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Abortion Laws in African Commonwealth Countries

Published online by Cambridge University Press:  28 July 2009

Rebecca J. Cook  and
Bernard M. Dickens
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Extract

The problem of abortion is not primarily a problem of law. The law clearly addresses the social practice of abortion, it influences the means of practice and may, at its best, resolve the social consequences of abortion, but the problem of abortion is located in social experience and prevailing social philosophies, rather than in statute books and judicial decisions. Abortion lies at the heart of a number of concerns of particular sensitivity, but it can also have a severe medical and personal impact.

Type
Research Article
Information
Journal of African Law , Volume 25 , Issue 2 , Autumn 1981 , pp. 60 - 79
Copyright
Copyright © School of Oriental and African Studies 1981

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References

1 S. Kanani, “Medico-legal aspects of family planning in Kenya”, in U. U. Uche, ed., Law and Population Change in Africa, 1976, 102.

2 See Sebastian Poulter et al. Law and population growth in Lesotho, 1981,46.

3 See Mauritius Penal Code Ordinance (C. 195), art. 235, and L. J. Vallet, “Workings of abortion law in Mauritius”, in Fred T. Sai ed., A Strategy for Abortion Management (Report of an I.P.P.F. Africa Regional Workshop), 1978, 93.

4 24 & 25 Vict., c. 100, applicable to England and Wales and to Northern Ireland.

5 Statutes of India, 1860, No. 45.

6 Indian Penal Code, s. 58.

7 Indian Penal Code, s. 312.

8 See Bernard M. Dickens and Rebecca Cook, “The development of Commonwealth abortion law” (1979), 28 International and Comparative Law Quarterly 424, at 426, and generally Robert B. Seidman, A Sourcebook of the Criminal Law of Africa, 1966.

9 See n. 4, above.

10 See R. J. Cook and B. M. Dickens, Abortion Laws in Commonwealth Countries (World Health Organisation), 1979, 7.

11 A considerably earlier but less clear recognition of lawful abortion came in Canada, whose Criminal Code is based upon the English abortion law. In an unsuccessful extradition application in 1909, a woman was shown to have been aborted, but Lamont, J., of the Saskatchewan Supreme Court observed that “I cannot say that the operation…might not have been necessary to preserve her life, in which case it was not unlawful”: in Re McCready (1909) 14 C.C.C. 481, at 485.

12 [1939] 1 K.B. 687; [1938] 3 All E.R. 615.

13 The judge considered the case only in terms of the accused being a doctor, but he based his reasoning upon the necessity of the young girl's circumstances, to which suitable persons other than doctors may be able lawfully to respond in appropriate cases. For a recent House of Lords decision approving the role of nurses in abortion, see Royal College of Nursing of the U.K.. v. Department of Health and Social Security [1981] All E.R. 545, at 563.

14 (1938) 4 W.A.C.A. 133, an appeal from the Southern States, Nigeria.

15 [1959] E.A.L.R. 813, an appeal from the Supreme Court of Kenya.

16 (1971) High Court of Zambia (Criminal) HP.11/1971.

17 See n. 10, above.

18 Criminal Code, 1960.

19 Statutes of Kenya, C. 63.

20 See, op. cit., p. 61, n. 10, at 10.

21 The Termination of Pregnancy Act, 1972, Laws of Zambia, C. 554.

22 The Termination of Pregnancy Act, 1977, Statutes 1977, No. 29.

23 But see p. 61, n. 13, above.

24 Such as in governmental responses to a questionnaire circulated by the Commonwealth Secretariat in 1976; see note 10 above, Table I at 71–77.

25 It is interesting, however, that the Law Reform Commission of Papua New Guinea has recommended a new legal defence to criminal liability where a person (not causing death or grievous bodily harm) was acting under the influence of a traditional custom, perception or belief held by other members of the customary social group to which the person belongs; see David Weisbrot and Bruce L. Ottley, “Law and medicine in Papua New Guinea: licensing and liability of practitioners” (1977) 5 Melanesian Law Journal 175, at 224.

