Suzanne Ffolkes Goldson, Contributor
This article is a direct response to the Abortion Policy Review Advisory Group's final report (The Report) dated February 19, 2007.
The report makes certain recommendations, including repealing the relevant sections of the Offences Against the Person Act and substituting same with a civil law entitled 'Termination of Pregnancy Act' which states the conditions under which medical termination of pregnancy would be lawful.
Scope not yet settled
There is no doubt that Section 72 of the Offences Against the Person Act (The Act) criminalises "unlawful" abortions. The scope of what is a 'lawful' abortion is still not yet settled, even though The Report suggests that this question is settled by R v Bourne [1939] 1KB 687. The case involved a charge against a doctor who had performed an abortion on a young girl who had been raped. R v Bourne suggests the following exceptions to the legislation as it was then in the United Kingdom:
i) To save the life of the mother;
ii) To save the physical health of the mother;
iii) To save the mental health of the mother which could include but is not limited to rape or incest.
R v Bourne is a King's Bench decision (first instance) and has never been tested in any higher court neither in the United Kingdom nor in Jamaica. Jamaica is, therefore, not bound to follow this decision, although it is persuasive, given that we adopted the exact legislative provision criminalising 'unlawful' abortions. The ratio decidendi (reasoning) of the case has been criticised for its uncertainty as to scope and, therefore, it may well be, that if tested in a court of law in Jamaica, the courts would conclude differently.
Jamaica now has the opportunity to define what constitutes an 'unlawful' abortion. The further question is whether 'unlawful' abortion should remain a criminal offence or should only attract civil liability as is recommended by The Report.
Crimes being offences against the State are considered more reprehensible than civil wrongs, which are offences against individuals. Moral considerations have always informed the law, although many immoral acts are not considered criminal. As the morality of societies has changed over time, so have the laws. What has never changed is the emphasis of the criminal law on the preservation of life. Murder, manslaughter, infanticide, suicide pact and abortion are all criminal and seen as offences against the State or mankind.
The foetus, although not a "person in being" (until fully expelled from the body and capable of breathing), for the purpose of murder or manslaughter, is still recognised in law as a life worth preserving - refer to Attorney General's Reference [1997] 3 ALL ER 936. In The Report, there is an artificial distinction made between the foetus prior to 22 weeks and the foetus post-22 weeks (which I will call the 'viability' argument), as man has yet to answer the ever-present question of when life actually begins.
The well-known US Supreme Court case of Roe v Wade also makes this artificial and unfortunate distinction in justifying abortion on demand. It is ironic that in the United States of America, where abortion has been 'legalised', there are now new laws, which recognise the foetus as a "person in being" for the purpose of murder.
More recent cases include the cases of The People of the State of California v Scott Peterson and People v Davis where the conviction of murder of a foetus did not depend on viability of the foetus, and more recently, Flores v Texas and now, at the time of writing, the Bobby Cutts Jr case, where a former police officer has been convicted of the murder of his pregnant lover and her nearly full-term foetus. The question for the jury now is whether they will recommend the death penalty for the murder of a foetus. Also, there is currently a bill before Parliament in Canada to introduce similar foetal laws.
Arguments in favour of abortion are based on the fact that a woman has a right over her own body. But neither medically nor legally is the foetus a part of the woman's body. The foetus exists in the woman's body and is nourished by the woman. It has its own DNA, blood supply and may even have a different blood type. If this is accepted, the act of an abortion must of necessity be a criminal act, which offends humanity as distinct from the recommendation of The Report that it be a civil wrong, being a wrong merely against an individual, who in all likelihood, is unlikely to sue.
Mortality and morbidity rates
It has been suggested that there are high mortality and morbidity rates associated with illegal abortions. The statistics supplied by the hospitals (as stated in The Report), suggest that there were three such deaths in 2005. This maternal mortality rate is not, however, put in proper context. In 2004, for example, when there were 46,500 live births, there were 40.5 maternal deaths due to all causes. (http:unfpa.org/ profil/Jamaica.cfm) If there is this alarming ratio of maternal deaths to live births, involving women who want their babies, how then can there be the suggestion that the legalisation of abortions will be the panacea for a reduction in maternal mortality?
The high morbidity rate due to illegal abortions is also not stated in context. The statistics given are that there were 641 such patients admitted to the Victoria Jubilee Hospital in a six-month period in 2005. I understand that the figure of 641 admissions to Victoria Jubilee included fewer than 50 persons who were admitted because of complications of abortions performed by approved health facilities. The Report, therefore, may be misleading in this regard.
Unacceptable
There is no doubt that the high morbidity rate is unacceptable, but this does not make the case where there are no data provided on the high incidence of morbidity due to 'lawful' abortion or any other procedure in our public hospitals. Indeed, it was reported in 2006 that the Victoria Jubilee Hospital had to cancel critical procedures such as Caesarean sections daily, due to the fact that a device used to sterilise equipment had not been working, "thereby increasing the risk to patients".
In any event, according to the United Nations Statistics Division, Guyana and Barbados, which legalised abortion in 1997 and 1993, respectively, had an increase in their maternal mortality rates between 1995 and 2000, whereas the rates for Jamaica during the same period declined. This contradicts the simple view that the legalisation of abortion will automatically lower maternal mortality rate. I am informed by medical sources that factors that help to lower maternal mortality include better patient education, early ante-natal attendance and creation or improvement of medical services for high-risk pregnancies.
It is, therefore, recommended that:
1. Abortion be retained as a criminal offence and codified to reflect the current position under the Offences Against the Person Act with the limited exception of preservation of the life of the mother. The provision should be drafted to avoid uncertainty for medical practitioners and the public in general;
2. Programmes promoting prevention of unwanted pregnancies be given primary focus;
3. Programmes for counselling and support of mothers with unwanted pregnancies be developed, maintained and staffed appropriately.
Jamaica would be better served by emphasising the sanctity and consequent preservation of life rather than laws which directly or indirectly support the taking of life.
Suzanne Ffolkes Goldson is an attorney and lecturer in law.
