The question at stake is, should abortion laws and the right to abort in Sri Lanka be given much more prominence than it is been currently given in order to establish justice allowing social progress, or does the existing ideologies on aborting laws justifiable by all means that it contributes to the social progress already?
As we speak, if we look at jurisdictions around the world, it permit abortion on seven grounds which are liberal in some states and restricted in another. Hence a woman is permitted abortion as given below:
- To save the life of the woman
- To preserve a woman’s physical health
- To preserve a woman’s mental health
- Where the pregnancy is the result of rape or incest
- Because of foetal impairment
- For economic and social reasons
- On request.
Unfortunately Sri Lanka falls under high end restricted category in relation to abortion.
Under the Penal Code of 1883, abortion is generally illegal in Sri Lanka. To abort is a considerably punishable crime despite reasoning. Currently relevant sections of the Penal Code that recognize offences in relation to the causing of miscarriage and the termination of pregnancy, are set out below;
Section 303 of the Penal Code sates:
“Whoever, voluntarily causes a woman with child to miscarry shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”
Section 306 of the Penal Code:
“Whoever, before the birth of any child, does any act with the intention of thereby preventing that child from being born alive, or causing it to die after its birth, and does by such act prevent that child from being born alive, or causes it to die after its birth, shall if such act be not caused in good faith for the purpose of saving the life of the mother, be punished with imprisonment of either description for a term which may extend to ten years, or with fine or with both.”
As we speak of the above, it is mandatory to identify what is the distinction between an abortion and a miscarriage in order to understand the law stipulated with it. So, what is it to abort and what is to miscarry in terms of law?
The premature termination of a pregnancy. The intentional and artificial termination of a pregnancy that destroys an embryo or fetus. Basically meaning the spontaneous expulsion of an embryo or fetus before it is capable of living outside the womb is known as aborting a life.
Miscarriage means loss of an embryo or fetus before the 20th week of pregnancy. The medical term for miscarriage is spontaneous abortion. Basically meaning a natural cause for the loss of the fetus or embryo.
Accordingly, unless a woman miscarries due to a natural cause, an artificially intended abortion is considered a punishable crime under the given section under the penal code. The only exception to abort is, if the life of the mother is in danger.
So yeah! In Sri Lanka you cannot abort without having a wish to end up in jail. Period!
It is hence questionable whether it is justifiable to restrict the rights and laws in protection of a fetus in the expense of the mother or those responsible in the upbringing of the child who are living and breathing in existence already.
Unlike in Sri Lanka, abortion is legal in the United States and a significant case that established the rights of a woman for her privy of body was the case of Roe v. Wade.
Jane ROE filed a case against Henry WADE, the district attorney of Dallas County from 1951 to 1987, who enforced a Texas law that prohibited abortion, except to save a woman’s life. The Court held that a woman’s right to an abortion fell within the right to privacy (recognized in Griswold v. Connecticut  ) protected by the Fourteenth Amendment . This decision gave a woman “a right to abortion” during the entirety of the pregnancy and defined different levels of state interest for regulating abortion in the second and third trimesters.
In the UK, Abortion Act 1967 section 1 allows a pregnancy to be terminated only if in the opinion of two doctors, it has gone beyond its 24th week and carrying the baby to term would involve risk greater than if the pregnancy were terminated, or of injury to the physical health or mental health of the pregnant woman or any existing children of her family.
Similarly, European communities also have given law the advantage of flexibility whilst Sri Lanka remains rigid and adamant with regard to that aspect.
However, given that Sri Lanka is a country bound by religion and culture the law too is seemingly influenced when it comes to deciding the rights of abortion. While it is true that laws should not be a burden to the society, one must understand that the law exists for the betterment of the society, and it is not fair to burden and pressure a woman or a family who is alive and is breathing for the benefit of a fetus that has no absolute idea what is to be burdened and pressured or being alive for that matter.
It is high time that the Sri Lankan legal community focus on renewing the laws with regard to abortion; especially given the rapidly changing social context.
The law needs to be more considerate. Imagine of the crime of rape, how rightful is it to legally restrict a woman away from her bodily autonomy as she carries the child of her rapist? In case of malformed fetuses, what about the right that everyone has that claim, one has the right to lead a mentally and physically pleasing life after birth? Can the law establish a secure path and life for both the mother and if given birth, the child (Until birth a fetus is not a child) given that she is deprived of the choice to abort the memories of her rapist growing inside her?
Looking at the bigger picture of the current competitive economy and social structure, is it fair by the law to enforce parents to not abort if they are unable to economically raise a child? The law would establish the safety of the fetus and after birth its life as law is in force to protect human life. And here we come back to question, at what point in embryonic development does the fetus obtain the property “life”? Is it at conception when it is just a single cell? Is it when it is a clump of cells? Is it when the heart starts? But can life begin without a functioning brain? Should we measure the fetus’ brain activity?
Should not the laws be more considered with regard to the aspects of responsibility of the development of a mentally and physical healthy citizen?
The law implies upon the fact that “if you have conceived, then give birth” discarding every rational aspect as to the consequences of after birth of both an existing life and of a life that the law made exist which was not wished for.
Given the Sri Lankan context it would cause great havoc to bring about a new dimension with regard to an upgrading of abortion laws. Abortion is also a grey area under which perceptions dominate judgement and judgments would stir controversy. But speaking of life and the right to it, whose right is it to abort?
The fetus? which has no clue what earth is like!
Is it the mother who carry the fetus and the responsibility of its’ eventual upbringing?