Demand for abortion pills— a legal dilemma

The news of “demand for abortion pills rise in Thimphu” in Kuensel this week deserves our attention. The horrifying stories of abandonment of human fetuses and informal reports of unsafe abortions taking place across the border are sadly not uncommon in Bhutan. The issue of abortion is sensitive and controversial because the very nature of abortion is emotional, often against one’s social values and spiritual beliefs. It is also of moral and ethical dilemma among physicians.

Section 146 of the Penal Code of Bhutan (PCB), 2004, criminalizes abortion except when the mother’s life is in danger or of unsound mental condition or when pregnancy is a result of rape or incest. This provision is discriminatory itself as abortion is a crime only if certain criteria are not met violating the rights of both the mother and fetus.

Article 7 (1) of the constitution of Bhutan guarantees the right to life, liberty, and security of all persons. If a fetus is recognized as a person, the moment a woman conceives, both the mother and fetus have an equal right under this Article. An American Court said that the mother also has a right to privacy including “activities relating to marriage, procreation, contraception, child-bearing and abortion.” Supporting this view, some scholars argued that the fetus’s mere presence in the womb is unjust because the fetus is a stranger and burden the health of the mother.

While Bhutan has not witnessed any legal battle challenging the law, there is jurisprudence on this matter around the world. The Supreme Court of Canada held that “state interference with bodily integrity and serious state-imposed psychological stress, at least in the criminal law context, constitutes a breach of security of the person. Forcing a woman, by the threat of criminal sanction, to carry a fetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman’s body and thus an infringement of security of the person.”

Some courts have also concluded that “a person is vested with human rights only at birth; an unborn fetus is not an entity with human rights and hence mother has the right to control their own body and fertility and motherhood choices should be left to the women alone including the right to autonomy and to decide what to do with their own bodies, including whether or not to get pregnant and stay pregnant.”

The WHO Safe Abortion- Technical and Policy guidance for health systems urges states to “decriminalize the provision of information on legal abortion” to ensure access to legal abortion which is safe for both the mother and the fetus. The WHO studies revealed that criminalization of abortions instead of a reduction in abortion, compelled women to risk their lives along with the fetus by seeking an unsafe abortion.

Although deciding on such a subject is extremely challenging, we, as a Bhutanese society, must find a better solution than the current mechanism to protect both the mother and the fetus.  For example, while some countries completely ban abortion, many have legalized abortion during the first trimester, and WHO recommends the same. The first trimester is considered ethically and morally acceptable and safe for the mother. Otherwise, our women especially young mothers may continue to resort to unsafe abortion either by taking illegal abortion pills or going to clandestine operated clinics across the border.

Sonam Tshering

Lawyer, Thimphu

Disclaimer: The views expressed in this article are author’s own.

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