REPROHEALTHLAW Updates – Autumn 2021

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DEVELOPMENTS
ECUADOR Constitutional Court orders decriminalization of abortion in cases of rape. Corte Constitucional, Acción Pública de Inconstitucionalidad, Expediente No. 34-19-IN/21, Decision of April 28, 2021.  Summary in Spanish.  Decision in Spanish.  News report in English.

MALAWI: High Court rejects girl’s application for judicial review of oral abortion refusal. The State (On the Application by HM (Guardian) on behalf of CM (Minor) vs The Hospital Director of Queen Elizabeth Central Hospital & The Minister of Health: Judicial Review Cause Number 03 of 2021 (unreported) (High Court of Malawi, Zomba District Registry) Decision of 15 June 2021.   (Download:) Legal Brief by Lewis Bande and Godfrey Kangaude.  Overview of their brief.

MEXICO: Supreme Court rules that criminalizing abortion is unconstitutional, Sept 7, 2021. Action of unconstitutionality 148/2017, promoted by the Office of the Attorney General of the Republic against the Legislative and Executive Powers of Coahuila, demanding the invalidity of articles 195, 196 and 224, section II of the Penal Code of the State of Coahuila de Zaragoza, contained in Decree 990, published in the local Official Newspaper on October 27, 2017 News report. Press release in Spanish.

NEW ZEALAND: NZ Health Professionals’ Alliance v Attorney-General, [2021] NZHC 2510 (New Zealand High Court)   Decision of September 23, 2021.   Commentary on decision.  News report. The Court upholds sections of the Contraception, Sterilisation, and Abortion Act 1977 (‘CSAA’), amended in the Abortion Legislation Act 2020, [conscientious objection includes duty of effective referral; and employers must accommodate conscientious objection unless doing so would cause unreasonable disruption.]

SAN MARINO: Referendum, Sept 24, 2021, voted to legalize abortion within 12 weeks’ gestation. BBC news report.

SCHOLARSHIP

[abortion laws] “Legal Epidemiology for a Clearer Understanding of Abortion Laws and their Impact,” by Patty Skuster, Temple Law Review 92.4 (Summer 2020): 917-929. Abstract and article.

[abortion, Ireland, COVID-19, remote consultation] “Early abortion care during the COVID-19 public health emergency in Ireland: implications for law, policy and service delivery” by Allison Spillane and Maeve Taylor, International Journal of Gynecology and Obstetrics 2021;154: 379–384.  PDF at Wiley online, Free access.

[abortion law, telemedicine] Early Medical Abortion, Equality of Access, and the Telemedical Imperative, by Jordan A. Parsons and Elizabeth Chloe Romanis (Oxford University Press, 2021) Book abstract.

[abortion policy, Amnesty] “Amnesty International’s Updated Policy on Abortion: A Resource for Medical Providers,” by Rada Tzaneva and Jaime Todd-Gher, International Journal of Gynecology and Obstetrics 153.2 (May 2021): 363-369. PDF at Wiley online, Free access.

[Africa] Advancing Sexual and Reproductive Health and Rights in Africa: Constraints and Opportunities, ed. Ebenezer Durojaye, Grace Mirugi-Mukundi, and Charles Ngwena. (Routledge, 2021) Abstract and Table of Contents. Open Access to entire book.

US-focused news, resources, and legal developments are available  on Repro Rights Prof Blog. View or subscribe.

VIDEO RESOURCE
“Shaping the Future of Abortion,” in the Oxford Human Rights Hub Documentary Series. The second episode of Shaping the Future of Sexual and Reproductive Health Rights, explores the role of human rights law in advocacy, examining successful legal strategies used in South Africa, Brazil, Mexico, Kenya and Poland.  Second episode online.

JOBS
Links to employers in the field of Reproductive and Sexual Health Law are online here.
______________
Compiled by: the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca.   See Program website for our Publications,  Research resources, and Reprohealthlaw Commentaries Series.  TO JOIN THE REPROHEALTHLAW BLOG: enter your email address in the upper right corner of our blog, then check your email to confirm the subscription.

Malawi’s first abortion ruling sheds light on law and hospital norms

Many thanks to legal scholars Lewis Bande, Ph.D, and Godfrey Kangaude, LL.D., for submitting a learned commentary on the High Court of Malawi’s first ever “Ruling on a judicial review application to access safe abortion,” decided June 15, 2021. Their 6-page summary and analysis of this decision has just been published at this link, among the online updates to the third volume of case summaries, Legal Grounds: Reproductive and Sexual Rights in Sub-Saharan African Courts. Here is a brief overview of their comments on the following case:

The State (On the Application by HM (Guardian) on behalf of CM (Minor) vs The Hospital Director of Queen Elizabeth Central Hospital & The Minister of Health: Judicial Review Cause Number 03 of 2021 (unreported) (High Court of Malawi, Zomba District Registry) Decision of 15 June 2021. Decision on Google drive. (Download:) Legal Brief by Lewis Bande and Godfrey Kangaude. 

