Systematic and Widespread Violations of Reproductive Rights: The Case Of G.M. And Others V. The Republic Of Moldova

30-11-2022

Beatrice Serra

International Justice and Human Rights Researcher

Global Human Rights Defence

On November 29, 2022, the European Court of Human Rights issued a decision concerning violations of Article 3 of the European Convention on Human Rights perpetrated by the Republic of Moldova. The judgment reversed around two forms of gender-based violence, namely involuntary termination of pregnancies and birth-control measures which, in the instant case, were imposed without their consent on three Roma women with intellectual disabilities - but full legal capacity - who were raped by a doctor in the Bălți psychiatric asylum where they were resident. (The judgement on the Case Of G.M. And Others V. The Republic Of Moldova, 2022)

Recalling States’ obligation “to ensure effective legal safeguards to protect women from non-consensual sterilisation, with a particular emphasis on the protection of the reproductive health of women of Roma origin” due to “a history of non-consensual sterilisation against this vulnerable ethnic minority”, it is regrettable to acknowledge that the Case Of G.M. And Others V. The Republic Of Moldova (2022) is not the first of its kind. Indeed, domestic archives revel other cases of abortions carried out on women from the Bălți asylum. Particularly worrying is the existence in the Republic of Moldova of harmful stereotypes according to which persons with mental disabilities should be prevented from procreating. The human rights violations deriving from such stereotypes appear to be exacerbated and somehow validated by the gaps identified in the Moldovan legislation regarding informed consent in medical interventions. Urging Moldova to harmonise its domestic law with the Istanbul Convention, which requires the criminalisation of forced abortion, and other relevant international instruments, the Court aknowledged that 

“the existing Moldovan legal framework…lacks the safeguard of obtaining a valid, free and prior consent for medical interventions from intellectually disabled persons, adequate criminal legislation to dissuade the practice of non-consensual medical interventions carried out on intellectually disabled persons in general and women in particular, and other mechanisms to prevent such abuse of intellectually disabled persons in general and of women in particular”. 

At the time in which the crime was perpetrated, before 2006, the Moldovan law had in place a “system of presumed consent” for all medical interventions which did not “pose significant risks for the patient or which [were] not likely to violate his or her intimacy”; “in any case, the presumed consent was to be confirmed in writing by the doctor in the patient’s medical file.” In the instant case, considering that the termination of the pregnancies were not carried out to save the applicants’ lives, their consent was legally required . Because the abortion procedures were neither confirmed in writing by the patient nor by the doctor in the medical file or on a special form, the Court denounced a violation a Article 3 of the Convention for the first and second applicant. (The judgement on the Case Of G.M. And Others V. The Republic Of Moldova, 2022)

Regarding the third applicant, a breach of Article 3 found its reason in the failure of authorities to investigate the applicant’s allegations of ill-treatment promptly and effectively. Taking into account the deficiencies in the legal framework, along with “the proven rape of multiple residents of the asylum (including the third applicant)” and “the proven forced abortions in respect of the other two applicants,” the Court aknowledged to have sufficient evidence in favor of the third applicant’s version of the events. As a consequence, the burden of proof shifted to the Government, which failed to provide evidence in support of an abortion procedure conducted lawfully. For the same reason, the Court also found a violation of Article 3 regarding the first applicant’s allegation of forced contraception, while “the absence of prima facie evidence capable of shifting the burden of proof onto the respondent Government” in the case of the second and third applicants’ allegations prevented the Court to detect a violation of Article 3 of the Convention in their respect. (The judgement on the Case Of G.M. And Others V. The Republic Of Moldova, 2022)

In conclusion, the Republic of Moldova failed to protect the applicants’ physical integrity from non-consensual abortion and regarding one of the applicant also forced contraception. It has been the complete disregard of the applicants’ rights to autonomy and choice that led the Court to label the medical interventions as amounting to ill-treatments in breach of Article 3. 

The judgement on the Case Of G.M. And Others V. The Republic Of Moldova (2022) finally brings justice to the three women victims of brutal human rights violations. Yet, it is important to acknowledge that thousands of women worldwide, particularly women belonging to ethnic and racial minorities, women with disabilities and HIV, and marginalised women, are subjected to forced abortion, birth-control devices implantation and sterilisation. The lack of informed and free consent prior to medical interventions is a grave violation of an individual's rights to dignity, humane treatment, health, family, information, privacy, and to freely decide on their own body and life, among others. The United Nations condemn forced abortion and sterilization as a violation of the right to be free from torture, and cruel, inhuman, or degrading treatment or punishment, and call upon states to take action to eradicate such systemic and widespread practices. (Open Society Foundation, n.d.; IJRC, n.d.)

Sources and Further Readings:

European Court of Human Rights, The Case Of G.M. And Others V. The Republic Of Moldova (Application No. 44394/15),  Judgment  (November 22, 2022), file:///C:/Users/adis/Downloads/CASE%20OF%20G.M.%20AND%20OTHERS%20v.%20THE%20REPUBLIC%20OF%20MOLDOVA.pdf. 

International Justice Resource Center (n.d.), Forced Sterilization as a Human Rights Violation, IJRC, retrieved on November 30, 2022, from https://ijrcenter.org/forced-sterilization/. 

Open Society Foundation (n.d.),  Against Her Will: Forced And Coerced Sterilization Of Women Worldwide, Open Society Foundation, retrieved on November 30, 2022, from https://www.opensocietyfoundations.org/uploads/62505651-2c58-4c12-a610-46499e645a2c/against-her-will-20111003.pdf. 

The United Nations (October 24, 2017), Forced sterilization of young women with disabilities must end, UN rights expert says, UN Press Release, retrieved on November 30, 2022, from https://www.ohchr.org/en/press-releases/2017/10/forced-sterilization-young-women-disabilities-must-end-un-rights-expert-says.