Debating Abortion a Comparative Overview

[spirtualman]

[LEFT][Journal Article, Appeared in Pakistan Law Journal, Vol. XXXVII, No. 1-2, 2009 Mag. 25] (REFERENCES INTENTIONALLY OMITTED)

PRO LIFE AND PRO CHOICE DEBATE: A JOURNEY FROM RESTRICTION TO REGULATION—DESTINATION PAKISTAN
By
QAISAR ABBAS


ABORTION has been a controversial subject throughout the history due to religious, moral and ethical variations that surround it. Although abortion is commonly practised throughout most of the world and has been practised since long before the beginning of recorded history despite legal and moral restrictions, imposed from time to time; yet the causes/reasons for the termination of such “unwanted” pregnancies have been contradistinctive---subject to the socio-economic and various other factors. Abortion is a subject that arouses passion and controversy. There can be found two extremes on the issue, Pro life, who condemn and Pro Choice, who favour the abortion; hardly any middle course. The situation becomes more irritating and puzzling when both extremes contend their viewpoints on the ground of ‘Human Rights’. Therefore, laws regarding abortion range from complete permission to the absolute prohibition in various jurisdictions depending upon the ethical norms and legal codes.
Primarily, abortion raises the fundamental questions about human existence, such as when life begins and what it is that makes us human. Abortion is at the heart of such debatable issues as the right of women to control their own bodies , the nature of the State’s duty to protect the unborn, the tension between secular and religious views of human life and the individual and society, the rights of spouses and right of the parents to be involved in the abortion decision, and the conflicting rights of the mother and the foetus. And most importantly the central to the subject of abortion is one of the most highly controversial social issues of all, sexuality. Any discussion of abortion almost inevitably leads to a consideration of how a pregnancy came about and ways that the pregnancy could have been prevented. As the time passes, these questions and issues continue to occupy a significant place in public discourse around the world.
An historical survey of the subject reveals that distinctions between animals and humans were not always clear at birth. Curran observes:
“It was commonly believed that human women could be made to conceive an animal-like creature by sexual union with an animal. The product of the conception was considered an animal and could be abandoned or killed by the woman or anyone else. The woman would often also be killed if she survived the birth, or be cast out of the society.”
In this context under the Roman law the human foetus was not regarded as a legal subject but as merely a part of a woman's body. The foetus had the potential to become a person and the law adopted the "fiction" (a legal term for a binding presumption not necessarily based upon fact) that the unborn person be deemed born whenever it was in its interest to do so, subject to the mandatory condition that child borne alive. Therefore, there was no legal protection if foetus was destroyed or maltreated, same rule applied to the borne “monstrous” or ill-formed child.
Pakistan, after its independence adopted abortion law (as a part of Penal Code) which was imposed by the British during colonial rule. Therefore it would not be out of place to have a cursory glance over the historical evolution of English law on the subject.
In the 13th century, for the first time English law addressed the issue of abortion, law followed the traditional instructions of the Church that abortion was acceptable until 'quickening' which, Bracton believed, was when the soul entered the foetus. Blackstone re-asserted that life was the immediate gift of God, a right inherent by nature in each individual; and it began in contemplation of law as soon as an infant was able to stir in its mother's womb. He took his holding in part from Sir Edward Coke's Third Institute, published in 1644, where Coke had observed that if an action were taken which resulted in the killing of the foetus in the womb after quickening, it was a "great misprision" (a misdemeanour) but not murder. Presumably, the action against a woman prior to quickening, even if an abortion or miscarriage occurred, was no crime at all.
The legal situation remained like this for centuries. In 1803, a new law’ The Ellenborough Act’ was enacted and causing/having abortion after ‘quickening' (i.e. when movement is felt at 16-20 weeks) carried the death penalty. Previously the punishment had been less severe. In 1837, The Ellenborough Act was amended to remove the distinction between abortion before and after quickening. In 1861, British Parliament passed ‘The Offences Against The Person Ac’; Section 58 of the Act made abortion a criminal offence, punishable by imprisonment from three years to life even when performed for medical reasons. No further legal changes occurred in England until 1929. In 1936, The Abortion Law Reform Association was formed by people who believed that abortion legislation was unsatisfactory. The Abortion Law Reform Association recommend that the law should be clarified, as the 1861 Act still on the statute books deemed abortion illegal under all circumstances, while the 1929 Act allowed for abortion in exceptional cases.
