SPEECH TO BULAWAYO WOMEN LAWYERS ASSOCIATION
I have been asked to kick off the debate on the question “Should HIV positive women be allowed to abort under existing laws, namely the Termination of Pregnancy Act”? In my allotted time of 10 minutes I shall give you my general views on abortion and then I shall turn specifically to the provisions of the Termination of Pregnancy Act No. 29 of 1977 in an effort to answer the specific question raised in this debate.
A few thousand years ago the Psalmist wrote (in Psalm 139: 13 – 16): “For you created my inmost being; you knit me together in my mother’s womb. I praise you because I am fearfully and wonderfully made; your works are wonderful, I know that full well. My frame was not hidden from you when I was made in the secret place. When I was woven together in the depths of the earth, your eyes saw my unformed body.”
From this passage we can glean that every person from the moment of conception is a person in God’s eyes, and somebody who has been fearfully and wonderfully made. I discovered this for myself last year when my wife had a scan. Her pregnancy was hardly noticeable and yet there revealed on the screen was a tiny baby sucking its thumb. Indeed tests using ultrasound have revealed that babies in the womb are startled by bright light, jump at loud buzzes and when a soft rattle is shaken they often suck their thumbs.
Lest I be accused of being emotional regarding this topic let me outline the physical facts regarding the person-hood of babies in the womb.
By the time a baby is 18 to 25 days old (that is after the union of sperm and egg to give 46 chromosomes, and long before the mother is sure that she is pregnant) the heart is already beating. After four weeks the head and body are visible and there are rudimentary eyes, ears and mouths. At six to seven weeks there is brain functioning. Significantly at eight weeks there is not only a brain, but the fingerprints on the hands have already formed and except for size, will never change. All the limbs are apparent at this stage including fingers and toes. It is at this stage, that is at eight weeks, when abortions normally begin to be performed. At nine to ten weeks the baby can squint, swallow, move his tongue and the sex hormones are already present. By twelve to thirteen weeks, the baby has finger nails, sucks his thumb and can recoil from pain.
I understand that abortions are normally carried out between seven and twelve weeks of pregnancy. At this stage procedures of DNC or suction are used. After sixteen weeks abortion using the salt poisoning method is used.
The reason I mention these facts is because I believe we cannot duck the problem that this entire abortion debate is ultimately about weighing up the lives of two people: The mother and the child. My belief is that every life is precious and sacrosanct. Section 11 of the Declaration of Rights in the Zimbabwe Constitution enshrines life as being the most fundamental right of any individual. Section 12 (1) of the Constitution states:
“No person shall be deprived of his life intentionally saving in execution of a sentence of a court in respect of a criminal offence of which he is being convicted”.
In terms of Section 113 of the Constitution a “person” means “any individual”. One test of individuality, in criminal law at least, is a person’s fingerprints. A person’s fingerprints mark him as an individual for life. A baby has fingerprints at 8 weeks. Now we have DNA testing which is all the more comprehensive. I understand that a person’s DNA make-up is absolutely individual and is present from the time of conception. In my view life begins at conception and killing a human life is justifiable only when it is necessary to save the mother’s life. I firmly believe that that view is supported by the Zimbabwe Constitution.
The debate today however is not on the Constitution. It is whether the Termination of Pregnancy Act No. 29 of 1977 allows for HIV positive women to have an abortion. These are the parameters of the debate today and accordingly we must all put aside our personal views and analyze whether the Act, in its present form, allows for abortions to be carried out on HIV positive women.
Section 4 of the Act sets out the grounds on which an abortion may be performed on a woman. Our debate today turns on the interpretation of two of the three grounds for abortion contained in the Act namely Section 4 (a) and Section 4 (b). I will discuss each of these provisions separately.
Section 4 (a)
Section 4 (a) states that a pregnancy may be terminated:
“where the continuation of the pregnancy so endangers the life of the woman concerned or so constitutes a serious threat of permanent impairment of her physical health that the termination of the pregnancy is necessary to ensure her life or physical health, as the case may be.”
We need to consider the following:
1. Does continuation of the pregnancy so endanger the life of the woman or constitute a threat of permanent impairment that the abortion is necessary to ensure her life or physical health? I can see that the determination of this question is primarily a medical matter and that as a lawyer I am not qualified to answer it. However I would raise the following questions that any medical practitioner doing an abortion will be obliged to consider in terms of Section 5 of the Act.
(a) Is it the pregnancy that endangers the life of the woman? In other words is it the pregnancy that endangers the life of the woman or the HIV infection? Surely the principal thing that endangers the life of the woman is her HIV infection not the pregnancy. To use another example should we extend this measure to women suffering from terminal cancer. If an abortion is granted to a woman because she is going to die from HIV then do we extend that right to women dying from cancer? The point I am simply making is that doctors will have to say that it is the continuation of the pregnancy that will bring the woman’s life into danger and not her HIV infection before this provision can be used to allow an abortion. I understand that in the early stages of HIV infection a pregnancy does not in itself endanger the life of a woman or constitute a serious threat of permanent impairment of her physical health. Accordingly the Act certainly does not allow for the automatic right of a woman who is HIV positive to have an abortion.
(b) But there is a further insurmountable hurdle in my view regarding this section. The termination of pregnancy must be “necessary to ensure her life or physical health”. Sadly Aids is at present a terminal disease. If a woman has a child in the early stages of her HIV infection I understand that neither her life nor physical health is seriously threatened by pregnancy. If a woman is so far down the road with an HIV infection, or perhaps has full blown Aids, she, sadly, will die shortly anyway. In other words what I am saying is that doctors will have to answer this question: can an abortion ensure the life of a woman or her physical health? If the continuation of the pregnancy is not the principal threat to the woman’s life or physical health and the termination of the pregnancy will not make any difference to the woman’s life expectancy or physical health, then this section cannot be used.
