Jamaica’s Flawed Abortion Laws

Danielle Toppin

Illegal abortions are one of the top ten causes of maternal death in Jamaica. Safe, legal abortions are only accessible to those who can afford one. Existing abortion "common law" in Jamaica is ambiguous and differs than legislation on the books. Jamaica is in the midst of a heated abortion debate.

In past months, the proposed legalization of abortion in Jamaica has been hotly debated. Prompted by a report submitted to the Jamaican government by the Abortion Policy Review Advisory group, the issue of abortion has featured heavily both in the media, and in the wider community, with sharp lines being drawn between those who support the legalization of the act, and those who strongly oppose it. In public debates, the perceived immorality of abortion has been emphasized, with the church emerging as one of the main protagonists in the discussions.

In typical fashion, the key issue that has arisen in the debate is one regarding the rights of the woman versus the rights of the unborn foetus; with religious and moralistic values heavily influencing the cited reasons why the act of abortion should remain illegal. Ultimately the debate raises the issue of women's control over their bodies and their sexual and reproductive health; a debate that raises key sexual health concerns and nuances.

The act of abortion, as with many gendered acts that shape women's lives, typically remains clouded in a veil of secrecy. The clandestine environment in which abortion is situated is reflected in the legal and policy approaches to the issue. While abortions are legally governed by a 150-year old body of legislation which criminalizes the procedure, common law has allowed for the procedure to be done in specific circumstances. As such, common law allows for the termination of pregnancy in cases of: (i) significant fetal abnormality; (ii) where pregnancy would represent a threat to the welfare or health of the mother and (iii) in cases where pregnancy is an outcome of rape or incest.

This approach to the termination of pregnancy brings with it some major health care challenges.

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One of the more evident flaws in the common law which governs the actions of local medical practitioners is its' subjectivity. In instances that are not as clear cut as fetal abnormality or pregnancy as a result of rape, the physician becomes the main holder of power, determining whether or not women who fall outside of these predetermined categories can in fact terminate their pregnancies. What then, happens to those women whose conceptions may not meet the criteria for "rape"; but whose relationships may in actuality be fraught with power imbalances such as the perceived inability to enforce protected sexual intercourse?

An associated health care challenge also arises regarding the ambiguity in the existing legislation and the common law itself. Common law, which develops over an extended period of time on the basis of widespread practices is seen to sharply contrast with the laws on the books in Jamaica. As such, despite the mentioned criteria which allows for abortions in the specified circumstances, the fact remains that legislation takes priority over common law. This places not only the affected women in jeopardy of prosecution, but also the participating physicians themselves. Such an approach potentially impacts women's sexual health, as it could discourage trained specialists from performing the procedure, thereby reducing women's options for safe health care.

The effects of curtailing women's choices for safe reproductive health care are potentially fatal. According to the World Health Organisation (WHO), some 22, 000 abortions are performed in Jamaica each year, collectively representing a significant section of the Jamaican population. This number is cause for concern when taken in tandem with evidence suggesting that complications from unsafe abortions are among the ten leading causes of maternal mortality in Jamaica, particularly amongst pregnant teenagers.

What this means is that for a large number of women, unsafe abortions performed by untrained and/or unspecialized physicians and practitioners are amongst the most accessible options for the termination of pregnancies. This fact is particularly dangerous for those women who may not be able to afford the high cost of having their pregnancies terminated by private and well-trained physicians.

This undeniably places working class women at particular risk. The cost of an abortion by a private physician can fall within the range of JMD 40, 000 (approximately USD 570.00), a cost which is inaccessible for the vast majority of working class Jamaican women. These women, without the alternative option of accessing the procedure within the public health care system – unless they meet the specified guidelines governing abortion – are often forced to access cheaper and potentially far more dangerous options.

The existing policies on abortion therefore privilege women of financial means, and in contrast, work to unfairly curtail the health care rights of working class Jamaican women.

Jamaica, as a signatory to the UN Millenium Development Goals, has undertaken to reduce maternal mortality by 2015, a goal that cannot be achieved if women are denied access to safe and legal abortion services.

While moral values and the right of the foetus are important considerations in the abortion debate, they should not supersede the right of the woman to determine how and when and if she will give birth.

State emphasis must therefore be placed on providing women with the information and support needed to make wise sexual health decisions, one of which could include the decision about whether or not to terminate their pregnancies.

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