26 See F. Muslim, “Islamic law and the regulation of fertility levels in Kenya” in Law and Population Chang in Africa, at 140ff.

27 See, for instance, J. B. Akingbar and S. A. Gbajumo, “Procured abortion: counting the cost”, (1970) 7 Journal of the Nigerian Medical Association, No. 2, 1–12.

28 Dr. Nimrod Mandara, reported in Medical-legal issues: report of a combined medical-legal workshop, Malawi, 8–12 October, 1979 (Commonwealth Secretariat), 24–25, paras. 65, 69.

29 J. K. G. Mati, “Abortion in Africa”, in Family welfare and development in Africa, Proceedings of the I.P.P.F. Africa Regional Conference, I.P.P.F., 1977, 77.

30 The Kenya shilling in 1976 was approximately equivalent to one United States dollar.

31 Note 29 above, ibid.

32 C. Lwanga, “Infertility and sub-fertility in Africa”, in Family Welfare and Development in Africa, n. 29 above, at 92.

33 W. O. Chukudedelu, “Acute pelvic infection (P.I.D.)” (1975), 23 West African Medical Journal, No. 2, 70.

34 Chi. C. Bernard, D. A. Ampofo and S. Koetsawang, “Incomplete abortion in Accra and Bangkok University Hospitals 1972–73” (1974), 13 International Journal of Gynaecology and Obstetrics, 4.

35 See the discussion at the Conference on Medical and Social Aspects of Abortion in Africa, held in Accra in December, 1973, reported in Africa-Link, I.P.P.F., January, 1974, at 1.

36 For an interesting discussion of procedural problems of prosecuting abortion under a variant of the French Penal Code, see L. J. Vallet, p. 60, n. 3, above.

37 Quoted in Rebecca J. Cook, “Abortion law in Commonwealth Africa”, in Africa-Link, I.P.P.F., October 1975, at 10. For the original presentation, see Dr. F. T. Sai, p. 60, n. 3, above, at 12.

38 Roe V.wade (1973)410 U.S. 113; Doe v. Bolton (1973)410 U.S. 179.

39 The human right to decide the number and spacing of one's children was observed in the 1968 Teheran Proclamation on Human Rights; see United Nations (1968) Proclamation of Teheran, in Final Act of the International Conference on Human Rights, Teheran, 1968, United Nations A/CONF. 32/41.

40 The Hon. Puan Aziz, M.P., Deputy Federal Minister of Health of Malaysia, invoked unequal application of the law as a reason for addressing the nature of abortion laws: see his presentation, “The need for updating medical legislation on abortion in the Commonwealth”, Report on Proceedings of the 24th Commonwealth Parliamentary Conference, 1978, 92.

41 Morgentaler v. R. (1975) 53 D.L.R. (3d) 161.

42 Although doctors' powers of delegation of authority to conduct certain abortion-related procedures have been recognised under English legislation; see the Royal College of Nursing case, p. 61, n. 13, above.

43 The Medical-Legal Workshop held in 1979 in Malawi concluded that it is generally desirable for a jurisdiction to have at least a Developed law, either by legislation or through an authoritative executive statement of the scope of lawful abortion under existing law; see Medical-Legal Issues, p. 63, n. 28, above, at 34, para. 118 (a).

44 See, for instance, the Statement of Ethics issued through the Kenyan Ministry of Health in 1976, outlining the permitted conditions for medical termination of pregnancy.

45 Based upon an analysis of the laws of all Commonwealth countries: see Rebecca J. Cook and Bernard M. Dickens, “A survey of abortion laws in Commonwealth countries”, in Three Studies of Abortion Laws in the Commonwealth, Commonwealth Secretariat, 1977.

