Attitudes towards the legal context of unsafe abortion in Timor-Leste

Abstract

The new Penal Code in 2009 was an opportunity for Timor-Leste to allow some legal grounds for abortion, which was highly restricted under Indonesian rule. Public debate was contentious before ratification of the new code, which allowed abortion to save a woman’s life and health. A month later, 13 amendments to the code were passed, highly restricting abortion again. This paper describes the socio-legal context of unsafe abortion in Timor-Leste, based on research in 2006–08 on national laws and policies and interviews with legal professionals, police, doctors and midwives, and community-based focus group discussions. Data on unsafe abortions in Timor-Leste are rarely recorded. A small number of cases of abortion and infanticide are reported but are rarely prosecuted, due to deficiencies in evidence and procedure. While there are voices supporting law reform, the Roman Catholic church heavily influences public policy and opinion. Professional views on when abortion should be legal varied, but in the community people believed that saving women’s lives was paramount and came before the law. The revised Penal Code is insufficient to reduce unsafe abortion and maternal mortality. Change will be slow, but access to safe abortion and modern contraception are crucial to women’s ability to participate fully as citizens in Timor-Leste.

Résumé

En 2008, le nouveau code pénal était l’occasion pour le Timor–Leste d’autoriser dans certains cas l’avortement, qui était strictement limité sous le régime indonésien. Le débat public a fait rage avant la ratification du nouveau code, qui permettait à la femme d’avorter pour sauver sa vie et sa santé. Un mois après, 13 amendements au code étaient adoptés, restreignant de nouveau sévèrement l’avortement. L’article décrit le contexte socio-juridique de l’avortement à risque au Timor-Leste, sur la base de recherches en 2006–2008 sur les législations et les politiques nationales et d’entretiens avec des juristes, des officiers de police, des médecins et des sages-femmes, ainsi que de discussions de groupe à assise communautaire. Au Timor-Leste, les données sur les avortements à risque ne sont guère enregistrées. Un petit nombre d’avortements et d’infanticides sont notifiés, mais ils font rarement l’objet de poursuites, par manque de preuves et de procédures efficaces. Des voix soutiennent la réforme législative, mais l’Église catholique romaine influence profondément la politique publique et l’opinion. Les avis professionnels divergeaient sur les motifs légaux d’avortement, mais l’opinion estimait que sauver la vie de la femme était primordial et passait avant la loi. Le code pénal révisé est insuffisant pour réduire les avortements à risque et la mortalité maternelle. Les changements seront lents, mais l’accès à l’avortement sans risque et à la contraception moderne est capital pour que les femmes participent pleinement en qualité de citoyennes du Timor-Leste.

Resumen

El nuevo Código Penal de 2009 fue la oportunidad de Timor-Leste de permitir causales para el aborto, que era muy restringido bajo el gobierno de Indonesia. El debate público era polémico antes de la ratificación del nuevo código, que permitió el aborto para salvar la vida y la salud de la mujer. Un mes después, se aprobaron 13 enmiendas al código, que volvieron a restringir el aborto. En este artículo se describe el contexto socio-jurídico del aborto inseguro en Timor-Leste, de acuerdo con investigaciones realizadas en 2006–08 sobre las leyes y políticas nacionales y entrevistas con profesionales jurídicos, policías, médicos y parteras profesionales, y discusiones en grupos focales comunitarios. Rara vez se registran datos sobre el aborto inseguro en Timor-Leste. Un pequeño número de casos de aborto e infanticidio son denunciados pero rara vez enjuiciados, debido a deficiencias en evidencia y procesos. Aunque hay voces que apoyan la reforma de ley, la Iglesia romana católica tiene una gran influencia sobre la política y opinión pública. Los puntos de vista profesionales en cuanto a cuándo el aborto debería ser legal variaban, pero en la comunidad la gente creía que salvar la vida de las mujeres es lo primordial y se debe anteponer a la ley. El Código Penal revisado no es suficiente para disminuir las tasas de aborto inseguro y mortalidad materna. Los cambios serán lentos, pero el acceso al aborto seguro y anticonceptivos modernos es imperativo para que las mujeres puedan participar plenamente como ciudadanas de Timor-Leste.

