Abortion: The Autonomy Of A Woman?

Abortion: The Autonomy Of A Woman?

Abortion has always been a universally controversial issue and will always remain to be one. It cannot be denied that it is under debate everywhere in the world. Pakistan is no exception. Even though it has been allowed by Islam itself, the society generally thinks of it as a taboo.

It was not until 1990 that abortion in Pakistan was legalized by revision of the century-old provisions of the Penal Code of 1860. Under the previous law, abortion was considered to be a crime unless it was performed in good faith to save a woman’s life. Both the woman and anyone who assisted the woman to carry out an abortion were to be subjected to a 3-year imprisonment and/or fine. This changed after 1990 when abortion was finally legalized and was no longer considered a crime.

The revised Penal Code corresponds better with Islamic teachings pertaining to offences against the human body. The revised version states that legal abortion is dependent on the development of the fetus, that is the formation of its organs.

However, despite abortion being legal in Pakistan and there being a consensus amongst Islamic scholars on its permissibility in limited circumstances, a majority of the population as well as the medical profession considers it to be an un-Islamic act and refuse to provide medical care to women, forcing them to seek help from inexperienced healthcare providers and ultimately risk their lives.

In most situations, a woman is not given an opportunity to make a decision by herself as to whether she wants to have the child or not. It does not matter whether it is a pre-marital pregnancy or a result of rape. Due to the fear of shame and oppression, the woman is either forced to have the child and face banishment or ultimately kill herself. One such reported case is that of Maryam, a 16-year-old who chose the latter and ended her life.

It is distressing to point out that the Pakistani legal system does not provide any help either. S.338 of the Pakistan Penal Code states that abortion is an offence if performed before the fetus’s organs are formed and is punishable by imprisonment for 3 to 10 years. If performed after the organs have been formed, diyat (compensation) can be imposed and there can be imprisonment as well. It is only allowed in order to save the woman’s life or to provide her with ‘necessary treatment’. This is in line with Islamic teachings which also state that after the formation of the organs, abortion will only be allowed in cases to save the woman’s life.

Statistics show that there are around 890,000 instigated abortions every year with more than half being performed by untrained professionals. They also show that the procedure is mostly adopted/wanted by married women who consider it to be a ‘simpler family planning tool’ as compared to making use of contraceptives. This runs counter to the orthodox perception that abortion is usually sought by unmarried women.

Dr Shershah Syed, a senior gynecologist in Pakistan has stated that the main victims of this ailing temperament are underprivileged women from the lower class. This is so because the affluent class is capable of having this procedure done by trained professionals. He further went on to say that, “The politics of abortion is that to keep silent and not to create awareness of the subject.” He also provided some statistics showing that about 30,000 yearly deaths occur in Pakistan due to pregnancy-related issues.

If a comparison is to be made with the European Union, despite the fact that the countries have put forward laws allowing abortion, it can be observed that there is a divide between the interpretation with regards to the applications of such laws.

The EU can be divided into 3 groups:

1. There are progressive states such as France, Denmark, the Netherlands and countries from the south such as Italy, Portugal and Spain which allow abortion up to 10-12 weeks of pregnancy, up to 24 weeks in the Netherlands and the UK and up to 18 weeks in Sweden. This right is available to the woman on demand, however, restrictions do apply. One such example is that of the UK where this process is only legal if it has been approved by two qualified doctors and carried out by a qualified doctor. Along with this, there are some additional elements that are required to be present.

If the pregnancy surpasses 24 weeks, then abortion will only be allowed if:

  • there is a great risk attached to the pregnancy;
  • there can be potential permanent injury to the physical and mental wellbeing of the woman;
  • the continuance of the pregnancy involves risk to the woman’s life; and
  • there is considerable risk that in case the child is born it would suffer from physical and/or mental abnormalities which may leave it gravely handicapped.

2. Then there are the restrictive states which only include Poland and Ireland, the two bastions of Catholicism in Europe. Poland only allows abortion until the 12th week in rape or incest cases and for up to 24 weeks where the mother’s life is in danger or the fetus is deformed. These restrictions have led to an increase in illegally induced abortions such as by taking pills against osteoarthritis which can cause contractions and miscarriage.

On the other hand, Ireland after 2013 only allows abortion in cases where there is “real and significant danger” to the woman’s life which needs to be certified by doctors. Where a risk of suicide is involved, it needs to be signed by an obstetrician in agreement with two psychiatrists.

3. The last group is that of the banning states. The sole member state which prohibits abortion till today is Malta. The penalty imposed ranges from 18 months to 3 years’ imprisonment. On the other hand, while abortion is illegal in Cyprus, it is still allowed in cases of rape or incest. However, it still requires validation from two doctors that the woman is at a risk of harm due to the pregnancy.

From the above-mentioned data, it can be seen that the laws and philosophies regarding abortion vary in all manners and forms everywhere in the world.

With regards to the United States’ approach to abortion, as per Black Burn J in Roe v Wade (1973), one’s philosophy/reasoning with regards to abortion depends on a number of factors such as one’s thinking, practical knowledge and subjection to the realities of human existence. Furthermore, regard also needs to be given to one’s religious teachings; points of view concerning life, family and their values; and moral standards one formulates and observes over time. The approach of the US courts is to look at the material facts of a given case, free from any sentiments and bias.

Black Burn J further went on to say that if the state denies the pregnant woman the right of abortion, it will have to face the consequences. There can be certain direct medical risks involved which can endanger the woman’s life. If not allowed to abort, having more children might cause the woman to lead a difficult life ahead. She may be exposed to both physical and psychological stress as a result of bringing up and taking care of an unwanted child. Furthermore, the ever-growing stigma of unwed motherhood causes more complications.

Taking into regard all these elements, it is argued by many that the right of abortion is an absolute one and permits the woman to end the pregnancy at any time, in any manner or form and for any reason she alone chooses. However, the courts think otherwise. While they do agree that the right of abortion is a part of the woman’s right of personal privacy, they have stated that it is a qualified right and will be available only if there are no underlying state interests or policy considerations. All of this was approved in the case of Casey (Planned Parenthood v Casey 1992).

Drawing a comparison of all the jurisdictions discussed above, it can be assessed that abortion is restricted in one way or the other everywhere in the world. In my humble opinion, there is a grave need of reform in this area because this is something which is related to the private life of a woman and thus she must be allowed to decide for herself whether she wants to undergo the procedure or not. As Lady Hale in the UKSC case of Montgomery (2015) said, pregnancy is the epitome of the personal autonomy of women.

Thus, the main crux of my argument is that abortion is something which is the autonomy of the woman and must not be subject to anyone else’s discretion.


The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which she might be associated.

Mahroo Rashed

Author: Mahroo Rashed

The writer is an LLB student at LGS and has served as an intern at Courting The Law.