The conditions of the right to abortion in 1994 and 1999

The issue of abortion cannot be studied without taking the legal status of the act into consideration. Policy on abortion fluctuates from country to country, ranging from total prohibition to authorization granted simply upon a request being made by the woman in question. Depending on whether abortion is legal (or illegal), it will be carried out in properly (or improperly) hygienic and safe conditions, and its social and medical consequences will be very different for the women involved, as well as for the people who practice it. The legal conditions of abortion also bear consequences on the available statistics and indicators. Legislative relaxation and changes have for the most part been prompted by a desire to reduce the maternal morbidity and mortality associated with the act of abortion. Blayo (1998) points out that with regard to the general debate over the legalisation of abortion “the risks of abortion are far more dependent on its legal status in a given country than on that country's level of development”. The issue of legalisation has always been the object of numerous controversies, as much on the part of the legislators as the medical profession or the wider community (e.g. family, religious leaders, women's rights organisations etc.).

Few articles are specifically dedicated to the issue of the legalisation of abortion, with the exception of articles concerning South Africa, where numerous debates took place during the legislative changes made following the end of apartheid. This issue is frequently mentioned in order to highlight the consequences of illegal abortion and to put forward proposals for revisions to be made to the law.

In Africa, as in a good number of southern countries, the laws are on the whole fairly restrictive (table 1). These laws are written into the civil codes of States that define the conditions relating to them (such as reasons, duration of the pregnancy, required authorization, sanitary conditions for the practice of the act, possible penal sanctions etc.). Sometimes they are remnants of a colonial past. In most French-speaking African countries, they are still modelled on the French law of 1920 restricting access to contraception, and in the English-speaking countries they are modelled on of the 1861 law on “crimes against the person” (Knoppers et al. 1990; IPPF, 1994).

·  In 1999 no African country completely prohibits abortion, but legal access to it remains extremely restrictive. Of the 53 African countries:

·  25 countries will only permit abortion if the life of the mother is in danger; Sudan adds to this condition the possibility of aborting in the event of rape or incest;

·  In Zimbabwe, abortion is legal only if the life or physical health of the woman are threatened, or in the event of rape, incest or malformation of the foetus;

·  In 23 countries, abortion is only possible if life or physical or mental health is threatened. In addition to these conditions Cameroon stipulates that abortion is also possible in the event of rape or incest, and six other countries add to these possibilities recourse to abortion if the foetus is malformed. Mozambique adds to these health conditions permission to abort in the event of contraceptive failure;

·  In Zambia abortion is legal if life or physical or mental health is threatened, or for economic or social reasons or in case of foetal impairment;

·  Only Cape Verde, Tunisia and South Africa permit abortion upon demand by the woman.

However even when abortion is liberalized, very often there are legal restrictions connected to its access. Sometimes these exist in order to ensure that the procedure is carried out in conditions of adequate safety. Access is also limited by the fact that the decision as to whether or not to seek an abortion does not always belong to the woman alone (Gautier, 2002).

Gestation period is often cited in law to define the legal framework within which these abortions may be carried out. Abortion is permitted at up to 12 weeks of pregnancy in Cape Verde and South Africa, 16 weeks in the Seychelles, 20 weeks in Swaziland and up to three months in Guinea-Bissau, Tunisia and Angola.

These periods may however be prolonged in certain countries. In South Africa for example, where abortion is practised on demand, the 12 week limit may be extended to between 13 and 20 weeks if the woman's physical or mental health is threatened, if there is a chance that the foetus may be physically or mentally abnormal, in the event of rape or incest, or if the pregnancy is causing the woman economic or social problems. The deadline may be set at later than 20 weeks if the woman's life is in danger, or if there is a chance that the foetus may be seriously deformed (Anonymous, 1997).

In certain countries the woman's (written) consent is sometimes requested before carrying out an abortion. This is the case in Angola, Burundi, Cape Verde, Eritrea, Ethiopia, Ghana, Kenya and Libya. Such consent can help to prevent dangerous practices. However in many countries women do not have sole control over their decisions. The husband's consent is required in Egypt (unless a doctor certifies that the abortion is necessary), Kenya and Malawi (each theoretically) and Guinea-Bissau.

