Reproductive Health: Morals, Margins and Rights
| Date | 01 May 2018 |
| DOI | http://doi.org/10.1111/1468-2230.12340 |
| Published date | 01 May 2018 |
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Reproductive Health: Morals, Margins and Rights
Rosamund Scott∗
Reproductiveinterventions and technologies have the capacity to generate profound societal un-
ease and to provoke hostile reactions underpinned by various moral concerns. This paper shows
that this position currently goes relatively unchecked bythe European Court of Human Rights,
which allows the margin of appreciation and consensus doctrines significantly to limit the scope
of reproductive rights under the right to respect for private and family life under Article 8.
This occurs both in relation to the interest in avoiding reproduction at stake in abortion, and
that in achieving it at stake in medically assisted reproduction. The paper demonstrates sig-
nificant flaws in the Court’s framing and deployment of these doctrines in its reproductive
jurisprudence. It argues that, as regards existing and upcoming reproductive interventions and
technologies, the Court should attend to the concept of reproductive health, long recognised
in international conventions and policy materials.
INTRODUCTION
The right to respect for private and family life under Article 8 of the European
Convention on Human Rights (ECHR) has come to play an increasingly
prominent role in the European Court of Human Rights’ (ECtHR) reproduc-
tive jurisprudence, long overtaking the right to marry and found a family under
Article 12.1As a right that can be limited, for instance for the ‘protection of
health or morals, or . . . the rights and freedoms of others’, the critical question
is typically whether state intervention in, or a failure to respect, the right is
justified. In the reproductive context, the answer has been significantly affected
by the discretion given to states, for example in relation to ‘sensitive moral and
ethical issues’,2by means of the margin of appreciation doctrine3–frequently,
∗Professor of Medical Law and Ethics and Co-Director,Centre of Medical Law and Ethics, Dickson
Poon School of Law, King’s College London. The author jointly (together with Professor Stephen
Wilkinson, Lancaster University) holds a Wellcome Trust Senior Investigator Award entitled ‘The
Donation and Transfer of Human Reproductive Materials’ 2013-18 (Grant No 097894/Z/11/Z)
and would like to thank the Trust for its support of her research. She is also grateful both to Stephen
Wilkinson and to the MLR referees for helpful comments on an earlier version.
1 The relevant parts of Article 8 are set out in the text below. Ar ticle 12 states: ‘Men and women
of marriageable age have the right to marry and to found a family, according to the national
Dissenting Opinion of Judges Tulkens, Hirvel¨
a, Lazarova Trajkovska and Tsotsoria noted, at [3]:
‘Article 8 of the Convention . . . appears to play an enhanced role now regarding questions
related to procreation and reproduction.’
2Evans vUnited Kingdom (2008) 46 EHRR 34 at [59] (Evans), discussed below.
3 By which the Court gives a degree of supervised discretion to Contracting States’ legislative,
judicial or administrative actions in relation to various rights including under Article 8. D.
Harris and others, Harr is, O’Boyle and Warbrick: Law of the European Convention on Human Rights
(Oxford: OUP, 3rd ed, 2014) 14.
C2018 The Author. The Modern Law Review C2018 The Moder n Law ReviewLimited. (2018)81(3) MLR 422–451
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Rosamund Scott
though not invariably, cr iticised for its relativist tendencies.4Although the
Court holds that the margin is narrowed where particularly important interests
are at stake, and has accepted that the reproductive context invokes such
interests, it also maintains that it is broadened if there is no consensus among
Contracting States either as to the importance of the interest or the best way of
protecting it.5This article critiques the Court’s use of the margin and consensus
doctrines in the two central reproductive spheres: the interest in avoiding
reproduction at stake in abortion, and the interest in achieving it at stake
in medically assisted reproduction, with particular reference to reproductive
donation. It shows that the Court’s leading reproductive cases have been flawed
both by excessive deference to local ‘morals’ and by questionable deployment
of the consensus doctrine, with highly detrimental impacts on women’s, and
sometimes men’s, reproductive interests. It argues that, as regards both existing
and upcoming reproductive interventions and technologies, the Court should
develop its jurisprudence with reference to the concept of reproductive health,
long recognised in various international conventions and policy materials.
The paper begins by introducing the margin and consensus doctrines, notes
their main academic criticisms, and foreshadows key problems inherent in
their application in the reproductive sphere – including the Court’s use of the
consensus doctrine to broaden the margin – that are discussed in the following
sections.
The next section argues that, by giving excessive deference to concerns as
to ‘morals’ (put forward by the Irish government) in relation to the application
of the right to life under Article 2 to the fetus, the Court’s abortion jurispru-
dence6has not recognised the implications for the reduction in the margin of
appreciation of an existing consensus under Article 8 that abortion should be
available on maternal health and wellbeing grounds: thus, if Article 2 applies to
the fetus, it has at best a right that can be limited on the basis of such grounds.
It then turns to the Court’s jurisprudence on reproductive donation, arguing
that here too the Court has not given due weight to the extent of a permis-
sive consensus among Contracting States and has neglected the concomitant
reduction in the margin, endorsing the weak and ill-considered concerns as to
‘morals’ (of the Austrian government).7
4 See, for example, P. Paczolay, ‘Consensus and Discretion: Evolution or Erosion of Human
Rights Protection?’ s 3, in Dialogue between Judges (ECtHR, Council of Europe, 2008); the joint
dissent in SH n 1 above at [11], referring to a ‘minimalist’ approach; Y. Arai-Takahashi, ‘The
Margin of Appreciation Doctrine: a Theoretical Analysis of Strasbourg’s Var iable Geometry’ in
A. Føllesdal, B. Peters and G. Ulfstein, Constituting Europe: The European Court of Human Rights
in a National, European and Global Context (Cambridge: CUP, 2013) 62, 81, reviewing the main
strands of criticism, but writing in defence of the doctrine.
5 See, for example, Evans n 2 above at [77], for the Court’s statement on the relationship between
the importance of the interest and the margin and consensus doctrines. In Parrillo vItaly (2016)
62 EHRR 8 (Parrillo) the Court noted the importance of reproductive interests in various cases
including Evans and observed, at [174], that ‘prospective parenthood’, is a ‘core right’ under
Article 8; see further, text preceding n 70 below.
6A, B & C vIreland (2011) 53 EHRR 13 (A, B & C). The relevant part of Article 2 states:
‘Everyone’s right to life shall be protected by law.’
7SH n1above.
C2018 The Author. The Modern Law Review C2018 The Moder n Law ReviewLimited.
(2018) 81(3) MLR 422–451 423
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