Abortion: Religion vs Feminism Debate
By Faizer Shaheid
For a long period of time abortion was proven to be an unending topic of debate and discourse with never a conclusive answer. The truth is abortion is a double-edged sword that seemingly gives and deprives at the same time. It almost always boils down to one common, fundamental and integral question that proponents and opponents never can quite agree on. When does life really form?
Of late, the topic has come under enormous debate, with a growing feminist movement strongly criticizing religious leaders who, had and have, openly purported to halt any change in the law in Sri Lanka, and attitude towards abortion. The intervention of religious bodies in the lawmaking process in the past has had more often a negative effect on the progress of society. In the subject of jurisprudence, one would often have witnessed the influence of divinity in the lawmaking process throughout the middle ages.
An extremely popular jurist who propounded the notion of natural law in the middle ages was Thomas Aquinas. He was a Friar and a Catholic Priest whose theological views had a tremendous influence on how laws were formed. He felt that everything in the terrestrial World was created by God, and as such all man-made law must have an unwavering conformity with God's law. As such, he observed that any man-made law that could not have parity with God's law should be immediately struck off, and if not struck off, then humans shall have the right to disobey such laws.
Despite the continuing significance of religious influence in the lawmaking process, the influence in itself has witnessed a decline since the advent and rapid rise of various human rights networks. The feminist movement has partnered with the human rights movements in order to secure a place for women. Although I do not fully endorse the feminist ideology, as an equalist, I believe that a man and woman ought to be considered equally before the law and ought to be guaranteed the same or similar rights in the eyes of the law. In stating that, I wish to iterate that formal equality is far more just than the substantive equality that feminists usually ride on.
On the topic of abortion, I wish to state that I am neither a feminist nor a religionist.
Be it as it may, abortion in Sri Lanka is mostly illegal under the Sri Lanka Penal Code. Section 303 of the Penal Code specifies that any person, who knowingly causes a pregnant woman to miscarry a child, or in other words, abort a child, may have to face a penalty of up to three years in prison and/or a fine. An exception is permitted if such an abortion is performed in good faith and with intention to save the life of the pregnant woman.
According to Section 304, if the offence of causing a pregnant woman to abort was done without her consent, he or she can be sentenced up to 20 years in prison. If an attempt to cause a woman to abort resulted in the death of the pregnant woman, that person is also liable to be imprisoned for a period of up to 20 years according to Section 305.
Any act which may prevent a child being born alive or causing a child to be born with deformity which may result in death will be punished with imprisonment up to 10 years. This is in accordance with Section 306 and Section 307.
Under these laws, a woman who on her volition chooses to abort the child will be treated with the same level of harshness. However, a woman in the early stages of pregnancy may be treated more leniently than a woman who is in a more advanced stage of pregnancy. Therefore, abortion is justified and permitted only in instances where the mother's life is at peril, in which case the law attaches greater value to the life of a mother than that of the child.
It is also important to note how the law in the Penal Code uses terms such as 'Woman with child' and 'quick with child' to distinguish between a woman who performs abortion during the early stages of pregnancy and during a stage of pregnancy where the foetus has properly developed and able to move. If the foetus is able to move, the law imposes graver punishments. This manner of interpretation depicts how the law recognizes the graver implications on the life of a foetus after it has been developed to an extent.
Under the general standards of policies on abortion, there are certain grounds on which abortion is permitted in different countries. Although abortion was mostly shunned, many countries have increasingly shifted their views on abortion and varied their laws on the basis of some grounds. Abortion laws vary on grounds of whether the life of the woman is at risk, to preserve physical wellbeing and health in general, to preserve the mental health, if the woman has been raped or if conceived through incest, and in foetal impairment, for economic and social reasons. In some countries abortion is available on request.
Over several decades of debate, almost all countries in the world permit abortion if there is risk of losing the life of the woman. Only South Sudan, Chile, El Salvador, Nicaragua, Dominican Republic, Montenegro and the Holy See do not recognize the right to abort a child in the event of risk to the mother's life. A United Nation's study titled, 'World Abortion Policies of 2013' indicates that this constitutes 97 per cent of the entire world.
Many of the countries also recognize the risks imposed on physical and mental health of the pregnant woman. Although they are considered on separate grounds, most countries that recognize physical health also consider the mental health and recognize abortion, just the same. However, mental health is considered to a lesser extent than physical wellbeing of the woman. Therefore, the percentages of countries that permit abortion on grounds of physical and mental wellbeing are 68 per cent and 65 per cent respectively.
Only 51 per cent of the countries recognize rape or incest as grounds to abort a child, and 50 per cent on the ground of foetal impairment. However, what is most important to note is that 30 per cent of the countries worldwide permit abortion on request. By 2011, the UN report suggests that, 71 per cent of developed countries had permitted / recognized abortion on request, while 16 per cent of the developing countries appeared to have not even come close to considering it. Countries such as Tunisia, China, South Africa, Singapore, Spain, France, Cuba, USA and Canada among others have all permitted abortion on request. It is also important to note that UK recognizes abortion under all circumstances, but refuses to permit abortion on the ground of rape or incest or on mere request.
Sri Lanka only recognizes abortion on the grounds of risk to a woman's life, and no other ground shall stand valid regardless of circumstances.
The law has remained unchanged to a large extent despite recommendations by the Medico-Legal Society of Sri Lanka (MLSSL). A study was performed in 1973, after which a recommendation was submitted to enlarge the number of grounds permitted for abortion. The MLSSL recommended that Sri Lanka ought to permit abortion on grounds of grave injury caused to a person physically and mentally, where pregnancy was a result of rape or incest and the child, if born, would suffer from severe deformities. However, the recommendations never materialized.
