September 2006 Volume 40, Number 3 GHANA MEDICAL JOURNAL OVERVIEW OF THE LAW AND AVAILABILITY OF SERVICES IN GHANA

R.A.S MORHEE AND *E.S.K. MORHEE1 Faculty of Law, Kwame Nkrumah University of Science and Technology, Kumasi, Ghana and 1De- partment of Obstetrics and Gynaecology, Komfo Anokye Teaching Hospital, Kumasi, Ghana.

SUMMARY this form of behaviour with the aim of preventing Introduction: In Ghana remains a its occurrence and to deter people with like minds major public health problem despite apparent lib- from indulging in such a practice. History how- eralization of the law on abortion over two dec- ever, shows that abortion is a fundamental human ades. The contention is that the current law on behaviour that has been practiced in all cultural abortion makes enforceability difficult and leaves settings and that no level of restrictive laws has 1,2 room for untrained personnel to engage in danger- succeeded in controlling it. Thus when a woman ous abortion procedures and that there is need for decides to end an unwanted pregnancy she will law reform. often go to extreme length to do so, regardless of Objectives: To bring into focus how the current whether the procedure is safe or legal and as long law affects the availability of safe abortion service as there is unwanted pregnancy abortion will be a in Ghana and to bring out suggestions that may be fact of life. Unsafe abortion accounts for at least useful in future amendment of the law. 13% of global maternal mortality that is dispropor- 3,4 Methods: Using the information gathered from tionately high in Africa Most of these deaths as literature review the current law on abortion in well as the long-term complications of unsafe Ghana and relevant sections of the criminal code abortion are preventable through improved access were critically analyzed from medico-legal per- to effective family planning methods and contra- spective. ception to reduce the incidence of unwanted preg- Findings: Since 1985 the Ghanaian law on abor- nancy, post-abortion care and provision of safe tion has changed from its preoccupation with pro- abortion services. Besides the health complications hibition and punishment towards liberalization of of unsafe abortion the socioeconomic cost is so abortion but there has been delay in policy formu- high that in some centres in developing countries, lation and implementation to translate the law into treating abortion-related complications may con- services. Hence safe abortion services on medico- sume up to 50% of hospital budgets and resources, social grounds as permitted by the law are not including medical staff time, medicines and sup- 5 readily available in national health institutions. plies Some aspects of the law still appear implicit and th may hamper implementation of safe abortion ser- Until the second half of the 20 century abortion vice in the country. was illegal in most countries and was associated Conclusion: For clarity there is need for more with high illegal and unsafe abortion rate and amendments in the law in order to regulate abor- correspondently high maternal morbidity and mor- 6 tion and to enhance the right of the woman to tality. Recent years have seen the liberalization of make a choice on her own. There is also the need abortion laws in almost all countries of the Euro- to expedite action on development policy and pean Union, the United States and Canada. This standard guidelines for practitioners. together with better and wide spread promotion and use of contraceptives led to rapid decline in Keywords: Unsafe Abortion, Legal abortion the rate of unsafe abortion and its associated mor- 2,7 tality in the developed world. It has been ob- INTRODUCTION served that in many developing countries safe Unsafe abortion is a major public health problem abortion services are not available to the full extent in developing countries where abortion is re- permitted by law. In Ghana, despite the amend- stricted by laws which seek to prevent and punish ment of the law on abortion in 1985 to broaden the indications for legal abortion, unsafe abortion re-

* Author for correspondence

