Abortion has been regarded as a human right for women, based on every individual’s right to their body. However, the legalization of abortion remains a contentious and polarizing issue in many societies today. Extreme policies relating to abortion in countries like Pakistan, as this article will examine, are not always aligned with global human rights definitions, revealing a complex relationship between policies and human rights.
Abortion can be defined as the termination of the foetus and its removal from a pregnant woman’s womb. Reasons for an abortion are both varied and distinctive, these might include physical, mental, and emotional health, as well as socio-economic reasons (United Nations, 2014). Abortion is also opted by parents when the life of an expected baby is at the risk of any unwanted health-related circumstances. The United Nations (UN) along with the United Nations Human Rights Committee (UNHRC), under the International Covenant on Civil and Political Rights (ICCPR), stated that women have the right to go for abortion whenever needed. Declaring abortion as a matter of human rights, the UN has set 7 conditions under which abortion should be permitted and legalized (United Nations, 2014):
- Abortion is permitted to save the life of the pregnant woman
- Abortion is permitted to preserve a woman’s physical health
- Abortion is permitted to preserve a woman’s mental health
- Abortion is permitted in cases of foetal impairment
- Abortion is permitted in cases of incest or rape
- Abortion is permitted for social or economic reasons
- Abortion is permitted upon request
Nevertheless, reports published by the UN suggest that only a handful number of countries allow legal abortion under all the above-mentioned circumstances. Whereas a vast number of countries allow abortion only when a mother’s life or physical health is at stake (United Nations, 2014, p. 18-27). Many Muslim Jurists think of abortion as the murder of an unborn child and therefore, forbidden. The perception is based on Quranic teachings that encourage procreation within matrimony (Albar, 2001). For example, in Surah Al Maiydah , verse 32 states: “We decreed upon the children of Israel that whosoever kills a soul for other than manslaughter or corruption in the land; it shall be as if he killed all mankind, and whosoever saves the life of one, it shall be as if he saved the life of mankind” (Albar, 2001). Similarly, Surah Al Isra 17, verse 31 states: “Kill not your children for fear of want. We shall provide sustenance for them as well as for you. Verily the killing of them is a great sin” (Albar, 2001). Such Islamic teachings have been interpreted and applied to the issue of abortion, resulting in many Muslim states such as Pakistan to criminalise the termination of pregnancy.
Abortion is referred to as ‘Isqat-e-Haml’ and ‘Isqat-e-Janin’ in Pakistan’s Penal code under articles 338, 338A, 338B, and 338C. Isqat-e-haml is the termination of pregnancy when organs of the child have not been formed yet. In turn, Isqat-e-Janin is the termination of pregnancy when some of the child’s limbs and organs have been formed. According to articles 338 and 338(B), termination of a pregnancy is a punishable crime, unless it is caused under ‘good faith’, or to save the life of the woman through the ‘necessary treatment’ to her. In any cases otherwise, abortion can lead to imprisonment for three or more years, dependent upon whether it was caused with or without the consent of the woman.
Analysis of abortion laws in Pakistan reveals that there is very little compatibility between abortion policies in Pakistan – member of the United Nations since 1947- and abortion rights proposed by the UN. As previously mentioned, the UN has undoubtedly stated abortion and the legalization of abortion as a human right for women. However, policies in Pakistan are inclined towards its illegality, except for cases that involve ‘good faith; or ‘necessary treatment’. Additionally, state laws are ambiguous and do not define terms like ‘good faith’ and ‘necessary treatment’. This raises the question as to what is ‘good faith’ and how is ‘necessary treatment’ defined? Do these terms refer to the protection of a woman’s physical health or mental health? Or both? Do these terms consider the socioeconomic conditions of parents or not? The ambiguity in relation to the definition of these terms leaves many questions unanswered and thus the scope for whether an abortion is to be legal in certain circumstances is vague. Undefined terms like ‘good faith’ and ‘necessary treatment’ in these laws, therefore, persist unclarity.
