Featured image courtesy Paulo Nunos Des Santos/the New York Times

“If you are not in favour of legal abortion, then you are in favour of illegal abortion”

Prof. Arulkumaran

On October 28, 2012, Savita Halappanavar, a young Indian dentist, died in Ireland due to a septic miscarriage. This created major uproar in Ireland because she had requested an abortion at an earlier stage in the pregnancy but was denied her request because the medical team did not judge her life to be in danger (the law in Ireland was that an abortion could only be granted if the mother’s life was at risk). The campaign that followed culminated in a referendum in Ireland earlier this year, where nearly two in three Irish voters opted to change the current law. The referendum also saw the highest turnout for a ballot on social issues. The amendment that is currently being discussed will allow for terminations in the first 12 weeks of the pregnancy, and up to 24 weeks for exceptional circumstances.

In November 2012, former President of the Royal College of Obstetricians and Gynaecologists Professor Sabaratnam Arulkumaran, was appointed by the Ireland Health Services as the Chair of a panel inquiry into the death of Savita Halappanavar. Arulkumaran recently visited Sri Lanka, and on August 9 spoke at a discussion on unsafe abortions, organised by the Family Planning Association of Sri Lanka. The other speakers included Past President of the Sri Lanka Medical Association, Professor Wilfred Perera, retired Supreme Court Judge, Justice Shiranee Tilakawardane, and Attorney-At-Law Ermiza Tegal.

This article will look at the current abortion debate in Sri Lanka and Prof. Arulkumaran’s contribution to it, as well as what can be learnt from the Irish example.

Abortion in Sri Lanka

Sri Lanka has some of the strictest abortion laws in the world, where abortion is only permitted if the mother’s life is at risk, as per Section 303 of the Penal Code of 1883. As Tegal noted, the punishment for causing a miscarriage is a fine and/or up to 3 years imprisonment.

Despite these laws, the number of abortions carried out in Sri Lanka remain high, with the Ministry of Health reporting in 2016 that 658 abortions are carried out daily in Sri Lanka. This means that approximately 240,170 abortions take place annually. Contrary to common belief, most women seeking abortions in Sri Lanka are married. Research carried out in two abortion clinics in Colombo in 1997 showed that more than 90% of patients were married women, and more than half of them already had one or two children. The reasons given by married women for needing an abortion were that their pregnancy was too soon after the last delivery, poverty and foreign employment.

Professor Wilfred Perera said many of the women he has treated have come in for post-abortion care “following unsafe illegal abortions, performed by quacks, with high charges, when these can be performed legally and safely at no cost in our hospitals”.

“If we don’t legalise abortions, it will be the illegal abortionist who would be most happy”, he went on to say.

There have been several attempts to reform these archaic laws in Sri Lanka, but opposition groups have continuously rejected all proposals. In 1995 an amendment was proposed to allow abortions in cases of rape and foetal impairments. In 2011 the National Action Plan for Human Rights included a goal to decriminalise abortion for rape and major congenital abnormalities, in 2013 the Law Commission proposals called for legalisation in cases of rape and foetal impairments, and more recently in 2017 recommendations were made by the Justice Aluvihare Special Committee to allow abortions in cases of rape and incest, pregnancy in a girl below 16 and with serious foetal impairments.

The attempt to reform the law in 2017 was met with initial success, with the then-Minister of Justice Dr. Wijeyadasa Rajapakshe saying “I don’t think there will be much challenges”. However, the drafting of the Bill was put on hold because President Maithripala Sirisena wanted to consult with religious leaders, who showed strong opposition to the reform. It was later reported  that the proposals had not been put forward to the Health Ministry or the Government and it was only a discussion that took place. When the proposal was received, it would be debated by the Cabinet. However, Minister of Christian Affairs, John Amaratunga, was reported to have said that the Prime Minister, Ranil Wickremesinghe, assured him that abortion would not be legalised.

Proposals have also been made to legalise Mifepristone and Misoprostol, two drugs that are commonly used for illegal abortions in Sri Lanka. Although they are currently banned, stocks are smuggled into the country in the bags of people returning from India, where they are readily available. Misoprostol is sold covertly in most pharmacies at a cost of 150 rupees per pill. Medical abortions do have benefits relative to surgical abortions because they are less intrusive procedures, there is no risk from general anaesthesia, and there is less risk of secondary infertility due to scarring and intrauterine adhesions (scar tissue that forms between the inner walls of the uterus.) However, due to the inability to regulate the sale of these drugs, patients don’t have complete information on correct doses, so may potentially face health risks from taking incorrect dosages. An attempt to legalise Misoprostol in 2010 failed when the responsible body was unable to reach a decision on registration.

