This event features a discussion with Natalia Morales-Cerda (UCL) and Silvia Suteu (EUI).
Despite significant advances in vindicating reproductive rights, the European Court of Human Rights (ECtHR) has long resisted reading a right to abortion into the European Convention on Human Rights (ECHR). It has found Member States in violation of Convention rights where there was lack of clarity about or proper procedures for accessing abortion services, as well as where access to prenatal care that might establish the need for therapeutic abortions had been denied (Tysiac v. Poland (2009), R.R. v. Poland (2011), P and S v. Poland (2012)). Nevertheless, the ECtHR has been more ambivalent when reviewing national abortion regimes so restrictive as to effectively bar the vast majority of procedures domestically and force women to travel abroad in order to obtain a termination of pregnancy (A., B. and C. v. Ireland (2010)). Even where it has more recently inched towards greater recognition of the significant burden placed on women forced to travel at great expense and away from their support network at a time of heightened vulnerability, the Court still only found a violation of Article 8 ECHR (right to respect for private and family life) and not Article 3 (prohibition of inhuman and degrading treatment) (M.L. v. Poland (2023)). Thus, notwithstanding advances on vindicating reproductive rights in other areas, such as protection against forced sterilisation, access to assisted reproductive technologies, and ensuring greater freedom of choice and autonomy in birth, the ECtHR’s abortion case law only incompletely ensures reproductive justice.
The Inter-American Court of Human Rights (IACtHR) has also long recognised reproductive rights in a consistent body of case law, beginning with the Artavia Murillo v. Costa Rica judgment (2012). In its rulings, the IACtHR has emphasised the scope and content of state obligations in safeguarding personal integrity, liberty, privacy, access to information, equality and non-discrimination, health, and education, particularly with regard to women’s rights. In the cases I.V. v. Bolivia (2016) and Manuela and Others v. El Salvador (2021), the IACtHR acknowledged that the violation of women’s sexual and reproductive health is closely linked to gender stereotypes and inequalities, and that the lack of medical care in such cases constitutes an act of violence against women, prohibited by the Convention of Belém do Pará. However, in Beatriz and Others v. El Salvador (2024), the IACtHR refrained from ruling on the implications that the absolute prohibition of abortion in El Salvador had on women’s reproductive autonomy, personal integrity, as well as the discrimination and violence women faced. Instead, the IACtHR opted to frame the case exclusively under the right to health, neglecting to acknowledge the victim’s reproductive autonomy.
By looking at the two courts in comparative perspective and taking account of their most recent case law on the matter, this paper aims to evaluate the scope and direction of travel for the protection of reproductive rights in each respective region. Moreover, the paper places these developments, in particular the ongoing reticence of the ECtHR and the recent timidity of the IACtHR with regard to abortion specifically, in the context of regression on gender equality and women’s rights globally.
Speakers
Dr Natalia Morales-Cerda is a Postdoctoral Research Fellow at the Global Centre for Democratic Constitutionalism and Associate Lecturer at UCL Faculty of Laws. She holds a PhD in Law from UCL. Her research lies at the intersection of constitutional law, democratic theory, and socio-legal studies, with particular interests in constituent power, political representation, and feminist legal theory.
Prof Silvia Suteu is Professor of Law at the EUI, with special research interests in comparative constitutional law, human rights, and gender equality.
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