The Right of Abortion in Iraq From a Legal and Public Health Perspective
Abortion is a major issue of public concern and debate. Different groups have different discussions on resolving the issue from a legal and ethical viewpoint. Abortion is a deliberate medical or surgical procedure that ends an embryo’s life before it is born. Opponents of abortion – who refer to themselves as pro-life – raise religious and ethical questions about the procedure and argue that every kind of abortion is murder, because it involves terminating the life of a creature that could be a viable human being in the future.
By contrast, those who refer to themselves as pro-choice argue that abortion is a woman’s reproductive right and there should not be any limitations on that right. Although some of the pro-choice advocates agree with providing some time for women to rethink and change their minds, most of them believe that abortion is a basic human right and that women have the right to decide when and whether to have children or not.
In this article, I’ll survey the basic outline of the debate and the logic of each side’s positions. A useful overall framework for this debate comes from biomedical ethicists Beauchamp and Childress, who establish four ethical principles – autonomy, beneficence, non-maleficence, and justice – on which the sides disagree.
Autonomy as the first principle is based on making voluntary and informed decisions. To Pro-choice people, women have autonomy and they are the ones that decide what should be performed on her body including whether she wants to carry her child or not. However, ethically speaking, this statement considers the fetus itself as a non-viable creature, which raises an issue for Pro-life people who consider the fetus as an unborn child with its own autonomy, equal in importance to the mother’s.
But in Iraq, even less controversial areas of healthcare do not give full autonomy to patients. Goshan Karadaghi, a public health specialist and lecturer at The American University of Iraq, Sulaimani (AUIS) states that “In general, there is very little autonomy of patients in health. Patients aren’t given opportunities to make informed decisions but they are told to sign papers and give consent, whether that consent is legitimate or not is the question.” Therefore, autonomy alone can’t be our only guide to whether or not abortion should be permitted.
Beneficence, the second principle requires health care professionals to act in a way that maximally benefits patients and to prevents any procedure that could harm the patient. To pro-choice people, pregnancy may cause expectant mothers serious health issues, including death, such that terminating the embryo’s life would reliably lower the risk to the mother and in some cases even save her life.
However, the pro-life group value the benefits to a fetus more than they do the mother’s right to save her own life. Iraqi abortion law is biased towards conserving the fetus’ rights over the mothers’. Iraqi law recognizes the fetus as a human being: “any act or procedure made by any individual including the pregnant woman herself cause harms or threatens the life of the fetus is considered a murder and the murder is penalized strictly” says Omar Abdulrahman Ali, a lawyer and former member of Kurdistan parliament.
The non-maleficence principle states that healthcare professions should not cause any harm to patients intentionally. Pro-choice people argue that continuing an unwanted pregnancy causes the mother to deal with serious mental health problems, and in some cases, the woman may seek out unsafe and illegal abortion procedures which might put her life at risk. As such, the healthcare provider has a responsibility not to let the woman’s situation go unchecked.
While according to pro-life people, a fetus is a human and it has its own life, so ending the fetus’ life ends a human life and that is considered murder. The last principle is Justice which implies that equal treatment should be applied to both the woman and the fetus and that fairness should be implemented. To pro-choice people, it is just to perform an abortion because in a situation where if the mother continues the pregnancy but is unable to take care of the child then the state will take on the cost of care for the child.
The justice issue here arises because the harms of not being allowed to have an abortion fall much more heavily on women than on men, and so restrictions on abortion violate the principle of equality between the sexes. But to pro-life people, the harms of abortion cost more – both financially and morally – than a completed pregnancy, or avoiding pregnancy in the first place through contraceptive measures such as condoms or pills. Also, the possibility of later having an abortion could cause women to be less careful with their contraception and that costs them more.
Moving on from ethics, the main medical concern regarding abortion is raised by those abortions categorized as “unsafe.” Medical abortion – most commonly by taking a pill – is considered safe as it does not require surgery and mainly applies to underdeveloped fetuses (before the ninth week of pregnancy). Surgical abortion, meanwhile, is considered “unsafe” as it requires invasive surgical procedures which disregard the embryo and can cause pain to more developed embryos.
World Health Organization (WHO) estimates that annually 25 million deaths are taking place due to unsafe abortion directly resulting in about 7.9% of maternal deaths. It is of greater concern than the bulk of women and girls among these numbers of deaths happened in countries where abortion is severely restricted both in law and in practice.