If the woman is single, if she is a minor or considered to be "incapable", various authorizations are sought. Authorization from a father or legal guardian is sought in Guinea-Bissau or Libya, from a close relative or guardian in Eritrea and Ethiopia, and from the family in Togo.

In most countries authorization from the medical profession is also necessary in order to decide whether a woman may abort – this is a decision which must be taken by one or several doctors, and sometimes by specialists such as gynaecologists and psychiatrists. In certain countries such as Benin, Senegal and Côte d'Ivoire, the law demands that doctors authorising abortions be officially designated by the courts. In Zambia the consent of a psychiatrist may be requested (Koster-Oyekan, 1998).

In addition to these restrictions regarding time limits and authorizations required from family or doctors, there are constraints on the staff and organizations authorized to carry out abortions. Abortions should only be carried out in a certain number of medical structures, most frequently a (public) hospital or clinic approved by the government. They should only be carried out by specific personnel such as doctors or surgeons.

These two conditions explain why abortion is far more available in urban areas. For example in Tunisia, where abortion is permitted on demand, women living in rural areas have no access to abortion due to the absence of medical organizations in a position to carry out the procedure (Gastineau, 2002).

All of these restrictions on the legal terms and conditions of abortion and the authorizations necessary to carry it out contribute to the enduring practice of illegal abortion. For certain women it is difficult and sometimes impossible to enter into the legal framework surrounding abortion, for example in the case of teenage girls who want to terminate their pregnancies without the knowledge of their parents.

The penalties set out for breaking the law vary greatly depending on the country. A prison term and/or a fine are sometimes imposed on the person carrying out the abortion, but also on the woman who has sought the abortion. In Côte d'Ivoire, anyone who carries out or attempts to carry out an abortion with or without the consent of the woman is liable to between one and five years in prison and a fine of between €230 and €2,300. If they regularly carry out abortions then the prison term can be between one and five years and the fine can reach between €1,500 and €15,000. A woman who attempts or accepts an abortion is liable to between six months' and two years' imprisonment and a fine (United Nations and Population Division, 2001). In reality these penalties are rarely imposed in Côte d'Ivoire, since abortion is "tolerated" there, however the illegal status of the act sustains practices that threaten the health of women (see below).

During the Cairo conference of 1994, the participating countries committed themselves to improving women's access to reproductive health programmes. The Cairo Programmes of Action notably stated that abortion should not be promoted as a method of contraception. Abortion was recognised as being a major cause of maternal deaths, and in an effort to reduce this mortality rate “governments and inter-governmental and non-governmental organisations are strongly encouraged to intensify their commitments towards women's health, and to treat the consequences of abortions carried out in unsafe conditions as a major public health problem” (Nations Unies, 1994).

One might expect the governments who adopted this Cairo action programme to soften their laws on abortion, in order to limit the number of women turning to illegal practices which are harmful to their health. But have these commitments resulted in any advances in abortion-related legislation?

We compared the changes made to laws between 1994, which was the date of the conference, and their evolution five years later.

At the date of the conference, abortion was:

·  completely prohibited in five countries,

and permitted:

·  purely in order to save the woman's life in 21 countries;

·  to save the woman's life and her physical health in 13 countries;

·  to save the woman's life and her physical and mental health in 12 countries;

·  in addition to these health issues, for economic and social reasons in two countries;

·  on demand in one single country, Tunisia, which is seen as a pioneer with regard to its abortion laws – abortion has been permitted there since 1965.

In addition to these various conditions authorization was also granted in the event of rape or incest in 11 countries and if the foetus was malformed in 9 countries.

What kinds of changes were introduced into the laws of these African countries between 1994 and 1999?

Did these laws remain stable, were they relaxed or did they become more restrictive (table 2)? The changes are examined using these three kinds of evolution. The same table is used to represent the other southern countries.

