, such as criminalising abortion? To what extent can and should the Court engage with UN and regional human rights standards on SRHRs to ensure a coherent, gender-sensitive, and disability rights-sensitive approach? In what ways are different interests and their representatives shaping the Court’s approach to politicised issues? Academics, activists, and advocates should continue to explore these questions as the Court develops its SRHR jurisprudence.
 See Annexes 1, 2, 3 in Rebecca Smyth, Contesting Citizenship: An intersectional feminist approach to abortion in international human rights law, with a focus on El Salvador and Ireland (unpublished doctoral thesis, available at https://era.ed.ac.uk/bitstream/handle/1842/37922/SmythR_2021.pdf?sequence=1&isAllowed=y)