Reproductive rights before the European Court of Human Rights: States' discretion or European supervision?

18 
 
3. Between law, morality and bioethical issues 
 
The previous paragraphs have analysed the legal basis which the ECtHR has relied upon 
when dealing with questions regarding abortion and MAP. On the other hand, these issues 
imply profound moral and philosophical considerations concerning the beginning of life. 
These different positions are contextualised in an intense debate concerning bioethical
33
 issues 
and are reflected in the different national legislation of the Member States of the CoE. For this 
reason, it is useful to try to understand the rationale which divides some states, while unifying 
others, in choices pertaining to the reproductive field. 
Early forms of ethical thinking related to health are traced back to antiquity
34
, while the 
modern/contemporary discipline has emerged during the 1970s, due to the technological 
improvements in the medical practice
35
. In this period issues concerning law and bioethics 
were raised. The relationship between these two disciplines is complex, since legal decisions 
concerning bioethics issues have to deal with the moral relativism of a given society. 
Therefore, in this framework bioethics has the twofold goal of detecting the profound reasons 
that guide moral beliefs and that of trying to build a consensus in highly differentiated 
societies governed by plural views in the field of morality. Thus, bioethics can be considered 
the "bridge" which links moral/philosophical stances and the norms that regulate the practices 
in this field
36
. 
The following paragraphs will analyse the principal moral stances which have guided 
European states in the regulation of matters concerning respectively the voluntary termination  
of pregnancy and the MAP. 
                                                           
33
 Bioethics concerns the moral dilemmas stemming from the advances in medicine and scientific research. 
Indeed, the term bio, meaning life, combined with ethics tries to determine the "right" or "wrong" moral conduct 
with regard to life and death issues. This dissertation will not concentrate on the so-called death issues 
(euthanasia), but only on the beginning-of-life issues.  
34
 The first forms of ethical thinking are dated back to the Hippocrates "oath" (V-III century BCE), whose main 
principle was "First, do no harm". After the arrival of Christianity, the oath was modified in order to adapt it to 
the principles promoted by the Christian faith, such as compassion and charity. The first modern forms of ethical 
thinking arose during the Enlightenment period and the secularization process.  
For a deeper description of the history of the ethical thinking see: Freeman Michael, Law and Bioethics: 
Constructing the Inter-Discipline, in Freeman Michael (ed.), Law and Bioethics: Current Legal Issues, 2008, 
Vol. 11, pp. 1- 11. 
35
 Nowadays the influence of the past is still vivid and physicians operating in the bioethical field should respect 
the maxim "priumum non nocere". See Brownsword Roger, Bioethics: Bridging from Morality to Law?, in 
Freeman Michael (ed.), Law and Bioethics: Current Legal Issues, 2008, Vol. 11, p. 14. 
36
 In Brownsword's wording, there are a "number of competing master criteria of rightness". The author in his 
discussion endorses the conclusions presented in the Nuffield Council on Bioethics' report: "Critical Care 
Decisions in Fetal and Neonatal Medicine: Ethical Issues". Ibid. pp. 13-15.
19 
 
3.1. The abortion debate: "pro-life" versus "pro-choice" 
 
The moral debate about abortion has begun in the United States following the landmark 
decision of the Supreme Court in Roe v. Wade
37
, which has divided the US society in two 
opposite fronts, namely pro-choice and pro-life groups. The rationale behind these views is 
also shared by the ethical debate that has taken place in Europe. This distinction, even if 
convenient to structure the debate, is imprecise, inasmuch as it does not include all the 
different undertones which animate the discussion. 
The pro-life group supports the view that life begins at the moment of conception, hence 
the unborn is entitled to the right to life. Consequently, the voluntary termination of 
pregnancy is considered as "murder"
38
. This view is influenced by the moral prescriptions of 
the religions that are prevalent in Europe, in particular the Roman Catholic Church and the 
Orthodox Church, since the Lutheran and Protestant Churches are generally more "liberal" in 
this regard. 
Moreover, this position considers mother's womb as a means through which attain a higher 
purpose, the conception of a new life. Accordingly, the mother should have no power in 
deciding issues concerning the termination of pregnancy
39
. It also advocates for the conferral 
of more rights upon the father, who is directly involved and conditioned by these decisions. 
Abortion is not conceived as a private/personal issue, but it is rather considered a public 
matter, which implies social acceptance and judgement. In order to sustain their views, pro-
life supporters have focused on the possible negative effects that abortion can provoke on 
 
