Monday 20 July 2015

Malawi Abortion Law Slightly Changed

  • The Future Legislation Proposes Grounds for lawful termination of Pregnancy
  • Termination of Pregnancy be done at certified service provider and service points
  • Any abortion outside proposed grounds remain criminal

Some of the Commissioners for the Abortion
Law Review 

The Special Law Commission on the Review On Abortion Law resolved and agreed that the law be liberalised (that is, conditional relaxation of the restrictions) as opposed to decriminalisation to cater for certain justifiable instances where termination of a pregnancy should be permissible.

“The position of the law is that abortion is illegal in Malawi except where it is performed to save the life of the pregnant woman through a surgical operation.” Said Justice Esme Chombo chairperson for the Special Commission at a pressbriefing on Friday night in the Capital city, Lilongwe

Justice Esme Chombo

“The Penal Code criminalises all such acts of procuring or assisting in the procuring of a miscarriage of a pregnant woman. Anyone found guilty of such offences is liable to serve a prison sentence ranging from three to fourteen years.” She said

Chombo then said on the basis of this recommendation, the Commission proceeded to identify the grounds to justifying the termination

Reviewed Law on recommends that, termination of pregnancy be performed only for certain justifiable instances; particularly to save the life of pregnant woman, or if there is malformation of the foetus which will affect its viability or compatibility with life as well as where the pregnancy is as a result of rape, incest or defilement.

Proposed Legislation on Abortion Clear On Conscientious Objection

The Special Law Commission on the Review On Abortion Law says the health-care providers should have the right to conscientious objection subject to the limitations.

Commissioners for Abortion Law Review 

Apart from touching on proposed grounds for lawful termination of pregnancies as well as proposed service providers and service delivery points, the newly proposed Legislation also set out recommendations for the health-care providers once they have ‘Conscientious Objection’ on termination of pregnancy.

Special Commission Chairperson Justice Esme Chombo, said the Commission observed that “principles of religious freedom” protect physicians, nurses and others who refuse participation in medical procedures to which they hold conscientious objections. In addition, she said, international and national law in most countries including Malawi (Section 33 of the Constitution), guarantees the right to freedom of conscience, religion, belief and thought.

“Patients as well as physicians may appeal to conscience in refusing treatment or procedures.” Said Chombo when delivering the findings and recommendations on Friday “Abortion remains one of the most morally and ethically sensitive issues in medicine and many doctors have opted out of performing terminations because they do not agree with the procedure.” 

However, the Commission still encourages certified health institutions and well trained health service providers who may refuse “on moral or religious grounds” to terminate pregnancy to find other ways of assisting the woman who deserve to have her pregnancy terminated.

“Based on this, the Commission found it necessary to address the issue of conscientious objection upon the revelation that sometimes it has been used outright to deny women access to legal medical services including termination of pregnancy and also because it is an internationally recognized human right for health care personnel.” Said Justice Chombo

Justice Chombo said, the Commission recommends that; if a health service provider refuses to provide legal abortion services having registered a conscientious objection, that provider must refer the pregnant woman to a practitioner who is willing to perform the abortion.

She also said health service providers, regardless of their religious or moral objections, have a duty to perform an abortion if the woman will suffer adverse health consequences if the abortion is not promptly carried out.

Furthermore, the commission recommends that service providers must provide women seeking to terminate a pregnancy with information on legal termination of pregnancy services and that it is only health service providers who are directly involved in the provision of abortion that may object to providing the procedure.

Commissioners for the Abortion Law Review 

The work of the special Law Commission on the Review On Abortion Law started in June 2013 following high prevalence of maternal mortality in Malawi and identified unsafe abortion as one of the major contributing factors to this problem. 

Unsafe abortion are common in Malawi particularly among poor women and girls due to restrictive law on abortion and the criminal sanctions that follow.

This special Law Commission was appointed under section 133 of the Constitution and the membership of the Commission comprised representatives from the Ministry of Health, the Judiciary, the Episcopal Conference of Malawi, Malawi Council of Churches, Muslim Association of Malawi, Traditional Leaders, the Law Society, Ministry of Justice and the Malawi College of Medicine.

The Commission’s findings and recommendations are contained in a Report which the Commission will submit to the Government. Further, contained in the Report is proposed legislation entitled Termination of Pregnancy Bill which the Commission commend to Parliament and the people of Malawi for enactment into law

Read the full report for the Review On Abortion Law

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