Malawi needs to reform its outdated abortion law

Having signed several international treaties, Malawi needs to reform its abortion law. DR CHISALE MHANGO writes

Malawi is one of the many countries in Africa discussing Abortion Law reform as proposed by the Africa Union Commission which calls for the harmonisation of the law on abortion with its international treaty agreements under the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa. The protocol states “ Protect the health of a women by providing safe abortion services in case of sexual assault, rape, incest and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus

Why this proposed reform has become such a controversial issue is of great concern to many especially in the legal and medical professions. The abortion law reform is not about the rights and wrongs of termination of pregnancy. It is not about whether or not abortion is morally right or wrong. Questions such as when life begins and whether or not foetus has rights are irrelevant at this point.

Malawi, like all other countries in Africa and the world, has abortion laws. Unfortunately many people speaking on the matter do not appear to understand what the discussion is about. Many people for example think that Malawi is trying to legalise abortion.

The fact is that abortion is legal in all African countries. There are only three countries in the world where abortion is illegal namely El Salvador, Chile, Malta and unless one considers Holy See as a country.

Globally the UN classifies abortion laws into four categories as follows: (1) General legal principles allowing abortion to be performed in order to save a woman’s life. It should be known that 23 countries in the world have such laws, including Malawi. (2) Abortion explicitly allowed in order to save a woman’s life. [33 countries have these kinds of laws]; (3) Abortion explicitly allowed in order to save a life and for certain other reasons. [77 countries including Zambia]; and (4) Abortion allowed on request by the pregnant woman without questions. [57 countries, including South Africa, Cape Verde and Islamic Republic of Tunisia]

Like all other laws of the country, once in a while, Abortion laws are revisited mostly for three reasons. First there is need to ascertain that the laws are still relevant and in line with other new laws of the land, second to determine whether the laws are achieving the intended purpose and third to ascertain that the penalties for the identified offences are still appropriate.

Each and every law of a country has an objective; the moment it is determined that that objective is no longer relevant, that law needs to be remove with or without replacement depending on the circumstances. There is no need to have a law that is trying to solve a problem that did not exist, for example. In addition, each law must be seen to be in line with all other laws of the land. Malawi has passed a Gender Bill; it is important that all other laws in the country do not contradict the Gender Bill.

Further, each law must be seen to be achieving its intended objective. If evidence revealed that the intended objective is still relevant in today’s Malawi but the law is not achieving its intended purpose; such a law needs to be reformed by determining the barriers to the performance of the law and addressing those barriers with legal provisions. If there is evidence that the law is achieving its objectives, there will be no basis for changes in the law. Likewise the penalties must be in line with similar offences in other laws.

Many in this country have said that one of the reasons why rape continues to be perpetrated in Malawi is because the penalties are not deterrent. Likewise if a country did away with the death penalty laws which include death as a possible penalty would have to be revised.

I have been privileged to attend Africa’s meetings of Ministers of Health and those of Heads of States, and those of the regional Health Ministers’ Conferences as well as other national meetings on this subject and I am baffled by the mistaken view that many people including Heads of States, Ministers of Health and Permanent Secretaries of Health hold about the objectives of abortion laws in their countries and on the continent in general. Imagine a Secretary of Health who did not know the objective of the law, what guidance would s/he provide to the medical profession on the implementation of the law. A lot of people also are opposed to abortion law reforms because they hold the mistaken view that the objectives of the abortion laws are to preserve morality and Biblical standards. Nothing can be far from the truth.

I am using the term “mistaken view” because many will take offence to use of the correct word “ignorant” and it is not my wish to offend anyone. If I had chosen to use the word ignorant I would have quickly added that that ignorance is understandable. The abortion laws we have in Africa, including Malawi, were transplanted from the countries of our colonial masters, and we were not there to listen to the arguments that were presented before those laws were introduced in those countries a long time ago. There is no excuse however for us not to examine the arguments that have been put forward in these countries as they all reformed their abortion laws in the relatively recent past. These arguments infer on the intended objectives of the laws they were reforming.

Almost all countries of the world had at one time prohibitive and later restrictive abortion laws. The prohibition of abortion goes far back in time in history. Here is one piece of evidence; since the 5th century, medical schools have required their graduating doctors to take an oath. It is referred to as the Hippocratic Oath because it is believed to have been introduced by Hippocrates in 2,300 BCE (Before the Christian Era). To this day Hippocrates is considered to be the “father of Western medicine” (don’t we still live in a chauvinistic world?).

Among the things the doctors have to swear in the oath is the following:  “I will not give a lethal drug to anyone if I am asked, nor will I advise such a plan; and similarly I will not give a woman a pessary to cause an abortion.” The message is clear; even when performed by medical doctors; abortion was fatal until relatively lately when aseptic techniques and antibiotics were introduced. These pagan civilisations, more than two millennia before the Christian era, felt that they needed to discourage women from engaging in a procedure which was fatal; at least by denying them the procedure in the medical services. They could not stand by and watch women die.

We cannot say that this was influenced by the Jewish religion whose Pentateuch was written much later (c.1200 – 100 BCE) or any knowledge of Yahweh as can be deduced from the opening paragraph of the oath the doctors swore which reads “I swear by Apollo the physician, and Asclepius, and Hygieia and Panacea and all the gods and goddesses as my witnesses, that, according to my ability and judgment, I will keep this Oath and this contract”

The Bible in Acts 17:28 makes reference to Apollo’s father Zeus who was revered by the pagans as they swore: “In him we live and move and have our being, which makes us his off springs.  It is thought that probably because of this pagan background that is why it took about three millennia for the medical schools to adopt this oath. Interestingly the clergy also adopted the Hippocratic Oath as their own and use it to promote the prohibition of abortion. For example Abortion was dealt with by the Ecclesiastical Courts in England, Scotland and Wales under the laws of the Catholic Church until the reformation when the old Ecclesiastical Courts were made defunct.

