Women and Justice: Topics: Abortion and reproductive health rights


Offenses Against the Person Ordinance (1924)

Abortion and reproductive health rights

Section 47A of the ordinance regulates abortion. Abortion is legal in only a few situations: (i) continuing the pregnancy would risk the health of the woman; (ii) there is a substantial risk that the child would be born with a physical or mental abnormality, making it severely handicapped; (iii) the woman is younger than 16 years; or (iv) the woman is the victim of unlawful sexual intercourse. Section 45 forbids bigamy and polygamy. 

Criminal Code Act (1924)

Abortion and reproductive health rights, Domestic and intimate partner violence, Female genital mutilation or female genital cutting, Gender-based violence in general, Sexual violence and rape, Stalking, Statutory rape or defilement

The Criminal Code Act 1924 prohibits forced and unauthorized abortions and assaults on pregnant women, sexual violence, stalking, domestic violence, and female genital mutilation. The termination of a pregnancy by a person other than a medical practitioner or the pregnant woman herself is a crime at any stage of the pregnancy. Termination carried out without the pregnant woman’s consent is a crime if it is performed intentionally or recklessly, regardless if any other harm is inflicted on the woman. Any person who unlawfully assaults a woman, knowing that woman is pregnant, is guilty of assault on pregnant woman under section 184A of the Act. Any person who has sexual intercourse with another person without that person's consent is guilty of rape under section 185 of the Act. “Sexual intercourse” is defined as the penetration of a person’s vagina, genitalia, anus or mouth by a penis, the penetration of a person’s vagina, genitalia or anus by another body part or object, or the continuation of either act of penetration. “Consent” means free agreement, and does not include, among other things, if a person does not say or do anything to communicate consent.  Additionally, it is a crime to have sexual intercourse with a person under the age of 17 according to section 124 of the Act. A person is guilty of stalking if they, among other things, follow, surveille, threaten, direct abusive acts towards, communicate, send or publish offensive material, or contact another person or a third person, with intent to cause the another person physical or mental harm, including self-harm or extreme humiliation or to be apprehensive or fearful under section 192 of the Act. Under section 170A of the Act, a person commits persistent family violence in relation to another person with whom the person is, or has been, in a family relationship is guilty of persistent family violence when the accused has committed unlawful family violence on at least three occasions. Family violence includes, among other things, acts of physical, psychological and economic abuse, with the specific definitions set out in the Family Violence Act 2004. Under section 178A, any person who performs female genital mutilation on another person is guilty of a crime, regardless of custodial consent. Removing or making arrangements to remove a child from Tasmania with the intention of having female genital mutilation performed on the child is also a crime.

Reproductive Health (Access to Terminations) Act (2013)

Abortion and reproductive health rights

The Act allows abortion by a medical practitioner up to 16 weeks of pregnancy with the woman’s consent. After 16 weeks, pregnancy may be terminated if two medical practitioners reasonably believe the continuation of pregnancy would involve greater risk to the mother’s physical or mental health than termination. At least one of the medical practitioners must specialize in obstetrics or gynaecology. In assessing the physical or mental health, the practitioners must consider the woman’s physical, psychological, economic, and social circumstances. A medical practitioner is not required to perform an abortion unless it is necessary to save the life of a pregnant woman or prevent her serious injury, and a nurse and midwife are required to assist in an emergency. However, a medical practitioner must provide the full range of pregnancy options to a woman. The Act also established “access zones” by criminalising interference, intimidation, recording, and similar behaviour within a radius of 150 meters from abortion clinics.

Nigeria Penal Code Act (1960)

Abortion and reproductive health rights, Domestic and intimate partner violence, Gender discrimination, Sexual violence and rape, Statutory rape or defilement

The Penal Code applies to the northern states of Nigeria. Section 55(1)(d), subject to customs that have been recognized as lawful, allows a husband to “correct[] his wife” as long as it does not amount to “grievous hurt.” Section 55(2) goes on to state that the correction must be reasonable in kind or degree with regards to the age, physical, and mental conditions of the person being corrected. Grievous hurt is defined in section 241 as “(a) emasculation; (b) permanent deprivation of the sight of an eye, of the hearing of an ear or the power of speech; (c) deprivation of any member or joint; (d) destruction or permanent impairing of the powers of any member or joint; (e) permanent disfiguration of the head or face; (f) fracture or dislocation of a bone or tooth; (g) any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain or unable to follow his ordinary pursuits.” The law concerning abortion is found in sections 232. Referenced in the law as the causing of a miscarriage, abortion is only legal to save the life of the mother. Any person, including the mother, can be guilty of the offense and will be punished with up to 14 years in prison, a fine, or both. Sections 233-235 discuss the causing of a miscarriage intentionally or unintentionally through acts against the mother. These offenses also carry a penalty of imprisonment, fines, or both. Section 282 discusses rape and specifies that sexual intercourse by a man with his wife is not rape if she has gone through puberty.

Criminal Code Act (1990)

Abortion and reproductive health rights, Gender discrimination, Sexual violence and rape

The Criminal Code applies to the southern states of Nigeria. The Criminal Code Act distinguishes between the treatment of assault on men and assault on women, with Chapter 29 (Sections 351-356) addressing “Assaults” and Chapter 30 (Sections 357-362) addressing “Assaults on Females: Abduction.” Notably, indecent assault on a man is considered a more serious offense and carries a higher sentence than does indecent assault on a woman. Under Section 353, “[a]ny person who unlawfully and indecently assaults any male person is guilty of a felony, and is liable to imprisonment for three years.” In contrast, under Section 360, “[a]ny person who unlawfully and indecently assaults a woman or girl is guilty of a misdemeanor, and is liable to imprisonment for two years.” Rape is defined in section 257. It is defined as “unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of harm, or by means of false and fraudulent representation as to the nature of the act, or, in the case of a married woman, by personating her husband.” Abortion is criminalized by sections 228-230. Abortion is defined in Section 228 as an attempt to procure a miscarriage. A mother trying to cause her own miscarriage is liable for imprisonment for seven years, while anyone who administers to her a poison or otherwise induces a woman’s miscarriage is liable for imprisonment for 14 years, and anyone who supplies or obtains any item with the knowledge of its intended use to cause an abortion is liable for imprisonment for three years. Sections 228-230. The laws derive culpability from intent and apply regardless of whether the woman is actually pregnant.

Penal Code Act (2010)

Abortion and reproductive health rights, Sexual violence and rape, Statutory rape or defilement

The Penal Code prohibits abortion, rape, sexual contact with minors, indecent assault, incest, and bigamy outside of customary law. Abortion is an offence pursuant to the Penal Code Act. Only a registered medical practitioner may terminate a pregnancy if it is necessary to prevent significant harm to the woman’s health, the fetus will be severely disabled, or the woman became pregnant through incest or rape. An adult who has sexual intercourse with a child, defined as under 18 years old, commits an offence and the consent of the child is irrelevant. It shall be defence for this crime if the adult can prove that he or she had reasonable grounds to believe, and did so believe, that the child had attained the age of 18 years.

Penal Code 2014: Lei nº 35/2014 (2014)

Abortion and reproductive health rights, Domestic and intimate partner violence, Sexual violence and rape

The Code defines certain crimes and their penalties. The Code includes provisions defining and prohibiting sexual assault and domestic violence. The Code legalizes abortions performed within 12 weeks of gestation. The Code also eliminates attenuating circumstances previously associated with the crime of rape, such as the possibility of acquittal in cases where the perpetrator married the victim. In addition, the Code decriminalizes prostitution.

Mutterschutzgesetz (Maternity Protection Act) (1979)

Abortion and reproductive health rights, Employment discrimination, Gender discrimination

Pregnant employees are prohibited from working during the eight-week period prior to giving birth and the eight-week period after giving birth. During this period, the mother is entitled to receive maternity pay, which is calculated as the employee’s average earnings during the 13 weeks prior to the prohibition of work. After the prohibition period, women may take an additional period of maternity leave, up to two years after the birth of the child. During this period, a mother (or father, if he has taken paternity leave, although both parents may not take leave concurrently) will not receive remuneration through her (or his) employer, although the parent taking leave may withdraw child allowance through social insurance during this time.  Pregnant employees and parents on maternity or paternity leave may not be terminated from employment during that time and for a period of four weeks after returning to work.  The Act also provides regulations for the type of work pregnant women, women who are breastfeeding, and women who have recently given birth may do (i.e., prohibition of certain physical work and manual labor, handling of chemicals, work where the woman must sit or stand for long periods with no break) and regulations regarding the times pregnant and breastfeeding employees may work (i.e., must not work between the hours of 8 p.m. and 6 a.m., nor Sundays or public holidays).

Gesamte Rechtsvorschrift für Fortpflanzungsmedizingesetz (Reproductive Medicine Act) (1992)

Abortion and reproductive health rights

Medically assisted reproduction is permissible only to married couples, or those in a registered partnership or cohabitation.  Further, it is only permitted to the couple if certain difficulties in conceiving exist, such as (i) all other possible or reasonable treatments to induce pregnancy through sexual intercourse are unsuccessful or hopeless; (ii) pregnancy through sexual intercourse would expose the spouse or partner to a serious risk of transmitting a serious infectious disease; (iii) the couple is two women living in a registered partnership; or (iv) for certain couples where there may be difficulty becoming pregnant or giving birth, or giving birth to a child with a hereditary disease (which would require the child be kept alive through constant use of modern medical technology, or has severe brain damage or severe pain that cannot be treated) due to genetic dispositions.  Surrogacy is not permitted Austria because medically assisted reproduction is only permissible within a marriage or registered partnership or cohabitation, and only the ova and the semen of the spouses, registered partners, or cohabitants may be used. There are two exceptional circumstances in which a third party’s genetic material may be used for medically assisted reproduction: (i) the semen of a third person may be used if the spouse, registered partner or cohabitant is not capable of reproduction, or if the couple is two women in a registered partnership; or (ii) the oocyte of a third person may be used if a woman, younger than 45, whom the pregnancy will be induced is otherwise not able to reproduce.

Decreto Lei No 2.848 (1940)

Abortion and reproductive health rights, Gender discrimination

Under this law it is illegal to kill a child during pregnancy, during childbirth, or shortly afterwards. Under Article 124 to provoke abortion in itself or to allow others to provoke it, is illegal. Under Article 125 to proceed with abortion, without the consent of the pregnant woman is illegal. It is illegal under Article 126 to provoke abortion with the consent of the pregnant woman. Brazilian law only allows abortion if the woman’s life is at risk, if the pregnancy resulted from rape, or if the foetus has an anencephaly. However, the issue of legalizing abortion has been taken to the Supreme Court and may be reformed soon.

Lei Nº 9.029 (1995)

Abortion and reproductive health rights, Employment discrimination, Gender discrimination

This law prohibits any discrimination that is based upon gender, race, colour, marital status, family status or age. Article 1 prohibits any discriminatory and limiting practice for the effect of access to employment, or their maintenance, by reason of sex, origin, race, colour, marital status, family situation or age (except in the protection of the child). Article 2 prohibits any discriminatory practices such as i) requiring a test, examination, skill, award, attestation, declaration or any other procedure concerning sterilization or pregnancy, ii) the adoption of any measures, at the initiative of the employer that constitute induction, promotion of birth control. The Act provides for the detention of one to two years and a fine.

