“ That 12 year old girl was taken to our maternity clinics by a nun. Her face was blank as if she had no hope about the life.She was confused. It was only pain and anxiety embedded in the lines of her face.”
Bodhini Samarathunga, a medical officer, social activist and a dashing writer, said. Cases as such are not unfamiliar to the medical officers. They come across such incidents almost 365 days of an year. But, no matter how much they see similar incidents like that, they feel the same pain and the same fear about the future of such mothers, she added.
Parents of the girl had passed away so she was living with her grandparents when all the hell broke loose. She was raped (rape is the legal term) by a shop owner several times when she went to his shop to buy goods.
“The middle aged shop owner had given her gifts asking her not to tell anybody about what was going on. She had no sexual education so she did not have any idea what that man was doing to her and where it led her to. She was barely 12 years old. When her belly began to get bigger and bigger, the grandmother visited hospital with her and the things she went through unfolded afterward.”
The shop owner refuted the allegations against him. After Judicial Medical Officer’s investigations the girl was separated from the grandparents and was sent to an orphanage which was run by the nuns. The fetus had grown for 25 weeks inside her body when they recognized that she was pregnant.
“When she was in the hospital, days prior to giving birth, she was watching cartoons from the television in the ward gleefully. She laughed at the jokes cracked by those cartoon characters. Whenever I saw her, I got this feeling like a needle was going through my heart. The day she gave birth cannot be ever forgotten. We did not do a C-section operation on her. Assisting her to give a natural birth was the gynecologist's opinion. The way she screamed, the way the 12 year old girl withered from the labour pain, can you imagine such a situation? But we all were helpless. She did not want the baby, so the baby was sent to an orphanage. I do not know what they are doing or where they are living at the moment. But I can definitely tell this. Both of them must be suffering due to the cruel fate the society forced them to bear on.”
Medical termination of pregnancy under crucial circumstances.
It was reported in early this year that a special committee was seeking the cabinet approval to legalize termination of pregnancy in the instances of rape and incest, underage pregnancies (pregnancy occurring in a girl below 16) and serious fetal impairment.
For this purpose, the government sought to draft separate legislation as amendments to the Penal Code and to the Code of Criminal Procedure Act to provide for it, the media reported.
According to the Penal Code, currently, termination of pregnancy is considered a crime except in instances where the life of the mother is in danger due to the pregnancy.
Followings are the Penal Code Sections regarding termination of pregnancy.
Section 303 :
“Whoever voluntarily causes a woman with child to miscarry shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with both; and if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine.”
Section 304 :
“Whoever commits the offence defined in the last preceding section without the consent of the woman, whether the woman is quick with child or not, shall be punished with imprisonment of either description for a term which may extend to 20 years and shall also be liable to fine.”
Section 305 :
“Whoever, with intent to cause the miscarriage of a woman with child, does any act which causes the death of such woman, shall be punished with imprisonment of either description for a term which may extend to twenty years, and shall also be liable to fine.”
Section 306 :
“Whoever, before the birth of any child, does any act with the intention of preventing that child from being born alive, or causing it to die after its birth, and does by such act prevent that child from being born alive, or causes it to die after its birth, shall, if such act be not caused in good faith for the purpose of saving the life of the mother, be punished with imprisonment of either description for a term which may extend to ten years, or with fine, or with both.”
After considering the recommendations of the committee appointed by the government regarding the matter, the Health Minister and the Justice Minister presented a Joint Cabinet Paper in August 2017.
The Joint Cabinet Paper asked the permission for medical termination of pregnancy for two specific circumstances. The Cabinet approved the Joint Paper, and therefore, it will hopefully be presented to the parliament and will be passed in near future.
Dr. Kapila Jayaratne, the President of the Sri Lanka Perinatal Society said that according to these proposed Amendments to the Penal Code, medical assistant will be given to those who get pregnant as a result of a rape and to those who have serious foetal impairment to terminate the pregnancy.
“The special committee compromised with several Consultant Medical Officers presented these recommendations with a consideration of mental trauma the rape victim and parents of children who suffer from serious impairments have to go through. Actually, it is a right of mothers. But if anyone does not want to terminate the pregnancy in these conditions they have the right to avoid it. No one will be forced to perform the termination,” Dr. Jayaratne said.
He also noted that no one will be allowed to misuse these Amendments. He elaborated, “Medical assistance for the termination of pregnancy should only be performed in a government hospital. To perform, the approval of two gynecologists should be there. Therefore, no one will be allowed to misuse these new laws.”
Why these Amendments are so important?
