Columbia Journal of Gender and Law62 32.1

“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?

LIIRI OJA* & ALICIA ELY YAMIN**

Abstract

Reproductive rights are constructed through a gender-conscious reading of already 
recognized human rights. We argue that despite the increasingly strong recognition of 
reproductive rights in international human rights law by the treaty-monitoring bodies 
and international tribunals, the jurisprudence of the European Court of Human Rights 
(“ECtHR” or “the Court”) reflects a limited understanding of women’s experiences, 
does not adequately challenge gender stereotypes, and often ignores reproductive rights 
dimensions in the standards it is setting, as well as the narratives it is creating. Our analysis 
of the Court’s jurisprudence on abortion, home birth, non-consensual gynecological 
examinations, forced sterilizations, and assisted reproduction reveals that a woman’s 
reproductive capacity continues to be her defining feature. Motherhood is seen as a 
woman’s default life plan, her decisions regarding her body, health, and ultimately life, are 
perpetually under scrutiny and the contours of her agency subject to medical professionals’ 
views, the legislators and the general public.

INTRODUCTION

In her much-celebrated novel The Handmaid’s Tale, Margaret Atwood created a society 
where women’s function was reduced to breeding, and those who failed or tried to escape 
from this labor were labeled as “Unwomen” and punished.1 Atwood’s 1985 book may 

*  Liiri Oja is a PhD researcher at the European University Institute.

**     Alicia Ely Yamin is Director of the Health and Human Rights Initiative at the O’Neill Institute for National 
and Global Health Law at Georgetown University and Visiting Professor of Law at Georgetown Law Center. 
She is also an Adjunct Lecturer on Law and Global Health at the Harvard TH Chan School of Public Health, a 
Global Fellow at the Centre for Law and Social Transformation in Norway, and was selected as the 2015–2016 
Marsha Lilien Gladstein Visiting Professor of Human Rights, University of Connecticut.



Columbia Journal of Gender and Law 6332.1

have been science fiction, but the story she tells is distressingly not too dissimilar from 
women’s stories in the twenty-first century—even in what is known as the most progressive 
of regions: Europe. Indeed, when we study how “woman” has been constructed in the 
human rights system that was founded upon the European Convention on Human Rights 
(hereafter, “the Convention”), we find disturbingly essentialist gender roles. 

The ECtHR is the judicial forum of the most established regional human rights system 
in the world, grounded in the norms of the European Convention on Human Rights. The 
Court’s decisions are binding upon the forty-seven member states of the Council of Europe, 
and are implemented through domestic legislation and regulations. Moreover, the ECtHR’s 
jurisprudence is regularly looked to and cited by other regional tribunals, treaty-monitoring 
bodies that adjudicate cases, and domestic courts.2 Thus, the ECtHR sets standards in 
human rights law both within and beyond Europe and presents an important construction 
site for rights narratives, including reproductive rights narratives. As questions around 
women’s reproductive health are often deeply contested, the ECtHR arguably has an 
especially important role to play in fostering public learning regarding reproductive rights 
as integral to the full participation of women in European society. Indeed, we argue in 
this Article that by using the law to “publicly and authoritatively proclaim and transform” 
unacknowledged harmful experience into legally cognizable wrongs requiring redress, the 
Court could play a potentially transformative role in narratives of women’s citizenship in 
the European context.3 

The Court has decided a number of cases concerning the matters of human reproduction 
(for example, restrictive abortion laws and access to in vitro fertilization). Nevertheless, the 
ECtHR itself has neither referred to reproductive rights as human rights (and accordingly 
forming a part of the Convention) nor specified that cases about reproduction entail 
questions of reproductive and decisional autonomy that go beyond private sphere and could 
entail needed shifts in social norms as well as institutional practices. Through examining 
how the Court has addressed specific issues relating to reproduction, we reflect on what 

1  Margaret Atwood, The Handmaid’s Tale (1985). Other authors have drawn parallels between Atwood’s 
novel and surrogacy. See Karen Busby & Delaney Vun, Revisiting The Handmaid’s Tale: Feminist Theory 
Meets Empirical Research On Surrogate Mothers, 26 Can. J. Fam. L. 13 (2010).

2  See, e.g, Kaija H. v. Stora Enso Ingerois Oy, (2010) KKO 93 (Fin.) (the Finnish Supreme Court based part 
of its ruling expressly on ECtHR’s judgments in this case).

3  Rebecca J. Cook & Simone Cusack, Gender Stereotyping: Transnational Legal Perspectives 39, 
44 (2010). 



Columbia Journal of Gender and Law64 32.1

the ECtHR’s jurisprudence tells us about narratives of women’s identity and citizenship in 
Europe more broadly. 

Based on a systematic review of the Court’s jurisprudence from 2003 to 2015, we 
consider nineteen cases that the Court has decided regarding issues of reproductive 
freedoms and entitlements: four abortion cases,4 two cases concerning home birth,5 six cases 
about assisted reproduction,6 three forced sterilization cases,7 three forced gynecological 
examination cases,8 and one landmark domestic violence decision.9 Although women’s 
reproductive rights are closely linked to sexual orientation and gender identity, the scope 
of the Article does not permit analysis of those cases. 

The Article is divided into four Sections. After setting out a brief overview of gender 
and citizenship narratives and reproductive rights in relation to human rights, in subsequent 
Sections we present the case law of the ECtHR regarding each of the above issues, dividing 
them into the following Sections: women, birth and pregnancy; women and assisted 
reproduction; and women, dignity and violence. Analysis of cases relating to each of 
these issues reveals that the way in which the Court addresses (or fails to address) harmful 
gender stereotypes implicitly, if not explicitly, reinforces narratives that paint a reductionist 
portrait of women’s agency and role in the society. Following the argument set out by 
Rebecca Cook and Simone Cusack, we suggest that for the Court to play a transformative 
role would require first, identifying the gender stereotype (for example, does a policy/law 
imply that women are sexually passive and/or only should be mothers) and second, asking 
whether this gender stereotype denies women a benefit or imposes an undue burden, and 
whether it diminishes their dignity or otherwise marginalizes them.10 We conclude that it is 

4  Tysiac v. Poland, 2007-I Eur. Ct. H.R. 219; A, B & C v. Ir, 2010-VI Eur. Ct. H.R. 185; R.R. v. Poland, 
2011-III Eur. Ct. H.R. 209; P. & S. v. Poland, Eur. Ct. H.R (2012).

5  Ternovszky v. Hungary, Eur. Ct. H.R. (2010); Dubska v. Czech Republic, Eur. Ct. H.R (2014).

6  Dickson v. United Kingdom, 2007-V Eur. Ct. H.R. 99; Mennesson v. France, Eur. Ct. H.R. (2014) together 
with Labassee v. France, Eur. Ct. H.R. (2014); S.H. v. Austria, 2011-V Eur. Ct. H.R. 295; Costa v. Italy, Eur. 
Ct. H.R. (2012); Evans v. United Kingdom, 2007-I Eur. Ct. H.R. 353; Paradiso v. Italy, Eur. Ct. H.R. (2015).

7  N.B. v. Slovakia, Eur. Ct. H.R. (2012); I.G. v. Slovakia, Eur. Ct. H.R. (2012); V.C. v. Slovakia, 2011-V 
Eur. Ct. H.R. 381. 

8  Y.F. v. Turkey, 2003-IX Eur. Ct. H.R. 171; Juhnke v. Turkey, Eur. Ct. H.R. (2008); Yazgül Yilmaz v. Turkey, 
Eur. Ct. H.R (2011).

9  Opuz v. Turkey, 2009-III Eur. Ct. H.R. 107.

10  Cook & Cusack (2010), supra note 3, at 50–70.



Columbia Journal of Gender and Law 6532.1

only through consciously naming and dismantling the narratives that exist that the ECtHR 
can begin to build an alternative construction of women’s identity in the European context, 
as have other international human rights tribunals.11

I. CITIZENSHIP, GENDER, AND REPRODUCTIVE RIGHTS 

Feminist scholars have engaged with the relation between citizenship and gender quite 
extensively, and offered nuanced understandings of what citizenship means in different 
circumstances.12 For the purpose of our enquiry into the stories of the “woman” in the 
ECtHR’s reproductive rights jurisprudence, we use the term citizenship in a fairly loose 
and broad sense to describe a person’s status and belonging: who is included and who 
is excluded from decision-making, from being a full and autonomous subject. Women 
have been historically excluded from full legal citizenship—from being able to vote and 
run for office, to having property rights, educational opportunities, and parental authority. 
The status of women in Europe began to formally change only in the twentieth century, 
and is indeed enshrined in the European Convention. Yet gender stereotypes—generalized 
views or preconceptions concerning sex, sexual characteristics or qualities, and sex 
roles13—continue to be embedded in some national laws as well as practices, and to limit 
women’s citizenship in the sense of their ability to participate fully in their communities 
and societies as equals in different ways across Europe, often in response to cultural and 
religious traditions ranging from Catholicism to Islam. As Europe is today in the throes 
of re-thinking notions of citizenship beyond state borders and formal legal notions of 
citizenship, questions regarding narratives of women’s identities—considering that they 
make up over half the population—and the extent to which women are able to carry out 
their chosen life projects, present a fundamental part of that larger social deliberation. 

