http://www.jamaicaobserver.com/columns/Abolishing-our-antiquated-abortion-law_14647642
ON June 4, 2005, at 1.15pm, a 14-yearold girl presented at the Victoria Jubilee Hospital with severe medical complications from a botched abortion. She was haemorrhaging intensely from a poorly performed cervical laceration intended to abort the 20-week-old foetus she did not wish to carry. She died within four hours. That our persistent criminalising of abortion, premised on religious views, should have factored in the death of this young girl, is testament not only to the need for Jamaica to abolish its antiquated law, but also to the paucity of political leadership, and the socio-economic divide, that engulf our country.
Accordingly, Minister Hanna's powerful political pronouncement during her contribution to the sectoral debates came as a surprise to many. Even more so, as apocalyptic to the conservative religious right who posit the view that abortion, in any instance, is murder, while ignoring the rights of women and their families to choose what is in the best interest of the woman. Even when challenged with cases of rape, incest or foetal abnormality, the views of these groups on the rights of the unborn foetus, over those of the mother, remain unwavering.
As the minister remarked, "...abortion is still illegal in this country, and a woman's right to choose whether or not to keep her pregnancy is in effect exercised by those who can afford a private doctor. This law is old, but we have been debating whether we are to change it for over 38 years..." In 1975, then Minister of Health, Kenneth McNeil, sought to instigate our legislature to establish guidelines for lawful and safe abortions to be procured in Jamaica. He noted in a Ministry Paper entitled, "Abortion: Statement of Policy", that Jamaica's legislation is silent on the circumstances in which abortion would be lawful, which was the main reason why qualified doctors have developed inhibitions in this area of work.
The 1864 Offences Against The Person Act (the Act) stipulates at s.72 that a woman, or anyone, who unlawfully uses any instrument or poison to procure her miscarriage, may be condemned to a maximum sentence of life imprisonment. Pursuant to s.73, a person who supplies any instrument or poison, knowing it will be unlawfully used to procure a miscarriage, may be sentenced to a maximum of 3 years' imprisonment. Notwithstanding the guaranteed provisions of the right to freedom from discrimination on the ground of being female; to equality before the law; and to respect for private and family life, in the Charter of Fundamental Rights and Freedoms, anti-abortionists lobbied Parliament for the inclusion of a savings clause which provides, inter alia:
"Nothing contained in or done under the authority of any law in force immediately before the commencement of the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011, relating to _ ... (c) offences regarding the life of the unborn, shall be held to be inconsistent with or in contravention of the provisions of this Chapter."
Presumably, out of fear of offending the church and other devout organisations, which seemingly operate under the guise that Jamaica is a theocracy, and seek to block any attempt by the Government to enact laws for a modern pluralistic society that run contrary to their religious dogma, the draconian provisions of the Act subsist, whilst both sides of the political divide allow the question of the safety of women's reproductive health to linger in a purgatory of sorts.
Minister Hanna must therefore be lauded for her very bold statements which, while not taking a position for or against the right of a woman to choose to procure an abortion, recognise the need for positive legislative changes, where persons of diverse ethical persuasions are allowed to lawfully choose for themselves.
The law ,however, is criminally restrictive, and does not prohibit abortion in all situations. The persistent reference to the word "unlawful" in outlining the prohibition on abortion suggests that there are instances where abortion may be lawfully. Unfortunately, as Minister McNeil rightly observed, the statute is silent as to these circumstances, rendering it unjust. As such, we are forced to rely on the common law, highlighted in the 1939 decision of R v Bourne, to determine what qualifies as a lawful abortion. In that case, the doctor was acquitted following the judge's ruling, on the facts presented that, "abortion would be lawful if they were undertaken in good faith for the purpose only of preserving the life of the mother."