The case centres upon a minor known as “C.M.,” a 15-year-old girl who had been “defiled,” impregnated and abandoned by a married man.  She claimed to have been refused termination of pregnancy at the Queen Elizabeth Central Hospital’s facility for survivors of sexual abuse. There, healthcare providers told her that abortion is illegal in Malawi.  From legal counsel, the girl’s family later learned that abortion is indeed illegal under the antiquated Malawi Penal Code of 1930, but prosecution can be avoided under Section 243, which provides:

A person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation upon any person for his benefit, or upon an unborn child for the preservation of the mother’s life, if the performance of the operation is reasonable, having regard to the patient’s state at the time, and to all the circumstances of the case.

Healthcare providers routinely interpret this Section of the law restrictively, excluding victims of defilement or sexual assault. In this context, abortion requests and refusals normally happen orally and are not usually recorded in medical records.

The Court’s Ruling: The Court rejected the application for judicial review on the sole ground that there was no evidence that the First Defendant, as director of a public hospital, was responsible for any “decision” that could be judicially reviewed. As Bande and Kangaude observe, the Court cannot be faulted for this ruling. However, the Court proceeded to speculate that this application would probably have failed on other grounds that seem debatable. The Court’s ruling, they write, shows room for further litigation on the interpretation of the current law for girls and women who have been sexually assaulted.  In the ruling, the Court used language that suggests that it recognizes that preservation of a woman’s life entails preserving her mental and physical health. This seems progressive on the part of Court, as it conforms with the consensus in the human rights discourse that the rights to health and life are closely related.   

Significance: Although permission for judicial review was denied, this ruling is a milestone, marking the very first instance that the High Court of Malawi has acknowledged and discussed the position that abortion can be lawfully performed in Malawi. The ruling also shows that defiled or raped Malawian girls and women are being excluded from safe abortion, and they are forced to keep pregnancies that are a result of sexual assault because the Section 243 exception is interpreted restrictively by health providers. The Second Defendant in this case was, appropriately, the Minister of Health, because decisions to refuse terminations of pregnancy would be based on policies for which the Health Minister is responsible.

The Malawi Law Commission’s 2015 review of the colonial abortion law proposed liberal changes to the law which, if implemented, would eventually expand access to safe abortion.[1] Rather than waiting for law reform, the Ministry of Health should immediately provide defiled girls and rape victims with access to safe abortion by clarifying the application of the existing abortion law. In the Health Ministry’s current Standards and Guidelines for Post Abortion Care (2020)[3], section 1.2, it remains unclear whether victims of sexual violence can access safe terminations legally. Professional guidelines should clarify that any girl or woman who has been raped or defiled should have an option to terminate the pregnancy, and without being subjected to burdensome requirements such as proving severe depression or suicidal ideation. Meanwhile, health advocates should continue to champion law reforms that respect Malawi’s constitutional and international obligations toward girls and women.

Related Resources:

[1]   Malawi Law Commission. Report of the Law Commission on the review of the law on abortion (Penal Code CAP.7:01 of the Laws of Malawi). Lilongwe: Malawi Law Commission; 2015. Report online.

 [2] See also: Godfrey Dalitso Kangaude and Chisale Mhango, “The Duty to make abortion law transparent: A Malawi case study” International Journal of Gynecology and Obstetrics 143.3 (Dec. 2018): 409–413, Published Version at IJGO.  Submitted text online at SSRN.

[3] Ministry of Health, Malawi, Standards and Guidelines for Post Abortion Care 2020.   43-page document. PAC Guidelines.

(Download:) Legal Brief by Lewis Bande and Godfrey Kangaude. 

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Compiled by the Coordinator of International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca.   See Program website for our Publications,  Research resources, and Reprohealthlaw Commentaries Series.  TO JOIN THE REPROHEALTHLAW BLOG: enter your email address in the upper right corner of our blog, then check your email to confirm the subscription.

Ethiopia, Malawi, Zambia: adolescent access and laws

Congratulations and thanks to Godfrey Dalitso Kangaude, Ernestina Coast, and Tamara Fetters, whose multi-country study of “Adolescent Access to Contraception and Safe Abortion” recently released reports on Ethiopia, Malawi and Zambia. Dr. Kangaude is a Postdoctoral Researcher at the University of Pretoria’s Centre for Human Rights, Prof. Coast teaches at the London School of Economics and Political Science, and Tamara Fetters works for Ipas as a Senior Researcher. We thank them for this overview of their legal findings, and the link to their new article in Sexual and Reproductive Health Matters:

ACCESS TO ABORTION-RELATED CARE FOR ADOLESCENTS IS LINKED TO ABORTION LAWS

Adolescents seeking abortion-related care in public health systems are restricted by legal and policy environments. A study conducted in Malawi, Zambia, and Ethiopia, in 2018-19, interviewed 313 adolescents who sought safe abortions or post-abortion care in public health facilities, and revealed the challenges they face. Among the adolescent study participants, 98% of Ethiopian, 34% of Zambian and only 4% of Malawian adolescents received abortions safely in health facilities (project webpage). 

