ROUND-UP Law and Policy

Public health policies at risk from world trade agreements

The General Agreement on Trade in Services (GATS) is frequently claimed to exempt public services from privatisation and therefore to protect them from being opened up to foreign competition. However, many observers believe that this interpretation is not valid, and that both precedents and the complex interaction of the World Trade Organization (WTO) regulations with other laws can reduce national autonomy over public policy. Although GATS does not address the issue of ownership per se, there are several restrictions on public monopolies such as health and education services, and the apparent exemption of “services supplied in the exercise of government authority” is diluted by a lack of definition of key terms. This problem could lead to the exemption clause being ineffective as a safeguard. Other arguments centre on whether health services constitute a form of trade, e.g. under European Community rules on competition. There is compelling evidence that membership of GATS and the WTO involves national governments in losing their rights to regulate and protect non-economic values and the principles that shape provision of public services. The claim that governments can completely protect the services if they want to is undermined by the cross-cutting pressures of GATS and uncertainty about the exemptions, limitations and discretion permitted. The relative weight given to trade and non-trade objectives when policy control is ceded to the WTO is an essential issue, and the use of necessity tests by which to settle disputes. This highlights a pressing need for international standards to protect public services from the adverse effect of trade and market forces. ¹

1. Pollock AM, Price D. The public health implications of world trade negotiations on the general agreement on trade in services and public services. Lancet 2003;362:1072–75.

Slow progress on health-related Millennium Development Goals

Three of the eight Millennium Development Goals (MDGs) are health-related–child mortality, maternal health and infectious disease–as are nine of the 18 targets and 18 of the 48 indicators. WHO tracks trends using a number of indicators and there is evidence of some successes. Between 1990 and 2000 there has been progress in the provision of safe drinking water and if sustained, this MDG for 2015 will be met. If the trends in under-five mortality continue, on the other hand, by 2015 the reduction will be only 25%, far short of the 65% target. Similarly the 75% reduction in maternal mortality is looking unlikely. The percentage of deliveries attended by skilled health personnel during the last decade has improved by 12% across all developing countries, but this figure hides the poor progress across sub-Saharan Africa of only a 7% improvement. ¹ Some groups suggest that in some African countries mortality has stagnated or worsened to such an extent that it would take another 150 years for the MDG targets to be met. Among a host of other reasons, the poaching of skilled health professionals from poor countries is having a significant impact on the ability of developing countries to implement strategies to attain the MDGs. ²

1. WHO. Millennium Development Goals: WHO's contribution to tracking progress and measuring achievements. WHO, Geneva, 2003.

2. Gould M. Millennium development goals will not be met, charities say. BMJ 2003;327(7417):702.

Using international litigation to promote reproductive rights in Latin America

Governments in Latin America have been increasingly pledging to expand and promote women's rights through legal and policy development, and have generally supported and adopted international conventions and conference documents. Yet there is a large gap between policy and practice. Information on and access to reproductive health services, abortion, family planning and emergency contraception are seldom available in public health facilities; levels of domestic violence are still very high; and despite global trends towards legalisation, abortion remains illegal in almost all Latin American countries.

When individuals or NGOs are unsuccessful in using the national judiciary to confirm or attain a reproductive or human right, they may try one of the international judicial bodies such as those in the UN or the Organization of American States (OAS). Judgements to date have addressed pregnancy discrimination, abortion and vaginal inspections, and their effects can be far reaching. The “shaming” effect that international decisions can have on governments has been a successful strategy for holding governments accountable for human rights violations and for promoting and upholding important legal and policy changes. However, the promotion of women's reproductive rights should not be viewed in isolation, but must be considered as part of an overarching human rights agenda that incorporates regional and national approaches and strategies, and that connects and unifies local legal and social advocacy efforts. ¹

1. Cabal L, Roa M, Sepúlveda-Oliva L. What role can international litigation play in the promotion and advancement of reproductive rights in Latin America? Health and Human Rights 2003;7(1):50–88.