Key Words:

• unsafe abortion
• maternal mortality
• law and policy
• criminalisation
• Timor-Leste

Timor-Leste gained independence from Indonesia in 2002 after 25 years of occupation, deprivation and human rights abuses.¹ It remains one of the world’s poorest nations. The population of one million are largely subsistence farmers, live in sub-tropical savannah and mountainous villages, organised along kinship and linguistic divisions. Illiteracy is common. The United Nations and government have worked to stabilise this fragile nation state, where there is considerable complexity in forming governance structures.^{2 3 4} Apart from government and political parties, influential powerbrokers include traditional custodians (liu rai), the Catholic Church, the United Nations and local and international NGOs. Despite recent conflict, progress has been made in forming a democratic system of government, promulgating law, building infrastructure and negotiating an emerging position in Southeast Asia.⁵

Timor-Leste lost much of its health personnel and infrastructure during the violence that erupted following the vote for independence in 1999, which undermined its ability to provide health services.⁶⁷ Intermittent post-independence instability has disrupted service delivery since independence in 2002. Two reports on maternal health services indicate that staff have struggled with a lack of essential supplies, equipment and running water, as well as some of the basic skills required for their work.⁸⁹

Unsafe abortion is the third largest cause of maternal deaths during pregnancy globally and contributes to high maternal death rates¹⁰ and serious morbidity in Timor-Leste. The fertility rate of eight children per woman is also high. Povey & Mercer cite a maternal mortality ratio of 890 per 100,000 live births for 2001.¹¹ The UN Development Programme quoted a similar figure of 800 per 100,000 for 2006³ while the World Health Organization estimated 660 per 100,000 for 2000.¹² In the absence of systematic reporting in Timor-Leste, such figures remain estimates. The collection and management of health data are only just beginning.

This paper describes the socio-legal context of unsafe abortion in Timor-Leste, based on research in 2006–08 on national laws and policies and interviews with legal professionals, doctors and midwives, and focus group discussions with people in the community.

National policies on reproductive health

The National Reproductive Health Strategy (2004–2015),¹³ National Family Planning Policy (2004)¹⁴ and Standard Treatment Guideline for Primary Health Facilities¹⁵ in Timor-Leste all obscure the issues of unwanted pregnancy and abortion. The National Reproductive Health Strategy categorises reproductive health services into “Young people”, “Family planning”, “Safe motherhood” and “General reproductive health”. They are progressive policies, but are patchily implemented due to low capacity in the Timor health system. Abortion is mentioned in connection with adolescents, and in terms of post-abortion care and emergency obstetric care within safe motherhood. There is no acknowledgement of the illegality of abortion or mention of access to safe abortion. The Family Planning Policy promotes modern methods of contraception, which are free and found in public hospitals and health posts, but notes that a third of all women in their 20s and 30s are pregnant in any one year, and there is a very low acceptance of modern methods.¹⁴ It does not mention abortion. Despite the Catholic Church’s position on modern methods of contraception, members of the Church participated in formulating this policy although they do not officially promote modern methods.

New Penal Code, 2009

The Council of Ministers approved the new Penal Code in April 2009, which included clauses on abortion. The Indonesian Penal Code (which had remained in force in Timor-Leste after independence) criminalised all abortions. Initial drafts of the new code, circulated in Dili in Portuguese and English in 2007 and 2008, made no reference to abortion at all. Later drafts permitted abortion on grounds of illness and risk to the life of the mother and her mental health. In the text as ratified, Article 141 on the Interruption of Pregnancy had five sections:

• Any person who performs abortion through whatever means and without the consent of the pregnant woman shall be sentenced to 2 to 8 years imprisonment.

• Any person who performs abortion through whatever means and with the consent of the pregnant woman shall be sentenced to up to 3 years imprisonment.

• Any pregnant woman who consents to an abortion procedure by any other individual or induces abortion as a result of her own deeds or those of a third party shall be sentenced to up to 3 years imprisonment.

