A comparison of abortion law in Sri Lanka and the UKJune 2, 2012, 4:59 pm
I, Victoria Curran LLB Law (Hons) studying at the University of Glasgow, Scotland, have had the privilege of working as an intern at Godfrey Cooray Associates in Negombo. During my time here, I have been given the opportunity to put my legal studies into practice, working in both the office and attending at local courts and the Supreme Court. My time as an intern at the firm has allowed me to compare many aspects of Sri Lankan law and the legal system with that of the UK. My main interest is criminal law and procedure, and during my internship I was given the opportunity to research the Sri Lankan legal system, with particular focus on the, arguably taboo, issue of abortion.
A recent report by the Asian Safe Abortion Partnership estimates, since there are no official figures, that the implied abortion ratio in Sri Lanka is 741 abortions per 1000 live births and there are induced abortion levels of 150,000 to 175, 000 per year. In comparison, a report by the Department of Health showed that in 2010 there were more than 200,000 abortions carried out in the UK. The slight difference in the number of abortions carried out in Sri Lanka and the UK is highly significant, considering that the population of the UK is approximately 62 million, compared to only almost 21 million in Sri Lanka.
The criminal offence of abortion has existed unchanged in Sri Lanka since it was introduced to the Penal Code by the British in 1883. Section 303 provides that 'whoever voluntarily causes a woman with a child to miscarry shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and if the woman be quick with child, shall be punished imprisonment of either description for a term which may extend to seven years, and shall also be liable to a fine'. An explanation in the Code provides that this offence may be committed by a woman who causes the miscarriage herself. The term 'quick with child' is defined as the time at which there is perception of foetal movement, usually about four or five months into the pregnancy.
An abortion may only take place legally in Sri Lanka where the miscarriage is caused in good faith for the purpose of saving the life of the pregnant woman. The burden of proof in cases of abortion is on the prosecution to show beyond reasonable doubt that it was not carried out in good faith for the purpose of saving the life of the pregnant woman. However, indictment and conviction for the offence of aborting a pregnancy are rare in Sri Lanka.
In the UK, abortion continues to be a criminal offence, under common law in Scotland and in English legislation. The Offences against the Person Act 1861 applies in England and section 58 provides that it is a criminal offence where a woman herself, or a third party, procures a miscarriage. In Scotland, the common law permits the defence of necessity available to women or third parties who procured an abortion where it is necessary to preserve the life or health of the mother.
There are a number of problems highlighted with reference to the strict approach taken in Sri Lanka. It does not allow for consideration of other issues, such as where the unborn child has or is likely to suffer from a severe disability, or where pregnancy is the result of rape or incest. A major problem is the dilemma faced by medical professionals when consulted by pregnant women in such situations, in the knowledge that carrying out a termination would incur criminal liability.
The strict law on abortion and the fact that many cannot afford the high costs charged by some centres (Rs. 3000 or more) has the consequence that many abortions are performed under sub-standard conditions by unqualified persons, which frequently result in serious complications, such as septicaemia, haemorrhage, HIV/AIDS or sometimes even the death of the woman. Data from the Ministry of Health has shown that 7-16% of all admissions of females to government hospitals are probably due to complications of induced abortion. Moreover, other studies have shown that induced abortions and the complications arising from these accounts for almost 6% of all maternal deaths in Sri Lanka.
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