Mexican health system moves to an evidence-based model

The Mexican health system started with the creation of the Ministry of Health in 1943 and evolved in the late 1970s into a system based on primary health care. More recently it has evolved towards a horizontal integration of basic functions. This is to allow the Ministry of Health to focus on stewardship, with financing and services being extended across all social groups, thus moving away from vertical and differential delivery of care. The aim is to strengthen the financial basis of health-care programmes, improve the quality of care and bring health care to target groups of poor people in rural areas. Twelve interventions are planned, including basic household sanitary measures; family planning; antenatal, perinatal and post-natal care; immunisation; treatment of diarrhoea at household level; and community training for health promotion. Special emphasis is being placed on maternal and child health care. A welfare programme will offer cash subsidies to the poor in exchange for participation in education, health and nutritional interventions. Lastly, universal health insurance through the establishment of a System of Social Protection in Health aims to cover those previously excluded from the social security system. ¹

1. Frenk J, Sepulveda J, Gómez-Dantés O, et al. Evidence-based health policy: three generations of reform in Mexico. Lancet 2003;362:1667–71.

Proposal to decriminalise infanticide in the UK

The director of public prosecutions for England and Wales has suggested that mothers suspected of killing their babies could be dealt with outside the criminal justice system. This comes in the wake of three recent cases where convictions for infanticide have been overturned, resulting in all current pending prosecutions and a further 258 past cases being reviewed. The unsafe convictions came about because of dogmatic expert opinion on the cause of death, which was challenged on appeal by other equally reputable experts. Changing to a civil process will require appropriate legislation but would have the advantage, particularly in cases like these where there is frequently no other evidence, of asking experts to reach an independent conclusion on cause of death rather than taking sides in a criminal trial. Unfortunately, this change in attitude may be too late for those mothers who have not been prosecuted but who have had their children taken into care, and often later adopted, on the evidence of expert witnesses. ¹

1. Dyer C. Mothers suspected of killing their babies might be dealt with outside criminal system. BMJ 2004;328:425.

Unethical contraceptive trial in India

A clinical trial evaluating the antibiotic erythromycin as a female contraceptive has been branded illegal and unethical. Since quinacrine was banned in India as a non-surgical method for female sterilisation due to safety and efficacy doubts, its dwindling supporters have been looking for an alternative. Erythromycin tablets placed in the upper part of the uterine cavity were tested in 790 women volunteers. The failure rate was unacceptably high at 28–35% after 12 months. Critics say that this study highlights the ease with which illegal clinical trials can still be conducted on vulnerable populations in India, where regulatory agencies are weak and medical councils refuse to act against errant doctors. ¹

1. Mudur G. Use of antibiotic in contraceptive trial sparks controversy. BMJ 2004;328(7433):188.

The US Partial Birth Abortion Ban Act rejected by federal courts

The so-called Partial Birth Abortion Ban Act 2003 banned an emergency abortion procedure, generally used around 24 weeks of pregnancy, in which the fetus is partly delivered and then made unviable. This technique is used only in an estimated 0.17% of abortions in the US, about 1,000-2,000 each year, mostly when the woman's life is at serious risk. If the bill is interpreted exactly as written, i.e. to halt use of the procedure per se, it would have little impact on abortion availability in the US. However, interpretation of the language may be subject to manipulation, and there are broader implications for abortion rights as well. The law exempts procedures “necessary to save the life of a mother” but does not indicate how the risk is to be weighed. Must the risk of death be 100% or is 50% or 35% sufficient, and based on what data? The risk of maternal death for a woman aged 35–39 is 35 times greater with delivery than with a safe abortion, so are all such women automatically excluded? Would a woman with a high risk of chronic renal failure be exempted, or would the fact that her health rather than her life was at risk mean she was not covered by the exemption?

An alternative method, dilation and evacuation (D&E), which kills the fetus before delivery, could be used instead. However, some abortion providers fear that D&E could also be construed as meeting the criteria of the banned procedure. Such concerns may lead providers to halt all late second trimester abortions, as happened in one centre, for fear of the legal consequences. If this law is allowed to stand, a precedent has been set for banning one abortion procedure, and attempts at banning others may follow. Furthermore, the law could be construed as a back-door way to confer so-called “personhood” or rights on a fetus. ^1,2 The job of enforcing the law was given to the US Justice Department's Civil Rights Division rather than its Criminal Division, fuelling this fear.

When the Act was passed, public and legal protests began. Louise Slaughter, a US Congresswoman, led a protest outside the Supreme Court. ³ On the day the law was signed, judges in four US states opined that it could be struck down as unconstitutional since it does not provide adequate safeguards to protect a woman's health. Indeed, in August 2004, in a case brought by the American Civil Liberties Union, a federal judge in New York state ruled that the law must be struck down for this reason, following a similar ruling earlier in the same month in California. ⁴ The ruling in a case pending in a third state concurred with the other two as we go to press. The likelihood now is that the anti-abortion supporters of the law will appeal to the Supreme Court.

