"RIGHTS OF A MOTHER AGAINST RIGHTS OF A " LEGAL APPROACH TO THE DEBATE

BY NAMUDDU FLORENCE LLB/405811133/DU

A RESEARCH REPORT SUBMITTED TO THE FACULTY OF LAW IN PARTIAL FULFILMENT OF THE REQUIREMENT FOR THE AWARD OF THE DEGREE OF LAWS OF KAMPALA INTERNATIONAL UNIVERSITY

JULY2017 DECLARATION

I do hereby declare that this work is original and has never been submitted to any other institution for a ward of any Degree or Diploma. Where the work of others has been used, reference has been made there of.

Signed: ...... Date: ......

NAMUDDU FLORENCE

( APPROVAL

This is to certifY that this research work of Florence titled, "Rights ofa mother against rights ofa fetus" legal approach to the has been submitted to the Faculty of Law with my approval as a University supervisor.

Sign•hrr" ....•...• #:: .. ···-··· ..... Date ...... ~o/.J../!.1...... SUPERVISOR MRS. EMMA SSALI

ii }------TABLE OF CONTENTS DECLARATION ...... i APPROVAL ...... ii SUPERVISOR ...... ii MRS. EMMA SSALI ...... ii TABLE OF CONTENTS ...... iii ACKNOWLEDGEMENT ...... v DEDICATION ...... vi

CHAPTER ONE ...... 1 INTRODUCTION AND BACKGROUND ...... 1 1.1 Introduction ...... 1 1.2 Background of the study ...... 1 1.3 The statement of the problem ...... 2 1.4 Research objectives ...... 3 1.5 Significance of the research ...... 4 1.5 Scope of the study ...... 4 1.5.1 Geographical scope ...... 4 1.5.2 Content scope ...... 4 1.5.3 Time scope ...... 5 1.6 Methodology ...... 5 1.6.1 Reliability of the instrument ...... 6 1.6.2 Data gathering procedures ...... 6 1.6.3 Ethical considerations ...... 6 1.7 Literature Review ...... 7 1.7.1 Concept of a fetus ...... 7 1.7.2 International law rights in the ab01iion debate ...... 9 1.7.3 The Status of the Foetus after Daigle ...... 12 1.7.4 Conclusion ...... 13

CHAPTER TW0 ...... 14 RIGHTS OF THE MOTHER V. RIGHTS OF THE FOETUS ...... 14 2.1 Introduction ...... 14 2.2 The conventions ...... 14 2.3 Abortion and Right of fetus ...... 16 2.4 Fetus has ...... 17 2.5 Legal framework on ab01iion ...... 18 2.6 Constitutional provision on abortion ...... 19 2.7 Abortion-related provisions in the Penal Code Act 120 ...... 19 2.8 Case law on abortion ...... 21 2. 9 Abortion is violation of fetus's right to life ...... 21 2.10 Abortion and Right of mother...... 23 2.11 Fetus does not have right to life ...... 23 2.12 Violation of right to liberty of mother ...... 24 2.13 Right to privacy ...... 24 2.14 Right to dignity and health ...... 25

iii 2.15 The rights of the unborn or the rights of the pregnant woman ...... 26 2.16 International Human Rights Standards ...... 28 2.16.1 Universal Declaration of Human Rights ...... 28 2.16.2 International Covenant on Civil and Political Rights ...... 29 2.16.3 Convention on the Rights of the Child ...... 29

CHAPTER THREE ...... 31 SOLUTIONS TO THE PROBLEM OF ABORTION ...... 31

3.1 Introduction ...... 00.00 ••••••••••••• • ••• 00 ... 00 00 • • •••••••• • ••••••••••••• 31

3.2 Abortion ...... 00 ...... 31 3.3 Proposals for reform of the law on termination of oooo· ··oooooooooooo oo ooooooooooo ...... 33 3.4 Implications for human rights.oo•••oooo••oooo• •oooo••oooooo oo ooooooooooooo ...... oo ... oooo ooooooooooo oo ...... 34

CHAPTER FOUR ...... 36 CONCERNS ON INDUCED ABORTION ...... 36 4.0 Introduction ...... ·······················································oo····:·· ················oo ···········oo········"···········36 4.1 Discussion ...... oo ...... oo ...... 36

CHAPTER FIVE ...... 40 CONCLUSION AND RECOMMENDATION ...... 40 5.1 Introduction ...... oooo•oo····oo ...... oooo ...... , ...... oo ...... 40 5.2 Edward Abbey ...... oo.oo ...... oo .... oo .... oo ...... 40 5.3 Conclusion oo·•·oo·oo· ··oo ..... oo .. oooo•·oo·•ooooooooooooooooo ...... oooo ...... oo .. oo .... oooo ...... oo .. ooo .. oo ...... oo ... oo.41 5.4.1 Uganda's Laws and Policies on Termination ofPregnancy ...... oo ...... oo .. oooooooo ...... oo ...... 41

iv ACKNOWLEDGEMENT

I am grateful to Almighty God who has been with me throughout the whole period when pursuing the course.

My wholeheartedly appreciation goes to my parents father Mr. Mugerwa Livingstone and mother Mrs Nanfuka Madinah , who raised me up right away from childhood to date and always encouraged me to pursue my studies and finished up.

I would like to thank brother Mugalula George over his suppott although out this project.

I am also humbled to appreciate my sisters Betty, Annet, Angella and brothers Emmanuel, David and Cyrus for the wonderful work they have contributed towards my academics. Am sure God will reward them abundantly.

Sincere thanks goes to the management of Kampala International University for having endeavored to put such course in place and enabled me to study.

Special thanks go to my supervisor and lecturer Mrs Emma Ssali who dedicated her precious time to direct me on how to write this dissertation repott and educating me on so many aspects of law.

I also thank my best friends especially Doreen, Lilian ,Sarah ,Mugaiga Sean, Jonathan and others who encouraged me and advised me here and there on how to come up with this work.

v DEDICATION

I dedicate this research report to my lovely mother ,my caring father, who have been there for me whenever I asked for their help, and for raising me up right away from childhood to date and always encouraged me to pursue my studies and finish up.

I also dedicate this to all my friends in and out and whoever helped me during pursuing the rep01i.

vi ABSTRACT

The study examined the "rights of a mother against rights of a fotus" legal approach to the abortion debate. In response to the law, Article 22(2) 1 provides that "No person has the right to terminate the life of an unborn child except as may be authorized by law". Twenty years later, the said law is yet to be enacted to operationalize this Constitutional provision. Instead, the country continues to rely on the colonial-era Penal Code Act, whose provisions on the legally permissible grounds for termination of pregnancy are vague and poorly understood, severely limiting access to safe, legal abortion and post-abortion care services and contributing to a high number of deaths and injuries from .

This study displays the sensitivity of the topic of ab01tion within the Ugandan society. Examples of how this delicacy is manifested include the way different actors and their activities are portrayed and presented, in addition to how stakeholders themselves choose to convey their messages through the media. It is also showcased by the nonexistence of certain statements and actors. The key groups described in the examined articles involve church leaders and others acting against abortion in the name of religion, groups looking to change Uganda's strict legislation on abottion, as well as young women who have undergone abortion. Noticeable is also the complete lack of statements related to the Ugandan abortion legislation by the country's political leaders.

It is likely that this to a large extent also explains the complete lack of statements related to the Ugandan by the country's political leaders within the examined articles. Thus, this absence of certain views and angles from the country's political arena can also help explain the prevailing social climate and different power relations in Uganda. One example of how groups looking to change the abortion legislation work is to refer to international measures, such as statistics on maternal mortality and morbidity in relation to changed abortion laws in other countries, when arguing for relaxation of the Ugandan abortion laws. Another example is how international conventions signed by Uganda are put forward, stating the obligation to protect women's rights.

1 The Constitution of Uganda 1995

------( vii CHAPTER ONE

INTRODUCTION AND BACKGROUND

1.1 Introduction

The abortion debate in Uganda has been going on and hinged mainly by morality and religion with the Catholic and Methodist churches as well as the Islamic community pushing for its non legalization. In order to find a good and lasting solution to the abortion debate a good law must be enacted to regulate the practice and protect those who are part of the cycle. This debate should not be a debate based on arguments of morality rather it should be it should be a cogent discussion based on matters of law and fact. As such this research is intended to be a source of information on at least one aspect of legal debate .The rights of a mother and those of a child and how such rights will affect any law drafted to regulate .

In recent years, abortion has become a live topic both at national and international levels, attracting great academic, legislative and judicial comments. Abortion is in many jurisdictions, a crime; though the sanctions for its violation differ. Its incidence in the world is increasing rather than decreasing.

1.2 Background of the study

Since 1980s abortion as been declared to be a serious public health problem and this has been assetied time and time again (Ministry of Health MOH, 2014). And as a reason the ministry of health and International Projects Assistant Services (!PAS) stated that about 300,000 abo1iions are performed the country each year, this in essence is equivalent to a daily abortion rate of about 800 abortions2 What is alarming with the situation is that an estimated 20,000 women and girls are hospitalized with related complications and about 2,600 women have lost their lives due to the fact that over 60percent of the are incomplete or un successful. 3 However despite of all the above statistics. efforts geared towards bringing about legislation on the debate have been

2 Ministiy of Health (MOH, 2015): Reducing Morbidity and Mortality from Unsafe Abortion in Uganda: Standards and Guidelines. April2015 3 Center for (CRR. 20 12): Technical Guide to Understanding the Legal and Policy Framework on Termination or Pregnancy in Uganda 2012

1 hampered by frequent references to morality and religious belief instead of coming up with a debate based on legal principles.

