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A Global Review of Laws on Induced Abortion, 1985–1997 by Anika Rahman, Laura Katzive and Stanley K

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A Global Review of Laws on Induced Abortion, 1985–1997 by Anika Rahman, Laura Katzive and Stanley K ARTICLES A Global Review of Laws on Induced Abortion, 1985–1997 By Anika Rahman, Laura Katzive and Stanley K. Henshaw and the Annual Review of Population Law Context: The legal status of induced abortion helps determine the availability of safe, afford- (published by the United Nations Popula- able abortion services in a country, which in turn influences rates of maternal mortality and mor- tion Fund and the Harvard Law School). bidity. It is important, therefore, for health professionals to know both the current status of abor- In addition, we derived extensive infor- tion laws worldwide and the extent to which those laws are changing. mation regarding the interpretation of na- Methods: Abortion-related laws in 152 nations and dependent territories with populations of tional laws from a series of books entitled one million or more were reviewed, and changes in these laws since 1985 were documented. Abortion Policies: A Global Review, which were published between 1992 and 1995 by Results: Currently, 61% of the world’s people live in countries where induced abortion is per- the Population Division of the United Na- mitted either for a wide range of reasons or without restriction as to reason; in contrast, 25% re- tions Department for Economic and Social side in nations where abortion is generally prohibited. However, even in countries with highly re- Information and Policy Analysis. Finally, strictive laws, induced abortion is usually permitted when the woman’s life is endangered; in previously published works on abortion contrast, even in nations with very liberal laws, access may be limited by gestational age re- laws in Commonwealth countries2 and on strictions, requirements that third parties authorize an abortion or limitations on the types of fa- abortion laws in Francophone countries3 cilities that perform induced abortions. Since 1985, 19 nations have significantly liberalized their also provided valuable information. abortion laws; only one country has substantially curtailed legal access to abortion. Determining the legal status of abortion Conclusions: A global trend toward liberalization of abortion laws observed before 1985 ap- in any given nation is a complex task. pears to have continued in more recent years. Nevertheless, women’s ability to obtain abortion Laws regarding abortion are addressed in services is affected not just by the laws in force in a particular country, but also by how these multiple statutes, codes and regulations, laws are interpreted, how they are enforced and what the attitude of the medical community is all of which apply simultaneously. Where toward abortion. International Family Planning Perspectives, 1998, 24(2):56–64. abortion is generally available, numerous types of laws—including judicial opin- ions, social security laws and health lthough the legal status of induced physician willing to risk prosecution by codes—regulate it as a medical procedure. abortion is not the only factor in- helping them. Moreover, fear of prosecu- Where abortion is criminalized, it is usu- Afluencing women’s ability to ac- tion may even affect physicians’ treatment ally addressed in the penal code. Yet most cess abortion services, it remains a key de- of women with complications arising from governments, even those that criminalize terminant. Where access to abortion is spontaneous abortion or from unsafe clan- the procedure, permit abortion under at restricted by law, medically trained prac- destine abortion, and may cause women least some circumstances, and they may titioners are usually less willing to provide to delay seeking care. Where abortion is set forth these exceptions to the penal code the service, the cost of the service in pri- legal, maternal morbidity and mortality in separate laws and decrees. vate facilities may be high and services are generally are lower, often because abor- Abortion’s legal status is also affected by rarely available in public hospitals (which tions are performed by trained medical general principles that apply to any type of are often the only source of safe medical professionals, are safer and more avail- law. For example, although the penal codes care for low-income women). able, and cost less. of some nations explicitly prohibit all abor- In addition, in such countries, because In this article, we update and expand on tions, other sections of these codes permit training in abortion procedures often is earlier work1 to briefly summarize the laws the “defense of necessity.”