In Malawi, abortion is only legal to save the life of the mother and abortion is a felony punishable by imprisonment. Providing materials for an abortion is also punishable. Most abortions in Malawi are unsafe and are performed by traditional healers or covert clinics or are self-induced. Unsafe abortion contributes to maternal mortality.
Malawi's penal code, introduced in 1930, has an abortion ban based on that of the British Empire. Since the 1990s, reproductive health organisations have been active in the country. The country ratified treaties including the 2005 Maputo Protocol. Pro-abortion activists argued that the abortion ban caused unsafe abortions and violated women's rights. In 2010, the international non-governmental organization Ipas formed a coalition that lobbied for abortion law reform. In 2012, the Ministry of Health under President Joyce Banda formed a commission that proposed the Termination of Pregnancy Bill. The bill would allow abortions in the cases of rape, risk to health, or birth defects. It received support and opposition from various religious groups. An attempt to introduce it to the National Assembly in 2016 was rejected. It was introduced to the assembly in 2021 but failed.
Abortion is a stigmatised subject in Malawi. Abortions are common among women with unwanted pregnancies, and the low rate of contraception contributes to the abortion rate. Unsafe abortion is particularly common among adolescents. Post-abortion care is available in free public facilities and other facilities, but uses dilation and curettage more frequently than manual vacuum aspiration, despite national and international guidelines recommending the latter.
Legislation The laws introduced by the British colonial government in 1930, bans abortion. The country's abortion law has is very similar to the colonial law. Section 149, which is based on the British Offences Against the Person Act 1861, bans abortion:
Section 150 sets a seven-year prison sentence for administering or aiding in an abortion. Section 151 sets a three-year jail sentence for providing "commodities" that aid in an abortion. Section 243, based on the Infant Life (Preservation) Act 1929, allows abortion if necessary to save the life of the mother:
Prison sentences of seven to fourteen years for receiving an abortion, or three years for providing abortion drugs or tools, are enforced. Abortions are rarely reported to authorities, and cases that are reported are not prosecuted. The law does not have guidelines on which conditions abortion is lawful under or medical standards on who can provide abortions or what methods they can use. Healthcare workers interpret the law conservatively due to the lack of clarity and fears of prosecution. Some people in Malawi feel that the law is contradictory or can be modified by local leaders. In practice, an abortion requires the endorsement of two obstetricians and spousal consent.
History Abortion ban and early advocacy President Hastings Banda held the stance that family planning is against Malawian values; by the 2010s, this led to an argument that abortion services have been imposed by foreign donors. Maternal health and pregnancy care have been a focus of the government since the 1980s. The Safe Motherhood Initiative of 1987, the International Conference on Population and Development of 1994, and the Fourth World Conference on Women of 1995 influenced Malawi's focus on reproductive health services including post-abortion care (PAC). MSI Reproductive Choices and its national affiliate Banja La Mtsogolo have operated in Malawi since 1987. After the first multiparty elections in 1994, more reproductive health organisations began operating in Malawi, including Population Services International in 1994, CARE in 1998, and Ipas, EngenderHealth, and Jhpiego in 1999. The Family Planning Association of Malawi was registered in 1999 and became a Planned Parenthood affiliate in 2004. These provided resources to expand PAC. In 2000, the Ministry of Health partnered with Jhpiego to expand PAC. In 2008, Ipas established a Malawi office and registered Ipas Malawi as a national NGO, after an invitation by Minister of Health Marjory Ngaunje.
Malawi ratified the Maputo Protocol in May 2005. Article 14 mandates the right to abortion in the cases of rape, incest, fetal non-viability, or danger to the mother's physical or mental health, but political and administrative barriers have prevented Malawi from passing such legislation. The National Sexual and Reproductive Health and Rights Policy 2009 called for access to abortion services to the full extent of the law, prevention of unsafe abortion, and access to post-abortion care, counseling, and family planning.
