How the law is fuelling unsafe abortion

Besides being incomplete, Malawi’s laws and policies on abortion do not talk to each other. EPHRAIM NYONDO looks at how this is affecting the country’s drive to curb unsafe abortion.

To the question: what should Malawi do to tame the scourge of unsafe abortion?,  Malawians should be pardoned for answering “Why should we care?”

Defined by the World Health Organisation (WHO) as termination of an unintended pregnancy carried out by people lacking the necessary skills or in an environment that does not conform to minimal medical standards, induced abortion, which is commonly referred to as unsafe abortion, is slowly becoming a scar on the conscience of the country’s health care delivery.

For example, in 2011, the Reproductive Health Unit in the Ministry of Health, with technical support from IPAS and UNFPA Malawi, conducted a study to assess the scale of the problem.

The study, the first of its kind in Malawi, established that one in five women who seek post-abortion care had severe complications.

In 2009 alone, there were about 70 500 induced abortions in Malawi. Of these, almost half are younger than 25 years old, four out of five are married and about two-thirds live in rural areas.

According to the study, an estimated one in five women had severe complications, seven percent had moderate complications and 73 percent had low or no complications.

Economically, unsafe abortion is rearing its ugly head on the country’s thin purse.

In providing post-abortion care, government loses between $300 000 (K120 million) and $500 000 (K200 million) every year.

Even the safe motherhood drive by President Joyce Banda is on the rocks because of unsafe abortion.  At 675 per 100 000 live births, Malawi’s maternal mortality rate is one of the highest in the world. Seventeen percent of the deaths are attributed to unsafe abortion.

So, should Malawi maintain its business-as-usual approach to the problem?

Although there are many factors that promote unsafe abortion, experts single out the law as the major problem.

In the first place, at the policy level, Malawi is winning the war on unsafe abortions.

For example, the National Sexual and Reproductive Health and Rights Policy (SRHRP) of 2009 does not just call for “prevention of unsafe abortion and management of any complications with high quality post-abortion care services, including counseling, family planning and use of manual vacuum aspiration as appropriate.”

More importantly, the policy calls for “the provision of abortion services to the full extent of the law.”

“Service providers in public and private sector shall provide or refer for safe abortion to the full extent of the laws of Malawi all women deemed to require or requesting the termination of their pregnancies,” reads the policy.

Yet despite winning at the policy level, there are deep elements of ambiguity in the laws governing abortion, especially in the Penal Code.

Contrary to popular views, abortion, under Section 243 of the Penal Code, is legal in Malawi.

The section says performing an abortion is not a crime if it is done “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.”

At the same time, under Sections 149-151 of the Penal Code, abortion legislation is very restrictive.

Section 149 says “a person who assists a woman to abort is guilty of a felony and may be imprisoned for up to 14 years” while Section 150 provides that “a woman who aborts or attempts to abort is guilty of a felony and may be imprisoned for up to 7 years.”

In addition, Section 151 says “any supplier of items, drugs etc is guilty of a felony if he/she was aware that the item is intended to be used for abortion, and may be imprisoned for up to 3 years.”

What this means, according to Chrispin Sibande, a legal officer at IPAS, is that despite abortion being legal, the law is very restrictive in the sense that it demands that abortion should be carried out by “any person with reasonable care and skill to carry out an operation to preserve the mother’s life.”

Sibande also said there are no standards and guidelines to guide policy makers, NGOs, the Ministry of Health and medical professionals on how to apply Section 243 of the Penal Code.

“This section is vague. For instance, it fails to answer questions such as: who makes a decision that the pregnancy should be terminated between doctor or patient? At what stage can this decision be made? At which health facility? What are the counseling guidelines? What about religious beliefs? What about family planning awareness?” he said.

The net effect of this, said Sibande, is that there are free-for-all abortions being carried out by many unskilled people.

“Further, we have a situation that all complications related to unsafe abortions are ending up in hospitals.

“So, hospitals are spending a lot of time and resources providing post-abortion care from unsafe abortions. This is in form of providing space in the wards and ICU, operations in theatre and provisions of necessary drugs,” said Sibande.

He said the country needs to open up and start talking about the issue, scale up family planning and reform the law on abortions.

“This current situation is fuelling a lot of unsafe abortions. It is costly to the nation, and the space to access safe abortion is very limited.

“If you can ask Malawians now whether women are having abortion almost everybody will say ‘yes’. But if you go further and ask them as to ‘how’ and ‘where’, there will be a lot of murmuring and hiding of information.

“If you go to the hospitals especially gynecological wards they will tell you that 30 percent of the space is being occupied by unsafe abortion patients.

“Then you realise there is chaos which should not continue where women are injured and killed. It is time to put in place a proper law that will address the problem and stop women from dying,” said Sibande.

Malawi has ratified a number of human rights treaties and consensus documents relating to abortion.

These include the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Maputo Plan of Action and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, also known as the Maputo Protocol.

Article 14 (2) (c) of the Maputo Protocol specifically calls for the enactment of policies and legal frameworks to reduce the incidence of unsafe abortion and the provision of abortion services on broad-based legal grounds, including “in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother.”

In its most recent review of CEDAW, the CEDAW Committee reiterated its concern regarding Malawi’s high maternal mortality, particularly from unsafe abortions. The committee called for more attention on complications from unsafe abortion and recommended that the country needs to review its abortion laws.

In January 2013, government set up a team to develop a Pregnancy Terminal Act. If the country turns the bill into law, it will not be the first in Africa.

Countries such as South Africa, Zambia, Ethiopia, Tunisia, Ghana and Cape Verde have their termination of pregnancy laws already in place. In fact, Zambia enacted it in 1972.