Abortion In Malta Reviewing The Legal Stance From A Pro-Choice Perspective

ABORTION IN MALTA:
REVIEWING THE LEGAL STANCE
FROM A PRO-CHOICE PERSPECTIVE
DESIREE‟ ATTARD
A thesis submitted in partial fulfilment of
the requirements of the Degree of Doctor of Laws (LL.D.)
Faculty of Laws
University of Malta
June 2017

iii
ABSTRACT
Presently, Malta remains one out of only six countries which completely criminalise
abortion. Only two of these countries are European – the Vatican City State and Malta.
Multiple studies have shown that restricting access to abortion does not end the practice.
On the contrary, criminalisation has the effect of pushing it underground, to the
detriment of millions of women‟s lives and health. This thesis therefore makes the case
for a rethink of our current laws on abortion.
Technological advances in the field of medicine have made the abortion procedure
effortless, and most importantly, safe. When performed under the appropriate
professional supervision, both medical and surgical induced abortions are effective and
have minimal side effects. A brief analysis of the history of abortion illustrates how
abortion was not always a taboo issue, and how anti-abortionists were not always
necessarily motivated by the desire to protect the foetus.
All states regulate abortion differently, in accordance with what they believe is just for
both the woman and the potential life. From the landmark judgment of Roe v. Wade, to
the feminist movement in Finland, this thesis examines how the current legal scenario
on abortion came to be. Increasingly, international human rights law is also playing a
determining role in abortion law. Human rights treaties and their monitoring bodies are
exerting political pressure on states such as Ireland to revise their stringent abortion
laws.
In Malta, the legal position is clear on the matter, however, it does not reflect reality,
and is giving rise to a number of social problems. This thesis therefore puts forward
three different frameworks which could replace the current position, and concludes that
in order to protect women‟s rights while keeping in mind the Maltese context, the way
forward for Malta is to legalise abortion in limited circumstances.
Keywords: Abortion – Sexual and Reproductive Health and Rights – Women’s Rights –
Autonomy – Foetal Rights

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To my mother, my first example of what womanhood, love and sacrifice truly entail, I
owe everything.
To my grandfather, who led me to my other true love, literature, I can only hope to do
you proud.

v
CONTENTS
ABSTRACT ....................................................................................................................iii
CONTENTS ..................................................................................................................... v
TABLE OF STATUTES ................................................................................................. ix
TABLE OF JUDGMENTS ............................................................................................. xi
TABLE OF TREATIES ................................................................................................ xiii
ACKNOWLEDGEMENTS .......................................................................................... xiv
ABBREVIATIONS........................................................................................................ xv
INTRODUCTION............................................................................................................ 1
CHAPTER 1: UNDERSTANDING ABORTION AND THE OPPOSING VIEWS
RELATING TO IT........................................................................................................... 5
1.1 Defining abortion.................................................................................................... 5
1.1.1 Induced abortion.............................................................................................. 6
1.2 A brief history of abortion...................................................................................... 8
1.3 Pro-Choice, Pro-Life: assessing contrasts ............................................................ 13
1.3.1 When does life begin? ................................................................................... 13
1.3.2 Is an embryo a person? .................................................................................. 15
1.3.3 Does abortion deprive the embryo of a potential life? .................................. 17
1.3.4 Is the woman a person? ................................................................................. 17
1.3.5 Is viability relevant? ...................................................................................... 18
1.3.6 Legal vs. illegal induced abortions: an issue of safety .................................. 18
1.4 Concluding Remarks ............................................................................................ 20
CHAPTER 2: COMPARING ABORTION LEGISLATION AND DEVELOPMENTS
........................................................................................................................................ 21
2.1 Europe................................................................................................................... 22
2.1.1 The Netherlands............................................................................................. 22
2.1.2 Germany ........................................................................................................ 23

vi
2.1.3 United Kingdom ............................................................................................ 25
2.1.4 Finland........................................................................................................... 27
2.1.5 Poland............................................................................................................ 29
2.1.6 Ireland............................................................................................................ 32
2.2 The US.................................................................................................................. 39
2.2.1 Roe v. Wade .................................................................................................. 39
2.2.2 Doe v. Bolton................................................................................................. 41
2.2.3 Planned Parenthood v. Casey ........................................................................ 43
2.2.4 Abortion laws in the US today ...................................................................... 44
2.2.5 Whole Woman‟s Health v. Hellerstedt.......................................................... 46
CHAPTER 3: ABORTION AND INTERNATIONAL HUMAN RIGHTS LAW ....... 49
3.1 The Universal Declaration of Human Rights ....................................................... 49
3.2 The International Covenant on Civil and Political Rights.................................... 51
3.2.1 The Human Rights Committee...................................................................... 52
3.2.2 K.L. v. Peru ................................................................................................... 53
3.2.3 V.D.A. v. Argentina....................................................................................... 54
3.2.4 Mellet v. Ireland ............................................................................................ 55
3.3 The Convention on the Rights of the Child.......................................................... 58
3.3.1 The right to life.............................................................................................. 58
3.3.2 The Child‟s sexual and reproductive health rights ........................................ 60
3.4 The Convention on the Elimination of all forms of Discrimination against Women
.................................................................................................................................... 61
3.4.1 The Committee on the Elimination of Discrimination against Women ........ 62
3.4.2 L.C. v. Peru.................................................................................................... 63
3.5 The International Conference on Population and Development .......................... 64
3.5.1 The ICPD Programme of Action................................................................... 65

vii
3.6 The Fourth World Conference on Women........................................................... 67
3.6.1 The Beijing Declaration and Platform for Action ......................................... 67
3.7 The European Convention on Human Rights....................................................... 69
3.7.1 The European Court of Human Rights.......................................................... 70
3.7.2 Article 2: Right to life.................................................................................... 70
3.7.3 Article 3: Prohibition of torture..................................................................... 72
3.7.4 Article 8: Right to respect for private and family life ................................... 73
CHAPTER 4: THE MALTESE CONTEXT.................................................................. 75
4.1 Maltese law and abortion...................................................................................... 75
4.1.1 The Constitution ............................................................................................ 75
4.1.2 The Criminal Code ........................................................................................ 75
4.1.3 Other laws:..................................................................................................... 77
4.2 Abortion and the Courts ....................................................................................... 78
4.3 Malta and the E.U................................................................................................. 79
4.4 Malta‟s Foreign Policy ......................................................................................... 80
4.4.1 International Bodies on Malta‟s position ...................................................... 82
4.5 National Policies and Strategies on Sexual Health and Sexuality........................ 83
4.6 Abortion in practice.............................................................................................. 84
4.7 Concluding remarks.............................................................................................. 86
CHAPTER 5: AMENDING MALTESE LAW TO LEGALISE ABORTION ............. 87
5.1 Proposed Frameworks .......................................................................................... 87
5.1.1 Abortion is legal only where the woman‟s life is at risk............................... 88
5.1.2 Abortion is legal in limited circumstances .................................................... 90
5.1.3 Abortion is available upon request ................................................................ 93
5.2 Concluding remarks.............................................................................................. 94
CONCLUSIONS AND RECOMMENDATIONS......................................................... 95

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Recommendations ...................................................................................................... 97
Legalising abortion in limited circumstances......................................................... 97
BIBLIOGRAPHY ........................................................................................................ 100

ix
TABLE OF STATUTES
Malta
- Constitution of Malta
- Criminal Code, Chapter 9 of the Laws of Malta
- Civil Code, Chapter 16 of the Laws of Malta
- Immigration Act, Chapter 217 of the Laws of Malta
- Trust and Trustees Act, Chapter 331 of the Laws of Malta
- Domestic Violence Act, Chapter 481 of the Laws of Malta
- Foster Care Act, Chapter 491 of the Laws of Malta
- Embryo Protection Act, Chapter 524 of the Laws of Malta
- Child Protection (Alternative Care) Act, Chapter 569 of the Laws of Malta
Finland
- Law no. 239 of 24 March 1970 on the Interruption of Pregnancy
Germany
- German Criminal Code
Ireland
- Constitution of Ireland
- Eighth Amendment of the Constitution Act, 1983
- Thirteenth Amendment to the Constitution Act 1992
- Fourteenth Amendment to the Constitution Act 1992
- The Regulation of Information (Services outside the State for the Termination of
Pregnancies) Act 1995
- The Protection of Life During Pregnancy Act 2013
Netherlands
- Dutch Criminal Code
- Law on the Termination of Pregnancy of 1 May 1981
Poland

x
- Polish Penal Code
- The Family Planning, Human Embryo Protection and Conditions of
Permissibility Act of 1993
United Kingdom
- Malicious Shooting or Stabbing Act 1803
- Offences Against the Person Act 1861
- Infant Life (Preservation) Act 1929
- Abortion Act 1967
United States
- The Constitution of the United States
- Texas Penal Code
- Texas Health and Safety Code
- Pennsylvania Abortion Control Act
European Union
- Protocol No 7 on abortion in Malta, Official Journal L 236, 23/09/2003, P. 0947.
Others
- Code of Hammurabi

xi
TABLE OF JUDGMENTS
Human Rights Committee
- KL v Peru, Communication No. 1153/2003, views adopted 24 October 2005,
CCPR/C/85/D/1153/2003, (22 November 2005)
- LMR v Argentina, Communication No. 1608/2007, views adopted 29 March
2011, CCPR/C/101/D/1608/2007, (28 April 2011)
- Mellet v Ireland, Communication No. 2324/2013, views adopted 31 March
2016, CCPR/C/116/D/2324/2016, (17 November 2016)
Committee on the Elimination of Discrimination Against Women
- LC v Peru, Communication No. 22/2009, views adopted 17 October 2011,
CEDAW/C/50/D/22/2009, (4 November 2011)
European Court of Human Rights
- Paton v the United Kingdom, App. No. 8416/78, admissibility decision of 13
May 1980 (European Commission of Human Rights)
- Open Door Counselling Ltd and Dublin Well Woman Ltd v Ireland, App. Nos.
14234/88 and 14235/88 (1992)
- Boso v Italy, App. No. 50490/99 (2002)
- Vo v France, App. No. 53924/00 (2004)
- Tysiac v Poland, App. No 5410/03 (2007)
- P & S v Poland, App. No. 57375/08 (2008)
- A, B and C v Ireland, App. No. 25579/05 (2010)
- RR v Poland, App. No. 27617/04 (2011)
European Court of Justice
- C-159/90, Society for the Protection of Unborn Children Ireland (SPUC) v
Grogan and others, (1991)
Malta
- VC v DC (FH) (31st
December 1997) (6192/97)

