Mcgregor

With the resurgence of issues related to abortion, professional and religious groups wrote an open letter to the Prime Minister in an effort to ensure that a report prepared by a special advisory group on abortion is not tabled in Parliament before broad consultations are held. The Government acceded to the request.

These efforts serve to remind us that Jamaicans have a right to participate in shaping our laws.

This form of action is not reserved for civic action groups. It is especially critical for those who have interfaced with the existing laws to state how it has impacted on them, so that any amendments come from a better informed position.

The American case of Roe v Wade is well known; and regular media reports reveal clashes between pro-life and pro-choice activists worldwide. While lobbying has not yet become a practice in Jamaica, I will comment on the issues in order to raise the level of awareness.

Against the law

Under Jamaican law, the Offences against the Person Act makes it illegal for a pregnant woman to attempt to abort her foetus or for any other person to attempt to do so. The common law added some flexibility to this position so that it is lawful for an abortion to be performed for the purpose of preserving a life.

The difficulty arises when one attempts to define the exact circumstances which must exist before the abortion may be deemed lawful. At what stage of the pregnancy the abortion may be lawfully performed? Who may perform that abortion? Is it lawful to perform abortions if the pregnant woman is the victim of incest or rape? These are some of the points which are still debatable.

It is useful to look at cases from other jurisdictions. In a 1987 English case (T v T a severely mentally handicapped 19-year-old woman, who was wholly dependent on others, became pregnant. Her powers of communication were limited. She was incontinent and required changing six to eight times daily. She did not understand the concept of pregnancy, could not cope with the associated difficulties or complications and would be incapable of caring for a child. (There was no explanation as to how she became pregnant while under such close supervision.)

Operation

Doctors recommended that the pregnancy be terminated and that T should be sterilised, but no doctor was willing to perform the operation without the protection of a court order. If the surgeons performed the operation without consent, they could be liable for trespass to the person or assault, so T's mother applied to the court for declarations that the abortion and sterilisation would not be unlawful, despite the fact that T was unable to consent.

The court found that, as T would never be able to consent and there was no one who could consent, the decision had to be based on what medical practice would demand as being in her best interest. The declarations were granted.

Similar issues could confront the Jamaican courts and, given the present state of the law, it is difficult to say how they might be resolved. For example, would a doctor need to obtain a court order before performing an abortion on a Jamaican woman in T's condition?

Sherry-Ann McGregor is a partner and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback and questions to lawsofeve@yahoo.com or Lifestyle@gleanerjm.com.