Empowering women through the human rights law that governs the Council of Europe 
requires naming, understanding, and acknowledging the impacts of harmful gender 
stereotypes that are often taken for granted as “the way things are” and then articulating 

11  See González et al. (“Cotton Field”) v. Mexico, Preliminary Objection, Merits, Reparations, and Costs, 
Judgment, Inter-Am. Ct. H.R. (ser. C) No. 205, ¶ 401 (Nov. 16, 2009) (the court explains how the subordination 
of women can be associated with practices based on persistent socially-dominant gender stereotypes and how 
the creation and use of stereotypes becomes one of the causes and consequences of gender-based violence 
against women).

12  See, e.g., Women and Citizenship (Marilyn Friedman ed., 2005); Beyond Citizenship? Feminism and 
the Transformation of Belonging (Sasha Roseneil ed., 2013).

13  Cook & Cusack (2010), supra note 3, at 45. 



Columbia Journal of Gender and Law66 32.1

the ways in which norms can transform social roles for women in the European context.14 
Understanding the importance of language in structuring our thoughts makes the converse 
equally true; that is, it is critical to explicitly name reproductive rights as human rights, rather 
than merely as cultural, religious or moral issues. International human rights documents 
provide guidance in this regard. The Report of the U.N. International Conference on 
Population and Development (“ICPD”) describes the concept of reproductive rights as 
follows: 

[R]eproductive 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 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 to make decisions concerning reproduction free 
of discrimination, coercion and violence as expressed in human rights 
documents.15 

Further, the ICPD Programme of Action “appears to recognise the ways in which culture 
and law are shaped by patriarchal assumptions about women and their capacity for roles 
other than motherhood. These underlying assumptions must be subverted in order for 
society to accept the need for reproductive rights for women.”16 The 1995 Platform of 
Action of the Fourth World Conference on Women, which extended the ICPD, added: 
“The human rights of women include their right to have control over and decide freely 
and responsibly on matters related to their sexuality including sexual and reproductive 
health, free of coercion, discrimination and violence.”17 In short, reproductive rights are 
constructed by making visible the gender dimensions of human rights.18 It is through this 

14  Id. at 9–70.

15  U.N. Population Division, Programme of Action of the International Conference on Population and 
Development, ¶ 7.3, U.N. Doc. A/CONF.171/13 (Oct. 18, 1994). 

16  Erin Nelson, Law, Policy and Reproductive Autonomy 65 (2013). 

17  Fourth World Conference on Women, Report of the Fourth World Conference on Women, ¶ 96, U.N. Doc. 
A/CONF.177/20 (Oct. 17, 1995). 

18  This approach has been supported by the majority of human rights law scholars. See, e.g., Rebecca J. 
Cook, Human Rights and Reproductive Self-Determination, 44 Am. U. L. Rev. 975 (1995); Martin Scheinin, 
Sexual Rights as Human Rights—Protected under Existing Human Rights Treaties?, 67 Nord. J. Int’l. L. 



Columbia Journal of Gender and Law 6732.1

conscious process of naming and exposing what is often so taken for granted as to be 
invisible that women’s reproductive interests can be advanced through the rights that are 
already enshrined in international law, which range from affirmative entitlements to care 
to freedoms from coercion.19 Explicit references to violations of reproductive rights can 
be found in, inter alia, the decisions of the treaty-monitoring bodies for the International 
Covenant on Civil and Political Rights (UN Human Rights Committee),20 and the UN 
Convention on the Elimination of All Forms of Discrimination against Women (CEDAW 
Committee),21 as well as the Inter-American Court of Human Rights.22 Indeed, there is a 
notable trend in international law to explicitly articulate standards relating to reproductive 
rights as human rights, as evidenced by the 2016 General Comment on the Right to Sexual 
and Reproductive Health issued from the UN Committee on Economic, Social and Cultural 
Rights.23

II. WOMEN, BIRTH, AND PREGNANCY 

A. Abortion Cases

One fundamental element of a woman’s reproductive self-determination is her choice 
not to reproduce. In practice this requires that a woman can control her own sexuality, 
determine her own sex life, get information about/acquire contraception, and access abortion 
if she chooses to terminate a pregnancy. The ECtHR’s abortion jurisprudence has been 
analyzed in the literature quite extensively,24 but not in the context of other reproduction 

17 (1998); Eszter Kismödi et al., Advancing Sexual Health through Human Rights: The Role of the Law, 10 
Global Pub. Health 252 (2015).

19  Cook, supra note 18, at 979. According to Cook, reproductive interests are: reproductive security and 
sexuality, reproductive health, reproductive equality, and reproductive decision-making. 

20  K.L. v. Peru (1153/03), Views, CCPR/C/85/D/1153/2003.

21  A.S. v. Hungary (4/2004), Views, CEDAW/C/36/D/4/2004; Alyne da Silva Pimentel v. Brazil (17/2008), 
Views, CEDAW/C/49/D/17/2008.

22  Artavia Murillo et al. (“In vitro fertilization”) v. Costa Rica, Preliminary Objections, Merits, Reparations, 
and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 257 (Nov. 28, 2012).

23  U.N. Comm. on Econ., Soc., and Cultural Rights (CESCR), General Comment No. 22 on the Right to 
Sexual and Reproductive Health (Article 12), U.N. Doc. E/C.12/GC/22 (2016).

24  See, e.g., Johanna Westeson, Reproductive Health Information and Abortion Services: Standards 
Developed by the European Court of Human Rights, 122 Int’l. J. Gynecology & Obstetrics 173 (2013); 
Joanna Erdman, The Procedural Turn: Abortion at the European Court of Human Rights, in Abortion Law 
in Transnational Perspective: cases and controversies 121 (Rebecca J. Cook, Joanna Erdman & Bernard 



Columbia Journal of Gender and Law68 32.1

cases and women’s citizenship narratives. There are four principal judgments to consider.25

1. Tysiac v. Poland

In Tysiac v. Poland (2007),26 the Polish applicant was seeking an abortion as pregnancy 
and birth constituted a serious risk to her eyesight. Since the consulting doctors disagreed 
about the certainty of this health risk the applicant could not get an abortion, gave birth, 
and suffered from severely deteriorated eyesight.27 She submitted that Articles 3, 8, and 14 
of the Convention had been violated. Article 3 is the prohibition of torture and inhuman or 
degrading treatment,28 Article 8 protects private and family life,29 and Article 14 prohibits 
discrimination, including on the basis of gender.30 Regarding inhuman or degrading 
treatment, the Court found that the facts of the case did not disclose a breach of Article 
3.31 The Court also established that it was not necessary to examine the complaint under 

Dickens eds., 2014) [hereinafter Erdman, Procedural Turn]; Chiara Cosentino, Safe and Legal Abortion: An 
Emerging Human Right? The Long-lasting Dispute with State Sovereignty in ECHR Jurisprudence, 15 Hum. 
Rts. L. Rev. 569 (2015).

25  Open Door & Dublin Well Woman v. Ireland, Eur. Ct. H.R. (1992) is left out.

26  Tysiac v. Poland, 2007-I Eur. Ct. H.R. 219.

27  Id. at ¶¶ 14, 16. 

28  Article 3 of the Convention states: “No one shall be subjected to torture or to inhuman or degrading 
treatment or punishment.”

29  Article 8 of the Convention states: 

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.

30  Article 14 of the Convention states:

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.

31  Tysiac, 2007-I Eur. Ct. H.R. at ¶ 66. 



Columbia Journal of Gender and Law 6932.1

Article 14 (prohibition of discrimination).32 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.”33 The Court also noted that “[w]hile the 
State regulations on abortion relate to the traditional balancing of privacy and the public 
interest, they must—in case of a therapeutic abortion—also be assessed against the 
positive obligations of the State to secure the physical integrity of mothers-to-be.”34 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.35 
Although 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, it made no reference 
to reproductive rights nor did it acknowledge that having effective access to legal abortion 
is a matter of gender equality and women’s dignity, not merely a question relating to 
procedures regarding any clinical intervention. 

