Renelle Ram­lal­Stu­dent, 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.