Abortion laws within Pakistan’s Penal Code are part of the pre-partition laws that were created in 1990 to adhere better with the Islamic teachings that were predominant at the time. (Azmat, Mohsina, Babar, Mustafa, and Hameed, 2011). It therefore would seem that terms like ‘good faith’ and ‘necessary treatment’ will always remain influenced by the view of Muslim Jurists. As Ilyas, Alam, Ahmad and Ghafoor (2009) pointed, seeking abortion for no ‘good’ reason at all, and indicating that the parents just do not want the baby – is inhumane and thus, not in good faith in the view of Muslim jurists. Furthermore, ‘good faith’ includes cases when abortion is intended to save a woman’s life, or when the foetus has not developed organs. However, diversity of opinions amongst Muslim jurists regarding the development of a fetus’s organs further complicates the matter. Some jurists think abortion is permissible before 120 days of pregnancy. Whereas some think it is permissible only in the first 40 days of pregnancy (Ilyas, Alam, Ahmad and Ghafoor, 2009, p. 57). Thus, lack of unanimity amongst jurists and vagueness around abortion laws, in turn affects the lives of many women. A vast majority in Pakistan think that abortion is completely illegal and forbidden in Islam. As a result, women in the country often opt for hidden and unsafe abortion options commonly available from back-alley providers. This exposes those women to greater health risks, physical and mental trauma, and even death in some cases (Ilyas, Alam, Ahmad and Ghafoor, 2009).
Moreover, discussion on abortion amongst Muslim jurists lack clarity on abortion in cases of rape and incest. In rare cases when a woman is allowed to have an abortion due to pregnancy caused by rape or incest, it is only to prevent mental and physiological harm to the mother. However, in determining whether pregnancy will result in mental or psychological harm, Muslim jurists rely on physicians to decide instead of giving a woman the agency to decide for herself. Thus, even in such cases women do not have the right to their bodies as suggested by the UN. The procedure unveils the incapability of laws to accommodate the UN’s list of abortion rights.
Even a surface-level analysis of abortion laws in Pakistan reveals that although abortion has been regarded as a human right, religious interpretations problematize the legalization of abortion. Muslim jurists perceive abortion as a murder of the unborn baby, whose ‘right to life cannot be taken away merely because of the mother’s choice. The question, however, remains; can the preborn or unborn also have any ‘right to life? Is there any life before being born? These are the questions that remain at the heart of the ethical and legal debates around abortion and need further attention.
As it has been analyzed through the case of abortion in Pakistan, state laws do not necessarily accommodate international human rights, and in many countries, laws and policies often derive from subjective interpretations driven by religious forces. These do not necessarily align with the universal women’s rights norms, and thus, for further research and comprehension, abortion laws should not solely be seen as a matter of law and human rights. Rather, it is important to understand how different social realities like religion or ethical contexts come together to perceive and make policies around controversial subjects like abortion.
“Abortion Policies and Reproductive Health around the World.” Statistical Papers – United Nations (Ser. A), Population and Vital Statistics Report, 2014. https://doi.org/10.18356/3fc03b26-en.
Albar, M A. “Induced abortion from an islamic perspective: is it criminal or just elective?.” Journal of family & community medicine vol. 8,3 (2001): 25-35.
Azmat, Syed Khurram, Mohsina Bilgrami, Babar T. Shaikh, Ghulam Mustafa, and Waqas Hameed. “Perceptions, Interpretations and Implications of Abortions: A Qualitative Enquiry among the Legal Community of Pakistan.” The European Journal of Contraception & Reproductive Health Care 17, no. 2 (2011): 155–63. https://doi.org/10.3109/13625187.2011.637585.
Human Rights Committee, General Comment No. 36, Article 6 on right to life, CCPR/C/GC/36, 2-3, October 30, 2018
Ilyas, Muhammad, Mukhtar Alam, Habib Ahmad, and Sajidul Ghafoor. “Abortion and Protection of the Human Fetus: Religious and Legal Problems in Pakistan.” Human Reproduction & Genetic Ethics 15, no. 2 (2009): 55–59. https://doi.org/10.1558/hrge.v15i2.55.
The Pakistan Penal code, 1860 (XLV of 1860): as modified upto the 3rd February 1980, (1980).
The Pakistan Penal code, 1860 (XLV of 1860): as modified upto the 3rd February 1980, (1980).