Offences Against the Person Act (2010)

Abortion and reproductive health rights, Trafficking in persons

The Offences against the Person Act lists acts recognized in law as punishable offences and details the ways in which the law deals with the offenders under the said acts. Child stealing is recognized as a felony and any person convicted for child stealing shall be imprisoned for a term not exceeding seven years. Kidnapping is recognized as a felony and any person convicted shall be liable to imprisonment for life. Attempts to procure abortion (by virtue of the pregnant woman unlawfully administering any substances to terminate her pregnancy by whatsoever means) is recognized as a felony and shall be liable for imprisonment for life. Infanticide (the act by which a woman willfully causes the death of her child under the age of twelve months) is a punishable offence recognized as the offence of manslaughter of a child.

Schweizerisches Strafgesetzbuch/Swiss Penal Code, Articles 118 and 119: Illegal Abortion and Legal Abortion (2019)

Abortion and reproductive health rights

Art. 118 provides for criminal penalties of imprisonment for not more than five years or a monetary penalty for any person who terminates a pregnancy with the consent of the pregnant woman or incites or assists a pregnant woman to terminate her pregnancy without the requirements of Penal Code Art. 119 being met. Article 118 also provides for (1) imprisonment from one to 10 years for any person who terminates a pregnancy without the consent of the pregnant woman, and (2) imprisonment for not more than three years or a monetary penalty for any woman who has her pregnancy terminated or otherwise participates in the termination of her pregnancy following the end of the twelfth week and without the requirements of Penal Code Art. 119 being met. Article 119 provides the requirements for legal abortion. The termination is, in the judgment of a physician, necessary in order to be able to prevent the pregnant woman from sustaining serious physical injury or serious psychological distress. The risk must be greater the more advanced the pregnancy is, or the termination must be performed (1) at the written request of a pregnant woman within 12 weeks of the start of the woman’s last period, (2) by a physician who is licensed to practice his profession, and (3) the woman claims that she is in a state of distress. The physician must have a detailed consultation with the woman prior to the termination and provide her with appropriate counsel. If the woman is incapable of judgment, the consent of her legal representative is required. The statute directs the Swiss Cantons to designate the medical practices and hospitals that fulfill the requirements for the professional conduct of procedures to terminate pregnancy and for the provision of counsel. Unofficial English translation available here.

禁止非医学需要的胎儿性别鉴定和选择性别人工终止妊娠的规定 (Provisions for the Prohibition of Non-Medical Needs for Fetal Sex Determination and Manual Termination of Pregnancy)

Abortion and reproductive health rights

The Provisions were adopted to implement the basic national policy of family planning, i.e. the “one-child policy” and to keep the sex ratio of the birth population within the normal range. Article 3 prohibits identifying the sex of the fetus for non-medical needs and to manually terminate the pregnancy because of the gender of the fetus, except for approval from the health administrative department or the family planning administrative department. Article 7 provides that if it is necessary for non-medical needs to terminate mid-term pregnancy (more than 14 weeks), an approval and corresponding certificate must be obtained from the family planning administrative department of the county-level people’s government, the sub-district office or the township people’s government. Article 7 further provides that if the fertility service certificate has been obtained and the pregnancy is terminated, the involved person shall be disciplined and educated by the family planning administrative department of the township people’s government, the sub-district office, or the county-level people’s government. The application for another birth shall not be approved until the facts are confirmed.



中华人民共和国人口与计划生育法 (Law on Population and Family Planning) (2015)

Abortion and reproductive health rights

The Law on Population and Family Planning was adopted by the National People’s Congress on December 29, 2001 and amended on December 27, 2015.  This law stipulated the national policy popularly known as the “one-child” policy. It was amended in 2015 to allow and encourage each couple to have two children. Before the amendment, Article 18 provided that the State encourages citizens to marry and bear a child at a later age, and advocates one child for each couple, except in certain conditions prescribed by laws and regulations. As a result of the amendment, Article 18 provides that the State encourages citizens to have two children. Before the amendment, Article 27 provided that couples who bear only one child voluntarily shall be issued the Honor Certificate and enjoy the awards for parents of only one child. Article 41 provides that a citizen who bears children in violation of Article 18 shall pay the social upbringing fines according to law.



中华人民共和国妇女权益保障法 (Law on the Protection of Women's Rights and Interests) (2005)

Abortion and reproductive health rights, Domestic and intimate partner violence, Gender discrimination, Property and inheritance rights

The Law on the Protection of Women’s Rights and Interests was adopted by the National People’s Congress on April 3, 1999 and amended on August 28, 2005. This Law stipulates that women have equal rights with men “in all aspects of political, economic, cultural, social and family life.” It also establishes the State’s responsibility to prevent domestic violence. Article 1 provides that “this Law is formulated to protect women’s lawful rights and interests, promote equality between men and women and allow full pay to women’s role in socialist modernization.” Article 7 provides that “[t]he All-China Women’s Federation and women’s federations at various levels shall, in accordance with the laws and charter of the All-China Women’s Federation,” uphold women’s rights and protect the rights and interests of women. Article 12 provides that the State shall “actively train and select female cadres” and “pay attention to the training and selection of female cadres of minority nationalities.” Article 23 provides that “[w]ith the exception of the special types of work or post unsuitable to women, no unit may, in employing staff and workers, refuse to employ women because of sex or raise the employment standards for women.” Article 23 also provides that “[t]he labor (employment) contract or service agreement shall not contain restrictions on her matrimony and child-bearing.” Articles 24 and 25 stipulate equal pay and equal opportunity for promotion for men and women. Article 26 provides that all units shall “protect women’s safety and health during their work or physical labor, and shall not assign them any work or physical labor not suitable to women,” and that “[w]omen shall be under special protection during menstrual period, pregnancy, obstetrical period and nursing period.” Article 27 provides that “[n]o entity may, for the reason of matrimony, pregnancy, maternity leave or breast-feeding, decrease a female employee’s wage, dismiss her or unilaterally terminate the labor (employment) contract or service agreement.” Article 45 prohibits husbands from applying for a divorce “within one year after childbearing or within 6 months after termination of pregnancy” of a woman. Article 46 prohibits domestic violence. Article 51 provides that “[w]omen have the right to child-bearing in accordance with relevant regulations of the state as well as the freedom not to bear any child.”


1992年4月3日,全国人民代表大会通过了中华人民共和国妇女权益保障法并于2005年8月28日对此法进行了修正。本法规定妇女在政治的、经济的、文化的、社会的和家庭的生活等各方面享有同男子平等的权利。本法规定了国家预防和制止家庭暴力的责任。第一条阐述了“为了保障妇女的合法权益,促进男女平等, 充分发挥妇女在社会主义现代化建设中的作用,根据宪法和我国的实际情况,制定本法。”第七条规定,中华全国妇女联合会和地方各级妇女联合会依照法律和中华全国妇女联合会章程,代表和维护各族各界妇女的利益,应做好维护妇女权益的工作。第十二条规定, 国家积极培养和选拔女干部,并有适当数量的妇女担任领导成员, 国家重视培养和选拔少数民族女干部。第二十三条规定,各单位在录用职工时,除不适合妇女的工种或者岗位外,不得以性别为由拒绝录用妇女或者提高 对妇女的录用标准。第十三条还规定,劳动(聘用)合同或者服务协议中不得规定限制女职工结婚、生育的内容。第二十三和二十四条规定了男女同工同酬和晋升、晋级等方面男女平等。第二十六条规定,任何单位均应根据妇女的特点,依法保护妇女在工作和劳动时的安全和健康,不得安排不适合妇女从事的工作和劳动,妇女在经期、孕期、产期、哺乳期受特殊保护。第二十七条规定任何单位不得因结婚、怀孕、产假、哺 乳等情形,降低女职工的工资,辞退女职工,单方解除劳动(聘用)合同或者服务协议。第四十五条规定女方在怀孕期间、分娩后一年内或者终止妊娠后六个月内,男方不得提出离婚。第四十六条禁止家庭暴力。第五十一条规定 妇女有按照国家有关规定生育子女的权利,也有不生育的自由。

Termination of Pregnancy Act (1977)

Abortion and reproductive health rights

if the continuation of the pregnancy is a serious threat to the mother’s health; (iii) if there is a serious risk that, if the child is born, it will suffer from a physical or mental defect that will cause the child to be severely disabled; (iv) where the pregnancy is a result of unlawful intercourse. Unlawful intercourse includes rape (this does not include marital rape), incest and mental handicap. However, a legal abortion can only be performed by a medical practitioner in a designated institution with the written permission of the superintendent of the institution. In cases where the mother’s life is in danger, the superintendent will not give permission until they have two different medical opinions regarding the danger to the mother. In circumstances of rape/incest, the superintendent must give permission after he receives written confirmation from a magistrate that the woman complained about the rape or the incestuous conduct. Contravention of the act by a medical practitioner in terminating a pregnancy or superintendent in providing permission not in accordance with the TPA constitutes an offense for which they could be liable for a fine not exceeding USD 5000, and/or to imprisonment for a period not exceeding five years.

Code of Virginia: Jurisdiction; Consent for Abortion (Va. Code § 16.1–241(W))

Abortion and reproductive health rights

This Virginia law provides the judges of the juvenile and domestic relations district court jurisdiction over petitions filed by a juvenile seeking judicial authorization for a physician to perform an abortion if a minor elects not to seek permission from an authorized person.  This statute further specifies that after a hearing, a judge can issue an order authorizing a physician to perform an abortion, without the consent of any authorized person, if the judge finds that (i) the minor is mature enough and well enough informed to make her abortion decision, in consultation with her physician, independent of the wishes of any authorized person, or (ii) the minor is not mature enough or well enough informed to make such decision, but the desired abortion would be in her best interest.

Code of Virginia: Abortion (Va. Code § 18.2 et seq.)

Abortion and reproductive health rights

Under Virginia law, it is a Class 4 felony to cause destruction of a unborn child, abortion, or miscarriage through medical procedure, drugs, or other means. There is an exception for physicians who are licensed by the Board of Medicine to practice medicine and surgery, to terminate a pregnancy or assist in performing an abortion or causing a miscarriage during the first trimester of pregnancy, among other exceptions.  Informed written consent is required for an abortion under Virginia law, subject to civil penalties.  It is also a Class 3 misdemeanor to encourage an individual to have an abortion prohibited by Virginia law.

Abortion and Sterilization Act (1975)

Abortion and reproductive health rights, Forced sterilization

The Abortion and Sterilization Act (the “Act”) was adopted from South Africa and prohibits abortions, except in extreme circumstances where either: (i) the mother’s life is in danger; (ii) not having an abortion would constitute a serious threat to the mother’s mental health; (iii) there is a serious risk that the child will be born with physical and/or mental defects; or (iv) the child is a product of rape or incest. It also criminalizes performing abortions, except in the circumstances listed above. Finally, the Act states the circumstances in which sterilizations may be performed, including on people incapable of consent. 

Alabama Code Title 26. Infants and Incompetents § 26-21-4 (2014)

Abortion and reproductive health rights

Since 1987, Alabama has had a judicial bypass law, which allows pregnant minors to obtain a court’s permission to have an abortion without parental consent. In 2014, the Alabama legislature passed House Bill 494 to amend the law. The original judicial bypass statute provided for an ex parte hearing with only the judge, the minor, and her attorney present. The 2014 amendments added to the proceedings parties who are permitted or required to “examine” the minor and represent the interests of the unborn child, the state, and the minor’s parents.  It would have also allowed the appointment of a guardian to represent the interests of the fetus. The District Court of the Middle District of Alabama found these amendments unconstitutional and severed them from the judicial bypass law in Reproductive Health Services v. Marshall (2017).

