What happened?
In this case, a 15-year-old girl CM needed a legal abortion following getting pregnant in December 2020, after a sexually abusive relationship with an older man. Having made her pregnant, the older man abandoned CM. CM’s uncle, who was taking care of her, saw that CM was worried about her future because of an unintended pregnancy, and her mental and physical health deteriorated. She wanted to access a legal termination of the pregnancy.
In March 2021, CM, accompanied by her uncle, went to the One Stop Centre at Queen Elizabeth Central Hospital (Hospital) to see if CM could get some medical help to end her pregnancy. But the clinician at the Hospital refused because they believed that this would be against the laws in the country. However, Section 243 of the Penal Code permits abortion in cases where the continuation of the pregnancy would endanger the life of the pregnant girl or woman.
Why did the CM take the matter to court?
CM and her biological brother HM were not happy with the decision of the hospital director. They wanted the court to examine the hospital’s decision and determine if it was in accord with the law. They also wanted clarification on whether a child survivor of sexual abuse could access legal abortion. Therefore, they applied to court to have the decision of the hospital reviewed, in a process technically known as ‘judicial review’. Judicial Review is a procedure where the court functions as a reviewer of a decision of a public institution, to determine whether it is lawful.
What outcome did CM expect?
CM expected that first of all, the court would find merit in her application, that the court would review the hospital director’s decision. There were critical issues to be determined about the meaning of Section 243 in a case where the pregnancy is unintended, unsupported and posing a risk to her life, survival and development. CM believed her case came under exception in Section 243 of the Penal Code, that is, she would get an abortion ‘to save her life.’ The court would not only affirm her legal right to get an abortion, but also compensate her for the injuries she suffered when she was denied an abortion. Beyond her individual and private interests, the case provided an opportunity for the court to give explain how the abortion law applies in cases of child survivors of sexual violence. In such cases, the pregnant child may experience mental and physical health challenges, and it was necessary to have clear guidance for health providers.
What was the decision of the court?
In his ruling, the Honourable Judge Mzondi Mvula examined the evidence CM had indeed gone to the Hospital where she underwent a medical examination which revealed that she was pregnant. However, the Judge did not find any evidence that CM asked for a medical intervention to terminate her pregnancy (para 3.1). For this reason, the Judge found that CM’s application did not bring to the court a decision made by the Hospital Director (through the attending clinician) refusing her termination of pregnancy. Therefore, the Judge decided that CM’s application for the court to review the hospital’s decision failed because there was no evidence of the hospital having made a decision against her in the first place. Further, the court believed CM had other ways to solve her problem, which was to get the man who impregnated her to support her pregnancy, or face the consequences for causing her to suffer mental and physical health challenges.
How did the court interpret the abortion law?
While the court did not grant the remedy that CM wanted, the court did express the opinion that the law permits abortion in cases where the pregnancy causes health problems or is a threat to the life of the girl. Specifically, the judge pointed out that mental and physical health are factors to be considered in determining whether the pregnancy poses a risk to the life of the pregnant woman. It would appear that the Judge was hinting that if a child survivor of sexual violence, did seek a termination of her pregnancy because it resulted in a high risk pregnancy, it would be legally permissible to terminate such pregnancy.
The point that the Court made here, which is critical, is that there is such a thing as lawful termination of pregnancy. Termination of pregnancy is not illegal, if the reason for termination is to prevent harm to the pregnant person. This opinion of the court aligns with the Ministry of Health’s Post Abortion Care Standards and Guidelines (PAC standards and guidelines) where it explains that:
The provider should reduce and avoid harm to the pregnant woman, maximise the benefits to her life, against the risks posed by continuing the pregnancy. If the provider is convinced that continuing pregnancy would endanger the life of the woman, he or she should provide Post Abortion Care (if the woman chooses after medical advice).
Is it not the duty of the hospital to inform the girl of the risk of carrying the pregnancy?
While the court did not believe it needed to address CM’s complainant because she did not request an abortion, the question one may raise is this: If a pregnant girl or woman goes to hospital, and following a medical examination, the health provider appreciates that the girl or woman faces a risk to her health, is it not the duty of the health provider to inform the woman or girl about the risk, and to further explain the available remedies the hospital could offer? Let us give a more concrete example: If the girl or woman has kidney disease, would the health provider not say anything but wait for the girl or woman to request for a termination? If the girl or woman suffers negative health consequences, would the health provider escape responsibility?
Nyale Institute believes that the Court could have realised that the girl was not the expert here, so that even if she were not to ask for the termination, it was incumbent upon the health provider to give her the necessary information about her situation. If the Hospital Director had made known to the girl the risk of carrying her pregnancy to term, the girl would have responded accordingly, either by affirming that she would take the risk, and carry on with the pregnancy, or choose to terminate the pregnancy. The Hospital Director should not avoid responsibility because he kept quiet. This is why the Section 20(1)(d) of Gender Equality Act mandates health providers to:
Impart all information necessary for a person to make a decision regarding whether or not to undergo any procedure or to accept any service affecting his or her sexual and reproductive health.
Nyale Institute believes that the Court could have recognised the duty of the Hospital Director to provide all the information about the pregnancy to the child including the risk to her health and life if she carried the pregnancy to term. The failure to disclose such information contributes to challenges we have outlined in a previous blog article.
Access to justice is an important condition for access to legal abortion
Nyale Institute is aware that abortion is a controversial topic and this is even more so when it is backed by criminal law. Because of the contradictions within the legal framework, on one hand the Gender Equality Act recognises access to safe abortion as a legal right, and on the other Penal Code provisions restrict abortion in a language that needs deciphering, it is difficult for both health providers and potential clients to appreciate the conditions in which abortion is legal or not legal. We sympathise with the Hospital Director for fearing to do anything but keep quiet and hope that by doing so, he avoids dealing with a child survivor’s high risk pregnancy.
However, we want to applaud CM for being the very first girl in Malawi to take this matter to court. Though the outcome of her application was not what she had expected, her case has inspired imagination and possibilities about reproductive justice for child survivors of sexual violence. We also thank the Honourable Judge Mzondi Mvula for crafting the ruling in a manner that enables a productive conversation around the lawfulness of abortion in Malawi.
Nyale Institute will continue to champion sexual and reproductive justice for child survivors of sexual abuse and violence in Malawi
