Is it legal to get an abortion in Jamaica? Part 1

Abortion is defined as the premature termination of pregnancy by expulsion of a nonviable foetus from the womb and also as an operation to terminate pregnancy.

Abortion per se, is not an offence in law. There is the common law, which permits abortion in certain circumstances, but what is against statute law in Jamaica is the doing of something to cause an abortion. Yet the situation is not clear-cut as you will see in this article.

The crimes relating to abortion are dealt with in the Offences against the Person Act. Sections 72 and 73 of the Act make it unlawful and an offence to attempt to procure (to obtain) abortion intentionally by certain means and to provide the means to cause an abortion to be performed.

Section 72 provides that if a woman who is pregnant and who is intending to cause her own miscarriage unlawfully takes any poison or some other harmful substance, or uses any instrument or other implement for the same purpose, it is a felony, and on conviction shall that person be liable to life imprisonment with or without hard labour. Also any other person who is intending to cause a woman’s miscarriage – WHETHER OR NOT SHE IS PREGNANT – unlawfully gives to her or makes her take any poison or some other harmful thing or uses an instrument or some other means, commits a felony and on conviction is also subject to the same penalty of life imprisonment with or without hard labour.

So, under this Section, if ‘Mary-Jane’, not intending to become pregnant, but having engaged in unprotected sex and becomes pregnant, decides to abort the pregnancy and finds out about a mixture of stuff which would cause a miscarriage, then gets the various ingredients, mixes them herself and takes the mixture, or if she uses a clothes hanger or spoon or whatever to dislodge the foetus, she can be charged with the felony of attempting to procure her abortion even if she did not succeed in completing the abortion.

If Mary-Jane, finding herself pregnant goes to someone-else to effect the abortion (whether that person is a medical doctor or not) and that person gives her a mixture or uses any instrument to dislodge the foetus from the womb, that person can be charged with attempting to procure her abortion and be subject to the same penalty if found guilty.

The other offence is found in Section 73 of the Act, which makes it an offence for any one to supply or obtain any poison or other harmful thing or instrument or any other thing, knowing that it is intended to be used to intentionally cause a pregnant woman to miscarry, WHETHER THE WOMAN IS ACTUALLY PREGNANT OR NOT. That person would have committed a misdemeanour offence, and if convicted, is liable to a maximum term of imprisonment of 3 years with or without hard labour.

So the person from whom Mary-Jane obtained her ingredients to prepare the mixture can be charged under Section 73, if that person knew they were going to be used by Mary-Jane to cause her to abort. So too could a person who knowing the purpose went out, purchased the items and brought them to Mary-Jane.

These are the legal provisions relating to abortion in Jamaica. However, there has been in place since 1975, a Ministerial Statement of Policy on Abortion. The Statement of Policy in effect, adopted the common law position on abortion. This is, that it is “lawful for a registered medical practitioner, acting in good faith to take steps to terminate the pregnancy of any woman if. he forms the opinion that the continuation of the pregnancy would be likely to constitute a threat to the life of the woman or inure to the detriment of her mental and physical health”.

The Statement of Policy called for the amendment of Sections 72 and 73 of the Offences against the Person Act, so as to “make clear when abortion would be lawful in Jamaica” and “to take steps to make rape, carnal abuse and incest a lawful ground for abortion”.

The Statement of Policy permits abortions to be performed at government clinics, public health facilities and by private doctors. Abortion should be done on the recommendation of 2 doctors, based on their opinion that the woman is, or will be physically or mentally at risk. It also makes abortion available to women (whatever their age) who become pregnant as a result of rape, carnal abuse or incest on the production of documentary evidence of the crime that caused the pregnancy. This means that the woman must make a report to the police, from which would follow a medical examination. If the results of that examination support the sexual violation, it would, with the Report, be sufficient to meet the documentary evidence requirement. A pregnant woman, who is referred by the Police, the Family Court or by a Family Planning Clinic operated by the Ministry of Health with evidence documenting her need for an abortion, can also obtain one pursuant to the Policy. However, those who in the opinion of a medical doctor, need an abortion to protect their physical or mental health, do not need to provide any documents to support the medical opinion.

The Ministerial Policy also enables a pregnant teenager, under the age of 17 years, to obtain an abortion, if she is accompanied by a parent and produces her birth certificate to prove her age. The Policy Statement makes it clear that no woman can be permitted to have more than one abortion. It also states that every woman who has an abortion must be counselled on contraception prior to and immediately after the abortion.

So what does all this mean? It means that the statutory legal provision is the law of Jamaica. The law therefore, is saying persons attempting to perform abortions, as well as pregnant women themselves who attempt to abort their foetuses, if charged and convicted, are liable to life imprisonment or 3 years with or without hard labour. Also, those who procure/obtain any poison or instrument for another person knowing that he or she intends to use it to perform an abortion, if charged and convicted, are liable to imprisonment for 3 years with or without hard labour.

A Ministerial Statement of Policy cannot amend provisions of an Act of Parliament. Therefore the Policy Statement, legally speaking, is null and void. Yet the policy is, I am informed acted upon, as abortions were and are obtainable in Public hospitals and clinics and are performed by private medical practitioners.

It is clear that Jamaica must decide exactly what its position is on this difficult issue. The ambiguous position which exists with the Statutory provisions on the one hand and the Policy Statement on the other must be clarified and settled to make the legal position clear, certain and understandable. The primary intent must be to provide for and ensure the safety and good, physical and mental health of women.

Margarette May Macaulay is an Attorney-at-Law and a womens’ and childrens’ rights advocate.