* Thus, in such not routinely provided to physicians, out- governing abortion in most countries nations, an abortion necessary to save the moded medical procedures may be used around the world, and discuss all major life of a pregnant woman would be legal. to perform the service and the provision changes in abortion laws since 1985 in coun- of contraceptive services after an abortion tries with populations of more than one mil- Anika Rahman is director of the International Program and may be overlooked. Women with an un- lion. Whenever possible, our analysis is Laura Katzive is a legal fellow at the Center for Repro- ductive Law and Policy, New York. Stanley K. Henshaw wanted pregnancy also may not know a based on the texts of national laws. In some is deputy director of research with The Alan Guttmacher cases, we obtained translations and other Institute, New York. The authors would like to thank Eliz- abeth Roff and Taylor Haas for their research assistance *A general legal principle that, in the context of abortion, information from such sources as the In- and Rebecca Cook and Laura Bliss for their helpful com- excuses from criminal liability a person who acts rea- ternational Digest of Health Legislation (pub- ments. The work upon which this article is based was sup- sonably to save her own life or the life of another. lished by the World Health Organization) ported in part by a grant from the Wallace Global Fund. 56 International Family Planning Perspectives Overview of Current Laws Some countries permit abortion on ad- cerned or so constitutes a serious threat of We classified the laws of 152 nations and ditional grounds not appearing in Table 1. permanent impairment of her physical dependent territories with a minimum For example, Israel, in addition to permit- health that termination… is necessary to population of one million into five cate- ting abortion on mental health, juridical and ensure her life or physical health.”8 gories indicating the circumstances under fetal impairment grounds, allows abortion Laws that permit abortion to protect a which a pregnant woman could legally when the pregnant woman is unmarried, woman’s mental health are in force in 20 obtain an abortion—to save her life, to pre- under “marriage age” or older than 40.5 countries and affect approximately 4% of serve her physical health, to safeguard her The most restrictive laws are those that the world’s population. In most of these mental health, on socioeconomic grounds either ban abortion entirely or permit it only nations, legislation explicitly recognizes and without restrictions as to reason. to save the life of the pregnant woman. Such mental health grounds for abortion. How- Rather than rely upon varying and un- laws define abortion as a criminal offense, ever, several one-time British colonies, in- predictable standards of interpretation, with penalties for the provider and often for cluding Jamaica, Gambia, Sierra Leone and such as general medical practice or legal the woman as well. Twenty-five percent of Trinidad and Tobago, have retained Great opinions issued by attorneys general, we the world’s population lives in the 54 coun- Britain’s former, restrictive abortion law, categorized these laws based on a literal tries—located mainly in Africa and Latin as it was interpreted in a 1938 English case reading of the statutes, as they are inter- America—that have laws of this type. (Rex v. Bourne) that permitted a legal abor- preted in known binding judicial opinions These laws allow for saving the life of the tion if continuing the pregnancy would and ministerial regulations. woman in two ways. Many explicitly ex- render the woman a “mental wreck.”9 In many countries, laws are interpreted empt from punishment providers who per- While the Bourne principle is theoreti- more liberally than would be suggested by form an abortion when a woman’s life is cally applicable in other Commonwealth their literal interpretation; in others, they in danger. For example, Tanzania’s penal countries that do not have superseding are interpreted more restrictively. In addi- code states that “a person is not criminal- legislation or judicial interpretations, tion, the extent of enforcement may vary ly responsible for performing in good faith physicians in those nations generally will within countries. Therefore, our classifica- and with reasonable care and skill a surgi- not perform abortions on mental health tions do not necessarily indicate the extent cal operation upon . an unborn child for grounds in the absence of explicit gov- to which legal abortion services are per- the preservation of the mother’s life, if the ernment recognition of such grounds.10 mitted in practice or are actually available. performance of the operation is reasonable, The interpretation of “mental health” For example, although abortion is legally having regard to the patient’s state at the varies around the world. It can encompass permitted in India on numerous grounds, time, and to all circumstances in the case.”6 the psychological distress suffered by a the law is specific about the types of facili- Other nations recognize the defense of woman who is raped, the mental distress ties and medical practitioners necessary to necessity. In a number of countries in this caused by socioeconomic circumstances undertake a legal abortion procedure. category, such as Congo (Brazzaville) and or a woman’s psychological anguish over Hence, legal abortion services are unavail- Mali, the penal codes permit the defense a medical opinion that a fetus is at risk of able in many rural areas, and a majority of of necessity for a range of criminal acts, in- being impaired.
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