Following the tragic death of 22-year-old Ms. Marie Sharonne Marla, who had resorted to a backstreet abortion as a direct result of the draconian 1838 Criminal Code law that threatens women with 10 years’ jail, the Common Front on Abortion once again protested against the draconian existing law. Ms. Marla had come to the Pamplemousses Hospital, but did not tell the staff exactly what the problem was, for fear of prosecution. When the staff finally discovered what the problem was, after not being able to control the septicemia of the patient, it was too late, and the young woman was dying. The medical staff could not save her life. So this mother of two children, living in Bois Marchand, lost her life on Christmas night.
December 29, at 4:00 pm the Minister of Justice, Yatin Varma, received a delegation from the Common Front on Abortion, which called, in an open letter delivered on the occasion to the Minister, for an immediate cessation of all arrests and prosecutions under the existing law. In the letter, the Front called for the Justice Minister, Attorney General:
*To make a public statement to support the stand taken by the DPP that the present Abortion Law is too ambiguous to meet a standard acceptable in criminal law; and
*As an interim measure, to decriminalize abortion by clarifying Section 235 of the Criminal Code to define “quick with child” as meaning “over 20 weeks of pregnancy” in line with generally accepted medical jurisprudence, and to do this by an Act of the National Assembly.
*To amend the law that governs illegal practice of medicine so as to ensure that backstreet abortions are deemed to be the “illegal practice of medicine”.
Rajni Lallah, Vidya Charan and Anne-Marie Sophie said afterwards that the Minister expressed condoleances to the family of Ms. Marla, and said he would consider the demands. He also said he did agree with the Director of Public Prosecutions that the law was too ambiguous to meet a standard acceptable for a prosecution in criminal law. He said that the Bill he had prepared would come before the National Assembly, but he could give no date or time schedule at all. This gives all the more weight to the demand for interim effective suspension of the existing draconian anti-woman law. What is needed is a “stay” on all prosecutions, an interim measure to decriminalize abortion as debate continues on the announced Bill to legalize abortion.
The Common Front, made up of a number of women’s organizations, including Women in Networking (WIN), the Mauritius Family Planning Association (MFPA) and the Muvman Liberasyon Fam (MLF) was set up in 2009 in order to demand immediate suspension of the unjust law, immediately following the tragic death of photographic reporter, Marie-Noelle Derby.
Our site has pleasure in publishing the Front’s letter:
A young woman, Marie Sharonne Marla, 22 years old, died tragically in the ICU of Jeetoo Hospital on Christmas night, after falling seriously ill following an illegal abortion and having been too afraid to tell hospital staff upfront what her problem was, because of the criminal law.
The Common Front on Abortion uniting women's organisations, human rights organisations and health organisations was set up in 2009 following the death of Ms. Marie-Noelle Derby, a 37 year old mother of three children and well-known and respected press photographer. Her death was caused by complications due to having to have recourse to a backstreet abortion. Like Marie Sharonne Marla, Marie-Noelle Derby and Padmini Pakiri many women in Mauritius have died after having had illegal abortions. Their tragic deaths have brought to light the cruel reality of how the interpretation of the Abortion law from 1838 till today both criminalizes women and endangers women's health and lives. Too many women have died. The government must act immediately to ensure that no more women die because of illegal abortion, and to regulate so that women who undergo abortion before they are quick with child are not arrested, prosecuted or taken to Court until the Bill comes. This would be a “stay” decision.
To our knowledge, since Independence there have been seven attempts by different Governments to legalize abortion in order to find a solution to end this terrible situation. None of them have succeeded. Your Bill, if it does manage to come before the National Assembly, will be the 8th attempt to legalize abortion.
We call on you, as Attorney General to take immediate steps, as an interim measure, to decriminalize abortion, so as to save women's lives and to stop punitive measures against women who are desperate enough to resort to backstreet abortions. This would prevent further tragic deaths.
In any case, there is already much debate on whether the present Abortion Law (Section 235 of the Criminal Code) does in fact render all abortion illegal. The present law reads:
“1) Any person who, by any food, drink, medicine, or by violence, or by any other means, procures the miscarriage of any woman quick with child, or supplies the means of procuring such miscarriage, whether the woman consents or not, shall be punished by penal servitude for a term not exceeding 10 years.
(2) The like punishment shall be pronounced against any woman who procures her own miscarriage, or who consents to make use of the means pointed out or administered to her with that intent, if such miscarriage ensues.”
The term “quick with child” or “quickening” in medical jurisprudence means that “The motion of the foetus, when felt by the mother, is called quickening, and the mother is then said to be quick with child. 1 Beck's Med. Jurisp. 172; 1 Russ. on Cr. 553.” (Bouvier's Law Dictionary). The medical textbook “Clayton's Obstetrics” used as a reference in medical institutions and universities worldwide states that “quickening” occurs in the 20th week of pregnancy. This means that abortion under 20 weeks of pregnancy is arguably LEGAL.
Since 2009, the Common Front on Abortion has brought this ambiguity in the law to the attention of the Government and the Director of Public Prosecutions.
The DPP has now publicly expressed himself on this question: he has said that the law is not clear enough to meet the standards of a criminal law, being ambiguous given the term "quick with child" (Le Defi Quotidien 12th September, 2011 and Le Defi Media 9th September, 2011).
Today there is consensus that the 235 Abortion law is so unclear as to be useless, although its existence continues to threaten women’s health and lives. It urgently needs to be changed.
Today, even the more vociferous against abortion legalization agree that punitive measures should not be taken against women after having backstreet abortions.
In addition, the Mauritian State has recently been severely criticized for criminalising women who have had abortions in the Concluding Observations of the United Nations Convention for the Elimination of Discrimination Against Women (CEDAW) Committee. The Concluding Report of CEDAW of 3 – 21 October 2011 reads as follows:
“33. In line with its previous concluding observations (CEDAW/C/MAR/CO/5, para 31) and its General Recommendation No. 24 (1999), the Committee calls upon the State party to:
a. Expedite the enactment of the Criminal Code Bill which seeks to amend section 235 of the Criminal Code on abortion in order to remove punitive measures imposed on women who undergo abortion and decriminalize abortion under certain conditions....”
Given the ambiguity of the 235 Abortion law, given the general agreement that abortion even if not legalized, be decriminalized so that no punitive measures are taken against women who have abortions, given that the Mauritian State has ratified CEDAW and has obligations to UN conventions that it is party to, we call on you:
1. To make a public statement to support the stand taken by the DPP that the present Abortion Law is too ambiguous to meet a standard acceptable in criminal law; and
2. As an interim measure, to decriminalize abortion by clarifying Section 235 of the Criminal Code to define “quick with child” as meaning “over 20 weeks of pregnancy” in line with generally accepted medical jurisprudence by an Act of the National Assembly.
3. To amend the law that governs illegal practice of medicine so as to ensure that backstreet abortions are deemed to be the “illegal practice of medicine”.
This will mean that women will no longer be prosecuted for having an abortion under 20 weeks of pregnancy. This will also mean that women will no longer be reluctant to seek medical help when they are pregnant or have abortion-related health complications. This will finally mean that most abortions will be through the RU 486 pill and not through dangerous backstreet abortion.
Mauritius Family Planning and Welfare Association (MFPWA)
Women in Networking (WIN)
Muvman Liberasyon Fam (MLF)
for the Common Front on Abortion
29 December, 2011
LALIT supports the interim demand for the suspension of the law until complete decriminalization of abortion.