Crucially, laws limit services. Malawi allows abortion only when the pregnancy threatens the pregnant woman’s life. Most interviewed adolescents who wanted to terminate a pregnancy in Malawi resorted to clandestine and unsafe abortions (Malawi briefing). In Ethiopia, abortion is available for persons below 18, and 98% of adolescents accessed safe abortion care.  In Zambia, adolescents have wider grounds for accessing safe abortions including circumstances when there is a risk to the life or health of existing children of the pregnant woman (Zambian abortion law).

Laws also indirectly impact access to safe abortion. First, laws are vague about requirements of parental or guardian consent, for instance in Zambia. As a result, and in all three countries, adolescents reported being turned away by health providers because they did not come with guardians. Second, abortion laws are stigmatising. When abortion laws are based on criminalisation – rather than essential healthcare – such laws reinforce abortion stigma. A consequence is that health providers refuse or obfuscate care for adolescents seeking abortion-related care (Zambian briefing).

The Maputo Plan of Action 2016–2030 for the Operationalisation of the Continental Policy Framework for Sexual and Reproductive Health and Rights (Maputo PoA) is an important policy framework in Africa. It aims to implement the SRHR Continental Policy Framework (online here) developed to address SRHR challenges on the African continent, but also implement Africa’s Agenda 2063 as well as the Sustainable Development Goals (SDGs). In ratifying the MPoA, African leaders commit to addressing sexual and reproductive health in their laws and policies, and to radically transform their health systems to tackle pressing challenges such as access to contraception for adolescents and the high prevalence of unsafe abortions. Malawi and Zambia have ratified, while Ethiopia has signed but not ratified the MPoA. Zambia and Malawi are therefore bound to rectify their outdated laws and policies with evidence-based guidance in accordance with the standards set by the MPoA, while Ethiopia’s laws and policies should, at least, not contradict these standards.

Compliance with the MPoA would improve the availability, accessibility and quality of contraceptive and abortion-related care for adolescents. For example, under key strategy number 2 of the MPoA to institute health legislation and policies for improved access to services, countries would remove all legal, regulatory and policies barriers that limit young people’s access to contraceptives and safe abortion. Further, under key strategy number 3 to ensure human rights and gender equality for girls and women, states would enact laws to protect the right every person to make decisions governing their body including whether to continue with a pregnancy.

RELEVANT RESOURCES:

Policy briefs for each country: Ethiopia brief Malawi brief, Zambia brief

“Adolescent sexual and reproductive health and universal health coverage: a comparative policy and legal analysis of Ethiopia, Malawi and Zambia,”
by Godfrey Kangaude, Ernestina Coast & Tamara Fetters (2020) Sexual and Reproductive Health Matters, 28:2, 1-15. Abstract and article online.

Legal Grounds III: Reproductive and Sexual Health in Sub-Saharan African Courts. Summaries of 60+ court decisions, 2008-present   Online edition with updates and links to decisions.
Published books – free access PDFs: Legal Grounds I , Legal Grounds II, Legal Grounds III.
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Compiled by: the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca.   See Program website for our Publications,  Information resources, and Reprohealthlaw Commentaries Series.  TO JOIN THE REPROHEALTHLAW BLOG: enter your email address in the upper right corner of our blog, then check your email to confirm the subscription.

REPROHEALTHLAW Updates – Sept 2019

SUBSCRIBE TO REPROHEALTHLAW: To receive these updates monthly by email, enter your address in upper right corner of this webpage, then check your email to confirm the subscription.

DEVELOPMENTS:

[Africa, Mali] APDF & IHRDA v Republic of Mali (Association pour le Progrés et la Défense des Droits des Femmes Maliennes (APDF) and The Institute For Human Rights and Development in Africa (IHRDA) v. Republic Of Mali, Application No. 046/2016, African Court on Human and Peoples’ Rights. (2018) Decision of May 11, 2018  PDF.  Decision online .
Case Summary and Comment by LL.M. student George Sakyi Asumadu

SCHOLARSHIP:

[abortion] “The Moral Agency of Abortion Providers: Conscientious Provision, Dangertalk, and the Lived Experience of Doing Stigmatized Work,” by Lisa Harris, in: Ethical Issues in Women’s Healthcare: Practice and Policy, ed. Lori d’Agincourt-Canning and Carolyn Ells (New York: Oxford University Press, 2019). Abstracts and Table of Contents of Book. Publisher’s abstract of book.

[abortion, Northern Ireland] “Evaluating the Need to Reform Northern Ireland’s Abortion Law from a Human Rights Perspective,” by Zoe Louise Tongue, Cambridge Law Review 4 (2019): 121-150. Institutional access.

[conscience, Australia] “Medical Referral for Abortion and Freedom of Conscience in Australian Law,” by Joanne Howe and Suzanne Le Mire, 34 Journal of Law & Religion 85 (2019) Institutional access.

Conscientious Objection / The Right to Conscience – annotated bibliography, International Reproductive and Sexual Health Law Program, Faculty of Law, University of Toronto, updated May 9 2019 Annotated bibliography

[Malawi] Woes of the Womb: An Investigation into allegations of medical malpractices resulting in removal of uteruses from expectant women in public health facilities, SYS/INV/2/2019 (Republic of Malawi: Office of the Ombudsman, August 2019) includes preventable deaths of mothers and infants. 37-page Ombudsman report. Overview by G. Kangaude and C. Sibande.

