Abortion: Pro-Choice; Pro-Nothing; Pro-Life.

 THE DEONTOLOGY.

(Study the law with Blessed Mupatsi).

Assisted by: Nompilo P. Nkomo.

In Zimbabwe in the late 19th century, through the promulgation of the Termination of Pregnancy Act [Chapter 15:10] (hereinafter ‘the Act’) to deliberately terminate a pregnancy was criminal except when necessary. It was permitted if the purpose was to save the mother’s life, if the pregnancy caused serious threat of permanent impairment of mother’s physical health (not mental health), serious threat that the child will be born with physical or mental defect which will seriously handicap him or her or /and the foetus is conceived as a result of unlawful intercourse which is usually rape. This position was affirmed by section 60 ‘unlawful termination of pregnancy’ of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Therefore, in light of these provisions it is crystal that in our jurisdiction it is not lawful to carry out an abortion on socio-economic grounds, however Zambia prescribes to a different law with regards to issues of abortion. The subject raises difficult questions of moral philosophy in which Zimbabweans hold conflicting views; however, the essay will examine at length the constitutional ramifications of abortion. 

Historically, most jurisdictions have favoured the protection of life, at the expense of individual freedom and physical integrity. Be that as it may, due to the numerous freedom-based challenges to restrictive laws, systems of laws have begun to favour freedom of choice.  Abortion is one of the most controversial topics having no grounds of agreement and thus the issue cannot merely be reduced to the question of whether the foetus is a person neither can it be a simple question of being wrong or right. D Meyerson, ‘Abortion: the Constitutional Issue’ (1999) 116 SALJ 50 at 59 submits that constitutional arguments about abortion are not exhausted by a finding that the foetus does not have a right to life under the constitution, there are additional considerations stemming from the value of human dignity relevant to the validity of legislation regulating access to abortion. However, the paper will illustrate that the restrictive approach taken by Zimbabwe fails to balance competing interests of female reproductive rights and foetal interests. 

Firstly, the Act defeats the purpose, aim, objective and constitutional goals achieved by the Constitution of Zimbabwe Amendment (No.20) Act, 2013 (henceforth referred as ‘the Constitution’) by limiting constitutional rights relevant to female autonomy. C Pickles, ‘Termination of Pregnancy Rights and Foetal Interests in Continued Existence in South Africa: The Choice on Termination of Pregnancy Act 92 of 1996’ argues that these rights play an important role in society. M O'Sullivan ‘Reproductive Rights’ submits that these rights grouped together are called female reproductive rights inclusive of the right to life, human dignity, equality and non-discrimination, privacy, personal security, access to information and health care. The Constitution entrenches, respects, protects and provides that ‘every person has inherent dignity’. In S v Makwanyane 1995 (3) SA 391 (CC), Chaskalson P submits that;

‘The right to life and dignity are the most important of all human rights, and the source of all other personal rights in the Bill of Rights. By committing ourselves to a society founded on the recognition of human rights we are required to value these 2 rights above others.’

This position was re-iterated by O’Regan J in the Makwanyane case and in National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC) at 28D-E. O'Sullivan argues that ‘denying a woman the freedom to make and to act upon a decision concerning reproduction treats her as a means to an end and strips her of her dignity’. Thus, the Act in our jurisdiction treats women as a mere objects subject to the will of others therefore, such an approach undermines the ability of women to act autonomously hence violating their constitutional rights to dignity promulgated in section 51 which states that ‘every person has inherent dignity in their private and public life, and the right to have that dignity respected and protected’. One should bear in mind that as per section 86 (3) (b) the right to human dignity is absolute which is to say it must neither be infringed or limited under any circumstances. 

Additionally, the right to personal security is an important innovation in the 2013 Constitution which is similar to section 12(2) of the South African Constitution (see B Mupatsi, ‘The Vaccine Question’ https://lawzim.blogspot.com/2021/11/the-vaccine-question.html). The Constitution makes an important recognition in section 52 (b) that ‘every person has the right to bodily and psychological integrity, which includes the right subject to any other provision of this Constitution, to make decisions concerning reproduction’. This provision is of paramount significance because it allows one to make decisions concerning their reproduction which is inclusive of pregnancy termination. In the case of Christian Lawyers Association v Minister of Health 2005 1 SA 509 (T) the court held that section 12(2) provides a woman with the constitutional right to terminate her pregnancy. Therefore, with the similarities in the two constitutional provisions one is drawn to conclude that the Act is unconstitutional thus null and void. Moreover, the constitutional provision gives women the power to enjoy and have control over their own bodies something that society has deprived them for ages. Therefore, with regards to abortion women are in the best position to make a decision and thus, the state must provide the right to choose to terminate pregnancy and the means to do so safely. 

