Constitutional and Legal Debates on Reproductive Autonomy in post-Socialist Eastern Europe – A Case Study on Romania
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Issues related to human reproduction have always been the subject of strong controversies and the laws affecting this field seem to be under constant scrutiny. One of the widest changes in the regulation of reproductive rights took place with regard to abortion in Central and Eastern Europe after the fall of State Socialism. With the notable exception of Romania, abortion on request in Eastern Europe during State Socialism was generally legal. However, after the fall of the regime it was not only Communism as an ideology that was being rejected but also many of its laws and policies including the laws and policies promoting gender equality. This had a great impact on the way post-communist law-makers and courts approached matters like abortion. While in many Eastern European countries abortion was generally restricted, it was only in Romania that democracy brought a dramatic liberalization of reproductive rights and a general retreat of the State from the private lives of its citizens. This is due to the strict pro-natalist policies of the Romanian Communist leader Nicolae Ceausescu (1966-1989) during which around 10.000 women died because of illegal abortions, 2.000 were imprisoned and many others faced serious health problems for the same reason. This paper aims to explain more into depth what was the impact of the fall of State Socialism in Eastern Europe on the legal and constitutional debates on reproductive autonomy in the region with a special emphasis on Romania. Romania was selected as a case study because of its peculiar situation in the region and because it best illustrates how history and social background shape the legal and constitutional conversations on matters that are so contextually-bounded like reproductive rights. After explaining the general Eastern European situation and the way in which the Constitutional Courts from Poland, Germany and Slovakia have adjudicated different cases on abortion, the paper will focus on the special case of Romania. The paper will primarily focus on the peculiar history of abortion in Romania (i.e. Ceausescu’s “draconian anti-abortion legislation”, probably one of the most restrictive anti-abortion legislations in the history of Europe) and how it influenced the constitutional and political debates that took place after the fall of the regime in comparison to the other post-Socialist jurisdictions. Moreover, the paper will underline how Romania’s history of repressing reproductive autonomy hinders the pro-life voices and campaigns promoted in Eastern Europe mainly by U.S. organizations. The paper, however, will not be limited to abortion, but will also focus on assisted reproduction that started being practiced in Romania shortly after 1989. Assisted reproduction will be included in the discussion for two reasons. First, because the legacy of State Socialism in Romania led to a general lack of regulation and State intervention in this field as well, which, as it will be discussed in the paper, left space for serious abuses. Secondly, because when talking about reproductive autonomy, one has to bear in mind that this does not refer only to the idea of not having babies (i.e. abortion) but also to the right of having a baby when one cannot or does not want to do so “naturally”. In other words, within the purpose of this paper reproductive autonomy should be considered according to the definition provided by The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in Article 16 (1) (e) as encompassing “the […] rights to decide freely and responsibly on the number and spacing of […] children […]”.