When confronted with the question of legal regulation of abortion, some argue that law should not compel an individual to carry an unwanted pregnancy and that "the State has no business in the bedrooms of the nation". On the contrary, most of the religious heads and some others argue that "the child in the womb has the right to life, to the life he already possesses and no one has authority to deny it"; and hence law should regulate abortion with iron hands. Even within the medical profession itself, there is a great divergence of views. Some are of the opinion that the 4 woman's desire is a sufficient justification . On the other hand, there are doctors who for purely religious reasons object abortion in total. It is submitted that both the views are extreme and hence not sound. Mere desire of a woman to be relieved of her pregnancy should not be the sole justification for performing abortion. At the same time, where abortion is necessary to save the life of a woman, the doctor's refusal on religious grounds may lead to her death making him guilty of manslaughter by negligence. Here arose the debate of right of fetus and right of mother.

The laws regarding abortion vary widely by country to country. Some states like Chile, El Salvador, Nicaragua, Malta and Vatican City ban the procedure of abortion exclusively. No exception is available for these strict rules. On contrary, some states like Canada and the United States of America and many other places no restriction on the provisions relating abmiion. They are having the most liberal attitude towards abortion and right of mother to choose her pregnancy. Both the suppmiers and the opponents of legal abmiion take a pose that their arguments address the fundamental human right.

1.3 The statement of the problem

The Termination of Pregnancy5 in Uganda being the primary rights which provides for lawful termination of a pregnancy is restrictive on women's reproductive fi·eedom as it provides for conditional grounds upon which a pregnancy can be terminated. This infringes on the woman's right to privacy, bodily integrity, equality, human dignity, personal freedom and security. Thus

4 Ministry of Health (MOH, 20 14): Uganda family planning casted implementation plan, 2015-2020 5 Center for Reproductive Rights (CRR), 2012

2 women lack the right to decide freely and responsibly on whether or not to carry the foetus to 6 term and are forced to carry unwanted to term .

However, Uganda is signatory to various international and regional human rights instruments which provide women with reproductive freedom as it accords them with the right of autonomy regarding their fertilit/ . Furthermore, it prohibits any form of discrimination against women in the enjoyment of these rights. In that regard, the Termination of Pregnancy Act, the Criminal Law (Codification & Reform) Act as well as Section 48(3) of the Constitution interferes with the right of autonomy and women are not able to exercise the right without interference from the State.

The abortion debate was and is still linked to morality and religious beliefs .Howson (1996) relates this to the fact that a large portion of the population adheres to pro- natalist beliefs rooted in the Christian, Islamic ,and cultural heritage .Whil e from the jewish perspective from biblical times, abortion is considered from asocial perspective more than from a theological perspective .The mother is considered as the first priority. Under the Vedic and smrti laws of india, religious courts imposed various penances for the women who carried on abortion and priests provided an abortion while in Assyrian law a woman was only penalized when carried on abortion against the will of the husband .

This over emphasizes on the morality and religious implications of abortion has this has caused stagnation in any sort of law reform linked to abortion .In order to come up with a more cogent debate on abortion ,the state has to focus more on legal issues within then debate .The study is intended to tackle one aspect of the legal debate by dealing with the issue of the rights of both the mother and the unborn child and how these rights could be useful in coming up with a legal answer to the problem .Purpose of the study.

1.4 Research objectives

1. Whether the government has an obligation to preserve all human life regardless their viability?

6 Center for Reproductive Rights (CRR), 201 2: Briefing paper: A technical guide to understanding the legal and policy framework on termination ofpregnancy in Uganda 7 Guttmacher Institute, 201 3: Abortion in Uganda. Fact sheet. http://www.guttmacher.org/pubs/FB-Abortion-i n-Uganda.html

3 2. Does fetus have the status of a legal person? 3. Whether individuals have unlimited autonomy with respect to their own reproductive systems? 4. Does the government have the right to impede a woman's right to decide whether or not to continue a pregnancy?

1.5 Significance of the research

The laws on abortion in Uganda are only limited to the provisions of the Penal Code Act which provides I that any person who, with intent to procure the miscarriage of woman whether she is or is not with a child ,unlawfully administers to her or causes her to take any poison or other noxious things ,or uses any force of any kind, or uses any other means , commits a felony and is liable to imprisonment for fourteen years.

The significance of this study is that it will expand more on abmiion laws, it will be useful as a source of information to all who wish to have a legal discourse on abortion .It will also be useful as source of information to the members of parliament as they seek to come up with the law regulating abortion and to Non-Government Organizations that are against the legalization of abortion and to other researchers. It will also in the long run help in protecting lives of the women and the unborn child as these principles are adopted into practicable laws.

1.5 Scope of the study

1.5.1 Geographical scope

The research covered all rights of a mother against the rights of a fetus in Kampala and Uganda at large including the institutions, governance and government bodies in-line with rights of a mother against rights of a fetus. The research was done in Kampala capital city which lies within the Kingdom ofBuganda, in Central Uganda.

1.5.2 Content scope

4 )~------Access to abortion is necessary to respecting women's reproductive freedom. Reproductive rights refer to those rights which protect the health and well-being of both men and women. 8 Reproductive rights are most fundamental to women as they demand respect for their bodily integrity and decision-making requiring access to voluntary, quality and sexual health services. These rights com1ote the principle that a woman must be able to control her reproductive and sexual life and entitle a woman to decide whether to carry the fetus to term without any interference. Women's reproductive freedom spans a range of human rights including rights to bodily integrity, dignity, privacy, opinion and belief, equality and personal security and freedom.

1.5.3 Time scope

The study looked at the 21 51 century is the current century of the Anno Domini era or the Common Era, in accordance with the Gregorian calendar. It began on January 1, 2001, and will end on December 31, 2100. It is the first century of the 3'd milleilllium. It is distinct fi·om the time span known as the 2000s, which began on January 1, 2000 and will end on December 31, 2099. Therefore, the study was covered within a period of 4 month May 2017-June 2017.

1.6 Methodology

9 Methodology utilized qualitative in nature as, according to Leedy , this methodology is aimed at description. By utilizing qualitative methodologies the research is able to evaluate both formal and normative aspects of political activity. Qualitative research is used in several academic disciplines, including political science, sociology, education and psychology. According to Peshkin (200: 134) in Patton, it usually serves one or more of a set of four purposes: description, interpretation and evaluation of a hypothesis or problem.

According to QSR (a, 2011:115), qualitative research "is used to gain insight into people's attitudes, behaviors, value systems, concerns, motivations, aspirations, culture or lifestyles." QSR continues to explain qualitative research as a method of making informed decisions in both business and politics.

8 Johnsen (1986); The Creation of : Conflicts with Women's Constitutional Rights to Liberty, Privacy and Equal Protection; 95 Yale L.J. 599, 613 9 Established on 200 I: 148

5 This study utilized a descriptive approach as it was necessary to observe and describe the rights of a mother against rights of a fetus, legal approach to the abortion debate. Thus the researcher utilized a descriptive approach so as to be able to assess the rights of a mother against rights of a fetus,. The descriptive approach may be considered as inductive, according to Rhodes (1995:44) as conclusions are drawn from repeated observations that is letting facts speak for themselves. Statements are made about rights of a mother against rights of a fetus.

1.6.1 Reliability of the instrument

Reliability is the measure of the degree to a research instrument yields consistent results after repeated trials. According to Christensen (1988), reliability of the questionnaire, the researcher employed the methods of expert judgment and pretest in order to test and improve the reliability of the questionnaire.

1.6.2 Data gathering procedures

According to Krislmaswami (2002: 197) data are facts, figure and other relevant materials, past and present that serve as bases for the study and analysis. He further states that data may be classified into primary and secondary sources. The researcher obtained an introductory letter from the School of law of Kampala International University Kampala, Uganda, which he was present to the heads of legal institutions, heads of government ministries and authorities and leaders of Non Governmental Organizations which involved in the study. The researcher therefore developed rapport, sought for consent and appointments with respective respondents to obtain the information.

1.6.3 Ethical considerations

To ensure that ethics is practiced in the course of the study as well as utmost confidentiality for the respondent and the data provided by them, the following was done, (1) Coding of questionnaire (2) The respondent was requested to sign the informed consent ;(3) Authors mentions in the study acknowledged within the text;( 4) finding was presented in a generalized manner.

6 1. 7 Literature Review

In this chapter a review of literature shall be presented on the abmtion debate and especially on the rights of a mother and rights of the unborn child .it also gives a comparative perspective of different author's approach to the aforesaid issue and it also shows the gaps in the past studies and how they can be filled.

1.7.1 Concept of a fetus

Of all the bills introduced to limit abmtion rights, House Bill 982-the informed consent bill that passed in 1991-was perhaps the clearest in defining the rights of the fetus. Unquestionably, the bill's authors assume that a fetus is an unborn child and want to persuade women that this is the case. In the actual wording of the bill, the legislators defined "probable gestational age of the unborn chi I d"in these terms:

"Probable gestational age of the unborn child" means what, in the judgment of the attending physician, will with reasonable probability be the gestational age of the unborn child at the time the abortion is planned to be performed. 10

A woman seeking an abortion was to be informed of "the probable gestational age of the unborn child at the time the abortion is to be performed or induced." Fmiherrnore, she had to read and sign a document indicating that she had reviewed the following:

Materials designed to inform the woman of the probable anatomical and physiological characteristics of the unborn child at two-week gestational increments from the time when a woman can be known to be pregnant to full term, including any relevant information on the possibility of the unborn child's survival".

These directives imply that the fetus should be defined as an unborn child from the moment of conception onward. They conflate "gestational" age, a medical term attributed to the fetus, with the commonsense category of "age" as an attribute of persons. In addition, the use of the term

10 [Committee Substitute for House Bill982, 19911 11 Committee Substitute for House Bill982, 19911

------4( 7 survival indicates the view that the fetus has characteristics of , for only persons are able to survive independently outside the mother's body; cannot survive independently of the mother until a certain indeterminate point in development.

This bill further stated that materials given to a woman about the development of the "unbom child" were to be "objective, nonjudgmental and designed to convey only accurate scientific information about the unborn child at the various gestational ages" (Committee Substitute for House Bill 982, 1991 ). In so doing the authors of the bill took constructions of lmowledge from science and the medical profession and transformed them into knowledge statements backed by the force of law 12 The terms objective, scientific, and nonjudgmental were then linked to the symbolically loaded label unborn child. The direct implication was that a woman who terminates a pregnancy was killing that "unbom child."This language implied a dichotomy between the rights of the mother and the rights of the fetus, and it attempted to legislate morality by enforcing one pmiicular view of personhood.