46 Quoted in Rebecca J. Cook, p. 65, n. 37, above.

47 This reflects an employment of abortion which would accord to the recommendation of the Law Reform Commission of Papua New Guinea: see p. 63, n. 25, above.

48 U.K. Statutes 1967, c. 87. Although enacted by the U.K. Parliament, the Act applies only to England and Wales and to Scotland; by s. 7(3), it does not apply to Northern Ireland.

49 See p. 62, n. 49, above, s. 4(c); see also s. 5(4) on certification by a magistrate.

50 Dr. F. T. Sai, “Report on the Conference on the Medical and Social Aspects of Abortion in Africa”, in A Strategy for Abortion Management, p. 60, n. 3, above, at 17.

51 For a brief history of abortion legislation, see Bernard M. Dickens, Abortion and the Law, 1966, 20–28.

52 See generally Dr. Mostyn P. Embrey, “Development in medical technologies for fertility regulation and their implications for medical legislation”, in Three Studies of Abortion Laws in the Commonwealth, p. 67, n. 45, above.

53 See the introductory words of the common origin of most laws in African jurisdictions, s. 58 of the English 1861 Act, quoted in the text following n. 9, at p. 61.

54 See Dr. Mostyn P. Embrey, no. 52, above.

55 Liberia's statute Title 26—Penal Law, provides in s. 16.1 subs. 6 that “Nothing in this section shall be deemed applicable to the prescription, administration or distribution of drugs or other substances for avoiding pregnancy, whether by preventing implantation of a fertilised ovum or by any other method that operates before, at or immediately after fertilisation.”

56 The Crimes Act, 1961 (N.Z. Statutes 1961, No. 43), S. 182A defines “miscarriage” as the destruction, death or premature expulsion or removal of an embryo or foetus “after implantation”.

57 See text following n. 9, at p. 61.

58 The 1979 Medical-Legal Workshop in Malawi concluded that “laws relating to approved contraceptive measures should be clearly exempted from the scope of laws relating to abortion”; see Medical-Legal Issues, p. 63, n. 28.

59 (1979) 26 L.R. 107.

60 [1975] A.C. 476.

61 Whether such personnel may act only under doctors' instruction or in a more independent capacity is a matter of policy for each jurisdiction.

62 It may be recalled, however, that the Advanced law of Zimbabwe appears not to accommodate a mental health indication, although mental conditions may clearly affect physical health; see p. 62, n. 22, above, s. 4(a).

63 See R. J. Cook and B. M. Dickens, p. 00, n. 0, above, at 93–98, and Rebecca J. Cook and Pramilla Senanayake, The Human Problem of Abortion: Medical and Legal Dimensions, l.P.P.F., 1979, 43–46.

64 See p. 61, n. 16, above.

65 See p. 62, n. 22, above, s. 10.

66 See the discussion in F. Le Poole-Griffiths, “The law of abortion in Ghana”, (1973) 10 University of Ghana Law Journal 103, at 123.

67 For a general review of potential functions of paramedical health personnel, see Dr. Francis M. Shattock, “Paramedicals in primary health care: medical-legal issues and alternatives”, in Medical-Legal Issues, n. 28 above, at 53, and for a full discussion, John M. Paxman, Francis M. Shattock and N. R. E. Fendall, The Use of Paramedicals for Primary Health Care in the Commonwealth, Commonwealth Secretariat, 1979.

68 The I.P.P.F. Africa Regional Workshop in 1978 noted that in an amended law on abortion “It may be advisable to seek a clause permitting ‘delegation to adequately trained health personnel’ and ensuring that…training is provided”; see Fred T. Sai, ea., A Strategy for Abortion Management, p. 60, n. 3, above, at 158.

69 See the Royal College of Nursing case, p. 61, n. 13, above.

70 See p. 62, n. 21, above.

71 Dr. C. G. Mhango and Dr. E. S. Grech, “Family planning programme and abortion laws in Zambia”, paper presented at the Conference on Surgical Contraception, Nyeri, Kenya, May, 1977, at 9 (sponsored by Pathfinder Fund).

