The duty to make abortion law transparent: A Malawi case study

Abstract

Despite adopting a progressive legal and policy framework informed by internationally recognized human rights norms and values, Malawi has not complied with the obligation to explain its abortion law in accordance with legal and human rights standards. In 1930, the colonial government adopted a Penal Code derived from English criminal law, containing provisions regulating access to abortion, but has not undertaken measures to explain when abortion is lawful. What constitutes legal abortion has never been clarified for health providers and potential clients. Consequently, eligible girls and women fail to access safe and legal abortion. The Malawi Law Commission, following its review of the colonial abortion law, has proposed liberal changes which, if implemented, would expand access to safe abortion. However, the immediate step the government ought to take is to clarify the current abortion law, and not to wait for a new law expected to materialize in the indeterminate future.

Mind the Gap: Understanding Differences Between Sexual and Reproductive Health-Related Legal Frameworks on Paper and in Practice

“…This was most often seen in the areas of abortion and adolescents' access to services. For example, in the countries that allow abortions on the basis of preserving the woman's health, there may be very different interpretations of "health"-notably, whether or not mental health is included alongside physical health (21). Sometimes interpretation is done through the justice system while in other instances, it is institutions or individual service providers who do this, which can lead to large differences in which services are delivered and to whom.…”

Adolescent sexual and reproductive health and universal health coverage: a comparative policy and legal analysis of Ethiopia, Malawi and Zambia

“…The Law Commission (Malawi) reviewed the current law of colonial origin and proposed a revised (2015) Termination of Pregnancy Bill which, if implemented, would expand the grounds for access to SA. 37 …”

“…colonial origin and proposed a revised (2015) Termination of Pregnancy Bill which, if implemented, would expand the grounds for access to SA. 37 Ethiopia and Zambia both have national standards and guidelines (S&G) produced by the Ministry of Health for the provision of abortion and PAC; Malawi has none. S&G represent the operationalisation of laws and policies; standards "are intended to be applied rigidly in almost every case, exceptions being rare and difficult to justify"; guidelines "are recommendations for best practice … when they are not applied, their justifications Life of pregnant woman.…”