Kvinnan och fostret: En diskursanalys av Europadomstolens syn på den kvinnliga kroppen

Sammanfattning: Women have performed abortions during all times. For most of history abortion, however, has been treated as a social taboo and was therefore illegal in most countries until the mid 1900’s. The sexual revolution during the 1960’s and 1970’s, combined with major scientific advances in the field of human reproduction, has come to play a critical role in a changed view of the role of women in society. At present, Europe occupies a highly fragmented approach to the abortion issue. Swedish and English abortion legislation is in this context very liberal in comparison with Irish and Polish abortion legislation, which tends to give priority to the rights of the unborn fetus. The basis for these different legislations is, amongst other things, religious and cultural differences building on very different views on female sexuality. This thesis deals with analyzing the view of the European Court upon the female body, relative to the human reproduction, from a radical feminist point of view. In order to undertake this analysis, a discourse analysis method is primarily applied. The starting point for the discourse analysis is that, inter alia, legal entities are to a large extent created as a result of the discussions taking place in Court. The law in this context is not addressed as an objective truth, but as a social construction based on societal values. The thesis analysis is based on three theories as represented by Shulamith Firestone, Catherine MacKinnon and Iris Young. The focus of the analysis is sex rulings of the European Court concerning reproduction. Five of these Court cases deal with abortion, while the remaining case deals with the right not to become a parent as a result of artificial insemination. The discourse analysis shows that the European Court occupies an ambivalent attitude towards the female body, which tends to be given a very relative value depending on various circumstances. From a radical feminist point of view, the analysis points to three key discourses in the six Court cases. These discourses are the Court’s reluctance to discuss abortion in terms of bodily integrity, the Court’s tendency to discuss abortion almost exclusively as a conflict between the mother and the fetus, and finally the Court’s reluctance to discuss abortion as an issue affecting women as a group. The European Court thus rarely chooses to discuss the woman’s physical and physiological integrity with respect to her body as such, but almost exclusively in relation to the fetus, the society and public morals. From a radical feminist point of view, these discourses could be interpreted as an expression of society’s domination over women – this since the female body is often described in terms of a passive construction, the primary purpose of which is to ensure human reproduction. If the European Court, however, were to shift focus with respect to the abortion issue in order to address primarily the bodily integrity, the result would become a very powerful political statement by the Court. In view of the subsidiary nature of the European Convention, it is likely that the member states would hereby come to challenge the Court’s action as a possible violation of the international law principle of sovereignty. It remains to consider whether such a strong political statement, in relation to the woman’s bodily integrity, would be worth the risk.