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By: Karim Ullah Sraw[1]

 

Abstract

 

This paper will examine the development of law on abortion in Pakistan. It highlights the problems, commissions and omissions. It will be seen that there are gross human right concerns that are not being addressed by the current legal regime. It will be argued that more exceptions, which are considered to be religiously, and otherwise, valid across Muslim world, need to be created. In conclusion, liberal interpretations within Hanafi law which also support reform are advocated.

 

Introduction

 

Pakistan is an Islamic Republic, facing challenges of religious extremism among which is the dilemma of so called Islamisation. It is difficult being a woman in Pakistan, both in domestic and professional contexts. Abortion is an issue of social justice, human freedom and women’s health. As Pakistani laws do not extend autonomy to women to decide for themselves, it leads to externalities, which may be legal, mental, emotional and physical. Abortions can be unsafe in developing countries, including Pakistan where abortion procedures account for significant maternal deaths. This includes Pakistan where abortion procedures account for 95% of 13% global maternal deaths.[2]

 

In Pakistan, freedom to abort pregnancy is restricted in the context of Islamic beliefs and practices, with understandable gaps between ideals and reality. What restricts freedom to choose is primarily determined by the theological interpretations and cultural practices. Birth control and family planning go hand in hand with the issue of abortion. As shall be examined below, Pakistani laws restrict abortion rights, which is influenced by the religious clergy. This situation is further worsened by the low quality of health services and infrastructure within Pakistan.

 

It goes without saying that when law remains ambiguous where clarity is needed, it weakens its enforcement. Its silence can be manipulated. Cultural norms outweigh legal sanctions. Unfortunately, cases with Pakistani laws on abortion refuse to expand the scope of natural rights of women beyond a certain point. Owing to reformist movements, interpretation of text in other Muslims countries has led to the legalization of abortion in certain cases such as rape and fetal defects; general consensus is on permissibility of abortion within 120 days of conception.[3] Lack of coherence, however, has stalled the welfare of women in dire need of abortion. The delays, non-recognition and lack of resources lead to various illnesses and in many cases deaths, which are completely avoidable.

 

Law in Pakistan

 

Up until 1990, abortion in Pakistan was regulated under the century-old provisions of the Penal Code 1860. Under this law, abortion was a crime, the only exception being its performance in good faith so as to save the pregnant woman’s life.  Article 312 of the Penal Code provided that any person performing an illegal abortion was subject to imprisonment for three years and/or a fine; if the woman was “quick with child”, the penalty was imprisonment for up to seven years and payment of a fine. Females opting for an abortion incurred the same penalty.

 

In 1990, the government of Pakistan took an initiative to reform abortion laws. The Penal Code of 1860 was amended in 1990, following a 1989 decision of the Supreme Court of Pakistan, which held that part of the Penal Code of 1860 dealing with offences against the human body was invalid because it was repugnant to the injunctions of Islam. Pakistan revised its law in this area, reframing multiple provisions to conform to Islamic legal principles.  The revised law had provisional applicability 1990 onwards and in 1997 became permanent law.

 

According to the new law, an exception for abortion was created. The focal point was determining requirements for the procedure, which depended on the stage of development of the fetus, that is, whether formation of fetal organs took place or not. As per consensus of religious scholars, fetal organs are developed by the 4th month of gestation. Abortion is allowed only as a ‘necessary treatment’ before the fetal organs are developed. The goal should be to save a woman’s life or her health. If the 4th month period is completed and the organs have been developed, abortions are only legal where they save the life of the mother.