Religious leaders have always been one of the main sources of opposition to proposed reform of Sri Lanka’s abortion laws. Despite the Pope’s pronouncement that absolution can be given by a priest, as shown by Prof. Wilfred Perera, Catholic leaders in Sri Lanka have maintained a strong view against legalising abortion. President of the Bishops’s Conference, Bishop Winston Fernando, said “no one has a right to take a life. Natural birth to natural death, life is sacred. And we believe life begins at the moment of conception”. Cardinal Malcom Ranjith reportedly said that children born as a result of rape or incest would be institutionalised by the church in their orphanages and care homes. “I invite you all to spread the message to all you meet that abortion is murder”, he said. Other religious leaders, from Christian, Buddhist and Muslim communities have also voiced opposition to reform.

However, the Feminist Catholic Network has made a public statement, signed by over 100 Sri Lankan Roman Catholics, showing their support for the proposed reforms. The statement argues “we object to any barrier that would stop women from making a conscientious choice of their own free will to seek safe, legal medical care”, as well as that “the ‘official’ position put forward by a few clergymen of the Catholic hierarchy makes a false representation of the opinion of ordinary Catholics”.

The key focus of the recent discussion on this issue, is the problems and complications created by women carrying out at-home abortions or turning to illegal abortion clinics. At one time, coat hangers, bicycle parts and papaya leaves were the most common methods used. Although, there are now safer alternatives available to women, there are still significant risks. These include, as Professor Arulkumaran highlighted, a haemorrhage, sepsis, peritonitis, trauma to the cervix, vagina, uterus and abdominal organs and secondary infertility. In the developing world, around 5 million women are admitted to hospitals annually for complications due to induced abortions. Post-abortion care is estimated to cost USD 232 million per year. In Sri Lanka, 12.5% of all maternal deaths are due to illegal abortions, making this the third most common cause of maternal mortality. Since a majority of women seeking abortions are married mothers, maternal mortality has an additional impact on the estimated 220,000 children worldwide who lose their mothers annually to abortion-related deaths. Professor Wilfred Perera highlighted that illegal abortions affect the reproductive health of around 35,000 women in Sri Lanka annually.

The legalisation of abortion is likely to lead to a dramatic decrease in the number of maternal deaths in Sri Lanka. Professor Arulkumaran showed that the introduction of the 1996 Choice of Termination of Pregnancy Act in South Africa resulted in a 91% decrease in deaths from unsafe abortions. Ten years after reforming their abortion laws, data showed an end to maternal mortality in Portugal. It has also been proven that legal abortions are actually less risky than completing the full-term of a pregnancy and child birth.

Moreover, a study in Gabon, where abortion is only legal to save the life of the woman, showed that women who seek medical care due to complications related to abortions waited almost 24 hours for medical assistance, while those with a post-partum haemorrhage or eclampsia waited an hour. A study of 56 women admitted to government hospitals for post-abortion care in Sri Lanka showed that women delayed seeking medical care because they felt they would be discriminated against, and 10% did experience verbal abuse from hospital staff. Another study showed that patients also faced sexual advances by providers.

Until quite recently, relatively safe abortion services could be accessed through Marie Stopes International, a global nongovernment organisation that provides sexual and reproductive health services. Although governments in the past were willing to turn a blind eye to these services, the previous government shut them down. The impact of this is likely to be felt most by poorer women who will be compelled to access riskier illegal clinics.

One of the main concerns raised is that women are often kept out of the decision-making process. Women’s rights activists noted on social media that when a group of medical doctors representing the Health Ministry met with religious leaders of the Congress of Religion at Sri Sambodhi Maha Viharaya to discuss the issue of abortion, not even one woman was present. Moreover, the MPs discussing reforms often voice regressive views around women seeking abortion as “promiscuous, conniving and vulnerable”. Moreover, as Ermiza Tegal showed, views are held that women will “run wild if given the opportunity” and “allowing abortion would open the flood gates”. Professor Arulkumaran used evidence from France and Italy to prove that legalisation actually reduces the number of abortions because it is often coupled with more availability and information on the use of contraceptives.

In a survey published by the Ceylon Medical Journal in 2015, 65% of respondents said abortion should be legalised in cases of rape and 53% agreed that it should be legalised in cases of foetal abnormalities.

The philosophical debate

The philosophical debate centres on whether the foetus is a person and has rights. Those in favour of abortion generally hold the view that the foetus is not a person, while those against abortion argue that the foetus is a person, and their right to life trumps the mother’s right to autonomy. Scientifically, there is still a lot of debate regarding when independent life begins.