72 The law of Zimbabwe, for instance, permits a doctor to abort a woman upon danger to her life or physical health in emergency, without conforming to the law's requirements on the use of approved facilities, provided that within 48 hours afterwards the doctor submits an appropriate report to the Secretary for Health; see p. 62, n. 22, above, s. 7.

73 See p. 62, n. 21, above, s. 2. Zimbabwe has an almost identical provision: see p. 62, n. 22, above, s. 2(1).

74 The 1979 Malawi Medical-Legal Workshop concluded that “Qualifications of persons authorised to perform abortions and the facilities to be used should be determined with reference to prevailing local circumstances … not insisting on standards unnecessarily made higher than those for other comparable medical procedures”; see Medical-Legal Issues, p. 63, n. 28, above, at 35, para. 118(f).

75 This is well illustrated in India's Medical Termination of Pregnancy Act, 1971 (No. 34 of 1971), included in Rebecca J. Cook and Bernard M. Dickens, op. cit., p. 67, n. 45, above, Appendix II, at 104.

76 Once the birth process of a viable foetus commences, whether spontaneously or by induction, abortion (procuring miscarriage) is no longer possible; nevertheless, late-term abortions, for instance by use of prostaglandin drugs, may simulate childbirth.

77 See p. 68, n. 48, above, s. 1(1).

78 P. 62, no. 21, s. 3(1).

79 Dr. C. G. Mhango and Dr. E. S. Grech.op. cit., p. 73, n. 71, above.

80 See the Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 251(4) and (6).

81 The Report of the Committee on the Operation of the Abortion Law (the Badger Report), 1977, see summary of findings 3(2) and 3(1)(a) respectively, at 30–31.

82 According to the World Health Statistics Annual, Vol. Ill Health Personnel and Hospital Establishments, World Health Organisation 1977.

83 Ibid.

84 See p. 62, n. 22, above, s. 5.

85 The 1979 Malawi Medical-Legal Workshop concluded that “Approval procedures for abortion, and also the scope of any third party veto, should be related to the woman's health care needs in her prevailing circumstances, and should not prejudice her welfare”: see Medical-Legal Issues, p. 63, n. 28, above, at 35, para. 118(h).

86 Under Britain's Abortion Act, 1967, the House of Lords has ruled that spouses (and therefore non-married fathers) have no veto power: see Paton v. Trustees of B.P.A.S. [1978] 2 All E.R. 987.

87 See Fred T. Sat, ed., A Strategy for Abortion Management, op. cit., p. 60, n. 3, above, at 158.

88 See part lV B (iv).

89 For a discussion of Commonwealth cases dealing with new legislation and its unforeseen implications, see Bernard M. Dickens and Rebecca Cook, op. cit., p. 61, n. 8, above, at 456–457.

90 Note 18 above, s. 67(2).

91 Note 19 above, s. 240.

92 Compare the 1973 ruling of the U.S. Supreme Court in Roe v. Wade, note 38 above, discussed in the text at that note.

93 See Ooko v.Republic, Civil Case No. 1159 of 1966, High Court of Kenya, unreported but discussed in Y. P. Ghai and J. P. W. B. McAuslan Public Law and Political Change in Kenya (1970) at pp. 437–440.

94 See.e. g.Madhwa v. City Council of Nairobi [1968]E.A.406.

95 Kenya Constitution, s. 82.

96 See for instance the requirement of Zambia's law that three doctors, including one specialist, approve each abortion, discussed in the text above between notes 77 and 79.

97 Compare the provisions of the Kenya Penal Code, note 19 above, ss. 158–160.

98 XIX International Legal Materials No. 1 (January 1980), pp. 33–45.

99 See 7 Commonwealth Law Bulletin (1981) 1475.

100 The full text of the Charter appears at ibid., pp. 1058–1068.

101 See text at IVA (ii) above.