1. Greene MF, Ecker JL. Abortion, health, and the law. New England Journal of Medicine 2004;350(2):184-86.

2. Borger J. Fury at Bush's civil rights policing of abortion ban. Guardian (UK). 8 November 2003.

3. Eaton L. Congresswomen protest at partial abortion bill [News roundup]. BMJ 2003;327(7424):1126.

4. Bishops' official blames Roe v. Wade for new ruling against partial birth abortion ban. PRNewswire. 26 August 2004.

Is cleft palate sufficient grounds for a late abortion?

In the UK, abortions after 24 weeks of pregnancy can only be carried out legally if there is a risk of serious fetal handicap. A case has recently come to light where a late abortion was carried out because the baby would have been born with cleft lip and palate, a case which is causing considerable legal and popular debate. The woman challenging the abortion decision was a church curate who herself had corrective surgery for a congenital jaw defect. She maintains that cleft palate is a trivial reason for abortion and that the police should have prosecuted the doctors. Following her complaint, the police decided against charging them, in accordance with advice from the Royal College of Obstetricians and Gynaecologists, however. She then applied to the court for a judicial review to challenge the police decision. Her application was refused in a lower court, but allowed by the High Court on appeal. The main legal argument will centre on the vagueness in the law regarding what constitutes a serious handicap. Pro-choice advocates argue that the law is deliberately left vague to allow the decision to be made between a woman and her doctor. The outcome is still pending. ¹

1. Allison R. Does a cleft palate justify an abortion? Curate wins right to challenge doctors. Guardian (UK). 2 December 2003.

Test case from France supports European abortion laws

A French woman whose six-month pregnancy was wrongly terminated when a doctor mistook her for another patient, took the case through the court system in France. The doctor was convicted on appeal of unintentional homicide. That decision was overturned by the highest French court, which ruled that the fetus was not a human being entitled to the protection of criminal law and therefore the doctor could not be guilty of homicide. The woman appealed to the European Court of Human Rights, arguing that an unborn child is protected by Article 2, which guarantees the right to life. If the court had accepted the argument, abortion laws across Europe could have been invalidated. However, by a majority of 14 to 3, the court refused to declare an unborn child a person with a right to life, stating that the issue of when the right to life begins is a question that should be decided at national and not European level.^1,2

1. Dyer C. Test case poses threat to abortion rights. Guardian (UK). 8 December 2003.

2. Dyer C. Ruling on foetus saves abortion laws. Guardian (UK). 9 July 2004.

Figure 1 High Court, France, 1997

Woman detained in Malta to prevent abortion

A Russian woman living in Malta who sought an abortion outside Malta, where abortion is illegal, was taken into police custody to prevent her from leaving the country after her male companion, who claimed he was the father, complained that she was going to have an abortion in the Russian Federation, violating her right to privacy and to free travel. ¹

1. Woman kept from leaving Malta to seek abortion. Feminist Daily News Wire. 11 December 2003. At: 〈http://www.feminist.org/news/newsbyte/uswirestory.asp?id=8208〉.

Portuguese abortion nurse pardoned but abortion debate continues

In Portugal, only a few hundred legal abortions are carried out each year, and an estimated 20,000 or more illegal abortions. In addition an unknown number of women travel abroad where legal abortions are easier to come by. Against this background and despite the considerable tensions aroused, the results of two mass trials in Portugal, one of 42 people in January 2002 and a more recent one involving 17 people in 2004, suggest that the courts at least are not being swayed by the strong anti-abortion pressures within the country.

In the 2002 trial, international pressure led to 15 women held on suspicion of having illegally obtained an abortion being acquitted, and one charge being dropped. The one woman who admitted having had an abortion was given a custodial sentence, commuted to a fine. Only the midwife who organised abortions was given a significant prison sentence, 8.5 years, while 18 other defendants, including a doctor, a social worker, a taxi driver and several pharmacists, got short sentences commuted to fines. Even then, the midwife was given a Christmas pardon by the president after serving less than a year. In the more recent trial, the seven women accused of illegally obtaining abortions, their nine “accomplices” and a doctor were all acquitted despite some proof that the doctor had carried out abortions. This was the first case where “accomplices”, such as husbands, boyfriends and parents of the accused women, had been indicted. ^1,2

