ABORTION AND THE LAW

From time immemorial, the issue of abortion has always been very controversial. As far back as the 13th century, the view was posited that life is manifested by knowledge and movement. In other words, life or soul enters the unborn infant when it first moves. This principle was in later centuries adopted by the English Law and called 'quickening' or 'coming to life'. Therefore, the test as to when a living soul is in the womb was not conception but movement and, as such, it would vary with each pregnancy.

Up to the 17th century, abortion both before and after quickening was an ecclesiastical offence and so was prosecuted by the church courts. The Church's position on abortion was, and (is) based on the Fifth Commandment: "Thou shall not kill". The belief of the Church is that every human conception has an inalienable right to life and, therefore, abortion is a sin. It was a lesser offence than murder, but all the early legal luminaries and writers on the English common law agreed that the offence was very serious.

TO SAVE A LIFE

Under the common law, abortion is allowed if by doing so it would save the life of the mother. In the early 19th century, an Act in England sought to consolidate offences against the person and made abortion a statutory issue for the first time, particularly in situations where a person induces abortion with the use of poison and/or instrument. This is now reflected in our law at Sections 72 and 73 of the Offences Against the Person Act.

In 1938, in England, the case of R v Bourne extended the right of abortion to protect a woman's mental health.

In colonial America, abortion was also a common-law offence and was prosecuted as such. However, after the American independence, legislation were passed in the various states to address this controversial issue. The Supreme Court of the United States also weighed in with several decisions. An important decision in this regard was Roe v Wade in 1973 in which the court ruled, among other things, that the states' criminal abortion laws, in so far as they outlawed abortion except only as a life-saving procedure on the mother's behalf, without regard to the stage of her pregnancy and other interests involved, had violated the woman's constitutional right to privacy, including her qualified right to terminate her pregnancy.

ABNORMALITIES

In Jamaica, abortion is still governed by the provisions of the common law. What is not included at common law is the right to abortion if the child would suffer from physical or mental abnormalities. As such, within the context of the current debate as it relates to the effect of the zika virus, the law would not enable our medical practitioners to perform abortion if it is believed that the child will suffer from mental or physical abnormalities.

In the English 1967 Abortion Act, which codifies some parts of the common law, it was enacted, among other things, that a person shall not be guilty of the offence relating to abortion if "two medical practitioners are of the opinion that the pregnancy has not exceeded 24 weeks and the continuation of the pregnancy would involve risk or injury to physical or mental health of the pregnant woman or any existing children; the termination of the pregnancy would prevent grave permanent injury to the physical or mental health of the woman or the continuation of the pregnancy would involve risk to the life of the pregnant woman or if the child was born, it would suffer from such physical or mental abnormalities as to be seriously handicapped".

At the very minimum, we should consider enacting an Abortion Act to bring our laws in line with, at least, the provisions of the English 1967 Abortion Act.