The law on abortion started to be codified in legislation and dealt with in government courts under sections 1 and 2 of Lord Ellenborough’s Act  of 1803 in England. It will also be noted that the countries named above as prohibiting abortion to this day are all predominantly catholic.

The extent to which abortion services should be made available to women as indicated in the four categories above is hotly contested as it touches on deeply held convictions regarding human sexuality and reproduction, shaped by religious ideologies, ethics, culture and human rights.

The abortion law in Malawi is classified as being restrictive in that most women who want to terminate their pregnancies do not qualify under the existing law or at least they think they do not qualify. Unfortunately there is no religion, and no restrict law which has stopped women from procuring abortion when they so wished. Hospitals all over the world have required people to provide information about their religious affiliations at the time of admission, just in case it became necessary to call the appropriate clergy to give the last rites at short notice.

A study of this information reveals that all religious faiths without exception are represented among women who are admitted with complications of unsafe abortions. Despite the fact that all women know that abortion when not done by skilled health care providers kills and despite the fact that it is against the teachings of their faiths, women still seek unsafe abortion rather than keep unwanted pregnancies. Current studies estimate that 5.6 million women procure abortions each year in Africa alone, and that 95% of these abortions are unsafe.

Some people have even peppered their argument against abortion reform with falsehoods such as saying that a blastocyst on day 5 has the features of a person. A blastocyst as the word point is a cyst not a fetus. It forms on the 5th day after fertilisation of the egg by the sperm when it then implants or gets attached to the womb. Five days later it is still in the implantation phase. In medicine the embryo is referred to as a fetus in the eighth week of pregnancy. Abortion is by definition the expulsion from the womb a foetus that would not survive under the skills and technologies that currently exist.

This begs the question “is there then such a thing as safe abortion then?” A classic example to answer this question is the case study of Romania. Abortion by skilled medical personnel was made legally available in Romania in 1957. In 1966 the government of President Nicolai Ceausescu, worried about a negative population growth reversed the abortion law through Decree 770. The government also banned the importation of contraceptives. The result was a sudden and sharp escalation of maternal deaths, mostly due to unsafe abortions.

When a popular revolt had President Nicolai Ceausescu shot and safe abortion made legal again, maternal deaths plummeted. Many will argue that it was the family planning restriction in Romania that was responsible for the maternal deaths. True; family planning does reduce the number of unplanned pregnancies but only to a point.

When I worked at the Center for Disease Control in Atlanta, USA, in the early 80s, we counted two million terminations of pregnancy each year in the American population of about 200 million people. Today with a population of about 312 million people there are only half a million abortions reported each year.

In England and Wales, another place where contraceptives are universally available with a population of 56.1 million people, there were 184,415 abortions performed in 2004 which climbed to 189,100 in 2009. This means that when contraceptives become available to all in Africa and women as a result became as health as those in USA and Europe, African will experience less induced abortions but they will continue to die from complications of those fewer abortions.

The data from the USA reveal that 54% of the women who underwent abortion procedures had used contraceptives in the months they became pregnant. The reason why women who abort in America and in Europe do not die when they procure abortions is because they have access to safe abortion services while the women in Africa do not.

So why is abortion reform so important for Malawi and the rest of Africa? The response is that Africa and Malawi in particular has appalling maternal mortality ratios and are not making significant progress towards the reduction of maternal mortality ratios. I have come to accept that before a country develops, the minds of its people must first develop.

The countries of our colonial masters that we commonly refer to as developed countries did not have difficult in reforming their abortion laws. As soon as evidence was produced to show that women who terminated their pregnancies though skilled health professionals under ideal medical conditions did not die they immediately reformed their laws; after all that was what the restrictive abortion laws were intended to do; minimize women’s deaths from complications of abortion; the moment a new environment offered better alleviation of the problem, it would be a violation of women’s right not to go for it. That is what the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa commonly referred to as the Maputo Protocol is all about. This charter was produced by Africans for the good of its people, especially women.

Malawi ratified this protocol in 2005 and it is time to domesticate it. The African Commission on Human and Peoples’ Rights recommends that AU member states that have not yet done so should urgently ratify the Maputo Protocol. Member states that have already ratified this protocol such as Malawi are urged to immediately undertake measures for domestication, including the amendments of internal laws to conform to the provisions of the Protocol. In this case article 14:2c) which reads: “protect the reproductive rights of women by authorising medical abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the unborn child”.

The fact that women continue to die from complications of unsafe abortion in Malawi to the extent that this is the fourth commonest cause of maternal deaths in the country means that there exist a factor, social or otherwise in each one of these women that “endangers the life of the mother” but are not being provided for in the existing abortion laws in this country.

The clergy are hired and paid to save souls; the stand of some of them on abortion is therefore understandable. The message I get from them, however, is that if they had lived at the time of Jesus the Christ, they would have told Him to stand aside while they stoned to death the woman taken into adultery in Galilee. They would have rebuked Jesus on that Damascus road for giving Saul a second chance instead of just let his soul perish, for by his own admission Saul was the chief of sinners. That they would rather let women die after procuring abortion is because they fear that if these women lived that gracious Christ might give them a second chance like He did to Paul. The Bible has a word that describes people who are in conflict with the teachings of Jesus – anti-Christ.


The author is Associate Professor of Clinical Obstetrics and Gynaecology at University of Malawi’s College of Medicine.