The separate opinion of Judge Bonello quite explicitly supports this approach. 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.”36 The dissenting opinion of Judge Borrego Borrego 
goes further and does not consider the impact on the legitimacy of norms created without 
meaningful legislative deliberation, due to the considerable influence of the Catholic 
Church; 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.37 
Borrego Borrego concluded that the violation was found “only on the sole basis of the 

32  Id. at ¶ 144. 

33  Id. at ¶ 106. 

34  Id. at ¶ 107. 

35  The Court noted at ¶ 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. 

36 Tysiac v. Poland, 2007-I Eur. Ct. H.R. 219, ¶ 1 (Bonello, J., separate opinion).

37  Id. at ¶¶ 3, 10 (Borrego Borrego, J., dissenting). 



Columbia Journal of Gender and Law70 32.1

applicant’s fears.”38 We will see below (in Part B) how both these dissenting views, 
which cast a woman’s right to choose as in the shadows of rights protection, together with 
the majority’s approach to framing abortion through the Convention’s right to privacy, 
contribute to the larger narrative about women’s roles and status. 

2. A, B & C v. Ireland

In the case of A, B & C v. Ireland (2010),39 three women were forced to travel to the 
United Kingdom to have abortions as the domestic laws prevented them from getting legal 
abortions in another heavily Catholic country: Ireland. 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 considered again 
only Article 8—right to respect for private life. The applicants accepted that the abortion 
restrictions were in accordance with Irish law and pursuing the aim of protecting fetal life, 
but claimed that the law’s restrictiveness did not reflect popular sentiment on abortion 
in Ireland anymore—thus, they argued for a substantive violation.40 In rejecting this 
claim, the Court provided the Irish Government a wide “margin of appreciation,” which 
refers to the amount of discretion the ECtHR gives national authorities in fulfilling their 
obligations. 41 In A, B & C v. Ireland this margin—which is analogous to the level of 
scrutiny with which courts in other countries assess the reasonableness of state laws and 
policies—could have been narrowed by the existence of relevant European consensus to 
which the Court referred.42 Instead, under the cloak of “moral views” the Court showed 

38  Id. at ¶ 14.

39  A, B & C v. Ireland, 2010-VI Eur. Ct. H.R. 185.

40  Erdman, Procedural Turn, supra note 24.

41  Jeffrey A. Brauch, The Margin of Appreciation and the Jurisprudence of the European Court of Human 
Rights: Threat to the Rule of Law, 11 Colum. J. Eur. L. 115 (2005). 

42  A, B & C, 2010-VI Eur. Ct. H.R. at ¶ 235 states: 

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 



Columbia Journal of Gender and Law 7132.1

extraordinary 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: 

[H]aving regard to the right to travel abroad lawfully for an abortion . . . 
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 . . . exceeds the margin of appreciation . . . .43 

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 is an accepted exception in Irish abortion 
law. The Court held, as in Tysiac (2007), that the state had failed 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).44 In sum, by framing abortion as an 
exclusively private issue subject to a wide margin of appreciation, the Court discounted 
the social and economic costs of travelling abroad and the ensuing burdens on a woman’s 
exercise of reproductive autonomy. Moreover, the Court’s limited procedural approach 
failed to articulate and challenge the gender stereotypes embedded in laws based on 
ideological grounds, which discriminate against women. 

3. R.R. v. Poland

In R.R. v. Poland (2011),45 the applicant gave birth after being refused a therapeutic 
abortion although several ultrasounds confirmed the likelihood of the fetus suffering from 
severe malformation. For five months, the doctors delayed the applicant from getting 
a genetic test, which confirmed a serious congenital disease, by forcing her to obtain 
continuous referrals to different hospitals.46 Noting there were no objective reasons for 

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.

43  Id. at ¶ 241. This conclusion was criticized by Judges Rozakis, Tulkens, Hirvelä, Malinverni and 
Poalelungi in their joint partial dissent. 

44  A, B & C, 2010-VI Eur. Ct. H.R. at ¶¶ 267–68. 

45  R.R. v. Poland, 2011-III Eur. Ct. H.R. 209.

46  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. See Turner Syndrome, Nat. 



Columbia Journal of Gender and Law72 32.1

the delays in genetic tests, the Court found that as a result of “procrastination of the health 
professionals” the applicant 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.”47 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.48 

The Court distinguished R.R. from Tysiac (2007), saying the question was not access 
to abortion as such, but “essentially timely access to a medical diagnostic service that 
would . . . make it possible to determine whether the conditions for a lawful abortion 
[were] obtained.”49 It confirmed with R.R. that if the domestic laws allow for abortion in 
cases of fetal malformation, “there must be an adequate legal and procedural framework 
to guarantee that relevant, full and reliable information on the foetus’ health is available to 
pregnant women.”50 

Even this narrow construction of lack of information and procedural access to abortion 
as a form of degrading treatment is questioned by Judge Bratza in his partial dissent, where 
he argues that the Court’s analogy with cases of enforced disappearances is erroneous. 
In such cases, authorities “systematically prevaricate or provide false information to 
applicants about the whereabouts and fate of their missing relatives,” but he insists 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” are not comparable to 
institutional deception.51 

4. P. & S. v. Poland

In P. & S. v. Poland (2012),52 the Court combined its procedural approach with the 
prohibition on degrading treatment. In that case, a minor sought an abortion after she was 

Libr. Med., https://ghr.nlm.nih.gov/condition/turner-syndrome [https://perma.cc/RV4S-BLSE].

47  R.R., 2011-III Eur. Ct. H.R. at ¶ 159. 

48  Id. at ¶¶ 160–61. 

49  Id. at ¶ 196. 

50  Id. at ¶ 200. 

51  R.R., 2011-III Eur. Ct. H.R. at ¶ 5 (Bratza, J., dissenting in part). 

52  P. & S. v. Poland, Eur. Ct. H.R. (2012).



Columbia Journal of Gender and Law 7332.1

raped. The applicant’s mother tried to get a referral for an abortion, but was met with 
suggestions to “meet the Catholic priest” and “get her daughter married,” and was 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, the underage applicant was 
separated from her parents; locked up in a juvenile shelter; harassed by media, anti-abortion 
activists, and a Catholic priest. She was finally forced to seek the abortion 500 kilometers 
away from her home. In this case, the Court found a violation of the prohibition of degrading 
treatment (Article 3) and the right to private life (Article 8). The Polish legislation allowed 
abortion “where there are strong grounds for believing that the pregnancy was the result of 
a criminal act, certified by a prosecutor.”53 

The Court again focused on the question whether procedural requirements were 
complied with (positive obligations), but also put emphasis on the underage applicant’s 
suffering. But once again, the Court was reticent in terms of recognizing abortion as a service 
only needed by women, and therefore these barriers as constituting an institutionalized 
form of gender-based violence.

B. Abortion Narratives

One of the major stereotypes about women is expressed in 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.54 In other words, 
“all women, regardless of their actual intention of having children” become defined in 
important ways “by the mere possibility of them becoming mothers.”55 Julia Hanigsberg 
gives examples of how normative motherhood impacts gender equality and the sexual 
division of labor as well as the treatment of women in other spheres of life: 

A woman’s position in the work force can be altered because of her 
presumed fertility and its ramifications and social signification . . . . 
Employers 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 . . . .56 

53  Id. at ¶ 100.

54  Julia E. Hanigsberg, Homologizing Pregnancy and Motherhood: A Consideration of Abortion, 94 Mich. 
L. Rev. 371, 374 n.12 (1995–1996) (referring to Martha Fineman’s work).

55  Id. at 374–75.

56  Id. at 374.



Columbia Journal of Gender and Law74 32.1

An excessive focus on motherhood can undermine women’s full citizenship because if the 
value of women is perceived to arise solely through motherhood, women acquire status only 
through pregnancy and childbirth.57 Thus, women’s (biological) capacities are replacing 
“women” as full human beings and equal members of society and consequently, while 
women who choose not to mother can come to be seen as representing anti-maternalism.58 
Because the Court fails to name and explore the inherent damage done to women by this 
“normative motherhood narrative,” abortion is never construed in terms of access to a 
service only needed by women and fundamental to controlling their bodies and lives. 