xii
- Persiano Emilio v Commissioner of Police (FH) (24 August 2000) (2836/2000)
- Police v XYZ (COM (Criminal Judicature)) (17 December 2007) (715/2007)
- Police v Raya Sellami Zammit (COM (Criminal Judicature)) (24 November
2014) (1126/2014)
Germany
- BVerfGE 39, 1, Judgment of 25 February 1975.
Ireland
- Society for the Protection of Unborn Children Ireland (SPUC) v Grogan and
others, Ireland High Court
- Attorney General v X and Others Supreme Court [1992] ILRM 401
Poland
- Trybunal Konstitucyjny, May 28, 1997, K 26/96.
United Kingdom
- Rex v Bourne (1939) 1 KB 687
United States
- Colautti v Franklin (1979) 439 US 379
- Roe v Wade (1973) 410 US 113
- Doe v Bolton (1973) 410 US 179
- Planned Parenthood v Casey, (1992) 505 US 833
- Whole Woman‟s Health v Hellerstedt 579 US __ (2016)

xiii
TABLE OF TREATIES
United Nations
- The Universal Declaration of Human Rights (adopted 10 December 1948
UNGA Res 217 A (III) (UDHR)
- Vienna Convention on the Law of Treaties, concluded at Vienna on 23 May
1969, registered ex officio on 27 January 1980
- The International Covenant on Economic, Social and Cultural Rights (opened
for signature 16 December 1966 by UNGA Res 2200A (XXI), entered into force
3 January 1976) (ICESCR)
- The International Covenant on Civil and Political Rights (opened for signature
on 16 December 1966 by UNGA Res 2200A (XXI), entered into force 23 March
1976) (ICCPR)
- The Convention on the Elimination of All Forms of Discrimination against
Women (adopted 18 December 1979, entered into force 3 September 1981)
1249 UNTS 13 (CEDAW)
- Optional Protocol to the Convention on the Elimination of All Forms of
Discrimination Against Women, UNGA, 6 October 1999, United Nations,
Treaty Series, vol. 2131
- Convention on the Rights of the Child, (adopted and opened for signature,
ratification and accession by UNGA Res 44/25 of 20 November 1989)
- Declaration of the Rights of the Child, (Proclaimed by General Assembly
Resolution 1386(XIV) of 20 November 1959)
Council of Europe
- European Convention for the Protection of Human Rights and Fundamental
Freedoms, as amended by Protocols Nos. 11 and 14, and supplemented by
Protocols Nos. 1, 4, 6, 7, 12 and 13, 4 November 1950
European Union
- Charter of Fundamental Rights of the European Union 2012/C 326/02

xiv
ACKNOWLEDGEMENTS
I cannot but express my sincere gratitude to my tutor, Dr Tonio Borg, for his precious
time, patience and counsel. The opportunity of learning from and conversing with one
of Malta‟s best legal minds has been a true honour.
Heartfelt thanks also go to my friend and colleague Silvan Agius, who taught me the
importance of perseverance when working towards ensuring a fairer society for all, and
encouraged me in my research on this subject. His vast experience in the human rights
field continues to teach me new lessons every day.
My deepest gratitude also goes to my family, for their constant support, and the endless
sacrifices they have made throughout these past six years.
To Matt, for being a true partner and my best friend, I thank him for always believing in
me, even when I did not.

xv
ABBREVIATIONS
BPFA Beijing Platform for Action
CEDAW Convention for the Elimination of All Forms of Discrimination Against
Women
CEDAW Committee on the Elimination of All Forms of Discrimination Against
Committee Women
CJEU Court of Justice of the European Union
COE Council of Europe
CRC Committee on the Rights of the Child
CRR Center for Reproductive Rights
CSW Commission on the Status of Women
EC European Commission
ECHR European Convention on Human Rights
ECtHR European Court of Human Rights
ECJ European Court of Justice
ECOSOC The United Nations Economic and Social Council
EU European Union
HRC Human Rights Committee

xvi
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights
ICPD International Conference on Population and Development
MS Member state
OHCHR Office of the United Nations High Commissioner for Human Rights
SART Sexual Assault Response Team
SPUC Society for the Protection of the Unborn Child
UDHR Universal Declaration of Human Rights
UK United Kingdom
UN United Nations
UNCRC United Nations Convention on the Rights of the Child
UNFPA United Nations Population Fund
UNGA United Nations General Assembly
UNPD United Nations Population Division
USA United States of America
WHO World Health Organisation

1
INTRODUCTION
In Malta, as in other states, „there have always been attempts made to terminate
unwanted pregnancies‟.1
The pro-choice standpoint does not judge the morality or
otherwise of this fact, but accepts it as part of the fabric of society, and therefore sees
the benefits in regulating it. A pro-choice perspective believes in the notion that the
state should protect women‟s reproductive freedoms, and that therefore, women should
have the right to choose their own path when they become pregnant. The main aim of
this thesis is to analyse the Maltese legal position on abortion from this point of view,
and propose alternative legal frameworks reflecting this belief.
The provisions criminalising abortion within the Criminal Code have, for the most part,
remained untouched since their enactment in 1854. This thesis argues that a law enacted
one hundred and sixty-three years ago can hardly serve today‟s society well, and that
the legislator should therefore study alternative models to suit the needs of today‟s
society.
It is evident that Maltese society is currently undergoing an unprecedented shift in
mentality with regard to civil rights. Perhaps the first stark break from conservative
politics occurred in 2011, when the Maltese voted in favour of the introduction of
divorce.2
Since then, in a mere six years, the country has witnessed the enactment of
new laws which have shot Malta to the top of international rankings in terms of civil
liberties for the LGBTIQ community.3
Disappointingly, despite the rapid success in the
sector, the issue of abortion remains one of the biggest taboos in society. Most literature
attributes this state of affairs to the strong influence of the Catholic Church,4
which then
causes politicians to hesitate approaching the subject. However, the fact that this
1
C Savona-Ventura, Caring for Calypso’s Daughters (University of Malta 2013), p. 45.
2
L Abend, „Malta Says „We Do‟ to Legalizing Divorce‟ Time (1 June 2011)
<http://content.time.com/time/world/article/0,8599,2074721,00.html> accessed 15 April 2017.
3
ILGA-Europe, Annual Review of the Human Rights Situation of Lesbian, Gay, Bisexual, Trans and
Intersex People in Europe 2017 (May 2017), p. 158.
4
K Falzon, „Drawing the Life Line: Is a Sweeping Prohibition Provision Against Abortion Better than a
Cluster of Enactments Regulating Abortion?‟ (LL.D Thesis, University of Malta 2011) pp. 128-129; A
Gorman, „The 9 countries with the most draconian abortion laws in the world‟ Business Insider UK
(London, 15 December 2016) <http://uk.businessinsider.com/countries-strictest-abortion-laws-2016-
12/#chile-also-has-a-total-ban-on-abortion-2> accessed 15 April 2017.

2
element did not bar the aforementioned progress demonstrates that religious influence
cannot be the sole reason as to why many refuse to even debate the topic. The author
opines that the lack of information on the subject, and what abortion actually means for
society and for women, is a crucial factor which is keeping the country back from
legislating in its favour. This thesis seeks to play a role in breaking this taboo and
opening up the issue to mature discussion, without generalisations and fear mongering.
To this end, the first chapter of this thesis will briefly analyse the different abortion
procedures currently available in states where abortion is legal. The history of abortion
will also be examined in this chapter in order to probe into the social trends which
swayed opinion in favour or against legal abortion over time. Finally, the first chapter
will delve into the theoretical aspect of abortion, and why the issue is so fervently
debated.
Although the concept of legally regulated abortion remains alien to Malta, the absolute
majority of countries have legalised the practice in some form. The second chapter will
thus provide a comparative analysis of abortion laws in a number of European and
American states. The gaping differences in abortion laws, which vary from crime to
right, are substantial, and this study will seek to understand the reasoning behind both.
The states selected provide a wide overview of this spectrum of abortion laws currently
in force globally: from the liberal Dutch laws to the controversial Irish Constitution, the
aim of this chapter is to delve into how different states strike a balance between the
conflicting rights of all parties when abortion is sought. International human rights law
is becoming an increasingly influential player in domestic abortion legislation, as will
be explored in the third chapter of this thesis. This chapter will analyse international
treaties, together with their travaux preparatoires, in order to see if the right to legal
abortion is recognised under these documents. Moreover, decisions and
recommendations of treaty bodies will also be discussed, since these are the bodies
which give authoritative interpretations of their respective treaty.
The fourth chapter of this study will probe into the different aspects of the Maltese
situation, starting from the legal provisions on abortion and the unborn and the sparse
decisions of the Courts on abortion. Malta‟s relationship with the EU in this regard will

3
also be discussed, together with Malta‟s foreign policy and the negotiations made to
uphold the local position internationally. Crucial to the argument of this thesis, this
chapter will discuss what happens in reality in Malta, most notably, the abortion tourism
phenomenon. Finally, the fifth chapter will put forward a number of different legal
frameworks which could replace the current one, and analyse them in some detail.
Following this study, the author will then conclude by giving recommendations as to
which option would be best for the Maltese context, were the legislator to consider
legalising abortion.
For the sake of clarity and conciseness, a number of issues have been left out of this
thesis. Since this dissertation is focused on the legal aspect of abortion, the social and
political elements surrounding it within Maltese culture are only briefly referred to, and
hardly dealt with in the manner they deserve. Secondly, this thesis specifically relates to
the legalisation of abortion when the woman requires it or requests it. Consequently,
the element of consent and choice are the crux of this legal analysis. The issue of forced
abortions, therefore, will not be delved into, but it is crucial to note that such abortions
run directly contrary to the principles of the pro-choice ideology, and are also an
invasion of the woman‟s right to a private and family life. Contraception, in particular,
emergency contraception, has purposefully been left out of the scope of this work, since
it has been repeatedly proven that rather than inducing abortions, contraceptives a priori
eliminate the need to have such abortions.5
Despite claims that emergency contraception
is an abortive drug,6
for example, this is not the case.7
In order to conduct a clear, logical debate on any issue, but particularly an issue as
sensitive as abortion, an understanding of the terminology and words used is essential.
Throughout this thesis, the terms „foetus‟ and „embryo‟ will be used interchangeably
instead of terms such as „baby‟ or „unborn child‟, and the term „pregnant woman‟ will
5
A M Degabriele, „The Emergency Contraception: A way forward in Malta?‟ (LL.D Thesis, University
of Malta 2016) p. 22.
6
J P Fava, „MAPs are abortive and how!‟ The Malta Independent (10 July 2016)
<http://www.independent.com.mt/articles/2016-07-10/newspaper-opinions/MAPs-are-abortive-and-how-
6736160666> accessed 15 April 2017.
7
Planned Parenthood Foundation of America, Inc, The Difference Between the Morning-After Pill and
the Abortion Pill (April 2016)
<https://www.plannedparenthood.org/files/3914/6012/8466/Difference_Between_the_Morning-
After_Pill_and_the_Abortion_Pill.pdf> accessed 15 April 2017, p. 3.