There is a further Constitutional point to consider regarding this Section. I fully believe, as I have said before, that where the abortion will save the mother’s life it should be done. However HIV infection is a terminal disease. The woman, as medical science stands at present, will die. As I will show you later the child however in her womb has a 50% chance of survival. The abortion will not save the woman’s life but it will certainly kill a child with a 50% chance of not getting HIV. In the circumstances we have a conflict between Section 12 of the Constitution and Section 4 (a) of the Act. The Constitutional provision must prevail and I believe that the abortion should not go ahead.
Section 4 (b)
Section 4 (b) of the Act allows a pregnancy to be terminated where
“there is a serious risk that the child to be born will suffer from a physical or mental defect of such a nature that he will permanently be seriously handicapped”.
This section obviously must be interpreted to deal with the question of a child that may possibly be infected with HIV virus as a result of their mother’s infection. Before I analyse this section I believe that a number of facts need to be placed before you before we come to interpret this section. I understand that the foetal blood circulation system is separate from the mother’s blood circulation. Thus it does not follow that a child of a mother who is HIV positive will automatically get the HIV virus. I understand that transmission of the virus can occur as follows:
1. it can occur in utero although as I have said this is not automatic;
2. it can occur during child birth;
3. it can occur through breast feeding and I understand that the HIV virus has been found in breast milk.
There are no accurate studies done in Africa but I am advised that according to studies done in Europe approximately 50% of babies born to HIV positive mothers are HIV positive themselves. No doubt our medical colleagues can give some idea of the position in Zimbabwe.
Bearing in mind the abovementioned facts we must now come to consider the provisions of the Act.
1. The Act says that there must be “a serious risk” that the child to be born will suffer from a physical or mental defect. How are we to interpret this phrase “serious risk”?
I have strong views on capital punishment and I believe that there is a useful analogy that can be drawn. My opposition to capital punishment stems from the fundamental belief I have in the sanctity of life. In particular I believe that because of the flaws in our legal system I would rather run the risk of having a guilty man remain in prison for life than have an innocent man hang. All the more so I believe this for innocent babies. I would rather give an innocent child the benefit of the doubt and let it take its 50% chance of being a normal healthy child. I have been advised that in Zimbabwe at least there is no accurate way of determining whether a child is HIV positive until it is born. Can doctors honestly say that 50% chance is a “serious risk”? I believe not. I believe that even if there is only a 25% chance that a child will be born normal, that chance should be taken.
Technically it is almost impossible for doctors to determine whether a child will be HIV positive. But there is another aspect to it. The chance must always remain that the child will be normal no matter what the circumstances are. Over 100 years ago a woman fell pregnant under the following circumstances. The father was syphilitic, she was tuberculosis. Of the four children born the first was blind, the second died, the third was deaf and dumb and the fourth also tuberculosis. The doctor was asked “what would you have done?” His response “I would have ended the pregnancy”. Then that person would have killed Beethoven.
2. But there is a further, and what I believe to be an insurmountable, hurdle to be overcome before this section can be used to allow an abortion. The section says that there must be a serious risk that the child will suffer “from a physical or mental defect of such a nature that he will permanently be seriously handicapped. I think that the words “defect”, “permanently” and “seriously handicapped” must be scrutinized closely. I believe that the intention of the legislature was to allow abortion to terminate the life of a child that has a defect that can
never be repaired. In other words if the child does not have a brain or several limbs or vital organs then an abortion can be performed. In other words there must be a serious risk of a defect that is permanent that can never be repaired, never cured, never rectified.
Aids is a disease not a defect. One day there will be a cure for Aids. There will never be a cure for a baby without a brain. I come back once again to my argument about giving a child a chance. As long as there is a chance that a cure will be found for Aids surely an innocent child should be given the benefit of that chance? Accordingly my view is that Section 4 (1) (b) cannot be used to abort a child of a mother who is HIV positive because it was not intended to be used for this purpose.
In conclusion my view is that Section 4 of the Termination of Pregnancy Act does not automatically allow abortions to be performed on HIV positive women. My view is that in answer to the question raised in this debate the Termination of Pregnancy Act, as it is presently constituted, does not allow HIV positive women to abort.
FACTS SHEET
1. 1993 United States Survey. 1 900 women 7% (hard cases) made up as follows:
3% – danger to mother’s health
3% – problem with babies health
1% – rape/incest
93% – birth control/social reasons made up as:
16% – didn’t want child
21% – not ready for responsibility
21% – can’t afford
12% – relationship problems
11% – not mature enough
8% – enough kids
4% – other reasons
2. Abortion is big business in the United States. 1,5 million abortions are performed a year at approximately US$300.00 each. Generating US$450 million dollars a year.
3. Los Angeles people want a certain kind of child. In some clinics 99% of abortions are to ensure a male child.
4. Legal abortion can also be fatal.
5. Does male support for abortions signal respect for women’s rights. Males benefit greatly from abortions. Consider maintenance in Zimbabwe. Abortion is “a way to legitimize irresponsibility for men”.
6. Choice? Do women receive adequate counselling. Can they make an informed choice. All the facts about abortion should be given to mothers before an abortion is concerned. It should be mandatory for mothers to see an ultrasound of their baby before the abortion is given. 90% of counselling in the United States gives few facts and are heavily biased in favour of abortion.
7. Rape and abortion. A study in Minneapolis of 3 500 consecutive rapes revealed not a singly pregnancy. In Czechoslovakia, out of 86% induced abortions, 22 were done for rape.