After 1973, the recommendations took a back seat, especially in considering the religious sensitivities of many of the Sri Lankans. However, the experts had constantly recommended the need to legitimize abortion on the aforementioned grounds. Especially, in view of the fact that the rate of fertility and population growth in Sri Lanka are considered to be growing. The current fertility rate is 2.1 children per woman and the population growth is roughly 1 per cent per annum. Although this rate is not a high rate, the rate of growth does not appear to be complementing socio-economic development.
The fact that a majority of unnecessary pregnancies have resulted from poorer families who have found difficulty in sustaining children effectively has proven to be a problem. Many such children have turned out to be school dropouts or have emerged as petty criminals. Whilst this is the case in lower income households, the higher income households have managed the problem more effectively.
Awareness among the educated has proven to be fairly successful. Therefore, the more affluent households usually resort to preventive measures with the use of contraception pills, and more often by the use of protection such as condoms to ensure protection from their sexual misadventures. However, in the event a pregnancy ensues, women from the higher income households have had little difficulty in terminating their pregnancies.
The World Health Organization (WHO) in its report on Sri Lanka recognizes that such women often visit a psychiatrist on a complaint of severe mental trauma with suicidal tendencies. The psychiatrists then tend to recommend an abortion to save the life of the woman, after which, the pregnancy is terminated in private by a qualified medical practitioner.
The report also recognizes that women from lower income households do not have the luxury of aborting a child legally using the free healthcare system in Sri Lanka, and cannot afford the expensive private healthcare.
Those from the lower income households therefore, often refer to 'back-door abortionists' under 'primitive and unhygienic conditions' which then result in 'high maternal mortality' and 'chronic ill-health'.
Prof. K. K. Karunathilake of the Social Science Unit of the Kelaniya University had recently claimed that an average of 658 abortions take place illegally on a daily basis. These statistics were revealed at a conference held at the Health Education Bureau. At the same conference, Consultant Obstetrician and Gynaecologist, Dr. Mangala Dissanayake also pointed out that 10-12 per cent of maternal deaths were a result of poorly performed illegal abortions.
For these reasons, the Government had pushed for legalizing abortion through the Justice Ministry and the Health Ministry. While recommendations were in order to enable abortion legally in the event of rape (Includes statutory rape) or incest and serious foetal impairment. Although the physical and mental wellbeing of the mother was not put forward in the recommendations, the legitimizing of abortions can indeed be considered a way forward.
While it is generally considered as to the conditions in which abortion should be permitted, the decision to abort cannot be vested entirely on the pregnant woman.
While feminists have consistently argued that a woman should have rights to her own body and all changes in her own body, a pregnancy is not a result of a woman's action alone.
Various arguments have been placed, with hard-line feminists even claiming that men appear to be stigmatizing the issue of abortion when attempting to dictate how a woman should use her body. If gender based discrimination were seen to be true, then the above is certainly a form of gender based discrimination.
In law for every pregnancy borne out of a marriage, the consent of the husband is mandatory, if the woman is to seek an abortion legally. The ruling in the case of Planned Parenthood v Casey becomes mandatory in the discussion of this topic. This is an American case where Courts deviated from the ruling in the case Roe vs. Wade, in stating that the State can regulate abortions in the first trimester or any point prior to the point of viability as long as it does not impose an undue burden on the woman and her right to seek an abortion. The problem with this ruling is it is central to the law and rights in the USA, which may not necessarily apply in every state.
The United Nations Population Fund (UNFPA) does not recommend abortion as a mode of family planning although each nation reasons differently based on their own principles and laws.
Pregnancy out of wedlock
The UNFPA looks into the area of abortion, with an aim of eliminating the need for it, through improved family planning. Therefore, it is reasonably argued that family planning is essential when considering an abortion, but should an abortion become necessary, the right to abort a child borne from marriage should only be permissible with the consent of a husband.
Sexual misadventures in this day and age are a common phenomenon and it is quite common for matters to occasionally get out of hand. Contraception pills and condoms are regularly advised, but on occasions, spontaneous cravings overrule the emotional wellbeing of a person, which then result in unforeseen complications. Regardless of what religions may preach, almost every person becomes an infidel whilst copulating.
Regardless of whether pregnancy was previously desired, the wellbeing of the family unit and the best interests of the child to be born must be taken into consideration when looking into the birth of a new child. As much as a child brings joy to a family, the socio-economic factors need to be considered over religious desires. The emotional ambivalence of the impregnated mother must first be stabilized prior to imposing religion on the woman. After all, a well brought up child was never the result of a mentally unstable mother.
However, in instances such as rape, incest or any pregnancy that is not borne out of wedlock, there can be no person who can legally bear responsibility of the child. As a result, it shall be the sole discretion of the mother in choosing whether or not a life needs to be borne from the pregnancy.
The only instance where the law may intervene is to prevent any sort of abortion after the foetus has been properly developed. While different countries regulate this period differently, the least a country may consider is the antepartum period of pregnancy which occurs between 24-26 weeks of the gestational age of the foetus. By this point, any abortion becomes too risky to perform and will impose health hazards on the mother and the child to be born. It is therefore, the responsibility of the law to prevent any such abortion after a certain period of time, unless abortion proves to be a lesser of the two evils.
While abortion is a topic that shall and will always be up for debate, most countries are growing to increasingly support family planning initiatives and assist persons with a desire to abort an undesired child. Sri Lanka needs to follow suit considering the socio-economic factors in the country, and the need to ensure the general health of the masses.([email protected]ve.com)
(The writer is a law tutor and an independent researcher of laws. He holds a postgraduate degree in the field of human rights and democratization from the University of Colombo and an undergraduate degree in Law from the University of Northumbria, United Kingdom)
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