4
be used instead of „mother‟. This is because the latter definitions reflect the pro-life
ideology that a zygote, embryo or foetus, are the same as a new born, or a toddler, and
that a woman immediately becomes a mother upon conception. The pro-choice belief
rejects this notion and differentiates between the prenatal and postnatal period.
Abortion may occur naturally or may be induced. Since natural abortions, more
commonly referred to as miscarriages, are beyond the control of the legislator, for the
scope of this study it is only induced abortions that will be examined. Therefore, unless
otherwise specifically stated, reference to „abortion‟ throughout this study will be a
reference to induced abortion.
It is inevitable that issues such as the one at hand will give rise to emotional responses,
and it is important to acknowledge that the subject is very personal and sensitive for
many. Nevertheless, for the scope of this work, the author is of the opinion that a
rationalist perspective should be adopted, since „arguments are one thing, sentiments
another, and nothing fogs the mind so thoroughly as emotion‟.8
8
J Feinberg, „The Mistreatment of Dead Bodies: The Moral Trap of Sentimentality‟, Hastings Center
Report, Volume 15 Issue 1 (1985), p. 31.

5
CHAPTER 1: UNDERSTANDING ABORTION AND THE
OPPOSING VIEWS RELATING TO IT
1.1 Defining abortion
Amid professionals in both the legal and medical communities, reaching a consensus on
one legal definition of abortion has proven to be difficult. Simply put, abortion literally
refers to something that is unfinished. In the context of the termination of a pregnancy,
it refers to the expulsion of the embryo or foetus from the uterus.9
Legally, abortion is generally accepted and defined as the removal of an embryo or
foetus from the uterus, at a stage in the pregnancy when such embryo or foetus is not
deemed to be viable.10
Viability is a hotly discussed notion both medically and legally,
and, as shall be discussed later on, has been the focal point of landmark judgments like
Roe v. Wade. Nonetheless, it is generally understood that a foetus is viable if it is
„potentially able to live outside the mother‟s womb, albeit with artificial aid‟.11
Medically, definitions of abortion tend to be more detailed. The WHO considers
abortion to be the termination of a pregnancy prior to 28 weeks, and the foetus having a
foetal weight of up to 500 grams.12
It is important to likewise define the embryo, which
is that organism that results from „the fertilisation of a human egg cell by a human
sperm cell which is capable of developing‟13
during the second to the eighth week of
gestation, and the foetus, which is what that organism becomes following the eighth
week of gestation until birth.14
Thus, while the overall concept is agreed upon, details such as the gestational period
from which a foetus may be considered viable remain up for debate. The reasons why
9
I L Maharaj, „Foetal Tissue Transplantation: the Ethics, the Law and the Born Alive Rule in Canada‟
(Masters of Law, University of Manitoba 2000), p. 11.
10
J Law and E A Martin (eds), „Abortion‟, Oxford Dictionary of Law, Oxford Printing Press (2009).
11
Colautti v Franklin [1979] 439 US 379, para. 439.
12
WHO Scientific Group, Spontaneous and Induced Abortion, (WHO, Geneva 1970), pp. 5-19.
13
Embryo Protection Act, Chapter 524 of the Laws of Malta, s. 2.
14
W A R Thomson (ed), „Embryo‟, Black’s Medical Dictionary, Black (1967).

6
conflicts over defining abortion arise are various. The constantly evolving scientific
positions on the matter can make definitions drafted merely ten, twenty years ago
redundant, and can spark new debates on the revision of legal provisions on abortion.
The social impact which language can have when defining a concept as contentious and
complex as abortion is also relevant. Reference to abortion as „the murder of human
life‟, for example, implies numerous connotations which openly reflect the views of
those referring to it as such.15
It is hence evident why many medical professionals and
legislators tend to shy away from giving a final definition.
1.1.1 Induced abortion
Induced abortions are those abortions that are deliberately commenced with the
intention to terminate pregnancy. The methods used to induce abortion vary according
to what is legally required and permitted in the territory concerned, the preferences of
the patient, as well as the gestational age of the embryo or foetus.
Medical abortion requires the ingestion of pharmaceuticals, namely doses of
mifepristone followed by misoprostol, to stop the hormones that allow pregnancy, break
down the lining of the womb, and effectively terminate the pregnancy.16
This method is
non-invasive and extremely safe, and for pregnancies in their first trimester, reliably
effective. Indeed, the success rate of medically induced abortions of up to eight weeks is
of 98%.17
Moreover, the medical method may be used up until the final week where
abortion is legally permissible by increasing the doses of misoprostol.18
On the other
hand, surgical abortion requires an intervention on the uterus to terminate pregnancy.
Depending on the stage of the pregnancy, different methods of surgically terminating a
pregnancy are available.
15
I L Maharaj, p. 8.
16
S C Smith and I Dutta, „Termination of Pregnancy (TOP)‟, Obstetrics, Gynaecology and Reproductive
Medicine Journal, (2014) p. 225.
17
PPFA, Mifepristone: Expanding Women’s Options for Early Abortion in the United States, (PPFA
2016), <https://www.plannedparenthood.org/uploads/filer_public/c9/5e/c95e8e7f-4a2a-40d2-b9a8-
edba334b64d5/mifepristone.pdf> accessed 6 January 2017, pp. 1-2.
18
S C Smith and I Dutta (n. 18).

7
Vacuum aspiration is the most effective up to around the end of the first trimester, and
requires the insertion of a tube into the womb, which then removes the foetus via
suction.19
The procedure of this method varies according to the gestational age of the
foetus.20
Dilation and evacuation, on the other hand, is the preferred method after the
first trimester and up to the stage which that particular country has legalised abortion.
The procedure involves ultrasound scanning prior to the procedure to minimize
complications, some form of anaesthetic and the insertion of forceps to evacuate the
womb.21
For both the aspiration method and the dilation and evacuation method, the
actual procedure is done within twenty minutes.22
Over and above the procedure in itself, in most countries where abortion is allowed,
some form of pre- and post-abortion care is required. These services vary from
counselling, both before and after the procedure, to the provision of pharmaceutics to
prevent possible infection.23
In comparison with medical abortion, surgical methods are
slightly more effective,24
but noticeably more expensive. When performed within the
appropriate medical standards, both methods are extremely safe, however, women tend
to prefer the non-invasive nature of medical abortion. Indeed, in the United Kingdom,
almost half of all terminations are now procured medically.25
As will be illustrated later on in this study, different legal provisions allow for different
limits as to the period within which abortions may be performed. The majority of states
where abortion is legal allow it freely throughout the first and second trimester, barring
exceptional cases,26
and indeed, the medical and surgical methods previously described
are most effective during these periods. Across European states, the time limits for
abortion vary from ten to twenty-two weeks.27
19
„How an abortion is carried out‟, NHS (2016), <http://www.nhs.uk/Conditions/Abortion/Pages/How-is-
it-performed.aspx> accessed 6 January 2017.
20
S C Smith and I Dutta, (n. 18).
21
NHS, (n. 21).
22
Ibid
23
Ibid
24
C Vella, „Ethical and legal considerations of the Maltese abortion stance.‟ (MA Bioethics and Medical
Law thesis, University of Malta 2014), p. 9.
25
26
Association of Reproductive Health Professionals, Health Matters: Seeking Early Abortion Services,
ARHP (2014), <http://www.arhp.org/uploadDocs/earlyabortion.pdf> accessed 6 January 2017, pp. 1-2.
27
L Acosta (ed), Abortion Legislation in Europe, (The Law Library of Congress, Global Research Center,
2015), p. 3.

8
Late-term abortion is of course the more controversial of abortions, since it is the
termination of a pregnancy at a stage where the foetus may be viable and thus possibly
able to survive independently. The exact point when a pregnancy enters into this stage is
still a medical grey area. While some professionals consider abortions performed after
the 27th
week of gestation to be late-term,28
others veer towards the 24th
week as being
the earliest time of viability.29
Irrespective of which gestation period legislators choose
to refer to as being late-term, the practice is largely illegal in most states, with
exceptions being made only where the woman‟s life is at serious risk, or where severe
foetal abnormality is detected. Where late-term abortion is allowed, induced foetal
demise is performed, in order to ensure that no viable foetuses are indeed carried to
term.30
1.2 A brief history of abortion
Abortion is in no way something new or unique to our era. Evidence of abortion
practices may be traced to thousands of years back, and spans across a number of
cultures and tribes from as far back as 2770 B.C.31
The Ebers Papyrus is possibly the
first document to directly refer to methods of induced abortion. This Egyptian
document, dating back to 1550 B.C., recommends the vaginal insertion of honey and
crushed dates to end a pregnancy.32
Meanwhile, Chinese texts from around one
thousand years later recommended using either a concoction of herbs or mercury, the
latter of which would have been highly toxic to the woman using it.33
In Greece,
abortion methods were also recorded. Plato notes that it was midwives who
administered drugs or recommended strenuous physical activity to induce pregnancy at
an early stage.34
It can therefore be observed that early methods of abortion were of a
28
J E Gans Epner et al, „Late-term abortion‟, Journal of the American Medical Association (1998), p. 1.
29
American Pregnancy Association, „Abortion Procedures‟, APA (2017),
<http://americanpregnancy.org/unplanned-pregnancy/abortion-procedures/> accessed 6 January 2017.
30
C Vella, p. 8.
31
S C Smith and I Dutta, p. 221.
32
J O Drife, „Historical perspective on induced abortion through the ages and its links with maternal
mortality‟, Best Practice and Research Clinical Obstetrics and Gynaecology Journal, (2010), p. 432.
33
34
Ibid