US-focused news, resources, and legal developments are available  on Repro Rights Prof Blog. View or subscribe.

JOBS

Links to employers in the field of Reproductive and Sexual Health Law are online here.
______________
Compiled by: the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca.   See Program website for our Publications,  Information resources, and Reprohealthlaw Commentaries Series.  TO JOIN THE REPROHEALTHLAW BLOG: enter your email address in the upper right corner of our blog, then check your email to confirm the subscription.

Malawi: preventable deaths, hysterectomies, and poor ob/gyn care in public hospitals

The Ombudsman of the Republic of Malawi recently released a report,
Woes of the Womb: An Investigation into allegations of medical malpractices resulting in removal of uteruses from expectant women in public health facilities , SYS/INV/2/2019 (Malawi: Office of the Ombudsman, August 2019): 37- page report.

We thank doctoral candidates Godfrey Kangaude* and Chrispine Sibande** for summarizing this report:

The Ombudsman is an independent public body with a mandate that includes investigating cases of injustice.

This investigation was triggered by media reports alleging a high rate of women undergoing hysterectomies in a public hospital due to post-caesarean wound infections.  The report reveals serious challenges in the provision of obstetric and gynaecological care in Malawi’s public hospitals. Factors contributing include; long waiting periods to receive surgical care, lack of qualified personnel, shortage of surgical materials and essential drugs, poor infection prevention practices, and negligence of health providers. Between January and July 2018 alone, three pregnant women died at one hospital because of late surgical interventions due to the hospital’s lack of capacity.

The report reveals clear violations of sexual and reproductive rights of Malawian women and girls which are expressly recognised in the Constitution and the Gender Equality Act, including the right to life, dignity, equality and non-discrimination. Further, Malawi has ratified international and regional treaties including the Convention on the Elimination of All Forms of Discrimination Against Women, and the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa, without reservations. Malawi should address the problems urgently, both in the short and long term, to preserve the health and lives of women and girls.

This is the first time such an investigation has been undertaken in Malawi, although complaints of poor service delivery and deaths of women in public hospitals are common. The report has generated interest from different stakeholders on how to address the challenges women and girls are facing regarding obstetric and gynaecological care.

*Godfrey Kangaude, LLD candidate, Department of Private Law, University of Pretoria

** Chrispine Sibande, LLD candidate, Center for Human Rights, University of Pretoria
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Cite as: Godfrey Kangaude and Chrispine Sibande, “Malawi: preventable deaths, hysterectomies and poor ob/gyn care in public hospitals” Reprohealthlaw Blog, Sept 30, 2019 <https://wp.me/p1Stxd-3iC&gt;
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125 other Reprohealthlaw Blog Commentaries are online here.

Four court decisions on preventable maternal mortality in hospitals (Uganda and South Africa) are summarized in Chapter 3: “Maternal Health Care and Services,” in: Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts (Pretoria: Pretoria University Law Press, 2017)     Online edition with updates.     Earlier volumes online.
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Compiled by: the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca.   See Program website for our Publications,  Information resources, and Reprohealthlaw Commentaries Series.  TO JOIN THE REPROHEALTHLAW BLOG: enter your email address in the upper right corner of our blog, then check your email to confirm the subscription.

REPROHEALTHLAW Updates – January 2019

SUBSCRIBE TO REPROHEALTHLAW: To receive these updates monthly by email, enter your address in upper right corner of this webpage, then check your email to confirm the subscription.

DEVELOPMENTS

Democratic Republic of the Congo: Legal access to abortion expanded in July 2018, to comply with Article 14 of the (Maputo) Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa. “Women can now legally access abortion – in cases of sexual assault, rape or incest, or when the continuing pregnancy would endanger the mental and physical health of the woman or the life of the woman or the fetus.”  Details from Safe Abortion.

El Salvador: Court frees another woman jailed under anti-abortion laws, BBC News (Dec. 18, 2018).   BBC News article

[U.N. Human Rights Committee]  General comment No. 36 (2018) on  article 6 of the International Covenant on Civil and Political Rights, on the right to life.” U.N. Doc, CCPR/C/GC/36, October 30, 2018. Advance unedited version.

ABORTION LAW DECISIONS ON THE WEB

Abortion Law Decisions webpages, in English and Spanish, are now updated with new court decisions and alternate links to older decisions. Prepared by our International Reproductive and Sexual Health Law Program at the University of Toronto’s Faculty of Law, it includes Domestic, Regional and International Jurisprudence.  English edition.   Spanish edition.

SCHOLARSHIP:

[abortion]  “Understandings of self-managed abortion as health inequity, harm reduction and social change,” by Joanna N. Erdman, Kinga Jelinska & Susan Yanow, Reproductive Health Matters 26.54 (Nov. 2018): 13-19.   Abstract and article.

[abortion]  “Re-situating Abortion: Bio-politics, Global Health and Rights in Neo-liberal Times.” Special Issue of Global Public Health 13.6 (2018). Guest Editors: Maya Unnithan and Silvia de Zordo.  Table of Contents with links to articles.