There was no change in law until The Bourne Case, when a young girl (15 year old) was gang raped by a group of soldiers and became pregnant. Dr Alec Bourne agreed to carry out an abortion for her and was subsequently prosecuted and acquitted. After the ruling in Bourne case, some women did have abortions for urgent medical reasons or, with the consent of a psychiatrist, to protect their mental health but the issue of legalizing certain abortions was highly intensified by the ‘thalidomide disaster’ of 1962 resulted in almost 1,000 British women bearing babies with limbs missing. Many of these women had been refused abortions; owing to this awful situation present law The Abortion Act 1967 was enacted. In 1990, The Human Fertilization and Embryology Act introduced controls over new techniques which had been developed to help infertile couples and to monitor experiments on embryos. Despite attempts to use this law to restrict abortion rights, the 1990 Act only lowered the legal time limit from 28 to 24 weeks, which is the currently accepted point of viability. It also clarified the circumstances under which abortion could be obtained at a later stage.
At present, law does not legalise abortion, but allows exceptions to the illegality of abortion, a pregnancy may be terminated provided the pregnancy is under 24 weeks and the life, Physical and mental health of the pregnant woman, any of her existing children, or there is a high risk that the potential baby will be seriously handicapped or malformed. The Act also provides that, in making this determination, "account may be taken of the pregnant woman's actual or reasonably foreseeable environment." In such a case termination of pregnancy shall be performed in a notified hospital, provided two doctors are convinced that dissolution of such pregnancy is inevitable on the grounds mentioned in the statute. It also permits a physician, without the concurrence of other, to abort a pregnancy where he is of the good-faith opinion that the abortion is immediately necessary to save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman. Whether these abortions should be carried out with or without the consent of pregnant lady, statute is quite. Judicial determinations on the ‘self determination Right’ of the pregnant women have been quite conflicting and unsettled, House of Lords in Re S (adult: refusal of medical treatment) took the extraordinary step of granting a declaration authorising doctors to perform a forced caesarean operation even though the woman had expressly refused intervention for religious reasons. Sir Stephen Brown accepted medical evidence that it was a life and death situation and the woman and the foetus would die if the procedure was not performed. The child was born dead. The brief judgment contains no convincing legal principle and suggests that the appeal decision in the Angela Carder case was misconstrued, nevertheless, in St. George's Healthcare N.H.S. Trust v S the Court of Appeal found that a competent adult woman was entitled to refuse a caesarean section even if her decision would lead to the death of a 36 week old foetus. Judge L.J. said:
“The autonomy of each individual requires continuing protection, particularly when the motive for interfering is as readily understandable, and indeed to many would appear commendable and, a pregnancy does not diminish a woman's entitlement to decide whether or not to undergo medical treatment. Her right is not reduced or diminished merely because her decision to exercise her right may appear morally repugnant.”
Similarly a statement issued by the Department of Health Circular in 1999, is unequivocal that a competent woman is entitled to make a decision which will lead to the death or serious handicap of a foetus, even if that the choice is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.
These accounts seem to confirm that a robust (rather forceful) concept of patient autonomy applies to pregnant women. They indicate that the death of a foetus is less important than protecting patient autonomy. If the law has established that a woman's decision should be respected, even if it will cause the death of a 36 week old foetus, is there some inconsistency with the Abortion Act's requirement that a woman's reasons for terminating a pregnancy of much shorter gestation must be judged by two medical practitioners.
The upshot of the discussion is to leave the law in a considerable state of confusion and we fail to find any certain and settled principles on the issue of abortion in United Kingdom.