In countries with less restrictive abortion laws, the maternal death rate was lower than in countries where abortion laws are more restrictive. However, evidence is accumulating against claims that allow abortion: it has been shown that restrictive abortion laws result in reducing abortion cases. For example, a recent comparison of state abortion policies in the United States has shown that restrictive abortion laws result in a significantly lower abortion rate. It showed states that have highly restrictive laws have 17% fewer abortions than the median rate, which if applied globally could potentially save millions of lives each year.
Restrictive abortion law paves the way for unsafe abortion, 68,000 women lost their lives per year worldwide, and is claimed to be highest in mainly developing countries with legal restrictions on abortion. WHO estimates that 49% of abortions are unsafe in developing countries compared to the 12% unsafe abortion in the developed world.
The dangers of unsafe abortion are mostly in complications after the procedure, which include mortality, morbidity, social, and economic effects on the woman. WHO estimates that at the global level, between 4.7% to 13.2% of all maternal deaths are attributed not to abortion but to complications arising from abortion. In which approximately 47,000 lives of young women in the prime of their lives are lost unnecessarily each year. Where in developing countries, approximately 7 million women were estimated to be admitted every year to hospitals as a result of complications resulting from unsafe pregnancy termination.
Beyond personal medicine, meanwhile, the public health rationale for dealing with unsafe abortion was first highlighted and addressed in 1967 by the World Health Assembly, which declared that “abortions and … high maternal and child mortality constitute a serious public health problem in many countries,” warranting international action (WHO, 1967, 25). There is a direct relation between restrictive legal settings and relative access to safe and unsafe abortions.
In many cases specifically in developing countries, the issue with unsafe abortion arises when there is inequity within the health services provided by the government: “in situations where abortions are paid and available but not provided as a national health service people from a poorer background will not be able to afford it and therefore that would exacerbate their requirements for unsafe abortion” says Ms. Karadaghi.
This situation is more common in a country where abortion is illegalized, where women have not been left with any other option than to seek a procedure that can terminate their pregnancy. Additionally, financial disabilities are reasons for some women to seek abortion regardless of the procedure to be safe or unsafe: “there are individuals who have financial disabilities or have greater exposure to sexual violence and domestic violence, and so they seek an abortion” adds Ms. Karadaghi.
Iraq prohibited abortion from the early ancient societies and that dates back to Hammurabi law codes that penalized any women willing to or causing a miscarriage. According to the Iraqi penal code, abortion is completely prohibited and the law penalizes any woman who wills to abort or give consent to anyone to terminate her pregnancy:
“law number 111 from penal code 117 of 1969 prohibits abortion states that any woman who willfully procures her miscarriage or enables another to do so with her consent is punishable by a period of detention not exceeding 1 year plus a fine not exceeding 100,000 dinars or by one of those penalties, the law penalizes anyone who engages with the act of abortion or helps the woman abort her fetus harder including physician, nurse, chemist, or any other individual, in cases where any individual who forces the woman to abort her fetus, then the law penalize that individual with 10 years of jail” says Lawyer Ali.
The law prohibits abortion under every circumstance, the law could be criticized for having no direct provisions that allow terminating the pregnancy for medical, economic, or social necessities. The Kurdistan Region Government (KRG) allows abortion under very strict circumstances, after the Kurdistan Region Parliament efforts to legalize abortion with very strict limitations.
“A pregnant woman suffering from a dangerous ailment that poses a serious threat to her life, it is possible to abort her child with consent from the patient and her husband, a decision from an expert committee which should not consist of fewer than five physicians, and a test that should have been done in the public sector: ” reads Article 7 of the law. “Other than this case, abortion is categorically prohibited,” it adds. “Iraqi law is not directly applied to Kurdistan Region however, it must be approved by the Kurdistan parliament,” says, Lawyer Ali.
According to human rights activists and public health specialists, denying abortion law creates gender-based violence. Human rights bodies recognize restrictive abortion law as discrimination against women and that it leads to violence against women’s rights, sexual and reproductive health, and degrading treatments. Ban on abortion law infringes women’s dignity and autonomy. Ms. Karadaghi, states that “the current Iraqi law creates both gender violence and gender imbalance because it disregards the case of a female.”
She expands her statement on the case of disregarding women by Iraqi law with a rape example where she emphasizes that the law is a very clear and explicit example of violence against a woman who has already been violated through rape “even a rape pregnancy is not justified to be aborted by Iraqi Law as long as the child is not proposing a danger to the mother” says Ms. Karadaghi. Stigma is exaggeratedly concerned to women in a developing country such as Iraq, that women often face a great deal of social disregarding comments regarding their choices.