Petitions from pro-choice groups raised 120,000 signatures demanding a referendum on the decriminalisation of abortion within the first ten weeks of pregnancy, while anti-abortion petitions raised 190,000 signatures calling for the current law to be maintained. A recent poll suggested that nearly 75% of people in Portugal want a referendum to be held, and more than 67% say they would vote to change the law. However a bill tabled by left-wing parties, which would allow abortion on request up to the 12th week of pregnancy, and up to the 24th week in exceptional circumstances, was defeated in March this year by one vote. The Prime Minister said he would not consider a referendum during his current term of office. ³ Recent efforts by Women on Waves in mid-2004 to take the abortion boat to Portugal to promote abortion law reform have ensured that the issue has remained in the public eye. ⁴

1. BBC. Nurse jailed for illegal abortions. 18 January 2002. At: 〈http://news.bbc.co.uk/1/hi/world/europe/1767226.stm〉.

2. BBC. Portugal abortion women cleared. 17 February 2004. At: 〈http://news.bbc.co.uk/1/hi/world/europe/3496797.stm〉.

3. Williams K. A woman's place is in the struggle: Abortion rights: the battle continues. Green Left Weekly. 11 February 2004. At: 〈http://www.greenleft.org.au/back/2004/570/570p8b.htm〉.

4. Women on Waves press releases, September 2004.

Reduced grounds for legal abortion in Russia

Abortions are common in Russia, with an estimated 13 abortions for every 10 live births, but in a country with falling birth rates and increasing church influence, the long-standing abortion law is being eroded. The grounds for legal abortion after 12 weeks of pregnancy have recently been reduced from 13 to just four: rape, being in jail, having a disabled husband or if either partner is judged unfit to be a parent. The most common social reasons, such as not being married, poverty, already having three children or overcrowded accommodation, are being removed from the statute book. The large majority of abortions in Russia take place before 12 weeks and will not be affected by this change, but women seeking second trimester abortions tend to be more vulnerable and this law worries women's rights campaigners. ¹

• Walsh NP. Low-birth Russia curbs abortions. Guardian (UK). 24 September 2003.

Abortion law liberalisation in Poland unlikely

A bill on reproductive rights which would liberalise the abortion law in Poland has been prepared by the Parliamentary Group of Women in co-operation with women's organisations. The bill, entitled “Law on Conscious Parenthood”, would permit abortion on request up to 12 weeks and calls for schools to begin teaching sex education. It was tabled in the Parliament in September 2004 by the Democratic Left Alliance and has caused an uproar. ^1-3

1. Polish Federation for Women and Family Planning. At: 〈http://www.federa.org.pl/english/english1.htm〉.

2. Nowicka W, Stefanczyk I. President says he will veto liberalisation of anti-abortion law. Polish Repro News No.2. 30 January 2004.

3. Jedras J. The Left versus the Church. Poland: Law on Conscious Parenthood. TOL.28 September 2004.

Failure to liberalise abortion law in Slovakia

An amendment legalising abortions in Slovakia up to 24 weeks has stalled. Current Slovak law allows abortions until the 12th week of pregnancy, and Health Ministry regulations also allow later abortions in cases of genetic defects. When the disparity between the two was challenged by the Christian Democratic Movement (CDM) two years ago, the Alliance of the New Citizen (ANO) proposed an amendment to the current law to make the Ministry regulations part of the legal code. In April 2003, the amendment was passed by the coalition government 70 votes to 32, but was later vetoed by the Prime Minister, Milkulas Dzurinda, amid threats by the CDM to split the fragile government. Although the legislation was due to be reconsidered by the end of September 2003, the ANO postponed the vote. ^1,2

1. Dudikova A. Slovakia lawmakers OK abortion amendment. Associated Press. 3 July 2003.

2. ANO agrees to delay abortion amendment. Slovak Spectator [English language ed.] 2003;9(33). At: 〈http://www.slovakspectator.sk/archiv.html〉.

Abortion law reform in St Lucia

Despite protest marches, postponed government debates and the president's attempt to block the bill, the St Lucia parliament has legalised abortion under specific conditions. These include cases of rape, incest, gross fetal abnormality or when the pregnancy is a threat to the life or health of the woman. Pro-choice advocates had hoped that the government's rhetoric on women's choice would result in a more liberal law. ¹

1. Ertelt S. St. Lucia parliament backs bill legalising abortions in certain circumstances. 28 November 2003. At: 〈www.prolifeinto.com/intl33.html〉.

