G.H. v Hungary: the Reproductive Rights Case We Lost in Strasbourg
17 July 2015
You are 22 weeks pregnant, with twins. You start bleeding heavily. When you arrive at the hospital, you find out you need an emergency Caesarean section. Your thoughts come in a panicked jumble. Will the twins make it? Will you make it? How long will this all take and who is looking after the other children in the meantime?
The courts in Hungary thought this was a good time for you to agree to be permanently sterilised. The European Court of Human Rights agrees: you were “in a position to take an informed decision”.
(Photo Credit: Budapest Business Journal)
Of course, you should have been given adequate information so you could give fully informed consent, and asked to sign a consent form; that didn’t happen, so you should be compensated for those administrative oversights. But not too much: the two million Hungarian forints (about €6,000) the appeal court granted you was a bit high; the Supreme Court instead gives you just 1,000,000 because, after all, you wanted this. But did you really? You do not remember asking for or giving consent. You think the hospital staff is making it up, making decisions for you about your body and ability to have more children. And the courts would believe them, wouldn’t they.
Coincidentally (or not), you were in a racially segregated maternity ward for Roma while this was happening. You are not Roma yourself, but your husband is, and you have taken his typically-Roma surname. Any further children you will never have would also have been Roma, certainly in the eyes of the non-Roma majority.
Why We Took the Case to Strasbourg
The ERRC is committed in our current programme strategy to ensuring compensation for survivors of forced sterilisation. Sterilisation of Romani women (or those associated with Roma, like in this case) is a form of intersectional discrimination meant to keep Roma families small. The story set out above is G.H.’s. Exercising her reproductive freedom, G.H. was creating a large Roma family. This is ethnic population control.
Although G.H. wanted to have more children, she was ready to stop litigating once she was awarded 2,000,000 HUF compensation by the appeal court awarded her; it was the hospital that appealed. When we got the Supreme Court judgment, she and we were angry. Their justification for halving the compensation was that G.H. consented to the sterilisation; the hospital just forgot to follow the formalities.
Disappointingly, one of the judges on the three-judge panel who delivered this problematic Supreme Court judgment was Hungary’s first judge at the European Court of Human Rights, which has significant jurisprudence on cases of forced sterilisation.
We believe G.H.’s version of the story, of course; and it bears a strikingly resemblance to another case we took successfully a few years ago, about another Romani woman, A.S., who was sterilised in the same way in a Hungarian hospital in 2001, as the UN’s CEDAW Committee found. But this is not a he-said-she-said case. Just like in the A.S. case, it does not matter whether G.H. “consented” during this medical emergency. Sterilisation can never be considered a life-saving emergency medical procedure. A woman in the throes of a premature birth requiring invasive surgery is not in a position to consent to it, even if it might be medically convenient. In the middle of a medical emergency linked to a pregnancy going wrong, who might not think that it’s a good idea never to go through this again, a decision you are very likely to regret once things have calmed down?
The low compensation G.H. received (much lower than the usual Strasbourg award of around €10,000 in forced sterilisation cases) signalled a broad violation of her right to respect for private and family life (Article 8 ECHR) and her right to be free from inhuman and degrading treatment (Article 3). The Hungarian courts found a violation, but limited its scope so much as to deprive G.H. of recognition of how her rights were violated.
We went to Strasbourg to expose this. We were seeking in particular to expose a discriminatory structure that consists of a pattern of sterilisations against Romani families, and a judiciary that minimises them by seeing them purely through the lens of the procedural aspects of medical negligence.
Our theory of change was focused on compensation (as in our programme strategy): widespread sterilisations of Romani women seem to have stopped in Central Europe, but the many victims remain uncompensated or undercompensated; this was a chance to establish better case law on that specific subject. On our strategic litigation plane, this case was somewhere near the centre: G.H. cannot undo what was done to her, and her motivation was at least as much to see justice done as it is to get the compensation she deserves. Our legal theory was rooted in previous case law but with a risky edge: the European Court of Human Rights is increasingly focused on efficiency and would be tempted to reject a case where the applicant had already received some sort of compensation and was looking for more. But there is precedent for such cases (see, e.g., Ciorap (no 2) v Moldova). It was worth the risk to expose how reducing forced sterilisation from an administrative, or proceduralist approach, revictimises those sterilised and makes future violations likely. G.H. and we wanted to see the matter addressed under the lens of Articles 3 and 8 ECHR, tackling the issue of informed consent, reproductive health, and the right to individual autonomy and reproductive choices.