Legislators' views about abortions were further illustrated by the wording of the bill as it was originally introduced in 1991. before it was changed in committee. In that version the bill contained, in addition to counseling and waiting period, the following provisions:

The physician or his qualified assistant shall orally advise a woman seeking an abortion, and obtain a signed consent form, that: (a) according to the best medical evidence she is pregnant; (b) the name of the physician who will perf01m the abOiiion; (c) that the woman is free to withhold her consent to the abortion at any time before the abortion; (d) that abortion are a medical procedure with foreseeable physical and psychological risks, and the &gee of risk of the following: (i) retained tissue of conception, (ii) dmnage to the cervix, (iii) hemorrhage, (iv) infection, (v) perforation of the uterus, (vi) sterility, (vii) complication of future pregnancies, (viii) death, (ix) post-traumatic stress disorder, (x) severe depression, (xi) anniversary syndrome,

12 In these legislators' eyes the knowledge derived from science and medicine was capable of telling the "objective truth."Their use of science and medicine indicated that they shared a popular commonsense notion of science, that "science uncovers its obpcts and does not construct them" (Young 1993: l 19). See also the more extended discussion in the section entitled "An Essentialist View."

------~( 8 (xii) sexual dysfunction, and (xiii) interference with personal relationships; (e) weeks elapsed 13 since the probable conception of the fetus .

1. 7.2 International law rights in the abortion debate

The universal declaration of human rights (UDHR) the primary document defining the meaning of the word Fundamental freedoms and Human Rights and enumerating many of these rights and freedoms .Even if It is not a treaty but a declaration many international law scholars agree that it has acquired an international customary law status due to its constant adoption and implementation .The UDHR does not talk about fetal or unborn children's rights this may be because by the time it was enacted in 1949,aboriion was not a very major problem. How it does provide in its article (3) that everyone has a right to life. This provision has been reiterated in subsequent international law treaties including the international convention on civil and political rights 3(ICCPR) in Article 6(1), taking into account Article 6(5) of the same convention which provides that pregnant woman should not undergo capital punishment .Dem1is van Rita (2006) argues that human rights and its suppori for the unborn can be found in the language of the instruments of international law.

There is also The Convention on the Rights of the Child 4(CRC) this unlike the universal declaration of human rights illegalizes aboriion by referring to the rights of children it was adopted by the United Nations General Assembly resolution 44/25 of 20th November 1989 is the principal document containing the rights of the child .During the final session of the working group of the commission on Human Rights which was primarily responsible for drafting the text of the convention. The abortion issue was raised very directly at the session in the draft was given its second and final reading before being sent on to the General Assembly for adoption in 1989.After protracted public debate and intensive behind- the-scenes negotiations .It was agreed not to deal with the matter on the operative part of the convention but rather to include the following provision in the ninth paragraph of the preamble.

"Bearing in mind that as indicated in the Declaration of the Right of the Child adopted by the General Assembly of the United Nations on 20'h November 1959 ,the child by reason of his

13 [House Bill 982.1991; emphasis added]

9 physical and mental immaturity ,needs special safeguards and care, including appropriate legal protection before as well as after birth".

The final outcome was seen by most of those involved as a typical "compromise "solution which had intentionally failed to resolve the issue definitely either one way or the other .It was , however, assumed by most observers to have carefully left the way clear to individual states which might ratifY the convention to adopt whatever position they prefer with respect to the right of the unborn child provided that they act in conformity with other applicable provisions of international human right law .

According to Ulpian a Roman jurist wrote in the digest that "An unbom child is considered being born as far as it concerns his profits . Therefore his against abortion according to his writing .similarly Didache says: "do not murder a child by abortion or kill anew born infant".

Janis, Kay and Bradley (2008) add that under European Human Rights law as long as no conflict exists between mother and child in term of their lives being in danger , then the unborn child has just as much right as the mother .This position however seems not to be the generally accepted interpretation by the European courts .For instance , in ,Paton v United Kingdom (1980),a case by a husband seeking to prevent his wife's abortion explicitly rejected the claim that the right to life in Atiicle 2 of the United Nations Convention on the Right of the child covered the fetus.

The European Commission held that the word "everyone "in Atiicle 2 , and elsewhere in the convention did not include fetuses . Further, recognizing the inseparability of the fetus and the pregnant woman ,it gave precedence to the woman's right under Article 2. The life of the fetus is intimately com1ected with and it cam10t be regarded in isolation of the life of the pregnant woman .If Article 2 were to cover the fetus and its protected under this Article where, in the absence of any express limitation seen as absolute ,an abortion would have to be considered as prohibited even where the continuance of the pregnancy would involve a serious risk to the life of the pregnant mother .This would me that the unborn life of the foetus would be regarded as being of a higher value than the life of a pregnant woman .

Detrick (1999) adds that there is no precedent in international law interpreting the term "human being" or even a child to mean an unborn child 6 .He argues that the practice has been that

10 )~------drafters put down what they mean for instance if the drafters wanted the right of the unborn child to be protected they could simply have stated so.

He further argues that even though the preamble does hint upon the facts that the unborn children should have their rights protected the preamble does not possess any obligatory force on its own . As such international law does not recognize fetal rights .

On the other hand , women claim the rights of autonomy , privacy and reproductive right to be under international law .According to McDonagh (1996), the right to privacy involves not merely the right to be left alone by the state but also to be left alone by the private parties .She argues that the fetus is a primary person and should therefore not be allowed to interfere with the bodily integrity of the mother and their liberty. Gallagher , (1987) agrees stating that a woman fundamental rights to bodily integrity , self determination ,and privacy should protect her from any form of intrusion by others showing that he has characteristics of rights bearers ,which are reason , sentience and consciousness .A fetus has none of these and as such has no right.

The question as to whether a foetus has civil rights has also been discussed in various case law , for instance in Dietrich v Northampton and walker v Gt .NOiihern Ry .Co the neglect of the defendants with the mother of the plaintiff caused injury to the plaintiff who was at the time en ventresa mere . Here , the court held that the child could not recover danmges .That however has been the minority in rulings given by court . More often than not , comis have granted damages to the injured pmty. The same applies where a mother causes injury to her unborn baby through negligence or risky behavior. An exan1ple is where the mother smokes during her pregnancy causing the child to be born with a defect directly linked to her smoking . That child can sue the mother for such injuries caused.

In a contrary , David Boonin , argues that even if the fetus does not have a right to life ,abortion can still be shown on the golden mle ,consideration of un certainty and a commitment of certain feminist principles , and asserts that those positions too are ultimately unsuccessful .

11 )------1. 7.3 The Status of the Foetus after Daigle

An Overview ofTremblay v. Daigle

The facts in Tremblay v. Daigle are by now notorious and therefore can be canvassed briefly. Chantal Daigle became pregnant during a brief relationship with Jean-Guy Tremblay. The relationship between the two quickly deteriorated.

According to Ms Daigle, Mr. Tremblay became dominant, jealous, possessive and physically abusive. 6 There were frequent quarrels. On July 3rd, after a particularly abusive episode in which the police were called, Ms Daigle left Mr. Tremblay. The next day, Ms Daigle, who was eighteen Weeks pregnant, began making arrangements for an abortion. When Mr. Tremblay learned of Ms Daigle's intention to terminate her pregnancy, he brought an ex parte application for an injunction. The application was successful and Ms Daigle was informed of the injunction against her on July 8th, 1989.

Tremblay's claim for an injunction was based on an assertion of foetal rights and on Tremblay's own right as "father" of the foetus to prevent the destruction of his "child" .14 Tremblay claimed that the foetus had a right to life which outweighed any interest Chantal Daigle had in obtaining an abortion. He argued that the right to life arose from three different areas of law: the Civil Code of Lower Canada, Quebec's Charter of Human Rights and Freedoms"15 and the Canadian Charter ofRights and Freedoms. Each of these arguments merits closer examination. Tremblay's contention that the civil law of Quebec regards the foetus as a full legal person rested on his interpretation of several articles in the Civil Code which explicitly refer to the foetus 16 and on the case of Montreal Tramways v. LiveillM, 17 decided under article 1053 of the Code. 18 Tremblay relied specifically on several atiicles of the Code19 which set out rules concerning the transmission of inheritances and gifts. These atiicles provide that a foetus is capable of inheriting

14 J7The Supreme Court of Canada forcefully rejected the idea of"father's 11 rights, holding that there was nothing in Quebec law that could support the existence of a man's right to veto a woman's decision to have an abortion (Daigle, ibid. at 572). 15 R.S.Q. c. C-12 [hereinafter Quebec CharteJ}. 16 This article was written, and the cases discussed were decided, prior to the enactment of the Civil Code of Quebec, which replaced the Civil Code ofLower Canada. 17 [1933] S.C.R. 456, [1933]4 D.L.R. 337 [hereinafter Montreal Tramways]. 18 21 Art. 1053 C.C.L.C. provides: Eve1y person capable of discerning right from wrong is responsible for the damage caused by his fault to another, whether by positive act, imprudence, neglect or want ofskill. "Arts. 608, 771. 838, 945 C.C.L.C.

------1( 12 property and of receiving gifts so long as the foetus is subsequently born alive and viable. These provisions parallel the common law property rules which also allow a foetus to inherit and to receive gifts, subject to the condition that the foetus be born viable.20 Tremblay also relied on articles 338 and 345 which have no explicit counterpart in the common law.

Article 338 provides for the appointment of a person known as a "curator"'21 to act on behalf of judicially emancipated minors and of "children conceived but not yet born." According to miicle 345, the role of a curator to a foetus is to act on behalf of the foetus

1. 7.4 Conclusion

Many authors have sought to tackle this issue of whether the unborn have any rights . However few have come up with a comprehensive discourse covering all the spheres of the debate .As can be seen above , most writers have concentrated on a particular m·ea and have not shifted the focus on how the various law systems can interplay .Furthermore , most of the argument under this abortion debate are based religion and morality issues .These are the areas I intend to cover.

