Law and Policy Guide: Life Exceptions

05.28.2019

Primary Content
Text
← Return to the full Law and Policy Guide and the World's Abortion Laws Map

Life Exceptions

Nearly 90% of countries worldwide allow abortion, at a minimum, when the woman’s life is at risk. The vast majority of countries allowing abortion when the woman’s life is at risk also allow abortion on other grounds, such as when pregnancy poses a risk to the woman’s health and in cases of rape or incest.

Human Rights Norms

UN Treaty Monitoring Bodies

Nearly all UN Treaty Monitoring Bodies (TMBs) have called on States to permit abortion when pregnancy poses a risk to the woman’ life,1 yet they have also firmly recognized that only permitting abortion on this ground is inadequate for guaranteeing women’s human rights. UN TMBs have repeatedly linked laws only permitting abortion when the woman’s life is at risk to high rates of maternal mortality and unsafe abortion.2 For example, in General Comment No. 36 on the Right to Life, the Human Rights Committee recognizes that “States parties must provide safe, legal and effective access to abortion where the life and health of the pregnant woman or girl is at risk, or where carrying a pregnancy to term would cause the pregnant woman or girl substantial pain or suffering, most notably where the pregnancy is the result of rape or incest or is not viable.”3

African Regional Bodies

The Maputo Protocol explicitly recognizes that state parties must permit abortion when pregnancy endangers the woman’s life, among other circumstances including when the continued pregnancy endangers the woman’s physical or mental health and in cases of rape or incest.4 This is reinforced in the African Commission on Human and Peoples’ Rights’ General Comment No. 2, which recognizes that “The Protocol guarantees the right to terminate a pregnancy when the woman's life is threatened. Yet women’s lives are in danger when they have no access to legal security procedures, which obliges them to resort to unsafe, illegal abortions.”5

Furthermore, the Commission recognizes that “safe abortions may be required by women whose pregnancies pose risks to the life of the mother or the foetus,”6 which may occur where the fetus is non-viable, has fatal impairments, or where the woman needs medical treatment that may endanger the survival of the fetus, such as for cancer, heart disease or other diseases.7

Inter-American Human Rights System

Human rights bodies in the Inter-American system have repeatedly recognized that abortion should be allowed to save the woman’s life. For example, In the Matter of B., the Inter-American Court addressed the blanket criminalization of abortion in a case where a pregnant woman was facing serious risks to her life and health. The Court issued provisional measures ordering El Salvador to ensure the medical team treating the woman could take “without any interference, the medical measures they consider opportune and desirable” to preserve the woman’s rights to health, life and personal integrity.8 The Inter-American Commission also issued precautionary measures to Paraguay to guarantee a 10-year-old girl whose pregnancy was endangering her life access to appropriate medical treatment that had been recommended by specialists, which in this case was the interruption of the pregnancy.9 Furthermore, the Committee of Experts of the Follow-Up Mechanism to the Belém do Pará Convention has recommended that states legalize abortion on therapeutic grounds, including to save the life of the pregnant woman.10

Global Medical Standards

In Safe Abortion: Technical and Policy Guidance for Health Systems, the World Health Organization (WHO) recognizes that states should employ a broad interpretation of a threat to the woman’s life, acknowledging that both medical and social conditions can constitute life-threatening conditions.11 The WHO notes that, where countries explicitly list medical conditions that are considered life-threatening, these lists should be considered illustrative and not exhaustive and should not overrule the opinion of a medical practitioner about whether a woman’s life is in danger.12 The WHO recognizes that some physicians consider the risk of a women seeking an unsafe abortion if she is not provided with safe abortion care as a risk to her life.13 Examples of social conditions that may pose a threat to a woman’s life includes where pregnancy implicates so-called family “honour,” such as where pregnancy out of wedlock could subject a woman to physical violence or death.14

The WHO also stresses the importance of the availability of trained providers for abortion and post-abortion care (including unsafe abortion care) in countries that only permit abortion in life-threatening conditions.15 These services should be easily accessible, available, and widely known. Furthermore, the WHO underscores the importance of access to abortion without delay in cases where the pregnancy has become life-threatening.16