Código Penal (Penal Code) (2018)

Abortion and reproductive health rights, Domestic and intimate partner violence, Female genital mutilation or female genital cutting, Forced and early marriage, Gender-based violence in general, LGBTIQ, Sexual harassment, Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

Under section 142 (Crimes against people) of the Portuguese Penal Code, abortion is permitted if performed by a doctor and in the following scenarios: (1) risk of death or grave physical or mental harm to the mother; (2) the fetus is in risk of grave illness or malformation, up to the 24th week of pregnancy; (3) pregnancy was caused by rape or sexual assault, up to the 16th week of pregnancy; (4) by the mother’s choice, up to the 10th week of pregnancy. Article 118 provides that the statute of limitations on crimes of sexual violence and female genital mutilation against minors do not expire until the victim is at least 23 years old. Prostitution is not considered a crime in Portugal. However, the economic exploitation of prostitution by third parties is considered a crime under the Penal Code. A homicide that reveals “especial censurabilidade ou perversidade” (special censorship or perversity) is punishable with 12 – 25 years imprisonment. These special circumstances include a current or former spousal relationship between the perpetrator and victim, a sexual motive, and hate crimes including those based on sex, gender, sexual orientation, and gender identity. Article 144a bans female genital mutilation and imposes a prison sentence of two to 18 years. Articles 154b, 159, and 160 ban forced marriage, slavery, and human trafficking, respectively. Article 163 bans sexual coercion, which carries a sentence of one to eight years for coercing a significant sexual act. Article 164 punishes “violação”, which is forcible intercourse, with imprisonment for one to six years.

Código penal (Penal Code) (1999)

Abortion and reproductive health rights, Gender discrimination, Sexual violence and rape, Statutory rape or defilement

Chapter VI of Title 8 (Crimes against Life and Physical Integrity) delineates the circumstances under which abortion is illegal and establishes the penalties performing illegal abortions. Pursuant to Article 267 of the Criminal Code, anyone who, without complying with public health regulations established in respect of abortions, performs an abortion or in any way destroy the embryo, with the consent of the pregnant woman, is subject to a penalty of imprisonment for three months up to one year or a fine of 100 to 300 cuotas. If an abortion is performed (1) for profit, (2) outside of official institutions or (3) by a person that is a physician, such person is subject to an increased punishment of imprisonment for two to five years. Pursuant to Article 268, an individual who purposefully destroys the embryo (a) without using any force or violence on the pregnant woman, but without her consent, is subject to two to five years’ imprisonment or (b) with the use of any force or violence on the pregnant woman, is subject to three to eight years’ imprisonment. If concurrently with the occurrence of (a) or (b), any of the circumstances described in (1), (2) or (3) also exist, the punishment is increased to imprisonment for four to ten years. If a pregnant woman dies as a result of any of the above actions, the offending person is subject to imprisonment for a period of five to twelve years. Articles 270 and 271, respectively, prescribe the punishments for those who, without intending to do so, cause an abortion and for those who prescribe any abortion-inducing substance to destroy the embryo.

Chapter I of Title XI covers crimes against the normal development of sexual relations. Article 298 prescribes a penalty of four to ten years imprisonment for anyone who rapes a woman (either through vaginal intercourse or contra naturam) if during the criminal event any of the following circumstances occurs: (a) use of force or sufficient intimidation in order to achieve the goal or (b) if the victim is in a mentally disturbed state or suffers from temporary insanity, or the victim is deprived of reason or sense for any reason, or unable to resist, or lacks the ability to understand the consequences of her actions or to conform her conduct. Article 298 prescribes a term of imprisonment of 7 to 15 years if (a) the event is carried out with the participation of two or more persons, (b) if the perpetrator dresses up in military uniform or purports to be a public official, in each case, to facilitate consummating the act or (c) if the victim is over 12 and under 14 years of age. Finally, the Article prescribes a term of imprisonment of 15 to 30 years or the death penalty if (a) the event is carried out by a person who has previously been sanctioned for the same crime, (b) as a result of the act, the victim suffers serious injuries or illness, or (c) if the perpetrator knows that he is infected with a sexually transmitted disease. Anyone who rapes a minor who is under 12 years of age will be punished with either a term of imprisonment of 15 to 30 years or the death penalty, even if none of the circumstances described in the preceding sentence occur. Article 299 of the Criminal Code sanctions individuals guilty of “active” pedophilia. Any person who commits an act of “active” pedophilia using violence or intimidation, or by taking advantage of the fact that the victim is deprived of reason or sense or unable to resist, will be punished with imprisonment for seven to 15 years. Such penalty increases to 15 to 30 years or death if (a) the victim is a minor under 14 years of age, even if the circumstances set forth in the immediately preceding sentence are not present, (b) if, as a consequence of the criminal act, the victim suffers serious injuries or illness or (c) if the perpetrator has been previously sanctioned for the same crime.       

Article 295 imposes a punishment of imprisonment for a term of six months to two years or a fine of 200 to 500 cuotas, or both, to anyone who discriminates, or promotes or incites, discrimination, against another person, with manifestations in an offensive manner, on account of sex, race, color or national origin, or with actions to obstruct or impede, with motives relating to sex, race, color or national original, the exercise or enjoyment of rights of equality set forth in the Constitution. Any person who spreads ideas based on the superiority of races or racial hatred or commits, or incites, acts of violence against any race or group of people of another color or ethnic origin, shall be subject to the same punishment as indicated above. 

El Capítulo VI del Título 8 (Delitos contra la vida y la integridad física) describe las circunstancias bajo las cuales el aborto es ilegal y establece las sanciones por realizar abortos ilegales. En conformidad con el artículo 267 del Código Penal, cualquier persona que, sin cumplir con las normas de salud pública establecidas con respecto a los abortos, realice un aborto o destruya de cualquier modo el embrión, con el consentimiento de la mujer embarazada, está sujeta a una pena de prisión. Por tres meses hasta un año o una multa de 100 a 300 cuotas. Si se realiza un aborto (1) con fines de lucro, (2) fuera de las instituciones oficiales o (3) por una persona que es un médico, dicha persona está sujeta a un aumento de la pena de prisión de dos a cinco años. En conformidad con el Artículo 268, una persona que destruye a propósito el embrión (a) sin usar ninguna fuerza o violencia contra la mujer embarazada, pero sin su consentimiento, está sujeta de dos a cinco años de prisión o (b) con el uso de cualquier fuerza o violencia en la mujer embarazada, está sujeto de tres a ocho años de prisión. Si concurrentemente con la ocurrencia de (a) o (b), cualquiera de las circunstancias descritas en (1), (2) o (3) también existen, el castigo se incrementa a la prisión de cuatro a diez años. Si una mujer embarazada muere como resultado de cualquiera de las acciones anteriores, la persona ofensora está sujeta a prisión por un período de cinco a doce años. Los artículos 270 y 271, respectivamente, prescriben los castigos para aquellos que, sin la intención de hacerlo, causan un aborto y para aquellos que prescriben cualquier sustancia inductora del aborto para destruir el embrión.

El Capítulo I del Título XI cubre los delitos contra el desarrollo normal de las relaciones sexuales. El artículo 298 prescribe una pena de cuatro a diez años de prisión para toda persona que viole a una mujer (ya sea por coito vaginal o contra naturam) si durante el evento criminal ocurre alguna de las siguientes circunstancias: (a) uso de la fuerza o suficiente intimidación para: lograr la meta o (b) si la víctima está en un estado mentalmente perturbado o sufre de locura temporal, o si la víctima está privada de razón o sentido por cualquier razón, o no puede resistirse, o carece de la capacidad de entender las consecuencias de las acciones o para conformar su conducta. El artículo 298 prescribe un período de prisión de 7 a 15 años si (a) el evento se lleva a cabo con la participación de dos o más personas, (b) si el perpetrador se viste de uniforme militar o pretende ser un funcionario público, en en cada caso, para facilitar la consumación del acto o (c) si la víctima es mayor de 12 años y menor de 14 años. Finalmente, el artículo prescribe un período de prisión de 15 a 30 años o la pena de muerte si (a) el evento es llevado a cabo por una persona que ha sido sancionada previamente por el mismo delito, (b) como resultado del acto, la víctima sufre lesiones o enfermedades graves, o (c) si el autor sabe que está infectado con una enfermedad de transmisión sexual. Cualquier persona que viole a un menor de edad menor de 12 años será castigada con una pena de prisión de 15 a 30 años o con la pena de muerte, incluso si no ocurre ninguna de las circunstancias descritas en la oración anterior. El artículo 299 del Código Penal sanciona a las personas culpables de pedofilia "activa". Cualquier persona que cometa un acto de pedofilia "activa" mediante el uso de la violencia o la intimidación, o aprovechando el hecho de que la víctima está privada de razón o sentido o no puede resistir, será castigada con pena de prisión de siete a 15 años. Dicha penalización aumenta a 15 a 30 años o fallece si (a) la víctima es menor de 14 años, incluso si las circunstancias establecidas en la oración inmediatamente anterior no están presentes, (b) si, como consecuencia de la acto criminal, la víctima sufre lesiones graves o enfermedad o (c) si el autor ha sido previamente sancionado por el mismo delito.

El artículo 295 impone una pena de prisión de seis meses a dos años o una multa de 200 a 500 cuotas, o ambas, a cualquier persona que discrimine, promueva o incite a la discriminación de otra persona, con manifestaciones de manera ofensiva. , debido al sexo, raza, color u origen nacional, o con acciones para obstruir o impedir, con motivos relacionados con el sexo, raza, color u origen nacional, el ejercicio o disfrute de los derechos de igualdad establecidos en la Constitución. Cualquier persona que difunda ideas basadas en la superioridad de las razas o el odio racial o cometa, o incite, actos de violencia contra cualquier raza o grupo de personas de otro color u origen étnico, estará sujeta al mismo castigo que se indicó anteriormente.

Law No. 36 of 2009 Concerning Health (2009)

Abortion and reproductive health rights

Article 75(2) of this law prohibits abortion except for the case of medical emergency or necessity and rape.

Penal Code of Indonesia (1999)

Abortion and reproductive health rights, Gender discrimination, LGBTIQ, Sexual violence and rape, Statutory rape or defilement

Article 260 punishes spouses who conceal from their spouse a legal barrier to marriage with a maximum sentence of five years imprisonment. Article 284 punishes adulterous spouses and their partners, regardless of their marital status. The penal code only criminalizes acts of rape outside marriage unless the wife is underage and incurs injuries as a result. Articles 285 prohibits forcing or threatening force a woman to have sexual intercourse outside of marriage and punishes violators with a maximum penalty of 12 years. Article 286 punishes sexual intercourse with an unconscious or helpless woman with a maximum of nine years imprisonment. If there is a complaint, Article 287 imposes a maximum sentence of nine years imprisonment for “carnal knowledge” of a girl outside of marriage when the man knows or reasonably should presume that she is less than 15 years of age. Prosecutions are triggered automatically when the girl is less than 12 years of age. Article 288 punishes husbands that have “carnal knowledge” of their wives who “are not yet marriageable” if it results in injury (four years imprisonment), serious injury (eight years), or death (12 years). Article 292 punishes adults that have carnal knowledge of those they know to be or reasonably should know to be minors of the same sex with a maximum of five years imprisonment. Article 293 punishes sexual abuse of a minor with a maximum of five years imprisonment. Incest is punishable by a maximum of seven years imprisonment pursuant to Article 294. Article 297 prohibits trafficking in woman and boys, which carries a maximum sentence of six years imprisonment. Article 299 imposes a four-year maximum sentence for abortion and provides for a one-third increase in sentencing for professionals (e.g., doctor, midwife) who perform abortions.

