Reproductive autonomy has been at the heart of culture clashes across the world for decades. Judicial intervention has proven necessary to resolve the rights and interests clashes between pregnant women, medical care providers, and fetuses. At the European Court of Human Rights (“ECtHR”), judges have carefully parsed Article 8 of the European Convention on Human Rights to balance the various rights implicated, including the right to abortion, the right to agency in giving birth, and the right to conscientious objection. Further, decisionmakers may take into account state interests in fetal life. As the ECtHR prepares to face the next stages of litigation concerning reproductive rights—eugenic abortions and home births—its decisions will set an example for the rest of the world, as many governments face and prepare to tackle similar questions and rights clashes. This Note turns to international human rights law to derive three legal principles that should guide the ECtHR in its upcoming decisions. Applying this original framework, this Note argues, the ECtHR can effectively balance the rights of pregnant women, the rights of medical care providers, and the interests of fetuses. In doing so, the European human rights system will ensure women retain legal agency when it comes to decisions about whether and where to give birth.
Olivia Coral Daniels, Reconciling Reproductive Rights: Eugenic Abortion and Home Birth Disputes at the European Court of Human Rights, 71 Duke L.J. 1605-1646 (2022)
Available at: https://scholarship.law.duke.edu/dlj/vol71/iss7/3