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September 2006 RAS Morhee and ESK Morhee Law on abortion mains a major public problem and a leading cause or consent to be administered to her any of maternal deaths in the country. It also causes a poison, drug or other noxious thing or significant morbidity among women in reproduc- uses any instrument or other means what- tive age. 8,9 soever; or b. any person who— It is important to note that the translation of the (i) administers to a woman any poison, law into services requires enabling policy formula- drug or other noxious thing or uses tion and implementation which in turn depend any instrument or other means what- heavily on the clarity of the law.10 The contention soever with intent to cause abortion however, is that the current law on abortion in or , whether or not the Ghana makes enforceability difficult and leaves woman is pregnant or has given her room for untrained personnel to engage in danger- consent ous abortion procedures and that there is the ne- (ii) induces a woman to cause or consent cessity and pressing need for law reform. This to causing abortion or miscarriage; overview is aimed at bringing into focus how the (iii) aids and abets a woman to cause current law affects the availability of safe abortion abortion or miscarriage; service in Ghana and to make suggestions that may (iv) attempts to cause abortion or miscar- be useful in future amendment of the law. riage; or (v) supplies or procures any poison, METHODS drug, instrument or other thing know- Extensive literature review was done by hand ing that it is intended to be used or search of relevant books and journals and by elec- employed to cause abortion or mis- tronic search from web sites on the internet using carriage; shall be guilty of an offence words like ‘Abortion, policy and the law’, ‘Trend and liable on conviction to impris- of abortion laws’, ‘unsafe abortion in Ghana’, ‘ma- onment for a term not exceeding five ternal mortality and abortion in Ghana’. Critical years. analysis of the law, as stated in the 1999 revised version of the Consolidated Criminal Code of the 2. It is not an offence under section (1) if an Republic of Ghana, 1960, Act 29 was made to find abortion or miscarriage is caused in any of the out how it promotes or hampers establishment of following circumstances by a registered medi- safe abortion units in the country. The current cal practitioner specializing in Gynaecology Ministry of Health Reproductive Health Policy on or any other registered medical practitioner in unsafe abortion was reviewed in relation to the a government hospital or a private hospital or law. Reference was made to the law on abortion in clinic registered under the Private Hospital other jurisdictions particularly the current UK law and Maternity Home Act, 1958 (No. 9) or in a since the original in Ghana was fun- place approved for the purpose by legislative damentally based on the old British statute, ‘the instrument made by the Secretary: Offences against the Person Act of 1861’. Discus- a. where pregnancy is the result of or sions were made based on the authors’ understand- defilement of a female idiot or and ing of the law as well as the World Health Organi- the abortion or miscarriage is requested zation recommendations on the provision of safe by the victim or her next of kin or the abortion and the global trend of liberalization of person in loco parentis, if she lacks the abortion laws. Other relevant sections of the capacity to make such request; criminal code are also discussed. b. where the continuance of the pregnancy would involve risk to the life of the preg- RESULTS nant woman or injury to her physical or The Current Law on Abortion in Ghana mental health and such a woman consents In Ghana abortion is a criminal offence regulated to it or if she lacks the capacity to give by Act 29, section 58 of the Criminal code of such consent it is given on her behalf by 1960, amended by PNDCL 102 of 1985. It states her next of kin or the person in loco par- that:11 entis; 1. Subject to the provisions of subsection (2) of c. where there is substantial risk that if the this section child were born it may suffer from or a. any woman who with intent to cause abor- later develop a serious physical abnormal- tion or miscarriage administers to herself ity or disease.