• The provisions on the previous paragraphs are not applicable in cases when the interruption of pregnancy is the only means to counter the risk of death or irreversible lesion to the body and physical or psychological health of the mother or the fetus, as long as the procedure is authorised and monitored by a medical team and performed by a doctor or health professional in a public health institution with the consent of the pregnant woman and/or her life partner.

• The provisions of paragraph 4 of this article will be the object of a separate regulation.

Article 142 made infanticide punishable with 3–10 years’ imprisonment.

Just over a month after ratification, Decree Law 19/2009 was passed, with 13 amendments to Article 141, which are highly restrictive. They say women must be facing imminent death and have no other medical option other than to terminate the pregnancy. The woman must consent in writing and her spouse or another person also sought to give consent. Three doctors need to agree to the procedure and sign a certificate. A fourth doctor, not one of the original three, should perform the abortion and one of the doctors should be trained in obstetrics and gynaecology. There should be a delay where possible of two days between gaining consent and performing the procedure. Furthermore, medical practitioners may conscientiously object to performing an elective abortion but must refer the woman to another colleague. Thirty-four parliamentarians out of 65 voted for the amendments, eight abstained and one requested the expert advice of a doctor, as he felt he was not well informed enough in obstetrics.

These amendments shocked women’s health advocates in Timor-Leste. In a letter to the President, calling on him not to sign the amendments into law, they pointed out that it was not possible, particularly in rural areas, to have access to four doctors in Timor-Leste, let alone with knowledge of abortion or specialism in gynaecology and obstetrics. For example, in Atuaro, there is only one doctor, who is not there every day. There was little consultation with health workers, legal personnel or women, who deal with the consequences of unsafe abortions. The passage of these amendments takes place in a society where the Roman Catholic church greatly influences public opinion and policy.

Methods

We studied the legal and social determinants of fertility control and unsafe abortion in 2006–08. Other findings of the study on maternal mortality, ethno understandings of conception, and post-abortion care are available in a situational analysis published by UNFPA and Alola Foundation.¹⁰

The political crisis in 2006 disrupted the research; we extended the time-line but were unable to visit all the country’s six hospitals. The personal and sensitive nature of the topic of unwanted pregnancy and the illegality of termination of pregnancy made extreme discretion necessary. The lack of reliable baseline data is a difficulty faced by all researchers in Timor-Leste.

We visited two large hospitals and two other health facilities, which cover 38% of the population, and studied data on emergency obstetric admissions in 2006 and 2007 in the two facilities with these services. The research team interviewed a variety of people knowledgeable about unwanted pregnancy and abortion. All participants were assured of anonymity and confidentiality. This is difficult in Timor-Leste, where many people are related and places easily identified. We have used pseudonyms throughout and tried to de-identify people, events and locations. As there are few health facilities providing these services, we have limited descriptions of them for the same reason. Information sheets about the research and consent procedures were in English, Tetum and Portuguese. Oral consent was obtained from those unable to read or write. Ethical approval was obtained from Charles Darwin University (#H06092) and the University of Melbourne (#7125771). The Minister of Health also approved the research.

Interviews

Fifteen informants from the general community and governmental and non-government sector, 36 villagers and three traditional midwives gave information. Twenty-one women admitted for post-abortion care were interviewed about their experience and social situation. Thirteen legal professionals were asked where they were trained, their areas of expertise and whether they were aware of cases of manslaughter or murder charges associated with unwanted pregnancies, their knowledge and experiences of working with the Indonesian Penal Code, cases of criminal abortion, infanticide, sexual assault where pregnancy was the outcome, or cases involving domestic violence where abortion was the outcome.

Twenty-one doctors and midwives from four health facilities in two large urban areas who provide post-abortion care were interviewed. They were assured of confidentially and de-identification of their contribution. Some spoke English; others were supplied a Tetum interpreter. The interview schedule covered clinical experience and practice, and knowledge and beliefs in caring for women with post-abortion complications. Clinicians were asked to recall specific cases, talk about diagnostics, treatment procedures, understanding and interpretation of the law, personal values regarding the provision of abortion and family planning. They were shown a visual representation of global abortion laws¹⁶ to elicit discussion of the variation around the world. Questions were worded slightly differently depending on the role and seniority of the clinician. Interviews lasted for about an hour. They were conducted in the health facilities; handwritten notes were taken and typed up. Some clinicians asked to read their responses (most did not). The transcripts were thematically analysed.