Comparative Law

The formulations of laws permitting abortion when the woman’s life is at risk vary: While some of these laws restrict abortion to situations where imminently necessary to preserve her life others are written or interpreted more broadly. In a handful of these countries, ministerial guidelines have been promulgated recognizing broad interpretations of the circumstances in which abortion is permitted. For example, in 2016, Laos published Unsafe Abortion Prevention and Care: Practical Guidelines for Health Workers, in which it stated that abortion is accessible to any pregnant person up to 12 weeks gestation, and in cases of threats to physical or mental health, rape, incest, and social or economic reasons.17 However, Laos’ criminal code has not been reformed to reflect these developments.18 Similarly, the Ministry of Health in Nigeria published the National Guidelines on Safe Termination of Pregnancy for Legal Indications which recognize that abortion is permitted to “promote [a woman’s] health or wellbeing,”19 whereas Nigerian law only permits abortion when the woman’s life is at risk.20 Nigeria’s National Guidelines also include a list of medical conditions that the Ministry of Health has determined constitute a threat to the woman’s life, including heart disease, cancer, psychological disorders with suicidal ideation, and “severe depression with suicidal tendencies such as may occur in rape or incest.”21

At least one Supreme Court has interpreted a country’s life exception to include the risk of suicide. Prior to the 2018 liberalization of Ireland’s abortion law, the Supreme Court had determined that “a real and substantial risk of suicide” constituted a threat to the woman’s life, meaning that she could access legal abortion services.22

  • 1. See, e.g., Human Rights Committee, General Comment No. 36 on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life, para. 8, U.N. Doc. CCPR/C/GC/36 (2018) [hereinafter General Comment No. 36 on the Right to Life]; CEDAW Committee, Concluding Observations: Kenya, para. 39(e), U.N. Doc. CEDAW/C/KEN/CO/8 (2017); Human Rights Committee, Concluding Observations: Mauritius, para. 16, U.N. Doc. CCPR/C/MUS/5 (2017); Committee on Economic, Cultural, and Social Rights (CESCR), Concluding Observations: Costa Rica, para. 54 (b), U.N. Doc. E/C.12/CRI/CO/5 (2016); Committee against Torture (CAT), Concluding Observations: Philippines, para. 40(b), U.N. Doc. CAT/CAT/PHIL/CO/3 (2016); Committee on the Rights of the Child (CRC) Concluding Observations: Mexico, para. 50(c), U.N. Doc. CRC/C/MEX/CO/4-5.
  • 2. CEDAW Committee, Concluding Observations: Kenya, para. 39(e), U.N. Doc. CEDAW/C/KEN/CO/8 (2017); Human Rights Committee, Concluding Observations: Mauritius, paras. 15 & 16, U.N. Doc. CCPR/C/MUS/5 (2017); Committee on the Rights of the Child (CRC), Concluding Observations: Mexico, para. 50(b), U.N. Doc. CRC/C/MEX/CO/4-5.
  • 3. Human Rights Committee, General Comment No. 36 on the Right to Life, para. 8 supra, note 1.
  • 4. African Commission on Human and Peoples’ Rights, Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol), art. 14(2)(c) (2003).
  • 5. The African Commission on Human and Peoples’ Rights (African Commission), General Comment No 2 on Article 14 (1) (a), (b), (c) and (f) and Article 14 (2) (a) and (c) of the Maputo Protocol, para 39 [hereinafter General Comment No. 2 on the Maputo Protocol].
  • 6. Id., para. 40.
  • 7. Id., para. 40.
  • 8. Order of the Inter-American Court of Human Rights of May 29, 2013: Provisional Measures with Regard to El Salvador, Matter of B., at 14, para. 17, Inter-Am Ct. H.R. (2013), available at http://www.corteidh.or.cr/docs/medidas/B_se_01_ing.pdf.
  • 9. Medidas Cautelares No. 178/15: Asunto niña Mainumby respecto de Paraguay [Precautionary Measure No. 178/15: The matter of the girl Mainumby with respect to Paraguay], Inter-Am. Comm’n H.R. (2015), available at https://uniteforreprorights.org/wp-content/uploads/2018/01/MC178-15-ES.pdf
  • 10. MESECVI (2012). op. cit. Recommendation 10
  • 11. World Health Organization, Safe Abortion: Technical and Policy Guidance for Health Systems 92 (2d ed. 2012) [hereinafter “Safe Abortion Guidelines”.
  • 12. Id.
  • 13. Id.
  • 14. Id.
  • 15. Id.
  • 16. Id.
  • 17. Prevention of Unsafe Abortion Guidelines, 2016, Laos; see also, World Health Organization, Situation of Abortion in the Lao People’s Democratic Republic, 2016, available at: https://iris.wpro.who.int/bitstream/handle/10665.1/13974/Abortion-lao-2017.pdf
  • 18. See Laos Penal Code, Art. 20
  • 19. National Guidelines on Safe Termination of Pregnancy, Nigeria, at p. 9 supra note 14.
  • 20. Id. at chap. 2, 5.
  • 21. Id. at chap. 3.
  • 22. Attorney General v. X and Others, [1992] 1 I.R. 1, 4 (S.C.) (Ir.).