Recent Developments in Abortion Laws
Each time I research the topic of abortions, I am forced to recognise that there is unlikely to ever be consensus on the issues, as the number of persons who stand in the middle saying that abortions should be unlawful, except in certain prescribed circumstances, are probably fewer than those who are distinctly pro-life or pro-choice. For that reason, the laws in this area are constantly evolving.
In Jamaica, the Charter of Rights under the Constitution specifically preserves the "right to life, liberty and security of the person", but there is no definition of person to confirm whether a foetus enjoys that protection, and if so, at what stage of the pregnancy.
Under sections 72 and 73 of the Offences Against the Person Act, it is illegal for a pregnant woman to attempt to abort her foetus or for any other person to attempt to do so. However, under the common law, it may be lawful for an abortion to be performed (in some circumstances) for the purpose of preserving a life. The problem is that the guidance under the law stops short of stating clearly at which stage of the pregnancy an abortion may be performed, by whom and whether a woman who become pregnant as a result of a crime will satisfy the test.
There are calls from some quarters for the abortion laws to be amended to legalise abortions in certain prescribed circumstances. The supporting argument is that, in its current state, the law merely forces women who require abortions to obtain them in unsafe circumstances, with back-door abortions being routinely carried out in Jamaica. Many of those abortions are botched and result in severe medical complications.
On the other side of that debate, the
pro-life activists will look at the experience in other jurisdictions where there could be said to be an erosion of abortion rights as encouragement for abortions to remain unlawful in Jamaica. In the state of Missouri, for example, where the abortion laws are quite stringent and there is reportedly only one remaining abortion clinic in the state, there is likely to
be a further change in the laws to force women to wait at least 72 hours to undergo an operation to end a pregnancy.
In the United Kingdom, where elective abortions are legal, on November 4, 2014, the members of the House of Commons voted 181-1 to end the practice of gender-elective abortions. It was found that many women who want to have sons elect to have abortions if the foetuses are female.
The debates surrounding abortion are intense, interesting and thought-provoking. On what side of the debate do you think the Jamaican Parliament should come down?
• Sherry Ann McGregor is a partner and mediator in the firm of Nunes, Scholefield, DeLeon & Co. Please
send your comments and questions