20 See infra note 32 and accompanying text. 21 Within the common law, the concept that comes closest to a curator is the notion of guardianship.

13 )1------CHAPTER TWO

RIGHTS OF THE MOTHER V. RIGHTS OF THE FOETUS

2.1 Introduction

Women have the same rights as other people, but these are often seemed to be in conflict with those of her unborn child. Maternal-fetal conflict describes the ways that law, social policies and medical practices sometimes treat a pregnant woman's interests in opposition to those of the fetus. This dichotomy creates a justification for restricting the autonomy of the pregnant woman. Different arguments of these two groups, on violation of right, are addressed in this chapter.

Article 22(2i2 provides that "No person has the right to terminate the life of an unborn child except as may be authorized by law". Twenty years later, the said law is yet to be enacted to operationalize this Constitutional provision. Instead, the country continues to rely on the colonial-era Penal Code Act, whose provisions on the legally permissible grounds for termination of pregnancy are vague and poorly understood, severely limiting access to safe, legal abortion and post-abotiion care services and contributing to a high number of deaths and injuries from unsafe abmiion.

2.2 The conventions

The Convention on the Rights of the Child ("Convention"), which entered into force on September 2, 1990,23 is the first binding international instrument embodying "international legal recognition of the human rights of children. "24 To date, 192 countries every country save the United States and Somalia have ratified the Convention; it is "the most universally accepted Imman ng. hts mstrument . m . h'1story. ,25

22 The Constitution of Uganda 1995 23 Convention on the Rights of the Child, opened for signature Nov. 20, 1989, 1577 U.N.T.S. 3 (entered into force Sept. 2, 1990). 24 Cynthia Price Cohen, lntroductOJy Note: Convention on the Rights ofthe Child, 28 l.L.M. 1448, 1448 ( 1989). 25 UNICEF, Introduction: Convention on the Rights of the Child, at http:// www.unicef.org/crc/crc.htm (last visited Jan. 29, 2004).

14 The Convention on the Rights of the Child has been hailed as "the most authoritative standard­ setting instrument in its field."26 It stipulates, inter alia, every child's right to life and survival,27 to a nationality,28 to an identity/9 to be heard, 30 to "freedom of thought, conscience and religion,"31 and to health.32 However, the convention is silent on the age at which childhood begins, and unclear regarding whether the rights reserved to children under the Convention apply to the unborn.

Convention article 1 defines "a child" as "every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier."33 The article I definition allows for several interpretations of when childhood might begin under the Convention: at fetiilization, at conception,34 at birth, or at some other point between conception and birth.35 Preambular paragraph 9 of the Convention seems to point toward protection of the unborn by quoting the 1959 Declaration on the Rights of the Child: "the child ... needs special safeguards and care, including appropriate legal protection before as well as after birth."36

The Convention's textual ambiguity calls into question the legality of abortion under the Convention; if an unborn fetus is "a child" for the purposes of the Convention, then, under article

26 LAWRENCE J. LEBLANC, THE CONVENTION ON THE RIGHTS OF THE CHILD: UNITED NATIONS LAWMAKING ON HUMAN RIGHTS xii (!995). 27 Convention on the Rights of the Child, supra note I, art. 6, 1577 U.N.T.S. at 47 ("I. States Parties recognize that every child has the inherent right to life. 2. States Parties shall ensure to the maximum extent possible the survival and development of the child."). 28 /d. at art. 7 ("The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as Htr as possible, the right to know and be cared for by his or her parents."). 29 /d. at art. 8 ("'States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference."). 30 /d. at art. 12. 1577 U.N.T.S. at 48 ("[T]he child shall in pmticular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law."). 31 /d. at art. 14. 1577 U.N.T.S. at 49 ('•States Parties shall respect the right of the child to freedom of thought, conscience and religion."). 30 !d. at art. 24, 1577 U.N.T.S. at 52 ("States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Pmties shall strive to ensure that no child is deprived of his or her right of access to such health care services."). 33 Id.atart.I.I577U.N.T.S.at46. J.j Philip Alston distinguishes between fertilization and conception: [Fertilization] refers to the union of an ovum and sperm which can take place shortly after intercourse. Conception, on the other hand, is generally defined as occurring only at the time of implantation in the uterine mucosa, a process which is not completed until around fourteen days after fertilization has occurred. Philip Alston, The Unborn Child and Abortion Under the Draft Convention on the Rights of the Child, 12 HUM. RTS. Q. 156, 173 (1990). 35 An example or such a time between conception and birth is "ensoulrnent," the point recognized under Sha'riah law as "the time a! which a foetus [sic] gains a soul,'' commonly viewed as 120 days after conception. I U.N. DEP'T OF ECONOMIC AND SOCIAL AFFAIRS, POPULATION DIV., ABORTION POLICIES: A GLOBAL REVIEW 5, U.N. Doc. ST/ESA/SER.A/187 (2001). 36 Convention on the Rights of the Child, supra note I, pmbl. para. 9, I 577 U.N.T.S. at 45 (emphasis added).

15 6, the fetus would have "the inherent right to life."37 But, the possibility of a fetus's right to life conflicts directly with the rights guaranteed to a pregnant girl under the Convention, which safeguard her right to health/8 to life,39 and to consideration of her best interests40 if the pregnancy threatens her physical or mental health. 41

This note will demonstrate that, confronted with the Convention's textual ambiguity, developing international law recognizes that, under the Convention, the rights of a pregnant child trump the rights of a fetus.

The note will first examine the relevant Convention provisions and the drafting history of the Convention, as well as states pmiies' declarations and reservations to the final Convention text. It will establish that the language of the Convention is ambiguous and could be read to confer the right to life on the unborn. Next, this note will analyze practice under the Convention in the almost thirteen years since it entered into force. The Committee on the Rights of the Child, the treaty body established "[f]or the purpose of examining the progress made by States Pmiies in achieving the realization of the obligations unde1iaken in the ... Convention,"42 reveals, in its observations and meeting reports, a developing international norm that the rights of a child­ mother supercede the right to life of an unborn child under the Convention. The practice of regional human rights bodies since the Convention's entry into force has not contradicted this emerging norm. Although no regional body has directly addressed the question of fetal rights under the Convention, both the European Court of Justice m1d the Inter-American Commission on Human Rights have delivered opinions consistent with denying a fetus's right to life.

2.3 Abortion and Right of fetus

Roe v. Wade's granting of constitutional protection for the right to terminate an unwanted pregnancy was, in many ways, just the beginning of the true abOJiion rights debate. The rights of the unborn are a main issue in this debate mainly whether they have rights as a human person that could protect their lives from ending before birth. While the Court has since declined to

37 Jd at art. 6, 1577 U.N.T.S. at 47. 38 Jd at art. 24. 1577 U.N.T.S. at 52. 39 Jd at art. 6, 1577 U.N.T.S. at 47. 40 Jd at art. 3, 1577 U.N.T.S. at 46. 41 Jd at arts. I, 24. 1577 U.N.T.S. at 46. 52. 40 /d. at art. 43, 1577 U.N.T.S. at 58-59.

16 officially and fully address the issue, there is a growing recognition of the personhood of the unborn child both from a medical and social standpoint.

Fetal rights are the legal or ethical rights of fetuses. In the context of abmiion debates, fetal right is used as an argument in suppo1i of pro-life stand. The term Pro-life deals with the political and ethical opposition to the system of abortion, and asks for the legal prohibition or restriction of the same. The main claim of these pro-life movements is that fetus is a person. Therefore a fetus has a right to life. The pro-life stance is commonly supported by several religions. Pro-life persons argue that the value of human life is of supreme importance and believe that human life should be valued from fertilization until natural death. That is, a fetus is a person and any action which destroys an embryo or fetus is murder of a person. Any deliberate destruction of human life is considered ethically or morally wrong. The arguments of these schools of thought are discussed below.

2.4 Fetus has right to life

Today, there is a trend toward recognizing the unbom as both a human as well as a person afforded lawful protection. Modem scientific advances in the understanding of human development show that the fetus is indeed a human being from her first day of existence.

The scientific and medical community has widely recognized the existence of human life from the very moment of conception. Many contemporary human embryologists maintain that a new human being comes to be at fertilization, which is the point at which the maternal and paternal chromosomes merge to form a set.

At the time a woman become pregnant, she is carrying a new life. Science has proved that she is carrying a new human being from the moment of fertilization. Science has proved that, heart of the fetus will start to beat from 18-25 days and fi·om the 43rd day itself electrical brainwave will start working. The absence of brain wave means indicates death. So at the time of abortion, the baby already has a beating heart and identified brain waves. So the baby living inside his/her mother is a distinct and unique person or human being.

17 The modem understanding of biologists is that the discovery of human DNA after just a few days of fe11ilization irrefutably demonstrates that the child, no matter how small, "is human life; it is not potential life or potentially human life." Thus, "It is scientifically conect to say that an individual human life begins at conception, when egg and sperm join." This is no theory: scientific proof of a separate embryonic personhood is an indisputable and fundamental tmth a human being exists from conception.

"In fusing together, the male and female gametes produce a fe11ilized single cell, the zygote, which is the stm1 of a new individual." So the fetus is fully developed even before the mother's pregnancy gets noticed.

Thus the fetus is a person from the conception itself and the new person deserves full protection of the law as any other person. The fetus has a right to life and the government is obliged to protect the supreme right.

2.5 Legal framework on abortion

There is a persistent and widespread perception in Uganda that abortion is completely illegal and that therefore it is criminal to have one except only when done to save a woman's life (CRR et al., 2013). This perception has scared not only health providers from the provision of safe ab011ion a11d post-abortion care services, but also the women who are resorting to unsafe methods and unskilled providers to end unwanted pregnancies.

However, contrary to this perception, legal analysts have suggested that Uganda's abortion laws and policies are accommodative of abortion in some circumstances. The problem is that these circumstances are not clearly stated in the law and are well understood even by law enforcers, who have not had any successful prosecution on record.

