What difference will revised Penal Code make on abortion?

The draft Penal Code – currently under parliament’s scrutiny– among other things proposes scraping of the requirement of a court order before procuring an abortion.
A pregnant woman. (File)
A pregnant woman. (File)

The draft Penal Code – currently under parliament’s scrutiny– among other things proposes scraping of the requirement of a court order before procuring an abortion.

This will broaden exemptions from criminal liability for abortion from the current four conditions to five.

Currently, anyone seeking an abortion is expected to submit to a doctor an order issued by a competent court recognising that pregnancy is the result of rape, second degree incest,  or forced marriage.

However under the new proposals, one seeking to undergo the process will not require a court order.

Instead, physicians will be guided by a ministerial order to be issued by the minister for health.

“Abortion is carried out by a recognised doctor. Requirements to be fulfilled before a doctor carries out an abortion are determined by an order of the minister in charge of health,” Article 140 of the draft Penal Code reads in part.

The proposed Penal Code also includes procuring an abortion for minors among legal exemptions which some say could come in handy in addressing the teenage pregnancy menace.

The proposed Penal Code provisions for abortion are expected to reduce the number of unsafe abortions.

World Health Organization statistics indicate that annually, worldwide, about 42 million women with unintended pregnancies choose abortion with nearly half of these procedures,–about 20 million– unsafe.

About 68, 000 women die of unsafe abortion annually making it one of the top leading causes of maternal mortality. It is further estimated that of the women who survive unsafe abortion about 5 million end up suffering from a range of long-term health complications.

Early in the year, parliament had heard from representatives of the ministries of Gender and Family Promotion as well as Justice who said that the current abortion laws were not helpful to women.

Dr Aflodis Kagaba, the Executive Director at Health Development Initiative, one of key advocates of the safe abortion, said that the draft Penal Code, if passed, will save lives of people who would have otherwise ended up in illegal procedures.

“The draft Penal Code  will have a significant impact,” Kagaba said.

He said that often when the law is strict, it leads people to go for unsafe abortion which could cost their lives.

“Mostly, when the law is very strict people tend to go for unsafe abortion and sometimes it leads to maternal mortality. The draft is a step forward,” he explained.

The court order process  could take months and by the time the request is granted, few doctors can go ahead with it due to the maturity of the foetus.

“The court order takes time, often months. We have seen instances where court order has taken five months or approved when the pregnancy is seven or eight months and the doctor cannot be able to carry out the abortion. The recommendation is 22 weeks, so that it will not expose them to risk,” he explained.

Under the current penal code, most of the legal cases of abortion have been on grounds of fetal impairment, health of the mother, and few on grounds of rape, incest or forced marriage.

Statistics from HDI show that of the 2644 cases of pregnancy termination between July 2012 and June 2014, most were due to medical conditions, fetal impairment, and health of the mother. There was only one case of a pregnancy terminated due to pregnancy after rape where the victim had a court order.

Minister weighs in

Dr Kagaba explained that it is important to be empathetic to the  women and girls that seek abortion to understand why some choose to put their lives at risk.

“To understand it very well, one ought to put themselves in the shoes of these women, if they have made the decision to go ahead with the procedure, they are likely to go ahead with crude procedures some that could even  take their lives,” he told this paper.

The Minister for Gender and Family Promotion,  Espérance Nyirasafari, explained that the proposed amendment is in response to challenges that women and girls face due to the current Penal Code.

“It will be easier because it will be between a lady and a professional doctor. It will be done quickly as opposed to when it required a court order. I think this is a good proposal,” Nyirasafari told The New Times.

She allayed fears that it could be subject to abuse by those seeking abortions despite not falling under any of the exemption cases, adding that the ministerial order will give proper guidelines.

“The ministerial order which will be issued  will give guidelines on how abortions can be done and who can do it.  It will be through that order that whoever is legally authorised to conduct the process will be determined,” she explained.

She also clarified that abortion remains illegal   and a crime in Rwanda with only a few exemptions to allow it.

“Abortion remains a crime and illegal. Under certain circumstances there will be exemptions to allow it. Even then, it will  still be up to the woman to choose the process,” she said.



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