Criminal Code (2000)

Abortion and reproductive health rights, Forced and early marriage, LGBTIQ, Sexual violence and rape, Statutory rape or defilement

The Belize Criminal Code defines and criminalizes rape, including marital rape (Sections 46, 71-74); carnal knowledge of female child (Section 47); procuring or attempting to procure a woman (Section 49-50); compulsion of marriage (Section 58); incest by males (Section 62); abortion, miscarriage, and child destruction (Sections 111-12, 127).  The Code mandates a minimum sentence of eight years for rape (Section 46), 12 years of carnal knowledge of a female child (Section 47), and a life sentence for habitual sex offenders (Section 48).

Of particular note:

Marital rape under Section 72 requires a showing that the spouses have separated, the marriage is dissolved, an order or injunction has been made, granted or undertaken against the spouse, or that the sexual intercourse was preceded or accompanied by assault and battery.  Lack of consent is not enough if the parties are married.  The Criminal Code also criminalizes same-sex relationships under Section 53, which criminalizes “carnal intercourse against the order of nature with any person or animal.”Abortion and the aiding of abortion are felonies and carry a prison term of 14 years to imprisonment for life under Section 111.  There are limited exceptions under Section 112 if two registered medical practitioners agree that the abortion is necessary to preserve the life or health of the mother or her family or if the child may be seriously handicapped.

Termination of Pregnancy Law Reform Act of 2017 (Northern Territory) (2017)

Abortion and reproductive health rights

The Termination of Pregnancy Law Reform Act 2017 (NT) reforms the laws in the Northern Territory relating to terminations of pregnancy by improving access to abortion and abortion drugs, and prohibiting harassing conduct targeted at persons seeking abortion.  From July 1 2017, termination was made available in the Northern Territory up to 14 weeks into a pregnancy if a medical practitioner considers the termination to be appropriate having regard to: all relevant medical circumstances; the woman’s current and future physical, psychological and social circumstances; and professional standards and guidelines.  For women who are more than 14 weeks but fewer than 23 weeks into the pregnancy, an abortion is permitted if two medical practitioners agree that the termination is appropriate having regard to the same factors.  Only terminations necessary to preserve the life of the pregnant woman are permitted 23 weeks or more into the pregnancy.  The Act makes it an offense to engage in harassing conduct in termination facilities or any area that is within 150m of such facilities.  The maximum penalty for such an offense is 100 penalty units ($15,500 as of August 2018) or 12 months’ imprisonment.

The Revised Criminal Code of the Federal Democratic Republic of Ethiopia (2004)

Abortion and reproductive health rights, Domestic and intimate partner violence, Female genital mutilation or female genital cutting, Forced and early marriage, Gender-based violence in general, Harmful traditional practices, Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

The Ethiopian Criminal Code criminalizes most forms of violence against women and girls including physical violence within marriage or cohabitation (Article 564), Female Genital Mutilation/ Circumcision (Articles 565-6), trafficking women (Article 597), rape (Articles 620-28), prostitution/exploitation of another for financial gain (Article 634), and early marriage (Article 648). The Criminal Code outlaws abortion, except in cases of rape or incest, risk to the life of the mother or fetus, severe or incurable disease or birth defect, a mother who is mentally or physically incapable of raising a child, or “grave and imminent danger” that can only be addressed by terminating the pregnancy.

Social and Economic Development Policy Act (2006)

Abortion and reproductive health rights, Employment discrimination, Female genital mutilation or female genital cutting, Forced and early marriage, Gender discrimination, Harmful traditional practices, Property and inheritance rights, Sexual violence and rape, Statutory rape or defilement

Section 7 (Gender Equity, Equality and Empowerment) provides for: (a) gender equality through gender policy aimed at the elimination of structural gender biases and increased participation in education; (b) strengthening the activities of Ministry of Gender Development and women’s rights NGOs; (c) adequate protection from violence through penal and civil sanctions; (d) protection of female children, notably from female genital mutilation, early marriage, and teenage pregnancy; (e) increasing women’s participation in labour force and policy and economic institutions; (f) elimination of legal and customary practices which are barriers to ownership of land, capital and other property; and (g) establishing reproductive health services.

HIV Control of the Disease and Related Issues (Amending Title 33) (2010)

Abortion and reproductive health rights, Employment discrimination, Gender discrimination, Harmful traditional practices, Sexual violence and rape, Statutory rape or defilement

HIV, Control of the Disease and Related Issues (Amending Title 33) (the “Law”), institutes various government initiatives and provides guidance in dealing with HIV-related issues specifically affecting women. For example, the Law provides that the Ministry of Health and Social Welfare and/or National AIDs Commission (the “Health Institutions”) must take into consideration differences in sex and gender when providing education about HIV. Additionally, the Law lists a number of key issues which the Health Institutions should address in their strategies and programs for protecting and fulfilling the human rights of women in the context of HIV. These include:

The equality of women in public and domestic life (Section 18.9(i));Sexual and reproductive rights, including the concept of consent and a woman’s right to refuse sex and her right to request safe sex (Section 18.9(ii));A woman’s right to independently utilise sexual health services (Section 18.9(ii));Increasing educational, economic, employment and leadership opportunities for women (Section 18.9(iii));Strategies for reducing differences in formal and customary law which prejudice women’s rights (Section 18.9(v)); andThe impact of harmful traditional practices on women (Section 18.9(vi)).

Furthermore, the Law directs the Ministry of Health and Social Welfare, the Ministry of Justice, and the Liberian National Police to implement educational programs for their personnel in relation to sexual assault perpetrated on women. These are designed to provide personnel working for these government agencies with a better understanding of sexual assault and protect the rights of sexual assault victims.

Offenses Against the Family, Chapter 16: Penal Law - Title 26 - Liberian Code of Laws Revised (1978)

Abortion and reproductive health rights, Gender discrimination, Harmful traditional practices

Under Section 16.1 of the Penal Law, bigamy and polygamy are illegal unless a legal defence is provided. Such defences include a defendant’s belief that his or her former spouse is dead. Under Section 16.3, abortion beyond the twenty-fourth week of pregnancy is illegal. An abortion is legal if it occurs only after a licenced physician determines there is a substantial risk that continuing the pregnancy would gravely impair the mother’s physical and/or mental health. An abortion may also be justified if the child would be born with grave physical or mental defects or if the pregnancy was the result of illegal intercourse such as rape. Additionally, the abortion must be sanctioned by two physicians who have certified in writing the reasons why the abortion is necessary. The Penal Law also prohibits a woman from carrying out an abortion herself by any means once beyond the twenty-fourth week of pregnancy.

Lei Nº 11.108 (2005)

Abortion and reproductive health rights, Gender discrimination

On April 7, 2005, Law No. 11.108/2005 was published to amend existing Law No. 8.080/1990. It included a new chapter that mandated that all health services of the Unified Health System (“SUS”) must allow the presence of an accompanying party chosen by the parturient woman, throughout the entire labor, birth, and the immediate post-partum period.

The Islamic Penal Code of Iran, Book 5 (2013)

Abortion and reproductive health rights, Domestic and intimate partner violence, Gender discrimination, Harmful traditional practices

Articles 623-624 of Book Five of the Islamic Penal Code of Iran ban abortion and proscribe prison sentences for, respectively, "anyone" and doctors, midwives, and pharmacists. Article 630 of the Iranian Penal Code allows a man who witnesses his wife in the act of having sexual intercourse with another man (zina) to kill both of them if he is certain that his wife is a willing participant. If the husband knows that is wife was the subject of coercion, he is justified in murdering only the other man. Under Article 638 of the Iranian Penal Code, women who appear in public without the Islamic hijab may be sentenced to ten days to two months in prison or fined fifty thousand (USD $1.50) or five hundred thousand Rials (USD $15.00). (Full Persian version: http://www.ilo.org/dyn/natlex/natlex4.detail?p_lang=en&p_isn=103202)

Gender Law of 10 May 2007 (2007)

Abortion and reproductive health rights, Divorce and dissolution of marriage, Employment discrimination, Gender discrimination, Harmful traditional practices, International law, LGBTIQ, Property and inheritance rights, Sexual harassment

The Gender Law of 10 May 2007 combats discrimination between women and men (thereby implementing European Union legislation) and prohibits every form of discrimination based on gender, change of gender, gender identity, gender expression, pregnancy, childbirth and motherhood. Direct and indirect discrimination, giving orders to discriminate, intimidation and sexual intimidation are all explicitly prohibited. Discrimination is prohibited with regard to access to goods and services, social security, social benefits, membership of professional organizations, and employment relations and conditions. Differences (in terms of access to certain goods or services, or employment conditions) are only allowed if it is objectively justified by a legitimate aim and if the restrictions are appropriate and necessary to achieve this aim. Differences are also allowed on a temporary basis in the context of positive action to prevent or compensate for gender-related disadvantages. Victims of discrimination can submit a reasoned complaint or take legal action. If the plaintiff has produced facts which indicate that there has been discrimination, the burden of proof is on the defendant to demonstrate that there was no gender-based discrimination.

Domestic Case Law

Clubb v. Edwards (2019)

Abortion and reproductive health rights

The appellant challenged section 9(2) of the Tasmanian Reproductive Health (Access to Terminations) Act 2013 which prohibits protests that can be seen or heard within 150 meters of an abortion clinic. The appellant was convicted under the Act after standing on a street corner within the protest zone, holding placards with depictions of fetuses and statements about the “right to life.” He sought review of the conviction on the grounds that the law impermissibly burdens the freedom of communications on governmental and political matters, a right implied in the Australian Constitution. The High Court dismissed the appeal unanimously holding that the statute aims to protect the safety, wellbeing, privacy, and dignity of women, and in doing so, adequately balances the right to political communication and protection of those in need of medical assistance. Because the statute is limited in geographical reach and does not discriminate between sources of protest within the protected zone, the burden upon political communication within the Act is minor and proportionate.

The Center for Health, Human Rights and Development (CEHURD) v. Mulago National Referral Hospital High Court of Uganda (2013)

Abortion and reproductive health rights, International law

Here, Justice Lydia Mugambe held that Mulago National Referral Hospital’s negligence and the resulting disappearance of the couple’s baby amounted to psychological torture for the parents and violated their rights to health and access to information. Specifically, Justice Mugambe held that a woman’s inability to access sufficient antenatal care demonstrates a failure on the part of the State to fulfill its obligations under the right to health. The decision outlines Uganda’s obligations under international law to devote special attention and resources to women whose circumstances make them vulnerable.

G.M.J. v Attorney General Court of Appeal of Botswana (2018)

Abortion and reproductive health rights

Here, in a unanimous judgment, the Court of Appeal reversed a decision by the High Court to dismiss a medical negligence claim raised by a woman who underwent a surgical procedure for the removal of her womb and experienced the leaking of urine after the procedure. Appellant had sought damages from medical negligence and lack of proper post-operative care. The Court’s holding clarifies the law on prescription and medical negligence, which are a prominent method through which women try to access the courts when their reproductive health rights are violated.