According to Ms. Karadaghi “A woman who may have just undergone rape have to deal with consequences of rape and that based on Iraqi law we are telling her that we can’t fix those consequences, you have to proceed to exist as a pregnant woman give birth to an illegitimate birth child and deal with the social consequences of that as well afterward, that is multifaceted violence against that woman”. Lawyer Ali says: “Iraqi law penalizes the individual who rapes a female and if later the female gets impregnated and wills to abort her fetus which is formed as a rape consequence then the woman is also penalized by Iraqi abortion law number 111 from penal code 117 of year 1969.”
The current Iraqi law is not just violent towards women who undergo rape, but also towards women who simply choose not to have a child as Ms. Karadaghi mentions that “there is an active violence against women who are in a relationship or marriage but don’t want to have an additional child by denying her right, the freedom of choice about her reproductive rights are being prevented.”
Iraq considers the benefit of the community more than the benefit of individuals, in which any decision that is made by any individual heavily affects the surrounding and the community, “according to Iraqi law a woman cannot abort a fetus just because she wants to abort, because that woman belongs to the community and not only to herself” adds Lawyer Ali.
Another public health issue is recognizing the right of the fetus to life. Recognizing the fetus as a human being and allowing abortion creates a collision between both the fetus and women’s rights. According to the (Journal of medical ethics)—most philosophers believe the moral status of a person requires conscious capacities such as self-awareness, desires, and rationality which does not include the fetus so in this case a fetus cannot be considered as a person who possesses moral status.
Iraq conserves the right of the fetus more than the right of the mother which is observed from the Iraqi abortion laws, “the right of the fetus in Iraqi law is conserved and recognized as a human being, as according to Iraqi law the fetus has legacy and right of inheritance until it is born and then the right is completed when its gender is reveled” adds Lawyer Ali.
To provide abortion service is to provide health care more accessible to women as it is part of a reproductive health service to women and depriving women of that right will lead to negative health consequences as women are dying or suffering from illegal or non-medical abortions, “statistically and culturally speaking, if a woman wants to have an abortion, then she will find a way to have an abortion. In my view, it is justified to provide a service that gives the woman the safety under a supervision of a medical profession than to have to deal with consequences of a failed abortion or bad abortion or an abortion that leads to death” says Ms. Karadaghi.
She further adds and says “legalizing abortion doesn’t mean that everyone will get one, giving a service doesn’t mean that everyone is going to choose that service, it just means that those who want to do it will be able to do it safely in less exploitation.”
In Iraq, culture significantly affects the decisions that women take and in the case of abortion most women prefer to perform the procedure secretly and illegally, “Women who undergo abortion are usually judged very harshly not only in communities like ours but also global communities where open-minded individuals exist because whether you like it or not the value of a child is very high and the idea that you get rid of a child is significantly hard for people to accept, being a woman in a society that is quite patriarchal and then add to that a decision regarding offspring historically women have always been seen as a vessel for creating offspring as opposed to an actual human being” adds Ms. Karadaghi.
In some cases, abortion policy can also create conflict between human rights. For example, in the case of sex-selection abortion, due to ultrasound and other sophisticated technologies the gender of the fetus can now be detected which enable parents to know the sex of their fetus during prenatal screening, Ms. Karadaghi adds and says: “In a culture where son preference prevails, parents may decide to abort female fetuses, which in this case a conflict occurs between the individual liberty with a perceived public good, leading to gender imbalances in the population.”
The best interest of a born child, as well as the mother, are important factors that should be considered when it comes to abortion. It is the right of the child to be born healthy, loved, and wanted child in family and society. It is also the right of the woman to have autonomy on what she decides regarding her body. A child who is born following undesired pregnancy probably will suffer unhappiness, and this is against the child’s interest. The woman has to deal with an unwanted pregnancy and it is post complication that might affect both the woman and the child’s mental health negatively.
The general grounds for termination of pregnancy under exceptional cases would be represented in preserving the health of the woman, as well as the health of a born child, as both have the right to enjoy life without suffering from any mental or physical impairment. The post complications of abortion are to be issued by the ministry of health along with determining a list of serious and untreated diseases and disorders that presumably affect the mental or physical health of newborns or the woman. These are all to be used as a justification for performing an abortion.
- Saya Omar Abdulrahman