Abstract

Access to abortion is necessary to respecting women’s reproductive freedom. Reproductive rights refer to those rights which protect the health and well-being of both men and women.8 Reproductive rights are most fundamental to women as they demand respect for their bodily integrity and decision-making requiring access to voluntary, quality and sexual health services. These rights connote the principle that a woman must be able to control her reproductive and sexual life and entitle a woman to decide whether to carry the foetus to term without any interference. Women’s reproductive freedom spans a range of human rights including rights to bodily integrity, dignity, privacy, opinion and belief, equality and personal security and freedom. Thus a woman should be able to choose freely on whether to terminate a pregnancy or not and not be restricted only by conditional grounds for termination. International and Regional Human Rights Instruments recognise a woman’s right to enjoyment of these rights such as the right to control her fertility9 . According to Article 12(1) of the International Convention on Economic, Social and Cultural Rights (ICESCR), the state is mandated to recognise the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. These rights are inclusive of reproductive rights. Article 14 of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa10 provides for the rights to include, the right to control one’s fertility and the right to decide whether to have children and the number and spacing of the children.11The Constitution itself accords women with reproductive rights under section 76(1) which provides for the right to health-care; and section 56(1) which provides for equality and non-discrimination and states that, “all persons are equal before the law and have the right to equal protection and benefit of the

8 Johnsen (1986); The Creation of Fetal Rights: Conflicts with Women’s Constitutional Rights to Liberty, Privacy and Equal Protection; 95 Yale L.J. 599, 613 9 Article 16(1)(e) of Convention on the Elimination of all forms of Discrimination Against Women 10 Hereinafter called the Women’s Protocol 11 Article 12 (2) of the Women’s Protocol 11 law”. Hence “every person has the right not to be treated in an unfairly discriminatory manner on such grounds as their ... pregnancy12 . Nevertheless, Section 48(3) of the Constitution of Zimbabwe provides that “an Act of Parliament must protect the lives of unborn children and that Act must provide that pregnancy may be terminated only in accordance with that law” 13. The law that is operational in Zimbabwe is the Termination of Pregnancy Act. According to the Act14, the grounds upon which a medical practitioner may lawfully terminate pregnancy are when the pregnancy constitutes a threat to life of the mother or there is a serious threat of permanent impairment of mothers’ physical health; or there is a serious risk that the child will be born with a physical or mental defect which will permanently and seriously handicap him; or there is a reasonable possibility that the pregnancy resulted from unlawful intercourse( i.e. rape other than rape within a marriage and sex within a prohibited degree of relationship). Given this background, a termination of pregnancy which is not authorised by law under the Act and according to the Constitution is a criminal offence dealt with as such in the Criminal Law (Codification& Reform) Act15. Socio-economic grounds such as reasons of poverty or if the pregnant woman is infected with the HIV virus or where the pregnancy affects the mental health of the mother or any other reasons, are not regarded as grounds warranting lawful termination in Zimbabwe.