Furthermore, sentiments raised by colleagues speak to the effect that the Act infringes section 57 of the constitution the right to privacy, which is translated to mean to be left alone without interference from the state. It would be unjust to examine this right without discussing the landmark American decision of Roe v Wade 410 US 113 (1975), which successfully challenged the law criminalising abortion on privacy grounds. In Roe v Wade the US Supreme Court held that there must be a balance reached between a woman's right to privacy and the state's interest in potential human life. However, the restriction placed by the state upon women must not be burdensome, in casu the Act is a classic example of burdensome restrictions. The writer concurs to the observations made in Planned Parenthood of Southern Pennsylvania v Casey 505 US 833 (1992), wherein it was found that the state has an interest in foetal life throughout the pregnancy. Having said that, the writer is of the view that the state must be able to balance interests of the unborn child and the constitutional rights of a pregnant woman, women must be afforded the freedom to choose abortion and thus the decision must be a personally protected choice.

The inclusion of socio-economic rights as fully justiciable rights is an important component of the Constitution, section 76 (1) provides that ‘every citizen and permanent resident of Zimbabwe has the right to have access to basic health-care services, including reproductive health-care services.’ However, section 76 (4) states that ‘the State must take reasonable legislative and other measures, within the limits of the resources available to it, to achieve the progressive realisation of the rights set out in this section.’ It is important to note that the obligation imposed on the state in this context is subject to the availability of resources. Reproductive health is inclusive of safe sexual transactions and safe pregnancy progression referring to Planned Parenthood of Southern Pennsylvania v Casey as authority.  O'Sullivan submits that access to safe termination services contributes to reproductive health through the reduction of maternal morbidity and mortality. 

Assuming, the Act is amended to allow abortion on socio-economic grounds in Zimbabwe there is need for the State to uphold section 62 the right to access information. This right is crucial especially when one is to make an informed decision with regards to their reproductive health. O'Sullivan argues that the lack of access to information concerning reproductive health will prevent women from exercising their right to reproductive decision making and will ultimately limit the control women have over their bodies. 

At this stage, one must consider submissions made by Devlin in the Hart-Devlin debate. Devlin appealed to the idea of society's ‘moral fabric’ he argued that society is held together by shared morality and the law must respect and reinforce those moral norms in order to keep social order from unravelling, the notion of shared morality is necessary for the survival of a society;

‘Societies disintegrate from within more frequently than they are broken up by external pressures. There is disintegration when no common morality is observed and history shows that the loosening of moral bonds is often the first stage of disintegration, so that society is justified in taking the same steps to preserve its moral code as it does to preserve its government... the suppression of vice is as much the law's business as the suppression of subversive activities’.

However, the writer respectfully disagrees with the concept of a moral fabric as submitted by Devlin in that morals change with time and the change does not disintegrate society. Moreso, moral laws lead to uncertainty in the legal framework. In RH v DE 2014 6 SA 436 (SCA) the court concluded ‘that in the light of the changing mores of our society, (emphasis) the delictual action based on adultery…has become outdated and can no longer be sustained; that the time for its abolition has come.’ Furthermore, this position was cemented in the case of Zimnat Insurance Company Limited v Chawanda 1990 (2) ZLR 143 to advocate that morals in society are subject to change, Gubbay ACJ as he then stated that, ‘…law in a developing country cannot afford to remain static…it must adapt itself to fluid economic and social norms as and values and to altering views of justice.’ Into the bargain, the famous case of Njodzi v Matione HH 37-16 is also evidence that our courts are of the belief that morals do change as illustrated by Mwayera J”… the bonis mores or legal convictions of our society have not changed (emphasis) so much that…’, the choice of the words have not changed is an admission that morals in society are susceptible to change.

Conclusively, the restrictive approach taken by Zimbabwe fails to balance the conflicting interests of female reproductive rights and foetal interests. There is need to take a liberal approach to allow abortion to be done on socio-economic grounds, this position has been taken in other jurisdiction such as Zambia and South Africa and thus it is prudent that Zimbabwe adopts the progressive laws from these jurisdictions. The writers submits that during the first 10 weeks of pregnancy, concerned women must be able to have safe abortion without the rigid requirement provided in the Act of having to consult and seek written consent from a medical practitioner. In summation, the moral question on abortion depends on individual religious beliefs, moral beliefs, background and socio-cultural attitudes among other issues.