All respondents were purposively selected. For example, we only invited doctors who worked on maternity wards or who had clinics or qualifications that would attract patients with reproductive health problems. Midwives were chosen as they work in gynaecology and obstetric departments. The legal professionals were those with experience or exposure to the types of cases we were interested in. We covered a range of urban and rural areas. There is a large expatriate community in Timor-Leste, but the majority of respondents were Timorese. It is difficult to know if those who consented to provide information were representative, but we had few refusals from any group.

Focus group discussions and vignettes

Thirty-six men and women from two villages in one district responded to vignettes about complicated pregnancies. The district health office of one of the audited hospitals directed the research team to the village leaders, who gave permission to talk with the people. Old and young adults volunteered to discuss the cases presented to them, and village leaders chose gender- and age-similar groups. People were not directly asked to disclose experiences of unwanted pregnancy or abortion. Two vignettes were used¹⁷¹⁸ to generate discussion: “Maria” about potentially saving a woman’s life and “Juana” about socio-economic issues and abortion.

Maria

Maria is 19 years old and is having her first baby. She is happily married with Antonio. They are in love and they want this baby. As her pregnancy grows she becomes increasingly weak. She is breathless when she has to walk. One day as she is doing the washing her lips go blue and she can hardly catch her breath. Antonio quickly takes her to hospital. As she falls unconscious she says she wants to live… The doctor and midwife tell Antonio that she has a serious heart problem and the pregnancy is too much of a strain on her weak heart. They say the only thing that will save Maria’s life is if they stop the pregnancy.

Villagers were asked what the doctor should do in this situation, what Antonio should do and what their thoughts were.

Juana

Juana is 30 years old and lives five hours from Dili in a remote village. She is married to Domingos, who is an alcoholic and violent. She has had 12 pregnancies and now has six living children. She is very poor and doesn’t know how to feed all her children. She worries day and night about this. She does not want any more children as she is very tired. She heard about family planning but Domingos does not agree with this idea. One day she thinks she is pregnant again. She goes to the village midwife and asks for a massage to bring back her menstruation. The village midwife says she can do it and she is very successful at stopping pregnancies.

Villagers were asked why Juana goes to the midwife, what does the midwife do and what should Juana do in this situation.

Findings

Maternal deaths and unsafe abortion

Two health facilities were able to report on maternal mortality, and records were assessed where possible. None of the health facilities conducted maternal death reviews, and the number of obstetric deaths could not be ascertained due to the absence of complete record systems. The two hospitals had recorded 1,102 cases of emergency obstetric care in 2006 and 2007. Of these, 470 (42.6%) were women admitted due to complicated abortions, which may have been either spontaneous or induced.

Women and health workers described how pregnancies are terminated outside the health care system: modern and traditional medications/herbals, pummelling of the pelvic area, application of hot water and insertion of objects into the reproductive organs were all used. One case study of the introduction of a foreign body followed by perforation of the uterus, sepsis, coma, necrosis of the uterus and hysterectomy was published in 2009.¹⁹

Legal professionals’ view of the law

Only one legal professional had dealt directly with cases of induced abortion, but many had worked on cases of infanticide, sexual crimes resulting in pregnancy, and domestic violence.

“Yes, I worked on 10–15 cases of infanticide committed mainly in (district name) and (district name). I remember that one woman was sentenced to seven years' imprisonment. It is very difficult to collect evidence in both crimes – abortion and infanticide. In many cases the family helps to conceal the pregnancy until birth and also helps to kill the baby. They feel shame because the woman/girl is not married. There are many cases in the other districts. Women are victims of sexual abuse; they get pregnant and reject the child.” (Timorese prosecutor)

Late in 2008 an abortion case entered the judicial system reported by the Judicial System Monitoring Programme.²⁰ According to this account, the man sourced some traditional medicine to give to his girlfriend, who took it. This demonstrates one way unwanted pregnancies are ended, the dangerous nature of unsafe abortion and the legal complexity of prosecution where evidence is scant. The prosecution was abandoned due to insufficient evidence.

