Aspire’s Draft Women’s Choice on Pregnancy Bill (T&T)

ADVOCATES FOR SAFE PARENTHOOD: IMPROVING REPRODUCTIVE EQUITY (ASPIRE) DRAFT WOMEN’S CHOICE ON PREGNANCY BILL – TRINIDAD AND TOBAGO EXPLANATORY MEMORANDUM

At present, procuring the miscarriage of any foetus, whether by the female herself or by any other person, may be an offence under the Offences Against the Person Act, Chap 11:08 56 – 57. That law established abortions as criminal when they were “unlawfully” procured and thereby inferred that there were conditions in which the termination of pregnancy was lawful. Those conditions were not defined. In the persuasive case R v Bourne [1938] 3 All E.R. 615, the lawful justification of abortion to protect the life of a woman was extended to a situation in which a termination was necessary to preserve a woman’s health. This Government has ratified International Agreements that recognize unsafe abortion as a major public health concern and resolved to frame policies and implement programmes based on a commitment to improving women’s health.

While sensitive to the preservation of the sanctity of life, the proposed Bill is designed to secure the desired goal of safe, voluntary motherhood. It is intended to achieve grater reproductive health for women by puttying an end to the widespread practice of unsafe abortion. To this end, the Bill seeks to expand the lawful grounds for the termination of pregnancy in certain cases and subject to certain conditions. The main provisions of the Bill are dealt with below.

In order to reduce the incidence of terminations, the Bill places substantial emphasis on counselling and empowers the Minister to make regulations for this service. Such counselling is voluntary and non-directive and is to occur both before and after nay treatment to terminate a pregnancy. The counselling service is intended to ensure that the woman makes an informed free choice in respect of the continuation or termination of her pregnancy and to enhance her knowledge, and where appropriate her partner’s knowledge, in respect of contraceptive methods (Clause 4 of the Bill). The provision of counselling is not to be used as a hindrance to a woman’s timely access to treatment of her pregnancy.

Where the pregnancy is of no more than 14 weeks gestation, treatment for the termination of pregnancy may be administered by a medical practitioner or an authorized medical practitioner or an authorized midwife. In such a case, it is not necessary for the pregnant woman to have the treatment administered in an approved institution, nor is it necessary to establish any particular fact to justify the treatment. (Clause 5 of the Bill).

Where the duration of the pregnancy is more than fourteen weeks and not more than twenty-four weeks duration, such treatment is required by clause 6 to be administered by an authorized medical practitioner in an approved institution. The specific conditions under which the termination of such a pregnancy may lawfully be undertaken are set out in clause 6 91), (b), (c), (d) and (e). Such ground include risk to her life, grave injury to her physical or mental health, sever abnormality of the foetus, pregnancy caused by rape or incest, serious illness of the pregnant woman such as HIV, and failure of a contraceptive method. Under clause 6 (2) a pregnant woman’s social and economic environment, whether actual or foreseeable, is a relevant factor.

Clause 7 affirms the long established and existing duty of a medical practitioner at common law under the doctrine of necessity. Under clause 7 a pregnancy of more than twenty-four weeks duration may only be lawfully terminated if the medical practitioner has evidence that the termination is necessary to save the life of the woman or to prevent grave or permanent injury to her health or that of the foetus.

Under the clause 8 the termination of a pregnancy must be voluntary and require the consent of the pregnant woman providing she is not mentally disordered, whatever her age. Where the pregnant woman is mentally disordered, the consent of her guardian, next of kin or the Committee of the Mentally Disordered Person must be obtained. [Mental Health Act Chap 28.02]

Special provision has been made by clause 10 to meet a situation where the treatment for the termination of a pregnancy must be undertaken immediately to save the life of a pregnant woman or to prevent grave permanent injury to her physical or mental health.

Except in an emergency, a medical practitioner and other staff involved in providing direct treatment who have conscientious objection are not under any legal duty to participate in any direct treatment for the termination of a pregnancy (Clause 11).

Clause 12 addresses the need where the patient is mentally disordered. In such circumstances the statement must be made by her guardian, next of kin or the Committee of the Mentally Disordered Person.

Clause 13 deals with the record to be kept and the confidential information relating to the treatment for the termination of a pregnancy and mentions the instances where such information may be disclosed.

The powers of entry conferred on the Chief Medical Officer by clause 14 and the existing power that the Police have in that regard are subject to the paramount consideration of the health of the patient and such power is limited to evidence-taking only, and does not include the power to obstruct any procedures observed.

Clause 15 identifies the legislation amended by this Act.

Clause 16 empower the Minister to make such regulations as are necessary and appropriate for making the law operational. The regulations may contain provisions regarding access to services, the appointment of an advisory body, the provision of counselling, authorization of medical practitioners and midwives, approval of institutions, record keeping and such other matters as the Minister may prescribe.

Clause 17 deals with penalties.