On Friday, 18 January 2019, the Constitutional Court of Moldova delivered a judgment on the constitutionality of Article 4 para. (4) let. m) of the Law on compulsory health insurance and of para. 34 subpara. (2) let. (f) of the Regulation on granting/suspending the status of insured person in the system of compulsory health insurance, approved by the Government Decision no. 1246 of 19 December 2018, following an application submitted by a group of MPs.
The applicants claimed that the provisions subject to constitutional review institute discriminatory treatment between mothers and fathers taking care of four or more children.
The Court's assessment:
As a master of characterisation to be given in law to the facts, the Court assessed the application in light of Articles 16 and 47 of the Constitution, which guarantee the principle of equality before the law and public authorities and, respectively, the right to assistance and social protection.
The Court noted that, although the Constitution does not expressly guarantee a right to State-sponsored compulsory health insurance if the mother has four or more children, since the legislator has decided to grant such a right and it falling, by virtue of its social character, into the ambit of Article 47 of the Constitution, notwithstanding, the equal benefit of its enjoyment must be ensured.
The Court held that not any differential treatment implies a violation of Article 16 of the Constitution. Differential treatment is discriminatory only if it is not objectively and reasonably justified. In other words, where differentiated treatment does not pursue a legitimate aim or if it does not ensure a reasonable relationship of proportionality between the means used and the aim pursued, it is not justified.
Article 4, paragraph (4) let. m) of the Law on compulsory health insurance provides that the Government enjoys the capacity of insured entity for mothers with four or more children who are not employed and who are domiciled in the Republic of Moldova. Pursuant to that rule, in order to qualify for compulsory health insurance on behalf of the State, the person must meet the following conditions: (i) to be unemployed; (ii) have domicile in the Republic of Moldova; (iii) have four or more children; and (iv) have the status of mother. While the first three conditions meet the requirements of the principle of equality, representing neutral criteria, the fourth condition raises doubts of constitutionality and requires an analysis regarding non-discrimination. Therefore, the Court examined that latter condition.
The Court noted that the progress of gender equality is today a major goal among the member states of the Council of Europe, and only very strong reasons can justify gender-specific treatment. In particular, the reference to traditions, to general assumptions or to social behaviours prevailing in a given State does not constitute an objective and reasonable justification for gender-specific treatment. For example, the European Court has emphasized that the Convention State Members cannot impose traditions deriving from the idea that man plays a primordial role and that woman plays a secondary role in the family (see Ünal Tekeli v. Turkey, 16 November 2004, § 63).
On the other hand, it has consistently been held in the jurisprudence of the European Court that a differentiated treatment based on sex criteria, complies with the requirements of Article 14 of the Convention when it ensures substantial equality between men and women. Thus, the identification of different needs for women, especially in relation to maternity and pregnancy, can be considered as complying with the requirements of Article 14 of the Convention. Appropriate differentiations are therefore acceptable for men and women in favour of women, only if they pursue the protection of pregnancy or maternity.
In the context of the present case, the Court has held that the objectives in question are not to be found in the contested rules, since the right to compulsory health insurance is intended to guarantee the protection of the health of the parent who takes care of four or more children.
The Court observed that Article 4 para. (4) let. m) of the Law on compulsory health insurance grants to mothers with four or more children the right to mandatory health insurance. Performing a close analysis of the legislation in question, the Court found that it did not provide protection to the mother only during the period of maternity, during which the mother is particularly vulnerable, and the insurance does not provide protection for the characteristic relationship between the mother and the child, since this relationship is also present outside of pregnancy and childbirth.
The Court held that this is also observed when considering the provisions of paragraph 34, subpara. 2 let. f) of the Regulation on the granting/suspension of the status of insured person in the compulsory health insurance system, a Regulation which develops the legal provisions and establishes the compulsory insurance of medical assistance also for the adoptive parents with four or more children. Those considerations sufficed for the Court to find that the provision in question does not seek to protect women from the point of view of their pregnancy and maternity, and it is therefore the circumstance when the mother has four or more children, which is essential in this regard.
Conclusions of the Court:
Considering the foregoing, the Court accepted in part the application for a constitutional review of the provisions of Article 4 para. (4) let. (m) of the Law on compulsory health insurance and point 34 (2) (f) of the Regulation on granting / suspending the status of insured person in the compulsory health insurance system, filed by Ion Casian, Ștefan Vlas, Ion Apostol, Roman Boţan and Valerian Bejan, Members of the Parliament of the Republic of Moldova.
The Court recognised as constitutional the following texts:
- "mothers" in Article 4 para. (4) let. (m) of Law no. 1585 of 27 February 1998 on compulsory health insurance; and
- the "mothers" of para. 34 subpara. (2) let. (f) of the Regulation on granting/suspending the status of insured person in the compulsory health insurance system, approved by the Government Decision no. 1246 of 19 December 2018
to the extent that both parents of the four or more children benefit from compulsory health insurance on equal terms.
This judgment is final, it cannot be appealed, it shall enter into force on the date of its adoption, and it shall be published in the Official Journal of the Republic of Moldova.
This is an English language courtesy translation of the original press-release in Romanian language.