 

It is a criminal offence to abort the fetus resting on the development stage of the fetus. If the organs have not been formed then the offence under civil law is punishable by 3 to 10 years of imprisonment[4]. In 1996, a presidential order was passed, according to which, if the fetus has been developed, then the offender has to pay blood money (diyat). By 1997, another amendment was introduced. Previously, it was held that an abortion was allowed only to save the mother’s life. By virtue of the 1997 amendment, an abortion to treat a woman to safeguard her health was legalized in the light of the injunctions of the Quran and Sunnah. Unfortunately, this amendment has not trickled down into the ranks of medical practitioners. Section 338 of Pakistan Penal Code regulating abortion states:

 

338.        Isqat-i-Hamal:

Whoever causes a woman with child whose organs have not been formed, to miscarry, if such miscarriage is not caused in good faith for the purpose of saving the life of the woman, or providing necessary treatment to her, is said to cause isqat-i-hamal.

Explanation: A woman who causes herself to miscarry is within the meaning of this section.

 

The biggest problem, despite the amendment, remains the restriction on giving women the choice to terminate. It is a criminal offence as per section 338-A to carry out an abortion with the consent of women, which states:

 

“338-A. Punishment for Isqat-i-haml:

Whoever cause isqat-i-haml shall be liable to punishment as ta’zir-

(a) with imprisonment of either description for a term which may extend to three years, if isqat-i-haml is caused with the consent of the woman; or

(b) with imprisonment of either description for a term which may extend to ten years, if isqat-i-haml is caused without the consent of the woman:

 

Provided that, if as a result of isqat-i-haml, any hurt is caused to a woman or she dies, the convict shall also be liable to the punishment provided for such hurt or death as the case may be.”

 

The law also has nothing to guide on rape, incest or fetal defects. A woman cannot possibly ask for abortion in such cases, which is unfortunate: a woman may have to give birth to the child of a man who raped her. There are many other factors which make abortion a horrible experience for women, especially in poor areas. Abortion is a birth-control mechanism, as well. With low usage of contraception, and virtually no pro-choice laws, abortion is still being used as a birth-control tool. Because, it is illegal to do so, the market is unregulated by health agencies. This contributes to fatalities. Abortion at early stages, with the consent of the women, can reduce abortion-related complications and will reduce the fatality rate caused by these complications. In the public domain, there is virtually no debate on the issue which further hampers the reform process.

 

Abortion-related Problems

 

The laws on abortion, as we have noted, in Pakistan are very restrictive, vague and anti-choice. Even though section 338 purports to legalize abortion, its shortcomings have produced devastating effects over the years. According to Pakistan’s Population Council, around 900,000 induced abortions terminated unwanted pregnancies in Pakistan, out of a total of 2.4 million.[5] However, many abortions go unreported. The same study reported that around 29 per 1,000 women (aging 15 to 49 years) get abortions. A quarter of these, ~23%, are hospitalized for complications arising out of abortion. According to another research paper, six percent of maternal deaths are caused by abortion-related problems.[6]

 

The main factor is low usage of contraceptives, which is around 30%.[7] Contraceptives are not used as a preventive measure, forcing women to go through abortion. Women opting for abortion are stigmatized for being sexually devious, which is contrary to facts. According to the Population Council, 96.1% of the women who go through the abortion process are married. In urban areas, where contraception use is higher, abortion rates are lower as compared to remote areas such as Balochistan and Khyber-Pakhtunkhwa. In the squatter settlements of Karachi, all deaths of mothers were due to induced abortion.[8]

 

As per a Casterline report,[9] abortions, a taboo, take place in unsafe and secretive environments. Government-managed medical infrastructure does not extend such facilities to the poor, who cannot afford safe medical procedures and thus are treated by untrained practitioners. This is due to the women not getting opportunities legally to terminate pregnancy. The practitioners also do not carry out abortions as they fear imprisonment and other penalties. This is largely due to unclear laws and lack of knowledge. Abortions are also selective based on sex, the extent of which is unreported.[10]

 

Due to stigmatization, vague and restrictive laws, abortion is often left unregulated. Untrained women with unsafe equipment carry out such operations. The Marie Stopes Society study in 2008[11] found that the cost of getting treatment from a doctor in a low-income area would cost 3 times the amount an unskilled traditional birth attendant would cost.

