introduction

Although abortion is commonly practiced throughout most of the world and has been practiced since long before the beginning of recorded history, it is a subject that arouses passion and controversy.  Abortion raises fundamental questions about human existence, such as when life begins and what it is that makes us human. Abortion is at the heart of such contentious issues as the right of women to control their own bodies, the nature of the State’s duty to protect the unborn, the tension between secular and religious views of human life and the individual and society, the rights of spouses and parents to be involved in the abortion decision, and the conflicting rights of the mother and the fetus.  Also central to the subject of abortion is one of the most highly controversial social issues of all, sexuality.  Any discussion of abortion almost inevitably leads to a consideration of how a pregnancy came about and ways that the pregnancy could have been prevented by the use of contraceptive methods. As the new century begins, these questions and issues continue to occupy a significant place in public discourse around the world.

This study does not attempt to answer any of these questions or resolve these controversies. Rather, it aims at providing objective information about the nature of laws and policies relating to abortion at the end of the twentieth century.  It consists of an analysis of abortion law and policy in all countries, both developed and developing. Included in this analysis is information on the social and political settings of these developments, the ways in which these laws and policies have been formulated, and how they have evolved over time. Where possible, data on the incidence of abortion have been cited. Although information on the incidence of abortion and the setting within which abortion takes place are not the focus of the study, these data are provided to enrich the policy picture.

I.              MAJOR DIMENSIONS OF ABORTION POLICY

II.             

A.  Practical challenges

       Preparing a worldwide overview of abortion law and policy and an analysis of recent developments involves a number of major challenges. Some are largely practical in nature. Legal materials in many countries, particularly in the developing countries, are difficult to obtain. The legal infrastructure of some countries is not well developed, laws in force have not been collected or brought up to date and information about laws is not widely disseminated even within the country. Other more pressing social and economic problems often consume scarce resources that otherwise might be devoted to the publication and consolidation of legislation and court decisions.  Wars, civil disturbances, dramatic changes in Governments and even legal systems also contribute to this problem, making it difficult in a few countries even to ascertain what laws are in effect. In some countries language is also a barrier, as legislation is published in a vernacular that is not widely known outside the country or is not accurately translated. A further complication arises from the federal nature of certain countries. As the individual sub-jurisdictions—usually states—of these countries have their own separate laws, more than one abortion law may be in effect within a country. When the inevitable delays in the communication of legal and policy changes are taken into consideration, the challenge of compiling accurate information can be formidable.

Moreover, the legal provisions governing abortion in many countries are not always conveniently located within one text. The most common place in which such provisions appear is a country’s criminal code or criminal laws relating to offences against persons, for abortion has, at least in the last two centuries, been considered a criminal offence of a highly serious nature.  However, with the movement during the last half of the twentieth century to liberalize abortion laws, this is no longer invariably the case; consequently, legal provisions on abortion can be found in a variety of places. Some countries have incorporated liberalized abortion provisions into their criminal codes. Others have enacted special abortion laws that are separate from criminal codes. Thus it is possible for a criminal code to prohibit abortions, while a law on abortion will describe the circumstances under which abortions are allowed.  In still other countries, public health codes or medical ethics codes may contain special provisions that clarify how to interpret an abortion law. For example, a medical ethics code may specify the circumstances under which it is ethically acceptable for a physician to perform an abortion. In a final group of countries, mostly common-law countries (see below), abortion may not be governed by a specific law, but by a court decision. In a few cases, the existence of multiple texts, each with conflicting provisions, can make it difficult to determine the exact nature of the law and policy concerning abortion in a specific country. 

B.  Conceptual challenges

1.     World legal systems

Even when specific legal materials are available, other challenges abound. One major problem relates to the wide variations in the sources of abortion law. Although in recent years tentative efforts have been made to internationalize or standardize some aspects of law, most notably through international and regional bodies, abortion law, like most law in the countries of the world, is governed by widely differing legal systems. These systems are based on varying sets of principles; they formulate issues and define terms in dissimilar ways. Comparing the treatment of a specific topic under these systems is, of necessity, a hazardous undertaking. 