[abortion guidelines – France] “Elective abortion: Clinical practice guidelines from the French College of Gynecologists and Obstetricians (CNGOF)”  Christophe Vayssière et al.,et. al. European Journal of Obstetrics & Gynecology and Reproductive Biology 222 (March 2018): 95–101  Abstract and article.

[abortion law – Malawi] “The Duty to make abortion law transparent:  A Malawi case study,”  by Godfrey Dalitso Kangaude and Chisale Mhango, International Journal of Gynecology and Obstetrics 143 (Dec. 2018): 409–413.   PDF at Wiley online.  Submitted text at SSRN.

[abortion law  – Ireland] “A tough job: recognizing access to abortion as a matter of equality. A commentary on the views of the UN Human Rights Committee in the cases of Mellet v. Ireland and Whelan v. Ireland,” by Katarzyna Sękowska-Kozłowska,  Reproductive Health Matters 26.54 (Nov. 2018): 25-31.  Article online.

[abortion law – United Kingdom]  “UK Abortion Law: Reform Proposals, Private Members’ Bills, Devolution and the Role of the Courts,” by Robert Brett Taylor, Adelyn L.M. Wilson, Modern Law Review, 2019  Abstract and article.

[abortion laws – sex selection, India and U.S.] Women’s human rights and migration: sex selective abortion laws in the United States and India, by Sital Kalantry, Philadelphia, University of Pennsylvania Press, 2017, 272 pp.,  Reviewed in International Feminist Journal of  Politics

[abortion policies database] “Global Abortion Policies Database: a new approach to strengthening knowledge on laws, policies, and human rights standards,” by Brooke Ronald Johnson, Jr., Antonella Francheska Lavelanet and Stephanie Schlitt, BMC International Health and Human Rights 18.35 (Sept 2018): 1-5.  Abstract and article.

[abortion rights – Argentina] “Federalism, two-level games and the politics of abortion rights implementation in subnational Argentina, by Alba Ruibal, Reproductive Health Matters 54 (Nov. 2018): 137-144.  Article online.

[Europe] “Women’s sexual and reproductive health and rights in Europe,” Issue Paper by the Council of Europe Commissioner for Human Rights (France: Council of Europe, Dec. 2017).  78-page Issue Paper.

[gender stereotypes – judiciary]  “Background paper on the role of the judiciary in addressing the harmful gender stereotypes related to sexual and reproductive health and rights: A review of case law.”  (Geneva: UN Office of the High Commissioner for Human Rights, [2018])  in English  and Spanish

“Impact of reproductive evolutionary mismatch on women’s health and the need for action and research,” by Mahmoud F. Fathalla, International Journal of Gynecology and Obstetrics 144.2 (Feb. 2019): 129-134 | Abstract and article online.

US-focused news, resources, and legal developments are available  on Repro Rights Prof Blog.   View or subscribe.

JOBS

Links to employers in the field of Reproductive and Sexual Health Law are online here
______________
Compiled by the Coordinator of the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca For Program publications and resources, see our website, online here. TO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.

 

 

 

 

Malawi: The duty to make abortion law transparent

Congratulations to Godfrey Dalitso Kangaude, LL.M., a doctoral candidate in Law at the University of Pretoria, and Dr. Chisale Mhango, former Director of Reproductive Health Services in Malawi’s Ministry of Health, for their recent publication in the International Journal of Gynecology and Obstetrics.   We are pleased to circulate the abstract and links below:

Godfrey Dalitso Kangaude and Chisale Mhango, “The duty to make abortion law transparent: A Malawi case study,” International Journal of Gynecology and Obstetrics 143.3 (Dec. 2018): 409–413     PDF at Wiley online.  Submitted text at SSRN.

Abstract:    Despite adopting a progressive legal and policy framework informed by internationally recognized human rights norms and values, Malawi has not complied with the obligation to explain its abortion law in accordance with legal and human rights standards. In 1930, the colonial government adopted a Penal Code derived from English criminal law, containing provisions regulating access to abortion, but has not undertaken measures to explain when abortion is lawful. What constitutes legal abortion has never been clarified for health providers and potential clients. Consequently, eligible girls and women fail to access safe and legal abortion. The Malawi Law Commission, following its review of the colonial abortion law, has proposed liberal changes which, if implemented, would expand access to safe abortion. However, the immediate step the government ought to take is to clarify the current abortion law, and not to wait for a new law expected to materialize in the indeterminate future.

Keywords: abortion law in Malawi, Colonial abortion law, Health and human rights, Implementing abortion law, Lawful abortion, Transparency in abortion law

Download this publication here: free access for only 12 months.
Submitted typescript, before publication:  is available here at SSRN.

Related resources:

Charles G. Ngwena, “Reforming African Abortion Laws and Practice: The Place of Transparency” Abortion Law in Transnational Perspective: Cases and Controversies ed. Rebecca J. Cook, Joanna N. Erdman, and Bernard M. Dickens (University of Pennsylvania Press, 2014) pp 166-186, notes 419-422.      Article abstract online.   Abortion Law book Table of Contents and abstracts.   Book in Spanish.