9
medical nature rather than a surgical one, mainly due to the fact that the necessary tools
weren‟t created yet.
Attitudes and motivations behind the first laws regulating abortion and miscarriage were
varied. The earliest recorded law relating to miscarriage through assault are found in the
Code of Hammurabi, the extensive Babylonian code of law, estimated to have been
written around 1750B.C. This Code stipulated that where a man strikes „so that she
[loses] her unborn child‟, she is to be given monetary compensation for her loss. The
Code then goes on to detail the different penalties incurred where the woman is a slave,
or where the woman dies as a result of the violence.35
This law is evidently not
interested with the intentional termination of a pregnancy, but is instead rather classist
in its motives, since it focuses on the rank of the victim concerned.
In ancient Greece, meanwhile, a deeper understanding of abortion was being formed.
The Hippocratic Oath, a landmark medical text, opposes abortions through the use of a
drug infused pessary, or tampon.36
Over the years, different translations and
interpretations of this text have surfaced, such as the well-known line „I will not give a
woman an abortive remedy‟, despite the fact that the closest translation to its literal
meaning is the aforementioned.37
This confusion led to its wide misinterpretation by
many pro-life campaigners, who choose to interpret these verses from the Hippocratic
Oath as a clear sign that the esteemed medic was opposed to abortion in general. In
doing this, they fail to note that his opposition to that procedure stemmed only from the
fact that it gave women vaginal ulcers.38
Indeed, in another text, Hippocrates advises a
pregnant slave to „jump up and down repeatedly, touching her heels to her buttocks, in
order to expel the seed‟.39
Arab medics also followed Hippocrates‟ original writings, with Arabic translations of
the Oath being found opposing dangerous pessaries. Physician Abu al-Hasan al-Tabib
35
Code of Hammurabi, Laws 209 – 214.
36
T Rütten, „Receptions of the Hippocratic Oath in the Renaissance‟, Journal of the History of Medicine
and Allied Sciences, (1996), p. 466.
37
J M Riddle, Contraception and Abortion from the Ancient World to the Renaissance (Harvard
University Press, 1994) p. 7.
38
39
H King, Hippocrates’ Woman, (Routledge, 1998), p. 136.

10
also recommended abortion for pregnant girls under the age of fifteen, due to the risk
which giving birth would pose to the teen.40
During the same period, Aristotle also found nothing morally wrong in abortion, as long
as the procedure was performed „before it has developed sensation and life; for the line
between lawful and unlawful abortion will be marked by the fact of having sensation
and being alive.‟41
The philosopher had also developed a rudimentary understanding of
the stages of a pregnancy, detailing in his writings the growth of the embryo during
pregnancy, and the possibility of aborting the embryo and the occurrence of stillbirth.42
During the early Roman Empire, upper-class Romans also recorded an anomalous
decline in births, despite abundant supplies and commodities, which suggests effective
methods of contraception or abortion were in existence.43
Indeed, it was found that
resorting to abortion was common and frequent, and was not viewed negatively.44
This
perspective began to change with the introduction of Christianity, when Emperor
Severus banned abortion.45
It is interesting to note, however, that abortion was not
considered to be homicide, but rather, the violation of the father‟s parental rights.46
Following the fall of the Roman Empire, it was during the medieval period where, with
the decline of the status of the woman, attitudes towards abortion began to change. With
women being denied access to education, and the medical profession becoming entirely
male-dominated,47
those women who did provide abortion services were condemned as
performing witchcraft.48
An aura of secrecy and taboo thus began to grow around
anything related to womanhood.
40
J M Riddle, p. 8.
41
Aristotle, Politics, Book 7, Section 1335b.
42
Aristotle, The History of Animals, Book 7, as translated by D. Wentworth Thompson.
43
C Joffe, „Abortion and medicine: a socio-political history‟, Management of an unintended and
abnormal pregnancy: comprehensive abortion care, (Blackwell Publishing Ltd, 2009), pp. 1-9.
44
K Hopkins, „Contraception in the Roman Empire‟, Comparative Studies in Society and History,
Volume 8, No. 1, (1965), pp. 124 – 130.
45
J M Riddle, p.63.
46
J M Roskamp, Christian Perspectives on Abortion Legislation in Past and Present, (GRIN Verlag,
2010), p. 2.
47
J O Drife, p. 432.
48
K Hopkins, p. 132.

11
The massive waves of social, scientific and economic changes occurring throughout the
19th
century also varied perspectives on abortion and fertility control. In England,
abortion prior to „quickening‟ was generally acceptable up until the early 19th
century,
and the situation remained unchanged for centuries.49
It was the Malicious Shooting or
Stabbing Act of 1803 which first imposed the death penalty on abortions performed
after quickening.50
The Act, which was subsequently amended and repealed, held that
abortions procured prior to quickening were also liable to a fine, imprisonment and a
public whipping.51
During this period, stringent abortion laws began to surface worldwide, despite the high
prevalence and demand for abortion at the time. The Industrial Revolution led to a
complete change in the social fabric, with large families moving to cities with appalling
housing conditions. Within the short span of fifty years, the average number of children
every woman had dropped from 5.5 to 2.4, and it is clear that abortion procedures
played a main role in this occurrence.52
Similarly, in the United States, abortion was widely resorted to, and was also legal up
until quickening. During the 19th
century, anti-abortion laws were slowly enacted: first
as laws to control poisons, which women would ingest to miscarry, then to prohibit the
sale of commercial abortifacients. However, the laws made no mention as to domestic
practices and remedies, suggesting that it was the commercialisation of abortion which
was frowned upon.53
A number of underlying issues motivated the eventual outright ban on abortions. Firstly,
most states outlawed abortion in an attempt to stifle the suffragette movement, and force
women to keep to their more traditional role in society.54
Secondly, these anti-abortion
49
J O Drife, (n. 49).
50
A T Thomson, „Lectures on Medical Jurisprudence, now in course of delivery, at the University of
London‟, The Lancet, Lecture XVII, (1837), pp. 625 – 630.
51
Ibid.
52
J O Drife, p. 433.
53
L J Reagan, When Abortion Was a Crime: Women, Medicine and Law in the United states, 1867-1973,
(University of California Press, 1996), p. 10.
54
OBOS Abortion Contributors, „History of Abortion in the US‟, Our Bodies Our Selves,
<http://www.ourbodiesourselves.org/health-info/u-s-abortion-history/> accessed 6 January 2017.

12
laws were heavily lobbied for by the American Medical Association,55
which had an
interest in establishing the supremacy of physicians over practitioners such as midwives
and homeopaths, who were usually the ones providing abortions. There were also a
number of racial and classist concerns which spurred on this legal wave. The number of
non-European and non-Protestant families migrating to the United states was on the
increase, while the high-class American „natives‟ experienced a drop in birth rates.56
To
this effect, anti-abortion campaigner Dr Horatio R. Storer had claimed, „Shall [these
regions] be filled by our own children or by those of aliens?‟, reflecting the racial
sentiment felt at the time.57
It was thus that the new laws barring abortion were introduced. During those hundred or
so years from the criminalisation of abortion up to Roe v. Wade, women had to resort to
illegal and dangerous procedures to get an abortion,58
with women of colour and of low
class suffering the most. Despite the difficulties and the shame surrounding the practice,
it is estimated that at the time, around 25% of pregnancies in the United States were
terminated prematurely.59
As will be explored later on in this study, these laws were eventually overturned by a
number of legal challenges in court, and policy decisions which shaped the current legal
position in a number of countries. Nevertheless, this historical overview shows that
throughout history and across a number of cultures, abortion has always been viewed as
a normal occurrence in life, until the forces intent on punishing the practice introduced a
sense of stigma and taboo around it. It is also noted that these forces, for the most part,
have been motivated by a variety of ultimately self-preserving interests. From the
classist undertones in the Code of Hammurabi, to the patriotic and patriarchal rationales
behind Dr Storer‟s discourse, the interest of the woman in question and the foetus inside
her were rarely central to the conversation on abortion. It is easy to conclude, therefore,
55
L J Reagan, p. 11.
56
D Scott Smith, „Family Limitation, Sexual Control and Domestic Feminism in Victorian America‟,
Feminist Studies 1, (1973) pp. 40 – 57.
57
L J Reagan, (n. 57).
58
Ibid
59
J C Mohr, Abortion in America: The Origins and Evolution of National Policy, (Oxford University
Press, 1978) pp. 76 – 82.

13
that abortion is not a modern concept, nor is it the consequence of a more modern and
liberal society.
1.3 Pro-Choice, Pro-Life: assessing contrasts
The debate on abortion has always been a polarised one between two opposing camps:
those who believe that abortion is a choice which women should have the right to make,
and those who believe that abortion is the outright violation of the right to life. This
debate can often become heated and emotional for many, with exaggerated analogies
stemming from both sides. From abortion being compared to the modern-day
Holocaust,60
to the denial of abortion being akin to forcing a person to spend nine
months intravenously hooked to a medically endangered famous violinist,61
such
metaphors hamper level headed debates on the matter. This section will ask a number of
questions and pinpoint issues which are pertinent in the abortion debate, and will
attempt to understand both the pro-choice and pro-life arguments for each, and assess to
what extent both are correct and incorrect. In turn, this will be useful in assessing the
influence both factions have had and continue to have on legislation and policy.
1.3.1 When does life begin?
The issue of the beginning of life is hotly contested, and it is unlikely that a definite,
conclusive decision will be reached in the near future.62
A focal principle of the pro-life
camp is that life begins upon conception,63
and therefore, that being already has the full
set of legal rights and obligations that an adult would have. This means that upon the
meeting of the sperm and the ova, a human being is present in the womb. Professor
Raymond Dennehy specifically upholds this theory, stating that „[the 46-chromosome
60
P Cocks, „MP dubs abortion „modern-day holocaust‟ during Shoah commemoration‟ MaltaToday (30
January 2017)
<http://www.maltatoday.com.mt/news/national/73952/abortion_is_modernday_holocaust_tonio_fenech_i
nsists#.WSBXo2h97IU> accessed 3 February 2017.
61
J Jarvis Thomson, „A Defense of Abortion‟, Philosophy and Public Affairs, Vol 1, No 1, (1971), p. 48.
62
R M Sade, „Defining the Beginning and the End of Human Life: Implications for Ethics, Policy, and
Law‟, Journal of Law, Medicine and Ethics, (2006) p. 6.
63
Ibid