18 2.6 Constitutional provision on abortion

The Constitution provides in Article 22(2) that "[no] person has the right to terminate the life of an unborn child except as may be authorized by Jaw." 43

44 The Odoki Commission , in its report, recommended in accordance with the majority view that illegal abortion should be punished. Secondly and perhaps more significantly the Commission noted that most societies in Uganda practice abortion if the pregnancy is a danger to the mother's life, or if it is from or incest. The Commission also recognized Uganda's human rights obligations under international law.

This explains why Anicle 22(2) was inserted in Chapter 4 of the Constitution, which deals with fundamental rights and freedoms. So, A1ticle 22(2) is an attempt to strike a balance between outlawing abmtion on one hand, and respecting existing practices and human rights obligations of the state, on the other.

The Constitution (Article 22(2)) envisages a law authorizing the termination of the life of an unborn child in the circumstances which should be specified in that law. However, since 1995 that Jaw has not been enacted. Instead, the country continues to depend on the Penal Code Act.

2. 7 Abortion-related p1·ovisions in the Penal Code Act 120

45 46 The Penal Code Act provisions on abmtion are contained in Sections 141-143 , Section 212 , 47 48 and in Section 214 Under Section 141 , a person commits the offence of"attempted abortion" where they " ... with intent to procure the miscarriage of a woman whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means, commits a felony and is liable to imprisonment for fourteen years." This offence essentially targets people who facilitate the process of abortion and majorly targets medical professionals who carry out abortions.

43 Article 22(2) of the Constitution 44 Constitutional Commission Report, 1994 45 The Penal Code Act 120 46 Ibid 47 Ibid 48 Ibid

19 )------Section 142 49 makes it an offence for a woman to procure her own abortion. Under this section a " ... woman who, being with child, with intent to procure her own miscarriage, unlawfully administers to herself any poison or other noxious thing, or uses any force of any kind, or uses any other means, or permits any such things or means to be administered to or used on her, commits a felony and is liable to imprisonment for seven years." A women suspected to have aborted is charged under this provision.

Section 143 targets people who supply or procure drugs or anything knowing it is to be used to carry out an abortion. The offence is stated as follows: "[A]ny person who unlawfully supplies to or procures for any person anything, knowing that it is intended to be unlawfully used to procure the miscaniage of a woman, whether she is or is not with child, commits a felony and is liable to imprisonment for three years".

Section 212 creates what is at times referred to as "child destruction" offence to protect the child during the process of child birth 5°: "[a]ny person who, when a woman is about to be delivered of a child, prevents the child from being born alive by any act or omission of such a nature that if the child had been born alive and had then died, he or she would be deemed to have unlawfully killed the child, commits a felony and is liable to imprisonment for life."

In the revision of the Penal Code Act, these offences will need to be clarified further or even reviewed altogether, and also to clarity and elaborate the circumstances for legal abortion 51 52 provided for in Section 224 . Section 224 of the Penal Code provides that;

"A person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation upon any person for his or her benefit, or upon an unborn child for the preservation of the mother's life, if the performance of the operation is reasonable, having regard to the patient's state at the time, and to all the circumstances of the case".

49 The Penal Code Act Cap 120 50 See Crimes Acl 1900 (ACT) s 42; Criminal Code (NT) s 170; Criminal Code (Qid) s 313(1); Criminal Code (WA) s 290 (all Australian pieces of legislation) 51 Ibid 52 ibid

20 2.8 Case law on abortion

To try to understand the Penal Code provisions on circumstances for legal abortion, references have been made to the case of Mehar Singh Bansel v. R (1959) in the East African Court of Appeal, which at the time had jurisdiction in Uganda. In this case, Court received into Kenyan law (and by extension East Africa) the judicially expanded defense of therapeutic benefit that 53 was laid down under English common law in R v. Bourne . In R v. Bourne, Justice MacNaughten observed that abortion under the provisions of the English Offences Against the Person Act (then equivalent to Uganda's provisions on abortion) was not unlawful if, in the opinion of the doctor, "the probable consequence of continuance with the pregnancy will be to make the woman a physical or mental wreck".

2.9 Abortion is violation of fetus's right to life

Medical and scientific research has proven that life begins at conception. Thus abortion is akin to murder as it is the fact of taking human life. Abortion is direct disobedience of the commonly accepted idea of the sanctity of human life.

No civilized societies in the globe permit a person to intentionally harm or take life of another person. Such an act is offence everywhere and is punishable. Abortion is not an exception or not a different to this general principle. The process of abortion is nothing but taking life of a person. So such an act of taking life of a person should not be allowed.

A mother cannot claim that "it is my body and absolutely my choice". Though fetus is a person, he/she has the right to life. According to pro-life advocates, Mother's action should not infringe the right of fetus because right to life is the supreme right for a human being.

Viability, however, is not a useful concept in the feticide context. Viability occurs at different points in different pregnancies and requires medical expertise to diagnose. Except in the very last stages of pregnancy, no one other than a physician could be expected to know the fetus is viable.

53 R v. Bourne. I Kings Bench 687 [ 1938]

------~( 21 The fetus's life interest still wan·ants the state's protection under these circumstances, and the unwanted termination of the pregnancy must be separately recognized and vindicated. A crime that results in the death of a fetus, regardless of the specific knowledge of the actor, is objectively more traumatic and culpable than violence committed against a non-pregnant person because two separate harms result.

The Federal Constitutional Court of Germany has addressed the issue of abortion and fetal right in 1975, two years after Roe v. Wade. In the judgment, the court held that respect of human dignity requires the criminalization of ab01iion.

The court has considered the full range of arguments for abmiion, and then it specifically rejected the main points of reasoning in Roe v. Wade as well as its "term solution" as inconsistent with the constitutional guarantee of the right to life. The Basic Law for the Federal Republic of Germany guarantees that "Everyone has the right to life" and it must be extended to the life of the unborn. In 1993, the Federal Constitutional Corui of Germany held that "life begins, according to the established biological-physiological knowledge, on the 14th day after conception" and the constitution guarantees the right to life to a fetus and recognizes him/her as a legal person from conception itself.

Many Legislative measures have been taken in order to assign a fetus the right to life even fi·om the time of fertilization. Such a kind of law intends to give the fetus the same status as that of every member of the Homo sapiens species.

A1iicle 4.1 of the American Convention on Human Rights, [1978] states "Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception."

In 1983, the Eighth Amendment of the Constitution of Ireland, which is known as the "Pro-Life Amendment," has been added by popular referendum. The amendment has recognized "the right to life of the unborn".

~ 22 J 2.10 Abortion and Right of mother

Mature woman, as mature human beings with all respect and dignity to be awarded the right to decide whether or not they carry a specific pregnancy to term. In Roe, it was held that a woman's right to choose not to bear a child was fundamental and could not be infringed. Right to privacy found broad enough to encompass a woman's decision whether or not to terminate her pregnancy.

The pro-life schools ask for the right of fetus and demand for abolition of abortion. But here occurs a violation on the right of mother for choice. Pro-choice is a school of thought and movement which demands the protection of the rights of the mother to choose her fertility. Accordingly, a woman has a right to choose whether to continue or terminate her pregnancy.

Pro-choice advocates argue whether or not to continue with a pregnancy is an inviolable personal choice, as it involves a woman's body, personal health, and future. They believe that both parents' and children's lives are better when abortions are legal, thus preventing women fi·om going to desperate lengths to obtain illegal abortions. More broadly, pro-choice advocates frame their beliefs in terms of individual liberty, reproductive freedom, and reproductive rights.

2.11 Fetus does not have right to life

Another argument on this side is that, embryo is not a legal person, thus it does not have any right. So there is no matter of violation of any personal rights if one got aborted.

When Roe v. Wade was decided, Pro-choice activists celebrated their "staggering victory," calling the Supreme Court opinion a "thunderbolt". The core of Roe's judgment was that women could abort unwanted fetuses as the word 'person' used in the Fourteenth Amendment, does not include the unborn. The supreme court of United States has upheld the decision in some other recent judgments too.

Nearly all abotiions take place in the first trimester, when a fetus cannot exist independent of the mother. As it is attached by the placenta and umbilical cord, its health is dependent on her health. Thus, a fetus cannot be regarded as a separate entity as it cannot exist outside her womb.

23 Although science at that time was unclear as to when "viability" began, the Court set standards based on "present medical knowledge" of the trimester progress of the pregnancy and declared that viability was reached only after the first trimester. Within the first trimester, no state interference was permissible; any decision to abort the pregnancy was left to the mother and her physician. In the second trimester, the state may begin to assert regulations, but only if reasonably related to the mother's physical well-being. Even into the third trimester when the state interest becomes compelling, any regulations must contain an exception "to preserve the life or health of the mother."

2.12 Violation of right to liberty of mother

Elective abortion was legalized by the Canadian Supreme Court in its landmark judgment on 1988. In this case, the Court determined that the national law banning abortion was unconstitutional in its entirety. Interestingly, the court relied--in part--on the fundamental nature of conscience to liberty when rendering its decision:

"The right to liberty . . . guarantees a degree of personal autonomy over impotiant decisions intimately affecting their private lives ... in a free and democratic society, the conscience of the individual must be paramount to that of the state"

The Canadian Court drew an internal connection between abortion rights and liberty of mother.

2.13 Right to privacy

The right to privacy of a woman implies some duties to the government for non interference in her private or personal matters, which includes the right to make decisions for her own child's future.

In Eisenstadt v. Baird, Justice Brennan, for the court, pointed out the privacy in a way that, "If the right of privacy means anything, it is the right of the individual, married or not, to be in free from government intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child"

24 The U.S has introduced The Freedom of Choice Act (FOCA) which declares the policy of the United States that "every woman has the fundamental right to choose to bear a child, to terminate a pregnancy prior to , or to terminate a pregnancy after fetal viability when necessary to protect the life or health of the woman. "The Act further says that the government is prohibited to interfere in her right to choose pregnancy.

