Friday, 15 June 2012

What happens when abortion is illegal - The Case of East Timor

Citation 2009 ETLJ 15 What happens when abortion is illegal - The Case of East Timor

There has been a dramatic debate in East Timor over recent weeks about the provisions of the new draft penal code pertaining to abortion. The draft article 144 of the penal code deals with “interruption of pregnancy”. Draft article 142 deals with “non-punishable interruption of pregnancy”. By the proposed article 144, abortion is crime and those who perform abortion will be punished with imprisonment terms ranging from 2 and 8 years.

The draft article 144 then introduced an “exception” for cases where the mother's life is in danger, or when the mother is underage (younger than 16).

East Timorese civil society organisations along with the Ombudsman for Human Rights and Justice lobbied for the additional inclusion of cases of incest (where the father has sexual relations with his own daughter) and rape.

The voice of the Roman Catholic Church in East Timor, controversial priest Martinho Gusmao, condemned the proposed exceptions and attacked those advocating for the rape and incest exceptions.

The Council of Ministers acquiesced and did not include the exemptions. Accordingly, when the new penal code comes into force, it will be illegal to perform abortions even where the pregnancy results from incest or rape.

Policy and laws that impose unreasonable prohibitions on abortions - particularly where pregnancy results from rape or incest - lead to the infliction of a greater harm to the woman. Abortion prohibitions cause illegal abortions to be performed from which both the foetus and the woman often die - a result that is of far greater concern than the destruction of an embryo in the early stages of a pregnancy that is the result of incest or rape.

It is not a long search to find both incest and the death of women through incompetent abortion agents in recent East Timorese history. In November 2008, the Judicial System Monitoring Program reported on a case in the Oecusse District Court that arose from the death of a woman who was administered a traditional abortifacient.

The prosecutor's indictment in that case stated that in March 2007 in Betasi, Taiboko the first defendant entrusted some traditional medicine to the second defendant to be given to the victim J and to be taken in accordance with instructions set out by the first defendant. The aim of the two defendants was to enable the victim to abort her four month old fetus. The defendants instructed the victim to take the medicine regularly for three weeks. After several days the victim aborted the foetus and died.

Incest is a significant social problem in East Timor. A recent conference was informed that incest occurred frequently in remote areas. Often parents and children slept in the same room, leaving little privacy and sometimes leading to sexual abuse and unwanted pregnancy. In February 2009, Charles Darwin University researcher Suzanne Belton conducted a study on unwanted pregnancy in Timor-Leste. She concluded that the law was highly restrictive and that illegal abortions were common.

Women in East Timor who experience rape or incest will have no option but to endure the additional burden of an unwanted pregnancy and one which, in the case of incest, carries a significant risk of genetic defects. Whether the new law will be effective in dealing with traditional abortions in rural areas where women's access to modern medical care is extremely limited will remain to be seen.

Public health laws should have their foundation in science and reason and not on religious dogmas; especially where laws informed by religion cause a social harm to emerge.

First published on the East Timor Law and Justice Bulletin on 05 April 2009

Related article: Morality, Religion & the Law: Abortion & Prosititution in East Timor

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