Kenyan government buys abortion kits to deal with unsafe abortions

Abortion is illegal in Kenya except when the woman's life is at risk, but there are an estimated 300,000 abortions in the country each year, costing millions for emergency post-abortion care, with many deaths and complications. In a debate on abortion at Kenya's National Constitutional Conference in February 2004, Dr Peter Olakhi Odongo, the acting vice-chairman of the Kenya Medical Association (KMA), made a strong case for the legalisation of abortion, saying it would reduce to a negligible number the deaths currently seen. However, after press articles suggested that this was the official position of the KMA, the organisation issued a statement that Dr Odongo's views “were personal and did not represent the position of the association”. ¹ In spite of the KMA's diffidence, to help to deal with complications which arise from unsafe abortions, the government announced plans in May to buy manual vacuum aspiration abortion kits for its public hospitals. ²

1. Akoko D. Kenyan doctors differ over abortion. At: 〈http://www.nationaudio.com/News/DailyNation/Supplements/horizon/12022004/story120220041.htm〉

2. Kwamboka E. Ngilu: hospital to get abortion kits. East African Standard. 7 May 2004. At: 〈www.eastandard.net/headlines.news07050412.htm〉.

No abortion law reform soon in Namibia

Abortion in Namibia is restricted to only a few special circumstances, requiring women either to seek illegal abortions or travel to South Africa to access safe services. A three-year hospital-based study found that over 7,000 women had been admitted with abortion-related complications, and over 5,000 women had undergone dilatation and curettage procedures for incomplete abortion. At least 16% of the recorded maternal deaths were attributed to abortion-related complications and seemed to affect those under age 25 disproportionately. Despite these figures, the Minister of Health and Social Services, Libertina Amathila, does not envisage the possibility of any liberalisation of the current law in the coming years and had no plans to re-table amendments to the current law which were drafted in 1999. ¹

1. Tibinyane N. Abortion law reform ruled out for now. Sister Namibia 2003;15(1/2):16–17.

New Swaziland constitution permits abortion on a range of grounds

Swaziland is drafting a new constitution which includes a section on abortion, which states that abortion is unlawful, with a range of exceptions that permit abortion on medical or therapeutic grounds. These include where a doctor certifies that continuing the pregnancy would endanger the life or constitute a serious threat to the physical or mental health of the woman, where there is serious risk that the child will suffer from physical or mental defect of such a nature that the child will be irreparably seriously handicapped and where the pregnancy has resulted from rape, incest or sexual intercourse with a female idiot or imbecile [sic]. The wording of this last exception has been described as belittling disabled people and ignoring their rights. There is also a final sentence in the draft which says that abortion may be permitted “on such other grounds as parliament may prescribe”. ¹

1. News24. 12 December 2003. At: 〈http://www.news24.com/News24/Africa/News/0,,2-11-1447_1457182,00.html〉.

Law reform for and against assisted reproductive technology

With advances in assisted reproductive technologies outpacing the legislative process, new laws and regulations struggle to keep up. In Israel, the attorney general has issued formal regulations to allow the removal of sperm from a dead man's body to be frozen at the request of his wife or common-law wife. Although the woman would be required to request permission of a court to use the frozen sperm, this will normally be granted. This contrasts with UK law which says that a man's sperm can only be used if he has given permission prior to his death. ¹

Recent legislation in Italy has banned the donation of ova or sperm to treat infertile couples, outlawed the use of surrogate mothers, and forbidden assisted conception treatment for single people and gay couples. It also states that no more than three eggs can be harvested and fertilised at one time and that all embryos must be implanted simultaneously. Embryos cannot be screened for genetic defects and all those formed by the process must be implanted even if they are deformed. Freezing of spare embryos are forbidden. This is in contrast to normal practice elsewhere where transfer is usually limited to a maximum of two embryos to avoid multiple births, and deformed embryos are not used at all. Thus, this law greatly limits the options for those with fertility problems. ²

Recent reform in Spanish law, on the other hand, limits the number of embryos transferred and the number of eggs fertilised per cycle to three, and allows spare embryos to be frozen. Any newly frozen embryos must remain frozen “throughout the full fertility period of the woman”. However, in a change to previous rules, the 200,000 unused embryos currently stored in IVF centres under previous legistlation may now be used for research. ³

1. Siegel-Itzkovich J. Israel allows removal of sperm from dead men at wives' request. BMJ 2003;327:1187.

2. Clarke H. Italy approves controversial legislation on fertility treatment. Lancet 2003;362:2076.

3. Bosch X. Spanish government approves frozen embryo research. Lancet 2003;362:1385.