In over half of African countries (29 countries out of 53), no legislative change has been made since Cairo. Abortion remains permitted:

·  purely to save the mother's life in the following 17 countries: Angola, Benin, Chad, Côte d'Ivoire, Democratic Republic of Congo, Gabon, Guinea-Bissau, Lesotho, Libya, Madagascar, Mali, Mauritania, Niger, Senegal, Somalia, Togo and Sudan, which also permits abortion in the event of rape or incest;

·  to save the mother's life and her physical health in Zimbabwe, as well as in the event of rape, incest or malformation of the foetus;

·  to save the mother's life and her physical and mental health in nine countries as follows: in four countries – Gambia, Guinea, Sierra Leone and Uganda, plus five countries which also grant permission in the case of rape, incest or malformation of the foetus – Botswana, Ghana, Liberia, Namibia and the Seychelles;

·  to save the mother's life and her physical and mental health, as well as for economic and social reasons in one country – Zambia – which also allows abortion if the foetus is malformed;

·  on demand by the woman in one single country: Tunisia.

20 out of 53 countries have seen improvements in their laws. Sometimes these improvements only mark slight progress. Thus abortion is now legal:

·  in order purely to save the mother's life in five countries: The Central African Republic, Djibouti, Egypt, Mauritius, and Sao Tome and Principe, which has moved from total prohibition to a consent which remains very restrictive;

·  to save the mother's life and her physical and mental health in five countries: Kenya, Mozambique, Nigeria, Tanzania (where abortion was previously only permitted to save the mother's life) and Cameroon, where consent is also granted in the event of rape or incest, whereas in 1994 it was only given if the woman's life or her physical health were threatened;

·  to save the mother's life and her physical and mental health in eight countries: Burundi, Comoros, Equatorial Guinea, Eritrea, Ethiopia, Morocco, and Rwanda where permission is also granted if the mother's mental health is under threat; Burkina Faso adds to these conditions the event of rape, incest or malformation of the foetus, whereas previously abortion was only authorized if the mother's life or her physical health were threatened;

·  on demand by the woman in two countries. Previously abortion was only permitted in South Africa if the pregnancy was threatening the life or physical or mental health of the woman, or in the event of rape, incest or malformation of the foetus. In Cape Verde it was allowed under these same conditions and also for economic or social reasons.

·  Abortion is sanctioned purely in order to save the mother's life in three countries – in Congo and Malawi, whereas previously these two countries also permitted it if the woman's physical health was in danger, and in Swaziland, where it was also previously permitted if the woman's physical or mental health were under threat.

·  Abortion is sanctioned to save the mother's life and her physical and mental health in one country, Algeria, which in 1994 also granted consent in the event of rape or incest.

Since 1994, access to abortion has improved in certain countries but these changes remain slight. In four countries the legal conditions surrounding access to abortion have deteriorated as new restrictions have been introduced.

In 1999 no country completely prohibits abortion any more, but only three countries permit it on demand by women. All African countries sanction it in order to preserve the woman's life and in 24 countries it is legally permitted for that sole reason.

Access to abortion remains essentially linked to women's health considerations, such as preserving their lives and physical and mental health. This follows the same reasoning as access to family planning, which in many African countries is still essentially only prescribed to married women in order to space out their births and thus preserve their own health and that of their children.

In 11 countries abortion is permitted if the foetus is malformed, however when the poor antenatal care which most women in Africa receive is taken into account, along with the problems they have in gaining access to medical antenatal screening techniques, it becomes clear that this possibility will only concern a limited number of cases. This kind of screening only exists in certain hospitals or private clinics reserved for the higher social classes.

As for authorization granted in the event of rape or incest, this is certainly not accessible to some women, and to teenagers in particular – their sexuality is not socially recognised and they have problems managing their sexual relationships, particularly with older partners (Silberschmidt and Rasch, 2001). Agreement by one or two practitioners is sometimes necessary, as is the case in Botswana.