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September 2006 Volume 40, Number 3 GHANA MEDICAL JOURNAL 3. For the purposes of this section Abortion or miscarriageClearly, means the pre-Act takes the stance that human life mature expulsion or removal of conception from thebegins uterus ator conception womb and seeks to protect the fetus. before the period of gestation is completed. Thus according to the law once a woman con- ceives or becomes pregnant, the said pregnancy, The Policy and Availability of Safe Abortion right from conception till the foetus is born, cannot Service in Ghana be terminated except under the stated circum- Over the years the reproductive health policy of stances. Ghana on reduction of unsafe abortion only dwelt on promotion of family planning, contraception Definition of abortion or miscarriage and post-abortion care but not provision of safe The definition of abortion or miscarriage as stated abortion within the confines of the law as recom- in the Act seems to depart from the generally ac- mended by World Health Organization12. However cepted medical definition of abortion as ‘termina- termination of pregnancy to save the mother’s life tion of pregnancy before viability’, that is the ges- in cases of serious medical conditions like hyper- tational age at which the foetus is capable of sur- tensive disorders, renal failure, etc. and obstetric viving as an independent entity. Although a vague emergencies like acute haemorrhage in pregnancy concept World Health Organization put viability at has been available in virtually all public and pri- 24 weeks gestation and this has been used by most vate hospitals in Ghana. Termination of pregnancy developed countries where abortion is permitted on medico-social grounds as indicated in the cur- on wider grounds including socio-economic rea- rent law is, however, not readily available in na- sons or on request. In the West African sub-region tional health institutions in the country. Such ser- viability has been pegged at gestational age of 28 vices are available in some private institutions weeks, from the last menstrual period. Hence, ter- especially in urban centres. As a result of illiteracy mination of pregnancy before 28 weeks is consid- and social deprivation many women in Ghana do ered an abortion in West African countries includ- not know their legal rights to safe abortion. There ing Ghana. It is however, important to note that the is also anti-abortion social stigma and for many, definition as given is for the purposes of the sec- safe abortion is cost-prohibitive since the service tion 58 of criminal code which seeks to give pro- has been left in the hands of a few private practi- tection to the foetus till the onset of labour when tioners who charge exorbitant fees. Consequently the gestation is presumed to have been completed. legal abortion is only available to wealthy and In labour the foetus is protected by sections 60 and educated women. Thus although the law criminal- 61 of the criminal code till the foetus is completely ises abortion but gave quite liberal grounds on brought forth alive when he or she becomes a per- which legal abortion may be permitted, unsafe son (section 66). Thus the criminal code seems not abortion remains a major cause of maternal mor- to have offered the foetus the right of a person and bidity and mortality in Ghana13,8,14,15,9. seeks to indicate that begins at the time of complete delivery of the foetus from the Following the inclusion of ‘provision of abortion’ mother’s body. This however, cannot be applied in the reproductive health policy of December, when the gestational age is less than six months 2003 the Ministry of Health has taken up the chal- whether the baby is born alive or dead. This may lenge to have the policy implemented within the be an attempt by the criminal code to put viability confines of the current law and service protocols at six months. Thus the body of babies brought are in advanced stage of development. forth at gestational age less than six months could be disposed of without committing an offence of DISCUSSION concealment of the body or birth of a child [sec- The legal status of abortion is not necessarily the tion 62 and 63 (3)]. However good clinical prac- most important factor determining availability of tice advocates that such babies be shown to the 17 safe abortion services. Other equally important parents if they so wish. For clarity, there is the factors include the national policy, the attitude of need to change the definition of ‘abortion or mis- the health professionals, the public and socio- carriage’ in the Act to bring it in line with standard cultural norms of the country. Considering the dire Obstetric definition. complications of unsafe abortion in Ghana, major- ity of doctors do not have negative attitude to- Gestational age limit wards making abortion safe. Most medical practi- In Obstetric practice pregnancy could be inter- tioners in Ghana are aware of the law on abortion rupted at any gestational age to save the woman’s and most of them think that the law lacks clarity in life. Thus the Ghanaian law seems to allow ‘thera- some of its provisions16. peutic abortion’ and therefore sets no limit to the