Those who oppose abortion argue that the foetus is a human being (though immature) because it is a complete or whole organism, growing in its own distinct direction, and its growth is internally directed for its own survival and maturation (unless prevented, the foetus is able to develop himself or herself into a mature human being).

An argument in response to this view is that although the foetus is an immature human being, this does not entail personhood. This is based on the argument that a foetus cannot exercise higher mental capacities or functions and is not self-aware. However, accepting that a foetus does not have a right to life because it cannot exercise higher mental capacities and is not self-aware, would force us to accept the conclusion that anybody without these two characteristics (including newly born babies and those in a reversible coma) have no right to life.

The view, then, is that although the foetus is an immature human being who cannot immediately exercise higher mental functions, their capacity or potentiality for such mental functions is enough reason to accept that the foetus is a person with a right to life.

Those who argue in favour of legal termination of pregnancy, on the other hand, argue that a foetus is a possible (not a potential) person because the support of the mother is required for the foetus to develop into a mature human being, and this process cannot occur independent of the mother. Therefore, this argument focuses on the mother’s right to autonomy.

This is based on the idea that we are not morally or legally required to do everything in our power to save another person. For example, we are not required by law to donate our organs upon our death, although there will be almost no cost to us. In the same way, a woman should not be required to do everything in her power to support the foetus, even if the foetus is a person with a right to life. This differs from murder because aborting a foetus involves taking away something that the foetus would never have had without the mother.

Pregnancy comes with physical and medical risks, as well as social risks. It has been proven that pregnancy often results in increased domestic violence and abandonment by families and communities. Moreover, pregnancy and motherhood are very intimate relationships between a mother and a child, which a woman may not be ready to partake in.

On the other hand, it is possible to argue that the woman has a special responsibility to support the foetus. However, just because the woman voluntarily participated in an act that could result in her pregnancy (some young mothers in Sri Lanka speak of how they were unaware that participating in sexual intercourse could result in pregnancy), it does not immediately follow that she has taken on the responsibility of a child (this argument is even stronger in cases of rape). The woman only accepts this responsibility if she agrees to carry the foetus through to the end of the pregnancy.

It is also important to consider the lifestyle that a child will have after birth. Abortion is supported in cases of severe foetal deformities because the child would have a short and low-quality life. Moreover, many women in Sri Lanka consider abortion because they live in poverty and are unable to support an additional child. It is possible to argue that unless the quality of the child’s life will be worse than not existing at all, the woman has an obligation to not terminate the pregnancy. It can equally be argued that it is morally wrong to force a woman to raise a child without the necessary resources to give them a lifestyle she deems adequate.

Many argue that if a woman is not in a position to raise a child, she has the option of giving the child up for adoption rather than having an abortion. However, what needs to be acknowledged is that this is likely to have a strong psychological impact on the woman. It is also well known that not all children are given to loving homes and many are treated very poorly in children’s homes.

An opposing issue that was raised by a member of the audience at the recent discussion is the view that the language used by pro-choice advocates needs to be more carefully considered. For example, “the right to choose” makes it only about the woman’s choice and “termination of the pregnancy” makes it only a medical issue. The existence of a unique organism, the foetus, must also be acknowledged in the language used.

He also brought up the issue that abortions could lead to future regret and psychological issues for the mother. However, there is no confirmed relation between abortions and psychological trauma, and the possibility of regret is not enough of a basis for criminalising abortion.

Although the woman should be allowed to choose whether or not to terminate her pregnancy, the foetus is still respect-worthy, so restrictions (in terms of the number of weeks up to which abortion is allowed) must also be considered.

The next step for Sri Lanka

The Irish example highlights the global relevance of the current abortion debate. Director of Advocacy at the Sri Lanka Family Planning Association, Sonali Gunasekera says that for real progress to be made in Sri Lanka, the issue needs to be brought into the public sphere with campaigns and discussions for the community. Young people need to be motivated to take on this challenge and continue fighting for reform.

Doctors from the Ministry of Health are continuing to push for legal reforms for cases of rape, incest and severe foetal deformities. However, this reform will only cover a small percentage of the women seeking abortions in Sri Lanka.

Sonali highlights that “the full campaign should focus on the woman’s right to choose, up to 12 weeks, however, if a compromise has to be reached, whereby abortion is legalised as per the medical requests (in cases of rape, incest and severe foetal deformities), this itself will be a win for women in Sri Lanka”.

Editor’s Note: For more viewpoints on the debate around abortion, click here.