In general, the majority of countries at the beginning of the twenty-first century adhere to one of three major legal systems: civil law, including what was once denominated “socialist law,” common law and Islamic law. Civil law, which derives ultimately from Roman law, and more recently from the Napoleonic Code enacted by the Government of France at the beginning of the nineteenth century, is a system based primarily on codified laws, such as civil codes, penal codes, family codes and commercial codes, each devoted to a specific topic. These codes have been designed by Governments to serve as a general guide to proper conduct for individuals, with the goal of protecting justice and morality in society as a whole. Civil law places an emphasis on social responsibility, and the rights of the person are viewed within a social context rather than as a separate and inalienable characteristic of individuals. Interpretation of the laws by judges plays a relatively minor role in shaping law under civil systems. 

One major branch of civil law is socialist law, which was enacted in the twentieth century, after the First and Second World Wars, by the newly created Marxist States in Eastern Europe and parts of Asia. Like civil law, socialist law is based on codification, largely of Marxist and socialist principles, and allows judges little room for interpretation of laws, except to conform to those principles. It emphasizes primarily the good of society as a whole, not the rights of individuals, and establishes a sort of guide for conduct. It differs from the civil law model in that it was initially imposed as a means of radically transforming the economic and social bases of society, as well as the behavior and attitudes of its people. It was only after this transformation occurred that it came to function as a means of preserving the order of society.

In contrast, common law has its origins not in codes, but in court determinations made by judges within the lands governed by the English crown. Law was viewed not primarily as a guide for conduct, but as a means of resolving disputes by individuals. It emphasized principles of self-reliance and individual rights such as property rights and freedom of contract more than the order and welfare of society. Under a common law system, law changes and progresses not primarily by means of enactment by the Government, but through the development of a body of court decisions containing the changing interpretations of judges as social conditions change. Although statutes are enacted under the common law system, judges are given much greater leeway than under the civil law system to interpret these statutes in novel ways. Hence, under the common law system, law is more fluid and less static than under the civil law system.

Islamic law, known as Shariah, which can be viewed as an example of a larger category of religious law, differs in important ways from both civil law and common law. The primary difference is in its conception of law as inseparable from religion, so that no distinctions exist between the secular and the religious, as there are under the civil and common law systems. Law under Islam is based primarily on the text of the Quran, the holy book of Islam and the sunnah, the collection of acts and statements made by the prophet Mohammed, and is considered a guide for human conduct. Owing to its reliance on these texts, Islamic law is for the most part fixed and viewed as unchanging, except with respect to issues and situations not specifically encountered within the Quran and sunnah. In these cases, Islamic jurists engage in interpretation and employ deductive or analogical reasoning leading to consensus. 

In practice, only in very few cases does the law of any individual country conform exactly to one of the above models. Most legal systems contain elements of more than one model, drawing as well on local indigenous legal traditions. Two recent trends tending to break down these distinctions between the systems are of particular significance. One is the tendency of common law and civil law systems to merge; countries that initially followed a common law tradition have engaged in greater efforts to codify laws, while countries that relied mainly on a civil law tradition have given greater interpretive powers to courts. This is especially evident at the end of the twentieth century as numerous civil law countries have established new constitutional courts with wide authority to rule on the validity of legislative enactments. The second is the collapse of the socialist Governments of the former Union of Soviet Socialist Republics and Eastern Europe since 1990 and the withering away of the particularly socialist elements of their law. Naturally, some countries have not followed these trends. For example, China, Cuba, Viet Nam and the Democratic People’s Republic of Korea still maintain socialist legal systems. Yet, even in a number of these countries, the law,  at least in commercial areas, is moving away from socialist principles as their Governments increasingly turn to capitalist models of economic development.