Rather, the Court’s reliance on privacy doctrine fails to take into account the need for 
enabling conditions in the public sphere and in the broader scope of women’s lives, which 
are necessary to enjoy reproductive rights in practice.59 As Patricia Londoño explains,
“[t]his 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.”60 Conceptualizing abortion or other 
women’s reproductive health issues through a private life doctrine creates two risks: it 
might create a space that might be private, but also 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 
were taking place out of the reach of the state’s protection.61 Second, a narrow reading 
of the right to respect for private life frames abortion as something that is not a concern 
of the state—something that women should be ashamed of—this, in turn, feeds into 
what Lisa M. Kelly has termed 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.62 The Court makes implicit 

57  Cook, supra note 18, at 984 (referring to Mahmoud F. Fathalla’s work). 

58  Hanigsberg, supra note 54, at 375.

59  Id. at 331.

60  Patricia Londoño, Redrafting Abortion Rights Under the Convention: A, B and C v. Ireland, in Diversity 
and European Human Rights: Rewriting Judgments of the ECHR 95, 101 (Eva Brems ed., 2013). 

61  For more on how maintaining the dichotomy 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, see Charlotte Bunch, Women’s Rights as Human Rights: Towards a Re-
envision of Human Rights, 12 Hum. Rts. Q. 486 (1990).

62  Lisa M. Kelly, Reckoning with Narratives of Innocent Suffering in Transnational Abortion Litigation, 



Columbia Journal of Gender and Law 7532.1

references to suffering narratives first in R.R. v. Poland (2011), where it established that 
the applicant’s treatment by the doctors amounted to degrading treatment (Article 3), and 
second in P. & S. v. Poland (2012) where a minor seeking an abortion after being raped was 
harassed, mistreated by the media and doctors, and finally forced to have an abortion—
that she had a legal right to—500 kilometers away from home. However, as Kelly notes, 
framing cases through the suffering narrative seeks to avoid “the contested terrains of 
wanted sex, non-procreative desire, and family discord.”63 This, in turn, is directly linked 
to the normative motherhood stereotype, which prescribes roles for women in both the 
public and private spheres.

If read without analyzing abortion law as an intersection of gender, power distribution 
and health, the procedural guarantees afforded by the Court have indeed been lauded. 
For example, R.R. has been described as a case that does not primarily revolve around 
abortion, but is about the right to information in the reproductive healthcare context64 and 
has been praised for addressing—for the first time—conscientious objection in the abortion 
context and emphasizing that “the state must put procedures in place so that services are 
available and accessible regardless of whether individual doctors refuse to perform them.”65 
Similarly, P. & S. v. Poland has been described as a case about the access to reproductive 
health services for adolescents: Johanna Westeson has suggested that the Court established 
the minimum standard for conscientious objection according to which refusals should be 
at the least in writing and referrals must be secured, and that proper regard must be had 
for a minor’s personal autonomy.66 Following the argument of Cook and Cusack, however, 
naming and dismantling the power of the “normative motherhood narrative” would offer a 
more transformative and qualitative change by enabling abortion to be framed in explicit 
human rights terms. The Council of Europe Parliamentary Assembly has already used such 
language:

in Abortion Law in Transnational Perspective: Cases and Controversies 303, 304 (Rebecca J. Cook, 
Joanna Erdman & Bernard Dickens eds., 2014).

63  Id. at 305. 

64  Westeson, supra note 24, at 174.

65  Id. 

66  Id. Lisa M. Kelly, however, offers a slightly different reading of the case and indicates how it gives 
the parents of a pregnant minor—mother and father—a right to be “heard and [have] their views fully, and 
objectively considered,” thus leaving open the possibility that where parent and child conflict, the minor’s 
abortion decision may become subject to some form of balancing inquiry. See Kelly, supra note 62, at 322.



Columbia Journal of Gender and Law76 32.1

[T]he right of all human beings, in particular women, to respect for 
their physical integrity and to freedom to control their own bodies. In 
this context, the ultimate decision on whether or not to have an abortion 
should be a matter for the woman concerned, who should have the means 
of exercising this right (emphasis added) in an effective way.67 

And similarly, by the UN Special Rapporteur on Violence against Women, who has 
emphasized that: “Acts deliberately restraining women . . . from having an abortion 
constitute violence against women by subjecting women to excessive pregnancies and 
childbearing against their will, resulting in increased and preventable risks of maternal 
mortality and morbidity.”68 

To date, the ECtHR’s abortion jurisprudence has not treated abortion as a women’s 
rights issue and a construction site for substantive equality and decisional autonomy where 
gender, health, and power intersect, but rather as a “moral” issue. In the cases involving 
threats to life and health, the Court’s majority, and often dissent, show an extraordinary 
deference to medical professionals without engaging in an inquiry as to the systemic and 
institutional biases and personal incentives that may undermine “authoritative” opinions 
on such a contested issue. The Court does indeed set a legal threshold for states’ positive 
obligations in terms of making the service accessible and condemns institutional delays. 
But by not identifying and articulating how the procedural obstacles are actually used 
as mechanisms to enforce and institutionalize ideological barriers to a life-saving service 
only needed by women, the Court fails to challenge the gender stereotypes underlying the 
narrative of normative motherhood. 

C. Home Birth Cases

A woman’s control over the circumstances of delivering a wanted child is also a 
fundamental aspect of reproductive rights. Human rights can be deployed to open medical 
and other institutions that are cloaked in ‘technical authority’ to scrutiny regarding 
their reasoning, and thereby challenge hierarchies of knowledge and power that have 

67  Access to Safe and Legal Abortion in Europe, Council of Europe, Parliamentary Assembly, http://
assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=17638&lang=en [https://perma.cc/
F2QC-H365] (emphasis added). 

68  United Nations, Econ. & Soc. Council, Integration of the Human Rights of Women and the Gender 
Perspective. Violence against Women. Report of the Special Rapporteur on Violence against Women, its 
Causes and Consequences, Ms. Radhika Coomaraswamy, in Accordance with Commission on Human Rights 
Res. 1997/44, E/CN.4/1999/68/Add.4 at (d) ¶ 57 (1999).



Columbia Journal of Gender and Law 7732.1

historically been used against women.69 Over-medicalization can reduce women to objects 
of interventions without agency, just as neglect of women’s differential needs in pregnancy 
and delivery can harm women.70 To date, the ECtHR has discussed women’s autonomy 
over their birth experience in only these two cases. 

1. Ternovszky v. Hungary

In Ternovszky v. Hungary (2010),71 the applicant wished to give birth at home. A 
government decree, 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, the applicant submitted that since this 
decree prevented her from getting professional assistance in case she did opt for home 
birth, there was a discriminatory interference with her right to respect for private life. The 
Court affirmed that private life under Article 8 “incorporates the right to respect for both 
the decisions to become and not to become a parent,” and “the notion of freedom implies 
some measure of choice as to its exercise.”72 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 . . . .73

When analyzing the interference with the applicant’s private life, the Court noted that “the 
right to choice in matters of child delivery includes the legal certainty that the choice is 
lawful and not subject to sanctions, directly or indirectly.”74 The Court concluded that the 
“lack of legal certainty and the threat to health professionals has limited the choices of 

69  Alicia E. Yamin, Will We Take Suffering Seriously? Reflections on What Applying a Human Rights 
Framework to Health Means and Why We Should Care, 10 Health & Hum. Rts. 45 (2008). See also Alicia E. 
Yamin, Power, Suffering, and the Struggle for Dignity Human Rights Frameworks for Health and 
Why They Matter (2015). 

70  Joanna Erdman, Bioethics, Human Rights, and Childbirth, 17 Health & Hum. Rts. 43, 47 (2015) 
[hereinafter Erdman, Bioethics]. 

71  Ternovszky v. Hungary, Eur. Ct. H.R. (2010).  

72  Id. at ¶ 22. 

73  Id.

74  Id. at ¶ 24. 



Columbia Journal of Gender and Law78 32.1

the applicant considering home delivery,” and therefore violates the right to respect for 
private life (Article 8).75 Therefore, in the first of the two home birth cases of the ECtHR 
the Court established that as with abortion, home birth touches upon a woman’s right to 
private life and although privacy rights are not absolute, the Hungarian regulation violated 
the Convention by creating undue uncertainty for women considering home birth.
 