The ultimate goal of the Act was to remove the substantive obstacles against the right to privacy and liberty of the women. The U.S Supreme Court in Roe held that right to privacy extends to a woman's decision to have an abortion. So, the abolition of abortion is violation of right to privacy of women.

2.14 Right to dignity and health

In the case of rape or incest, a woman is forced to carry pregnancy as a result of such a violent act, which would cause further psychological harm and clear violation of her right to dignity and right to health. Often a woman is too afraid to speak up or is unaware she is pregnant, thus the morning after pill is ineffective in these situations. It will violate her right to dignity if government prohibits abortion

If abortion is banned, or just more restricted, we would return to the days of 'back-street abortions'. That is the woman will be forced to resmi the unhygienic and wild non-medical practices. These procedures obviously cause risks to women's health.

The ability of a woman to have control of her body is critical to civil rights. Take away her reproductive choice is an utter violation of her right to life.

Former American President Thomas Jefferson once explained, "The price of freedom is etemal vigilance" He also warned, "It behooves every man who values liberty of conscience for himself, to resist invasions of it in the case of others." As this Note demonstrates, even in constitutional democracies that have provided their people with broad, enumerated individual liberties, the threat of erosion of rights is ever-present. No rights, even those that seem most fundamental are immune. They must be avidly protected and defended.

25 Each woman has bodily sovereignty, which is she has the duly qualified right to decide matters regarding her body. No one should intrude in her affairs against her will. The right to choose pregnancy is only up to that woman and the government and others only have a duty to take care her rights.

2.15 The rights of the unborn child or the rights of the pregnant woman

Another significant discourse on abortion revolves around human rights, on the one hand the right to life of the unborn child and on the other the pregnant woman's right to health and life. The strive for a liberalization of the abortion legislation in Uganda is supported by human rights­ and legal arguments, as well as medical arguments, focusing on women's health.

While there are no statements made by Ugandan political stakeholders on the issue of induced abortion, health care professionals and activists call for access to safe abortion as part of improved health care in order to promote women's rights to life and health. Several of the examined articles point out how strict abmiion laws affect the health of Ugandan women negatively. Furthermore, it is argued that the current law stigmatizes abortion, leading to increasing numbers of unsafe backstreet abmiions:

Ifabortion is legalised, many lives of mothers will be saved, a health specialist has said. Dr ( .. .), a resident mentor at the Mulago School ofPublic Health, said there are over 6000 deaths every year resulting from unsafo abortions which mainly result from stigma.

Moreover, a feature of the rights discourse is that statistics are used to demonstrate how maternal deaths (and costs of treating complications from unsafe abortions) have decreased in other countries as their abmiion laws have been changed toward a liberalization;

Unsafe abortions are common in other countries in sub-Saharan Africa. In South Africa where medical abortion was legalized since 1996, maternal deaths associated with unsafe abortion dropped from 425 recorded in 1994 to less than 30from 1998 to date.

Also, references are made to international treaties such as the Maputo protocol (The Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, which

26 )--~------was adopted by the African Union in 2003 and ratified by Uganda in 20 I 0). The Protocol calls for women's control over their own reproductive health and example of statement refen·ing to it is shown below.

Medical practitioners suggest that if the country is to curb this growing evil [maternal deaths}, abortion should be legalised. "The fact that people think it's illegal, they do it in hiding which is unprofessional while others run to traditional herbalists, " Dr (. ..) said. (. ..) Dr (. ..) said for Uganda to overcome the above, it needs to put into practice the Maputo Protocol which is signed with other 52 African Union states. "This agreement advocates licensing abortion and specifies under which conditions a mother should have an abortion. In the long run, it aims at saving the mother's life, " he said.

At the same time the Maputo Protocol is used also by those who are not in favor of changed abotiion laws, such as in the example below, saying that it is a "dangerous document" aiming at destroying African families and societies, as well as neglecting the rights of the unborn child. One argument behind this reasoning is that more Africans are needed in order for the region to become more powerful and not so easily pushed-over by dominant nations outside the continent. It is argued by "pro-life" activists, such as members of the American based Catholic organization Human Life International, which is dedicated to "protect human life from contraception to natural death", that new laws should not be imposed on African countries by the West.

The coordinator of HLI (Human Life International) in Afi'ica, (. . .), described the Maputo Protocol, which calls for the legalisation of abortion, as a dangerous document aimed at destroying Afi·icanfamilies and population. "Our first task is to help promote the culture of life. The Maputo Protocol commands the legalisation of abortion, promotion of contraceptives. This is wrong, " he said.

The representative of the anti-abortion organization above refers to a "culture of life" as an argument against a liberalized abmiion law, framing this as an issue important for African interests.

Other examples where viewpoints on the abortion legislation are put forward include articles about individual judiciary cases describing how women, health workers and others have been

27 )r------jailed, arrested or sentenced for undergoing/procuring an abortion, such as in the following article:

A clinical officer attached to Tororo general hospital has been arrested for allegedly conducting an illegal abortion (. .. .) following a formal complaint lodged to police by ( .. .) the secretary general of Human Life International, a US based organization spear heading the fight against abortion and artificial methods. 'We cannot allow this kind ofpractice to continue anymore, we have lost one life and we shall not allow these girls life to follow' ( .. .) said. " The organization has so far rescued at least 56 girls and women from abortion from various parts of the country in the past five months ofwhich 20 ofthem gave birth to healthy bouncing babies.

The girls and women are portrayed as needing "rescue" and their own capabilities and rights, to judge if they are capable of bringing up a child in their circumstances, are rejected. The health professional is the criminal, earning a report to the police by the "pro-life" organization.

The birth of a baby is seen as the endpoint and solution to the problem, as the mothers then are blessed with the gift of motherhood. There is no mention of the women's financial and social circumstances, nor their mental and physical health and how these factors would be affected by the responsibility of raising a child on their own, other than that they will be healed by having their babies.

2.16 International Human Rights Standards

2.16.1 Universal Declaration of Human Rights

Article 1 of the Universal Declaration of Human Rights states that "[a]ll human beings are born free and equal in dignity and rights." 54 Significantly, the history of negotiations indicates that the word "born" was used intentionally to exclude a prenatal application of the rights protected in the Declaration. 55 The drafters of the Declaration rejected a proposal to delete "born," and the

54 Universial declaration of human rights adopted Dec. 10 1948 55 UN Gaor 3'd Cornrn 99 Mtg

------i( 28 resulting text of the Declaration conveys intentionally that the rights of the Declaration are "inherent from the moment of bi1th. "56

2.16.2 International Covenant on Civil and Political Rights

The International Covenant on Civil and Political Rights (ICCPR) rejects the proposition that the right to life, protected in Article 6(1), extends to prenatal life.57 The drafters of the ICCPR specifically rejected a proposal to amend this mticle to provide that "the right to life is inherent in the human person from the moment of conception, this right shall be protected by law. "58

The Human Rights Committee, which interprets and monitors state compliance with the ICCPR, has fmther clarified that the ICCPR's right to life protections may be violated when women are exposed to a risk of death from unsafe ab01tion as a result of restrictive ab01tion laws. 59 In the case of K.L. v. Peru, the Committee established that the denial of a therapeutic abortion, where continued pregnancy posed a significant risk to the life and mental health of the pregnant woman, violated the woman's right to be free from cmel, inhuman, or degrading treatment.60 The Human Rights Committee reaffirmed this decision in the case of L.MR. v. Argentina, when it held that the denial of a legal abortion for a rape victim inflicted physical and mental suffering, violating the woman's right to be free from t01ture or cmel, inhuman, or degrading treatment, an d I1er ng. I1t to pnvacy. . 6I

2.16.3 Convention on the Rights of the Child

Although the Preamble of the Convention on the Rights of the Child (CRC) provides that '"the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after bi1th,"'62 the history of negotiations makes clear that this language is not intended to extend Convention protections, including right to life protections, prenatally. To the contrary, the negotiations explicitly note that this language is not "intend[ ed] to prejudice the interpretation of Article 1 or any other provision of the

56 Ibid 57 International coventant of civil & political Rights Art 6(1) (1966) 58 UN Gaor Annex 12 cession Agenda item 33 59 Human Rights Committee 2000 60 KL v Peru. Human Righls 1!53/2003 61 LMR V Argenlina, Human Rights Committee No. !608/2007 62 Convention of the Rights of the Child Adopted on Nov. 20/1989

29 J Convention," where Article 1 defmes "a child" for the purposes of the Convention as "every human being below the age of 18 years." Proponents of the amendment calling for safeguards before birth further clarified that "the purpose of the amendment was not to preclude the possibility of abortion. "63

The Committee on the Rights of the Child, which interprets and monitors state compliance with the CRC, suppotis the understanding that the CRC does not protect a prenatal right to life. The Committee has not issued any comments suggesting that there is a right to life before birth; instead the Committee has expressed concern about maternal mortality in adolescent girls stemming from unsafe abortion64 a violation of their right to life and urged reform of punitive abortion legislation. 65

63 Questiona of convention on the Rights of the child: Rep ofthe working group 1980 64 Committee on the Rights of child (CRC committee)[ 1980) 65 Committee on the Rights of child (CRC/GC)2003/4

------i( 30 CHAPTER THREE

SOLUTIONS TO THE PROBLEM OF ABORTION

3.1 Introduction

Foetuses are believed to be rights bearers who deserve legal protection. One approach places the abortion debate squarely within the right to life and proceeds on the basis that the foetus has such a right and should enjoy constitutional protection66 therefore the study sought to illustrate the solutions to the problem of abortion.

3.2 Abortion

Abortion may be classified into three broad categories depending upon the nature and circumstances under which it occurs. Like,

Natural abortion- Natural abortions is a very common phenomena and that may occur due to many reasons, such as bad health, defect in generative organs ofthe mother, shock, fear, joy, etc.

Accidental abortion- Accidental abortion very often takes place because of pathological reasons where pregnancy cannot be completed and the uterus empties before the maturity of fetus

Artificial or induced abortion - Induced abortions is denied in law as an untimely delivery voluntarily procured with intent to destroy the fetus. It is the most controversial kind of abortion. In these abortions, a physical attack on the fetus is normally required. It is not a just failure to aid the fetus.