Judicial and prison authorities confirmed that a few women had been investigated for abortion and some imprisoned for infanticide. The Prosecutor's Office reported handling six cases of abortion crime in 2003, one in 2007 and two in 2008. Prison authorities reported that two women were in jail for three to four years each for killing infants less than one month old. The numbers could not be confirmed by court records, as the records were misplaced during the 2006 crisis.

Even if someone is charged, most cases do not reach court as it is difficult to obtain enough evidence to convict. A police officer said it was difficult to enforce the law as nobody made direct complaints to them. Most lawyers commented on the inadequacies of the Indonesian Penal Code and wanted Timorese legislation on abortion. Views varied from liberal to conservative; some said the Code was inadequate in not making any distinctions regarding length of gestation, or that abortion should not be included in the Penal Code at all. One Timorese judge spoke about women’s right to choose and to have protection in law. Others thought the penalties were too low, as the issue was about taking a life.

“Our law, religion and culture do not permit us to induce abortion. In my opinion, if people have abortions it is because of their own selfish interests, for example, because they are ashamed that they are not married or because they have no food or money. If I knew that an abortion had occurred I would do something.” (Police officer)

“There are cases of abortion where women are forced by their partners to take medicines to terminate the pregnancy. These cases take place particularly in the district of [name]. I have seen more than three. No cases reached court… during Indonesian times as they suffered from procedural deficiencies, and could not be judged.” (Expatriate judge)

“First of all I think the Timorese people need to be educated, they have no knowledge at all regarding everything. It is complicated because of the economic and social situation. Women are economically weak and uninformed; if they were [informed] they would protect themselves against these kinds of situations: abortion, domestic violence, all. A big issue here is the Catholic Church, religion. Timorese are very narrow-minded. Only a few, a very few Timorese have knowledge and they can’t influence the majority that don’t have knowledge. The Penal Code is under review and the law should have exceptions allowing women to have abortions, namely when they are raped or even when they can’t raise the kids because they don’t have money. Women should be able to choose.”

Doctors and midwives' views

Most clinicians were unaware of the current law regulating termination of pregnancy. They simply “knew” that abortion was forbidden and when asked who forbade it, they replied “the Church”. Seeing the World Abortion Law map engaged them in discussing the variety of laws regulating abortion and they expressed surprise at the diversity. They had divergent viewpoints about what they believed were appropriate grounds for termination of pregnancy. Nearly all would want to be able to save the mother’s life and many understood that physical and mental health reasons were important to consider, as well as fetal abnormality in making decisions about the viability of a pregnancy. There was less agreement on social reasons, such as poverty, and clinicians preferred to offer family planning and support in these cases. Most acknowledged that incest and rape were common occurrences, which had a profound impact on the desirability of a pregnancy. Some thought the woman had no choice but to accept her fate and continue her pregnancy (with counselling and support); others felt the woman should be able to end her pregnancy legally. Many midwives said they would not assist a doctor to terminate a pregnancy. One midwife said: “Although I do not want to assist the doctor, I would not intervene to stop them as I know that each person is responsible for their own sin in the end.”

Only two clinicians, one expatriate and one Timorese, referred to reproductive rights and the WHO definition of health. The Timorese doctor said:

“If an emergency case comes to us, we must save the woman’s life. We must think about human rights. In the future, when all Timorese are educated, we will decide by ourselves. We will respect all rights and the right to abortion. We need to understand the definition of health according to WHO, so mental health is included. This means that if the woman doesn’t want this pregnancy, it is her right. Also, in my position, I will use the WHO definition which includes the mental health of the woman.”