Moreover, laws in many countries, although based on one of the above models, have been strongly influenced by local legal and cultural traditions. Religions play or have played an important role in shaping legislation in a number of countries, particularly law relating to personal relationships, such as marriage, family interactions, children, and inheritance. Although not accepted as official law, canon law as developed by the Roman Catholic Church has been a significant force in countries with large Catholic populations such as Portugal, Spain and the countries of Latin America, as have Shintoism and Buddhism in Japan. Local customary law, as practiced by indigenous populations before the advent of European colonialism, has played a similar role in many developing countries of Africa and Oceania. There, much of the law dealing with personal relationships—mostly family law—is based on the traditions of various ethnic groups.

One of the most challenging and complex problems that has faced many developing countries since their independence, with the exception of those in Latin America, is how to integrate and harmonize the various legal traditions in operation within their boundaries, including religious-based law, customary law, and the common law and civil law imposed by or imported from Western countries.  Different strategies have been tried.  Some have preserved religious and customary law within the sphere of personal relationships while relying on colonial-based law in other areas of life. Some, such as Indonesia, have tried to blend the two to form a unique national system. Some, including Turkey and Japan, have almost entirely adopted Western models similar to those of France, Germany and Switzerland. Owing to civil unrest and economic hardship, a few countries have not yet begun the process and have left colonial laws intact. Most recently, some countries, such as Afghanistan, Iran, Sudan and, increasingly, Pakistan, have moved to Islamic models.

Despite the hybrid nature of law in many countries, their legal systems can still be broadly categorized under the three major systems, resulting in great part from the phenomenon of colonialism, which was experienced by almost all developing countries from the sixteenth to the twentieth centuries. The United Kingdom of Great Britain and Northern Ireland and most of the countries once under its colonial rule have followed a common law path. Thus, Australia, Bangladesh, Canada, India, Ireland, Malaysia, New Zealand, Pakistan, Singapore and the United States of America as well as the Anglophone countries of Africa, the Caribbean and Oceania have adopted common law. Most of the remaining countries of Europe, including Belgium, France, Portugal and Spain and the developing countries formerly under their control, adhere to a civil law system. Among these countries are those of Latin America, non-Anglophone sub-Saharan Africa, the former Soviet Republics of Central and Western Asia, and various other developing countries. In addition, the law of a number of countries of Northern Africa and the Middle East has been significantly influenced by French civil law and, as noted above, Turkey and Japan have adopted civil law models. Islamic law is of greatest importance in the countries of Northern Africa and Western Asia, regions with predominantly Muslim populations, and strongly influences personal law in other countries such as Bangladesh, Indonesia, Malaysia and Pakistan.

2.     Abortion laws within legal systems

The above differences in legal systems and in sources of laws have left a strong imprint on the abortion law of various countries. Most common law countries, other than the United States, have abortion laws that are based on various English laws and court decisions.  Some take as their model the Offences Against the Person Act of 1861. Under this Act it was prohibited “unlawfully” to use any means to procure an abortion either for oneself or for another person or unlawfully to supply means for that end, and the prescribed punishment was imprisonment. Originally, this Act was interpreted as prohibiting all abortions, except those performed on the grounds of necessity, in order to save the life of the pregnant woman. Other countries follow the English court decision, Rex v. Bourne, in which it was held that abortions performed for serious physical or mental health reasons, would not be considered “unlawful” under the 1861 Act. Still other countries have looked to the British Abortion Act of 1967, which sets forth broad health, fetal impairment, and socio-economic indications for abortions, in general until the twenty-fourth week of pregnancy.

The abortion laws of many civil law countries are based on the abortion provisions of the French Napoleonic Code of 1810, the 1939 French version of that Code or the 1979 abortion law of France.  Under the 1810 Napoleonic Code, any person who by any means procured the abortion of a pregnant woman was punished with imprisonment, as was a pregnant woman who procured her own abortion, although it was understood that an abortion could be performed when necessary to save the life of the pregnant woman. To the provisions of the 1810 Code, the 1939 French Penal Code added language specifically allowing an abortion to be performed to save the life of the pregnant woman. The 1979 Law allows a woman who is in a state of distress to have an abortion performed on request during the first ten weeks of pregnancy after she undergoes counseling and waits a week, and later in pregnancy on other serious grounds. In contrast to the common law system, court interpretations of these laws play a minor role.