“Achieving Transparency in Implementing Abortion Laws” by R.J. Cook, J.N. Erdman and B.M. Dickens (2007) 99 International Journal of Gynecology and Obstetrics 157-161.  Article and abstract online.

88 other concise IJGO articles on Ethical and Legal Issues in Reproductive Health are online here.

_________________
Compiled by the Coordinator of the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca For Program publications and resources, see our website, online here. TO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.

 

REPROHEALTHLAW Updates – Sept 2018

SUBSCRIBE TO REPROHEALTHLAW: To receive these updates monthly by email, enter your address in upper right corner of this webpage, then check your email to confirm the subscription.

DEVELOPMENTS

[UN – CEDAW and CRPD] “Guaranteeing sexual and reproductive health and rights for all women, in particular women with disabilities,”   Joint statement by the Committee on the Rights of Persons with Disabilities (CRPD) and the Committee on the Elimination of All Forms of Discrimination against Women (CEDAW), 29 August 2018.  Decriminalize abortion, repeal discriminatory health policies and abortion laws that perpetuate deep-rooted stereotypes and stigma and undermine women’s reproductive autonomy and choice.    PDF online.

CALL FOR PAPERS:

“The Impact of Politics on Sexual and Reproductive Health and Rights,” for publication in Reproductive Health Matters, May 2019.  Submissions due October 31, 2018.  RHM Call for papers

SCHOLARSHIP:

[abortion law – Brazil]    “Brazilian Supreme Court Public Hearing on the Decriminalization of Abortion:   Antecedents, Contents, Meanings” by Sonia Corrêa  (published by Sexuality Policy Watch, 2018)  27 pages PDF     Direct download.

[abortion law – Brazil]  Testimony by Prof. Rebecca Cook . . .against Unsafe Abortion in the Public Hearing of the Brazilian Supreme Court, caso ADPF 442, Brasilia, August 3, 2018.   English original.    em Portugues do Brasil.   Testimonio – Espanol traducido por CLACAI (Consorcio Latinoamericano contra el aborto inseguro).    Uno otro en Espanol.  

[abortion law – El Salvador] “Physicians’ Challenges under El Salvador’s Criminal Abortion Prohibition,” by Alyson Zureick, Amber Khan, Angeline Chen and Astrid Reyes. forthcoming International Journal of Gynecology and Obstetrics, October2018  Early view PDF.   Submitted text online at SSRN.

[abortion law – Malawi] “The Duty to make abortion law transparent:  A Malawi case study,”  by Godfrey Dalitso Kangaude and Chisale Mhango, forthcoming International Journal of Gynecology and Obstetrics,     Early view PDF.

Abortion Law in Transnational Perspective: Cases and Controversies, ed. Rebecca Cook, Joanna Erdman and Bernard Dickens (Philadelphia: Univ. Pennsylvania Press, 2014) 20% discount code is PH70.  Abstracts of all 16 chapters.   Spanish edition by FCE/CIDE – 16 abstracts.  Abortion Decisions: Table of Cases in English and Spanish.

[abortion policy] “The Philippines rolls back advancements in the postabortion care policy,” by Melissa Upreti and Jihan Jacob,  International Journal of Gynecology and Obstetrics 142 (August 2018): 255–256.   PDF online.  Submitted text  at SSRN.

[abortion policies] “Access to knowledge and the Global Abortion  Policies Database,”  by Joanna N. Erdman and Brooke Ronald Johnson Jr.  International Journal of Gynecology and Obstetrics, July 2018; 142: 120–124   PDF at Wiley online.   Submitted text at SSRN.

[Africanness, including sexuality],  What is Africanness?: Contesting nativism in culture, race and sexualities, peer-reviewed book by Charles G. Ngwena (Pretoria University Law Press, 2018) 306 pages.  “Part 3: Heterogeneous Sexualities” – chapter abstracts.    Entire book open access at PULP.     Table of Contents.   Overview, Comments from scholars,  PDFs of all chapters.   Podcast on African Rights Talk (2019) 

[Brazil – obstetric care, maternal mortality /morbidity, Alyne case]  “Implementing international human rights recommendations to improve obstetric care in Brazil,” by Alicia E Yamin, Beatriz Galli and Sandra Valongueiro.   International Journal of Gynecology and Obstetrics 143.1 (October 2018): 114-120    Abstract online in English and Portuguese. English PDF for institutional subscribers.

[CEDAW]”The Committee on the Elimination of Discrimination against Women” by Rebecca J. Cook and Cusack, Simone Cusack.  In Tara Van Ho and Nigel Rodley, eds, Research Handbook on Human Rights Institutions and Enforcement (Edward Elgar Publishing Ltd, Forthcoming).  Submitted text archived online.

[conscience]  Unconscionable: When Providers Deny Abortion Care  Report of the International Women’s Health Coalition, 2018, based on the first global meeting on the topic of “conscientious objection,” held in Montevideo, Uruguay in August 2017.    8-page report.

[intersex, gender] “Management of intersex newborns: Legal and ethical developments,” by Bernard M. Dickens, forthcoming International Journal of Gynecology and Obstetrics, 2018.   Early View PDF.