Villagers’ views

In the focus group discussions using the Maria and Juana vignettes, men and women were adamant that women deserved to survive pregnancy, even if it meant the termination of a pregnancy. They differed as to when abortion should be legal, for reasons such as rape, incest, fetal abnormality, and social and economic reasons. But they had a comprehensive message for doctors. Doctors should not use their religion to withhold treatment from women, even abortion. Doctors should try to save two lives but if they can only save one, then the woman’s life is paramount, whatever the law may say. During discussion of the Maria vignette, these views were expressed:

“As a family member, we are feeling sad but the important thing is to save Maria’s life and maybe she can do some good things for the family. Life is important, not law.” (Village woman)

“We know that religion forbids the termination of pregnancy but health is also important. If doctors and midwives let women die because of pregnancy complications like this one, it is a mistake that cannot be pardoned by God.” (Village man)

Juana’s story raised other issues. The villagers said that men and women should control their fertility and this is possible now. Men especially should consider their capacity to raise children and educate them. If women found themselves in these situations, they should use modern contraception even if their husbands did not agree. Fewer people felt inclined to see abortion as a solution to Juana's problem, however.

Discussion

While systematic health data are poorly recorded and illegality continues to obscure the realities of unsafe abortion, it is unlikely that the full picture will be known. In neighbouring Indonesia, with a similarly restrictive legal environment, and where the stigma of single motherhood is equally strong, manual vacuum aspiration and massage are common methods of abortion and the abortion rate is 37 per 1,000 women of reproductive age.²¹²²

Clinicians in Timor-Leste were willing to talk about abortion and prioritised preserving life, but they had narrow definitions of health and were reluctant to consider social and emotional reasons for abortion. Most health workers conflated the Church’s position with the law. Nevertheless, a few clinicians were supportive of reform. This generation were trained in Indonesia or Timor-Leste. It will be interesting to see if there are differences in views among the 600 or so young Timorese doctors due to return from training in Cuba. A Timorese member of the Ministry of Health reflected on the lack of choices women have:

“It is a dilemma to change the people’s ideas in a day. Perhaps in the next generation people will approach this differently. It will change. We don’t want other countries’ laws. Maybe in the next five to ten years we can adapt these laws in our country but it is difficult. We are a young country, so step by step… We need to decide together in forums. To change the law we would invite the doctors… mostly the doctors know… For myself, I think when girls or women are not ready there should be terminations of pregnancy. I can imagine that a woman does not want the baby; she may neglect it or abandon it. I even asked the priest about that and he said family planning and abortion are the same thing. I said OK tell me what is better – to prevent an unwanted pregnancy, or infanticide or neglect? These are the real choices for women.”

The judicial system has a very low capacity and people rely largely on customary law to settle disputes.²³²⁴ Mearns noted in 2002²⁴ that the traditional system is functional, highly accessible and meaningful to many Timorese, but often disadvantages women and children as international human rights standards do not prevail. There is little protection for women who find themselves pregnant without a father who will take responsibility for the baby. Furthermore, rape is conceptualised as loss of dignity, and families are financially or materially compensated as though the woman is a spoilt commodity. Thus, women who have unplanned and unwanted pregnancies, whether through a consensual relationship or non-consensual sex, often use traditional mechanisms (lian nain), such as asking village leaders to act as mediators. This may result in the baby being relinquished into the care of others. Informal family agreements to care for and raise children may also be arranged. In some cases, families may hide the pregnancy and kill the newborn baby. If a baby is abandoned, some Catholic pastoral services care for them in the short- or long-term.

The formal legal system, the Penal Code of 2009 and the recent amendments to it may prevent pregnant women from receiving emergency obstetric care if termination of pregnancy is required to save their lives. Furthermore, there are no provisions for abortion on grounds of physical or mental health, or for women who become pregnant following rape or incest. Civil society organisations raised these issues publicly prior to parliamentary debate on the Penal Code, and the Dili Declaration from the Peace and Security Conference in March 2009 recommended that Timorese women should have the right to survive pregnancy and not be discriminated against.²⁵ The Code before it was subsequently amended went some way to recognising these issues. However, those who spoke up for women’s right to reproductive health were labelled “pro-abortion” by the media.²⁶ The combined effect of the release of the report and the new Penal Code generated public debate on abortion. Radio and press media in Timor, Indonesia and Australia picked up the debate. It was blogged around the world, as a search on Google demonstrates. The debate was at times heated, irrational and polarised. People with little understanding of the context of Timor wrote in terms of “pro-choice” or “pro-life” — divisive representations of reproductive health advocacy which are unhelpful in a country where women die regularly from lack of access to reproductive health services. Considerable social stigma is attached to public defiance of the Catholic Church’s stance on abortion, and exclusion from the Church is a fear for Timorese.