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September 2006 RAS Morhee and ESK Morhee Law on abortion gestational age at which pregnancy could be law- Bourn has explained that the doctor must not wait fully terminated. In absence of appropriate policies until the mother is in danger of immediate death on abortion this could be exploited by an abortion- before he performs the procedure. It is enough if ist to perform the procedure even in the advanced on reasonable grounds and with adequate knowl- stages of pregnancy with very serious maternal edge and in good faith he comes to that decision. complications. This allows the conclusion that Hence abortion could be permitted where the con- Ghanaian law compared with similar legislations tinuance of the pregnancy would pose greater dan- from other jurisdictions seems to be very flexible ger to the woman than termination of pregnancy. and gives abortionists a great deal of protection. It Thus in serious medical and obstetric complica- is clear that there may be the need to amend the tions the grounds for legal abortion is clear to most law on abortion so as to set a limit to the gesta- medical practitioners and as stated above such tional age at which safe abortion could be carried services are available in all public health institu- out. Inspiration could be drawn from the current tions including mission hospitals in Ghana. Under British legislation in which legal abortion is only such conditions the decision to terminate the preg- permitted before the 24th week of amenorrhea ex- nancy to save the mother’s life is taken in good cept in some circumstances. faith by the clinician responsible for the care of the woman and is taken with an informed consent of It is worth noting that as the law becomes more the woman as stated in section 67 (2) of the crimi- liberal safety of abortion becomes paramount and nal code. there would be the need to set a limit to the gesta- tional age at which safe abortion may be permit- Again the law does not specify when a pregnancy ted. There would therefore be the need for the could be said to be injurious to the physical and medical and legal experts in the sub-region to take mental health of a woman neither does it explain a look at the survival of preterm babies and the what it means by physical and mental health, and safety of late , especially between 24-27 therefore varying interpretation could be given. weeks so as to redefine viability for the sub-region Threat to mental health could mean psychological in conformity with the existing laws and standard distress caused by any factor that makes pregnancy Obstetric practice as well as WHO definition of difficult to carry. Some of the common factors viability. found in Ghana include unstable relationship with the male partner, career development, poverty, Grounds on legal abortion lack of social support, the need to care for other The law acknowledges that there are certain cir- young children in the family, health problems, the cumstances under which abortion may be allowed diagnosis of foetal abnormalities, fear of parents, or is legal. Critical analysis, however, indicates and pregnancy as a result of rape or incest.15,18 that of some of the permissive provisions in the Since the level of risk or the threat to the physical law lack clarity with respect to offering safe abor- and mental health of the woman is not clearly tion services in the country. For instance, that stated, the law seems to allow termination of preg- abortion may be permitted ‘where the continuance nancy on much broader grounds than most practi- of the pregnancy would involve risk to the life or tioners think and also seems to give room for physical and mental health of the pregnant smart but untrained personnel to engage in dan- woman, when viewed in broader perspectives gerous abortion procedures. It is therefore com- raises a number of questions that leave doubt in mendable that service protocols and standards are the minds of medico-legal practitioners. Every being developed by the Ministry of Health to stan- pregnancy poses some risk to the health and the dardize abortion in the country. However, there is life of the woman. One then wonders what critical need to spell out the scope of physical and mental level of risk is being referred to in the Act at which health being referred to in the Act for easy imple- such a crucial decision could be taken to terminate mentation. Probably the courts could help in this pregnancy. Although section 67 (2) of the criminal regard; taking cognisance of the fact that interpre- code stated that such a decision should be taken in tation of laws also depends on constitutional pro- good faith and without negligence, which presup- visions. poses that the decision should be in the best inter- est of the patient the provision is implicit and sub- Also not clearly stated is the question of who de- ject to variable interpretation and therefore leaves termines whether a pregnancy threatens the life or room for the abortionist to operate and may make physical and mental health of a woman. Is it de- it difficult for policy formulation and implementa- termined by the medical doctor or the patient her- tion. Of course, the land mark English case of R v. self? Can the woman for instance walk into a pub-

