Zika and the right to life

Renelle Ramlal Student, Hugh Wooding Law School

The outbreak of the Zika virus and the persistent presence of other illnesses, including sexually transmitted diseases and chicken-pox, has put the focus on laws governing abortion. A pregnant woman infected with such diseases may encounter challenges associated with foetal impairment raising the issue of abortion. In light of the presence of diseases known to be harmful to unborn children, how do the laws of T&T deal with abortion?

Illnesses which are likely to affect the foetus

In cases of Zika, a pregnant woman faces the risk of giving birth to a child with microcephaly, a birth defect in which the infant has an abnormally small head. Babies born with this condition are likely to suffer intellectual disability, speech and movement delays, vision problems and facial distortions.

Unborn children infected with sexually transmitted diseases such as syphilis, HIV/AIDS, gonorrhoea and genital herpes face the risk of blindness, bone deformities, and intellectual disability upon birth. Where a woman contracts chicken-pox during the first or early second trimester of her pregnancy, newborns may experience birth defects, low birth weight, or scarring. In such instances, that uneasy word ‘abortion’ might cross the mind of a pregnant woman confronted with the prospect of such risks to her unborn child. A pregnant woman must, therefore, be aware of the limited circumstances in which an abortion can be performed within the ambit of the law.

Laws on Abortion

Abortion is illegal under the Offences Against the Person Act, Chap. 11:08. Section 56 stipulates that any pregnant woman who knowingly carries out or attempts to carry out her own miscarriage, or any person who helps her do so, is liable to imprisonment for four years. Section 57 imposes a penalty of imprisonment for two years on any person who supplies any poison or instrument which is intended to be used to carry out an abortion.

However, there is a single exception provided for in common law where abortion might be legally performed, to preserve the mental and physical health of the pregnant woman. In the case of R v. Bourne [1938] 3 All ER 615, it was held that an abortion was lawful because it had been performed in good faith in order to prevent a 14-year old girl from becoming a “physical and mental wreck”. The Medical Board of T&T has expressly incorporated this common law principle into their Code of Ethics in the Practice of Medicine, stating that foetal abnormality is no justification for abortion unless it threatens the life or physical or mental health of the woman. The Code goes further to advise medical practitioners to obtain agreement in writing from at least one senior colleague that the procedure is warranted.

We live in a society where the wave of diseases which are potentially harmful to unborn children tends to ebb and flow over time. Though rigid abortion laws have incited debate surrounding a woman’s right to control her own body versus pro-life arguments, the law remains that foetal deformities caused by such diseases are not a legal basis for abortion unless it jeopardizes the physical and mental health of the pregnant woman.

This column is not legal advice. If you have a legal problem, you should consult an attorney-at-law.