Women’s Reproductive Autonomy and Pregnancy Discrimination before the European Court of Human Rights

This paper examines the first two judgements on pregnancy discrimination of the ECtHR (Napotnik v. Romania and Jurčić v. Croatia) and discusses their potential impact on women’s reproductive autonomy and equality. In both cases, the Court developed important principles for protecting pregnant women from discrimination. Particularly, the Court held that unjustified different treatment due to pregnancy amounts to sex discrimination since “only women can be treated differently on grounds of pregnancy” and that no comparator is needed to find discrimination in these cases. However, despite resting on the same (laudable) general principles in both Napotnik and Jurčić, the Court came to completely opposite outcomes in these judgements. This paper endeavors to explain why this is the case and how the general principles applicable to pregnancy discrimination cases need to be further developed by the ECtHR in order to fully promote women’s autonomy and equality.