When negotiations for the adoption of a new Constitution for Zimbabwe began, advocates for women’s reproductive health and rights fought hard to have abortion declared legal. However, the Constitution that came into force in 2013 provides that “an Act of Parliament must protect the lives of unborn children, and that Act must provide that pregnancy may be terminated only in accordance with that law.â€
It appears that the Constitution takes a strong anti-abortion stance which previously existed only in statutes but not as a constitutional provision.
There are a few exceptional and limited circumstances where abortion is legally permitted. Under the Termination of Pregnancy Act , abortion is permitted only in the following circumstances:
-to save the life of the pregnant woman, if the continuation of the pregnancy endangers her life;
-if the pregnancy is a serious threat to the pregnant woman’s physical health and could cause permanent damage;
-if there is a serious risk that, if the child is born, it will suffer from a physical or mental defect that will cause the child to be severely handicapped;
-where the pregnancy is as a result of unlawful intercourse. Unlawful intercourse includes the following:
(a) rape: when a man has sex with a child above 12 but below 16 years without her consent; when a man has sexual intercourse with a woman without her consent; when a man has sexual intercourse with a child below the age of 12 with or without her consent.
For the purposes of abortion, rape does not include marital rape so married women cannot seek to abort pregnancies by their husbands on the grounds of rape.
(b) Incest: where two individuals are so closely related that they are forbidden to marry by law, religion or culture and they have sex with each other and the woman falls pregnant; for example, father and daughter, brother and sister or uncle and niece.
(c) Mental handicap: where a man has sexual intercourse with a mentally handicapped woman and she falls pregnant.
Challenges to get a legal abortion
A legal abortion can only be done by a medical practitioner in a designated institution with the written permission of the superintendent of the institution.
In cases where the mother’s life or physical health is threatened or the child is at a risk of serious deformity, the superintendent of the institution has to provide written permission. This permission is only given after the superintendent is satisfied by two opinions from physicians who are not members of the same practice that the mother’s life is in danger or that her physical health is threatened or that the child is at a risk of serious deformity.
All these opinions are obtained at the woman’s cost.
In a population where the majority cannot afford basic healthcare, women are highly unlikely to meet these requirements.
If the pregnancy is as a result of rape or incest the superintendent has to give written permission if he receives written confirmation from a magistrate of a court sitting in the area where the abortion will be performed, that the woman lodged a complaint about the rape or that a complaint about the incestuous act was lodged with the police.
This means that, if a woman is raped, she must find both a designated hospital to carry out the abortion and obtain a certificate from a magistrate in that area. Not all hospitals and clinics are permitted to carry out abortions so this causes problems for many women.
The landmark case of Mildred Mapingure explains the difficulties that women who are legally permitted to get abortions face.
Punishment for illegal abortions
A person who intentionally terminates a pregnancy is guilty of unlawful termination of pregnancy for example if a person goes to a doctor to get an abortion they are intentionally terminating the pregnancy.
A person who, by their actions, which they realise pose a real risk or possibility of terminating the pregnancy is also guilty of unlawful termination. This includes people who, knowing that they are pregnant, drink certain types of teas or herbs which they know could result in miscarriage are guilty of unlawful termination.
The crime of unlawful termination carries a maximum prison sentence of 5 years. The law also punishes anyone who provides a false certificate to a person seeking a legal abortion and anyone who knowingly grants permission for an abortion based on a false certificate. That behavior attracts a maximum sentence of five years in prison.
The reality of abortion
Despite the fact that abortion is a crime, Zimbabwe records more than 70 000 illegal abortions a year. There is a clear and increasing demand for it.
Rampant poverty, unavailability of contraceptives, poor sex education, shift in cultural or religious values, the increased need to limit family size and the general emancipation of women has fueled this demand. Given the figures and circumstances, there seems to be a need to revisit the laws on abortion.
While it is debatable whether an outright legalisation like neighbouring South Africa where abortions are permitted on demand and no reasons are required provided a woman is less than 20 weeks pregnant, is the answer, there certainly needs to be more practical, efficient and affordable ways of achieving legal abortions.
Post published in: News