As the law stands presently, abortion is illegal in Trinidad & Tobago. The law criminalises persons from getting or attempting to get an abortion. This applies to both the carrying mother and any other person who helps carrying mothers to get an abortion whether it be by supplying drugs or any instrument which could be used to cause an abortion.
The law creates a maximum penalty of four years in prison. The actual sentence may be less than four years, its all up to the court to decide.
Although abortions are criminalised by statute, the question remains whether the court's interpretation of the law may create a defence of necessity, such as where the abortion is needed because the pregnancy creates a risk to the health of the carrying mother.
Now our courts have not previously decided any criminal cases on this issue and so it’s important to consider how the courts in England have considered the law on abortion.
British courts have said that there may be a defence where there is reasonable belief that an abortion is necessary to protect the carrying mother’s physical or mental health, or that of the unborn baby.
It is questionable, however, whether T&T’s courts would be so flexible in an interpretation so as to create a defence where it is the unborn baby’s physical or mental health, as distinct from the carrying mother’s health that is threatened.
Other countries – such as Australia – have interpreted the defence created in the United Kingdom to include the carrying mother’s physical or mental health includes her health after the birth of the child and can include economic and social circumstances.
It’s equally important to remember that these decisions are not binding on the T&T courts and so our courts can – but not necessarily will – interpret the law differently.
It’s a strange state of affairs because the same defence may not be available if an abortion is sought because of the mental or physical health of the unborn baby. The Code of Ethics set by the Medical Board of Trinidad and Tobago similarly says that “according to the best interpretation of the law in Trinidad and Tobago, rape, incest or severe foetal abnormality are not of themselves a good indication for abortion unless they threaten the life or physical or mental health of the woman involved”.
For carrying mothers, this uncertainty isn’t welcome. Not only are carrying mothers uncertain of the law but any person who is charged would likely have to wait for the criminal courts to decide whether similar defences to those used abroad can apply locally. This is likely to take a lot of time and probably be an pricey process legally, unless Parliament acts.
Other resources and help may be found at http://www.ttfpa.org
Last updated: 15 September 2020