L A W & G E N D E R – B A N G L A D E S H
Iffat Zarif
Soon after the independence of Bangladesh, in 1976, the Bangladesh National Population Policy attempted to legalise abortions in the first trimester on medical and social grounds. But in the end, however, no legislative actions were taken. Now, 45 years later, abortions still remain illegal in the country under most circumstances. Only when the mother’s life is in danger is it allowed.
What does the law say about abortions exactly?
Section 312 of the Penal Code of 1860 states that anyone who voluntarily causes a woman to miscarry will be subject to three years in prison with or without fine unless the miscarriage was carried out to save the woman’s life. Induced miscarriages or abortions fall under this description and so, both the woman who gets an abortion and anyone who helps her, are liable to the same punishment.
Here, the woman’s will is of no consequence. Even if the mother is extremely poor, underage or a rape victim, she’d still be forced to carry the pregnancy to term.
However, menstrual regulation (MR)—a procedure used to induce menstruation and therefore the removal of any fetuses present in the womb—has been part of the Bangladesh family planning program since 1979 and can be legally used as a substitute for abortion up to 10-12 weeks since the start of the last menstrual cycle. It either uses suction or medicine to cause the fetus to be expelled.
The catch here is that, although MR is used after pregnancy, it is being referred to as a form of birth control and does not fall under Section 312 because, the use of MR makes it impossible to establish pregnancy so neither the healthcare worker performing MR nor the woman on whom the MR was performed can be prosecuted under the law.
Can the law successfully prevent abortions?
The purpose of the anti-abortion law, no doubt, is to protect the fetuses. But, in a lot of cases not only does it fail to do that, it also puts the mother’s life at risk. This is because women who are determined to not carry the pregnancy to term—whether because of being a rape victim or suffering from financial difficulties—will still go forth with the procedure and have a clandestine abortion at home, which is unsafe and can lead to injury, disability or even death.
In 2014, in addition to the 430,000 MRs, roughly 1,194,000 induced abortions were performed in Bangladesh. The law didn’t stop them. However, due to the Penal Code in place, instead of trained professionals performing the abortions, most of these were likely to have taken place in unsafe conditions under the supervision of untrained providers.
In fact, a study by Mizanur Rahman and Julie DaVanzo showed that between 1989 and 2008, 33% of the pregnancies that were terminated in Bangladesh were done using unsafe means like herbal concoctions, unprescribed tablets, or the insertion of sharp objects into the uterine tract.
These procedures have life-threatening consequences: according to World Health Organisation (WHO) every year 4.7%-13.2% of the maternal deaths worldwide can be attributed to unsafe abortions. Among the other dangerous results are hemorrhage, infection, uterine perforation etc.
Almost every one of these deaths and disabilities can be prevented by making the procedure safe and legal, says WHO. In addition, increasing the availability and quality of sex education, effective contraception and timely care for complications could also help curb the numbers.
And although MR facilities are available as a substitute to abortions and are provided free of cost at public hospitals, many pregnant women have trouble accessing it. More than 50% of the ever-married women in Bangladesh have never heard of it.
Among the half who do know of the service some prefer to still go for clandestine abortions due to stigma and confidentiality issues. Plus, 27% of the women seeking MR in 2014 were turned away by the facilities—because they were either unmarried, childless or too young or they did not have their husband’s consent. Not to mention that among the facilities permitted to provide MR in the public and private sectors, only 42% do so.
Plus, since MR can only be performed up to the 12th week, women realising they’re pregnant after that window of time, have no choice but to resort to illegal unsafe abortions if they don’t want or are not able to have a child.
As a result, Bangladeshi women keep risking their lives by having clandestine abortions every year at a rate of 18 per 1000 women.
Should we legalise abortions?
As mentioned above, hundreds of thousands of people require and access abortions every year regardless of the fact that it is illegal.
Amnesty International states, “When undertaken by a trained health-care provider in sanitary conditions, abortions are one of the safest medical procedures available, safer even than child birth.”
Yet, the same procedure when performed by untrained people in unsafe conditions can lead to disability or even death. So, while criminalising abortion does nothing to stop abortions—it does make the procedure more dangerous.
Furthermore, post abortion care (PAC) for complications that may arise due to clandestine abortions are not widely available in Bangladesh—while 85% of urban women can access it, 53% of their rural counterparts cannot. And many women may even choose not to seek PAC in fear of prosecution or imprisonment. Legalising abortions would make women feel more confident about going to healthcare workers for treatment.
Just like UN said,
“Repealing anti-abortion laws would save the lives of nearly 50,000 women a year all over the world. In countries which prohibit it, women who seek health services for an abortion, whether to carry out the termination or seek medical care after a miscarriage, may be subjected to prosecution and imprisonment.”
Not to mention that in a country where on average six women are raped every day and 59% of the marriages are child marriages, the victims are being forced to carry their pregnancies to term.
This not only has detrimental health effects on the mother but the child born is also physically and psychologically affected—a review published by the US National Institute of Health concurs that for infants born from teenage mothers of ages lower than 15 were more likely to have low birthweight, premature birth and an increased risk of anaemia in the future. Early birth and low birthweight heightens the risk of neonatal mortality—death in the first four weeks of life. And, children of rape, in particular, may face immense psychological harm since in addition to being treated as outcasts just like their mothers in our patriarchal society, they may be deprived of their mothers’ love, whose trauma makes it hard for them to accept their children.
Also, the UN Working Group on discrimination against women has found that restrictive laws on abortion disproportionately affect women of poorer households and rural areas. This is backed up by a previously-stated data which said that urban women are almost 2 times more likely to get post abortion care than rural women. Transgender men, intersex people, and people of other gender identities who have the capacity to become pregnant are deprived even more as they face stigma and discrimination in the health care system apart from legal barriers.
Above all, bodily autonomy is a woman’s fundamental human right and restrictive abortion laws are a form of discrimination against women as the Committee on the Elimination of Discrimination Against Women has specified in a report:
“Criminalisation has a stigmatising impact on women, and deprives women of their privacy, self-determination, and autonomy of decision, offending women’s equal status, constituting discrimination.”
And another UN report by the Special Rapporteur on extrajudicial, summary or arbitrary executions clearly states that where unsafe abortions lead to the death of a woman due to a ban on abortion it would be regarded “a gender-based arbitrary killing, only suffered by women, as a result of discrimination enshrined in law”.
Legalising abortions does not increase abortion rates
A study by Guttmacher Institute has found that abortion rates of countries where abortion is restricted are similar to that of the countries where abortion is broadly legal. In further analyses, it can even be seen that the abortion rate is actually higher in the former compared to the latter. This may be due to the high rate of unintended pregnancies in low income countries—which are the ones that usually restrict termination of pregnancy—due to poor sex education and the unavailability of proper contraception.
It is clear that while restricting abortions does nothing to curb the number of abortions, legalising abortions does not increase the rates either—it only makes the process safer. And, in a country where 48% of the pregnancies are unintended and 18 in 1000 women go for unsafe abortions, making abortions safer may save the lives of countless women, who are otherwise losing their lives to conditions that can easily be prevented if the government takes action to amend a law that is more than a century old.
The writer is a part of TDA Editorial team.