14
zygote] is produced by a human father and a human mother. If it's not a human being,
what is it?‟64
This assertion is problematic because scientific research has shown quite clearly that
conception does not happen in one precise moment, but is completed gradually once
syngamy occurs.65
Moreover, it is also known that not all human organisms begin to
exist upon syngamy. Monozygotic twins, for example, begin to form usually around
fourteen days after the first zygote is formed.66
Due to this possibility of the zygote
splitting into other zygotes, most medical experts are of the opinion that individual
human identity is formed only once such twinning is no longer possible.67
Another
ethical problem of this position is its arbitrary nature. What makes the 46-chromosome
count a good milestone to establish a human being? Would this mean that it is
permissible to abort embryos with Turner Syndrome, who characteristically possess 45
chromosomes?68
On the other hand, the question on when a new human life begins is not so clear-cut for
pro-choice supporters, who recognise that, in the words of Professor Malcolm Potts, „it
is scientifically impossible to determine when life begins‟.69
This question is also losing
relevance in favour of the issue of personhood. Many do not hold the belief that just
because a being is human, then automatically, abortion is not morally permissible.70
Indeed, biological humanity is not always conducive to being given full legal rights.
Elements such as consciousness, self-consciousness and rationality also come in play
when assessing whether an organism should be granted moral status.71
64
R Abcarian, „Abortion debaters have agreed to disagree for 10 years‟, Los Angeles Times, (23 February
2010) <http://articles.latimes.com/2010/feb/23/nation/la-na-abortion-debate24-2010feb24> accessed 3
February 2017.
65
B Steinbock, „The Morality of Killing Human Embryos‟, Journal of Law, Medicine and Ethics, (2006)
p. 27.
66
J McMahan, The Ethics of Killing: Problems at the Margins of Life, (Oxford University Press, 2002)
pp. 40 – 42.
67
J A Robertson, Children of Choice: Freedom and the New Reproductive Technologies, (Princeton
University Press, 1994), pp. 459 – 460.
68
Eunice Kennedy Shriver National Institute of Child Health and Human Development, „Turner
Syndrome: Condition Information‟, (NIH),
<https://www.nichd.nih.gov/health/topics/turner/conditioninfo/Pages/default.aspx> accessed 5 February
2017.
69
R Abcarian (n. 66).
70
M A Warren, „On the Moral and Legal Status of Abortion‟, The Monist, Vol. 57, No. 1, (1973), pp. 44
– 45.
71
B Steinbock, p. 28.

15
This is the reason why many prefer to base their opinion on abortion on the question of
personhood, rather than the beginning of life. A distinction between being „human‟ and
being a „person‟ is thus made: the former being a biological concept, which refers to
which species that organism belongs to, and the latter referring to beings in possession
of rights.72
A zygote, or an embryo, is naturally human, and is obviously alive, but such
qualities do not automatically infer personhood.
1.3.2 Is an embryo a person?
As previously cited, the crucial argument of those who oppose legal abortion is that
after conception, the being within the woman‟s womb is automatically a fully-fledged
person.73
This is why, in their view, abortion is morally wrong and unacceptable at any
stage during the pregnancy and for any reason. The position of the Catholic Church in
this regard, for example, is clear: a human being must be granted the rights of a person
from the moment of conception.74
Abortion is thus a „moral evil‟, and this position is an
„unchangeable‟ one.75
In an attempt to distance the anti-abortion argument from religion, many conservatives
argue that their stance is a purely scientific one, in that the embryo is already a human
being, despite not having reached full maturity.76
This perspective argues that a woman
who opts to abort that being is discriminating against „a very young child‟77
. The pro-
life view therefore sees no difference between an embryo and an infant, except for their
degree in development.78
Nevertheless, it has already been argued that while an embryo may indeed be a human
being, such status does not give it full moral status as that of a person. Indeed, the pro-
choice argument distinguishes between a human being and a person, and attempts to
72
M A Warren, pp. 53 – 57.
73
K Pollitt, PRO: Reclaiming Abortion Rights, (Picador, St Martin‟s Press, 2015), p. 65.
74
Catechism of the Catholic Church, Part III, Section II, article V, (I), Section 2270.
75
Ibid Section 2271.
76
R George and C Tollefsen, Embryo: A defense of Human Life, (Princeton: The Witherspoon Institute,
2011) p. 20.
77
Ibid
78
K. Pollitt, p. 89.

16
ascertain the beginning of personhood, rather than the beginning of life. In her
momentous work, „On the Moral and Legal Status of Abortion‟, Mary Anne Warren
contends that the immorality or otherwise of abortion is not shown through the
humanity of the embryo or foetus, in the same way that killing as an act of self-defence
is not immoral due to the fact that the attacker is a human being.79
Personhood is thus considered to be an equally fundamental question in the abortion
debate: at what point does an organism become entitled to the full moral rights and
duties which we have as individuals? There are many opinions as to when a genetic
human being becomes a person, and thus part of the „moral community‟ which
consequently grants a set of moral rights.80
While pro- and anti-abortion backers will
undoubtedly never agree on when that being becomes a person, they do agree that this
does occur at some point, and that the killing of that person is wrong.81
Therefore, that
the answer to this question is highly sought will come as no surprise.
In Roe v. Wade, the Court held that personhood, as used in the fourteenth amendment,
could not be interpreted to refer to or include the foetus.82
This decision was reached
because had the foetus been granted personhood, then it would have its right to life
guaranteed by the US Constitution.83
There have been numerous attempts to define
personhood, but consensus has never been reached. This lack of agreement has led
many philosophers to argue that personhood should not be the issue upon which the
abortion controversy can be decided,84
since the vague nature of the notion of
personhood, while difficult to avoid, cannot possibly draw the line as to when abortion
is permissible or not.85
As will be seen below, there are other considerations which
could be better poised to construct our view on abortion.
79
M A Warren, pp. 45 – 46.
80
Ibid
81
L F Kerckhove and S. Waller, „Fetal Personhood and the Sorites Paradox‟, The Journal of Value
Inquiry, Vol. 32, (1998), p. 175.
82
Roe v Wade [1973] 410 US 113, para. 157 – 158.
83
Ibid. para. 156 – 157.
84
R Macklin, „Personhood and the Abortion Debate‟, in J L Garfield and P Hennessy (eds) Abortion:
Moral and Legal Perspectives, (The University of Massachusetts Press 1984), p. 83.
85
L F Kerckhove and S Waller, p. 177.

17
1.3.3 Does abortion deprive the foetus of a potential life?
An argument which pro-life advocates put forward, once the previous two are
exhausted, is the loss of a potential life through abortion. The loss of life, it is argued,
deprives a person of both his present life and that life which could have been.
Destroying an embryo, therefore, is equally depriving that embryo of a „valuable
future‟, or at least, a „future like ours‟.86
The counter argument to this position is that the foetus‟s potential personhood alone
should not make abortion wrong. This is because the rights of potential people are, or at
least should be, „invariably overridden‟ by the moral rights of actual people.87
There can
be no doubt on the personhood and presence of women, which leads to the next
argument.
1.3.4 Is the woman a person?
This question may sound ridiculous at first due to its seemingly obvious answer,
however, in the abortion debate, it merits consideration. So far, the debate on abortion
has focused heavily on the status of the embryo. That issue is naturally pertinent,
however, the complete obsession with it ignores the fact that the rights of another
person are also at stake – the pregnant woman. Indeed, in challenging the assumption
that if foetuses are human beings, then abortion is properly classified as murder, one
automatically challenges the implied decision that the rights of pregnant women can be
left out of the deliberation entirely.88
For those who oppose abortion, the rights of the embryo erase the pregnant woman‟s
rights. Hence, if the rights of a being, the personhood of which has not been ascertained
yet, can trump the rights of a woman, it may be deduced that that woman is no longer a
person for those who hold that view. This may sound extreme, however, when studying
assertions like those of Justin Humphreys‟, who confidently claimed that pregnant
86
D Marquis, „Why Abortion is Immoral‟, The Journal of Philosophy, no. 4, (1989) pp. 189 – 190.
87
M A Warren, p. 48.
88
Ibid p. 47.

18
women became „hosts‟ to the embryo, and that their body no longer belonged to them,
this statement becomes very pertinent.89
1.3.5 Is viability relevant?
In Roe v. Wade, the Court chose to use viability as the point which would determine
between the woman‟s and the state‟s interest in the foetus. Prior to viability, the state
cannot prohibit abortion,90
thus leading to the need to be able to pinpoint when viability
occurs. According to the Court, viability is the moment when the balance between the
pregnant woman‟s rights and the state‟s interest in protecting the potential of human life
tilts towards the state.91
This decision implies the rejection of other stages of pregnancy
which could commence the state‟s right to regulate abortion, such as conception and
quickening.92
Despite being such a turning point, the point of viability has been left
flexible by the Court in order to give leeway to anticipated advancements in medical
technology.93
1.3.6 Legal vs. illegal induced abortions: an issue of safety
Data collected over the years has consistently shown that induced abortions occur in
every region of the world, notwithstanding the legality or otherwise of abortion in that
region. On average, 56 million abortions occur worldwide annually.94
That figure
represents 25% of all pregnancies,95
reaffirming the fact that abortion is a common
social phenomenon which needs to be addressed, not shunned aside.
89
T Embury-Dennis, „US politician says pregnant women are „hosts‟ once they are „irresponsible‟ enough
to have sex‟, Independent, (14 February 2017) <http://www.independent.co.uk/news/world/americas/us-
republican-justin-humphrey-oklahoma-abortion-law-sex-planned-parenthood-pro-choice-a7580326.html>
accessed 14 February 2017.
90
Roe v Wade [1973] 410 US 113, para. 163.
91
Ibid paras. 157 – 158.
92
E Griffin, „Viability and Fetal Life in state Criminal Abortion Laws‟, Journal of Criminal Law and
Criminology, Vol. 2 Issue 1, (1981) pp. 328 – 329.
93
Ibid p. 338.
94
WHO, „Preventing unsafe abortion‟, (WHO, 2016)
<http://www.who.int/mediacentre/factsheets/fs388/en/> accessed 14 February 2017.
95
Ibid

19
The legalisation of procedures relating to abortion will necessarily entail their regulation
through policies which accompany the law. This is crucial to ensure that abortions are
safely carried out by persons who have the necessary medical skills, in an environment
compliant with medical standards. Furthermore, they ensure that the woman requesting
an abortion is fully informed of her options, and receives all the help she may require at
any stage of the process.
Indeed, in countries where access to abortion is unhindered, the total safety of abortion
procedures is widely reported and factually proven. A study on abortion during the first
trimester conducted in New York under proper medical guidance, for example,
concluded that in 170,000 abortions, only 1% had some form or other of minimal
complication96
. In South Africa, deaths related to unsafe abortions dropped by 50%
after a mere six years of legalising abortion97
.
In countries where abortion is still illegal, the situation could not be more dissonant.
The criminalisation of abortion results only in clandestine procedures that are medically
unsafe. In the developing regions of the world, where abortion is still unregulated, 6.9
million women are treated for complications following unsafe abortions,98
and around
47,000 women die as a result on an annual basis.99
Almost every condition or death
brought about by unsafe abortions could have been easily prevented through the
provision of safe, legal abortion, the appropriate use of contraception, and sexual
education. In their statement against Nicaragua‟s criminalisation of abortion, the World
Medical Association confirmed this sentiment, confirming that the criminalisation of
abortion in all circumstances „may have a negative impact on the health of women in
Nicaragua country [and] could result in preventable deaths of women and the embryo or
foetus they are carrying‟.100
96
E Hakim-Elahi, „Complications of first-trimester abortion: a report of 170,000 cases‟, Obstetrics,
Gynaecology and Reproductive Medicine Journal, (1990), pp. 134 – 135.
97
S Cohen, „Facts and Consequences: Legality, Incidence and Safety of Abortion Worldwide‟,
Guttmacher Policy Review, Volume 12, Number 4, (Guttmacher Institute, 2009), p. 4.
98
Guttmacher Institute, „Consequences of unsafe abortion in the developing world‟, (Guttmacher
Institute, 2016), <https://www.guttmacher.org/infographic/2016/consequences-unsafe-abortion-
developing-world> accessed 14 February 2017.
99
WHO (2016), (n. 96).
100
WMA, „WMA Emergency Resolution on legislation against abortion in Nicaragua‟, Handbook of
WMA Policies, (The World Medical Association, Inc., 2009), p. 351.

