The Struggle for Abortion Rights in Trinidad and Tobago

Posted on March 26, 2009
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By Crystal Brizan

 

According to statute abortion appears to be illegal in Trinidad and Tobago and this is regulated by sections 56 and 57 of the Offences Against the Person Act Chap 11:08. This law establishes abortions as criminal when they are “unlawfully” procured and thereby infers that there are conditions under which the termination of pregnancies would be lawful. However, these conditions are not defined in the legislation which has led to widespread speculation and uncertainty. Nonetheless, under criminal law principles of necessity, an abortion can be legally performed to save the life of a pregnant woman. Moreover, Trinidad and Tobago, like a number of Commonwealth countries whose legal systems are based on the English common law, follows, in practice, the English decision of Rex v. Bourne.[1] This case determined that an abortion can be performed to preserve the health of the woman.[2] The decision went even further than the doctrine of necessity and preservation of women’s health in that terminations were made legal if the pregnancy posed a threat to the physical and/or mental health of the woman. Despite the fact that Bourne has never been tested in the courts of Trinidad and Tobago, the case is accepted as general practice regarding legal terminations of pregnancy [3]

 

The debate on abortion law reform has been ongoing in Trinidad and Tobago from as far back as the 1970s. However, due to recent developments this debate is currently at an impasse. One reason for this stalemate is the Draft National Gender Policy and Action Plan. In 2002, the government agreed to develop a National Gender Policy and Action Plan and the Gender Affairs Division of the Ministry of Community Development, Culture and Gender Affairs was charged with supervising the project.[4] The Ministry stated that the purpose of the National Gender Policy is to advance the principles of gender equality and equity and to identify strategies to mainstream gender issues into the work of Government and civil society.[5] Nonetheless upon its completion in 2004, the Draft Policy was met with harsh criticism even before it was officially presented to the public, with sections of the national community contending that the document promotes the legalisation of abortion amongst other concerns. In 2005, Prime Minister Patrick Manning also sought to distance himself from the document and claimed that it did not reflect government policy nor was it sanctioned by the government and called for it to be withdrawn from circulation.[6]

 

 

Yet, there are organisations within Trinidad and Tobago which are lobbying for the liberalisation of the country’s abortion law. One such group is Advocates for Safe Parenthood: Improving Reproductive Equity (ASPIRE). Their mission is to achieve sexual and reproductive equity for all in Trinidad and Tobago. In keeping with its general goal of reproductive equity, since 2000, ASPIRE has embarked on a campaign to bring about abortion law reform and in 2002 issued a formal plea to the government clarify the existing law. The organisation has conducted research and collected very useful data on the impact of unsafe abortion and its implications for Trinidad and Tobago. Other groups which have also joined in the struggle are the Caribbean Association for Feminist Research and Action (CAFRA), Lawyers for Reproductive Rights, and the Family Planning Association of Trinidad and Tobago.  

 

In 2003 ASPIRE also began promotion of proposed legislation titled “Women’s Choice on Pregnancy Bill”. The Bill would enable a woman to a request termination for any reason in the first trimester, while in the second trimester, a termination would be allowed only if the circumstances of the pregnancy falls within one of six categories, including rape, incest, severe birth defects or failed contraception. A third trimester termination would only be performed if the woman’s life was in jeopardy. The Bill is intended to be cognisant of, and sensitive to the preservation of the sanctity of life, whilst maintaining the desired goal of safe, voluntary motherhood and an end the prevalence of unsafe abortion.

 

Generally, advocacy strategies around the right to safe, legal abortion has developed around two major axes, and Trinidad and Tobago is no different, The first is the public health rationale which regards the illegality of abortion as a major contributing factor to women’s maternal health and mortality. The second is the rights rationale, which contends that a woman’s right to terminate a pregnancy is a basic and inalienable one which is protected by fundamental doctrines of individual human rights.[7] However, it should be noted that until recently in Trinidad and Tobago, the emphasis has been on the public health impact of unsafe abortion.

 

Unsafe abortion is a public health issue in Trinidad and Tobago, this is an undeniable truth. This is a direct result of criminalisation and the legal ambiguity surrounding the status of abortion in Trinidad and Tobago hence the incidence of unsafe abortion has been and continues to be prevalent. Moreover, the World Health Organisation (WHO) reports that Latin America and the Caribbean have the highest documented incidence of unsafe induced abortions among the regions of the developing world.[8] ASPIRE’s research in 1999 of data from the major public hospitals revealed that each year between 3000 to 4000 women are admitted to public hospitals every year suffering from complications as a results of botched abortions. Many of these women suffer from a wide range of complications which include but are not limited to: partial infertility, full infertility, pelvic inflammatory disease, septicaemia and even death.

 

With regard to human rights, Trinidad and Tobago is a signatory to several UN Treaties and international agreements which impact sexual and reproductive health and rights. One such treaty is the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), to which Trinidad and Tobago became a state party and ratified in 1990.[9] Moreover, reproductive health has also been legitimised by UN conferences, most important of which were the International Conference on Population and Development held in Cairo in 1994 and the Fourth World Conference on Women in Beijing China,1995.[10] Trinidad and Tobago were in attendance at both conferences and signaled their commitment to enforcing women’s human rights in the sphere of reproductive health. However, the existing criminal offence of abortion coupled with the government’s dismissive and ‘hands off’ approach to the issue demonstrates an apparent lack of political will to address the reality of the current situation in Trinidad and Tobago as it relates to terminations of pregnancy.

