A call has been made by the Ministry of Health to amend laws that govern abortion in Samoa.
The call is made in their 98-page National HIV, AIDS, and STI Policy 2017-2022 obtained by the Samoa Observer.
“Abortion is illegal in Samoa and access to abortion services is critical to the health and wellbeing of (people living with) PLWHIV, dealing with a sexually transmitted infection, and survivors of rape and incest,” the report reads.
“Laws around abortion need to be amended to adequately address access to abortion for HIV positive women, and legal interventions for increasing access to Sexual Assault and SRH Services need to be developed.”
In Samoa, abortion is currently considered an offense under the Crimes Act 2013 Sections 111-116 in the following scenarios; procuring an abortion or miscarriage for any person by any means (instrument or ingesting drugs or toxins); person procuring their own miscarriage and supply the means for a person to procure an abortion.
The report however says that abortion is not considered an offense if the pregnancy is under 20 weeks gestational age; the person performing the abortion is a registered medical practitioner; the person doing the act believes the continuance of the pregnancy would result in serious danger to the life or mental health of the person and the person is contemplating suicide, very young and/or was raped.
In solidifying their case to amend the local laws, the Ministry of Health’s Policy Report quoted a case law out of New Zealand o R v Woolnough, Dr Woolnough where at the trial had shown doctors need not fear a prosecution for performing abortions as long as they claimed they believed it was necessary to avert a danger to mental health. “Doctors claiming to interpret "health" within the framework of the World Health Organisations definition were on safe ground.
“For a prosecution to be successful it would require that all of the members of the jury be convinced, beyond reasonable doubt, that the doctor did not believe what he said he believed.”
Furthermore the Policy Report says the case demonstrate an abortion is not unlawful where the pregnant woman was contemplating suicide or was raped.
“It is also likely the circumstances extend beyond this to situations where pregnancy is the product of an incestuous relationship and where the pregnant girl is very young.
“Arguably it extends even further to circumstances that would create significant negative emotional consequences for the woman where it is believed this would lead to a serious danger to the woman’s mental health.
“Although abortion is legal in the previous cases, access to safe abortion within the country is severely lacking, and most cases are referred overseas.
“There needs to be a legal analysis to assess the law, the interpretation, the inconsistency of case law, and ultimate population access to quality services.
“Once gaps between legality and access have been formally assessed the National HIV/AIDS and STI Policy will be updated to put forth guidelines that are first, compliant to national laws and secondly are aligned with donor regulations.”