J.M. v. Q.F.G. and G.K. Anti-Discrimination Tribunal Queensland (1997)

Abortion and reproductive health rights, Gender discrimination, LGBTIQ

The complainant was a woman in an exclusive lesbian relationship for four years. The complainant and her partner wanted to have child but learned that donor insemination in Queensland would not be available for them, so the complainant traveled out of state to seek this treatment. She found the experience to be emotionally and financially draining, so she stopped the treatment. Thus, the complainant decided to try and ask the clinics in Queensland for the donor treatment. She found a clinic at which the respondent was a director. She obtained a referral from her general practitioner and scheduled an appointment with the respondent. At the appointment, the complainant informed the respondent that she was in a long-term lesbian relationship.  The respondent’s position was clear that the clinic only provided treatment to heterosexual couples with infertility problems. Nevertheless, he requested blood tests of the complainant which showed that her ovaries were functioning normally and proceeded to give her a form to fill out and sign for herself and her “husband” in order to start the treatment. The complainant asked the respondent if she could fill only the wife part and sign, but he insisted that it should be signed by the husband.  Since this was not possible in her case, the respondent refused to provide her with the treatment. The claimant then sought treatment outside Brisbane for a while without success. The claimant had a baby by private donation, ultimately bearing risks of possible HIV infection of the semen. The claimant suffered emotional distress from humiliation and discrimination based on her sexual orientation, in addition she had to defer her university degree for all the time she had to spend traveling to clinics outside Queensland. Subsequently, the claimant filed this claim before the Anti-Discrimination Tribunal seeking compensation from the respondent and his clinic. The respondent argued that there was an agreement with the government on artificial insemination by donation in relation to treatment of infertility, and that treatment is to be provided only to heterosexual couples. The Tribunal confirmed that there was no such agreement in place. The respondent also argued the definition of infertility only describes the incapability of heterosexual couples of conceiving because of medical reasons caused by one or both of them. The Tribunal also refused this limitation of the definition and held that the fact that scientifically two females are incapable of conceiving a child is a medical reason that makes them eligible for the same treatment as any heterosexual couple seeking this treatment. Accordingly, the Tribunal found the act of the respondent to be discriminatory against the complainant because she is a lesbian, which is unlawful under the Anti-Discrimination Act 1991, and ordered the clinic to pay the claimant a compensation sum for the humiliation and offence she suffered.

Habeas Corpus 124.306 Superior Tribunal de Justiça (Superior Court of Justice of Brazil) (2016)

Abortion and reproductive health rights, Gender discrimination

The Superior Court of Justice of Brazil revoked the pretrial detention order issued against staff and patients of a clinic that was alleged to have been performing clandestine abortions. The Court found that criminal laws against abortion were unconstitutional, and the criminalization of voluntary termination of pregnancy during the first three months was incompatible with the protection of multiple fundamental rights of women. The decision set an important precedent for the sexual and reproductive rights of women in Brazil. The court also discussed that the criminalization of abortion disproportionately affected women living in poverty who do not have access to private or public abortion clinics. Judge Barroso stated that while the potential life of the foetus is important, the criminalisation of abortion before the end of the first three months of pregnancy violated several fundamental rights of women granted by the Brazilian Constitution of 1988 (personal autonomy, physical and mental integrity, sexual and reproductive rights and gender equality). This decision does not decriminalize abortion but suggests that abortion may be legalised in the future. This is perhaps a softening of the law regarding abortion in Brazil.  

Decision of the Constitutional Tribunal, Case 0206/2014 Constitutional Tribunal (2015)

Abortion and reproductive health rights, Gender discrimination

Patricia Mansilla Martínez, a member of the Bolivian Parliament, challenged the constitutionality of several articles of the Criminal Code on the basis that they discriminated against women. The Court held that some of the challenged articles were unconstitutional and upheld others. On the grounds of gender discrimination, the Court found unconstitutional Article 56, which prevented imprisoned women from being employed outside of prisons while allowing imprisoned men outside employment, and Article 245, which recognized as a defense to the offense of falsifying a birth record the motive of protecting the honor of one’s wife, mother, daughter, or sister. The Court declared unconstitutional the words “fragility” and “dishonor” in Article 258 regarding infanticide also due to gender discrimination, although this did not affect the operation of the offense. The final unconstitutional issue was that Article 250 criminalized an unmarried man abandoning a woman who became pregnant with him, but did not criminalize a married father’s abandonment of his pregnant wife. The Court was unwilling to hold restrictions on abortion unconstitutional. As such, receiving an abortion remains prohibited under Articles 263 and 264, and the performance of abortion is prohibited under Article 269. However, the Court did declare unconstitutional the requirements in Article 266 that a woman inform the police and obtain judicial authorization in order to obtain an abortion in the case of rape or incest (article 266).

Patricia Mansilla Martínez, quien es miembro del Parlamento boliviano, cuestionó la constitucionalidad de varios artículos del Código Penal sobre la base de que eran discriminatorios contra las mujeres. El Tribunal sostuvo que varios de los artículos impugnados eran inconstitucionales: el Artículo 56, que impedía que las mujeres encarceladas fueran empleadas fuera de las cárceles mientras que los hombres encarcelados, por otro lado, podían tener empleo y el Artículo 245, que reconocía la protección del honor de la esposa, la madre, la hija o la hermana de uno como defensa al delito de falsificar un registro de nacimiento. Ambos Artículos se consideraron inconstitucionales sobre la base de la discriminación de género. La Corte declaró que las palabras "fragilidad" y "deshonra" contenidas en el Artículo 258 en asociación con el infanticidio eran inconstitucionales por la misma base, aunque esto no afecta el funcionamiento del delito. Además, la distinción dentro del Artículo 250 que penalizaba el abandono por parte de un padre de una mujer que no es su esposa después de dejarla embarazada pero que no se aplicaba a la esposa de un padre también se consideró inconstitucional. La Corte no estaba dispuesta a mantener las restricciones sobre el aborto como inconstitucionales. Como tal, recibir un aborto sigue prohibido según los Artículos 263 y 264, y el aborto está prohibido según el Artículo 269. Sin embargo, la Corte declaró inconstitucional los requisitos del Artículo 266 de que una mujer informe a la policía y obtenga la autorización judicial para obtener un aborto en caso de violación o incesto (artículo 266).

杨江山、中国人民解放军第四五八医院医疗损害责任纠纷,广东省高级人民法院 (Yang v. China PLA Hospital No. 458) Higher People's Court of Guangdong Province (2018)

Abortion and reproductive health rights

Yang sued China PLA Hospital No. 458 for violation of his reproductive rights. The plaintiff alleged that his wife sought an abortion at the defendant-hospital and lied that she was unmarried. The plaintiff also alleged that the defendant did not meet its obligation to investigate Peng’s marital status and chose to believe Peng’s lie. The Court held that under Article 51 of the Law on Protection of Women’s Rights and Interests, “women have the right to reproduce and not to reproduce under the relevant state regulations.” Therefore, Peng’s right to voluntarily terminate pregnancy is protected by law. Moreover, according to the Supreme People’s Court’s authoritative interpretations of the Marriage Law, “courts should not support husbands’ damage claims based on infringement of their reproductive rights due to their wives’ termination of pregnancy.” Therefore, the defendant’s actions were not unlawful.



State v. Banda High Court of Zimbabwe (2001)

Abortion and reproductive health rights

The accused took a concoction of herbs with the intent to procure an abortion when she was six months pregnant and buried the fetus. She pled guilty to contravening the Termination of Pregnancy Act, which bans abortions subject to enumerated exceptions. She was sentenced to nine months imprisonment that were suspended on the condition that she complete 305 hours of community service. The issue under review was whether the conviction was proper without medical evidence to prove that the ingested herbal concoction could induce an abortion. It was held that before a person is convicted for abortion it must be proved that the instrument or method used can induce an abortion. Except for a few obvious cases were the conduct of the accused is known to cause abortions, medical evidence must prove that the terminated pregnancy was not spontaneous but induced by the actions of the accused. Here, there was no proof that the herbal concoction was, in fact, capable of inducing an abortion. Therefore a conviction for abortion was an error, accused was guilty solely of attempting abortion.

Mapingure v. Minister of Home Affairs Supreme Court of Zimbabwe (2014)

Abortion and reproductive health rights, Sexual violence and rape

A month after the rape, the appellant’s pregnancy was formally confirmed, she then informed the investigating police officer of her pregnancy who referred her to a public prosecutor. She was told by the prosecutor that she had to wait until the rape trial had been completed to have her pregnancy terminated. At the direction of the police, she returned to the prosecutor’s office four months later and was advised that she required a pregnancy termination order. The prosecutor requested that a magistrate certify the termination. The magistrate said he could not assist because the rape trial had not been completed. She eventually obtained the necessary magisterial certificate nearly six months after the rape, the hospital felt that it was no longer safe to carry out the termination procedure. The appellant carried to full term and gave birth to a child. The applicant brought an action against the Ministers of Home Affairs, Health and Justice for damages for the physical and mental pain, anguish and stress she suffered and care for the child until the child turned 18. The basis of the claim was that the employees of the three Ministries concerned were negligent in their failure to prevent the pregnancy or to expedite its termination. The particulars of negligence were itemized. Her claim was dismissed. The questions for determination on appeal were (i) whether or not the respondents’ employees were negligent in responding to the appellant, (ii) if they were, whether the appellant suffered any actionable harm as a result of such negligence and, (iii) if so, whether the respondents were liable for damages for pain, suffering, and the care of her child. The Supreme Court held, on appeal, that the State was liable for failing to provide the appellant with emergency contraception to prevent the pregnancy and ordered it to pay damages. However, the court dismissed the claim that the State was liable for failing to ensure a timely termination of the pregnancy and in turn that they were liable to pay for the care of the child. The case was referred back to the High Court for a determination of the amount of damages.

Saks v. Franklin Covey Co. United States Court of Appeals for the Second Circuit (2003)

Abortion and reproductive health rights, Employment discrimination, Gender discrimination

The plaintiff’s employee health benefit plan denied coverage for certain infertility procedures that can only be performed on women, including in vitro fertilization (“IVF”). She sued her employer for unlawful discrimination under the Americans with Disabilities Act (“ADA”), Title VII, the Pregnancy Discrimination Act, and state law. The United States District Court for the Southern District of New York granted summary judgment in favor of the defendant-employer. On the plaintiff’s appeal, the Second Circuit analyzed the issue differently than the district court but ultimately affirmed the grant of summary judgment, finding that the health plan’s exclusion of coverage for surgical implantation procedures limited its infertility procedures for male and female employees equally and as a result did not amount to unlawful discrimination.

McGlothlin v. Bristol Obstetrics, Gynecology and Family Planning, Inc. Court of Appeals of Tennessee at Knoxville (1998)

Abortion and reproductive health rights

A mother and daughter sued an abortion provider for having performed an abortion on the minor daughter without first obtaining her parents’ approval, which was in violation of a Tennessee statute. The daughter was 17 years and ten months old at the time. The trial court dismissed the complaint because the statute was unconstitutional as applied to the abortion rights of minors. The Court of Appeals of Tennessee affirmed, finding that the statute in question violated the privacy rights of minors seeking abortions.

Tennessee Department of Health v. Boyle Court of Appeals of Tennessee at Nashville (2002)

Abortion and reproductive health rights

A Tennessee statute required private clinics providing a “substantial number” of abortions to obtain a “certificate of need” from the Health Facilities Commission and a license from the Department of Health. The Department of Health denied a license to plaintiffs, and then sued to enjoin them from performing abortions. Defendants alleged that the licensing requirement violated the United States and Tennessee Constitutions as they relate to women’s right to privacy. The Davidson County Chancery Court upheld the statute and enjoined the defendants from performing abortions. The Court of Appeals of Tennessee reversed, holding that the statute was unconstitutional.

