FILE PICTURE SOURCE: Times of India
By Lina Jere
Biology dictates that in conventional circumstances, sexual intercourse will result in the pregnancy of a woman and eventually child birth. However, unplanned pregnancies do occur and women have made the decision to terminate the pregnancy. There are many reasons why a woman would make this decision. These reasons include, having a baby would interfere with work, school or other responsibilities;carrying the pregnancy to full term compromises the health of the woman; not being able to afford to have a child; not wanting to be a single parent or bring a child into a turbulent relationship; to prevent others from knowing one had had sex or became pregnant; or the pregnancy was resultant of a non-consensual sexual experience, like rape.
Abortion is a polarizing subject. Those who call themselves ‘pro-life’ say that intentionally ending a pregnancy is murder, although it may on very rare occasions be the best thing to do; and on the other side, those who call themselves ‘pro-choice’ say that intentionally ending a pregnancy is acceptable as a woman has autonomy over her body.
INTERNATIONAL HUMAN RIGHTS LAW
Women’s human rights include the rights to equality, dignity, autonomy, information, bodily integrity and respect for private life and the highest attainable standard of health, including sexual and reproductive health[1] . The right of a woman to make autonomous decisions about her own body and reproductive functions is at the core of the right to equality and privacy concerning intimate matters of physical and psychological integrity[2].
The Zambian Government has committed to fulfilling the sexual and reproductive health and rights of women by ratifying instruments of law including, the Convention on the Elimination of All Forms of Discrimination against Women which obligates the states parties to ensure “access to health care services, including those related to family planning”[3]; the International Covenant on Economic, Social and Cultural Rights which protects the right to the highest attainable standard of health[4]; the International Covenant on Civil and Political Rights which protects the right to life, and that high level of preventable maternal mortality violates this right[5]; and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, which makes reference to the right to sexual and reproductive health[6].
Further, the Committee on the Convention on the Elimination of Discrimination against Women Committee and the Working Group on the Discrimination against Women determined that the right to safe termination of pregnancy is an equality right for women[7] . The World Health Organisation has demonstrated that in countries where termination of pregnancy is restricted by law and or is unavailable, safe termination of pregnancy is a privilege of the rich, while women with limited resources have little choice but to resort to unsafe providers and practices[8]. However, sexual and reproductive health involves eliminating unsafe abortions and providing post-abortion care for all women irrespective of whether the abortion was lawful or unlawful.
ZAMBIA’S LEGAL FRAMEWORK
CONSTITUTION OF ZAMBIA, CHAPTER 1 OF THE LAWS OF ZAMBIA
Article 12(2) of the Constitution states that “(2) No person shall deprive an unborn child of life by termination of pregnancy except in accordance with the conditions laid down by an Act of Parliament for that purpose.”
The Act of Parliament that is referred to is the Termination of Pregnancy Act[9]. Termination of Pregnancy Act Chapter 304 of the Laws of Zambia. The Termination of Pregnancy Act provides that a registered medical practitioner may terminate a pregnancy where the following conditions are met[10]:
- The registered medical practitioner is accompanied by two other registered medical practitioners.
- All three medical practitioners are of the opinion that the continuance of the pregnancy would involve:-
- risk to the life of the pregnant woman; or
- risk of injury to the physical or mental health of the pregnant woman; or
- risk of injury to the physical or mental health of any existing children of the pregnant woman; or
- that 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.
The presence of the two other registered medical practitioners is not required where the procedure is necessary to save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman.
The Act further states that a medical practitioner cannot be forced to perform an abortion if that medical practitioner has a conscientious objection to the abortion, unless the procedure is necessary to save the life or to prevent grave permanent injury to the physical or mental health of a pregnant woman[11]. “Conscientious objection” means that a medical practitioner may refuse to conduct an abortion based on reasons of morality or conscience, like it is against their religious beliefs.
PENAL CODE ACT CHAPTER 87 OF THE LAWS OF ZAMBIA
The Penal Code Act[12] creates offenses related to circumstances where a pregnancy is not terminated according to the Termination of Pregnancy Act. It states thato
- Any person who aids a woman to terminate a pregnancy by any means is liable to imprisonment for fourteen years[13].
- Every woman who uses any means to terminate her pregnancy, or permits another to terminate her pregnancy is liable to imprisonment for seven years[14].
- Any person who supplies to or procures for any person anything knowing that it is intended to be used to terminate a pregnancy is liable to imprisonment for three years[15].
OBSERVATION AND WAY FORWARD
It can be observed that the Termination of Pregnancy Act makes abortion legal in limited circumstances, but inaccessible. Further, the Penal Code ascribes criminal liability to women who obtain illegal abortions. It therefore appears that Zambia is not entirely compliant with international law which protects the right of a woman to autonomy over her body and to have access to the safe termination of pregnancy. For Zambia to be compliant with international law, consideration should be given to-
It can be observed that the Termination of Pregnancy Act makes abortion legal in limited circumstances, but inaccessible. Further, the Penal Code ascribes criminal liability to women who obtain illegal abortions. It therefore appears that Zambia is not entirely compliant with international law which protects the right of a woman to autonomy over her body and to have access to the safe termination of pregnancy.
For Zambia to be compliant with international law, consideration should be given to-
- Amending the Termination of Pregnancy Act, by doing away with the requirement for the medical practitioner to be accompanied by two other medical practitioners;
- Amending the Termination of Pregnancy Act by doing away with the option for a practitioner to make a conscientious objection to carrying out the procedure. This will result in it being a legal duty;
- Amending the Termination of Pregnancy Act by placing a duty on certain professionals such as teachers, counsellors and medical practitioners to provide information on legal abortions in order for women to be informed about the availability of this service;
- Amending the Penal Code Act by doing away with the punitive sanctions against a woman who obtains an illegal abortion; and
- Developing a holistic approach to encouraging women to carry unplanned pregnancies to full term. Consideration should be given to: making adoption or fostering more appealing to the public; increasing availability and quality of state owned foster-care facilities; improving the social welfare system to give financial support to families that cannot afford to take care of a child; increasing access to sex education and sexual and reproductive health services; and increasing access to mental health services.
FOOT NOTES
[1] United Nations Human Rights Special Procedures, Working Group on the issue of discrimination against women in law and in practice, October 2017
[2] Articles 3 and 17 of ICCPR
[3] Articles 12 and 16
[4] Article 12
[5] Article 6
[6] Article 14
[7] United Nations Human Rights Special Procedures, Working Group on the issue of discrimination against women in law and in practice, October 2017
[8] United Nations Human Rights Special Procedures, Working Group on the issue of discrimination against women in law and in practice, October 2017
[9] Chapter 304 of the Laws of Zambia
[10] Section 3
[11] Section 4
[12] Chapter 87 of the Laws of Zambia
[13] Section 151
[14] Section 152
[15] Section 153