Abortion Law in Pakistan: Reforms Needed?
Abortion has been a much debated subject around the world. There are several reasons for it being perceived incorrectly. There is a public perception about abortion as a form of killing an unborn child, which has raised negative ideas about the subject. In conservative societies, especially like Pakistan, abortion has also been linked with illicit sexual relations and sexual immorality.
Sexual morality is often deeply tied to religious norms in the society. In Pakistan, for example, the rules relating to abortion are heavily influenced by Islamic legal provisions on the subject. Yet, abortion also has numerous other factors which contribute to how it is perceived among ordinary people depending on the specific culture and dynamics of the locality. All over the world, the argument that a woman’s autonomy over her body should override other concerns has gained significant traction and we continue to see more legislation favouring choice being passed in several countries.
I attempt to examine the debate in relation to the customs, traditions and legal practices of a religiously conservative country such as Pakistan.
Islamic Law, Islamization and Culture in Pakistan
The freedom to have an abortion seems to be restricted due to Islamic beliefs and practices with understandable gaps and reality. Some schools of Islamic law, the Malikis, the Imami Shia’s, the Ibadis and the Zahiris hold abortion at any time to be the killing of a potential person but consider it is only allowed when the life of a mother is in danger. They support this stance by referring to the Quranic verse which says, “When the infant girl, buried alive, is asked for what crime she was slain.”
This verse was with specific reference to a complete prohibition of wa’ad (female infanticide by exposure to the elements), meaning that the killing of babies is prohibited just because they are born as girls, but the scholars also began to question whether practices such as abortion could be construed as murder or killing of a soul in general. On the other hand, some schools of Islamic law, Hanafi and Zyadi believe that abortion is allowed in Islam if it is done before the development of the fetus. According to some scholars, the development of the fetus takes place within 90 days, while some consider it 120 days.
It is said that the Islamic schools of law failed to consider the fact that the concept of family planning was practised even at the time of the Prophet (peace be upon him) as well as afterwards, namely by way of withdrawal. Today, regardless of scientific advancements in the world, new methods of family planning cannot be restricted by religious arguments. By analogy, the permission of withdrawal automatically makes other birth methods legal. Arguments surrounding decency and indecency, proper and improper, are not logical discussions for restricting advanced methods to avoid unwanted pregnancies. If a child cannot be raised properly or taken care of, it is also equivalent to crushing their soul.
Abortion law in Pakistan is perceived to be strict not just because of religious fundamentalism but also due to socially conservative factors. Many people in underdeveloped areas of the country believe that pregnancy takes place by “god’s will” and so it will be a disgrace to their family’s honor if someone opts for an abortion.
Law Governing Abortion in Pakistan
The penal sanction relating to abortion in Pakistan is found in sections 338, 338A, 338B, and 338C of the Pakistan Penal Code 1860. In essence, the punishment for abortion varies depending on what stage of development the fetus is. Any person performing an illegal abortion is subject to imprisonment for three years if the woman consents to it, or ten years if no such consent has been given. If the woman is “quick with child” (a stage of pregnancy when movements of the fetus have been felt), the penalty for imprisonment is up to 10 years along with a payment of fine. Here, even a woman who causes herself to miscarry would also fall within the ambit of these sections. Abortion is only permissible in Pakistan if such miscarriage is caused in good faith, for the purpose of saving the life of the woman, or providing necessary treatment to her.
Consequences of Prohibiting Abortion
A national study was carried out in 2002 by the Population Council and Guttmacher Institute which projected that 890,000 induced abortions had taken place in Pakistan by the year 2002. The 2002 study estimated that in a year-long period, 197,000 women had been treated in public health facilities or private teaching hospitals for complications resulting from unsafe, induced abortions. The women who self-induced abortions were exposed to different diseases because they didn’t use the method accurately, which later resulted in complications. According to a study conducted by the World Health Organization (WHO) in 2008, the risk of death due to unsafe abortion is 30,000 per 100,000 live births globally and 40,000 per 100,000 in developing countries. The study stated that, “Women all over the world are highly likely to have an induced abortion when faced with an unplanned pregnancy – irrespective of legal conditions… legal restrictions increase the percentage of unlawful and unsafe procedure.”
The argument against abortion is a moral argument which is a subjective and personal interpretation of different jurists and such arguments should not represent the law of any country. Many people argue that to have an abortion is considered equal to murder because it involves life. It is important to highlight here that the fetus is not legally or scientifically a person or human being so it cannot be considered equal to murder since the fetus is neither a person nor alive. It has not even been scientifically proven if fetuses are capable of feeling pain when an abortion is being performed. Even religious schools of thought consider the number of days for fetal development and permit abortion prior to that time.
The current law regulating abortion in Pakistan ignores not just these factors but also all such circumstances where a woman would ‘need’ an abortion, like rape or fetal abnormality, etc. The legalization of abortion is very important because one cannot imagine a society where a woman is raped and is not allowed to terminate an unwanted pregnancy. Are we so cruel to force a woman to give birth to an illegitimate child whom she never intended to have? Are we so cruel to let her go through a mental breakdown which she will have to face every single day if forced to raise that child? Are we so cruel to allow a woman to grow a child without the identity of a father? Are socially conservative factors more important than the health of a woman? I think not.
Bowen D, ‘Abortion, Islam, And The 1994 Cairo Population Conference’ (1997) 29 International Journal of Middle East Studies <https://www.cambridge.org/core/services/aop-cambridge> accessed 28 February 2018
‘Casterline J, Singh S, Sathar Z. Unwanted Pregnancy And Post-Abortion Complications’ <https://assets.publishing.service.gov.uk/media/57a08a0ded915d622c00052b/ResearchReport_Post_Abortion_care
IsqatiHaml, Pakistan Penal Code 1860
‘Unsafe Abortion’ (World Health Organization, 2008)<http://apps.who.int/iris/bitstream/10665/44529/1/9789241501118_eng.pdf> accessed 3 March 2018
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.