What Strasbourg Said
The European Court disposes of most inadmissible applications it receives by having them decided by a single judge and sending a short rejection letter without reasons. G.H. was given the less usual benefit of a reasoned inadmissibility decision explaining why she lacked victim status. We would not have been surprised to hear the Court say that in the light of conflicting stories, it was accepting the domestic courts’ preference for the defendants’ version of the facts. Subsidiarity dictates this kind of deference to national courts. But the Court put the hospital’s version in the applicant’s mouth; ignoring her own claim that she never asked to be sterilised, the Court summarised the application we submitted as follows:
“The applicant mentioned to her doctors that she thought it was reasonable to tie her Fallopian tubes in order to sterilise her. The doctors repeatedly asked her if that was indeed her desire and explained that this intervention could not be subsequently undone. The applicant answered in the affirmative, confirming that she wanted no more children. These statements were made to three doctors and a midwife.”
If it did happen that way, that is not what G.H. claims or remembers, or will ever believe. We will make a fully anonymised version of the application available via this page as soon as possible; it presents a very different version.
The Strasbourg Court found that the applicant lacked victim status (i.e. standing): “in the present case the applicant, having herself enquired about the possibility of the medical intervention and reiterated her consent in the knowledge of the consequences … was in the position to take an informed decision.” She had received compensation and an apology. There was nothing left to complain about.
What We Have Learned
Our approach to litigation – trying to secure improbable judgments that will destabilise the segregationist, discriminatory mentalities still responsible for Roma oppression – will mean that we are often disappointed. Yet a reasoned inadmissibility decision – with the facts represented so differently from how they were in the application – is probably the worst way this case could have ended. Given the Court’s struggle to slash its own case backlog, we see a message in this decision: the Court is not here to resolve quibbles about money. That shows that the case we sent them allowed them to do three things:
- First, ignore the perversity of finding that a woman is in a position to consent to sterilisation whilst facing emergency surgery as her pregnancy goes wrong at 22 weeks;
- Second, sidestep the difficult questions about women’s rights to decide over their own bodies and reproductive ability, and in particular, their right to free decide on the number and spacing of children
- Third, ignore the intersectional discriminatory component of sterilisations that all too often in Central Europe are performed on to women giving birth to Roma children (see also V.C. v Slovakia).
Sterilisation cases like G.H.’s have traditionally been brought as civil cases challenging violations of ‘personality rights’ or a similar civil-law principle that captures breaches of Articles 3 and 8 ECHR. Any lawyer (especially in these jurisdictions) would tell you that that is the most promising way to get a result from the courts; maybe the only way. But it obscures what we know is at the heart of these cases: a paternalistic and racist impulse that preys on the vulnerability of women in the midst of a reproductive medical emergency. There is no good way to put that to a judge, and it’s no surprise that there is only one case (we know of) where the Strasbourg Court has dealt with intersectional discrimination, and awkwardly at that.
But cases like these need to be framed in the future under anti-discrimination laws to force the judges to see and address the discriminatory structures at the core of these cases. It is no longer enough just to bring cases that, like forced sterilisation, touch on Roma and women’s rights; we have to bring them in ways that force judges to see them for what they are and address the discriminatory structures at play. We made it too easy for Strasbourg to set all that aside.
What We Will Do Next
The ERRC is persuaded that sterilisation without fully informed consent cannot be understood as mere procedural negligence, and that informed consent for sterilisation cannot be obtained on the operating table. Sterilisation without fully informed consent is a serious human rights violation, an arbitrary intervention into women’s bodily integrity, reproductive health and right to family and private life. International bodies have already established this, including the Strasbourg Court itself. However, they have never established that all this happens to Romani women due to intersectional discrimination: they are targeted because they are Roma and they are women. Our next step is to take instructions from our client and determine if there is another international forum where we can see these arguments vindicated.