Law and Policy Guide: Criminality

06.03.2019

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Criminal Law

Within the context of the global trend towards the liberalization of abortion, countries are also increasingly removing criminal sanctions on abortion, shifting towards regulating abortion services under health codes. Human rights and public health standards reinforce the decriminalization of abortion as an imperative for guaranteeing access to safe abortion services and enabling women and girls to exercise their human rights. Nonetheless, there is still considerable progress to be made in this regard, as criminal penalties for abortion still remain enshrined in the vast majority of countries’ penal codes – including those permitting abortion on request. The World Health Organization recognizes that criminalizing abortion compels women to risk their lives and health by seeking out unsafe abortion services. This can also result in women being imprisoned for abortion or even for experiencing pregnancy complications. For example, more than 25 women are in prison in El Salvador for causes related to pregnancy, many of whom experienced miscarriages.1 In situations where countries have liberalized their abortion laws, criminal penalties on the books can still result in women being imprisoned. For example, although Nepal liberalized its abortion law, there is evidence that many women have still been prosecuted an imprisoned for abortion-related offences.2

Human Rights Norms

UN Treaty Monitoring Bodies

UN Treaty Monitory Bodies (TMBs) have repeatedly recognized that the criminalization of abortion undermines women and girls’ human rights.3 In both Mellet v. Ireland  and Whelan v. Ireland, the Human Rights Committee issued landmark holdings firmly stating that prohibiting and criminalizing abortion violated women’s human rights to privacy, equality and non-discrimination, and freedom from cruel, inhuman, and degrading treatment.4 The Committee also held that the limitations Irish law places on what healthcare providers may say to their patients about abortion services aggravates women’s suffering and creates a chilling effect among doctors disrupting the needed “provision of medical care and advice.”5

The Human Rights Committee in its General Comment No. 36 explicitly called on States to not criminalize abortion in ways that would “compel women and girls to resort to unsafe abortion,” such as criminalizing women for procuring abortions, or medical providers for providing abortion services.6 The Committee on the Elimination of Discrimination against Women, in General Comment No. 24, called on States to amend legislation criminalizing abortion to remove punitive measures imposed on women for abortion.7 The Committee took a step further when it issued  General Comment No. 35, in which the Committee explicitly stated that the criminalization of abortion is a violation of women’s sexual and reproductive health and rights and a form of gender-based violence, and urged States to repeal all legislation that criminalizes abortion.8

The Committee on Economic, Social, and Cultural Rights determined in General Comment No. 22 that the criminalization of abortion prevents the realization of equal rights to sexual and reproductive health, and noted that States have a legal obligation to eliminate such laws.9  The Committee on the Rights of the Child also commented on criminalization, through its General Comment No. 20, in which it urged States to decriminalize abortion to ensure that girls have access to safe abortion and post-abortion services, in line their best interests and rights under the Convention on the Rights of the Child.10

In 2016, the UN Special Rapporteur on Health called for the decriminalization of abortion, specifying that criminal provisions on abortion violated the right to health of women and girls under the International Covenant on Economic, Social, and Cultural Rights.11  Also in 2016, the Report of the Working Group on the issue of discrimination against women in law and in practice also urged States to decriminalize termination of pregnancy.12 The Working Group recognized that denial of access to abortion services as a result of criminalization drives such services underground and into the hands of unqualified practitioners. This exacerbates the risks to the health and safety of the women seeking such services.

African Regional Bodies

In 2016, the Special Rapporteur on the Rights of Women in Africa and the African Commission on Human and People’s Rights launched a campaign for the decriminalization of abortion in Africa, recognizing the role of criminal laws in contributing to maternal deaths in the region.13  In 2018, the Special Rapporteur on the Rights of Women in Africa also observed that the criminalization and the imposition of excessive restrictions on abortion violated women’s fundamental rights, including the rights to life, health, dignity, security, to be free from torture and inhuman, cruel or degrading treatment as well as the right to education, employment and to participate in the social, political and cultural life on equal terms with men.14

European Human Rights Bodies

Similar to the Mellet and Whelan cases, in A, B, and C v. Ireland, the European Court of Human Rights noted that the criminalization of abortion with strong penalties that include life imprisonment “constitute a significant chilling factor for both women and doctors in the medical consultation process, regardless of whether or not prosecutions have in fact been pursued under [the criminalizing law].”15