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September 2006 Volume 40, Number 3 GHANA MEDICAL JOURNAL lic hospital and request for such a procedure, based These exceptions, however, raise certain questions on the fact that in her opinion the pregnancy is about the time and abortion is to be performed. injurious to her mental health? What about a Could a medical officer, based on these circum- school girl who suddenly finds herself pregnant? stances go ahead and perform the procedure when Could she also request for the procedure based on the ‘victim’ reports at the hospital and informs the the fact that the continuance of the pregnancy medical practitioner of the offence and demands an threatens her mental health because she is not psy- abortion or should the medical officer wait until chologically prepared for it and more so she would the guilt of the accused has been established in the drop out of school? The fact that the Ghanaian law court? These questions arise because the accused is does not spell this out presupposes that like any usually innocent until proven guilty and moreover medical treatment the decision could be arrived at some rape charges made are quite unfounded and by patient and her doctor after adequate counsel- are made for quite different motives. Rape and ling as required by section 67 (2) of the criminal defilement cases still take a long time for judgment code. In judging whether or not abortion could be to be given in our courts. Obviously, if the victim detrimental to the physical or mental health of the has to wait that long, then the legal provision pregnant woman, account should be taken of the would be useless because she would have carried woman’s actual or reasonably foreseeable envi- the pregnancy beyond the time of safe abortion or ronment thus her whole lifestyle, home and rela- to term and might have even delivered the baby tionships should opened up for thorough examina- before any such verdict is given. tion so that right decision could be taken. For a doctor to do this effectively there would be the The importance of the law allowing abortion when need for him or her to be trained appropriately there is substantial risk that the child to be born depending on the available policy and standards. may suffer from or later develop a serious physical In other jurisdiction, like the United Kingdom, the abnormality or disease is self- evident since no- law specifies that such a decision must be taken in body is happy about caring for a seriously handi- good faith by two doctors who must issue a certifi- capped child. With the advancement in medicine, cate of opinion. This approach is good but cannot pregnancies with foetal deformities that are not be easily employed in most developing countries compatible with life are terminated after adequate due to lack of trained medical practitioners, par- counselling of the parents and such services are ticularly in rural settings. available in most hospitals in Ghana. The main problem with implementing this provision is the The exceptions for rape and defilement are under- ability to determine the level of the foetal deform- standable, especially, since these are violent acts ity for which legal abortion is permitted. This usually committed without the consent of the vic- bring into fore the ethical dilemmas of prenatal tim and it is assumed that the victim of such an act diagnosis and therapeutic abortion. Appropriate would experience psychological distress in carry- policies will address most of the anticipated diffi- ing the pregnancy and bringing up a child of such culties in implementing this provision in any fu- a union. With the issue of incest, though many ture safe abortion programme. cases reported seek to show lack of consent, there could be situations where consent may be given. Other restrictions But it is clear that since such an act is illegal and The law is very specific about the kind of persons abhorred by society, children of such a union may allowed to perform abortion and the place where not be accepted and therefore, the choice is given legal safe abortion could be performed. However to the woman to decide to have an abortion or not. the provision ‘any other registered medical practi- Rape, defilement, carnal knowledge of a female tioner’ gives the connotation that any medical idiot and incest are all criminal offences under the practitioner is allowed to perform abortion. It is Ghanaian criminal code. It is worthy to note that however, well known that not every registered the provision covers only defilement of a female medical practitioner has been trained to perform idiot but section 101(i) of the Criminal code makes abortion safely. Such a provision therefore gives it an offence to defile or have carnal knowledge of protection for untrained medical practitioners to any child below sixteen years of age. Such chil- engage in dangerous abortion procedures. Again dren are capable of becoming pregnant as a result insistence that only medical practitioners be al- of defilement but have not been covered by the lowed to carry out termination of pregnancy could Act. This may be considered a serious omission in hamper availability and accessibility of safe abor- the code and needs to be corrected. tion service because in most rural towns and vil- lages where unsafe abortion takes place there are