                                                           
37
 In Roe v. Wade case (1973) the US Supreme Court declared unconstitutional any law of the federal states 
which did not permit abortion in the first two trimesters of the pregnancy in order to pursue the aim of protecting 
the life of the foetus. The case generated  intense reactions by the public and it raised a passionate debate. 
See Dworkin Ronald, Life's dominion. An argument about abortion, euthanasia and individual freedom, London 
Harper Collins, 1993, p. 7. 
38
 See Report of the Committee on Equal Opportunities for Women and Men, Access to safe and legal abortion 
in Europe, Doc. 11537 rev., 8 April 2008. Available at: 
http://www.assembly.coe.int/ASP/Doc/XrefViewHTML.asp?FileID=11855&Language=EN. 
39
 According to the Committee on Equal Opportunities for Women and Men, religion continues to play an 
important role in the formation of policies that directly or indirectly affect women's decisions in the reproductive 
field. In practise women's rights are limited in order to accommodate moral provisions, due to the different role 
attributed to men and women by religious beliefs. According to this view, women are considered as having the 
primary role and duty of being "mothers". This results in the discrimination of women and perpetuation of  
patriarchal values by states and society itself.  
See Report of the Committee on Equal Opportunities for Women and Men, Women and Religion in Europe, 
Doc. 10670, 16 September 2005. Available at: 
http://assembly.coe.int/ASP/Doc/XrefViewHTML.asp?FileID=11127&Language=EN#P94_13696.
20 
 
women's psychological condition, namely post-abortion syndrome
40
.  
 
In this framework, it is noteworthy to analyse the position of the Roman Catholic 
Church, given its strong influence on Europe. Its official position with regard to abortion is 
expressly stated in the Pope's Ioannes Paulus II Encyclical "Evangelicum vitae" (1995), which 
upholds the "sacred value of the human life from its very beginning until its end". It is clear 
that the term “very beginning” refers to the moment of conception and that the term “death” 
refers to the natural death. The right to abortion, permitted by some states on specific grounds, 
is considered as a new threat to the right to life, a "moral evil" in violation to the divine 
commandment "you shall not kill". The position of the Catholic Church becomes more severe 
when it affirms the immorality of those states which label with the term "rights" what once 
were considered as "crimes". The Catholic Church depicts abortion legislations as influenced 
by the so-called "culture of death". It also considers international institutions morally guilty 
for the promotion of what it calls as the "conspiracy against life"
41
. 
 
Conversely, the pro-choice group claims that the right to a safe abortion should be 
comprised within the human rights of the individual. This consideration is based on the fact 
that in places where abortion is illegal, women have to resort to unsafe abortions that could 
and usually does impinge on their right to life or right to health. According to the Committee 
on Equal Opportunities for Women and Men, laws prohibiting abortion are not only 
discriminatory, but are also denigrating towards women, who are not considered capable of 
making this sort of decisions. Laws banning abortion are deemed in violation of women's 
rights and consequently they undermine their independence and equality to men
42
.    
 
The feminist movement has unsurprisingly been one of the most fierce defenders of 
abortion rights. Feminist scholars advocate for this right by virtue of the fact that a woman is 
the best agent in order to make a complex decision on this regard. The freedom to make 
reproductive decisions is not a separate or abstract problem, but is linked to the achievement 
of other purposes, such as self-fulfilment or the responsibility towards other family members.  
Feminists deem women capable of making moral and responsible decisions while faced with 
                                                           
40
 See supra N. 38. 
41
 Full text of the Encyclical available at:  
http://www.vatican.va/holy_father/benedict_xvi/speeches/2006/march/documents/hf_benxvi_spe_20060330_eu-
parliamentarians_en.html. 
42
 See supra N. 39.
21 
 
an abortion dilemma
43
. In order to make "procreative decisions", women have to make 
"mothering decisions", that include not only considerations about the best choice for 
themselves and the "intrauterine life". Indeed, women are also concerned about the 
consequences of their choices upon other people. Society regards women as firstly "potential 
mothers". This social attribution homologizes women even if they do not intend to remain 
pregnant, bringing about social and economic consequences on their regard
44
. Mothering 
decisions are experienced differently from different women, and even if women contemplate 
abortion among their reproductive decisions, this does not mean that they do not attach any 
value to the "intrauterine life".  
 
Mothering decisions are experienced differently especially by men, given the lack of an 
analogous biological process for them.  
According to Hanigsberg, "bodily integrity", meaning the emblematic understanding of the 
body and control over it, is interpreted differently depending on the cultural background. This 
concept is fundamental to the identity and dignity of a person, who in order to realise self-
aspirations, should decide autonomously over it. The law has an important role in shaping this 
idea and generally men's bodily integrity is considered differently in comparison to the 
application of the same concept on women. In legislations where abortion is prohibited, 
women cannot make fully autonomous decisions, that are limited by the impositions of other 
persons. Subsequently, women are separated by their wombs, that serve society purposes. 
This sort of women subordination should be addressed by the different legislations that should 
take into account women's needs
45
.   
 
 
 
 
 
 
                                                           
43
 See supra N. 37, pp. 57-58. 
44
 According to Hanigsberg, disadvantage in the labor market is one of the primary consequences.   
Furthermore, she has stated that even worse from a moral point of view are considered those women who decide  
to not bear a child, since they do not correspond to the society's projection of them, thus being considered 
anomalous.  
See Hanigsberg Julia E., Homologizing Pregnancy and Motherhood: A Consideration of Abortion, in Michigan 
Law Review, 1995, Vol. 94, pp. 371-418. 
45
 Ibid.