Abortion is provided to save life according to the approved Ministry of Health guidelines
In Malawi, health providers are empowered to provide abortion care when the pregnancy risks the girl or woman’s life. The Ministry of Health clearly explains this position in the Standards and Guidelines for Post Abortion Care (PAC Guidelines). In Chapter 1 of the PAC Guidelines, the Ministry of Health describes Malawi’s legal framework beginning with the Constitution, which provides for the right to life, prohibits discrimination against women in the provision of health care, and affirms women’s rights, including sexual and reproductive health and rights. The PAC Guidelines recognise that the Gender Equality Act provides for women’s sexual and reproductive health and rights, including access to termination of pregnancy services. The PAC Guidelines refer to the Sexual and Reproductive Health and Rights Policy (2017 – 2022), which states that:
Abortion shall only be provided to the full extent of the existing national law, and guidelines shall be formulated to properly interpret the law.
The PAC Guidelines also recognize that the Penal Code Sections 149, 150, and 151, as read with Section 243, permit abortion to the extent that it is ‘for the preservation of the mother’s life’.
The PAC Guidelines then explain the conditions under which abortion is permitted. The Ministry of Health concludes Chapter 1 of the PAC Guidelines in the following words:
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).
Our worry about unclear guidelines for some risky pregnancies
The PAC Guidelines are not so clear for situations in which a girl is pregnant because of sexual assault, for instance, rape, and seeks to terminate the pregnancy. Is her life not at risk due to the circumstances of the pregnancy? However, when a health provider looks to the PAC Guidelines, no language in the document assures that a health provider who terminates the pregnancy of a girl does not offend the law. Considering termination of pregnancy is criminalised, even if the guidelines state that “if the provider is convinced that the continuing pregnancy would endanger the life of the woman”, they can provide abortion care, this is not at all reassuring. Further, the wording of the PAC Guidelines contributes to the ambiguity because it uses the term ‘post abortion care’, rather than abortion care. Health providers who opt not to provide abortion care to the raped girl, because they are not sure if the procedure is permitted under the law, cannot be blamed. Indeed, one Senior Chief relates a story in which she fought hard to have a health provider terminate the pregnancy of an 11-year-old girl. It took her a great deal of effort to convince the health provider to provide the life-saving services to the girl.
Yet, the question is straightforward
Is the 12-year-old pregnant because of rape eligible to access legal and safe abortion under the laws of Malawi or not? This should be a yes or no answer. There is no need to beat about the bush. Leaving this position unclear only creates precarious conditions, especially for the vulnerable girl, for instance, because she cannot afford to pay for private services available to those with the resources and connections. Yet termination of pregnancy by a trained provider using the approved scientific methods, in the early stages of the pregnancy, costs little and is very safe.
It’s not just about a health service but equality and social justice
If a girl is eligible for legal and safe abortion, justice demands that she be offered the service. The girl should not bear the brunt when the law, clinical and health service delivery protocols are unclear. It is the mandate of the Ministry of Health to ensure that clinical protocols for health providers are not ambiguous. Pregnancy resulting from sexual assault is common. Those who drafted the PAC Guidelines would have thought about it unless they deliberately left it vague.
If the Ministry of Health wanted to exclude access to legal abortion for survivors of sexual violence it would have been better if the PAC Guidelines unambiguously stated that ‘legal abortion is not available to girls and women whose pregnancy is due to sexual assault’ or something like that, because the very fact of leaving it unclear creates conditions for injustice, especially for the girl who has little power to enforce her rights. Social justice, therefore, demands that access to legal abortion for raped girls be explained in the PAC Guidelines not to leave room for doubt.
A call to action
Nyale Institute calls upon the Ministry of Health to clarify the question of access to safe and legal abortion for the girl whose pregnancy is due to sexual assault. We call upon stakeholders interested in the right to life, survival and development of the girl, such as the Malawi Human Rights Commission, to support this cause. Social justice demands that the clinical protocols be clear to ensure that health providers are appropriately guided to carry out their legal duties and obligations to enable the girl to enjoy her legal rights provided for by the Gender Equality Act and other laws.
(Mwana wa Mzako N’gwako Yemwe is a Chichewa proverb meaning treat any child as your own. This is the slogan for our call to social justice)
