By Dr Chisale Mhango:
As indicated in the series on what is in the proposed law on termination of pregnancy, we further provide a commentary (an explanation or interpretation) on what the provisions mean in plain language.
- THE LONG TITLE: The long title to the Bill explains or gives a reason as to why the Act is being enacted. It says that the aim of the Bill is to make provision for legal and safe termination of pregnancies in Malawi and also to provide for matters that will be consequential to the issues dealing with termination of pregnancy in this case matters dealing with regulation of the terminations and other incidental matters.
- SHORT TITLE: This provides for how the Act will be cited once enactment is done.
- Section 2 is the definition section. All pieces of legislation provides for definitions of terms and words that are used in the Act so that there is easy understanding of the same. This Bill has defined words like “certified health service provide”; approved health facility”; “health professional regulatory body”; and also “conscientious objection”. The section also provides when the law shall come into force once enacted. All laws have a commencement date. Mostly, laws come into force by notification published in the gazette by the minister responsible.
- The gist of the Bill starts in section 3 which is Part III under the heading Regulation of Termination of Pregnancies and Service Delivery. In section 3(1) this section provides for who can perform termination of pregnancies and the grounds on which the pregnancy can be terminated. Here, the proposed law states that it is only a certified health service provider who can perform a termination of pregnancy. The definition of a certified health service provider is provided for in the definition section (section 2) to mean a licensed medical doctor, a clinical officer, a registered nurse and a nurse midwifery technician, or a medical assistant. The catch word here is that such a health service provider has to be registered, it means therefore that if the person is not registered, he or she cannot perform a termination of pregnancy. This is a very welcome scenario as it clearly shows that not every Jim and Jack is allowed to terminate pregnancies. This also gives the pregnant woman protection as there will be more skill and care taken when one is performing the termination of pregnancy.
- Section 3(1)(a)(b)(c)(d) gives the grounds upon which a pregnancy can be terminated. According to the proposed law, there are only four (4) grounds upon which a pregnancy can be terminated. These are if the continuation of the pregnancy shall put the health of the woman in danger; if there will be injury to the health of the one carrying the pregnancy. The health will either be mental or physical [The law here has recognised that a pregnancy does not just affect the physical health but also the mental health of a pregnant woman.] This is a positive development as more women are mentally affected health wise during pregnancy than their physical health. Another ground is where there is severe malformation of the foetus and due to the malformation, the foetus will not be able to survive if it becomes a h u m a n being. In other words, it will be burdensome to bring into the world such a foetus. The words used are “and its viability or compatibility will be affected”. The final ground is that a pregnancy will be terminated if such a pregnancy is as a result of rape, defilement or incest. Rape is having sexual intercourse with a woman without her consent; defilement is having sexual intercourse with a girl who is below the age of sixteen (16) years, incest is having sexual intercourse with one`s grand-daughter, daughter, sister, mother or grandmother. It can clearly be seen here that the law recognises that situations arise whereby related people will make each other pregnant and that such pregnancy cannot be kept and it has to be terminated. Legally it is not correct to keep such a pregnancy. Morally and religiously it is even not acceptable.
- In addition, the law realises the seriousness of incest, rape and defilement thus, there is a requirement that the police have to be involved, that is, the matter has to be reported to police. In addition, a pregnancy arising out of these offences has to be less than sixteen (16) weeks old.
- Termination shall not be performed on demand and on social economic circumstances. The proposed law does not however, define what are socio-economic circumstances.
- Though the grounds are not as many and wide as expected, however it is a good starting point in the liberalisation of the law on termination of pregnancy in Malawi. The proposed law has given an expansion of what was there before as provided in section 243 of the Penal Code.