20
Additionally, statistics have repeatedly shown that criminalising abortion does not stop
it from occurring. On the contrary, the abortion rate of countries where abortion is
completely prohibited or very strictly limited is noticeably higher than the abortion rate
of countries where abortion is available on request.101
It is therefore evident that
completely prohibiting or heavily restricting access to safe, legal abortion is a futile
exercise.
1.4 Concluding Remarks
This chapter is a reflection on what abortion is in practice, and how it has developed
over centuries of societal changes. It is evident that today, abortion methods, when
performed properly and legally, are safe, effective and mostly non-invasive. The study
of abortion history leads to the point that abortion has always been part of womanhood,
and that the interest in regulating it has been more about control over women than
protecting new life. The assessment of the different outlooks and philosophies on
abortion indicates that while both sides of the debate make valid points, compromise is
nowhere near, and definitions still leave much to be desired. Nonetheless, it is argued
that the pro-choice point of view is a more comprehensive and rational outlook on the
matter, since it takes into consideration the rights of both the pregnant woman, together
with the potential rights of the foetus, and attempts to find a balance between the two.
101
WHO, (2016), (n. 96).

21
CHAPTER 2: COMPARING ABORTION LEGISLATION
AND DEVELOPMENTS
This chapter presents a comparative study of the different abortion laws currently in
force in various states around the world, showcasing the different provisions used to
allow access to, and limit, abortion procedures. Together with the present situation, the
social and political factors which led to such regulations, as well as the various Court
rulings on the matter, will also be examined. It is interesting to note that the processes
that led to the present laws vary from one country to the other, and are often marked
with charged political and social confrontations.
The states examined will vary in their perspective on abortion in order to gain a wide
outlook on the issue. This comparison will in turn be of use when presenting the central
case of this study. Internationally, only six countries criminalise abortion under any
condition: Malta, Vatican City, Chile, the Dominican Republic, El Salvador and
Nicaragua.102
Abortion laws are widely varied, however, 96% of all nations legalise at least some
form of abortion.103
To date, these states have opted to choose a selection of grounds to
permit abortion, which have been outlined by the UN as follows:
- Intervention to save the life of the woman (life grounds);
- Preservation of the physical health of the woman (narrow health grounds);
- Preservation of the mental health of the woman (broad health grounds);
- Termination of pregnancy resulting from rape or incest (juridical grounds);
- Suspicion of foetal impairment (foetal defect);
- Termination of pregnancy for economic or social reasons (social grounds).104
102
A E Theodorou and A Sandstrom, „How abortion is regulated around the world‟, (Pew Research
Center, 6 October 2015) <http://www.pewresearch.org/fact-tank/2015/10/06/how-abortion-is-regulated-
around-the-world/> accessed 20 February 2017.
103
United Nations Population Division, Department of Economic and Social Affairs, World Abortion
Policies 2013, (United Nations, 2013).
104
United Nations Population Division, Department of Economic and Social Affairs, Abortion Policies: A
Global Review, (United Nations, 2002), Notes, p. 2.

22
2.1 Europe
For the most part, European states allow abortion in some form or other, especially
during the first trimester. Due to the limitations of this study, only six European
countries will be examined in depth. The laws of these states vary, from those which
allow abortion freely upon request, to those which allow abortion for a limited number
of reasons, and finally, to laws which tolerate abortion only to save the woman‟s life,
and even then impose very strict regulations on how such procedure may be accessed.
2.1.1 The Netherlands
In the Netherlands, abortion has been legal for all the aforementioned grounds since
1981105
through the Law on the termination of pregnancy.106
Prior to the enactment of
this law, abortion was illegal in all cases, except in order to save the woman‟s life.107
This Dutch law states that legal abortions may only be performed by a physician in a
licensed hospital or clinic,108
and that the procedure may occur only five days after the
woman seeking the abortion has consulted that physician.109
These provisions are
intended to ensure that the woman reaches the decision to terminate her pregnancy „of
her own free will‟,110
carefully, and in a fully informed manner.111
Indeed, the law
obliges physicians to inform the woman on the other options available to her beyond
abortion, such as adoption.112
The gestational limit is not specified in the law, however, the Penal Code establishes
that the killing of a foetus post-viability is illegal.113
In practice, most clinics permit
abortion up to twenty-four weeks into the pregnancy.114
Late term abortions are
105
Ibid p. 159.
106
Law on the Termination of Pregnancy, viewed in English at
<https://cyber.harvard.edu/population/abortion/Nether.abo.htm> accessed 20 February 2017.
107
UNPD, Department of Economic and Social Affairs (2002), p. 160.
108
Law on the Termination of Pregnancy, s. 2.
109
Ibid s. 3 (1).
110
Ibid s. 5.
111
Ibid
112
Ibid
113
Criminal Code (Netherlands), s. 82a.
114
L Acosta, p. 25.

23
regulated by the Directions on the Non-Prosecution of Cases of Euthanasia Not by
Request and Late Abortions. Such abortions are heavily monitored by a review
committee, which assesses if such abortions were performed with due care, and either
because the foetus was not expected to survive outside the womb, or if the foetus has
serious foetal disorders which are likely to lead to its death, even with medical
interventions.115
The Law on the termination of pregnancy therefore ensures the safety of abortion
procedures throughout, both before, during and after the procedure, by stating that
following the abortion, both the woman and her nearest relatives are to be given access
to suitable aftercare.116
Section 20 of the same law allows for the conscientious
objection of physicians, who must nonetheless inform immediately the woman of his or
her stand on the matter.117
These laws are clearly a success: standing at 9.7 abortions per 1,000 women, today the
Netherlands has one of the lowest abortion rates in the world, as well as one of the
lowest maternal mortality ratios (6 per 100,000 live births).118
2.1.2 Germany
The current legal situation on abortion in Germany is the result of years of political
conflict and Constitutional Court decisions. Prior to the unification of the Federal
Republic of Germany and the German Democratic Republic, the two countries held
polarised views on abortion.119
In the West, abortion on request was mostly illegal, with
these laws being based on the principles enunciated by the German Federal
Constitutional Court in BVerfGE 39, 1.120
On the other hand, abortion laws in the
115
Ministry of Security and Justice, „New regulation on late-term abortions and termination of life in
neonates‟, (Government of the Netherlands, 11 December 2015)
<https://www.government.nl/ministries/ministry-of-security-and-justice/news/2015/12/11/new-
regulation-on-late-term-abortions-and-termination-of-life-in-neonates> accessed 20 February 2017.
116
Law on the Termination of Pregnancy, s. 5.
117
Ibid s. 20.
118
UNPD, Department of Economic and Social Affairs, (n. 105).
119
120
BVerfGE 39, 1, Judgment of 25 February 1975.

24
German Democratic Republic were highly liberal and based on women‟s rights and
communist ideals.121
Abortion was thus available upon request and easily accessible.
Following unification, abortion was legalised, and almost immediately challenged
before the Constitutional Court. It was argued that the law was unconstitutional, since it
violated the right to life. In this case, the Court reaffirmed the Court‟s decision in
BVerfGE 39, 1, but held that although abortions, unless performed for therapeutic
reasons, were unlawful, they could be performed in Germany without fear of
prosecution.122
Following the Court‟s ruling, new legislation reflecting this decision was enacted in
1995. Today, abortion is a criminal offence liable to imprisonment of up to three years,
or a fine,123
or up to five years if the abortion is performed against the woman‟s will or
occurs through gross negligence, which also endangers the woman‟s life.124
However,
the same Code provides for exceptions to the offence, which in effect allows abortion
upon request up to twelve weeks since conception, and if she presents a certificate that
indicates that she obtained counselling at least three days prior to the operation.125
A
further gestational limit of twenty-two weeks is provided in cases where the woman has
obtained counselling, and it is shown that the woman was in „exceptional distress‟ at the
time.126
In addition to the woman‟s request, an abortion may also be performed if it is medically
necessary to „avert a danger to the life or the danger of grave injury to the physical or
mental health of the pregnant woman and if the danger cannot reasonably be averted in
another way from her point of view‟.127
Pregnancies may also be legally terminated
where such pregnancy came to be through „an unlawful act‟,128
such as rape or sexual
assault. In both medical and criminal grounds, the consent of the woman is essential.
121
122
Ibid
123
German Criminal Code, s. 218 (1), viewed in English at <http://www.gesetze-im-
internet.de/englisch_stgb/german_criminal_code.pdf> accessed 20 February 2017.
124
Ibid s. 218 (2).
125
Ibid s. 218a.
126
Ibid s. 218 (4).
127
Ibid s. 218a (2).
128
Ibid s. (3).