Planned Parenthood of Middle Tennessee v. Sundquist Supreme Court of Tennessee (2000)

Abortion and reproductive health rights

A Tennessee criminal statute required that physicians warn their patients that “abortion in a considerable number of cases constitutes a major surgical procedure,” that second-trimester abortions be performed in a hospital, and that women wait two days after meeting with a physician to receive an abortion. The plaintiff challenged the constitutionality of these provisions. The Davidson County Circuit Court struck down as unconstitutional the statutory warning and two-day waiting period as unconstitutional, but allowed the hospitalization requirement. The Court of Appeals of Tennessee reversed, finding each requirement constitutional. The Supreme Court of Tennessee reversed the Court of Appeals, holding that none of the provisions could be deemed constitutional under the proper strict scrutiny framework.

Women's Medical Center of Providence, Inc. v. Roberts United States District Court for the District of Rhode Island (1982)

Abortion and reproductive health rights, Gender discrimination

This case struck down provisions of the Rhode Island “Informed Consent for Abortion” Act for failure to demonstrate a compelling state interest to justify its interference with women’s rights to abortion including: (i) a provision that required women be informed of “all medical risks” associated with the abortion procedure, including “psychological risks to the fetus,” as such a provision was unconstitutionally vague; (ii) a provision requiring a woman seeking abortion to give written consent to the procedure at least 24 hours prior to her scheduled operation, as such a provision imposed a legally significant burden on a woman’s fundamental right to terminate her pregnancy, and the state did not demonstrate a compelling state interest necessitating such waiting period. However, the Court upheld a provision requiring that an abortion patient be informed of the “nature of her abortion,” i.e., that the abortion will irreversibly terminate her pregnancy.

Constitutional Right to Life Committee v. Cannon Supreme Court of Rhode Island (1976)

Abortion and reproductive health rights

A non-profit corporation filed a claim protesting the validity of a regulation requiring specified facilities, procedures, and personnel whenever a pregnancy is terminated within the geographical boundaries of Rhode Island, arguing that the regulations failed to consider the life of the unborn child. The Supreme Court of Rhode Island held that the regulation did not improperly disregard the life of the unborn child because, as a matter of constitutional law, the only interest that a state may assert in regulating abortion procedures prior to the time of a child’s viability is during the second trimester when the state may regulate abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health.

Operation Rescue-National v. Planned Parenthood of Houston and Southeast Texas Supreme Court of Texas (1998)

Abortion and reproductive health rights

Doctors and clinics sued anti-abortion activist group Operation Rescue for invasion of privacy, tortious interference, and civil conspiracy. Anti-abortion activists planned to picket and obstruct abortion clinics and homes of physicians who worked for the clinics to coincide with the 1992 Republican National Convention. The district court granted a permanent injunction to restrict anti-abortion demonstrations, which prohibited activists from, among other things, demonstrating within specified areas of each clinic. Operation Rescue appealed. Pursuant to free speech principles, the Court held that the injunction must burden no more speech than necessary to serve a significant government interest. The Court upheld the injunction as it related to physicians’ homes, but found the injunction overbroad because it limited peaceful communication within speech-free zones, such as peaceful sidewalk counseling and prayer. The Court modified the injunction, allowing no more than two demonstrators within a zone. These two demonstrators may individually sidewalk counsel patients in a normal speaking voice, but must retreat when the patient or physician verbally indicates that they wish to be alone. Otherwise, the lower court’s judgment was affirmed.

In re: Jane Doe Supreme Court of Texas (2000)

Abortion and reproductive health rights

A pregnant minor applied for judicial bypass to have an abortion without notifying her parents. The trial court denied her application, finding that she was neither mature nor well-informed enough to consent to an abortion without parental notification. The Supreme Court reversed, finding that Doe showed that she was sufficiently well-informed. The trial court specifically denied Doe’s application because she was allegedly unaware of the intrinsic benefits of alternatives to abortion such as parenting and adoption. The Supreme Court held that even though a minor may not share the court’s views about what the benefits of her alternatives might be, it does not follow that she has not thoughtfully considered her options or acquired sufficient information about them. The Court noted that she had read about abortion, spoken to women who have had abortions, and discussed potential mental effects with a counselor. Moreover, she expressed that she was not ready for parenthood and that keeping the child would prevent her from going to college or having a career. The Supreme Court thus reversed the trial court and granted Doe’s judicial bypass, holding that when a minor has established that she has engaged in a rational and informed decision-making process and concluded that realistic concerns foreclose her alternatives, she cannot be denied the statutory bypass for failing to list general benefits seen by others.

In re Doe Supreme Court of Texas (2002)

Abortion and reproductive health rights

Pregnant minor filed an application for judicial bypass to receive an abortion without notifying her parents. The district court did not rule on the application or make findings of fact, but issued a writing that sua sponte concluded that the parental bypass law was unconstitutional. Doe appealed due to uncertainty about the judgment, and the court of appeals dismissed for lack of jurisdiction. The Supreme Court held that because the judge did not issue findings of fact within two business days, her application was deemed granted.

In re: Jane Doe 10 Supreme Court of Texas (2002)

Abortion and reproductive health rights

A pregnant minor applied for judicial bypass to have an abortion without notifying her parents. The trial court denied the application on a form, but made no ruling and no findings of fact on one of the bases for judicial bypass—whether notifying her parents would lead to physical, sexual, or emotional abuse of the minor. Under the Texas Family Code, the court was required to issue a ruling and written findings of fact and conclusions of law within two business days after the application was filed. Doe argued that because the trial court did not comply with the Family Code, she was denied a timely and complete judgment, and her application should be deemed granted. The Supreme Court agreed, deeming her application for judicial bypass granted based on possible abuse.

Bell v. Low Income Women of Texas Supreme Court of Texas (2002)

Abortion and reproductive health rights, Gender discrimination

Physicians and clinics sued the Commissioner of Health sued, claiming that Texas Medical Assistance Program’s (“TMAP”) abortion funding restrictions for indigent women violated their constitutional rights under the Equal Rights Amendment and Equal Protection Clause of the Texas Constitution, and their rights to privacy. TMAP was prohibited from authorizing abortion services without matching federal funds. The relevant federal law, the Hyde Amendment, prevented TMAP from funding abortions unless the pregnancy resulted from rape or incest, or placed the woman in danger of death. The plaintiffs argued that the restriction constituted sex discrimination because the state funded virtually all medically necessary services for men while refusing to fund abortions that are medically necessary even though the woman is not at risk of death. The Supreme Court held that although any restriction related to abortion would only affect women, TMAP’s restriction was not “on the basis of sex,” but rather due to the nature of abortion as a medical procedure involving potential life, which has no similar treatment method. The Court noted that other than medically necessary abortions, TMAP funded virtually all other medical treatment for women, and funded abortions to the extent that matching federal funds were available. The Court held that the discouragement of abortion through funding restrictions cannot, by itself, be considered purposeful discrimination against women as a class. The Court recognized the state’s interest in encouraging childbirth over abortion and held that the right to choose an abortion does not translate into a state obligation to subsidize abortions. The Court thus held that the funding restrictions did not violate the Texas Constitution, reversing the Court of Appeals and entering judgment for the defendant.

Texas Family Code: Child in Relation to the Family - Limitations of Minority - Notice of and Consent to Abortion (2016)

Abortion and reproductive health rights

Texas prohibits pregnant unemancipated minors from obtaining abortions unless the physician performing the abortion gives at least 48 hours actual notice of the appointment, in person or by telephone, to the minor’s parent, managing conservator, or guardian. If the parent or guardian cannot be notified after a reasonable effort, the physician may perform the abortion after giving 48 hours constructive notice by certified mail to the guardian’s last known address. A minor may obtain an abortion without parental notification if the minor receives a court order authorizing the minor to consent (judicial bypass), or if the physician finds a medical emergency, certifies the medical emergency in writing to the Department of State Health Services, and notifies the parent of the medical emergency. If a physician intentionally performs an abortion without complying with this code, the offense is punishable by a maximum fine of $10,000.

Roe v. Planned Parenthood Southwest Ohio Region Supreme Court of Ohio (2009)

Abortion and reproductive health rights

The parents of a minor who received an abortion sued Planned Parenthood, which they alleged had performed the abortion illegally because the clinic did not notify them in advance. The plaintiffs sought the medical records and any reports of abuse relating to minors who had received abortions in the prior 10 years. The defendant refused to produce the records of nonparty patients on the ground of physician-patient privilege. The trial court ordered the defendant to produce the non-party records with identifying information redacted, but the Court of Appeals of Ohio reversed. The Supreme Court of Ohio affirmed the Court of Appeals’ ruling, holding that the medical records of non-party patients were not discoverable.

Women's Medical Professional Corp. v. Voinovich United States Court of Appeals for the Sixth Circuit (1997)

Abortion and reproductive health rights

The plaintiff-appellant, an abortion clinic, sued the Governor of Ohio, the Attorney General of Ohio, and the prosecuting attorney for Montgomery County, challenging the facial constitutionality of an Ohio law regulating abortions. The district court ruled (i) that the prohibition on dilation and extraction abortions placed substantial, and hence unconstitutional, obstacles in the way of women seeking pre-viability abortions; (ii) that the combination of subjective and objective standards without scienter requirements rendered the “medical emergency” and “medical necessity” exceptions to the abortion prohibitions were unconstitutionally vague; and (iii) that the constitutional and unconstitutional provisions in the law could not be severed. The district court thus struck down the entire law and prohibited its enforcement. The Sixth Circuit affirmed.

Women's Medical Professional Corp. v. Baird United States Court of Appeals for the Sixth Circuit (2008)

Abortion and reproductive health rights

The plaintiff-appellant operated an abortion clinic in Dayton, Ohio. Ohio law required it to be licensed, which in part required it to enter into a written transfer agreement with a Dayton-area hospital. When no hospital would enter into such an agreement with the plaintiff, it sought a waiver of the transfer agreement requirement. Even though the plaintiff had both a back-up group of physicians ready to provide emergency care and a letter from Miami Valley Hospital confirming that it would admit patients in the event of an emergency, the Director of the Ohio Department of Health denied the plaintiff’s request for a waiver and ordered that it immediately close. The plaintiff sought a temporary restraining order and an injunction against the Department of Health’s order. The District Court granted both requests and awarded attorney’s fees and expenses to the plaintiff. The Sixth Circuit affirmed, holding that the plaintiff’s procedural due process rights were violated, but vacated the permanent injunction and remanded the case for a hearing on the denial of the plaintiff’s application.

The State v. G.I. High Court of Namibia (2007)

Abortion and reproductive health rights

The accused was an 18-year-old woman charged with the crime of abortion under the Abortion and Sterilization Act, 2 of 1975 (the “Act”). The Act outlaws abortion and prescribes no minimum sentence for the crime. The accused pleaded guilty and testified that she performed the abortion on herself, which terminated a two-month-long pregnancy. The Court sentenced her to pay N$3,000 or serve two years in prison. On review, the High Court found the sentence to be “completely” disproportionate to the crime. The Judge referred to the Old Authorities and stated that sentences for abortion should be less harsh in cases where a very young fetus is involved. The Judge also found that the accused personal circumstances and the particular circumstances of her trial, including the fact that she was a minor at the time, did not have counsel to represent her, and was not given the opportunity to explain her actions, warranted mitigation of the penalty. Finding that the lower court did not factor in any of these mitigating circumstances, the High Court reduced the sentence to N$300 or three months in prison, which he suspended on the condition that during that period the accused was not convicted of any abortion-related crime.