Thus in Africa, as in most Asian and Latin American countries (see link on the map), there are few countries with very liberal laws on abortion, since only two countries allow access to it for economic and social reasons, and three on demand by the woman. Given these conditions women seeking abortions do so illegally and expose themselves to dangerous practices.

The debate over the legalisation of abortion has always been controversial in the eyes of the different social protagonists involved, such as lawyers, doctors, politicians, women's groups and religious figures.

The legislation involved is influenced by ethical, religious, sanitary and occasionally demographic considerations. Certain authors also point out that the liberalization of abortion could lead to greater sexual freedom, which is a criticism sometimes also levelled at family planning (Orji, 2003). The issue of abortion is also viewed from a different angle by a legal approach which considers abortion to be a woman's right, and that limitations to this right constitute a form of gender discrimination (Bennett, 2000, Teklehaimanot, 2002).

The ethical considerations involved in this issue relate to the rights of the foetus and the concept of the human individual. The issue of respect for life is at the centre of many debates, which are notably based around the question of when the foetus should be considered a human being. However these debates do not take into account the risks run by women undergoing illegal abortions.

The different religions each have their own very specific standpoints with regard to abortion, which are also based around the idea of the rights of the foetus and the human individual (Mfitzsche, 1998; Lane, Jok, et al., 1998; Ejiro Emuveyan,, 1994). The Christian religion has demonstrated its opposition to abortion since 1968 with the Humanae Vitae encyclical, which says that abortion, along with sterilisation and even artificial contraception, are illicit methods of contraception. This stance was reaffirmed in Cairo when the Vatican expressed considerable reservations about the initiatives adopted and maintained that "human life begins at the moment of conception, (…) and should be defended and protected". Consequently the Vatican cannot accept abortion or the policies that defend it (Nations Unies, 1994:154).

The Jewish religion is opposed to abortion, except where the woman's life or physical or mental health is in danger, or in the case of malformation of the foetus or rape. The identity of the individual is not considered until the birth.

The Muslim religion only authorises birth control in order to save the life of the mother or if there are fears for the survival of the children. Abortion is rejected insofar as it is a method of birth control. There are different interpretations as to the idea of the life of the foetus. Hindu religions prohibit abortion.

Abortion is sometimes used in population policy with the aim of:

·  reducing demographic growth in order to reduce the number of births inciting / forcing women to have abortions. This kind of policy has not been adopted in Africa but has been in certain Asian countries.

·  increasing demographic growth through total prohibition or restriction of abortion in order to increase the number of births.

These objectives are not explicitly set out in African demographic policy. In Romania, the government restricted access to abortion from 1966 in order to increase the birth rate. Whilst the number of births increased after these restrictions were introduced, a major effect of the ban on abortion was a large rise in maternal deaths following illegal abortions (Johnson, Horga, et al., 1996).

The decision to legalise abortion is often made in conjunction with health considerations, in order to reduce maternal morbidity and mortality following illegal abortions, and also to avoid children being born with abnormalities or illnesses. If abortion is legal,

·  risks to the woman's health will be limited due to the greater safety of methods used,

·  staff carrying out the procedures will be qualified,

·  better post-abortion care will be offered, which will prevent repeated abortions through appropriate counselling and access to family planning.

·  Legalisation facilitates better ways to measure the occurrence of abortion, notably through the collection and availability of data and indicators on the subject (see below). In countries where abortion is legal there are medical statistics and it is easier to carry out studies on this issue.

·  The legalisation of abortion leads to a limit on these costs, i.e. individual costs (paid by the woman) and collective costs (paid by society and the state) for the care of abortion-related complications in countries where abortion is illegal (see below). When the procedure is illegal there are also psychological and social costs to be added.

Conclusion

The situation with regard to abortion legislation shows that, in Africa, women's sexuality and fertility is still heavily controlled, with various restrictive laws stipulating the need for marital or parental authorisation. Therefore women's reproductive rights, such as they were defined during the Cairo conference, with an emphasis on the possibility of risk-free sexuality and being able to decide freely when to procreate, are not being respected since recourse to abortion remains very limited and its consequences for women are serious.