Abortions falling under the first two categories should not be punishable. This doctrine 1s followed by almost all of the states. The disagreement is regarding the third class of abortion.

Judith Jarvis Thomson, in her well known paper A defense of abortion analyzed the controversy. According to her, if the fetus threatens its mother with death; two persons are involved, one whose life is threatened and one who threatens it. Both of them are innocent. One who is

66 Bix B(2006) Jurisprudence: Theory and Context; 4th Edition; Thomson Sweet & Maxwell at pg 126-127

------· ------~( 31 threatened is not threatened because of any fault. Similarly, the one who tin·eatens does not threaten because of any fault. So the bystanders have no role in this issue, but the person threatened only can. That is, a woman surely can defend her life against the tin·eat posed by the unborn child, even if doing so involves its death.

While replying the pro-lifers argument that fetus have the same right to life as that of his/her mother, she contended that right to life means right not to be killed unjustly. Thus abmiions for just reasons do not violate the right to life.

John Rawls critically analyzed the abmiion right and equal status of women in the political systems and held that any reasonable balance of [the values of due respect for human life, ordered reproduction of political society over time, and the equality of women as equal citizens] will give a woman a duly qualified right to decide whether or not to end her pregnancy during the first trimester. The reason for this is that at this early stage of pregnancy the political value of the equality of women is overriding, and this right is required to give it substance and force.

Ronald Dworkin has been aware of this controversy and he made a detailed study on this issue. Dworkin has bore in mind the issues, the right of fetus to live and the right of mother to choose. He did not accept the extreme position taken by the derivative claimers of prohibition of abmiion that, the fetus is a complete moral person from the moment of conception. Hence the unborn has the right to live and abortion is a murder or nearly a wrong as murder. Dworkin argued that everything that can be destroyed has an interest in not being destroyed.

Dworkin further argue that a fetus has no interest before the third trimester. According to him; nothing can have interest without having some form of consciousness. A fetus cannot feel pain until late in pregnancy, because its brain is not sufficiently developed before then. The scientists have agreed that fetal brain will be sufficiently developed to feel pain from approximately the twenty sixth week.

Thus, whether abortion is against the interest of a fetus must depend on whether the fetus itself has interests, not on whether interests will develop if no abmiion talces place. Something that is not alive does not have interests. Also, just because something can develop into a person does

------( 32 Ji------not mean it has interests either. Once a fetus can live on its own it may have interests. This is only after the third trimester.

Dworkin, Rawls and Thomson are pointing out the same thing but in different words. The summary of their arguments is, a woman has a constitutionally protected right to control the use of her own body. A decision to have children is fundamental to women's physical, psychological and social health. They are in a way upholding the decision in Roe.

The paper putting forward the suggestion that Artificial or induced abortion should be allowed in the first two trimesters, because the fetus has not attained viability. Though the fetus attains sort of viability in the third semester, it has some interests of its own. So, the abortion will amount to the violation of its rights. The abmtions in these periods should be regulated. Abo1tion in the last trimester should be punishable with some exceptions, Abortion of pregnancies caused as a result of crimes like rape or incest, Abo1tion on the ground of health (physical and mental) condition of mother and health of fetus, Family planning and Abo1tion of pregnancies of minors.

3.3 Proposals for reform· of the law on termination of p1·egnancy

I) The Penal Code Act provisions on abortion need to be reformed to give effect to Article 22(2) of the Constitution which foresees the need for a law to authorize abortion.

2) Grounds for abortion may include:

(i) If the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical and mental health.

(ii) If there is a risk that if the child was bom, it would suffer physical or mental abnormalities as to be seriously handicapped.

(iii) where a pregnancy is the result of rape, incest, or child abuse;

3) There should be a requirement for informed consent of the person having a termination.

33 4) The law should provide for surgical abortion which should be carried out by a trained medical professional and use of termination services should be provided by trained medical professional.

5) There should be a requirement for confidentiality of client termination information.

6) The law should permit a medical practitioner to object to performing a termination for ethical or religious grounds however, the professional should be obligated by law to assist if it is required to save the life of mother.

7) Offences

- performing an abortion otherwise than by or under the supervision of a registered medical practitioner.

- a woman to perform or attempt to perform an abortion on herself.

3.4 Implications for human rights

The human rights system creates three major obligations on the government. These include the obligations to: respect; protect and fulfil. The obligation to respect requires government to refrain from interfering directly or indirectly with the enjoyment of human rights through laws, policies, programs. In the case of termination of pregnancy, it means that law enforcers who arrest health providers who provide post-abortion care and care for women who report with incomplete abortion, which is not illegal, make Government fail on this obligation and thus violate the rights of women to emergency care.

The Obligation to protect calls upon Government to prevent third pmiies from interfering with the enjoyment of the human rights. Failure on the part of Government to enact a clear law on termination of pregnancy, thereby leading women to resmi to unskilled service providers who conduct unsafe abortions causing the death of the women is also a failure on the part of Government to protect women's rights to life and health.

The obligation to fulfill requires Government to adopt appropriate measures towards full realization of the ri ghts such as appropriate legislative, administrative, budgetary, judicial,

34 promotional and other measures towards the full realization of human right. This obligation requires Government to enact a law to operationalize the Constitutional provision on termination of pregnancy. Until this law is enacted, Government has failed on its obligation to fulfill the women's right to health, right to life, as well as reproductive health rights.

35 CHAPTER FOUR

CONCERNS ON INDUCED ABORTION

4.0 Introduction

The results of this study demonsh·ate that the issue of induced ab01tion within the examined articles is framed within two main discourses.

4.1 Discussion

One prominent discourse is religious and put forward by representatives of the Catholic movement, emphasizing the sanctity of life of the fetus, i.e., that the life of the fetus stands above everything else. Another discourse focuses on human rights aspects, namely the right to life of the unborn child on the one hand and on the other hand women's rights to health. Within this discourse legal and medical discourses are also drawn upon. These are for example characterized by arguments refening to legal documents and ab01tion related experiences from the medical field. Fmthermore, the a1ticulation of the discomses has bearing on who is p01trayed as to be blamed for and who is the victim of abortions. On the one hand exists the reasoning that women are victims as a result of the strict abortion legislation as it forces them to undergo illegal and unsafe abortions. On the other hand it is argued that the danger consists of that many Ugandan women, as well as the personnel assisting them, break the law by conducting abortions, i.e., committing murder.

The strong societal position of the Catholic Church is evident as they are able to set moral standards through a religion based discourse. This discourse determines the immorality of girls and unman·ied women being sexually active, the shame of unwanted pregnancies and the need for abortions. Through their rhetoric they are able to produce and reproduce the stigma of abortion. Evident within this discourse is also the absence of statements on men's role, involvement and responsibility in relation to unintended pregnancies. Furthermore, this is an approach that takes for granted that all women are naturally capable and should be willing to care for their babies, no matter under what circumstances they have gotten pregnant [28]. An underlying problem is the lack of gender equity. The prevailing culture and patriarchal system in

36 }------Uganda maintain values that privilege men in the allocation of roles and resources. For example do women tend to be poorer and more illiterate than men, and women have fewer contacts in the public sphere. Moreover do these gender structures hinder Ugandan women from being able to negotiate safe sex or contraception.

The alternatives to liberalized abortion legislation are framed as good or bad depending on the nature of the article. Described alternatives include how mothers who have wanted to abort can be helped to go through their pregnancies and then feel capable of taking care of their babies. Others include how women's health as well as the Ugandan health care system is affected negatively as a result of not adopting a more liberal legislation on abmiion. Studies have for example shown that cases where women suffer from complications resulting fi·om unsafe abotiions are a frequently acknowledged source of stress among midwives in Uganda and that this is explained by the additional workload on an already burdened health care system. Other scenarios portray how newborn babies are abandoned because their mothers did not have access to abortion.

The argumentation questioning the country's strict abortion law is generally less aggressive than the one against abortion. Argumentation favoring relaxed abmiion legislation "problematizes" the strict abortion law and describes its consequences, rather than openly criticizing groups of oppositional views and using strong words. It is evident that these actors, with other views than that of the church, need to be careful in their statements as being seen as going against religion and the will of God would impact negatively on how they are looked upon by the general public, making it harder for them to move forward with their agenda.

At the same time, however, this development has been used by religious groups in order to describe the increasing immorality of the global society as warning examples of what Uganda needs to keep away from. It is claimed that new laws should not be imposed on Africa by the West.

The stories bringing up individual cases of girls and women who have undergone unsafe abortions might be used in order to deter others from doing the same. This phenomenon has been described as "cautionary tales", i.e., by using a narrative approach the aim of these stories is to

37 prevent individuals from taking the same actions as the individual(s) featured in the texts. This was for example manifested by the frequent usage of words such as "pain" and "kill" when describing what abortion is all about. On the other hand, it is important to note that reference to the same type of stories has been made, although to a lesser degree, in order to highlight the severe consequences of women seeking unsafe abortions as a result of the existing strict abortion law. In those cases emphasis tends to be put on the stigma of abortion and how girls and women who see themselves forced to undergo abortion are treated disrespectfully.

Previous research suggests that gender equality and the call for improved reproductive rights and change of abortion laws are often preceded by increased social and democratic development. This is something that has shown to both be affected by and affecting levels and scope of women's rights campaigning. The intensity of debate in any country regarding abortion reforms has also shown to ebb and flow at government level and among the wider public, depending on political administration in power as well as the breadth and success of efforts being made by advocates. Example of such deliberation is the abortion debate that took place in the 1980s in the United States where pro-choice activism was seen as the intrusion of secularism and narcissism by right-to-life protesters. In the same way pro-choice advocates in Uganda today tend to be referred to as an evil power by so called pro-life advocates, aiming at destroying African families and the African society.

