Abortion: Public consultations for an informed debate necessary
— SR BALGOPAL
The legal provisions governing abortion in Mauritius are a result of the intermingling of elements of French and English law. The French ruled Mauritius from 1721 to 1810, while the British ruled from 1810 until independence in 1968. The provisions of the Penal Code dealing with abortion are derived directly from the French Napoleonic Penal Code of 1810 and from the British Offences against the Person Act of 1861. They were not modified by the 1938 revision of the Penal Code of Mauritius.
Abortion is generally illegal in Mauritius under the Penal Code. Any person procuring an abortion or supplying the means to procure an abortion is subject to imprisonment for up to 10 years. A similar punishment is prescribed for a woman who induces her own abortion or consents to its being induced. Physicians, surgeons and pharmacists who facilitate or perform an abortion are also subject to imprisonment. Nonetheless, under general criminal law principles of necessity, an abortion may be performed to save the life of the pregnant woman.
To sum up the tensions in the abortion debate, that is the tension between pro-life and pro-choice, we can refer to the leading case of the US Supreme Court in its decision of Roe v Wade. Essentially, the US Supreme Court declared that abortion bans were unconstitutional. To put the question differently, one may ask: Why is abortion legal in the first place?
In the case of Roe v. Wade, the answer boils down to one of personal rights versus legitimate government interests. The government has a legitimate interest in protecting the life of an embryo or foetus, but embryos and foetuses do not have rights themselves unless and until it can be determined that they are human persons. Women are, obviously, known human persons. They make up the majority of known human persons. Human persons have rights that an embryo or foetus does not have until its personhood can be established. For various reasons, the personhood of a foetus is generally understood to commence between 22 and 24 weeks. This is the point at which the neocortex develops, and it is also the earliest known point of viability — the point at which a foetus can be taken from the womb and, given the proper medical care, still have a meaningful chance of long-term survival. The government has a legitimate interest in protecting the potential rights of the foetus, but the foetus itself does not have rights prior to the viability threshold.
Over the last few days, there has been a heated debate on the issue of the legalization of abortion by government. Before we delve into the debate, it would be interesting to consider the existing law on abortion. This is set out in section 235 of the Criminal Code. Section 235(1) is not free from difficulty as it presents two major challenges to interpretation:
(a) What is the definition of “quick with child”?
This term is not without difficulty, as it is arguable that in legal terminology, it means that the woman has reached 15-16 weeks of pregnancy. However, this period may vary as the term “quick with child” refers to the motion of the foetus, when felt by the mother. It is this motion which is called quickening, and the mother is then said to be quick with child. It is possible that “quickening” may happen before 15 weeks or after 16 weeks, thereby leaving legal practitioners who have to apply the law in a legal minefield.
(b) Is this section not superseded by the French version?
The further issue which arises is that the French version of the Criminal Code uses the expression “l’avortement d’une femme enceinte” in section 235(1) of the Criminal Code. This, by virtue of section 10 of the Interpretation and General Clauses Act, then has the effect of making the French version of the text prevail. The result of this is that the definition of “femme enceinte” will prevail over that of “quick with child.”
For the sake of completeness, we shall reproduce section 235 of the Criminal Code below:
(1) Any person who, by any food, drink, medicine, or by violence, or by any other means, procures the miscarriage of any woman quick with child, or supplies the means of procuring such miscarriage, whether the woman consents or not, shall be punished by penal servitude for a term not exceeding 10 years.
(2) The like punishment shall be pronounced against any woman who procures her own miscarriage, or who consents to make use of the means pointed out or administered to her with that intent, if such miscarriage ensues.
(3) Any physician, surgeon, or pharmacist who points out, facilitates or administers the means of miscarriage shall, where miscarriage has ensued, be liable, on conviction, to penal servitude.
Further, we have noted that that no lesser a personality than the Director of Public Prosecutions himself has stated that the existing law on abortion dated back to 1838 and that expressions such as “quick with child” are archaic. The DPP further stated that the law on abortion needs to be revisited to bring it in tune with modern realities. The DPP also emphasized that abortion was illegal in Mauritius.
In addition to having the practitioner’s standpoint on the need to revisit our legislation on abortion, the stand of the DPP begs a few questions:
(a) How many successful prosecutions for abortion have been conducted?
(b) Since when was the gap in the law, in so far as it impeded successful prosecutions, identified?
(c) Has the gap in the law been the subject matter of a request for amendment in the past?
(d) How many abortion cases are enquired into by the police and how many have led to a no further action because of the legal hurdles facing the prosecution?
(e) Is the termination of pregnancy to save a mother’s life deemed to be abortion under Mauritian law? (A cursory reading of section 235 of the Criminal Code would give an affirmative answer but given the complex interpretation issues which arise, it may be difficult to institute a successful prosecution. Further, in the exercise of prosecutorial discretion, there is a public interest test which has to be passed and it is highly improbable that in such a scenario, the public interest test would be satisfied.)
In addition to the DPP, there have been other voices which have spoken in the debate on abortion. Thus, we have seen that Monseigneur Piat has requested members of Parliament not to toe the party line on this issue. A conscience vote is not an issue which is novel and we can only agree with the stand of Monseigneur Piat on this specific issue. However, we can only express our strongest reservations when the head of the Catholic Church in Mauritius, a sovereign, democratic and secular State, uses his position to be the mouthpiece of the Vatican, a Catholic State. Monseigneur Piat is free to voice his views and he should be given every opportunity to do so but what he cannot do is to impose the views of the Vatican on the secular State of Mauritius. He can talk on behalf of Catholics but he cannot claim to voice out the views of Mauritians at large.
We have also noted that the Muslim Ladies Council, the Muslim Youth Federation, the Mouvement Aide à la Maternité (MAM), Père Jean-Maurice Labour et Dr François Yip have constituted “Front Commun contre l’Avortement” and that this movement had its first meeting with the press on 14 September 2011. It would appear that this movement is driven by ideological considerations as it is against abortion in absolute terms. It does not consider abortion to be acceptable in any circumstances and the comment of Dr Francois Ip is very revealing on the ideological standpoint of this group. Dr Francois Ip had this to say: “Décider de légaliser l’avortement en avançant des prétextes comme le viol ou l’inceste n’est pas sensé.”
The comment of Dr Ip, reflects the fact that ideology risks clouding the debate. Have the “Front Commun contre L’Avortement” seen the proposed draft legislation so that they are in a position to make cogent comments on it or will they not change their views come what may?
Having set out the context of the debate, we may now make a few comments in view of the proposed amendments to the Criminal Code.
(a) These proposed amendments should be circulated to the public so as to demystify the debate on abortion;
(b) Should there be no circulation of the proposed amendments, the religious groups and ideologically motivated person will speak on behalf of the silent majority;
(c) The amendments to be brought to the law on abortion should in our view –
(i) be made with a view to clarifying an obscure existing law;
(ii)be made with the interest of the mother and foetus being primary considerations;
(iii) cater for abortions in cases of rape and sexual intercourse with minors;
(iv) consider the possibility of abortion in cases where pregnancy might lead to severe consequences (mental, physical or psychological) to the child or the mother;
(v) provide a safe framework in which abortions can be done;
(vi) ensure that Government Medical Officers have the final say in the issue of authorising abortions as they may not have a pecuniary interest in conducting an abortion;
(vii) ensure that abortion is not used as a means of birth control.