That elusive right to control your life and body – Abortion

By Prabodhini Munasinghe

The debate on abortion has once again ignited with the Government seeking the views of religious leaders on the proposed amendments to the “abortion laws”. The entire discussion is, however, disappointing as neither State nor society, let alone religious leaders, seem to care that abortion provides a woman with the means to control her reproductive system and make choices for her life.

It’s a shame that, at a time where women’s right to autonomy and choice are increasingly recognised across the world, Sri Lanka is still relying on an archaic law which criminalises abortion except in cases where the mother’s life is in danger (Section 303 – 306 of the Penal Code). It is a tragedy that the amendment to permit abortion at least in cases of rape, incest and foetal abnormality has been tried and failed since 1995.

The issue of abortion was first debated in Parliament, ironically, on the announcement by the then Minister of Justice that he deleted in its entirety the section which sought to legalise abortion in cases of rape, incest and foetal abnormality. The paternalistic view of the legislators were apparent throughout the debate, where those who favoured abortion did so only to “protect” the “vulnerable and weak woman” and those who opposed it did so bearing the view that women could use this as an excuse to conjure up all manner of conniving activities and of course religious conviction (Abeyesekera, Abortion: Unfinished Business, Reproductive Health Matters, Vol. 5, No. 9, (May, 1997). 

The debate went so far as to label as indecent a woman who seeks an abortion and urged the house “not to give protection to that indecency” (Abeyesekera, Abortion: Unfinished Business, Reproductive Health Matters). An amendment was re-attempted in 2013 based on a report of the Law Commission and yet again as recently as in 2017 where the proposals did not go beyond the cabinet. 

Crime against State – Not. A right – Yes!

How can a woman’s desire to control how her own body’s function be a “crime against the State”? Should a woman be dictated by the norms of perceived morality and religious convictions of others and so be rendered paralysed with regard to control over her own bodily functions, especially her reproductive system? Should the woman be victimised and discriminated against merely because nature configured her body to carry and nurture offspring?

The UN Special Rapporteur on “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health” in his report (A/66/254, 2011) observes that criminalising abortion impedes a woman’s decision making power over her own reproductive health and this violates the woman’s dignity and autonomy.

The fact is, the question should not even be whether abortion is required because of lethal foetal abnormalities or because the pregnancy was due to rape or incest. The point is that elective abortion is essentially and simply a woman’s basic human right. A decision and an act she takes within the realm of her privacy, exercising her autonomy. Carrying a foetus and nurturing it to be born a child is exclusively the work of the woman’s body and therefore she alone has the right to decide if her body will do that work. 

Apart from her right to control her body’s function it is also her right to make decisions on how she wants to live her life. Pregnancy and bringing up a child affect every aspect of a woman’s life – social relationships, economic capacity, education, her career and ambitions, and her quality of life. 

Where a woman is forced to carry an unwanted pregnancy to full term and has that child thrust upon her for life, the woman also suffers mentally and sometimes physically her entire life. As such, given that the woman’s body nurtures the foetus and the woman has to suffer the consequences of an unintended pregnancy, it is her right to decide whether she will have a child or not. It is not a matter for State, religion or morality. 

The right to abortion not only recognises the woman as a human being with decision making power and autonomy over her body, but it also feeds the protection of many related fundamental rights such as the right to be free from torture, inhuman and degrading treatment, and the right to be free of discrimination (both of which are constitutional guarantees under the Sri Lanka Constitution) as well as the right to privacy, and the right to healthcare.

Right to be free of discrimination and right 

to healthcare

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), to which Sri Lanka is a party, calls for the elimination of discrimination against women in healthcare including in matters pertaining to family planning (Article 12, CEDAW). Abortion for women, where the pregnancy is unwanted, becomes a form of family planning whether they do not want any more children, do not want a child at that point, cannot afford to have any more children, or do not want children at all. 

Furthermore, to criminalise abortion or attach conditions to it is essentially treating the procedure of abortion as different to other medical procedures available to a human being regarding their health and reproductive system. This in itself is discrimination. 

According to Article 1 of CEDAW, denying a woman the opportunity to exercise her fundamental freedoms and human rights on the same platform as a man “is discrimination against women”.  A woman should be at liberty to make an informed decision about her body and health and it is her accompanying right to have access to the relevant medical procedures. Regulating the woman’s access to such medical procedures assumes her of being incapable of making decisions for herself, rejects the concept of the woman as a free human being having autonomy over her body, denies the woman the opportunity to control her life, and is clear discrimination against women with regard to healthcare. 

It is also noteworthy in this context that Article 12 of the Constitution of Sri Lanka guarantees protection from discrimination based on sex. Furthermore, CEDAW Committee’s General Recommendation 24 of 1999 on Women and Health recognises that discrimination against women exist where there are no health services to cater to health needs specific to women and/or when the State refuses to provide reproductive health services which are specific to women. 