Unlike the situation in either the common law or civil law countries, no single abortion text or court case can be identified as the model for most modern Islamic abortion laws. The Quran and the sunnah, the two primary sources of Islamic law, do not deal specifically with abortion.  Moreover, until recently, Islamic criminal laws were not always codified. Consequently, Islamic law adopts a number of approaches towards abortion, depending upon which of the five major schools of Islamic law is followed. In general, the attitude of Islamic law towards abortion is dependent upon whether the abortion is performed before ensoulment, the time at which a fetus gains a soul.  This is most often viewed as occurring 120 days into a pregnancy, but is also interpreted as occurring at 40 days. Some schools permit abortion for justifiable reasons before ensoulment, while others generally prohibit it at all points of pregnancy. All schools, however, allow abortion at any time during pregnancy in order to save the life of the pregnant woman. In contrast to the situation under both common law and civil law, the punishment for abortion under classic Islamic law is payment of a sum of money to the relatives of the fetus. The amount of payment depends upon the stage of pregnancy reached at the time of the abortion.  Before ensoulment, the fetus or embryo passes through a number of developmental stages; these are variously described in Arabic as “the lump” or “something that clings.”

Owing to the different treatments of abortion in these three legal systems, a number of ambiguities arise in interpreting specific indications for abortion, making any comparison challenging. The most widely accepted indication for abortion—to save the life of the pregnant woman—provides a good example.  Broadly speaking, this indication is valid in two categories of countries: those with abortion laws that specifically mention it and those with laws in which it is not mentioned but is inferred from the general criminal-law principles of necessity. In the latter, an abortion, although considered illegal, can be performed on the rationale that it is necessary to preserve a greater good, the life of the pregnant woman.

In practical terms, these two situations differ substantially. In the first, a physician contemplating the performance of an abortion is able to point to a specific legal provision authorizing such an act and be reasonably certain that he or she was acting within the law. In the second, no such certainty exists, only a general principle that could be raised as a defense if the physician were prosecuted for performing an illegal abortion. It would then be a matter for a court to determine after a trial. The result is that in the latter case, a physician would in general exercise much more caution in determining whether to perform an abortion to save the life of the pregnant woman.

A similar situation arises with respect to laws that permit an abortion to be performed to preserve the health of a pregnant woman. An important distinction holds between countries with laws that specifically state that an abortion is allowed to preserve the health of a pregnant woman and countries in which a court or courts have, through their interpretation of a law that lacks specific provisions, allowed such an abortion to take place. In the former, a physician can be reasonably certain of acting within the law; again, in the latter, he or she might have to rely on a court decision as a defense in criminal proceedings.  Moreover, unless the court whose decision is being relied on is the highest court in the country, its ruling may not be definitive.  Even in common law countries, lower courts are not bound by the decision of another lower court, although they may pay it great heed.  Indeed, one reason that the United Kingdom enacted the 1967 Abortion Act was to give statutory expression to Rex v. Bourne and ensure that it would be considered the law of the land.  By means of this legislation, it hoped to provide physicians with greater guidance and legal security in the performance of legal abortions.

Additional ambiguities are connected with the health indication for abortion. One is that a number of countries use the term “health” in their abortion laws without specifying what it encompasses. Thus it is unclear whether they intend abortions to be allowed in cases of threat to mental and physical health or only physical health. If one follows the definition of health accepted by the World Health Organization, health is a very broad term—“a state of complete physical, mental, and social well-being and not merely the absence of disease or infirmity,” then abortion for health reasons would be very common (WHO, 1994b).  It is doubtful, however, that such an expansive definition of health was intended by many of the abortion laws enacted so long ago. The question arises as to whether health should be interpreted as historically understood or in the light of current thinking. Similarly, unless a country specifies that the threat must be serious or grave or permanently disabling, it is unclear what degree of threat to health is intended. 