For the majority of Timorese, the Church and traditional law are the arbiters of moral and legal viewpoints on abortion. However, in 2005, as an independent nation state, Timor-Leste accepted the goals and targets of the Millennium Development Goals to improve maternal health.²⁷ The international literature demonstrates that when access to safe, legal abortion is blocked, women will continue to end their pregnancies, suffer permanent health problems, stigma and sometimes death. The nation has signed and ratified several international conventions that carry implications for national laws, policies and the practical delivery of health services to men and women.²⁸ The Penal Code does not reflect the spirit of these international treaties as regards abortion, and the 2009 observations of CEDAW concur:

“The Committee further calls upon the State party to review the legislation relating to abortion with a view to removing the punitive provisions imposed on women who undergo abortion in accordance with the Committee’s general recommendation 24 on women and health and the Beijing Platform for Action.” ²⁹

Moreover, the Judicial System Monitoring Programme, a Timorese NGO with legal expertise, argue that Article 141 and the 13 amendments may be unconstitutional.³⁰ We therefore recommend a review to determine this.

Cook and Ngwena suggest a range of principles that should guide the development of legal frameworks on reproductive health: that the law should be evidence-based rather than reflect personal morality; legal guidance for women and health care providers should be clear; and the law should be applied without discrimination against women.³¹ The international evidence is clear: criminalisation of abortion contributes directly to the deaths of women with unwanted pregnancies and who have no recourse other than unsafe abortion.¹⁰ Legal reform alone is insufficient to reduce unsafe abortion, but it is a necessary step towards making pregnancy safer for women and reducing maternal mortality, including in Timor-Leste.

We recommend the formation of an inter-sectoral group to advocate for reducing deaths and morbidity from unsafe abortion. Its members could include representatives from the Ministry of Health, Ministry of Justice, Secretariat of Promotion and Gender Equality, health professionals, legal professionals, police and civil society groups who deal most closely with the consequences of unsafe abortion. Such a group could study the international evidence and WHO guidance on making abortion safe,³² in order to advise government on the medical, legal and social implications of the current law and the need for reform. A reliable baseline survey of maternal mortality and its causes would provide evidence of the extent of the problem of unsafe abortion in the country. The full implementation of current government policies supportive of increased access to modern forms of contraception is also crucial. Yet given the current influence of the Catholic Church within Timorese social and political life, any reform is likely to be slow.

Similarly, Timorese civil society groups and women’s organisations need to be supported by the media and government in their efforts to have the issue of access to safe abortion and modern contraception understood as crucial to women’s rights and ability to participate and contribute fully as citizens in Timor-Leste.

Acknowledgements

The Maternal Mortality, Unplanned Pregnancy and Unsafe Abortion study was led by Suzanne Belton, Andrea Whittaker and Lesley Barclay. Permission and support were gained from the Minister(s) of Health and the Minister of Justice to conduct the research in Timor-Leste. Many Alola Foundation staff assisted with cultural sensitivity, interpreting and logistics. UNFPA and Charles Darwin University funded the study. The authors thank Professor Rebecca Cook, Chair in International Human Rights Law, Faculty of Law, University of Toronto, Canada; Professor George Nwenga, Department of Constitutional Law, University of the Free State, South Africa; Fred Nunes; and Charlotte Hord Smith, Director of Policy, Ipas, USA, for their insightful comments. Karen Otsea was particularly helpful and supportive. The complete study is published as a report entitled Maternal Mortality, Unplanned Pregnancy and Unsafe Abortion in Timor-Leste: A Situational Analysis, by UNFPA (Dili) and Alola Foundation at <www.alolafoundation.org/index.php>.