 

Pakistan Penal Code provisions on abortion procedures exacerbate the situation. Due to criminal punishments, trained doctors often refrain from performing the procedure not just for religious beliefs but due to legal consequences as well. The case law is very limited and does not offer help which is also a reason for practitioners avoiding surgeries, as mentioned above; thus indicating that there is a need for detailed judgments and academic discourse on the subject.

 

Furthermore, as in one study,[12] a lawyer was critical about the way the law is perceived and implemented in the country. He said: “I think that there are two parallel abortion laws working

in our country. One law says that abortions are totally banned; on the other hand, [the] state has given permission to different NGOs that are providing these services”.

 

Compare the situation with that of the United States of America. In the 19th century, abortion was banned wholly throughout the US. In the 1973 case of Roe v. Wade[13] the Supreme Court declared that before the viability stage of pregnancy, women had a constitutional right to privacy to undergo an abortion and that the government could not interfere with her choice to procreate or not to procreate. This was affirmed in the 1992 case of Planned Parenthood v. Casey[14], which allowed states to enact restrictions without imposing an “undue burden” on women. The American Congress allows state funds for abortion in case of rape and incest.

 

Similarly, all developed countries have gone pro-choice. Nonetheless, a liberal state like America, owing to its conservative populace, has imposed a lot of restrictions as well. Guttmacher Institute[15] notes the recent trend towards restricting abortion:

 

“As of January 1, 2014, at least half of the states have imposed excessive and unnecessary regulations on abortion clinics, mandated counseling designed to dissuade a woman from obtaining an abortion, required a waiting period before an abortion, required parental involvement before a minor obtains an abortion, or prohibited the use of state Medicaid funds to pay for medically necessary abortions.”

 

But again, these restrictions were clear enough to avoid any problems of uncertainty and hence the medical practitioners knew their obligations and restrictions.

 

Islamic Law on Abortion

 

Abortion is permissible in Islam in three exceptional circumstances; where the health of the mother is endangered, where the fetus is found to have an abnormality that is lethal or will cause severe disability and where pregnancy results from a circumstance beyond a woman’s will (e.g. rape). She is then allowed to keep the child or terminate the pregnancy within 120 days from conception. The closer the abortion is to the time of conception, the better it is. After 120 days of conception, she cannot terminate the pregnancy.

 

Progressive interpretations can balance the need for women’s consent and religious orthodoxy. The Hanafi school of thought is predominantly followed and implemented in Pakistan. Hanafi jurists[16] permit abortion before 120 days of pregnancy. They also allow a woman to abort without obtaining anyone’s consent, although they restrict her choice on some rational grounds.

 

In cases of rape, Islamic scholars around the world, have permitted undergoing an abortion. According to Al-Munajjid[17], if pregnancy is caused by factors beyond a woman’s control, for instance rape, then she has the choice to keep the child or to abort it, but she must do so within four months of pregnancy. Thereafter it is the duty of the community to raise the child.

 

However, in Pakistan, there is limited debate on the subject. One judge in a study[18], said:

 

“The laws should be amended but in our country once such law is made, then it is difficult to change it. If anyone raises [one’s] voice, then people take the cover of religion without knowing the need and rationale. Even the Quran gives us permission to change according to developments”.

Pakistani law is not in line with Islamic law. Islamic law has created three main exceptions and thus promotes consideration in cases of abortion on a case-to-case basis.[19]

 

Conclusion

 

Contrary to the worldwide consensus of Islamic scholars, abortion law has not been reformed. Abortion remains a taboo due to the entrenched cultural-religious dogma. Despite the restrictions, abortions are being carried out, mostly by married women. The law should be reformed so as to medically regulate the environment. State funding is also indispensable to save the lives of women. Further, clear laws should be made and publicized in order to ensure doctors’ willingness to carry out abortions in a safe and healthy manner. All religious scholars should consider the actual interpretations of Islamic law on the topic and should take these into confidence in order to resolve these issues amicably.

