Friday 15 June 2012

What happens when abortion is illegal - The Case of East Timor

Citation 2009 ETLJ 15 What happens when abortion is illegal - The Case of East Timor

There has been a dramatic debate in East Timor over recent weeks about the provisions of the new draft penal code pertaining to abortion. The draft article 144 of the penal code deals with “interruption of pregnancy”. Draft article 142 deals with “non-punishable interruption of pregnancy”. By the proposed article 144, abortion is crime and those who perform abortion will be punished with imprisonment terms ranging from 2 and 8 years.

The draft article 144 then introduced an “exception” for cases where the mother's life is in danger, or when the mother is underage (younger than 16).

East Timorese civil society organisations along with the Ombudsman for Human Rights and Justice lobbied for the additional inclusion of cases of incest (where the father has sexual relations with his own daughter) and rape.

The voice of the Roman Catholic Church in East Timor, controversial priest Martinho Gusmao, condemned the proposed exceptions and attacked those advocating for the rape and incest exceptions.

The Council of Ministers acquiesced and did not include the exemptions. Accordingly, when the new penal code comes into force, it will be illegal to perform abortions even where the pregnancy results from incest or rape.

Policy and laws that impose unreasonable prohibitions on abortions - particularly where pregnancy results from rape or incest - lead to the infliction of a greater harm to the woman. Abortion prohibitions cause illegal abortions to be performed from which both the foetus and the woman often die - a result that is of far greater concern than the destruction of an embryo in the early stages of a pregnancy that is the result of incest or rape.

It is not a long search to find both incest and the death of women through incompetent abortion agents in recent East Timorese history. In November 2008, the Judicial System Monitoring Program reported on a case in the Oecusse District Court that arose from the death of a woman who was administered a traditional abortifacient.

The prosecutor's indictment in that case stated that in March 2007 in Betasi, Taiboko the first defendant entrusted some traditional medicine to the second defendant to be given to the victim J and to be taken in accordance with instructions set out by the first defendant. The aim of the two defendants was to enable the victim to abort her four month old fetus. The defendants instructed the victim to take the medicine regularly for three weeks. After several days the victim aborted the foetus and died.

Incest is a significant social problem in East Timor. A recent conference was informed that incest occurred frequently in remote areas. Often parents and children slept in the same room, leaving little privacy and sometimes leading to sexual abuse and unwanted pregnancy. In February 2009, Charles Darwin University researcher Suzanne Belton conducted a study on unwanted pregnancy in Timor-Leste. She concluded that the law was highly restrictive and that illegal abortions were common.

Women in East Timor who experience rape or incest will have no option but to endure the additional burden of an unwanted pregnancy and one which, in the case of incest, carries a significant risk of genetic defects. Whether the new law will be effective in dealing with traditional abortions in rural areas where women's access to modern medical care is extremely limited will remain to be seen.

Public health laws should have their foundation in science and reason and not on religious dogmas; especially where laws informed by religion cause a social harm to emerge.

First published on the East Timor Law and Justice Bulletin on 05 April 2009

Related article: Morality, Religion & the Law: Abortion & Prosititution in East Timor

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Index

2011

1. The Rule of Law: Theoretical, Cultural and Legal Challenges for Timor-Leste

2010


2009


2008


1. Justice for Serious Crimes Committed during 1999 in Timor-Leste: Where to From Here?

2. Joint Command for PNTL & F-FDTL Undermines Rule of Law & Security Sector Reform in Timor-Leste

3. Criminal Justice in East Timor and the Constitution of East Timor

4. Commentary on the Draft Arms Law in Timor-Leste

5. Deleted

2007

1. The Law on Political Parties (No 3/2004) & the Decision of the Timor-Leste Court of Appeal in the case of Vitor da Costa & Ors v Fretilin

2. Ethnicity, Violence & Land & Property Disputes in Timor-Leste

3. East Timor: Reconciliation & Reconstruction

4. Legal opinion on the appointment of the Prime Minister and the formation of Government in Timor-Leste

5. A legal opinion on the Formation of an Unconstitutional Government in Timor-Leste

6. Commission for Truth Friendship East Timor Competing Concepts of Justice

7. 25th of May 2006 Massacre & War Crimes in Timor-Leste

2006

1. Some Land Tenure Issues in Post-Conflict East Timor

2. Extradition from Indonesia to East Timor & the Serious Crimes Process in East Timor 1999 - 2005

3. East Timor: Internal Security, States of Seige & Emergency: A Note on the Constitutional Provisions & the Internal Security Law 2003

4. East Timor: The Constitutional Process Governing the Dismissal of the Government

5. Guidelines for Preparation of Outgoing Requests by East Timor for International Judicial Assisstance - Extradition Requests & Letters Rogatory - A Practice Manual

6. Roles of the President and the Prime Minister in the Current Constitutional Crisis in East Timor

7. Institutions & the East Timorese Experience

8. An Early Warning System for Timor-Leste: A Framework Concept of the Need & Possibility of an Early Warning System for the Timorese People

2005

1. The Timor-Leste Maritime Boundaries Case

2. Deleted

3. On the occasion of the International Conference on Traditional Dispute Resolution & Traditional Justice in Timor-Leste

4. General Facts on the Timor Sea & Facts on the Negotiations on a Permanent Maritime Boundary between Timor-Leste & Australia

5. Deleted

6. Morality, Religion & the Law: Abortion & Prosititution in East Timor

2004

1. A Note on Land Rights in East Timor (Indonesian Government Regulation No 18 of 1991 on the Conversion of Land Rights in East Timor) & the Purported Suspension of Article 5 by Government Regulation No 24 of 1992

2. UNTAET Land Policy


3. Some Observations on UNTAET Regulation No 27/2000 on the Temporary Prohibition on Transactions in Land by Indonesian Citizens

4. Sandalwood & Environmental Law in East Timor

5. Some Observations on the Report on Research Findings & Policy Recommendations for a Legal Framework for Land Dispute Mediation in East Timor

6. An Overview of East Timor's Law No 1 of 2003 on the Juridical Regime on Immovable Properties

7. Report on Research into Adat Land Law in East Timor

8. Short Analysis of UNTAET Executive Order No 2 of 2002 on the Decriminalisation of Defamation

9. An Overview of the Constitutional Drafting Process in East Timor

10. Some Notes on East Timor Government Decree No 1/2004 on the Orthographical Standard of the Tetum Language

11. UNTAET Guidelines for the Administration of Public & Abandoned Property by District Administrations

12. Tara Bandu: The Adat Concept of the Environment in East Timor

13. Finding Ways of Resolving Land Problems in East Timor