High Court of Malawi Clarifies Law on Abortion
(Updated 06.28.2021) On June 15 2021, the Malawi High Court reaffirmed the statutory protections for legal abortion. In its ruling, the court reiterated that despite the existing legal restrictions on access to safe and legal abortion under the Penal Code, it also makes an exception when the life of the pregnant woman is in danger and further, that the preservation of a woman’s life includes a preservation of mental and physical health. The court thus adopted a broad interpretation of life to include a heath ground.
The court clarified that women and girls seeking to access abortion in Malawi must present themselves before a health care provider and expressly make a request for abortion services based on an existing condition. The provider will review the request and make a determination. According to the ruling, women and girls seeking an abortion must demonstrate to the provider how the pregnancy undermines their health and life.
The ruling was made in the case of a 15-year-old adolescent named CM, who sought permission to file a judicial review from the High Court following a decision by Queen Elizabeth Central Hospital to deny her access to safe and legal abortion.
The Court did not grant the request by CM to be permitted to file for judicial review challenging the hospital’s decision because the court observed that there was no evidence of such a request. However, the Court in its ruling went a step beyond the actual text of the Penal Code and clarified the process a woman should follow to receive abortion in Malawi and more importantly expanded the interpretation of the life exception in the penal code to include the physical and mental health of the woman.
This is the first non-criminal abortion case in Malawi and the first time a court has attempted to interpret provisions of the Penal Code. This is a ruling of the High court which is binding on all lower courts and public officers.
The Center for Reproductive Rights provided technical and financial support to WLSA-Malawi and their lawyer Mlauzi Legal Solutions to enable the filing of this case. In collaboration with its Malawi partners, the Center has adopted an incremental approach to expand access to legal abortion services and we will use the lessons learnt from this case to mount our next challenge.
Filing Date: May 10, 2021