Since the decision in Bourne, other judges have expressed that preserving the health of the woman may also justify an abortion. The difficulty with reliance on the common law perspective however, is that it is limited. It remains open to the interpretation of judges, who may well determine that in a particular instance, eg a rape victim, that the mental or physical heath of the woman was not endangered. In light of these restrictions, the UK enacted legislation in 1967 to decisively regulate the termination of pregnancies. Barbados, Belize, Bermuda, Guyana, St Lucia and St Vincent, have also enacted comprehensive guidelines to legalise abortions, while Jamaica remains shackled to the legacy of its colonial laws.
Both Barbados and Guyana have very liberal abortion legislation under their relevant Medical Termination of Pregnancy Act, passed in 1983 and 1995, respectively. In both territories, abortions may lawfully be performed to save the life of the woman; to protect her physical or mental health; in cases of rape and incest and; where the child is likely to suffer abnormalities. In Barbados, the social and economic considerations of the woman are also factors, while in Guyana, the positive HIV status of the mother; and the failure of contraception used in "good faith" are also contemplations.
Although several advisory commissions have been established to review our laws and articulate a policy for safe reproductive health services in Jamaica, with special emphasis on abortions, the political will to breathe life into the suggested legislative framework remains absent. In 2007, the Abortion Review Advisory Group submitted its final report to Minister Daley, then Minister of Health, recommending the repeal of the present criminal legislation and stating guidelines under which the termination of pregnancies will be lawful. These include developing, maintaining and staffing specified centres, to be monitored according to ministry standards; specific training for persons authorised to perform abortions; and pre- and post-abortion counselling.
The recommendations were never implemented, and when the Golding-led administration came to power, a joint select committee was established to further skirt around the issues. Though the arguments for or against abortion are politically polarising, the perceived immorality of abortion must no longer frustrate legislative action. Rather than implementing laws that are fair and just for all, we continue to suffer our women to find ways, oftentimes unhealthy and unsafe, to terminate unwanted pregnancies. After 50 years of self-governance, it is time to abolish our antiquated abortion law, which discriminates against women and callously strips them of their right to choose what is in their best interest.
ON June 4, 2005, at 1.15pm, a 14-yearold girl presented at the Victoria Jubilee Hospital with severe medical complications from a botched abortion. She was haemorrhaging intensely from a poorly performed cervical laceration intended to abort the 20-week-old foetus she did not wish to carry. She died within four hours. That our persistent criminalising of abortion, premised on religious views, should have factored in the death of this young girl, is testament not only to the need for Jamaica to abolish its antiquated law, but also to the paucity of political leadership, and the socio-economic divide, that engulf our country.
Accordingly, Minister Hanna's powerful political pronouncement during her contribution to the sectoral debates came as a surprise to many. Even more so, as apocalyptic to the conservative religious right who posit the view that abortion, in any instance, is murder, while ignoring the rights of women and their families to choose what is in the best interest of the woman. Even when challenged with cases of rape, incest or foetal abnormality, the views of these groups on the rights of the unborn foetus, over those of the mother, remain unwavering.
As the minister remarked, "...abortion is still illegal in this country, and a woman's right to choose whether or not to keep her pregnancy is in effect exercised by those who can afford a private doctor. This law is old, but we have been debating whether we are to change it for over 38 years..." In 1975, then Minister of Health, Kenneth McNeil, sought to instigate our legislature to establish guidelines for lawful and safe abortions to be procured in Jamaica. He noted in a Ministry Paper entitled, "Abortion: Statement of Policy", that Jamaica's legislation is silent on the circumstances in which abortion would be lawful, which was the main reason why qualified doctors have developed inhibitions in this area of work.
