28 Sep 17/Thursday    

Pakistan’s laws on abortion

While Pakistan is not among those countries which lets women make this decision on her body, the abortion laws give women as well as the providers certain leeway.

“There is no specific legislation for abortion,” explained Sara Malkani, a Karachi-based lawyer, adding that Article 338 “criminalises” abortion (with important exceptions) with a penalty for both the woman seeking an abortion and the provider who carries it out. “It also does not allow abortion on grounds of rape or in case of fetal impairment.”

According to Article 338 of the Pakistani Penal Code: “Whoever causes a woman; with child whose organs have not been formed, to miscarry, if such miscarriage is not caused in good faith for the purpose of saving the life of the woman, or providing necessary treatment to her,” it’s said to cause ‘Isqat-i-haml’.

A pregnant woman who caused herself to miscarry also commits the ‘Isqat-i-haml’ crime, which will be punished under Article 338-A which states: “Whoever causes isqat-i-haml shall be liable to punishment as ta’zir:

(a) With imprisonment of either description for a term which may extend to three years, if isqat-i-haml is caused with the consent of the woman.

(b) With imprisonment of either description for a term which may extend to ten years, if isqat-i-haml is caused without the consent of the woman.”

However, Malkani said: “There is provision for abortion in the form of ‘necessary treatment’ for a pregnant woman if the pregnancy has not gone beyond 120 days and is a threat to her health.”

For years health providers have tried to unpack the term ‘necessary treatment’ and failed because it is inherently vague and there is no direction from courts. But many even see it remaining “cloudy” as an advantage to be used in favour of those seeking abortion or seeking a revision of the law.

“Who knows in today’s time, someone may tweak it in such a way that whatever leeway women have with it, may be stricken away too,” said Pal.

Conceding, Malkani said she would define ‘necessary treatment’ to include “psychological and economic well being of that woman.”

However, “vagueness” can be problematic. “The danger is if the others view it conservatively,” she pointed out, adding it may not be good time to review the law.

And while she would rather Pakistan has a separate law for abortion that affords women reproductive rights and autonomy, even if that happens, she feared, like Pal that the legislative advocacy may bring the focus on the previous abortion law making some people “all riled up” and even bring to a halt the more positive work being done on the ground.

Nevertheless, Malkani said perhaps abortion and post abortion care law can be looked upon through the prism of human rights. “Denying women access to safe abortion services, was denying them their reproductive health rights and was clearly a gender-base discrimination,” she said and it could be viewed as such.

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