Abortion is not illegal but restricted in Zimbabwe

By Memory Pamella Kadau

Zimbabwe’s Termination of Pregnancy Act (TOP) provides a legal framework on when and how can women and girls access safe abortion services. The Act provides only three grounds under which pregnancy can be lawfully terminated in the country.  It further provides that pregnancies can only be terminated by a registered medical practitioner and authorized by a court order. However, these grounds are very narrow and result in a many women and girls seeking unsafe abortions every year which expose them to health complications and death. The article, will also draw comparison with jurisdictions like South Africa to show that Zimbabwe needs to amend its law to grant wider access to abortion for women and girls. These conversations become more urgent given a recent upsurge in the rape of girls as young as nine years getting pregnant and giving birth like the ‘Tsholotsho nine-year-old girl case’.

The law and abortion in Zimbabwe

As highlighted above abortion is regulated by the TOP Act of 1977, which perhaps was relevant at the time of inception but has today been overtaken by time and events. Currently, the law only provides for three grounds under which pregnancy can be terminated.

Firstly, abortion is guaranteed at law, if the pregnancy endangers the life of the woman and could result in permanent impairment to her physical health. In such instance the pregnancy can be lawfully terminated under certification of two registered medical practitioners who must certify that the termination is necessary and safe.

Secondly, abortion may be authorized when there is a risk that the child to be born will suffer from a physical or mental defect which are a serious risk to them. The physical or mental defect must be of such a nature that the child to be born will permanently and seriously be handicapped to ordinarily lead a meaningful life without excessive pain. This means that where the mental defect is likely to be temporary or deemed minor the abortion will not be authorized. In addition, the medical superintendent should not authorize abortion unless satisfied that two medical practitioners have examined the pregnant woman and certified the termination.

Thirdly, pregnancy maybe may be lawfully terminated when there is a reasonable possibility that the pregnancy was conceived as a result of unlawful intercourse. According to the TOP Act, unlawful intercourse is “rape, other than rape within a marriage, and sexual intercourse within a prohibited degree of relationship, that is to say incest. A court of law can determine that the pregnancy was conceived as a result of unlawful intercourse and grant an order to have it terminated. This section excludes women in marriage yet spouse rape is rampant and often results in pregnancy which a woman may not be prepared to carry. Statutory rape is also not permissible grounds for an abortion under TOP Act of 1977.

The law further provides that, no person is allowed to assist in the termination of pregnancy without legal authorization and no medical practitioner, nurse or any person employed in a hospital is allowed to assist with unauthorized termination of pregnancy. In addition, the TOP Act states that no person is allowed to receive or offer extra fees in connection with the termination of a pregnancy other than the prescribed fees paid to the institution.

All these provisions show how narrow Zimbabwe’s law on access to abortion is which leaves behind many women and girls needing the services.

Comparative analysis of TOP Act with South Africa

In South Africa, the principal law which governs termination of abortion is the Choice of Termination of Pregnancy Act which was passed in 1996 with the aim of reducing abortion related deaths in the country. The Act gives women the right to access abortion within the first 12 weeks of pregnancy regardless of their age or marital status. It stands as one of the most progressive liberal example of abortion laws globally. Compared to the Zimbabwean TOP Act, which limits access to abortion only to three grounds, South Africa is way ahead in terms of empowering women and girls to have a choice on when to have children. Since 1996, South Africa has recorded a significant decrease in morbidity for women who have accessed safe abortion, especially younger women. A review of South African national data shows that abortion mortality dropped by more than 90% between 1994 and 2001. The country also witnessed a rapid increase in women seeking termination services than under the previous law. It has also become easier for women to access post abortion care services in the country which increases their health and wellbeing. Zimbabwe’s policy makers need to learn from South Africa and see how increased access has guaranteed better sexual and reproductive health outcomes for women and girls.

Effects of existing legal framework

The rigid legal framework has resulted in proliferation of unsafe abortions across the county. According to a study by PLOS ONE organization in 2018 and Guttmacher in 2016 , about 66,800 abortions had been performed in the country. In 2019, the parliamentary portfolio committee on health and child care estimated that abortion stood as high as 80,000 cases per annum. Given the report rise in sexual activities among adolescent girls and women in general during the COVID19 lockdown period between March 2020 and February 2022, one can project that the current annual figure could be as high as 100,000 cases.

Over 90% of these abortions are done in unsafe backyard facilities which do not offer post abortion care (PAC) and often result in health complications and even death for women and girls. News agencies and non-governmental organizations (NGOs) have extensively reported on these ‘backyard’ unsafe abortions and these reports show that deaths resulting from the procedure a very high. The Zimbabwe Demographic Health Survey of 2015 show that maternal mortality rated in the country stands at 614 deaths per 100,000 live births and 30% of these are due to illegal abortions. Yet even all these figures could just be a tip of the iceberg as most of the ‘backyard’ abortions go unreported. Women and girls who find themselves with unwanted and unintended pregnancies and fail to fall into the narrow provisions of the TOP Act to access abortion resort to these desperate measures which violate their dignity.

It is clear from the foregoing that the effects of the narrow provisions of the TOP Act are resulting in violation of women and girls’ sexual and reproductive health rights. The Constitution of Zimbabwe in section 76, and international and regional conventions and declarations to which Zimbabwe is a state party to, all demand that the country respects, promote and protect the sexual and reproductive health rights of women. The current TOP Act falls short of this requirement and must be amended to allow more women and girls to access abortion, which is a basic health need.

 

 

 

 

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