Religion, rights and a focus on who is portrayed as a victim and on who is to blame for abortions taking place, seem to be the mainstays surrounding the discourse on the abortion legislation in Uganda. The issue of gender equality, however, is only brought up as a background factor and many times as a rather unchangeable condition in the discourse on abmtion legislation in Uganda. Nevertheless, gender perspectives have become more and more prominent within the international discourse on health and rights, and the role that gender structures play when it comes to questions related to abortion laws is important to take into account and to scrutinize.

Parallel discourses can be an indication of social change. However, although there exist parallel discourses among the material of this study, no evident changes in their contents could be seen during the time period under study, and unlike the discourse on abortion on an international level it did not indicate an increase in the possibility for more scientifically based public debate on the

------~( 38 issue. All the same, there is potential for social change in Uganda as several representatives of the Ugandan health care sector argue for abortion rights. Moreover, those who argue against abortion battle the influence of the international community in the form of policy documents and statistics, which can be difficult in the long run.

It is evident that the high prevalence of unsafe abortions in Uganda requires a solution. There is need for a more inclusive and varied debate that highlights and problematizes the current situation, especially from a gender perspective. Fmihermore, there is a need for reduction of the stigma surrounding abortion in order to constructively being able to discuss solutions to the many unsafe abortions taking place. This requires collaborative actions including insights on the matter from different angles, including for example the ones of social scientists, theologians, advocates for health, rights and justice, and community members who are affected by abmiion stigma.

39 5.3 Conclusion

This study displays the sensitivity of the topic of abortion within the Ugandan society, manifested in the way different actors and their activities are portrayed and presented, including how stakeholders choose to convey their messages through the media and showcased by the nonexistence of certain statements and actors. Two main discourses are found; one religious put forward by representatives of the Catholic movement, emphasizing the sanctity of life of the fetus. Another focusing on human rights aspects; the right to life of the unborn child and women's rights to health respectively, here also legal and medical discourses are drawn upon. The articulation of the discourses has bearing on who is portrayed as to blame for and who is the victim of abortions, thus having implications for the stigma sunounding abortion. To decrease the number of maternal deaths, this study points to the need for a more inclusive and varied debate that problematizes the cunent situation, especially from a gender perspective.

The Penal Code Act in its current form has not helped women and health providers make informed decisions regarding the provision of, and access to safe, legal abortion and post­ abortion care services, leading to many preventable deaths and injuries to vulnerable women and girls. Hence, in reviewing the Penal Code Act, law makers need to streamline public health and human rights into not only the spirit but also content of the provisions relating to abortion offences and permissible circumstances for legal abortion. Ministry of Health (2006)13 has published a policy position on the circumstances under which health providers may provide abortion services- in cases of danger to the mother's physical and mental health, fetal anomaly, rape and incest, or if the woman has HIV, among others. These and other circumstances should be considered and elaborated in the revised Penal Code Act to give effect to Article 22(2) of the Constitution .

5.4 Recommendations

5.4.1 Uganda's Laws and Policies on Termination of Pregnancy

Uganda's laws and policies on termination of pregnancy are often unclear, confusing and contradictory. Yet, these laws and policies are more expansive than most believe and

41 portunities for increasing access to safe abortion services exist within the current legal and Jolicy framework.

The Ugandan Constitution does not prohibit abortion. Art. 22(2) which states that "No person has the right to tetminate the life of an unborn child except as may be authorised by law" does not preclude access to termination of pregnancy; it simply requires a legal framework to do so.

The Ugandan Constitution contains key provisions that can be used to ensure access to safe and legal abmiion services and post-abmiion care68 The Constitution affirms the impotiance of respecting human dignity, protecting people fi·om inhuman treatment,69 and according women full and equal dignity. 70 International and regional human rights standards have established that access to safe and legal abortion and post-abotiion care is essential to protecting women's most fundamental human rights.

There is no absolute prohibition on termination of pregnancy in Uganda. It is permitted to preserve the life and health of the pregnant woman. Health is defined to include both physical and mental health. This understanding was made clear in the widely recognized English case of Rex v. Bourne (1938). This case has been widely affirmed throughout the Commonwealth, including by the East Afi·ican Comi of Appeal in Mehar Singh Bansel v. R (1959).

Rex v. Bourne was the first case that addressed the grounds upon which an abortion could legally be provided in the U .I(. 71 This case has had a profound and lasting impact on the legal regimes of former British colonies and Commonwealth countries. Most colonies, Uganda included, had and continue to have an abortion provision essentially identical to the one at issue in Rex v. Bourne in their penal codes and, under common law principles, can look to British case law as an authoritative interpretation of that law. 72 In Bourne, Judge Macnaghten reasoned that the use of the word "unlawfully" in the provisions criminalizing abortion in the English Offences Against the Person Act similar to Sections 141-143 of Uganda's Penal Code was intentional and suggested that there were circumstances under which abortion could be "lawfully" procured. He

68 Constitution of the Republic of Uganda, 1995, at part XIV(b), XX, articles 27, 34(3) and 41. o

42 then reasoned that a life exception had always been implicit in the provisions criminalizing abmtion and found that a "reasonable view" of preserving a pregnant woman's life included preserving her mental and physical health. In essence, Bourne created an explicit life and mental and physical health exception to the criminalization of abortion in the United Kingdom.

In 1959, the East African Court of Appeal, which had jurisdiction over the territory of Uganda, affirmed the Bourne decision in Mehar Singh Bansel v. R, an abortion case on appeal from the Supreme Comi ofKenya73

The Ugandan government itself acknowledges that the law on termination of pregnancy contains a life and mental and physical health exception. This was the position of the Permanent Secretary at the Ministry of Health in response to a survey distributed by the Commonwealth Secretariat in 1976,74 the Solicitor General in a 2002 legal memo to the Director General of Health Services at the Ministry of Health, 75 and the Ministry of Health in its 200 I National Training CurriculU!11 for Health Workers on Adolescent Health and Development, 2006 National Policy Guidelines and Service Standards for Sexual and Reproductive Health and Rights and 2007 Management of Sexual and Gender Based Violence Survivors (Trainees' Handbook).

The Ugandan government has affirmed the importance of access to safe termination of pregnancy services and issued guidelines that specifically address who can obtain these services. The 2006 National Policy Guidelines and Service Standards for Sexual and Reproductive Health and Rights provide for access to termination of pregnancy services in cases of: "severe maternal illnesses threatening the health of a pregnant woman e.g. severe cardiac disease, renal disease, severe pre-eclampsia and eclampsia; severe foetal abnormalities which are not compatible with

73 Mehar Singh Bansel v. R, (1959] E.A.C.A. 813,832. 74 In 1976, the Commonwealth Secretariat distributed a questionnaire to 36 member states and over 60 commonwealth jurisdictions to collect information about their abortion laws. The Permanent Secretary in the Ugandan Ministry of Health responded to this survey on behalf of Uganda. His statement on Uganda's abortion law reflects the reasoning in Bourne: "I have to inform you that in this country abortion is acceptable for health and medical reasons and it is done only to save the life of the mother when it is threatened by the continuing pregnancy." In addition, in an attached questionnaire, the Permanent Secretary clearly marked life, physical health and mental health as legal grounds for abortion in Uganda. Letter from Dr. S.L.D. Muyanga for the Permanent Secretary, Ministry of Health, to Dr. K.G. Mather, Chief Executive Officer, Medical Section (Oct. 18, 1976) (on file with the Center for Reproductive Rights). 75 In the memo, the Solicitor General states that Rex v. Bourne ''introduced the common law health exception to the Jaw against abortion" and explicitly states that ''[iJn Uganda abortions for health reasons are carried out on the basis of the English Common Law." P.K. Asiimwe for the Solicitor General, ADM/7/161/01, Re: Seeking Guidelines on the Legal Definition of Abortion in Uganda, sec. 3.4, at 4 (May 7, 2002) (on file with the Center for Reproductive Rights).

43 )f------extra-uterine life e.g. molar pregnancy, anencephaly; cancer cervix; HIV-positive women 76 requestmg. fior termmatwn;. . R ape, mcest . an d d e fil1 ement. "

Govemment policies permit abortion in cases of sexual violence this has been policy for over a decade.

The Ministry of Health's 2001 National Training Cun·iculum for Health Workers on Adolescent Health and Development provides that, "in the case of rape, [service providers can] ... offer referral for abortion if appropriate and possible." 77

The Ministry of Health's 2006 National Policy Guidelines and Service Standards for Sexual and Reproductive Health and Rights and the 2007 Management of Sexual and Gender Based Violence Survivors (Trainees' Handbook) provide for access to termination of pregnancy in cases of sexual violence. 78

There is no law, policy, regulation or code of conduct/ethics in Uganda that requires a provider to consult with one or more doctors before performing a termination of pregnancy. This is also not a legal requirement under common law. 79

Under the National Policy Guidelines and Service Standards for Sexual and Reproductive Health and Rights, mid-level providers can offer termination of pregnancy and post-abortion care services. 80

There is no law, policy, or regulation in Uganda requiring that a woman obtain her husband's consent before obtaining any reproductive health services, including a termination of pregnancy. The absence of a spousal consent requirement is reflected in the 2006 National Policy Guidelines and Service Standards.

76 Reproductive Health Division, Ministry of Health, National Policy Guidelines and Service Standards for Sexual and Reproductive Health and Rights sec. 4.13, at 45 (2006) (on file with the Center for Reproductive Rights) [hereinafter National Sexual and Reproductive Health Guidelines]. 77 Ministry of 1-lealth, National Training Curriculum for Health Workers on Adolescent Health and Development: Trainee Hand Book !57 (2001). 78 National Sexual and Reproductive Health Guidelines, supra note 9, sec. 4.13, at 45; Ministry of Health, Management of Sexual and Gender Based Violence Survivors (Trainees' Handbook) 49 (Apr. 2007) (on file with the Center for Reproductive Rights). 79 Glanville Williams, The Sanctity of Life and the Criminal Law (1958) 170; Glanville Williams, Textbook of Criminal Law, Second Edition 302 (1983) 80 National Sexual and Reproductive Health Guidelines, supra note 9, at 48, 77.

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