25
The law also specifies that the procedure requires an independent doctor to certify that
these grounds subsist, and must be performed by a physician other than the one who
certifies such grounds.129
German law provides for the protection of both the woman undergoing the procedure
and the potential life. Prior to the procedure, the physician must fully inform the woman
on the details, after-effects and risks of the operation.130
In addition, the compulsory
counselling, which the woman must attend, is precisely intended „to protect unborn
life‟.131
The aim of this service is to possibly encourage the woman to bring the
pregnancy to term by showing her that other possibilities do exist. During this
counselling, the woman should be made aware that under German law, abortion can
only be allowed „when carrying the child to term would give rise to a burden for the
woman which is so serious and extraordinary that it exceeds the reasonable limits of
sacrifice.‟132
2.1.3 United Kingdom
As was observed in the previous chapter, the first law to formally criminalise abortion
after quickening was enacted in 1803.133
Barring some amendments to the punishments
tied to the offence of abortion, the law essentially remained the same until many
decades later, and therefore abortion was unlawful at all times and without exception.
Nonetheless, the wording used in the Offences against the Person Act of 1861, in
particular the use of the word „unlawful‟,134
was interpreted by some to mean that it
referred to the Infant Life (Preservation) Act, which stated that abortions which were
performed „in good faith for the purpose only of preserving the life of the mother‟135
were not unlawful.
129
L Acosta, p. 14.
130
German Criminal Code, s 218c.
131
Ibid article 219.
132
Ibid
133
134
Offences Against the Person Act 1861, s. 58.
135
Infant Life (Preservation) Act 1929, s. 1 (1).

26
This was debated at length in Rex v. Bourne, a case which both clarified the situation in
1938, and paved the way towards the present situation. In this case, Mr Bourne, a
surgeon, performed an abortion on a fourteen year old who had become pregnant, as
well as suicidal, as a result of a violent rape. The procedure had been performed with
the consent of the girl‟s parents.136
Mr Bourne was eventually acquitted, setting a
powerful precedent which shattered the assumption that abortion was completely illegal
in the United Kingdom.
Abortion was eventually legalised by the Abortion Act of 1967, which is the law
currently in force and which applies limitedly to England, Scotland and Wales.137
In
Northern Ireland, it is still the Offences Against the Person Act which applies, together
with the region‟s criminal law. Therefore access to abortion, both legally and in
practice, is strictly limited to when the woman‟s life, or her physical or mental health
are at risk.138
The Abortion Act permits the termination of pregnancy by a registered medical
practitioner in a registered hospital, following the opinion of two such practitioners that
the procedure may lawfully proceed.139
Abortion is permitted until the twenty-fourth
week of pregnancy, if such pregnancy would lead to „injury to the physical or mental
health‟ of both the mother and any existing children.140
The reference to children which
the mother is already responsible for is a welcome provision which reflects the need to
respect the best interest of the child. A pregnancy may also be terminated during any
stage of the pregnancy if it would lead to grave permanent injury141
of the woman, or if
such pregnancy is a risk to her life.142
Abortion may also be performed where the foetus
would be severely handicapped were it to be carried to term.143
136
Rex v Bourne [1939] 1 KB 687, para. 689.
137
Abortion Act 1967, s. 7 (3).
138
K Birchard, „Northern Ireland resists extending Abortion Act‟, The Lancet, Volume 356, No 9223,
(2000), p. 52.
139
Abortion Act 1967, s. 1(1).
140
Ibid s 1 (1) (a).
141
Ibid s 1 (1) (b).
142
Ibid s. 1 (1) (c).
143
Ibid s 1 (1) (d).

27
The Abortion Act does not specifically provide for the availability for abortion upon the
woman‟s request, nor does it allow the procedure in cases of rape or incest.
Nonetheless, the Act specifies that in the assessment of the risk to the woman‟s physical
or mental health, account may be had of her „actual or reasonably foreseeable
environment‟.144
In practice, this provision is interpreted widely, thus making abortion
de facto available on request.145
Under this Act, the conscientious objection of practitioners is protected, nonetheless,
such objection must be proved by the person who claims it.146
Moreover, such objection
cannot hamper treatments which are necessary to prevent serious permanent injury to
the woman‟s health, as well as treatment necessary to save that woman‟s life.147
2.1.4 Finland
In Finland, abortion was illegal until 1950, despite the fact that the practice was largely
accepted as a form of birth control by most of the population.148
This first legalisation
permitted abortion solely on medical grounds, including only serious risks to the
woman‟s physical and mental health, possible deformities in the foetus, and cases of
rape.149
The law was eventually widened further in 1970, following pressure made by
liberal and feminist movements.150
The law which is thus presently in force is the Act on Termination of Pregnancy. This
Act differs from those previously examined in this chapter because the grounds for
which it allows abortions to be performed not only take into consideration the living
conditions of the woman, but also the conditions of her immediate family.151
This broad
view on the repercussions of giving birth is comprehensive, and puts the woman‟s
144
Ibid s 1 (2).
145
146
Abortion Act 1967, s. 4 (1).
147
Ibid s 4 (2).
148
M Meskus, „To exclude or to enclose? Medicalization of abortion in Finland, 1900-1950‟,
Scandinavian Journal of History, Volume 30, No 1, (2006) p. 46.
149
150
Ibid
151
Law no. 239 of 24 March 1970 on The Interruption of Pregnancy, viewed in English at <
https://cyber.harvard.edu/population/abortion/Finland.abo.htm> accessed 23 February 2017, s. 1.

28
decision to terminate a pregnancy into context. It also reflects the pro-choice narrative
that abortion can also be a responsible family choice.
Finnish law, therefore, allows abortion upon the woman‟s request, or where she is
unable to request it, at the request of her guardian or trustee,152
for a number of
conditions. These include instances where the pregnancy endangers her life or health153
or if the delivery of a child would place a considerable strain on her, in view of the
circumstances of the woman and her family.154
Moreover, abortion may also be
permitted where the woman already has four children,155
another social consideration
which gives this legislation a wider perspective than its foreign counterparts. The law
also considers cases of rape or incest,156
as well as issues of age: if the woman is less
than seventeen years old, or over the age of forty,157
abortion may be lawfully
performed. Medical grounds such as a serious defect of the foetus,158
or where any one
of the parents is afflicted by a disease that would seriously limit their capacity to care
for a child, are also given consideration.
With regard to the timeframe within which an abortion may take place, the Act states
that it should be performed „at the earliest possible stage of pregnancy‟, with a
maximum time of twelve weeks of gestation.159
Notwithstanding this relatively short
time limit, an abortion may be performed until the twentieth week if the woman is under
the age of seventeen or if special reasons subsist, and up to the twenty-fourth week if it
is established that the embryo is severely disabled.160
In both exceptional cases, the
abortion must be authorised by the state Medical Board or the National Board of Health
respectively.161
Except in cases of urgency, an abortion must be performed in an
approved hospital162
by a registered physician. Prior to the procedure, the woman must
152
Ibid s. 2.
153
Ibid s. 1 (1).
154
Ibid s. 1 (2).
155
Ibid
156
Ibid s. 1 (3).
157
Ibid s. 1 (4).
158
Ibid s. 1 (5).
159
Ibid s. 5.
160
Ibid ss. 5, 5a.
161
Ibid
162
Ibid s. 8.

29
also be made aware of the significance and possible effects of abortion, and following
the procedure, she must be given advice on the use of contraception.163
This law, together with government‟s active promotion of contraception and its efforts
to reduce teenage pregnancies,164
has also proved to be successful. The maternal
mortality ratio is that of five deaths for every 100,000 live births,165
and the number of
abortions has been consistently on the decrease ever since the law was enacted.166
Moreover, due to the wide availability and safety of legal abortion, instances of illegal
abortions are increasingly rare.167
2.1.5 Poland
Poland‟s history with abortion is turbulent, and legislation on the aspect has been going
back and forth for multiple decades. The overwhelmingly Catholic state168
permitted
abortion for the first time in 1932, the procedure being strictly limited to instances
where the life or health of the woman was at serious risk, or where the pregnancy was
the result of rape or incest.169
This law was further liberalised in 1956, under a
Communist government, whereby the ground of „difficult living conditions‟, among
others, was introduced in the law. This was a major development, since in practice, this
ground was applied liberally, and abortion was de facto available upon request.170
In the early 1990s, abortion law became a hotly debated issue, with pro-life and pro-
choice amendments being proposed by consecutive Governments in a very short time
span. This furore to debate abortion in the Polish Parliament must be seen in the context
of the time, where the new Government was eager to distance itself from Communist
values, and remodel the international image of the state.171
Moreover, the more liberal
163
Ibid s. 4.
164
165
166
167
BBC News, „Europe‟s abortion rules‟, BBC, (12 February 2007)
<http://news.bbc.co.uk/2/hi/europe/6235557.stm> accessed 28 February 2017.
168
Central Intelligence Agency, The World Factbook, (CIA, 2017)
<https://www.cia.gov/library/publications/the-world-factbook/geos/pl.html> accessed 28 February 2017.
169
170
Ibid
171
A Snitow, „The Church Wins, Women Lose‟, Nation, Vol. 256 No. 16, (1993), p. 557.

30
law enacted in 1996 was challenged before the Constitutional Tribunal, which asserted
the following:
„Life is a value protected by a constitution and life in a prenatal stage cannot be
differentiated. There are no satisfactorily precise and proved criteria allowing for
such differentiation depending on the particular stage of human life. From
conception, however, human life is a value constitutionally protected. It concerns
the prenatal stage as well.‟172
The 1996 law was thus reversed, and after almost forty years of liberal access to
abortion, The Family Planning, Human Embryo Protection and Conditions of
Permissibility Act of 1993 was firmly reaffirmed as the law of the land, as it remains to
this day.
The Act‟s concise preamble and its first article set the tone of the legislation, affirming
that life „is a fundamental right of a human being‟, which is to be protected by the state
to the extent of the Act itself.173
Alternative options to the termination of pregnancy are
then listed as having to be provided by the state, including prenatal care for both the
foetus and the pregnant woman174
, financial support and care for pregnant women,175
access to information on benefits and allowances for parents, as well as information on
adoption procedures.176
Moreover, the Act also provides for pregnant women who are
still in education, obliging schools to give all the assistance necessary for her to give
birth while still completing her education.177
The Catholic Church‟s heavy hand is also
reflected in the drafting of this law, with the Church being offered help by the state to
provide the abovementioned services.178
Under this law, a pregnancy may be terminated only where the pregnant woman‟s
health or life are threatened by the pregnancy, where it is highly probable that the foetus
172
Trybunal Konstitucyjny (Polish Constitutional Court), ruling 28 May 1997 (K 26/96).
173
The Family Planning, Human Embryo Protection and Conditions of Permissibility Act of 7 January
1993.
174
Ibid s. 2.1.1.
175
Ibid s. 2.1.2.
176
Ibid s. 2.1.3.
177
Ibid s. 1.3.
178
Ibid s. 3.1.