[self-managed abortion] “Understandings of self-managed abortion as health inequity, harm reduction and social change,” by Joanna N. Erdman, Kinga Jelinska and Susan Yanow. Forthcoming in Reproductive Health Matters. Early view PDF.

[strategic litigation] Seeking Social Change in the Courts: Tools for Strategic Advocacy, by Mónica Roa with Barbara Klugman (Women’s Link Worldwide, 2018) practical tool for advocates from all social justice fields who are interested in using the courts and understanding “strategic litigation”  160 pages, PDF online..

ANNOTATED BIBLIOGRAPHIES:

“The Right to Conscience” – An Annotated Bibliography.   (Toronto: International Reproductive and Sexual Health Law Program,
Faculty of Law, University of Toronto, 2018)  Conscience bibliography

Indications for abortion: new annotated bibliographies:

• Fetal Anomaly:  Annotated Bibliography on legal aspects of fetal anomaly and their implications for counseling, service delivery and abortion laws and policies (Toronto: International Reproductive and Sexual Health Law Program, Faculty of Law, University of Toronto, 2018).  Fetal anomaly bibliography
• Rape-related abortion:  Legal and policy dimensions of rape-related abortion services (Court decisions, Treaty resources, policy guidance and publications. ) (Toronto: International Reproductive and Sexual Health Law Program, Faculty of Law, University of Toronto, 2018).  Rape or Incest bibliography 
  
• Causal Violacion y/o incesto:  Selección de doctrina y jurisprudencia latinoamericanas sobre Causal violación y/o incesto en casos de aborto (Rape or Incest bibliography in Spanish)  (Toronto: El Programa Internacional de Derecho en Salud Sexual y Reproductivas Facultad de Derecho, Universidad de Toronto, 2018)

US-focused news, resources, and legal developments are available  on Repro Rights Prof Blog.   View or subscribe.

JOBS

Links to employers in the field of Reproductive and Sexual Health Law are online here
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Compiled by the Coordinator of the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca For Program publications and resources, see our website, online here. TO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.

 

REPROHEALTHLAW Updates – May 2018

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DEVELOPMENTS:

[Africa – Kenya]  J O O (also known as J M) v Attorney General & 6 others [2018] Petition No 5 of 2014, (High Court of Kenya at Bungoma).  [obstetric violence – abuse of pregnant women in healthcare system] 
Decision of March 22, 2018.

[Africa – Malawi, vagrancy] Mayeso Gwanda v. the State, Constitutional Case No 5. 2015  (High Court of Malawi. [successful human rights challenge involving an itinerant male vendor] Decision of January 10, 2017
— This decision cites the unreported case of Stella Mwanza and 12 Others v. Republic, Confirmation Criminal Case No. 1049 of 2007 (Malawi) [re 13 women arrested on streets after dark] discussed Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts  (Pretoria, Pretoria University Law Press (PULP), 2017), p. 127  PDF of book, 228 pages. Online edition

[Mexico] Suprema Corte de Justicia de la Nación, Segunda Sala [Supreme Court] 2018,  Amparo en Revisión 601/2017 (Ciudad de Mexico) April 4, 2018.  [Case of “Marimar”- raped minor should not have been denied abortion by hospital]   Decision in Spanish.   News report in English.

[Mexico] Suprema Corte de Justicia de la Nación, Segunda Sala [Supreme Court] 2018,  Amparo en Revisión 1170/2017 (Ciudad de Mexico) April 18, 2018.  [Case of Fernanda – public institutions must allow abortions to raped minor]  Decision in Spanish.     Same news report in English.

CALL FOR PAPERS
 “The Impact of Politics on Sexual and Reproductive Health and Rights,” for publication in Reproductive Health Matters, May 2019.  Submissions due October 31, 2018.
RHM Call for papers

CONFERENCE

V Latin American Congress on Reproductive Rights, Santa Marta, Colombia, November 1-3, 2018.    Congress website in Spanish.  Latin American Judges and Magistrates of the highest courts will gather to foster the inclusion of a gender perspective in judicial decisions regarding reproductive rights:  Synopsis in English.

Audio-visual resources from previous IV Latin American Conference, held in Lima Peru Nov 2-4, 2015, now published online, include many talks in Spanish, and some in English:
◊   Rebecca Cook, “Gender Stereotypes: Transnational Legal Perspectives,” (Nov. 3, 2015)   Video.     Slides
◊  Marge Berer, “Violence and Reproductive Rights.” (Nov. 3, 2015)  Video
◊   Joanna Erdman, “Violence against Women and Reproductive Rights: Revealing Connections.”  Nov. 2, 2015    Video.     Slides

SCHOLARSHIP:

Abortion Law Decisions online, a Table of Cases with links, recently updated.  English.   Spanish.

[abortion] “The Philippines: New post-abortion care policy” by Melissa Upreti and Jihan Jacob,  International Journal of Gynecology and Obstetrics 141.2 (May 2018): 268-275.  Abstract.     PDF online for 12 months.   Submitted text at SSRN.

“Abortion in Poland: politics, progression and regression,” by Julia Hussein, Jane Cottingham, Wanda Nowicka & Eszter Kismodi,  Reproductive Health Matters 26:52 (May 2018): 14-17.   Editorial online.