 

Bibliography

 

  1. Casterline J, Singh S, Sathar Z. Unwanted pregnancy and post-abortion complications in Pakistan: Findings from a national study . Islamabad: Population Council 2004.
  2. Abrejo FG, Shaikh BT, Rizvi N. ‘ And they kill me, only because I am a girl ’ … a review of sex-selective abortions in South Asia. Eur J Contracept Reprod Health Care 2009; 14:10 – 6.
  3. Pakistan Population Council (2002), Population, Socio-economic and Development Profile of Pakistan.
  4. National Institute of Population Studies and Macro International. Pakistan Demographic and Health Survey 2006-07 . Islamabad 2008.
  5. Fikree FF, Khan A, Kadir MM, e t al. What infl uences contraceptive use among young women in urban s quatter settlements of Karachi, Pakistan? Int Fam Plann Perspect 2001;27:130 – 6
  6. World Health Organization. Unsafe abortion: Global and regional estimates of incidence of and mortality due to unsafe abortion . Geneva: WHO 2003.
  7. Musallam BF. S ex and society in Islam. Cambridge: Cambridge University Press 1983.
  8. United Nations (2007). World abortion policies. New York: United Nations Population Division, Department of Economic and Social Affairs.
  9. Guttmacher Institute (2014). Induced Abortions in the United States. [Online} Available from: http://www.guttmacher.org/pubs/fb_induced_abortion.html
  10. Gursoy A. Abortion in Turkey: a matter of state, family or individual decision. Soc Sci Med 1996; 42:53-42.
  11. Roe v. Wade, 410 U.S. 113 (1973)
  12. Planned Parenthood v. Casey, 505 U.S. 833 (1992)
  13. Al-Munajjid MS. Abortion of pregnancy resulting from rape. Available from http://www.islam- qa.com/en/ref/13317/rape%20pregnancy. Accessed Dec. 12, 2014
  14. “Perceptions, interpretations and implications of abortions: A qualitative enquiry among the legal community of Pakistan” by: Syed Khurram Azmat , Mohsina Bilgrami , Babar T. Shaikh , Ghulam Mustafa & Waqas Hameed, Marie Stopes Society, Pakistan – The European Journal of Contraception and Reproductive Health Care, 2011; Early Online: 1–9
  15. The Guttmacher Report on Public Policy December 2001, Volume 4, Number 6
  16. Gursoy (1996)
  17. A. Alamri: ‘Islam and Abortion’


[1] The author is currently a final year LLB student obtaining his degree from the University of London International Programmes.

[2] WHO (2003)

[3] Mussallam (1983)

[4] United Nations (2007)

[5] Pakistan Population Council (2002)

[6] NIPS and Marco (2008)

[7] NIPS (2008)

[8] Fikree et. al (2001)

[9] Casterline, Singh and Sathar (2004)

[10] Abrejo, Shaikh and Rizvi (2009)

[11] http://tribune.com.pk/story/567963/unsafe-abortions-risky-business/

[12] “Perceptions, interpretations andimplications of abortions:A qualitative enquiry among the legal community of Pakistan” by: Syed Khurram Azmat , Mohsina Bilgrami , Babar T. Shaikh , Ghulam Mustafa & Waqas Hameed

[13] Roe v. Wade (1973)

[14] Planned Parenthood v. Casey (1992)

[15] Guttmacher Institute (2014)

[16] Gursoy (1996)

[17] Al-Munajjid (2010)

[18] “Perceptions, interpretations andimplications of abortions:A qualitative enquiry among the legal community of Pakistan” by: Syed Khurram Azmat , Mohsina Bilgrami , Babar T. Shaikh , Ghulam Mustafa & Waqas Hameed

[19] Y.A. Alamri: ‘Islam and Abortion’

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