Right to be free of cruel, inhuman or degrading treatment

It is an undeniable fact that the woman has to suffer the effects of an unwanted pregnancy, more so where the cause is rape, incest or congenital foetal abnormality. This has long-term impacts on the woman’s emotional wellbeing, mental health as well as the economic and social aspects of her life. 

It was held in V.D.A v Argentina (CCPR/C/101/D/1608/2007) that denying a mentally impaired minor girl access to abortion of a pregnancy which was a result of rape and thereby forcing her to resort to illegal abortion causing her immense mental distress amounted to cruel, inhuman treatment. 

In KL v Peru (CCPR/C/85/D/1153/2003) the UN Human Rights Committee held that the mental trauma and depression the applicant had to endure as she was forced to carry into full term a foetus with lethal abnormalities all the while conscious of the fact that the child will die after birth and also having to witness the death of the child four days after birth whilst still breast feeding amounted to cruel, inhuman, or degrading treatment. 

The recent case of Siobhan Whelan v Ireland (CCPR/C/119/D/ 2425/2014) held that the mental trauma suffered by the applicant in having to seek the abortion of a congenitally abnormal foetus outside of Ireland, since Ireland has criminalised abortion except to save the life of the mother, amounted to cruel, inhuman or degrading treatment. 

Article 11 of our Constitution guarantees freedom from torture, cruel, inhuman or degrading treatment while Sri Lankan jurisprudence has accepted that torture is not defined by physical pain alone but mental agony also amounts to such treatment (SCFR 578/2011, SCFR 257/93). 

It is no secret that, in Sri Lanka, despite abortion being illegal, many women still seek abortions which are performed under septic conditions simply because legal and safe procedures are unavailable. The mental and physical suffering that a woman undergoes after these septic abortions and lack of aftercare (women are hesitant to seek post-abortion care due to stigma and fear of the law) clearly falls within the ambit of cruel, inhuman or degrading treatment by denying her access to healthcare.

Privacy

Human dignity forms the foundation of all rights afforded to human beings. The freedom to take decisions on choices an individual believes best for his/her life, without State interference, forms the foundation of dignity and privacy is a core component which ensures that each individual can exercise this very basic right (Justice K.S. Puttaswamy and Anr v Union of India and Ors, Writ Petition (Civil) No: 494 of 2012).

The matter of taking decisions with regard to one’s body’s functions, children and reproductive system are matters exclusively within an individual’s private domain and personal space. It is as private a family matter as the decision on whom to marry and if one will marry at all. As such, the State cannot arbitrarily impose itself on a woman’s private life taking decisions on behalf of her reproductive system and life (Siobhan Whelan v Ireland CCPR/C/119/D/ 2425/2014 and KL v Peru CCPR/C/85/D/1153/2003).

In fact, the US Supreme Court in its seminal decision in Roe v. Wadeheld that the right to privacy included a woman’s right to seek an abortion. The truth is that, a woman’s decision on how many children she will have, how she will space the children and whether she wants her reproductive system to bear children at all is her personal matter. Neither law nor religion nor societal perception of morality should interfere with that very private matter. We do not find laws criminalising adultery, even though it attacks the very core of moral values related to family and society, do we? 

Conclusion

Prof. Sujeewa Amarasena, during his recent meeting with religious leaders, stated that on average 600 to 1,000 illegal abortions are performed daily in Sri Lanka (http://www.dailymirror.lk/article/Abortion-Medical-doctors-brief-religious-leaders-136652.html).

On a very basic level, irrespective of women’s rights and irrespective of sanctions imposed by law, clandestine abortions will continue to be performed and the need for women to resort to abortions will not miraculously disappear. Let us not forget that these abortions put the mothers’ lives at risk and at times leave them with permanent physical injuries and/or mental trauma or even lead to death.  However, despite these risks, women still continue to seek illegal abortions because it is a basic health need and a natural desire to take control of their body and lives.

This is not even a matter that needs to be discussed with religious leaders! Why should a woman’s manner of controlling her reproductive system be of concern to religious leaders, or State or society? It is as real and as necessary as any other medical procedure but the difference is, it is required only by women.

It is in fact the duty of the State to ensure that women have safe access to their specific healthcare needs. By denying a woman access to abortion the State subjects her to cruel inhuman and degrading treatment, discriminates her for being a woman with regard to healthcare services, and denies her of very basic human rights such as autonomy, dignity, and bodily integrity. 

The responsibility of the State is not to be the moral police but, to provide access to healthcare services required by women and to provide them with the opportunity to live their lives as they wish. Neither state nor individual religious beliefs nor perceptions of morality should regulate the woman’s desire to live her life in dignity simply because her physical makeup is different to that of the man.

[The writer, LL.B (Hons) Leeds, LLM (HKU), is an Attorney-at-Law, Barrister (of Lincoln’s Inn).]