2. Dubska & Krejzova v. the Czech Republic

In a later case, Dubska & Krejzova v. the Czech Republic (2014),76 the factual 
circumstances were similar, but the outcome opposite to Ternovszky (2010). In Dubska & 
Krejzova the applicants’ wish to give birth at home was met with the state’s denial to offer 
the midwife service in a private home. The applicants submitted that the right to respect for 
their private lives (Article 8) had been violated. The legitimate aim of that denial according 
to the Czech government was the health and life of the mother and the child during and 
after the birth.77 The applicants contested this, saying that the aim was rather to “actively 
prevent mothers-to-be from benefiting from healthcare provided by midwives, in order 
to protect the financial and power monopoly of the . . . providers of institutional health 
care.”78 In this case, the Court sided with the government and granted the Czech Republic 
a wide margin of appreciation. Although the Court conceded that “the majority of the 
research studies presented to it do not suggest that there is an increased risk for home births 
compared to births in hospital,”79 it still concluded that if something goes wrong, then a 
hospital setting is safer for the newborn (and the mother).80 The Court’s determination that 
there had been no violation of the right to private life (Article 8) in this case indicates the 
concern focused on the manner in which the regulations were drafted and implemented 
rather than questioning effects on women’s decisional autonomy. 

D. Birth Narratives

Gender stereotypes play an important role in the over-medicalization of women’s 

75  Id. at ¶ 26.

76  Dubska v. Czech Republic, Eur. Ct. H.R. (2014). The case has been referred to the Grand Chamber. 

77  Id. at ¶ 84. 

78  Id. at ¶ 85. 

79  Id. at ¶ 96. 

80  Id. at ¶ 97. 



Columbia Journal of Gender and Law 7932.1

bodies during pregnancy and childbirth.81 In no area of medicine are the recipients of 
interventions so often not the actual beneficiaries of that care, much less active agents 
in the design of the kind of care they wish to receive. The instrumentalization of women 
as childbearers can lead to disciplining of women’s bodies, for example, as women are 
required to birth in positions convenient for doctors and their bodies are controlled with 
“medication, technology, and institutional rules that are for woman’s ‘own good’” and 
above all, “the baby’s safety.”82 Over-medicalization is so common that it has been deemed 
the unquestionably correct way to give birth in many countries, which is reflected in, inter 
alia, highly elevated Caesarean rates and the use of medical interventions not based in 
evidence.83 

Both qualitative and quantitative studies demonstrate that women’s experience of birth, 
and the care provided during the birth, have both immediate and long-term effects on their 
well-being and health.84 Moreover, there are widespread patterns of women’s mistreatment 
during labor and delivery, a phenomenon now referred to as “obstetric violence” throughout 
Latin America. Joanna Erdman points out examples of this violence: physical and verbal 
abuse, neglect and abandonment, humiliation and punishment, and coerced and forced 
care.85 The World Health Organization has characterized these birth-related violations 
as human rights violations.86 Thus, it is not only important to ensure that facility-based 
childbirth is available, but the quality of care must be beyond technical and clinical 
competence and be respectful and humane.87 In neither home birth case does the Court 
assess the choice of delivery as related to a paradigm of reproductive health and rights.

81  Karin A. Martin, Giving Birth Like a Girl, 17 Gender & Soc’y 54, 55 (2003). Legal scholarship has not 
given much attention to childbirth, but this lack of legal research is compensated by expansive sociological work. 
For example, see Claudia Malacrida & Tiffany Boulton, The Best Laid Plans? Women’s Choices, Expectations 
and Experiences in Childbirth, 18 Health 41 (2014); see also Jessica C.A. Shaw, The Medicalization of Birth 
and Midwifery as Resistance, 34 Health Care Women Int’l. 522 (2013).

82  Martin, supra note 81, at 55.

83  Richard Johanson, Mary Newburn & Alison Macfarlane, Has the Medicalisation of Childbirth Gone Too 
Far? 324 Brit. Med. J. 13 (2002).

84  Charlotte Overgaard et al., The Impact of Birthplace on Women’s Birth Experiences and Perceptions 
of Care, 74 Soc. Sci. & Med. 973 (2012); Meghan A. Bohren et al., The Mistreatment of Women During 
Childbirth in Health Facilities Globally: A Mixed-Methods Systematic Review, PLoS Med. (2015).

85  Erdman, Bioethics, supra note 70, at 43.

86  Id. 

87  Id. at 44–45.



Columbia Journal of Gender and Law80 32.1

But in Dubska & Krejzova v. the Czech Republic, although the Court does refer to WHO 
materials and CEDAW Committee recommendations,88 it implicitly accepts assumptions 
about the benefits of medicalized childbirth, in the manner it portrays the hospital setting 
as a necessary safety net for giving birth. The Court referred to the CEDAW Committee’s 
Concluding Observations on the Czech Republic from 2010 where the CEDAW Committee 
observes that there are: 

[R]eports of interference with women’s reproductive health choices in 
hospitals, including the routine application of medical interventions . . 
. a rapid increase in the caesarean section rate, separation of newborns 
from their mothers for up to several hours without health-related reasons, 
refusal to release the mother and the child from hospital before 72 hours 
after childbirth, and patronizing attitudes of doctors which impede the 
exercise by mothers of their freedom of choice. 89 

Accordingly, the CEDAW Committee recommended the Czech Republic “consider taking 
steps to make midwife-assisted childbirth outside hospitals a safe and affordable option 
for women.”90 In Dubska, the Court also refers to WHO’s report on care in birth which 
concludes that “[i]t is safe to say that a woman should give birth in a place she feels is safe, 
and at the most peripheral level at which appropriate care is feasible and safe.”91 Judge 
Yudkivska argues in his concurring opinion in Dubska & Krejzova92 that the circumstances 
of a delivery cannot have a comparable level of importance as other things protected with 
Article 8, calling it something that is a matter of “level of comfort” or preference, rather 
than an issue of control over a fundamental milestone in life. 

Both the majority and concurrence fail to capture how, in Nancy Ehrenreich’s words: 
“together, law and medicine operate to enforce coercive gender norms on women.”93 

88 Dubska v. Czech Republic, Eur. Ct. H.R ¶¶ 56–58 (2014). 

89  CEDAW Committee, Concluding Observations on the Czech Republic, CEDAW/C/CZE/CO/5 ¶ 36 (Oct. 
22, 2010).

90  Id. ¶ 37. 

91  World Health Organization, Care in Normal Birth: A Practical Guide, WHO/FRH/MSM/96.2.

92  Dubska v. Czech Republic, Eur. Ct. H.R. (2014) (Yudkivska, J., concurring).

93  Nancy Ehrenreich, Introduction, in The Reproductive Rights Reader: Law, Medicine, and the 
Construction of Motherhood 1, 9 (Nancy Ehrenreich ed., 2008). 



Columbia Journal of Gender and Law 8132.1

Nevertheless, in his dissent Judge Lemmens points the way toward recognition of 
reproductive rights: 

The impugned legislation has a “serious impact on the freedom of choice 
of the applicants, who were required, if they wished to give birth at home, 
to do so without the assistance of a midwife and, therefore, with the 
attendant risks that this posed to themselves and to the newborns, or to 
give birth at a hospital.” While only relatively few mothers might prefer to 
give birth at home, I have no reason to doubt that for these women this is 
a very important matter of personal choice. 94

The dissent thus properly situates the choice of delivery as a gendered issue that 
reflects women’s most elemental agency over their bodies as well as a pivotal moment in 
their lives. 

III. WOMEN AND ASSISTED REPRODUCTION

Assisted reproduction touches upon intersecting gender stereotypes that relate to the 
roles that are assumed to be “natural” for women and families, which sometimes play 
out in inconsistent ways. For example, although women’s identities are closely tied to 
child rearing, they are also identified with their physical wombs, which calls into question 
surrogacy arrangements. Stereotyped roles for women are, in turn, closely related to 
traditional conceptions of the patriarchal family structure, based on a heterosexual father 
and mother. The ECtHR’s assisted reproduction jurisprudence reveals missed opportunities 
to expose the assumptions and stereotypes underlying “non-normative” forms of family 
creation, and characterize these issues in terms of rights as well as ethical questions. 