Hamilton v. Scott Supreme Court of Alabama (2012)

Abortion and reproductive health rights

Plaintiff, a mother of a stillborn child, sued physicians and a medical group, alleging that they wrongfully caused the death of her son and caused her emotional distress. The trial court held that a wrongful death action could not be maintained for the death of a fetus before viability. The Alabama Supreme Court reversed this holding, while agreeing with the trial court that Plaintiff could not recover damages for emotional distress. The court concluded that “Alabama’s wrongful-death statute allows an action to be brought for the wrongful death of any unborn child, even when the child dies before reaching viability.” Nonetheless, the court held that Plaintiff failed to demonstrate that she was entitled to damages for emotional distress because she did not present evidence that she was within the “zone of danger” and she could not claim a physical injury to herself based on the death of the fetus.

Hicks v. State of Alabama Supreme Court of Alabama (2014)

Abortion and reproductive health rights

The defendant was charged with chemical endangerment of a child for ingesting cocaine while pregnant, which resulted in her child testing positive for cocaine at birth. The defendant was convicted after a guilty plea, but challenged her conviction on appeal, arguing that the legislature did not intend for Alabama’s chemical endangerment statute to apply to unborn children. Additionally, she alleged that if the statute applied to unborn children, the law was: (1) bad public policy because it does not protect unborn children and (2) unconstitutionally vague. The Alabama Supreme Court rejected Hicks’ claims, relying on an Alabama Court of Appeal decision, Ankrom v. State, 152 So.3d 373 (Ala. Crim. App. 2011), in which the court held that the plain language of the statute included an unborn child or viable fetus in the term “child.” The Alabama Supreme Court refused to consider the defendant’s public policy arguments, stating that policy arguments are ill-suited to judicial resolution and should instead be directed at the legislature. Finally, the court concluded that the law was not vague, as it “unambiguously protects all children, born and unborn, from exposure to controlled substances.”

Reproductive Health Services, et al. v. Marshall, et al. United States District Court for the Middle District of Alabama Northern Division (2017)

Abortion and reproductive health rights

A licensed abortion facility and its owner sued Alabama’s Attorney General and the Montgomery County District Attorney. Among Plaintiffs claims were allegations that the 2014 amendments to Alabama Code Title 26’s judicial bypass law violated the due process rights of minor patients seeking abortions because it failed to provide an adequate judicial bypass by permitting adverse parties and the court to disclose private information about the minor to others. Citing Supreme Court precedent enshrining a minor’s constitutional right to seek an abortion through judicial bypass without outside interference violating her privacy, the court ultimately agreed with the plaintiffs and severed the unconstitutional provisions allowing the participation of (1) the district attorney, (2) the minor’s parents, and (3) a guardian ad litem for the fetus from the judicial bypass process.

A.F. re: Self-Satisfying Measure Corte Suprema de Justicia de la Nación (Supreme Court of Argentina) (2011)

Abortion and reproductive health rights, International law, Sexual violence and rape, Statutory rape or defilement

A.F. sought an abortion for her 15-year-old daughter, A.G., whose stepfather raped and impregnated her.  The courts of first and second instance rejected A.F.’s petition because Argentina’s criminal code permits abortion in cases of sexual assault of a mentally impaired woman and A.G. is not mentally impaired.  The appellate court, however, authorized the abortion, holding that the relevant statute should be read broadly to encompass all pregnancies resulting from sexual assault.  Following the abortion, the local guardian ad-litem and family representative (“Tutor Ad-litem y Asesor de Familia e Incapaces”) challenged the appellate court’s decision on the basis that the appellate court’s broader interpretation of the statute violated constitutional protections for the fetus as well as protections found in treaties to which Argentina is a signatory.  Despite the abortion having already been performed, the Supreme Court agreed to adjudicate the matter given its importance and affirmed the appellate court’s ruling, noting that (1) certain of the referenced treaties had been expressly amended to permit abortions resulting from sexual assault and (2) any distinction between victims of sexual assault who are mentally impaired in relation to those who are not is irrational and therefore unconstitutional.  

2004 (Ju) No. 1748 Supreme Court of Japan (2006)

Abortion and reproductive health rights

The Supreme Court was asked to rule whether a father-child relationship could be legally recognized in the case where a child’s mother became pregnant through in-vitro fertilization with the frozen sperm of a deceased husband who, while he was alive, had consented to the use of the sperm even after his death.  The Supreme Court reversed the High Court’s ruling and declined to recognize the father-child relationship.  The Supreme Court considered that the legal framework in Japan concerning parent-child relationships did not anticipate such a relationship between a father and his child who was conceived after his death in light of the fact that, even if the father-child relationship had legally been established, the deceased father would not be in a position to hold parental rights, he would not be able to support his child, and the child could not be an heir of the father for the purposes of inheritance.  According to the Supreme Court, such issues need to be addressed by legislation upon analyzing several factors including bioethics, child welfare, and social acceptance.  As the country lacks such legislation, the Supreme Court did not find that the father-parent relationship could be established.

2006 (Kyo) No. 47 Supreme Court of Japan (2007)

Abortion and reproductive health rights, International law

A Japanese married couple petitioned for a court order that a Japanese local government accept birth registers for twins born from a surrogate mother in Nevada with the ovum and sperm of the Japanese couple.  The state of Nevada, pursuant to its state court, had issued birth certificates for the twins, which showed the Japanese couple as their parents.  The Supreme Court reversed the High Court’s ruling that the birth registers need to be accepted.  It stated that Article 118 of the Japanese Civil Proceedings Act prescribes that a final judgment made by a foreign court takes effect in Japan only if it satisfies all enumerated conditions, which include that “the foreign court’s ruling and its proceedings are not contrary to public policy in Japan.”  The Supreme Court recalled that the Japanese Civil Code stands on the premise that a mother of a child is a woman who conceived and delivered the child and that a mother-child relationship is established through objective factors such as gestation and delivery.  According to the Supreme Court, when a parent-child relationship can be legally established is a matter that forms the basis of the country’s legal order, and factors for finding such a relationship must be unequivocal.  Thus, the Court found that a mother-child relationship between the twins and the Japanese wife could not be established, given that the Nevada court’s ruling, which recognized a parent-child relationship contrary to Japanese laws, ran against the public policy in Japan.  In its statement, the Supreme Court urged the Japanese legislature to address the issues of parent-child relationships and assisted reproductive technology through legislation.

Resolution U.No. 137/2013 Constitutional Court (2014)

Abortion and reproductive health rights, Gender discrimination, International law

A legal scholar and four non-governmental organizations filed an initiative with the Constitutional Court of Macedonia for the commencement of a procedure to review the constitutionality of the Law on Termination of Pregnancy ((“Official Gazette of the Republic of Macedonia”, nos.87/2013, 164/2013 and 144/2014”) (the “LTP”) and its compatibility with international law, on the basis that the LTP created “a possibility of state interference into the right of choice and free decision-making of the women (which was contrary to Article 41 paragraph 1 and Article 118 of the Constitution of the Republic of Macedonia)”. Further, the applicants stated that the LTP contravenes Articles 11 paragraph 1, Article 39 paragraph 2 and Article 41 paragraph 1 of the Constitution, which provides that female citizens had sovereignty over themselves, their life, physical integrity and health. The applicants pointed out, inter alia, that the requirement to submit a written request, mandatory counselling, and waiting period were incompatible with the constitutionally guaranteed freedom of choice regarding childbirth. In addition, given that those provisions in the LTP did not exist for any other medical intervention, they represented a discrimination against women. All but one of the judges stated that they do not consider the LTP to be problematic and fully rejected the initiative. 

M.M. v. Minister of Home Affairs & 2 Others Supreme Court of Zimbabwe (2014)

Abortion and reproductive health rights, International law, Sexual violence and rape

This case was brought by the complainant, who was attacked and raped by robbers at her home.  She immediately reported the matter to police and requested a medical practitioner to prescribe emergency contraception.  The medical practitioner said he required the presence of a police officer to do so.  Because she was advised at the police station that the officer who had dealt with her case was not available, the victim returned to the hospital, where she was refused treatment without a police report.  The next day she went to the hospital with another police officer and was informed that the prescribed 72 hours had already elapsed.  When the complainant was confirmed pregnant, she indicated to the prosecutor that she wanted her pregnancy terminated, but was told that she had to wait until the rape trial had been completed.  She finally obtained the necessary magisterial certificate, but when she sought the termination, the hospital matron felt that it was no longer safe to carry out the procedure.  After the full term of her pregnancy, the complainant brought an action against the Ministers of Health, Justice and Home Affairs for pain and suffering endured as well as maintenance of the child.  The High Court dismissed her claim that the employees of the respondents had been negligent in their failure to prevent the pregnancy, and subsequently to facilitate its termination.  She appealed the decision to the Supreme Court, which determined the claim by applying the test for negligence, finding the doctor negligent for having failed to take reasonable steps to prevent the pregnancy and the police negligent for failing to timely take the victim to the doctor for her pregnancy to be prevented.  The Supreme Court recognized the relevance of regional and international human rights norms and standards, making reference to various provisions relating to the reproductive rights of women in CEDAW and the Maputo Protocol, but held that, pursuant to Constitutional terms, these cannot operate to override or modify domestic laws until they are internalized and transformed into rules of domestic law.  Furthermore, the Supreme Court determined that it was the responsibility of the victim of the alleged rape to institute proceedings for the issuance of a magisterial certificate allowing the termination of her pregnancy.  Ultimately, the Supreme Court partially allowed the appeal and granted the complainant general damages for pain and suffering arising from failure to prevent her pregnancy.  Although conceding that Zimbabwe’s Termination of Pregnancy Act is “ineptly framed and lacks sufficient clarity as to what exactly a victim of rape is required to do when confronted with an unwanted pregnancy,” the Supreme Court dismissed the complainant's claim for damages for pain and suffering beyond the time her pregnancy was confirmed and for the maintenance of her minor child, as the authorities could not be liable for not assisting her to terminate the pregnancy because they do not have any legal duty to initiate and institute court proceedings on her behalf. 

Police v. Apelu Supreme Court of Samoa (2010)

Abortion and reproductive health rights, International law

A women inmate at Tafaigata Prison who was two months pregnant asked the defendant to abort the fetus using a duck speculum and uterine sound instrument while she was on weekend parole.  Upon returning to the prison and complaining of severe pain, the woman was rushed to the hospital, where she delivered a live, premature female infant.  The baby died of respiratory failure as a result of extreme prematurity and neonatal sepsis; the medical report stated that the instruments used by the defendant had infected the victim’s uterus and induced labor.  In 2004, she had been sentenced to two and one-half years for the same offense.  Although the charges were not prosecuted at the time, they were revisited in 2005 and a year was added to the defendant’s sentence.  The sentencing judge in the case considered the defendant’s record of recent convictions as aggravating factors.  While the maximum sentence for this offence is seven years, the court considered that it warranted a starting point of six and a half years.  The only mitigating factor in the defendant’s favor was her guilty plea, which avoided the necessity of a full trial, for which twelve months were deducted from her sentence.  The question before the Supreme Court was whether the Convention on the Rights of the Child and CEDAW ought to be considered in sentencing.  In the course of answering such question in the negative, the judge was clear in relying solely upon national legislation: “This country through its elected representatives namely Parliament has chosen to take a pro-life stand and have legislated against abortion except when it is necessary to preserve the life of the mother.  Parliament having enacted that law, the courts duty is beyond question, it is required to enforce the laws of the land.  The rightness, wrongness or morality of such a law is debated in the building next door, not in this one.”  The fact that Samoa continues to criminalize abortion after ratifying international conventions evinces clear legislative intent against domesticating CEDAW through specific legislation.