The 1864 Offences Against The Person Act (the Act) stipulates at s.72 that a woman, or anyone, who unlawfully uses any instrument or poison to procure her miscarriage, may be condemned to a maximum sentence of life imprisonment. Pursuant to s.73, a person who supplies any instrument or poison, knowing it will be unlawfully used to procure a miscarriage, may be sentenced to a maximum of 3 years' imprisonment. Notwithstanding the guaranteed provisions of the right to freedom from discrimination on the ground of being female; to equality before the law; and to respect for private and family life, in the Charter of Fundamental Rights and Freedoms, anti-abortionists lobbied Parliament for the inclusion of a savings clause which provides, inter alia:
"Nothing contained in or done under the authority of any law in force immediately before the commencement of the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011, relating to _ ... (c) offences regarding the life of the unborn, shall be held to be inconsistent with or in contravention of the provisions of this Chapter."
Presumably, out of fear of offending the church and other devout organisations, which seemingly operate under the guise that Jamaica is a theocracy, and seek to block any attempt by the Government to enact laws for a modern pluralistic society that run contrary to their religious dogma, the draconian provisions of the Act subsist, whilst both sides of the political divide allow the question of the safety of women's reproductive health to linger in a purgatory of sorts.
Minister Hanna must therefore be lauded for her very bold statements which, while not taking a position for or against the right of a woman to choose to procure an abortion, recognise the need for positive legislative changes, where persons of diverse ethical persuasions are allowed to lawfully choose for themselves.
The law ,however, is criminally restrictive, and does not prohibit abortion in all situations. The persistent reference to the word "unlawful" in outlining the prohibition on abortion suggests that there are instances where abortion may be lawfully. Unfortunately, as Minister McNeil rightly observed, the statute is silent as to these circumstances, rendering it unjust. As such, we are forced to rely on the common law, highlighted in the 1939 decision of R v Bourne, to determine what qualifies as a lawful abortion. In that case, the doctor was acquitted following the judge's ruling, on the facts presented that, "abortion would be lawful if they were undertaken in good faith for the purpose only of preserving the life of the mother."
Since the decision in Bourne, other judges have expressed that preserving the health of the woman may also justify an abortion. The difficulty with reliance on the common law perspective however, is that it is limited. It remains open to the interpretation of judges, who may well determine that in a particular instance, eg a rape victim, that the mental or physical heath of the woman was not endangered. In light of these restrictions, the UK enacted legislation in 1967 to decisively regulate the termination of pregnancies. Barbados, Belize, Bermuda, Guyana, St Lucia and St Vincent, have also enacted comprehensive guidelines to legalise abortions, while Jamaica remains shackled to the legacy of its colonial laws.
Both Barbados and Guyana have very liberal abortion legislation under their relevant Medical Termination of Pregnancy Act, passed in 1983 and 1995, respectively. In both territories, abortions may lawfully be performed to save the life of the woman; to protect her physical or mental health; in cases of rape and incest and; where the child is likely to suffer abnormalities. In Barbados, the social and economic considerations of the woman are also factors, while in Guyana, the positive HIV status of the mother; and the failure of contraception used in "good faith" are also contemplations.
Although several advisory commissions have been established to review our laws and articulate a policy for safe reproductive health services in Jamaica, with special emphasis on abortions, the political will to breathe life into the suggested legislative framework remains absent. In 2007, the Abortion Review Advisory Group submitted its final report to Minister Daley, then Minister of Health, recommending the repeal of the present criminal legislation and stating guidelines under which the termination of pregnancies will be lawful. These include developing, maintaining and staffing specified centres, to be monitored according to ministry standards; specific training for persons authorised to perform abortions; and pre- and post-abortion counselling.
The recommendations were never implemented, and when the Golding-led administration came to power, a joint select committee was established to further skirt around the issues. Though the arguments for or against abortion are politically polarising, the perceived immorality of abortion must no longer frustrate legislative action. Rather than implementing laws that are fair and just for all, we continue to suffer our women to find ways, oftentimes unhealthy and unsafe, to terminate unwanted pregnancies. After 50 years of self-governance, it is time to abolish our antiquated abortion law, which discriminates against women and callously strips them of their right to choose what is in their best interest.