A. Surrogacy Cases

1. Mennesson v. France 

Mennesson v. France (2014)95 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 United States (third and fourth applicants). The embryo was created 
with the husband’s sperm and a donor’s egg (the wife was infertile) and implanted into 

94  Dubska v. Czech Republic, App. Nos. 28859/11 and 28473/12, ¶ 4 (2014) (Lemmens, J., dissenting). 

95  Mennesson v. France, App. No. 65192/11, together with Labassee v. France, App. No. 65941/11 (2014).



Columbia Journal of Gender and Law82 32.1

a surrogate’s uterus in California. A Californian court ruled that the applicants were the 
parents, but the French authorities refused to register these birth certificates. The ECtHR first 
observed that “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 that “[t]his lack of consensus reflects the fact 
that recourse to a surrogacy arrangement raises sensitive ethical questions.”96 

 
Characterizing 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.97 
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.”98 It held there was no violation 
of the first and second applicants’ 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.”99 

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 contradiction of that nature undermines the children’s identity within French 
society.”100 According to the Court, France had overstepped the permissible margin of 
appreciation by not recognizing the importance of biological parentage as a component of 
each individual’s identity and the child’s legal relationship with their biological father.101 
In holding that France had violated the children’s right to respect for their private life 
(Article 8), it is important to note that the Court did not actually analyze surrogacy per se, 
but focused on the post-surrogacy arrangement situation. Indeed, they communicate that 

96  See Mennesson v. France, Eur. Ct. H.R. ¶¶ 78–79 (2014). 

97  Id. at ¶ 80. 

98  Id. at ¶ 86. 

99  Id. at ¶¶ 84–85. 

100  Id. at ¶ 96. 

101  Id. at ¶ 100. 



Columbia Journal of Gender and Law 8332.1

surrogacy is another ethical issue to be left within a state’s margin of appreciation, rather 
than a rights issue.

2. Paradiso & Campanelli v. Italy

In Paradiso and Campanelli v. Italy (2015),102 the Court also showed concern for the 
child born of a surrogacy arrangement. In that case, the Italian Government had placed 
the child, who had no genetic link to the parents, in social-service care. The ECtHR noted 
that the public-policy considerations underlying Italian authorities’ decisions, i.e., that the 
applicants had attempted to circumvent the surrogacy prohibition in Italy—could not take 
precedence over the best interests of the child, in spite of the absence of any biological 
relationship and the short period during which the applicants had cared for him. Reiterating 
that the removal of a child from the family setting was an extreme measure that could be 
justified only in the event of immediate danger to that child, the Court considered that the 
conditions justifying such a removal had not been met.103 However, as in the Mennesson 
case, the Court did not analyze the underlying assumptions about the meaning of family 
implicit in Italy’s proscription on surrogacy, nor in turn the gendered impacts of those 
assumptions. 

 
B. Access to Assisted Reproductive Technologies Cases

The four cases in which the Court has addressed assisted reproductive technologies 
present different fact patterns: one concerns the usage of an embryo without a person’s 
consent, the second is about access to artificial insemination in prison, the third case deals 
with the ban on gamete donation, and the fourth relates to access to pre-implantation 
genetic diagnosis. Nevertheless, the way the Court frames these judgments contributes to 
the broader narrative of women and their reproductive capacities and identities. 

1. Evans v. the United Kingdom

In Evans v. the United Kingdom (2007),104 the applicant and her partner created six 
embryos before her ovaries were removed due to cancer. They both consented to the 
procedure and signed a document stating that these embryos would be implanted into the 
applicant’s uterus. However, after their relationship ended the partner requested the clinic 

102  Paradiso v. Italy, Eur. Ct. H.R. (2015). The case has been referred to the Grand Chamber. 

103  Id. at ¶ 86. 

104  Evans v. United Kingdom, 2007-I Eur. Ct. H.R. 353.



Columbia Journal of Gender and Law84 32.1

destroy the embryos. The applicant claimed that if she could not use these embryos she 
would never be able to have a child to whom she is genetically related, which amounted 
to a violation of her right to privacy (Article 8).105 The Court noted that in the case “each 
person’s interest is entirely irreconcilable with the other’s” since if the applicant is permitted 
to use the embryos, her partner will be forced to become a father, whereas if the partner’s 
refusal is upheld, the applicant will be denied the opportunity to become a genetic parent.106 
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,”107 “it did not consider that the applicant’s right to respect for the decision to become a 
parent in the genetic sense should be accorded greater weight than J.’s [the partner’s] right 
to . . . not to have a genetically related child with her.”108 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.”109 

2. Dickson v. the United Kingdom

In Dickson v. the United Kingdom (2007),110 the applicant was a male prisoner who 
wanted to use artificial insemination facilities to have a child with his wife. Their request 
was denied and they claimed that this denial violated the right to privacy and family life 
(Article 8). The UK argued that losing the opportunity to have children was an inevitable and 
necessary consequence of imprisonment. In this case, the ECtHR found that the applicant’s 
interests in having a family were not given the weight due a fundamental choice about 
his life plans.111 Thus, the Court held that that the UK had not struck a justified balanced 
between private and public interests and a blanket ban exceeded the afforded margin of 
appreciation, constituting a violation of Article 8. 

105  Id. at ¶ 72. 

106  Id. at ¶ 73.

107  Id. at ¶ 90.

108  Id.

109  Id. at ¶ 92.

110  Dickson v. United Kingdom, 2007-V Eur. Ct. H.R. 99.

111  Id. at ¶ 85. 



Columbia Journal of Gender and Law 8532.1

3. S.H. & Others v. Austria

The case of S.H. & Others v. Austria (2011)112 concerned two couples with fertility 
problems wanting to take advantage of assisted reproductive technologies—one couple 
needed ova donation and the other couple sperm donation. Both procedures were banned 
under Austrian law. The Court found that the right of a couple to conceive a child and to 
make use of medically assisted procreation for that purpose was protected by the right to 
private life (Article 8), as such a choice is “an expression of private and family life.”113 In 
discussing the breadth of the margin of appreciation, it stated that “where . . . there is no 
[European] consensus” and the case “raises sensitive moral or ethical issues, the margin 
will be wider.”114 In this case, the Court did indicate an emerging consensus by referring 
that “there is now a clear trend in the legislation of the Contracting States towards allowing 
gamete donation for the purpose of in vitro fertilization.”115 It continued, however, that this 
emerging trend is not “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:”

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 . . . .116 

In finding that within that wide margin of appreciation, a fair balance had been struck by 
the Austrian Government, the Court referred to a list of factors which justified the ban:

[T]he donation of gametes involving the intervention of third persons in 
a highly technical medical process was a controversial issue in Austrian 

112  S.H. v. Austria, 2011-V Eur. Ct. H.R. 295.

113  Id. at ¶ 82. 

114  Id. at ¶ 94. 

115  Id. at ¶ 96. 

116  Id. at ¶¶ 96–97. 



Columbia Journal of Gender and Law86 32.1

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.117

And the Court added that “there is no prohibition under Austrian law on going abroad 
to seek treatment of infertility.”118 As a result, the Court found no violation of the European 
Convention. 

4. Costa & Pavan v. Italy

In Costa & Pavan v. Italy (2012),119 the applicants were carriers of cystic fibrosis—a 
hereditary disease that manifests itself in breathing difficulties and generally culminates in 
severe respiratory failure. The applicants wanted to take advantage of assisted reproductive 
technologies (“ART”) and pre-implantation genetic diagnosis (“PGD”), but Italian law had 
a blanket ban on PGD at the time. PGD allows the identification of genetic abnormalities 
in embryos conceived by IVF. The Court considered that the applicants’ desire to conceive 
a child unaffected by cystic fibrosis and to use ART and PGD was protected under the right 
to privacy and family life.120 The Court stressed that “the concept of ‘child’ cannot be put 
in the same category as that of ‘embryo’”121 and found that the Italian legislation lacked 
consistency in that area—allowing therapeutic abortion in cases of fetal malformation, 
but banning PGD.122 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 fetus 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.”123 

117  Id. at ¶¶ 105, 113. 

118  S.H., 2011-V Eur. Ct. H.R. at ¶ 114. 

119  Costa v. Italy, Eur. Ct. H.R. (2012).

120  Id. at ¶ 57. 

121  Id. at ¶ 62. 

122  Id. at ¶¶ 58, 62. 

123  Id. at ¶ 68. 



Columbia Journal of Gender and Law 8732.1

C. Fertility and Parenthood Narratives

On the one hand, the ECtHR’s jurisprudence appears to reflect compassion towards the 
interests and desires of people to use different forms of reproduction to create families. On 
the other hand, by relegating the issues surrounding ARTs and surrogacy to being solely 
ethical issues (with the exception of Costa and Pavan), it missed the opportunity to unpack 
the constructions of gender and family roles embedded in the national legislation. Surrogacy 
and ARTs are not gender-neutral questions falling under the scope of medicine, private life 
or morality alone, as the jurisprudence of the Court would suggest. For example, Ilana 
Löwy has explained that the even in the process of in vitro fertilization, egg retrieval is not 
only medically much more complicated, but also culturally and socially more loaded than 
sperm retrieval.124 Maura Ryan has likewise shown how a conventional bioethical analysis 
would ignore the interplays of gender, status and health, revealing why discussions around 
ARTs should go beyond choice and access.125 Ryan has argued that the social meaning of 
ART can be deployed in both directions—it can be celebrated as a remedy for the suffering 
experienced by infertile women or denounced as a tool for the further manipulation of 
women’s bodies. For precisely this reason, the Court’s jurisprudence regarding these issues 
could be meaningfully used to draw attention to and create public learning with respect to 
the expectations and values concerning motherhood and childbearing.126 

Identifying and dismantling family and gender role stereotypes would have concrete 
implications on, for example, whether ARTs and surrogacy can be used to empower 
single women and gay couples through the right to privacy and “family life.” When these 
stereotypes are left unquestioned, ARTs become in Katha Pollitt’s words just “high-tech 
ways” to replicate the traditional family structure, just as “the woman undergoing IVF is 
fulfilling her traditional motherly role.”127 

Interestingly, Linda Hart draws a similar conclusion about the adoption cases of the 
ECtHR.128 Hart suggests that in addition to biological, legal, and social relations in the order 

124  Karène Parizer-Krief, Gender Equality in Legislation on Medically Asssited Procreation in France, 29 
Int’l. J.L., Pol’y & Family 205, 208 (2015) (referring to Ilana Löwy’s work).

