On 14 December 2023, the European Court of Human Rights (ECtHR) released its  ML v Poland judgment. As the ECtHR did not find a violation of Article 3 of the ECHR (prohibition of torture), stating that the severity threshold was not met [85], there has since been a divergence of views concerning the narrow and wide definitions and scope of reproductive rights among States and commentators.

Further to the previously provided analysis, a key part of the case is that little attention has been paid thus far to the remarks of Judges Jelić, Felici and Wennerström in the Concurring Opinion. Despite the often overlooked Article 14 (protection from discrimination) issues, the focus on Article 8 (respect for private and family life), and the very high threshold for Article 3 in reproductive rights cases, an increasing shift in judicial attitudes can be observed.  This perhaps can be explained through the doctrine of a living instrument and its operation in light of shifting attitudes towards gender equality, reproductive rights, and challenging the male-centred status ‘quo’ in law – reflecting on who was the law-maker and ‘standard setter’ in history and for whose benefit the law was designed – including the laws governing women’s bodies and their exercise of free will, dignity and unfettered choice to decide on their own future.

Judge Jelić, with two other judges, disagreed with the decision to declare Article 3 inadmissible. In line with the proposed arguments concerning the inadequacy of the severity threshold applied to women’s lived experiences and a more holistic view of the mental impact on women, the judges made several key observations which could be linked to the reality of women’s stigmatisation, inaccessibility of reproductive health care, and victimisation of abortion seekers and its providers.

The judges pointed to the case of Khlaifa and Others v Italy and argued that ‘there should have been an assessment of whether the victim was in a vulnerable situation and what impact this may have had on the applicant’s level of suffering and her feeling of insecurity’. The observations in the case of ‘serious and real emotional suffering’; unimaginable ‘fear and anguish’ [80]; and the victim finding themselves in a very ‘delicate, painful and vulnerable situation’ could be furthered by the proposal that long-term mental effects of forcing a woman to carry unwanted pregnancy should be considered. This includes the need to subordinate her life to the extremely challenging task of caring for a disabled child, or otherwise bearing the mental effect of giving them up for adoption (knowing the issues of the current foster care system, especially for children of special needs, and the psychological effect on women after birth due to severe hormonal changes making them at high risk of psychiatric harm). Furthermore, bearing in mind all the physical and mental health risks associated with pregnancy, denying women the right to decide whether they want to risk them or safeguard their well-being is another instance of agency deprivation and legal treatment of women as not fully capable of making their own decisions, or perhaps not worthy of that right to self-determination.

Noting, among others, the UNHRC case Whelan v Ireland, the judges argued that ‘any pregnancy termination procedure is a delicate and psychologically challenging experience for a woman, which should be handled with caution and requires appropriate psychological support, especially when it is to be carried out as a result of foetal malformation’ [4]. They further highlighted that ECtHR’s jurisprudence expressly acknowledges the vulnerable situation in which a woman is placed when learning that the foetus is affected by a malformation (R.R. v Poland) [6].

The woman in the ML case was in an extremely vulnerable and insecure position ‘that inevitably triggered feelings of fear and anguish’, ‘diminishing the applicant’s human dignity and arousing feelings of fear, anguish or inferiority which could be found to fall under other provisions in addition to Article 8’ [6]  (Bouyid v Belgium (s. 87)). The judges rightfully noted that ‘the humiliation she endured, along with feelings of fear and anguish’ [7] ought to have been given due regard to, noting the UNHRC General Comment No 36 (s. 8). The cases of Mellet and Whelan, examined by the Committee, further confirmed that denying access to abortion care could constitute cruel, inhuman or degrading treatment [49] – [51].

For the reasons outlined above, the aforementioned judges took the view that ‘the psychological stress to which the applicant was subjected, considered in the light of her vulnerability and the context of uncertainty and personal insecurity, reached the threshold of severity for consideration beyond the scope of Article 8 alone’ [9]. It is therefore argued that the State’s failure to provide legal certainty and personal security to the applicant should have been reviewed in light of Contracting Parties’ positive and negative obligations under Article 3 ECHR. Moreover, it is submitted that ECHR is to be interpreted in line with contemporary research developments and findings in public health, sociology and psychological studies. Recognising women’s unique position and questioning the applied ‘test’ for the severity threshold is central to the full realisation of the equality promises behind the international and regional human rights regimes as well as their domestic enforcement mechanisms.

Author’s Note: It has to be noted that at the time of publication, there are pending system changes and expected improvements upon proposals from the newly elected executive in Poland.

See Part 2 of this blog here: https://ohrh.law.ox.ac.uk/?p=85004&preview=true