Development in Pakistan
Initially, Pakistan followed the English pattern of abortion law but subsequently, in 1989, Supreme Court of Pakistan in the case of Federation of Pakistan versus Gul Hasan Khan struck down various provisions of Pakistan Penal Code inter alia sections 312 to 316 (relating to abortion and miscarriage), being inconsistent with the injunctions of Islam. These provisions were replaced by the present law. The present modified legislation substituted the restrictive English law with more liberal approach. Hitherto, it retains several features of the old English law. It establishes two stages of pregnancy for punishment purposes and imposes the old penalty of English law for an abortion performed during the earlier stage (Isqat-i-Haml), but when it is administered without consent of the pregnant woman then punishment is enhanced up to ten years. However, certain exceptions have been created in the present law; abortion in the earlier stage of pregnancy is no longer a crime if it is carried out in “good faith” to provide “necessary treatment” to the pregnant woman but the term “necessary treatment” is nowhere defined in the statute and leads to confusion, therefore the degree of liberalisation represented by this change is not entirely clear and there is no judicial interpretation available so far. Somehow, liberalisation provided in the law practically gives discretion to the pregnant woman and her physician to determine and decide what conditions are sufficient for the termination of pregnancy. The notable point is that doctor’s opinion doesn’t seem to be compulsory requirement of law but only advisory in its application, as opposed to English law where statutory procedure is laid down for such determination and two consultant doctors opinion is mandatory (at the first stage of pregnancy).
Second stage of pregnancy, (if aborted is called Isqat-i-janin) is when the limbs and organ of the foetus are formed then; termination of pregnancy can only be carried out to save the life of pregnant woman. However, at this stage, the consent of the pregnant woman is not always necessary when it is performed in good faith. If such abortion is not performed in good faith only to protect the life of pregnant woman then it is severely punishable and there is no difference whether it is caused by the lady herself or by someone else.
Besides all the liberalisation, it makes hard to conceive the situation where it would be appropriate or not to administer an abortion. For these reasons, doctors often hesitate to perform abortion even where it is necessary to save and protect the life of the potential mother because the current law has grey areas that leave doctors vulnerable to accusations, negative publicity and career damage, especially in the case of late abortions. In this situation a woman with an “unwanted pregnancy” is between hammer and anvil, as abortion performed by midwives and other incompetent persons creates certain complications i.e. septic abortions, those are a leading cause of maternal death.
Many eventualities have either not been covered by the present law or the law on these point is very much obscure and ambiguous, for example when the pregnancy is outcome of rape, incest, or the potential child is deformed or disable, when there are more than two embryos and one of them needs to be destroyed for the life and health of the other one. These all cases may be put on the analogy of therapeutic treatment, when the imputation of a limb or organ is necessarily carried out in the “best interest of the patient”, further may also be added to the above stated situation, as the problem is much serious because it directly affects the public at large and restricting abortion in these cases is denial of free exercise of constitutionally guaranteed rights of life, liberty and human dignity. Therefore, termination of these pregnancies must be allowed “in the best interest of public” to protect the society from the effect of such atrocious circumstances.
Islamic Views
For the purpose of clarity and proper understanding of law a resort is to be made to the Injunction of Islam. Muslims regard abortion as wrong and haram (forbidden), but many accept that it may be permitted in certain cases. The Islamic view on abortion is based on the very high priority that the faith gives to the sanctity of life. The Qur’an declares:
"Whosoever has spared the life of a soul, it is as though he has spared the life of all people. Whosoever has killed a soul, it is as though he has murdered all of mankind."
Many other verses of the Holy Qur’an can also be narrated, establishing the same view point;
“…take not life, which God hath made sacred, except by way of justice and law: thus doth He command you, that ye may learn wisdom.”
"And do not kill the soul which Allah has forbidden except by right. And whoever is killed unjustly, We have given his heir authority but let him not exceed limits in [the matter of] taking life. Indeed, he has been supported [by the law]."
Besides this, there are hundreds of sayings and traditions of Hadrat Muhammad (SAW) explaining and implementing the same dictum.
However, historically, various attitudes and opinions on abortion coexisted, with Hanafi scholars permitting abortion up to the date of ensoulment, allowing women to do so even without their husband’s permission. Most Maliki opinions prohibited abortion, but a smaller number allowed it up to 40 days, while Hanbali and Shafa`i jurists allowed abortion up until differing dates, and Zaydi jurists permitted it “unconditionally” until ensoulment. Muslim women and men resorted to various forms of birth control, including abortion. Musallam points out that some jurists strengthened their arguments supporting withdrawal, for instance, by claiming that it was preferable to abortion, but also that the arguments which supported contraception (and withdrawal) could also strengthen those defending abortion. It may be concluded that Islamic law usually accords the foetus rights equal to the mother’s after four months. This point in time (120 days) is the crucial event for jurists, at which point the foetus is “ensouled” and termination of pregnancy after this stage can only be allowed when it is the only way to save the life of the pregnant lady, this permission is based on the principle of the lesser of the two evils known in Islamic legal terminology as the principle of al-ahamm wa 'l-muhimm (the more important and the less important).