Other terms referring to health are even more ambiguous. Some countries allow abortions for “therapeutic” purposes or permit abortions for the purpose of “medical or surgical treatment.” Others provide that the threat to health by continuation of the pregnancy must be greater than the threat posed by its termination. Statistically, during the first trimester, a pregnancy is always a greater threat to health than its termination; it is therefore difficult to determine how to interpret this phrase.  A literal interpretation would allow abortion under most circumstances. Given such a lack of clarity in the laws, the designation of a country as allowing abortions for health purposes can cover a wide variety of situations. These range from allowing abortion only in cases that threaten permanent and serious damage to physical health, to cases that threaten mental health owing to socio-economic distress, to the case of “medical or surgical treatment”, which is essentially abortion on request. Unless the issue has been the subject of litigation in the courts, or a target of significant legal analysis of the nature of the threat in legal commentaries, it is difficult to ascertain exactly what the circumstances must be to justify an abortion.

Procedural requirements to establish the presence of an indication for abortion are also a factor in determining the exact nature of an indication for abortion. In the context of the indication of health, it may be necessary for two or three physicians to attest to the threat to health. A great deal of difference exists between this and the situation in which the physician who is willing to perform the abortion is the only judge of whether the indication is present. In the context of abortions performed in cases of pregnancy due to rape or incest, a variety of mandated procedures also prevail. In some countries, the incident of rape or incest must be reported to police or judicial authorities, while in others the pregnant woman must only reasonably believe that the pregnancy was the result of rape or incest. Some specify no procedural requirements or, conversely, require a judicial determination that the pregnancy was the result of rape or incest. Such differences again produce a significant variation on the nature of the indication of pregnancy due to rape or incest in various countries.

The terminology employed under Islamic law presents another formidable challenge in comparing abortion laws. The principles underlying Islamic law differ fundamentally from those of common and civil law, which have at the most basic level a Western orientation; it is therefore difficult to compare laws under the two systems. An example of this problem involves the notion under Islamic law that the crime of abortion is punished not by imprisonment and government-imposed fines, but by the payment of compensation by the perpetrator of the crime to the relatives of the victim of the crime.  In the context of abortion, this is entirely foreign to Western law. The problem is also illustrated in the definition of the stages of pregnancy. While Western law does recognize different stages of pregnancy, in present-day law they are almost exclusively defined by weeks of gestation; under Islamic law they can be defined in more descriptive terms such as “the lump,” “something that clings,” “ensoulment,” or “the forming of organs and limbs”.

C.  Law and policy versus practice

       Beyond these conceptual challenges, determining whether the written law or policy of a country conforms to the practice observed or inferred remains a major problem. In many countries where the performance of abortions is generally illegal, statistics indicate that large numbers are being carried out, most of them illegally, with few prosecutions. Of the approximately 50 million abortions carried out every year in the world, estimates place the number performed illegally at 40 per cent (WHO, 1994a).  In these countries, law enforcement authorities ignore or tolerate the performance of illegal abortions or even unofficially license clinics for that purpose. A number of factors are responsible for this situation. Among these is the ease with which abortions can be performed, the lack of will or resources to prosecute, particularly in the light of more pressing social needs, and the clandestine nature of the procedure.  In some countries where abortion is technically legal, access to authorized facilities and personnel may be limited, or resources to pay for the abortion may be lacking, resulting in more illegal abortions.  In a few cases, although abortion is authorized, the Government may not have issued regulations allowing the law to be effectively implemented.  In all of these situations, legal action is rarely taken except in the most egregious cases, usually involving the death of a pregnant woman.  In some countries, the indifference to abortion is so great that most of those performing abortions or enforcing laws do not know what the provisions of the law actually are. The advent of new scientific developments such as RU 486, the so-called “abortion pill”, which makes abortion even easier to perform without the need for special facilities, will in all probability only increase the gap between law and practice.