More than 80 academics have signed a position paper on the government’s amendments to the abortion law, which make it legal for doctors to intervene when the pregnant woman’s life is in danger.
The academics are suggesting the setting up of a regulatory system whereby the decision to terminate is a collective one involving a minimum of three specialist professionals in the field. In addition, the Superintendent of Public Health should maintain a register to document these cases. The rights of conscientious objection by the attending medical professional should be safeguarded, the academics said.
On Tuesday, the academics had issued a statement saying that the government’s amendments to the law freeing doctors and pregnant women from the threat of criminal prosecution if a pregnancy is terminated for reasons related to the woman’s health are “opening the door to abortion”.
On Wednesday, the academics presented their position paper, again insisting for a provision to be added to the amendments proposed.
It is therefore being proposed to add a new provision, article 243B, to the Criminal Code, that will substitute the clause proposed in the Bill in relation to the application of the fundamental right to life in exceptional circumstances within the particular context of articles 241 and 243 of the Criminal Code.
The text should read as follows, the position paper says: No crime is committed under article 241(2) or article 243 when the death or bodily harm of an unborn child results from a medical intervention conducted with the aim of saving the life of the mother where there is a real and substantial risk of loss of the mother’s life from a physical illness.
First, the academics said, for the avoidance of doubt and for the purposes of legal clarity, it is to be stated that the following instances are not cases where a pregnant woman’s life is in manifest danger of death or where a real and substantial risk to her life exists from a physical illness and require the taking of extraordinary measures that the proposed provision allows: (a) anxiety; (b) emotional distress; (c) organic mental disorder; (d) a stressful situation arising from economic circumstance or unwanted pregnancy; (e) cases of rape; (f) inconvenient pregnancy; (g) an abnormal foetus; or (h) such other medical, mental, psychosocial, or psychological conditions or disorders that may be treated through ordinary clinical measures. By excluding these non-life-threatening cases, the attending obstetrician is given proper guidance as to what is life threatening and what is not.
The following fundamental principles of health ethics are to be kept in mind in these circumstances: (a) the overriding principle of affording the highest protection to human life whereby the attending obstetrician, in the light of his/her duty to protect human life in accordance with his/her professional ethos, in order to protect the pregnant woman and foetus or embryo, takes all the necessary measures so that both the pregnant woman and the foetus or embryo are saved. Should this not be possible after all possible life saving measures to save both the life of the pregnant woman and of the foetus or embryo have been taken, resort to a medical intervention aiming to save the life of the mother, even if this leads to the loss of life of the foetus or embryo may be justified on the basis of the principle of proportionality outlined below;
(b) the principle of absolute necessity in terms of which it is recognized that: i. extraordinary measures would have to be taken that could not be addressed otherwise through ordinary clinical measures, and ii. where both the pregnant woman and the viable foetus or viable embryo would die if no extraordinary action is resorted to;
(c) the principle of proportionality whereby the attending obstetrician has to balance out the clinical condition of the pregnant woman where there is a manifest danger of death or where a real and substantial risk to her life exists from a physical illness with not intervening, in which case both the pregnant woman and the viable foetus or viable embryo would die, even if such intervention might bring about the termination of the pregnancy to save the pregnant woman’s life, provided that where the pregnant woman signs a declaration, after having granted her informed consent, to the effect that the viable foetus or viable embryo should be saved rather than herself due to other terminal medical conditions that she might have but which, at that stage, are not yet life threatening; and
(d) the principle of prudential judgment in cases when the life of the pregnant woman is a condition for the vitality and sustainability of the foetus or embryo.