Global Medical Standards

The World Health Organization (WHO) notes in Safe Abortion: Technical and Policy Guidance for Health Systems,  that criminal laws on abortion, combined with stigma associated with having an abortion, “deter[s] many women from requesting information from their regular health-care providers about legal services.”16 The guidelines urge States to “decriminalize the provision of information on legal abortion” and ensure access to legal abortion by disseminating information on where to obtain legal abortion services, as well as issuing clear guidelines on the accurate interpretations of the abortion law.17

Comparative Law

A handful of countries worldwide have taken steps to limit the involvement of criminal law in regulating abortion. For example, in R. v. Morgentaler, the Canadian Supreme Court held that Section 251 of the Criminal Code of Canada, which criminalized abortion except when the woman’s life or health was in danger, was unconstitutional and violated Canadians’ right to life, liberty and security. As a result, Canada does not regulate abortion through its criminal law or the Penal Code.  In Colombia,  the Colombian Constitutional Court’s decision in C-355/2006, which struck down the blanket criminalization of abortion, recognized that the use of criminal sanctions to completely ban all forms of abortion was a disproportionate measure to protect the interests of the fetus and of society, especially if less restrictive forms of regulation that did not infringe on the constitutionally protected fundamental rights of women were available.18

In 2018 in Belgium, the Justice Commission of the Belgian Chamber of Representatives adopted the Bill Regarding Voluntary Termination of Pregnancy that inter alia removes abortion from the Penal Code and places it in a separate, proposed public health law.19 The bill is still pending in the legislature and is not yet law.20 The same year, Queensland, Australia passed the Termination of Pregnancy Bill, removing abortion from the Penal Code, and permitting abortion on request up until 22 weeks gestation.21 In 2019, the Constitutional Court of the Republic of Korea struck down several articles in the Criminal Code which criminalized abortion, recognizing that pregnancy, childbirth, and parenting are fundamental decisions in a woman’s life and the prohibition on abortion infringes upon the woman’s right to self-determination.22 The Court specifically stated that abortion until 14 weeks of pregnancy (first trimester) should be available without any restrictions and mandated the legislature promulgate a new law.23

Countries that have criminalized abortion often articulate a term of imprisonment for the pregnant woman seeking an abortion and/or the physician or healthcare worker providing the abortion. Often countries differentiate penalties depending on whether the person was the pregnant woman herself, a physician, a healthcare worker, or a third-party. In Nicaragua, abortion is prohibited under all circumstances and the penal code imposes a prison sentence between 1-3 years for the pregnant woman and anyone who helped her obtain an abortion, but provides a stricter prison sentence between 2-5 years and disqualification if “[i]f the person that performs the abortion is a medical or health professional.”24   In Malawi, any woman who self-administers an abortion by any means is guilty of a felony and faces 7 years in prison, while any third party who supports or procures an abortion for a pregnant woman is liable for 3 years in prison.25

Other countries have imposed the same penalty for the abortion provider and the pregnant woman. For example, the Iraqi Penal Code specifically states “[t]he same penalty [as the pregnant woman] applies to any person who wilfully procures such woman’s miscarriage with her consent.” Some countries that have more liberal abortion laws criminalize abortion beyond a certain gestational limit, or when abortion is procured using specific methods. For example, the Czech Republic permits abortion on request up to 12 weeks gestation, and later on certain grounds such as life or health risks. However, the Czech Republic Criminal Code criminalizes abortions that were performed “in a manner other than the method admissible by the law on the abortion of pregnancies” including self-administered abortions at any time in the pregnancy, abortions that occur outside the healthcare facilities stipulated in the Code.26

