Jamaica and ‘The Unwanted Foetus’
As early as I can remember, there have been public and private contentious discussions regarding the right and ability to abort an unwanted foetus. The pro-choice advocates submit that a woman should have reproductive control over her body, and should be allowed to abort and assisted where possible should she choose to forego motherhood. Pro-life proponents on the other hand believe that life begins at conception and the foetus has a right to life which is superior to any rights-based claim of the woman. The legal position on abortion in Jamaica was inherited from the British and clearly is older than independent Jamaica herself. Yet efforts to reform the law have ended consistently in the same fashion: the ancient provision remains unchanged.
The reform of the law, or at the very least an amendment to it was expected to occur years ago. It is ironic that Jamaica—as a pioneer in the region for independence from colonialism—has not led or followed the likes of younger independent islands such as Barbados, St. Lucia and Guyana in the reform of the law on abortion. A reading of the legislative provision on abortion reveals an inherent ambiguity that necessitates clarification; and one would think that it would have been placed before the Jamaican Parliament as a matter of urgent priority in order to ensure legal certainty in the provisions.
What is the law on abortion in Jamaica?
The ability of a woman to deliberately end pregnancy and expel an embryo or foetus is seen as an offence against the person. The law on abortion as received from the Offences Against the Person Act (OAPA) 1861 of England is codified in sections 72 and 73 of Jamaica’s Act of the same name. The provisions read as follows:
(S72)- Every woman, being with child, who with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent; and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her, or cause to be taken by her, any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony, and, being convicted thereof, shall be liable to be imprisoned for life, with or without hard labour.
(S73)- Whosoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not with child, shall be guilty of a misdemeanour, and, being convicted thereof, shall be liable to be imprisoned for a term not exceeding three years, with or without hard labour.
Simply put, pregnant women who ‘unlawfully’ induce or acted to induce their own abortion were criminals; and others who ‘unlawfully’ acted to induce the miscarriage of a woman, and those who ‘unlawfully’ provided materials to a woman for doing so were guilty of a crime, whether or not the woman was in fact pregnant.
A literal reading of the statute raises uncertainty. It consistently uses the word ‘unlawful’, but does not tell us what ‘unlawful’ means. Furthermore, the use of unlawful suggests that there are situations where an abortion may be lawful. The 1938 UK first instance decision of R v. Bourne brought the use of ‘unlawful’ into context. At that time, the 1861 OAPA provision which Jamaica inherited was the applicable law in the UK. “Dr Bourne was prosecuted under section 58 of the 1861 Act for terminating the pregnancy of a 15-year-old girl who had been violently gang-raped. A Roman Catholic doctor who was initially consulted refused to terminate the pregnancy on the religious standpoint ‘that the child might be a future Prime Minister of England.’ The girl was then referred to A.W. Bourne who terminated the pregnancy based on the ground that the continuance of the pregnancy would probably cause serious injury to the girl. Bourne was acquitted on the ground that the operation procuring the termination of pregnancy was performed on reasonable grounds and with honest belief that the continued pregnancy would be physically and mentally straining on the girl.”
The court in interpreting and applying the legislative provision stated that a pregnancy which threatens the life, physical or mental health of a woman can lawfully be terminated. In such a case a deliberate termination of the foetus would not be unlawful. I have made inquiries regarding whether Bourne has ever been applied in Jamaica; the extent of my research revealed it has not. Bourne has also never been applied directly by a higher court in England and consequently is merely persuasive authority for Jamaica. In fact, Bourne is no longer relevant law in England since the passage of the Abortion Act 1967 which provided a liberal reform of the relevant 1861 OAPA provision on abortion. Nevertheless, the prevailing sentiment is that Bourne is accepted as a proper interpretation of Section 72 and 73 of the OAPA (Jamaica).
Although Bourne may serve as common law persuasive precedent for the interpretation of the uncertain provisions, it is arguably not the appropriate remedy to address an uncertainty in a statute which arguably interferes with individual rights.
Does a restriction on abortion violate individual rights?
The pre- Charter of Fundamental Rights position
Prior to the enactment of the Charter of Fundamental Rights and Freedom (Constitutional Amendment) Act, 2011, a woman could not successfully challenge Section 72 and 73 of the primitive OAPA. Chapter III of the Jamaican Constitution (which the Charter replaced) presented hurdles to a constitutional challenge. First, the OAPA as a law which preceded the independent Constitution of Jamaica was immune from a declaration of unconstitutionality because of the damning savings law clause which stated that “[no law] in force immediately before the [date of enactment of the Constitution] shall be held to be inconsistent with any provisions of the Constitution.” Second, even if one could overcome the hurdle of the savings law clause, there was no justiciable right on which a constitutional challenge to the abortion law could be hinged. This was due to the fact that the right to respect for private and family life, though enumerated in the preamble to the Bill of Rights was not included under the list of rights for which one could seek constitutional redress from the courts.
The post Charter position
The Jamaica Parliament presented with the grand opportunity to augment the list of justiciable rights did so, BUT inserted a very specific savings law clause to oust challenges to section 72 and 73 of the OAPA. The Charter does make the right to respect for private and family life enforceable in a court of law. However, it completely pulled the rug from under the feet of the hopeful by stating in Section 13(12) that “nothing contained in or done under the authority of any law in force immediately before the Charter…relating to—….(c) offences regarding the life of the unborn, shall be held to be inconsistent with the [Charter].”
Consequently a foetus cannot lawfully be destroyed if unwanted. An adult woman who has no desire to become a mother and unintentionally becomes pregnant from consensual or non-consensual intercourse has no legal basis on which to assert a right to her decision against reproduction. Any attempts to procure an abortion is done at great personal risk to a female’s freedom and health, with no legal recourse for the female in the event that the professional or amateur is negligent in the process and causes death or serious injury to her. Oh the irony.