125  Maura A. Ryan, The Introduction of Assisted Reproductive Technologies in the “Developing World”: A 
Test Case for Evolving Methodologies in Feminist Bioethics, 34 Signs 805 (2009). 

126  Id. at 808–09.

127  Katha Pollitt, Pro: Reclaiming Abortion Rights 33, 166 (2014). 

128  Linda Hart, Individual Adoption by Non-Heterosexuals and the Order of Family Life in the European 



Columbia Journal of Gender and Law88 32.1

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.129 Her analysis of the Court’s adoption jurisprudence finds 
that 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.130

IV. WOMEN, DIGNITY, AND VIOLENCE

A. Forced Sterilization Cases

There are three ECtHR cases that concern forced sterilization, all of which relate 
to Romani women in Slovakia. In V.C. v. Slovakia (2011),131 N.B. v. Slovakia (2012),132 
and I.G., M.K. & R.H. v. Slovakia (2012),133 the applicants were all Romani women who 
were sterilized without their consent and without medical emergency when they went 
to the hospital to give birth. The applicants argued for violations of respect for private 
life, degrading treatment and discrimination based on their ethnicity, but the Court found 
violations of prohibition of degrading treatment (Article 3), and the right to private life 
(Article 8) only and “did not find it necessary to separately determine whether the facts 
of the case give rise to a breach of Article 14” relating to discrimination. The Court did 
not hesitate to establish that sterilizing without a woman’s consent is degrading treatment, 
but did not consider the violation targeted especially against Romani women, and in a 
reproductive health setting. In not doing so, the Court missed opportunities to articulate 
the sterilizations as intersectional discrimination based on gender and ethnicity—as only 
women face the particular impacts of the stigma associated with being Roma in Slovak 
society—as well as how the health system was acting to reinforce such patterns of 
marginalization in the overall society. 

Court of Human Rights, 36 J.L. & Soc’y 536 (2009).

129  Id. at 554.

130  Id. at 555.

131  V.C. v. Slovakia, 2011-V Eur. Ct. H.R. 381.

132  N.B. v. Slovakia, Eur. Ct. H.R. (2012).

133  I.G. v. Slovakia, Eur. Ct. H.R. (2012).



Columbia Journal of Gender and Law 8932.1

B. Forced Gynecological Examination (“FGE”) Cases

Another important piece of understanding the narratives that the Court’s jurisprudence 
accepts and creates with respect to women is provided by cases that deal with society’s 
expectations for women’s sexuality. The ECtHR has thus far seen three cases—all from 
Turkey—where women are subjected to forced gynecological examinations, i.e. virginity 
testing. 

1. Y.F. v. Turkey

In Y.F. v. Turkey (2003),134 the applicant’s wife was taken into custody with a suspicion 
of aiding and abetting an illegal terrorist organization, the PKK (Workers’ Party of 
Kurdistan), and brought to a gynecologist for an examination without her consent. The 
applicant’s wife submitted that her right to privacy (Article 8) had been breached. The 
Court found that, “in the circumstances, the applicant’s wife could not have been expected 
to resist submitting to such an examination in view of her vulnerability at the hands of 
the authorities that exercised complete control over her . . . .”135 The Court evaluated 
whether the gynecological examination had been prescribed by law, and whether it was 
necessary in a democratic society. The Turkish Government argued that the gynecological 
examination of female detainees was necessary to avoid false accusations of sexual 
violence being directed against the security forces.136 Although the Court found that the 
Government failed to demonstrate the existence of a medical necessity, in accordance with 
the national law, in the instant case, the Court “accept[ed] 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.”137 Thus, the 
Court framed the forced gynecological examination as a violation of the right to privacy, 
entirely ignoring the gendered aspect of such an examination or the stereotypes of women 
as manipulative liars, as “false accusers” of men. As Cusack and Cook note, the context 
for such stereotypes is important, and in this case they reflected and exacerbated political 
biases against the PKK.138

134  Y.F. v. Turkey, App. No. 24209/94 (2003).

135  Id. at ¶ 34. 

136  Id. at ¶ 38. 

137  Id. at ¶ 43. 

138  Cook and Cusack discuss the importance of context. See Cook & Cusack, supra note 3, at 31–36.



Columbia Journal of Gender and Law90 32.1

2. Juhnke v. Turkey

In Juhnke v. Turkey (2008),139 the applicant was a woman who was also arrested under 
the suspicion of having links to the PKK, and taken to a gynecologist for an examination 
like in the Y.F. case. She did not consent freely to the examination, but was “persuaded” 
into it. Again the justification the Turkish Government communicates in the decision 
is that gynecological examination was necessary to prevent accusations of rape.140 The 
applicant submitted that her treatment was degrading (Article 3) and her right to private life 
(Article 8) had been violated. The Court found that there was no breach of Article 3 as the 
necessary severity threshold was not met. Minimizing both the process entailed physically 
and psychologically in a gynecological examination, and abuse of power exacerbated when 
a political prisoner is involved, the Court stated that the “mere fact of being taken to a 
hospital for a gynecological examination does not attain the required minimum level of 
severity” for degrading treatment.141 The Court did, however, find that as the gynecological 
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).142

3. Yazgül Yilmaz v. Turkey

In Yazgül Yilmaz v. Turkey (2011),143 the applicant was arrested and taken to a doctor 
without her consent for a gynecological examination in order to check if her hymen was 
still intact. Different from the other two FGE cases described above, the Court found 
that the severity threshold of degrading treatment had indeed been met and thus that 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 FGE as an Article 3 violation.144 In other words, imposing 
virginity examinations on girls is construed as inherently more degrading than imposing 

139  Juhnke v. Turkey, Eur. Ct. H.R. (2008).

140  Id. at ¶ 30.

141  Id. at ¶ 70. 

142  Id. at ¶ 82. 

143  Yazgül Yilmaz v. Turkey, Eur. Ct. H.R. (2011).

144  Id. at ¶¶ 47–48, 54. 



Columbia Journal of Gender and Law 9132.1

the same procedure on women who are not claiming to be virgins.

C. Domestic Violence Case

1. Opuz v. Turkey

The first time the Court held that domestic violence constitutes a form of gender 
discrimination was in Opuz v. Turkey (2009).145 The case concerned an applicant who 
was severely battered by her violent husband. The Court 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 
women suffer from it disproportionally more than men. In this case the domestic violence 
involved battering, pushing, and detectable physical injuries—all elements recognized by 
criminal law. And in this straightforward case, the Court felt comfortable citing provisions 
from the CEDAW, relevant human rights case law, and reports about domestic violence.146 

The Court notes at the outset that when it considers the object and purpose 
of the Convention provisions, it also takes into account the international-
law background to the legal question before it. Being made up of a set 
of rules and principles that are accepted by the vast majority of States, 
the common international or domestic law standards of European States 
reflect a reality that the Court cannot disregard when it is called upon to 
clarify the scope of a Convention provision that more conventional means 
of interpretation have not enabled it to establish with a sufficient degree 
of certainty . . . . In this connection, when considering the definition and 
scope of discrimination against women, in addition to the more general 
meaning of discrimination as determined in its case law . . . the Court 
has to have regard to the provisions of more specialised legal instruments 
and the decisions of international legal bodies on the question of violence 
against women.147

Thus, the Court characterized the case as violating Article 2 (right to life), Article 

145  Opuz v. Turkey, 2009-III Eur. Ct. H.R. 107.

146  Id. at ¶¶ 2–90, 187–90.

147  Id. at ¶¶ 184–85. 



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3 (prohibition of degrading treatment and torture) and Article 14 (prohibition of 
discrimination).148 

At the same time, the Court’s own contribution with respect to the connections between 
violence against women and gender discrimination remained relatively modest:

[T]he Court considers that the applicant has been able to show, supported 
by unchallenged statistical information, the existence of a prima facie 
indication that the domestic violence affected mainly women and that the 
general and discriminatory judicial passivity in Turkey created a climate 
that was conducive to domestic violence.149 

Opuz was called a landmark case and a significant advance in the Court’s approach, 
and it was hoped that it would signal a path for the Court in related cases in the future.150 
However, despite the recognition of the gender dimension of domestic violence, this 2009 
case has not had a spill-over effect on ECtHR’s case law concerning women’s rights since 
then. Indeed, the great majority of cases discussed in this Article are from after 2009, but 
in none of them did the Court explicitly emphasize the linkages between discrimination in 
Article 14 and women’s rights.

