Garth Rattray | Jamaica’s conflicting stance on abortions
True story: A very wispy nine-year-old girl was raped and impregnated with twins by her grandfather. If she carried the twin pregnancy to anywhere near term, she and the twins would die. However, in Jamaica, any attempt by anybody at aborting (terminating) any pregnancy at any stage, and for any reason whatsoever, is illegal.
According to the Offences Against The Person Act (under which terminations of pregnancies fall and which dates back to 1864), if a woman even suspects that she is pregnant and attempts to procure an abortion (with chemicals, instrumentation or by any other means), or if anyone else tries to do the same for any woman, they risk imprisonment for life with or without hard labour. Additionally, the person supplying the means for an abortion risks imprisonment for up to three years with or without hard labour.
I have never, and will never, perform abortions. As a rule, I vigorously discourage women from going through with one and literally beg them to spend a few days seriously reconsidering their plans and to review their options. On many occasions, I have seen the children that were almost aborted grow into wonderful, productive human beings. Oftentimes, that is the only child born to that mother.
A pregnancy should never be terminated because it is inconvenient or an embarrassment. But, on the other hand, I also believe that the law should not stand in the way of a woman's choice to terminate in specific circumstances. These include rape, especially rape of a minor, incestuous rape, serious risk to the woman's physical and/or mental health, or if the developing foetus is found to be so severely malformed that it cannot survive without considerable and permanent medical intervention.
In a Jamaica Observer instalment of All Woman (published on Monday, August 16, 2004), attorney-at-law Margarette Macaulay explored the legality of abortions in Jamaica. She wrote, "... There has been in place since 1975 a ministerial statement of policy on abortion. The statement of policy, in effect, adopted the common law position on abortion. This is, that it is 'lawful for a registered medical practitioner, acting in good faith, to take steps to terminate the pregnancy of any woman if he forms the opinion that the continuation of the pregnancy would be likely to constitute a threat to the life of the woman or inure to the detriment of her mental and physical health.'"
The attorney outlined the special circumstances under which abortions were being performed, but was also careful to point out that "a ministerial statement of policy cannot amend provisions of an act of Parliament. Therefore, the policy statement, legally speaking, is null and void".
As far as I am aware, although the statement of policy sought amendment to sections 72 and 73 of the Offences Against the Person Act, this has never been done, and we remain shackled to a law dating back to 1864.
NOT YET SEEN AS HUMAN
Although our current law treats fetuses as persons, sentient beings from conception (remember, they are protected under the Offences Against The Person Act), concomitantly, anyone who kills a pregnant woman and her foetus or kills her foetus alone (accidentally or wilfully) cannot be charged (held legally responsible) for the death of that foetus. In other words, aside from terminations of pregnancy, fetuses are not recognised as potential human beings, or as a life, or as sentient, until the umbilical cord is severed and he/she breathes on his/her own as "a life in being".
Because of this astounding and unbelievably ridiculous legislative anomaly, if a severely hypertensive, 43-year-old married woman with uncontrolled diabetes is savagely gang-raped and becomes pregnant by the rapists, no one can legally assist her to procure a termination, she cannot attempt one herself, and no doctor can perform one without risking serious criminal charges and imprisonment for life.
However, if a fit 23-year-old woman were made pregnant by her husband and is injured by criminals so that the fetus (even a full-term foetus) dies, no one can be charged for the 'termination' of that pregnancy.
Even Pope Francis has sought to address 'abortions' by granting all priests the right to forgive the act, but Jamaica's legislators continue to shirk this vexing and confusing matter ad infinitum.