Columns

When the Law Commission of Sri Lanka jibbed at recommending reforms to the archaic punishment of the termination of pregnancies except to save the life of a mother a decade or so ago, it showcased precisely how the uneasy meandering of conservative men of a particular age group can have a profoundly destructive impact on society.

The impact on mental health
Fortuitously, the Commission, in its later more progressive avatar, took an enlightened approach. Following measured consultations with the Sri Lanka Medical Council, the Sri Lanka College of Obstetricians and Gynecologists and the Sri Lanka College of Psychiatrists, its members recommended the medical termination of pregnancies in instances of rape and congenital abnormalities. A Bill formulated along these lines was proposed in 2013.

In taking this approach, seven factors were taken into consideration which is of interest at this juncture when the Cabinet’s proposal of broadly similar abortion law reform early this year has now reportedly been put on hold.

First, the Commission emphasized that the strict criminalization of abortion as presently contained in Section 306 of the Penal Code has an adverse impact on the mental health of woman. In other words, the lack of an option results in women victims seeking illegal abortions or carrying the unwanted pregnancy to term, both of which were termed to be ‘emotionally disturbing’ with long term impacts.

Secondly a woman who is a victim of abuse should have the right to terminate a pregnancy which is the result of a crime committed on her. Hence it is necessary to provide access to safe methods of terminating a pregnancy in such a context. Similarly, a woman carrying a foetus which is seriously impaired should have access to safe termination of the pregnancy.

The question of a crime
However, it was pointed out that a victim of incest could also be a victim of rape and hence it is not necessary to recognize incest independently of rape. In a quaintly problematic assessment, it was remarked that a woman who has ‘connived in the commission of incest’ is an offender and not a victim and need not therefore be categorized with victims of abuse.

But the Commission found that a woman who is guilty of incest should not be barred from terminating a pregnancy if the foetus is seriously impaired, on the ground of foetal impairment but not as a victim of abuse.

Fourthly, the introduction of provision to terminate a pregnancy was remarked not to be seen as a compulsion to have the pregnancy terminated. Rather, relaxation of the strict prohibition merely recognizes the right of a woman to terminate the pregnancy at her complete discretion leaving her with the freedom to carry the child if she so desires.

Fifthly, where victims of rape who are under sixteen (16) years of age are concerned, there is no issue of whether a crime has been committed or not since the criminal law as contained in the Penal Code recognizes that sexual intercourse with a girl under 16 years of age is a strict liability offence and the grant of consent by her to the act of intercourse is irrelevant. This is so even though she does possess the mental capacity to grant consent to sexual intercourse.

In terms of the criminal law therefore, if the child is pregnant and is under 16 years of age, she is the victim of a crime. The process for termination to be followed in such cases should consequently be simple, irrespective of the facts that led to the pregnancy.

A sixth factor related to the importance of maintaining a balance between providing easy access for termination in genuine cases and ensuring that the law is not abused by those who are not victims of an offence or where there is no foetal impairment. Lastly it was pointed out that the details of the procedure must be contained in a separate statute, preventing abuse of the process.

Opposed by religious groups
All its grudging concessions notwithstanding, these proposals by the Sri Lanka Law Commission in 2013 amounted to an improvement of the prevailing law. However, they received little or no traction at the time. Notably even earlier in 1995, a similar piece of law reform brought forward as part of the package of overall criminal law reforms was also discarded.

Are we now facing déjà vu in regard to the Cabinet approved law reforms in 2017 which are broadly similar to the previous proposals? One difference here is that it has been recommended that termination of pregnancy be allowed also in cases of incest along with rape, victims of statutory rape and serious foetal impairments. As in the past, this proposal has been met with cries of incredulous horror. Now the Government appears to be hastily backtracking to the dismay of many.

Here again, proposed law reform is blocked by religious and cultural groups. Indeed it is somewhat wickedly amusing that those who wrap the cloak of religion around them to argue divisively that a particular faith or belief is better than the other, bond with alacrity when there is even a whiff of reform of abortion laws. This is a sight which is as unflattering as it is absurd.

Ugly realities that privilege wealth
Such influences parade under a seemingly puritanical cover which masks ignorance and idiocy. In fact, one religious worthy, distinguished more for his close affiliations with whosoever happens to be in the seat of political power at any particular point of time than for his piousness, went so far in opposing the 2017 abortion law reforms to pronounce that, because certain musical geniuses such as Ludwig Van Beethoven and Mozart hailed from large families, it stood to reason (or not, as the case may be), every birth should not be seen as ‘unwanted’, even if it may be inconvenient.

The lack of logic in this claim is staggering. The singular accident of a musical prodigy’s birth is quite a different proposition from the ugly reality which send poor abused and battered women into backstreet abortion clinics resulting in loss of life while the economically privileged have a choice of options open to them.

In sum, this is not a dilemma that can be met by men of the cloth, constrained by their peculiarly straitjacketed views. Rather this particular piece of law reform merits judicious consideration by professionals, including health care experts. That the Government should bend before illiberal pressure is not reassuring by any means. The reformers in the Cabinet should stand firm in the face of such cruelly ironic storms.

All reasonable and rational minds in this country will surely be supportive of that stance.