  • 1. Center for Reproductive Rights, Las 17, https://www.reproductiverights.org/las17
  • 2. Center for Reproductive Rights, Reforms Required in Laws related to Abortion and Its Enforcement: Facts Revealed from Review of Case-files (2019) (in Nepali) (research on file with the Center for Reproductive Rights).
  • 3. Committee on the Elimination of Discrimination against Women, General Recommendation 24: Article 12 of the Convention (Women and Health), art. 31(c), U.N. Doc.  A/54/38/Rev.1 (1999); Committee on the Rights of the Child, General Comment No. 20 on the implementation of the rights of the child during adolescence, art. 60, U.N. Doc. CRC/C/GC/20 (2016); Committee on the Elimination of Discrimination against Women, Concluding Observations: El Salvador, art. 37(a), U.N. Doc. CEDAW/C/SLV/CO/8-9 (2017); Human Rights Committee, General Comment No. 36 on the Right to Life, art. 8, U.N. Doc. CCPR/C/GC/36 (2018); Committee on the Elimination of Discrimination against Women, General Recommendation 35 on gender-based violence against Women, Updating General Recommendation No. 19, art. 18 & 31(a) U.N. Doc. CEDAW/C/GC/35 (2017); Committee on Economic, Social, and Cultural Rights, General Comment No. 22 on the on the right to sexual and reproductive health (article 12 of the International Covenant on Economic, Social and Cultural Rights), art. 34. U.N. Doc. E/C.12/GC/22 (2016).
  • 4. Mellet v. Ireland, Human Rights Committee, Communication No. 2324/2013, U.N. Doc. CCPR/C/116/D/2324/2013 (2016); Whelan v. Ireland, Human Rights Committee, Commc’n No. 2425/2014, U.N. Doc. CCPR/ C/119/D/2425/2014 (2017).
  • 5. Mellet v. Ireland, Human Rights Committee, Communication No. 2324/2013, U.N. Doc. CCPR/C/116/D/2324/2013, paras. 7.4, 7.5 (2016); Whelan v. Ireland, Human Rights Committee, Commc’n No. 2425/2014, paras. 7.6, U.N. Doc. CCPR/C/119/D/2425/2014 (2017).
  • 6. Human Rights Committee, General Comment No. 36 on the Right to Life, art. 8, U.N. Doc. CCPR/C/GC/36 (2018).
  • 7. Committee on the Elimination of Discrimination against Women, General Recommendation 24: Article 12 of the Convention (Women and Health), art. 31(c), U.N. Doc.  A/54/38/Rev.1 (1999).
  • 8. Committee on the Elimination of Discrimination against Women, General Recommendation 35 on gender-based violence against Women, Updating General Recommendation No. 19, art. 18 & 31(a) U.N. Doc. CEDAW/C/GC/35 (2017).
  • 9. Committee on Economic, Social, and Cultural Rights, General Comment No. 22 on the on the right to sexual and reproductive health (article 12 of the International Covenant on Economic, Social and Cultural Rights), art. 34. U.N. Doc. E/C.12/GC/22 (2016).
  • 10. Committee on the Rights of the Child, General Comment No. 20 on the implementation of the rights of the child during adolescence, art. 60, U.N. Doc. CRC/C/GC/20 (2016).
  • 11. https://documents-dds-ny.un.org/doc/UNDOC/GEN/G16/067/53/PDF/G1606753.pdf?OpenElement
  • 12. https://www.ohchr.org/Documents/Issues/Women/WG/A_HRC_32_44_WithFootnotes.doc
  • 13. http://www.achpr.org/press/2016/01/d287/
  • 14. http://www.achpr.org/press/2018/09/d426/
  • 15. A, B and C v. Ireland, para. 254, No. 25579/05 Eur. Ct. H.R. (2010).
  • 16. World Health Organization, Safe Abortion: Technical and Policy Guidance for Health Systems, page 95, https://apps.who.int/iris/bitstream/handle/10665/70914/9789241548434_eng.pdf;jsessionid=295747331E23A710FA52EC2FFEC64BBF?sequence=1
  • 17. World Health Organization, Safe abortion guidelines, page 95, https://apps.who.int/iris/bitstream/handle/10665/70914/9789241548434_eng.pdf;jsessionid=295747331E23A710FA52EC2FFEC64BBF?sequence=1
  • 18. C-355/2006
  • 19. https://www.loc.gov/law/foreign-news/article/belgium-proposed-amendment-on-removal-of-abortion-from-penal-code/
  • 20. Belgium legislative process
  • 21. Termination of Pregnancy Bill (2018), Australia
  • 22. 2017 Hun-Ba127 (Abortion Case) [April 11, 2019] (in Korean).
  • 23. 2017 Hun-Ba127 (Abortion Case) [April 11, 2019] (in Korean).
  • 24. Nicaragua Criminal Code Law 641 of 2007, art. 143.
  • 25. Malawi Penal Code, Art. 150 &151 (Penal Code, 1930 (Chapter 7:01) [as amended to Act No.8 of 1999]
  • 26. Section 161 and 162(1) of Act No. 40/2009 Coll. The Criminal Code (as amended in force as of January 1 2010), Czech Republic (1986).