31
has a severe defect, or where it may be reasonably suspected that the pregnancy is the
result of an unlawful act.179
In the former two cases, the situation must be confirmed by
a doctor, while in the latter case a public prosecutor must confirm the possibility of such
unlawful act.180
In the case of a serious defect in the foetus, abortion may only be
performed prior to viability, and in the case of unlawful acts resulting in pregnancy, the
procedure may be performed by not later than the twelfth week of pregnancy. The law is
silent on the period whereby viability is attained.181
In all cases, the woman‟s consent or
that of her legal representative is required,182
and illegal abortion is punishable with
imprisonment of up to two years.183
The pregnant woman, however, may not be subject
to punishment.184
In practice, the application of this Act has not been successful, both in relation to the
pro-life measures it aims to uphold, as well as the proper access to abortion services.
The former goal is undermined by the fact that „abortion tourism‟ is rife in Poland, with
women travelling across borders to obtain easier and safer abortions.185
Underground
abortion services within Poland are also common, with as many as 240,000 abortions
being estimated to be performed illegally.186
This is partly due to the fact that this Act,
while providing for limited allowances to terminate a pregnancy, does not provide clear
procedures as to how and when abortions may be legally performed.
This point was highlighted in Tysiac v. Poland, where Ms Tysiac, who suffered from
severe myopia, feared for the impact which her third pregnancy would have on her
health, should she not terminate it.187
Despite obtaining a certificate authorising the
abortion, she was refused the service on the basis that there were no medical grounds for
performing the procedure. Following her delivery, Ms Tysiac‟s eyesight did indeed
deteriorate, and she was subsequently registered as significantly disabled. In this case,
179
Ibid s. 4a.1.
180
Ibid s. 4a.5.
181
Ibid s. 4a.2.
182
Ibid s. 4a.4.
183
Penal Code (Poland), s. 149a.1.
184
Ibid
185
DPA / The Local, „Why Polish women are travelling to Germany for abortions‟, The Local, (6 March
2017), <https://www.thelocal.de/20170306/why-polish-women-choose-germany-for-abortions> accessed
6 March 2017.
186
C Moisescu, „Abortion by drone‟, New Internationalist, Issue 485, (2015), p. 9.
187
Tysiac v Poland, App. No 5410/03, CoE: ECtHR, 20 March 2007.

32
the Court decided that the lack of an effective procedure guaranteeing access to abortion
was a violation of the respect for the woman‟s private life under article 8 of the ECHR,
and the state was thus made to pay 25,000 Euro in damages, and 14,000 Euro in legal
fees.188
The procedural obstacles faced by pregnant women in Poland who seek abortion,
coupled with the increasingly high number of women resorting to illegal abortion, were
also highlighted by a report of the UN Human Rights Committee. In its concluding
observations, the HRC noted that the law should prevent clandestine abortions, rather
than prompt them.189
Furthermore, this report also made reference to a Parliamentary
Bill which was being proposed, which would have criminalised abortion in all cases
except where the woman‟s life is at risk, thus signifying a „retrogression of already
restrictive legislation‟.190
The current law is presently one of the strictest laws on abortion in Europe. Coupled
with the practical obstacles in accessing the service, abortion is already practically
impossible to obtain in Poland. Nonetheless, the organisation „Stop Abortion‟,
supported by the Roman Catholic Church, collected 450,000 signatures in favour of the
same Bill.191
Following nation-wide protests and outrage against this proposed law,192
the Bill was struck down in the lower house of Parliament. While this Bill was not
enacted, the future for abortion legislation in Poland remains uncertain.
2.1.6 Ireland
Ever since the Republic of Ireland was founded, abortion has been illegal and majorly
frowned upon in the Catholic state. Ireland‟s history with abortion prior to the current
legal scenario was fraught with heated controversy and debate, Constitutional
188
Ibid
189
UN HRC, „Concluding observations on the seventh periodic report of Poland‟ (23 November 2016)
CCPR/C/POL/CO/7, paras. 23 – 24.
190
Ibid para. 24(b).
191
M Yegorova, „Poland rejects unfair abortion laws‟, University Wire, (24 October 2016),
<https://search-proquest-com.ejournals.um.edu.mt/docview/1831245706?accountid=27934> accessed 6
March 2017.
192
A M Simmons, „Polish women protest proposal to ban abortions in almost all cases‟, LA Times, (3
October 2016), <http://www.latimes.com/world/la-fg-global-poland-abortion-rights-snap-
htmlstory.html#> accessed 6 March 2017.

33
Amendments, legal challenges at both national and international level, and stories of
death and suffering.
Until 2013, abortion was mainly criminalised under the Offences Against the Person
Act of 1861, the same legislation which, as previously discussed, was in force in the
United Kingdom and is still applicable in Northern Ireland. In the United Kingdom, the
wording of the Act in relation to abortion was debated in Rex v. Bourne, where it was
held that there could indeed be abortions which were not unlawful in terms of that Act.
This landmark judgment eventually led to the legalisation of abortion in the United
Kingdom on a number of grounds. Fearing that this interpretation could also be applied
in Ireland, the Irish Government, via referendum in 1983, amended the Constitution to
introduce the following provision:
„The state acknowledges the right to life of the unborn and, with due regard to
the equal right to life of the mother, guarantees in its laws to respect and, as far
as practicable, by its laws to defend and vindicate that right.‟193
This amendment further entrenched Ireland‟s anti-abortion stand by introducing a
provision in the highest law of the land which puts at par the rights of the mother to
those of an unborn child. This Constitutional amendment, coupled with the Offences
Against the Person Act, effectively meant that access to safe abortion was completely
denied to Irish women. Indeed, this impediment caused a number of tragic cases in
Ireland, most notably the death of Sheila Hodgers. 1n 1983, Ms Hodgers was denied
cancer treatment, x-rays and pain relief medication, upon fears that they would harm the
foetus. The baby died immediately upon birth, and Ms Hodgers died two days later.194
It was evident that Irish women had very limited options: either risk an unsafe
clandestine abortion in Ireland, or cross to the United Kingdom to terminate their
pregnancies in a safe environment.195
To this end, a number of family planning groups
provided pregnant women with counselling and information on abortion services in the
193
Eighth Amendment of the Constitution Act, 1983, Part II.
194
K A Conrad, Locked in the Family Cell: Gender, Sexuality and Political Agency in Irish National
Discourse, (University of Wisconsin Press, 2004), p. 79.
195

34
United Kingdom.196
These groups were legally challenged by anti-abortionists, claiming
that the dissemination of information on abortion services, even if outside of Ireland,
was unconstitutional. The Society for the Protection of Unborn Children (SPUC) filed
an action before the High Court against Open Door Counselling Ltd and Dublin Well
Woman Centre Ltd, two non-profit companies which were providing pregnant women
with information on abortion procedures outside of Ireland, claiming that the activities
of the companies was unlawful, and seeking an injunction against the said companies.197
The injunctions were granted and the defendants‟ appeal was rejected.
Encouraged by this development, the SPUC filed another action before the High Court
against student groups who had included information about abortion services in the
United Kingdom in their student handbooks. The Society requested the Court to declare
that the distribution of such information was unlawful, and requested an injunction
against the defendants. Before giving its final decision, the High Court decided to refer
the matter to the European Court of Justice.
In Society for the Protection of Unborn Children Ireland (SPUC) v Grogan and others,
therefore, the ECJ was requested to decide upon a number of issues. The Court was
questioned as to whether the provision of abortion could be considered within the
definition of „services‟ in accordance with the Treaty establishing the (then) European
Economic Community, and, moreover, whether the distribution of information about
such service in other Member states in a state where abortion is unlawful could be
allowed.198
In this case, the Court ruled that the medical termination of pregnancy, when
performed in accordance with the law of the state in which it is carried out, did indeed
constitute a service within the meaning of the Treaty. However, the injunction against
the student associations would not be in contravention of Community law, since the said
groups had no link to the distribution of the information in question.199
196
Ibid
197
Open Door Counselling Ltd and Dublin Well Woman Ltd v Ireland, App. Nos. 14234/88 and
14235/88, CoE: ECtHR 29 October 1992, paras. 11 – 13.
198
Case C-159/90, Society for the Protection of Unborn Children Ireland (SPUC) v Grogan and others,
(1991), ECR, para. 9.
199
Ibid paras 21, 27.

35
Concurrently, the Open Door and Dublin Well Woman case was referred to the ECtHR,
whereby the Court found that the injunctions had been a violation of the companies‟
right to freedom of expression, and ordered the Irish Government to pay damages in this
regard.200
During the same year, the Irish Courts were once again presented with a
matter pertaining to abortion services outside of Irish jurisdiction in Attorney General v
X. In this case, the Attorney General sought an injunction against a fourteen year old,
who had been raped and who was seeking an abortion in the United Kingdom. The
injunction was granted by the High Court, but the decision was reversed upon appeal.
The court referred to the fact that the teen had confided with her mother that she would
rather kill herself than remain pregnant, and that a psychologist had confirmed her state
of shock and suicidal thoughts.201
In its landmark decision, the Supreme Court also
argued that while the Constitution was undoubtedly anti-abortion, there were no
guidelines as to how „the right to life of the mother could be reconciled with the right to
life of the unborn‟.202
Eventually, it held that the substantial risk to the right to life of
the mother did not make this abortion unlawful.
These cases brought about another referendum in 1992, with three proposals being
presented to the Irish citizens. The Twelfth Amendment proposed the explicit removal
of suicide as a ground for legal abortion,203
and was overwhelmingly rejected, while the
Thirteenth and Fourteenth Amendments were approved. These ensured that the rights of
the unborn could not limit the freedom to travel,204
and that information on lawful
abortion in other states could be distributed and obtained within Ireland.205
On the same
note, in 1995, the Regulation of Information (Services outside the state for the
Termination of Pregnancies) Act was also enacted, which further detailed how
information on abortion services outside of Ireland could be provided.206
200
Open Door Counselling Ltd and Dublin Well Woman Ltd v Ireland, para. 28.
201
Attorney General v X and Others, [1992] 1 IR 1.
202
Ibid
203
C Casini and others, „The Irish law on abortion a year after its approval‟, Ave Maria International Law
Journal, Spring Issue, (2015), p. 52.
204
Thirteenth Amendment to the Constitution Act 1992, Part II.
205
Fourteenth Amendment to the Constitution Act 1992, Part II.
206
Abortion in Ireland: Legal Timeline, Irish Family Planning Association, <https://www.ifpa.ie/hot-
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