Following an intellectual debate on the topic ‘Should Abortion be Legalized?’ held at the Health Education Bureau in May, 2016, the Health Ministry revealed that over 658 abortions are performed in Sri Lanka on a daily basis.
Expressing his views during the discussion, Consultant Obstetrician and Gynecologist Dr. Mangala Dissanayake said the arrangements should be made to legalize abortion on specific reasons decided by a panel of doctors.
He pointed out, “Sri Lankan women seek help of those who call themselves 'doctors' to eliminate unwanted pregnancies and face post-abortion complications, sometimes even death. 10 to 12 percent of maternal deaths occur due to the complications such as excessive bleeding and infections after unsafe and illegal abortions. Furthermore, 20 to 50 percent of women who undergo abortions develop various short term and long term complications, such as mental problems and in some instances commit suicide.”
According to Dr. Chithramali de Silva, Health Ministry Mental Health Unit Director, around 24,000 underage pregnant mothers are reported in Sri Lanka annually.
Speaking to Ceylon Today, Dr. De Silva noted that the poverty, domestic abuse, excessive tiredness, malnutrition are the main reasons for these alarming statistics.
“When a woman gets rape and then gets pregnant as a result of it she faces a severe mental trauma. The depressed situation she has to go through, the battle she has to fight with all the odds coming from the society, these are damaging for both the mother and the fetus. Her entire life collapses when a situation like this occurs. Furthermore, there are some serious impairments can be seen in fetuses such as brain damages, neuro system damages and genital impairments etc.. During such situations, both parents have to go through an unbearable pain. Children like these cannot live for so long. Some of them die at the time of the birth, some survive for minutes, hours or weeks. So the parents have to bear the vision of the child dying in front of their eyes. That is why these Amendments can be seen as a progressive move,”Dr. De Silva added.
Speaking to Ceylon Today, Director, Public Affairs, Policy and Advocacy of Family Planning Association Madhuri Dissanayake said that this move should have been taken earlier.
“Everyday, we see so many women are suffering due to this discrimination. Even though men and women should be treated equal, when it comes to a woman’s body, there are so many rules imposed by both the society and the law, which she has to deal with. So I think introducing these Amendments to the Penal Code is a long awaited move. These step is not sufficient to ensure women’s rights. But this is a good move and this should have been taken earlier.”
Dissanyake also said that the country cannot go forward with strict laws which do not suit to the present context. There are situations in which the gynaecologists cannot allow the patients to terminate the pregnancy due to the current law, even if there is a foetal impairment. Furthermore, the life of the mother should be preserved and the mother should be given a choice. Otherwise, the women will go after illegal terminations and put their lives in a grave risk. When imposing a law such kinds of things should be considered, she added.
Fights and hurdles
In 1995, there was an attempt to introduce some Amendments to the Penal Code regarding the termination of pregnancy. However, due to the protests carried out by the certain groups, especially the religious leaders, the proposed Amendments had to be folded.
Again, in 2011, Minister of Child Development and Women’s Affairs, Tissa Karaliyadda, raised the need for abortion law reform in parliament. A draft bill, prepared by the Law Commission in consultation with the Ministry of Child Development and Women’s Affairs and the Ministries of Health and Justice was presented to the parliament but it did not get passed.
Now this time, after holding debates and discussions for more than three years, also the Amendments are yet to be approved.
The Catholic Bishop’s Conference (CBCSL) is vehemently protesting against the government’s attempts regarding relaxing laws imposed on terminating pregnancies.
Issuing a statement the CBCSL asserted that they do not approve any form of abortion in the country. No one has the right to tamper with human life even by way of an exception. Justice should not be compromised on any account especially when it is the question of safeguarding the right to life of the unborn child. One cannot safeguard one’s rights at the expense of violating another’s right, the CBCSL said.
Speaking to Ceylon Today, Asgiriya Chapter General Secretary Dr. Medagama Dhammananda Thera said that as Buddhists they cannot agree with termination of pregnancies. However, since it is a decision of the government which has taken based on several social problems, they do not have a wish to protest against the proposed Amendments, the Thera said.
“About three months ago, there was a discussion with the participation of all the religious leaders regarding these Amendments. The government and the doctors who were there presented their opinions as to why they want to relax the law on this. We inform them that as Buddhist religious leaders we cannot agree with the termination, but the government can continue its wish,” the thera said.
The thera also said, “Islamic religious leaders said in the meeting that there are several stages in the growing of a fetus. So, when relaxing laws on the matter, Islamic religious leaders said that the authorities should consider about such stages.’’
This article was originally published in Ceylon Today on 17 September 2017.
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