Abortion reform is currently a topic du jour in Sri Lanka, with dynamic discussions on why reforms are needed, feminist perspectives on the ongoing debate, as well as the view that “public policy on health ought to be made on the basis of strong medical and secular grounds and not on religious beliefs”.
While this final point made by the Chair of the Human Rights Council of Sri Lanka is pertinent, it is imperative we recall that while abortion is a public health concern, it is first and foremost a woman's reproductive right, and that the choice to have an abortion forms an integral part of a woman’s reproductive autonomy, i.e. whether and when to continue a pregnancy. This calls for a serious public debate on whether the medicalization of abortion through the proposed abortion law reform, the key proponents of which are doctors and the Ministry of Health, is a price worth paying.
Currently, abortion is criminalized in Sri Lanka with one exception; to save the life of the woman. The proposed reform, if passed, will allow abortions in two instances: in the case of a foetus with lethal congenital malformation, and when a woman becomes pregnant as a result of rape. Both exceptions are at the recommendation of consultant doctors in state hospitals and in the case of rape there is involvement of law enforcement too.
An argument in favour of the proposed reform would be to relax the law in order to make safe and legal abortion accessible for more women who need them in the context of the two added exceptions. Another argument seems to be that such a reform would take away restrictions imposed by the state and enable women to access safe and legal abortion, albeit in very limited circumstances.
While these make the reforms sound promising, a closer look reveals that they are deeply problematic, both in principle and in practice.
The key concern with the proposed reform is that it is not centered around a woman’s choice. Instead of giving a woman the power and the choice to make a decision asserting her reproductive autonomy (whether and when to become pregnant and whether and when to continue a pregnancy), the proposed reform hands this decision over to medical professionals (and not just any medical professionals but to consultant doctors).
Medical assistance may be needed for detection in the case of a foetus with lethal congenital malformation or to detect any other issues with a pregnancy as well as to consult for advice. Apart from that, there is no reason why the final decision, whether to terminate a pregnancy, should be made by a doctor (or in other words, medicalized), regardless of what the reason for an abortion is. While the doctors who are backing this reform insist that “it will be up to the mother”, in the same breath they state that it will be up to the decision of a woman only upon the recommendation of two consultant doctors from state hospitals. This shows that the proposed reform is rooted in medical paternalism.
Medical paternalism is not a new concept or experience for women. Research shows that medical practitioners often discount the views and opinions of women and other marginalized groups. Research also reveals a gender bias in the medical treatment of women, especially in the treatment of pain. While this situation might be changing for the better, it is clear in this particular instant that instead of challenging patriarchal attitudes that disregard women’s right to make decisions about their bodies, this proposed abortion reform leaves the decision in the hands of doctors who presumably know better than women do, what to do about their bodies. The absence of any women at a recent briefing on the abortion reforms by doctors to religious leaders is just a foreshadowing of what is to come.
The personal beliefs and biases of medical doctors are another form of medical paternalism and unjustified at that. The backlash to the proposed reforms included not just statements by the Catholic Bishops Conference of Sri Lanka but also the circulation of a statement by the Catholic Doctors’ Guild of Sri Lanka that “vehemently opposes abortion for any reason other than to save the life of the mother”. Should a woman choose to seek recommendations from consultant doctors for terminating a pregnancy as envisaged by the proposed reform, she’d also have to seek out doctors who would not allow unjustified paternalism to affect their decision-making.
Setting worrisome precedents
The proposed reform, if passed, will set several precedents that will impede the progress of women’s human rights. Firstly, it will establish that the decision to have an abortion, and potentially the decision for other medical procedures, as a decision that has to be made (or not made) for women.
Another is that “the proposed amendments could reinforce the idea that women should first be victims of terrible circumstances before she can be afforded her full human rights”. Yet another worrisome precedent that could be an outcome of the proposed reform is that imposing restrictions and requirements such as a time limit, recommendation from consultant doctors and police reports would pave the way for further restrictions, as it has in other parts of the world.
Are these reforms working elsewhere?
The proposed abortion reform in Sri Lanka is not a brand new proposal. It has been proposed and implemented in other parts of the world, leading to unsatisfactory results. In India, the Medical Termination of Pregnancy (MTP) Act permits abortion up to 12 weeks after consultation with one doctor and between 12 to 20 weeks, with the medical opinion of at least two doctors (exceptions to the time limit being a threat to the woman or the foetus by continuing the pregnancy but only with court approval). These requirements have resulted in an extra burden on women and girls seeking abortions and have led to court rulings on individual cases. When combined with the stigma attached to rape and related lack of reporting of rape, the reforms “might work as a stop-gap arrangement, but is obviously not a feasible solution to the problem in the long term.”
In 2012, Rwanda introduced similar reforms to relax the abortion law. It has been reported that “after Rwanda modified its abortion law and included burdensome barriers to access, little has changed on the ground; legal abortions remain inaccessible for most women and girls.” It is also reported that few women, especially those in rural areas, are able to procure the required approvals to qualify for abortion under the current law. This has led to repeated calls to reform and further relax the abortion law in Rwanda.
With clear evidence that such reforms are not in the interest of the women who need abortions, one wonders why Sri Lanka is not instead taking up the examples of countries such as Nepal and Ethiopia who have liberalized abortion law to a large extent . These countries are showing that abortion law reform alone is insufficient, and that real change can come about only with a comprehensive strategy that protects women’s rights including the introduction and implementation of Comprehensive Sexuality Education (CSE) for young people in and out of school as well as availability of quality sexual and reproductive health services, including contraception, that are provided non-judgmentally to anyone who wants them.
Who are these reforms for?
Let’s return to the argument made by proponents of the proposed reforms, that they would make safe and legal abortion accessible for more women who need them, i.e women who have been raped and those with pregnancies with foetal malformation. While it is true that relaxing the law would give access to more women in these cases, statistics and research show that these are not the main reasons why women need abortions in Sri Lanka.
It is estimated over 700 abortions happen in Sri Lanka each day. A majority of them are performed on married women (94% by some estimates) and are performed illegally and often unsafely. Their main reasons for deciding to terminate pregnancies are economic instability and not wanting more children. While women from higher income households often have access and money to terminate their pregnancies in safe (but illegal) ways, women from middle and lower income households end up going to "backdoor abortionists", often resulting in death or lifelong disabilities. Decriminalizing abortion would mean the women who want to abort unwanted pregnancies, for whatever reason(s), can access them legally, safely and in an affordable and non-stigmatized way.
Nothing about us without us
This critique shows that the proposed abortion law reforms in Sri Lanka are the perfect example of what happens when laws, policies, regulations or any decisions (however well-intentioned they may be) are proposed or passed without putting the people most affected at the center of that process. The reforms not only ignore statistics, stories, and reasons for women who want abortions in Sri Lanka but they are also not cognizant of the challenges women face in trying to reach the requirements of the reforms, whether it is reporting rape when many incidents of sexual violence against women go unreported for various reasons or gaining access to two consultant doctors when even one may not be accessible for some women.
Therefore any attempt at reforming the country’s laws for the benefit of women must be done in consultation with women themselves, including women’s rights and sexual and reproductive rights activists. While medicalization might remove certain restrictions that impede women’s access to safe and legal abortion services, the long-term adverse effect on women’s reproductive autonomy and rights as articulated by this critique do not seem like a worthy tradeoff for women in Sri Lanka. Regardless of whether these reforms are passed or not, we must continue to call for full decriminalization of abortion which is the only way women can gain full control of our bodies, sexuality, and lives.