Law on the subject in other Islamic countries is also not addressing the needs of the contemporary society. For example, the Iranian Penal Law describes various stages of pregnancy for punishment purpose and abortion is completely illegal except to carry it out for the procurement of life of pregnant woman subject to highly restrictive procedure, but in 2005, Iranian legislative assembly approved a draft bill allowing abortion in cases of foetal defects and certain other ancillary situations However, the Council of Guardians, a 12 member clerical body which must approve new legislation passed by the Parliament, rejected the bill a month later. While, Bangladesh retains the same old English penalties and allows termination of pregnancy if it is performed in good faith to save the life of pregnant woman. In Turkey, a 1983 law makes abortion legal in all circumstances during the first 10 weeks of pregnancy. After 10 weeks, abortion is legal if a pregnant woman's life or physical or mental health is in danger or in cases of foetal abnormalities. Parental and spousal consent requirements are in effect, but they can be waived if a woman's life is at risk.
In this grim situation, a leaf or two may be taken from the Indian law on the subject where it has also categorised pregnancy into two stages, states unmistakably a definite period for the first stage that is a period of 12 weeks and for the second stage it is more than twelve weeks but less than twenty weeks. A pregnancy can only be terminated with the consent of pregnant woman, or in case of minor and mentally ill person, with the consent of their guardians subject to the approval of doctors. In the first case (earlier than twelve weeks), a pregnancy can be aborted if, “the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.” At the first stage, opinion of one doctor for such determination is enough but at the second stage recommendation by the two medical officers of an authorised hospital is mandatory. Abortion carried out by unauthorised persons has been made punishable.
Most importantly, the essential term “grave injury” has been explained in the statute, for this purpose two explanations have also been added to avoid any confusion;
“Explanation I.-Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.
Explanation II.-Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman. (3) In determining whether the continuance of a pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account may be taken of the pregnant woman's actual or reasonably foreseeable environment.”
Conclusion:
It may be safely concluded that Pakistani law is more sophisticated and balanced than English and Indian law in substance but poor in exposition, lacking explanatory and procedural mechanism. The old restrictive approach of English law has been dropped after bringing the law in conformity with the injunctions of Islam. The State intervention has been restrained and powers to make decision regarding termination of pregnancy at the earlier stage (Isqat-e-Hamal) have not been vested with the doctor(s) but with the pregnant woman (although in a confused and ambiguous way) and the opinion of doctors in the circumstances appears to be advisory, not mandatory. Therefore, at this stage the right of determination should expressly and more clear terms be left with the pregnant woman and her family, who are in better position to find out the best solution in the afore-mentioned traumatic circumstances. However, in the case of Isqat-i-Janin (that is after ensoulment) the opinion of the doctors should be made mandatory and a comprehensive procedure must be laid down to avoid certain threats which might breakout either from the continuance of such (unwanted) pregnancy or by the unauthorised/illegal termination of the same. Further, in the cases of minor, mentally ill and unmarried women, if one gets pregnant for any reason (apart from application of criminal law--if it entails any punishment) it must be kept ‘confidential’ between the family of the ‘patient/victim pregnant woman and the staff of an authorised medical hospital, as it is being practised in UK and India because disclosure of the same can create irresolvable problems for the aggrieved family and society at large.
Moreover, the ambiguity in law regarding stages of pregnancy should be clarified in definite terms of weeks or days on the basis of available scientific research and it should be obligatory for incumbent doctors of an authorised hospital to perform an abortion when it is not opposed to law and the conditions compel the same, to protect the life and health of the pregnant woman. Meanwhile, the acts of medical officers done in good faith should be expressly protected. The term “necessary treatment” needs to be redefined on the line of Indian term “grave injury”. Whereas, the term “physical and mental health” also demands sympathetic rehabilitation, it should include something like Indian explanations to section 3. Certain more grounds for the termination of pregnancy should be provided to avoid confusion pertaining to the cases of rape, incest, foetal defects, future of existing child, and foreseeable environment of the potential child.
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