 

The law as it exists is also a social justice issue. It forces women who belong to the poorer economic bracket in the society to seek unsafe and clandestine services while at the same time women who possess greater economic means can easily access private services, thus the law is inequitable in this respect. Women of little or no means are forced to subject themselves to unsafe providers and practices, often suffering from incomplete terminations and no access to post abortion care. Unsafe abortions and their repercussions are also extremely expensive to the government, costing the state more than TT$1 million each month treating women who are victims of botched abortions.[11]

 

How then, can the situation be ameliorated? One could reasonably ask the question; can the existing abortion law be challenged on the basis of unconstitutionality? The Constitution is indeed the supreme law of the land containing specific rights provisions under section 4. These rights include the right to equality before the law, the right to liberty and security of person as well as the right to respect for family and private life. However, notwithstanding the fact that these rights are in fact enshrined in the Constitution, because of recent case law interpreting some of the rights under section 4 of the Constitution, a challenge to the constitutionality of the criminalisation of abortion will most likely fail because of the inherent private nature of these rights.[12]. However, this decision is subject to appeal and its outcome will indicate whether the door is open to a constitutional challenge of the existing abortion law.

 

It is a well recorded fact that restrictive abortion laws fail to address the crux of the matter. The issue remains the occurrence of unwanted pregnancy. If the government’s objective is to reduce the incidence of abortion then it is crucial to interrogate the reasons behind unwanted pregnancies. However, as long as these conditions exist, and in the absence of well thought out and properly executed action plans a large number of unwanted pregnancies will persist. Hence, notwithstanding the various legal, moral, or religious restrictions and sanctions, most of these pregnancies will result in abortion.[13]

Finally, the majority has spoken and the country is ready and wants law reform, but change is slow in coming. And so, the struggle continues.[14]

 


REFERENCES

www.aspire.org.tt

 

Barzelatto J.S. and Faundes A, The Human Drama of Abortion. A Global Search for Consensus, Tennessee: Vanderbilt University Press, 2006.

 

Charles A.E, Abortion in Trinidad and Tobago, April 30, 2000.

 

Correa Sonia, Population and Reproductive Rights. Feminist Perspectives From the South, London: Zed Books, 1994.

 

DAWN, Sexual and Reproductive Health and Rights in the English-Speaking Caribbean, 2006.

 

Nunes Fred, “Implementing a Liberal Abortion Law in Guyana: Experiences and Lessons”, in Advocating for Abortion Access: Eleven Country Studies, Budlender D and Klugman B (Eds.) Johannesburg: University of the Witwatersrand, 2001.

 

World Health Organisation Geneva, Maternal Health and Safe Motherhood Programme, Abortion: A Tabulation of Available Data on the Frequency and Mortality of Unsafe Abortion, 1994.


[1] [1939] 1 K.B. 684 In Bourne a fourteen year old girl was raped and became pregnant. Dr. Bourne, a prominent surgeon examined her and did not find that her pregnancy posed a danger to her life so as to necessitate a termination on the basis of preservation of her life.. However, the doctor felt that the girl was in such mental and emotional turmoil that unless he performed the abortion she would become a mental wreck. He did the abortion as he felt that he was duty bound by his profession to do so.

[2]www.un.org/esa/population/publications/abortion/doc/trinidad.doc+offences+against+the+person+act+trinidad+and+tobago&hl=en&ct=clnk&cd=10&gl=tt

http://aspire.org.tt/new/web/faq.php

[3] For example, medical doctors have codified the findings of Bourne in their Code of Ethics and the Ministry of Health refers to it when citing the legal bases for terminations of pregnancy.

[4] http://www.cdcga.gov.tt/progs/genderpolicy.php

[5] http://www.cdcga.gov.tt/progs/genderpolicy.php

[6] http://www.ttparliament.org/budget/2005/bs20050928.pdf: 25

 

[7] Correa, 1994

[8] WHO, A Tabulation of Available Data on the Frequency and Mortality of Unsafe Abortion: 5 The World Health Organisation (WHO 1992) defines unsafe abortion as a procedure for terminating an unwanted pregnancy either by persons lacking the necessary skills or in an environment lacking the minimal medical standards, or both.

[9] CEDAW is the only Convention to hold right to reproductive health as a human right.

[10] Both conferences dealt specifically with the issue of abortion and countries in attendance agreed to deal with the issue of unsafe abortion as a public health concern.

[11] http://aspire.org.tt/new/web/aspresearch.php

[12] Chandresh Sharma v The Attorney General of Trinidad and Tobago Civil Claim H.C. 150 of 2005 per Pemberton J.

[13] Barzellato and Faundes, 2006.

[14] ASPIRE, 2006: 69% of respondents were in favour of law reform.

Comments

3 Responses to “The Struggle for Abortion Rights in Trinidad and Tobago”

  1. Naomi on November 8th, 2009 1:44 pm

    please do not legalize the abortion law. please penalize severly on those who perform abortions

  2. JohnL on May 9th, 2010 6:22 am

    I have been a human rights activists for over 28 years. I am very disturbed that the UN Declaration on Human Rights which I regard as one of mankind’s greatest statement about the dignity of humanity and how human rights should be respected, is being perverted by the push to have abortion, the deliberate destruction of human life, to be legalised as a human right. The framers of the UN Declaration, saw the right to life as inalienable.

  3. Max Wood on May 25th, 2010 11:39 am

    I am always against abortion because it is a sin to kill an innocent child.;*’

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