Sentencia TC/0599/15 Constitutional Court (2015)

Abortion and reproductive health rights

The foundations “Justicia y Transparencia”, “Transparencia y Democracia” and “Matrimonio Feliz” challenged the constitutionality of Articles 107, 108, 109 and 110 of the Criminal Code Law 550-14. Law 550-14 regulates abortion, including the adjudication of cases of exoneration from criminal liability such as the interruption of pregnancy based on the crimes of rape, incest or malformations of the embryo that may endanger life. The foundations alleged the violation of, among others, Articles 101, 102, 105 and 112 of the Constitution that provide for the process of enacting organic laws (defined as those that regulate fundamental rights), and the violation of Article 37 that provides the inviolability of the right to life from the conception to death. The Criminal Code was approved by a simple majority. However, as it restricts fundamental rights such as the right to freedom, it must be considered as an organic law and therefore, had to be approved by a two-thirds majority. Additionally, only one of the chambers reviewed the executive authority’s observations before the law was approved. Likewise, the foundations argued that admitting exemptions from criminal liability to those who perform abortions was contrary to the Constitution which protects life from conception. The Constitutional Court admitted the action and ruled that Law 550-14 was unconstitutional because it created a new Criminal Code without following the due process necessary for its promulgation. 

Las fundaciones “Justicia y Transparencia”, “Transparencia y Democracia” y “Matrimonio Feliz” desafiaron la constitucionalidad de los artículos 107, 108, 109 y 110 de la Ley 550-14 del Código Penal. La Ley 550-14 regula el aborto, incluyendo el fallo de casos que tratan con la absolución de responsabilidad penal, como la interrupción del embarazo por delitos de violación, incesto, u otras malformaciones del embrión que pueden poner en peligro la vida de la madre y del feto. Específicamente, las fundaciones alegaron la violación de, entre otros, los artículos 101, 102, 105 y 112 de la Constitución, los cuáles contemplan el proceso de promulgación de leyes orgánicas (definidas como aquellas que regulan los derechos fundamentales), y además la violación del artículo 37, el cual establece como inviolable el derecho a la vida desde la concepción hasta la muerte. El Código Penal fue aprobado por la mayoría. Sin embargo, como restringe derechos fundamentales como el derecho a la libertad, el Código clasifica como una ley orgánica y, por lo tanto, debe ser aprobada por una mayoría de dos tercios. Además, sólo una de las cámaras tribunales revisó las observaciones dadas por la autoridad ejecutiva antes de que se aprobara la ley. Las fundaciones argumentaron que abstener de responsabilidad penal a quienes realizan abortos era contrario a la Constitución, la cuál protege la vida desde la concepción. La Corte permitió la acción a proceder y declaró que la Ley 550-14 en violación de la Constitucion en base a que creó un nuevo Código Penal sin seguir el procedimiento necesario para su promulgación inicial. 

Castles v. Secretary to the Department of Justice Supreme Court of Victoria (2010)

Abortion and reproductive health rights, International law

This case challenged a decision by the Secretary of the Department of Justice to refuse Ms. Castles’ access to in vitro fertilization (“IVF”) treatment, while she was in a low security prison.  Prior to her imprisonment for social security fraud, Ms. Castles was undergoing IVF treatment.  Although she was sentenced to only 18 months of imprisonment, Ms. Castles was nearing the age at which IVF would no longer be available to her.  Ms. Castles sought a declaratory judgment and injunctive relief to enable her to continue IVF treatment to conceive a second child with her husband.  The question decided by the Supreme Court was whether access to IVF is inherent in the right to respect privacy and family life.  The Supreme Court acknowledged that although incarceration necessarily involves a limitation of the right to liberty, it places an additional burden on the State to preserve human dignity.  International agreements, including CEDAW and ICESCR, recognize that decisions concerning the number and spacing of children, and access to health services, including in the area of sexual and reproductive health, are an aspect of the inherent dignity of a person that underlies all human rights.  The Supreme Court held that the requirement to give proper consideration to human rights required the decision-maker to consider the possible impact of the decision on a person’s human rights, but that this need not be a sophisticated legal exercise.  The Supreme Court further ordered the Department of Justice to allow Ms. Castles access to the relevant medical treatment, subject to an assessment of any countervailing security or other concerns on a visit-by-visit basis.

Public Ministry v. Busudu Tina Court of Greater Instance of Bukavu (1995)

Abortion and reproductive health rights, Gender discrimination

Busudu Tina (“the accused”) was prosecuted by the State for having aborted her pregnancy, punishable under Articles 165 and 166 of the Congolese Penal Code.  She attempted to abort her pregnancy using different methods, including ingesting quinine, manioc infusion, and a product described as ‘cloveganol’, and admitted to the Tribunal that she had aborted a previous pregnancy in 1991.  The Tribunal became aware of the abortion when an acquaintance, worried for the accused’s health, sought assistance despite being sworn to secrecy by the accused.  The fetus was hidden in a laundry bag, which found its way to the prosecutor’s office.  The Tribunal applied the minimum sentence of five years imprisonment, taking into account as a mitigating factor that she and her husband were estranged after six months of pregnancy. (Available at pages 128-130 on the linked website.)

Planned Parenthood of Se. Pennsylvania v. Casey United States Supreme Court (1992)

Abortion and reproductive health rights, Gender discrimination

In light of Roe v. Wade, the plaintiffs challenged various abortion-limiting restrictions in Pennsylvania’s Abortion Control Act. The Supreme Court created a new test that asks whether a state abortion regulation has the purpose or effect of imposing an “undue burden,” which the Court defined as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Pursuant to this test, the Court upheld nearly all of the restrictions in Pennsylvania’s state abortion law, including parental notification/consent requirements for minors and limitations on public funding of abortions. However, the Court did find that the statute’s husband notification requirement was unlawful. 

In re Doe Court of Appeals of Ohio (2011)

Abortion and reproductive health rights

A juvenile filed an application seeking permission to have an abortion without parental notification, but the Columbiana County Court of Common Pleas, Juvenile Division dismissed the application, finding that the juvenile was not sufficiently mature and well-informed enough to intelligently decide whether to have an abortion. The Court of Appeals of Ohio reversed and granted her petition. The Court of Appeals determined she was sufficiently mature and well-informed in part due to the following factors: that she was a few months away from turning 18, that she had good grades and planned to attend college in the fall, and that she had been using an oral contraceptive and only became pregnant when she ran out and her prescription expired.

Capital Care Network of Toledo v. State of Ohio Dept. of Health Court of Appeals of Ohio (2016)

Abortion and reproductive health rights

Capital Care is a medical facility that offers abortion services. It had been licensed for years to operate as an ambulatory surgical facility. An Ohio statute was passed that required all abortion providers to have a license from the Director of the Ohio Department of Health, and such licenses required providers to have a written transfer agreement with a local hospital. Capital Care could not obtain a transfer agreement with a local hospital, but had such an agreement with a nearby hospital in Ann Arbor, Michigan, yet was denied a license. The plaintiff sued in the Lucas County Court of Common Pleas, claiming this requirement placed an undue burden on women’s access to abortions. The Court ruled in favor of the plaintiff, and the Court of Appeals of Ohio affirmed that the transfer agreement requirement was unconstitutional as applied to Capital Care.

Decision No. 212 K/Pid.Sus/2011/PN.Pso Poso District Court (2011)

Abortion and reproductive health rights

The defendant, a physician, agreed to perform an abortion for a woman who was 20-22 weeks pregnant for Rp. 800,000. The defendant performed the abortion in her own home using a ‘Gastrul Pill’ and was criminally charged for intentionally performing an abortion. The defendant confessed to performing the procedure and did not contest the indictment. The court found that the defendant performed an illegal abortion because the woman did not have a prior examination from a counselor and defendant did not have a certificate endorsed by the minister. The court sentenced the defendant to 10 months imprisonment and a fine of Rp. 10,000,000.00.

Air India v. Nargesh Meerza Supreme Court of India (1981)

Abortion and reproductive health rights, Gender discrimination

Air India, a state-owned company, required female flight attendants to retire under three circumstances: (1) upon reaching 35 years of age, (2) upon getting married, or (3) upon first pregnancy. The Court struck the rules down, holding that these requirements constituted official arbitrariness and hostile discrimination.

International Case Law

S.F.A. v. Denmark CEDAW Committee (2018)

Abortion and reproductive health rights, Female genital mutilation or female genital cutting, Forced and early marriage

S.F.A., a Somali national, applied for asylum in Denmark for herself and her son born in 2013.  She was subjected to female genital mutilation as a child and her father wanted to marry her forcibly to an older man.  She had a relationship against her family’s wishes with H., became pregnant and had an abortion.  Her father learned about the abortion and her brothers threatened to hand her over to Al-Shabaab.  She left Somalia and ended up in Italy.  H. traveled to Italy, they got married and she became pregnant and H. died.  S.F.A. and her baby traveled to Denmark without documents and she applied for asylum.  Denmark rejected her asylum application and dismissed her claim.  She filed a complaint with CEDAW claiming that, if she and her son were deported to Somalia she would be personally exposed to serious forms of gender-based violence, as defined under articles 2, 12, 15 and 16 of the Convention.  The Committee noted that the Danish authorities found that S.F.A.’s account lacked credibility due to factual inconsistencies and lack of substantiation and that they considered the general situation in Somalia.  The Committee rejected her claim that the fact she is a single woman constitutes a supplementary risk factor in Somalia, finding that she has several close relatives in Somalia.  Based on the record, the Commission deemed the communication inadmissible under article 4(2)(c) of the Optional Protocol, finding that it was not able to conclude that the Danish authorities failed to give sufficient consideration to the application or that consideration of her case suffered from any procedural defect.

Korneykova and Korneykov v. Ukraine European Court of Human Rights (2016)

Abortion and reproductive health rights, Custodial violence

The first applicant, a woman in her fifth month of pregnancy, was taken into police custody on suspicion of robbery and subsequently detained pending trial.  The woman gave birth to her son, the second applicant, while in detention.  The woman claimed that she had been shackled to bed during her stay in the maternity hospital, placed in a metal cage during court hearings before and after giving birth, and that the physical conditions of her and her child’s detention and the medical care provided to the child in pre-trial detention had been inadequate.  The Court considered that shackling to a gynecological examination chair before and after birth giving on the basis that she could escape or behave violently was unjustified, inhuman and degrading given the woman’s condition, and that holding a person in a metal cage during a trial constituted an affront to human dignity. The Court also held that keeping the woman’s son in detention without any monitoring by a pediatrician for almost three months following his birth and without adequate healthcare constituted a violation of his rights.

Sawhoyamaxa Indigenous Community v. Paraguay Inter-American Court of Human Rights (2006)

Abortion and reproductive health rights, Gender discrimination, International law, Property and inheritance rights

This case involved issues involving the exposure of vulnerable members of indigenous communities, particularly children, pregnant women, and the elderly. A petition was filed against Paraguay on behalf of the Sawhoyamaxa Indigenous Community, alleging violations of, among other things, the right to fair trial and judicial protection, the right to property and the right to life. The petition noted that these violations placed children, pregnant women and the elderly in particularly vulnerable situations. The Court found Paraguay to be in violation of Articles 1(1), 2, 3, 4(1), 8, 19, 21 and 25 of the American Convention on Human Rights. The Court ordered Paraguay to formally and physically convey to the Sawhoyamaxa their traditional lands, to establish a community development fund, to pay non-pecuniary damages, to provide the Sawhoyamaxa with basic necessities until their lands were restored, to provide the Sawhoyamaxa with the necessary tools for communication to access health authorities, and to domestically enact legislation creating a mechanism for indigenous communities to reclaim their traditional lands.