What’s in the Proposed Termination of Pregnancy Bill?

In June, 2013, the Malawi government constituted a Special Law Commission to review the country’s abortion law.  It was indicated that this was due to a 2009 study that revealed that 17 percent of all maternal deaths were as a result of abortion complications due to unsafe means which expectant women were using.  

It is against this background that this entry shares with you what the Special Law Commission on the Review of the Abortion Law has finally come up with and their recommendations on the abortion law.  We all waited for what the commission will say about our termination of pregnancy law and now it is time to hear it. 

Before delving into the issues, let us take a short diversion and bear in mind that the issue of abortion or termination of pregnancy - as some people always prefer to call it (though in essence it is the same thing) has caused debates. The debates have always been value laden. Emotions rather than reason guided the debates so much that people have always ended up attacking each other's personalities and circumstances ignoring the critical issue at hand. As is always the case in such scenarios; nothing prolific has ever come out of such hullabaloos.  

As earlier indicated, this entry is not judging or taking sides in this ‘chronic’ debate but rather, the aim is to share with you the essence of the proposed Termination of Pregnancy Bill which is to be submitted to the Ministry of Justice and Constitutional Affairs. As the country’s democratic procedures dictate, the next step is that the cabinet will deliberate and then it ‘may’ be tabled in parliament. 

Getting back to the real business; on 17 July, 2015, the Malawi Law Commission stated that the country’s law on abortion (termination of pregnancy) has been liberalized. This has been achieved after bringing in an element of flexibility on the restrictions so that under certain circumstances, abortion/termination of pregnancy should be allowed. Thus, in the recommendations, the termination of pregnancy is to be allowed based on four justifiable instances. According to the recommendations of the commission there should be four justifiable conditions where termination of pregnancy should be permissible;   

Firstly, the proposition states that abortion can be procured where the continued pregnancy will endanger the life of a pregnant woman. However, it is indicated that this will require recommendation from a certified health service provider who may perform a termination of pregnancy where he or she forms an opinion in good faith.

Secondly, the commission recommends that abortion can be procured where termination is necessary to prevent injury to the physical or mental health of the pregnant woman. Again, a certified health service provider should recommend or perform an abortion where he or she forms an opinion, on reasonable grounds.

On the third ground, the commission recommended that abortion can be procured when there is a severe malformation of the foetus which will affect its viability or compatibility with life. An opinion of a certified health service provider is required on this ground as well. 

The fourth and last ground for abortion is where the pregnancy is as a result of rape, defilement or incest. The Chairperson of the Special Law Commission on the Review of the Abortion Law, High Court Judge Esme Chombo stated that this fourth ground covers concerns regarding pregnancy of minors who are not mature enough for child bearing and also covers the increasing cases of incest especially where the victims are minors. 

Currently, abortion is illegal in Malawi and the offence carries a three to 14 years sentence. However, the proposed bill may lead into decriminalization of abortion based on the suggested four conditions.  A quick search indicates that many young girls have obstetric fistula and there are a lot of single mothers and adolescent girls who are failing to take care of their children who were born as a result of rape, defilement or incest.