[conscience, Human Rights Committee, Ireland]:
“Sir Nigel Rodley’s Insights on the Feminist Transformation of the Right of Conscience,”  by Rebecca Cook,  Human Rights Quarterly 40.2 (May 2018): 255-259.   Abstract and Article.

[conscience, U.S.A.] “Divisions, New and Old — Conscience and Religious Freedom at HHS by Lisa H. Harris, New England Journal of Medicine 478.15 (April 12 2018): 1369-1371.   Article online.

[Ireland] “Conscientious Objection, Harm Reduction and Abortion Care,” by Ruth Fletcher, in: Mary Donnelly and Claire Murray eds.  Ethical and legal debates in Irish healthcare: Confronting complexities Manchester: Manchester University Press, 2016, ISBN: 978-0-7190-9946-5, Book details.     Abstract and Chapter online.

[Ireland] “Reproductive justice in Ireland: a feminist analysis of the Neary and Halappanavar cases” by Joan McCarthy, in: Mary Donnelly and Claire Murray eds.  Ethical and legal debates in Irish healthcare: Confronting complexities Manchester: Manchester University Press, 2016, ISBN: 978-0-7190-9946-5, Book details.   Abstract of Chapter.

[Ireland – medical abortion] “Empowerment and Privacy? Home Use of Abortion Pills in the Republic of Ireland,” by Sally Sheldon, Journal of Women in Culture and Society 43.4(Summer 2018): 823-849.   Abstract and Article.

[Malawi] “Adolescent sex and ‘defilement’ in Malawi law and society,” by Godfrey D. Kangaude 17 (2017) African Human Rights Law Journal 527-549.    Article online.   Abstract with other African resources.

[medical abortion]  “Medical abortion pills have the potential to change everything about abortion,” introduction by  Marge Berer and Lesley Hoggart to special issue of Contraception 97.2 (Feb 2018″ 79–81.  Sections on medical abortion potential, women’s experiences, pharmacy provision, role of health system and providers, and research agenda.   Table of Contents, Medical Abortion special issue.

[Uruguay, human rights]  “Legal barriers to access abortion services through a human rights lens: the Uruguayan experience,” by Lucía Berro Pizzarossa, Reproductive Health Matters 26.52 (2018): 1-8    Abstract and article.

US-focused news, resources, and legal developments are available  on Repro Rights Prof Blog.   View or subscribe.

NEWS:

German doctor will appeal 6000-euro fine for “advertising” abortions among other medical specialties on her website.  Comment by Stephanie Schlitt, “Criminal prohibition of abortion ‘advertising’ restricts information provision,” Brief comment.  Detailed comment.

Ireland:  May 25th 2018 Referendum voted to repeal article 40.3.3 “the eighth amendment” which had enshrined a ban on abortion.” Law reform expected.  Christina Zampas editorial in Irish Examiner: “Yes Vote would give hope to millions. . . “.     Irish Times newspaper analyzes results.

JOBS

Links to employers in the field of Reproductive and Sexual Health Law are online here

______________
Compiled by the Coordinator of the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca For Program publications and resources, see our website, online here. TO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.

Adolescent sex and “defilement” in Malawi law and society

Congratulations to Godfrey Dalitso Kangaude,  an LL.D. (doctoral) Candidate in the University of Pretoria’s Department of Private Law, who recently published his article on this challenging topic.  We are pleased to circulating this abstract.

GD Kangaude “Adolescent sex and ‘defilement’ in Malawi law and society” (2017) 17 African Human Rights Law Journal 527-549.  DOI link.    Article online. 

Abstract:  During colonisation, Malawi received a Western penal code, which included the “defilement” provision, restricting males from sexually accessing girls below a specified age. Countries that maintain colonial age of consent provisions, including Malawi, have uncritically assumed that these laws serve the purpose of protecting girls and children from harm. This article examines the fundamental assumptions underlying the development of sections 138 and 160B of the Malawian Penal Code, and their historical and sociocultural origins.  This article suggests that these provisions serve the interests of adults and not those of children. They are inherently heterosexist, promote gender-stereotypical meanings of sexuality and potentially stigmatise the normative development of sexuality in children. Sections 138 and 160B need to be reviewed and aligned with Malawi’s commitments to promote gender equality and sexual health and the rights of children.

Key words: childhood sexuality; child rights; Gender Equality Act, age of consent, Malawi Penal Code.

See also:
–A controversial decision from Kenya
Martin C.   v. Republic, Criminal Appeal No. 32 of 2015, April 26, 2016 (High Court of Kenya, at Malindi).  [Court held that the sexual relationship between adult man of 23 and girl of 14 is not “defilement” because she sought it.  Prisoner released.]  Decision online.

Godfrey Kangaude, “Adolescent Consensual Conduct,” and African case summaries in chapter 2 (“Children and Adolescents”) of:
Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts, ed. Godfrey D. Kangaude (Pretoria: PULP, 2017) 228 pages.
Flyer with Table of Contents.     Entire book online

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Posted by the Coordinator of the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca For Program publications and resources, see our website, online here. TO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.