Conscientious objection in draft abortion law

Tom Sangala July 3, 2019

306 3 minutes read

By Bongi Jere:

Currently estimated at 6 maternal deaths per 1,000 live births, Malawi is one of countries in the world with highest maternal mortality ratios. Over the years, Malawi Demographic Health Surveys have continuously revealed that maternal deaths remain a public health problem. The common causes of maternal deaths are sepsis, haemorrhage, obstructed labour and unsafe abortions. Interventions are being implemented to address these causes of maternal deaths. In terms of unsafe abortion, research has shown that the most viable solution to address the challenge is through the enactment of a progressive abortion law. Here are excerpts of the draft Termination of Pregnancy Bill:

Conscientious Objection

— (1) A person shall not be under a duty to perform a termination of pregnancy where he has a conscientious objection.

(2) A person who exercises the right to conscientious objection shall promptly refer the pregnant woman to another health service provider who is willing and able to provide the service.

(3) Notwithstanding subsection (1), a health service provider shall provide women seeking to terminate a pregnancy with information on legal termination of pregnancy services.

(4) The right to conscientious objection may only be exercised by a person who is directly involved in the termination of pregnancy.

(5) A person shall not exercise the right to conscientious objection where termination of pregnancy is necessary to save the life of the pregnant woman or in an emergency situation.

(6) A person who contravenes the provisions of this section commits an offence and shall upon conviction be liable to a fine of K5,000,000.00 and imprisonment for five (5) years.

Evidence of rape, incest, defilement

A pregnant woman shall, before seeking termination of pregnancy on the ground of rape, incest or defilement, report the crime to police and such report shall be prima facie evidence for accessing termination of pregnancy services.

Consent for termination of pregnancy

— (1) Before any termination of pregnancy authorised under this Act is performed on a pregnant woman, a certified health service provider shall require the consent of the pregnant woman before terminating the pregnancy.

(2) A certified health service provider shall require, in the case of a pregnant child and before termination of a pregnancy, consent of the parent or legal guardian.

(3) Notwithstanding subsection (2) a certified health service provider may terminate a pregnancy of a child where he forms an opinion, in good faith, that consent of a parent or legal guardian may be difficult to obtain or is being unreasonably withheld and that termination of pregnancy is in the best interests of the child. Confidentiality of information

(4) In the case of a pregnant woman who is incapacitated, a certified health service provider shall obtain consent to terminate the pregnancy from a legal guardian or next of kin.

Confidentiality of information

— (1) Every person in charge of a health facility approved to perform termination of pregnancy shall maintain a register and record of all terminations of pregnancy carried out at the facility.

(2) Information and records on termination of pregnancy shall be kept confidential except where it is required by—

(a) the Minister or a person in charge of a public health facility or authorized health facility when carrying out his duties under the Act;

( b ) the Minister for research and statistical purposes;

( c ) a police officer not below the rank of Superintendent or such police officer as may be authorized by him, who is investigating Grievance handling procedure whether or not an offence has been committed under this Act;

(d) a person who is acting pursuant to a court order;

(e) the registrar of a health professional regulatory body or a member of staff authorized by him conducting an investigation of an alleged misconduct or negligence; or

(f) any other person to whom a pregnant woman consents that the matter be disclosed.

Grievance handling

—(1) A woman seeking services to terminate a pregnancy has a right to lodge a complaint against a decision refusing her access to a legal termination of pregnancy or in relation to any part of the broader abortion services.

(2) Every health facility authorised to provide termination of pregnancy under this Act shall set up a complaints handling Unauthorized termination of pregnancy committee headed by a certified health service provider not below the rank of clinical officer to hear complaints on abortion related services.

(3) Where a certified health service provider not below the rank of clinical officer to head the complaints handling committee is not available at a particular health facility, a complaint may be lodged at the nearest health facility where such certified health service provider is available.

(4) Where a complaint has been lodged by a pregnant woman aggrieved by a decision refusing her treatment to terminate a pregnancy or in relation any part of the termination of pregnancy service, such a complaint shall be heard and determined within 30 days of it being lodged.