D. Dignity Narratives

One way of reinforcing harmful gender narratives is by failing to name stereotypes 
that underlie specific laws and practices and ignoring how these in turn have differential 
impacts on men and women.151 We grouped together ECtHR’s jurisprudence concerning 
forced sterilization and forced gynecological examination, since these both serve as tools 
of repression/punishment used exclusively against women, and in the above-cited cases—
against women from marginalized groups (Kurdish in Turkish FGE cases and Roma in 

148  Id. at ¶ 202.

149  Id. at ¶ 198.

150  Carmelo Danisi, How Far Can the European Court of Human Rights Go in the Fight Against 
Discrimination? Defining New Standards in its Non-Discrimination Jurisprudence, 9 Int’l. J. Const. L. 793, 
800 (2011). Similar hope has been also expressed by Patricia Londoño in Developing Human Rights Principles 
in Cases of Gender-based Violence: Opuz v Turkey in the European Court of Human Rights, 9 Hum. Rts. L. 
Rev. 657, 667 (2009). Londoño ends the article with: “It is hoped that this finding will lead to greater efforts on 
the part of States to tackle violence against women with renewed vigour.” Id.

151  Cook & Cusack, supra note 3.



Columbia Journal of Gender and Law 9332.1

Slovak sterilization cases). The Opuz case serves as an example of both the possibilities 
and the limitations of how the Court has indeed engaged with gender in its analysis. 

The Court found that Article 3 (the prohibition of torture and degrading treatment) 
had been violated in all of the cited forced sterilizations cases and also acknowledged 
Roma community as a marginalized group, but by not explicitly recognizing that forced 
sterilizations were targeted intentionally against Roma women because they were Roma, it 
failed to engage with how gender, torture/inhuman and degrading treatment, and ethnicity 
intersect. In these, as in other cases regarding women’s reproductive autonomy, the Court 
also ignores the ways in which the health system serves as a site for constructing citizenship, 
reinforcing or potentially mitigating patterns of exclusion in the larger society.152 Thus, 
violence in the health system is not merely a private matter. 

Similarly, the Court has not considered the sociological, cultural, and historical 
dimensions of gynecological testing in the FGE cases, and how these examinations 
are powerful tools used to reinforce stereotypes about women in a situation of political 
struggle as manipulative “false accusers” and humiliate them.153 By comparison, it is quite 
unthinkable that a male detainee, even a political prisoner, would be required to have a 
doctor check his genitals. And while that would also violate dignity, FGE symbolizes power 
distribution between the woman (detainee) and the authority—the woman is intentionally 
made to feel inferior and with no control. 

Explicitly acknowledging the ways in which laws and practices deprive women of 
control over their bodies—and therefore their dignity—is essential for constructing these, 
and the other issues discussed in this Article, as rights issues rather than as merely moral 
questions. As Ronli Sifris argues: 

[W]omen who are legally prevented from accessing abortion services or 
who are subjected to involuntary sterilisation procedures are powerless. 
In the case of restrictions on abortion, women are helpless in that they 
are unable to act to terminate their pregnancies safely. In the case of 
involuntary sterilisation procedures, women are helpless in that they are 
unable to act to retain their bodily integrity (in this case, their fertility).154 

152  Yamin, supra note 69, at 99–130 (2016).

153  Anna Mondekova, Virginity: Political Implications and Misuse of the Concept in Today’s Middle East, 
in Studies in Biopolitics 127, 132 (Judit Sandor ed., 2014). 

154  Ronli Sifris, Reproductive Freedom, Torture and International Human Rights: Challenging 



Columbia Journal of Gender and Law94 32.1

Acknowledging the ways in which specific forms of torture and degrading treatment, 
including FGE and forced sterilization are gendered, in turn allows these acts to be 
understood as deprivations of equal dignity and therefore as discrimination on the basis of 
gender as well as intersectional axes of identity. 

CONCLUSION

In Atwood’s book the main character avoids looking at her body and thinks: “I 
don’t want to look at something that determines me so completely.”155 An analysis of the 
reproductive rights-related jurisprudence of the Court reveals, even when violations of 
the Convention are found, there have been many missed opportunities to challenge and 
change prevailing narratives. In these narratives the well-being, status, and lives of the 
women in Europe are, as in Atwood’s novel, determined by what women can do with their 
reproductive bodies, and what cultural and social meanings have been assigned to their 
biological functions. 

Although we have not aspired to analyze the cited case law in an exhaustive manner, 
the pattern that emerges in ECtHR’s treatment of issues related to reproduction is one that 
largely discounts, or even disregards, the gendered aspects and implications of these issues. 
For example, the Court has framed access to therapeutic abortion as largely a procedural 
issue rather than a fundamental matter of equal dignity, and home birth as a question of 
gender-neutral preferences and medical arguments rather than a woman’s autonomous 
choice over her birthing experience. Similarly, the Court has largely not considered the 
cultural and sociological meanings of forced gynecological examinations used on female 
detainees, and has looked for “innocent suffering” in order to bring medical treatment 
within the scope of the prohibition of degrading treatment and torture. We have argued that 
the Court should go beyond narrow or formalistic interpretations of the Convention and be 
explicit about what issues such as abortion, forced sterilizations and forced virginity tests 
represent in women’s lives, naming these issues explicitly as matters of reproductive rights. 

Indeed, we have argued that language is itself an exercise of power and if the Court 
were to use reproductive rights language explicitly, it would begin to lay ground for 
different narratives regarding women’s identities and citizenship by emphasizing the 
structural discrimination underlying restrictive abortion laws, domestic violence, denial 
of home birth, and forced sterilizations. In this way, it could create the architecture for 

the Masculinisation of Torture 182 (2014). 

155  Atwood, supra note 1, at 73. 



Columbia Journal of Gender and Law 9532.1

new transformative narratives based on substantive equality, and women’s rights as full 
and equal members of society, defined by their humanity and not by their sexuality or 
reproductive capacities. We have further indicated that inspiration for such an approach can 
be found in the jurisprudence of other regional courts and treaty monitoring bodies. 

But moreover, it may also be found within the Court itself. In the concurring opinion 
for Valiulienė v. Lithuania, Judge Pinto de Albuquerque wrote “domestic violence has 
emerged as an autonomous human rights violation” and continued:

Hence, the full effet utile of the . . . Convention . . . can only be achieved 
with a gender-sensitive interpretation and application of its provisions 
which takes in[to] account the factual inequalities between women and 
men and the way they impact . . . women’s lives. In that light, it is self-
evident that the very act of domestic violence has an inherent humiliating 
and debasing character for the victim, which is exactly what the offender 
aims at. Physical pain is but one of the intended effects. A kick, a slap 
or a spit is also aimed at belittling the dignity of the partner, conveying 
a message of humiliation and degradation. It is precisely this intrinsic 
element of humiliation that attracts the applicability of Article 3 of the 
Convention. The imputation of an Article 8 violation would fall short of 
the real and full meaning of violence in the domestic context, and would 
thus fail to qualify as a “gendered understanding of violence”.156

As Europe struggles to come to terms with a panoply of evolving social, economic and 
political issues, the Court in turn will likely be called upon to define aspects of its social 
identity in multiple ways, which will invariably implicate questions of gender. By adopting 
an approach in its case law that explicitly names and exposes gender stereotypes, and 
analyzes the culture and power dynamics that underlie laws and practices, the Court would 
go far toward constructing “women” as protagonists of their lives who determine what 
happens to their bodies and not vice versa. If that were the case, Atwood’s book would 
indeed read like science fiction.  

156  Valiulienė v. Lithuania, Eur. Ct. H.R. (2013) (Pinto de Albuquerque, J., concurring) (emphasis added).