Issue of rape and consent in new abortion law

Tom Sangala June 4, 2020

762 3 minutes read

By Mateyu Sisya:

Section 8 of the proposed law states that before termination is sought on the grounds of rape, defilement or incest, the offence has to be reported to police and such report shall act on the face of it as a ground for termination. This is a welcome development. The proposed just states that there has to be a report. It does not state that there has to be proof of the allegation. If the law was to the effect that the allegation has to be proved and a conviction sought I would have placed an undue burden on the pregnant women.

Most of sexual offences are committed by people who are close to their victims. It would have been difficult for the victims to come to court as witnesses against their own family members as a lot of intimidation and coercion goes around in sexual offences. In addition, the standard of proof in criminal cases is so high and that court cases take a long time to conclude due to a variety of reasons which means that by the time the case concludes the pregnancy will have grown rendering the termination services nugatory.

Section 9 of the proposed law deals with consent. The proposed law specifically states that the pregnancy shall not be terminated without the consent of the pregnant woman. If the owner of the pregnancy says no then the health service provider cannot perform the termination. For example, even if the life of the woman is in danger, according to the medical opinion, if she does not consent to the termination, shall a termination shall not take place.

If the pregnant person is a child, the proposed law demands that consent must be sought from the parent of the child or her legal guardian (a legal guardian is the person who assumes parental responsibilities of a child). A legal guardian may not necessarily be a biological parent of the person. As long as that person assumes parental responsibilities of a child he/she is a legal guardian. However, if the health service provider is of the opinion that the consent of the parent or the legal guardian will be difficult to get or unreasonably withheld, the health service provider shall terminate the pregnancy and this has to be done if it in the best interest of the child.

The proposed law however does not provide the definition of who is a child for purposes of this Act. Nevertheless, the universal definition of a child is any person under the age of sixteen (16), so we can assume that the child who is being mentioned here is a girl who is below sixteen years old. Further, the proposed law states that in case of an incapacitated woman, the consent shall be obtained from a legal guardian or next of kin. In this case a legal guardian is a person who takes responsibility for the affairs of the incapacitated person.

Section10 of the proposed law states that there will be a register kept at the health facility keeping a record of terminations that have been performed at the facility. It is the demand of the proposed law that such information shall be kept confidential at all times unless the Minister or a person in charge of a public health facility or an authorised health facility asks for such information in carrying out duties under the Act. What this means is that information on terminations will only be released to authorised persons if they request such information on matters that are related to the proposed Act and not for any other purposes. The law recognises that health matters are confidential and that any unnecessary and unauthorised release of confidential information on a person`s medical history is a breach of their right to privacy.

The information can also be released for research and statistical purposes. However, the proposed law does not define the meaning of research or what are statistical purposes. However, what is inspiring is that the law realises the importance of confidentiality to avoid making women shy away from exercising their rights to accessing termination of pregnancy services which may eventually lead to the women seeing unsafe and illegal services for fear that their information will be publicised.

Further, the information can also be released to a police officer not below the rank of a superintendent or any other officer who has been authorised by the superintendent while carrying out investigations of whether or not an offence has been committed under this Act. In addition, the information can also be released if there is a court order or if the registrar or a staff member authorised by him of a health professional regulatory body needs it in the course of conducting an investigation of negligence or professional misconduct while termination services were being carried out.

Finally, if the pregnant woman has given authorisation that such information be disclosed to a third party, such shall be released. The bottom line however is that confidentiality will still be practiced to avoid defeating the whole purpose the Act.