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September 2006 RAS Morhee and ESK Morhee Law on abortion no doctors. The South African statute for instance For clarity there is need for more amendments in allows abortions before 12 weeks to be done by the law in order to regulate abortion and to en- trained midwives. There is therefore the need to hance the right of the woman to make a choice on clarify the law and amend this part accordingly so her own. There is also the need to expedite action that anyone who engages in abortion should be on development policy and standard guidelines for appropriately trained. Furthermore, the possibility practitioners. of using medical assistants and midwives could be explored as in the post-abortal programme already One may be tempted to argue on moral grounds in place. that liberalizing abortion laws would pave the way for increase in the rate of abortion but data shows The Act explicitly indicates that in all cases the that countries with developed access to safe and woman must give her consent. In the event that legal abortion and good contraceptive services her consent cannot be readily obtained, then such have low rate of unsafe abortion whereas in those consent could be given on her behalf by her next parts of the world where abortion remains prohib- of kin or person standing in as her parent. Such ited or restricted, clandestine or illegal abortion consent as stated in the Act (section 14) should be remains a serious health problem. It has also been an informed consent and should be given by a fe- observed that the rate at which women seek abor- male of sound mind and at least sixteen years of tion is similar for women living in developed and age This raises the question whether the law al- developing countries and that contrary to common lows parents of minor pregnant girls a veto over belief, legalization of abortion does not necessarily the decision to have abortion and should the clinic increase abortion rates19. or the practitioner inform or notify parents of such minors who require abortion. This provision needs Locating abortion within the broader reproductive further clarification. There is no mention of hus- health services could therefore be an effective way band’s consent. Thus the act permits the woman to to improve access and acceptability and also pro- take such decisions without necessarily involving mote the health and welfare of women. the partner since she is the one directly involved and immediately affected by the pregnancy. Hus- “Most people, including physicians prefer to avoid band’s consent may be considered as giving the termination of pregnancy and it is with regret that man a veto over the woman’s decision. However they may judge it to be the best course, given a in some cases the consent of the husband may be woman’s circumstances. Some doctors feel that obtained as good clinical practice as in a stable abortion is not permissible whatever the circum- family the loss of a pregnancy has wider effects stances. Respect for their autonomy means that no especially in Africa where the woman tends to be doctor (or other members of the medical team) ‘under the control’ of the husband. The husband’s should be expected to advise or perform an abor- objection, however, would not be valid under the tion against his or her personal conviction. Their criminal code careers should not be prejudiced as a result. Such a doctor however has an obligation to refer the CONCLUSION woman to a colleague who is not in principle op- 20 The discussion on the law has shown that the Gha- posed to termination”. naian legislation has changed from the old position of restriction towards liberalization of abortion. It REFERENCES promotes establishment of safe abortion services 1. Child by Choice Trust. Abortion in Law, His- by allowing grounds for legal abortion that can be tory & Religion. Child by Choice Trust To- broadly interpreted. Setting no limit of gestational ronto, Canada M5S 3A7 (416) 961-1507. age will allow policy makers to set medically ac- [Online] ceptable limits in services delivery protocols and standards. It does not impose any third part au- 2. Cook RJ, Dickens BM, Bliss LE. International thorization and no spousal consent is required, thus developments in abortion laws from 1988 to allowing the woman to arrive at her own decision 1998. Am J of Pub Hlth1999; 89(4) : 579586 with her doctor. Aspects that hamper safe abortion include concerns about the definition, the critical 3. Alan Guttmacher Institute. Sharing Responsi- level risk to the woman’s health and life at which bility; Women, Society, and Abortion World- abortion may be offered and that only medical wide. New York, 1999. officers be allowed to perform the procedure. 4. World Health Organization. (1998a accessed

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September 2006 Volume 40, Number 3 GHANA MEDICAL JOURNAL 2000, June 16). Address unsafe abortion. 12. Ghana Statistical Service and MI. Current World Health Day/Safe Motherhood, 7 April Contraceptive usage in Ghana. In Ghana De- 1998: (WHD 98.10). mography and Health Survey, 1998. GSS and Macro International Inc. Calverton, Maryland, 5. World Health Organization. Unsafe abortion: 1999; 43-47. Global and regional estimates of incidence of maternal mortality due to unsafe abortion, 3rd 13. Ampofo DA. The dynamics of induced abor- edition. World Health Organization, Geneva, tions and the social implications for Ghana. 1998 Ghana Med J Dec. 1970: 295- 302.

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