After a 2008 meeting with the Ipas African Alliance, and again in 2011, Malawi's Reproductive Health Unit and Human Rights Commission petitioned to reform the law. In 2009, the women's rights group Women in Law in Southern Africa–Malawi sued the national government on the grounds that the anti-abortion law infringed on women's rights. The Malawi Human Rights Commission supported the initiative. Secretary of Health Christopher Kang'ombe said in 2010 that the government did not plan to legalise abortion. The coordinator of the Islamic Information Bureau, Sheikh Dinala Chabulika, said in 2011 that abortion violated Islamic teachings and that he opposed its legalisation.
In 2011, the UK Department for International Development funded Ipas and MSI for a multi-country program that expanded their operations in Malawi. These organisations provide technical support and influence policy. The U.N. Convention on the Elimination of All Forms of Discrimination Against Women noted Malawi's maternal mortality rate in 2010 and called for legal access to safe abortion in 2015. The Gender Equality Act of 2013 guarantees the right of access to sexual and reproductive health services and the right to choose one's number of children.
The Malawi Law Commission has said that the ban on abortion leads to unsafe abortions that result in complications or death. In 2000, a special Law Commission reviewed the existing law and recommended a new law to provide for appropriate legal abortion. In 2008, a group of obstetrician-gynecologists including Dr. Chisale Mhango urged the Law Commission to review the abortion law. A study by the Ministry of Health and Ipas estimated that the country had 70,000 abortions in 2009 and recommended reform of the law.
Termination of Pregnancy Bill Special Law Commission In 2010, Ipas and Women in Law Southern Africa–Malawi created the Coalition for Prevention of Unsafe Abortion (COPUA), a group of 12 organisations, expanding to 60 by 2016. Most of the members are national NGOs. Through the coalition, these groups are discreetly involved in law reform. They downplay their individual roles to avoid scrutiny and accusations of illegal activity. Banja La Mtsogolo declined to join as it feared backlash for its European leadership, but it contributes funding. In 2012, under the leadership of the policy associate of Ipas Malawi, COPUA began a lobbying campaign, meeting with politicians and religious leaders and making media appearances. After lobbying by Ipas, the Law Commission formed the Special Law Commission on the Review of the Law on Abortion, which included representatives of the Ministry of Health, the Ministry of Justice, the Malawi Law Society, the judiciary, the Catholic Church, the Malawi Council of Churches, the Muslim Association of Malawi, the Malawi College of Medicine, and traditional leaders. The commission had the goal of bringing the abortion law in line with the constitution, international law, and the government's guidelines. It noted the "mixed reactions and perceptions" regarding abortion and included high-level representatives of religious groups to build public confidence.
In 2012, after a request by the Ministry of Health, president Joyce Banda began a review of the abortion law. The Special Law Commission analyzed local policies and international treaties. They travelled to study the abortion laws of Zambia, Ethiopia, and Mauritius. They held meetings with stakeholders in ten districts of Malawi. At the 2014 Pan-African Parliament Conference, the deputy chair of the Women's Caucus and the deputy secretary-general of the ruling party voiced their commitment to abortion reform. The same year, the government wrote reports about reviewing its law to the African Commission on Human and Peoples' Rights, the United Nations Human Rights Council, and the United Nations Human Rights Committee.
The Special Law Commission found a high rate of abortions with frequent complications and deaths. They concluded that the abortion law must be liberalised to follow human rights treaties. The judge Esme Chombo led the Commission, which wrote a report recommending the decriminalisation of certain abortions. Leading midwife Anne Phoya was one of the ten commissioners. They recommended a more liberal approach, extending the circumstances where abortion could be permitted to include rape and incest. It did not include financial considerations. Phoya noted that this would be a significant relaxation because Malawi was a poor country, so many could use this as justification.
Proposed bill and debate In a July 2015 press conference, the Special Law Commission proposed the Termination of Pregnancy (TOP) Bill to ease restrictions on abortion. The proposed bill would permit abortion if the pregnancy was caused by rape or incest, would risk the physical or mental health of the mother, or would result in a malformed fetus. It allows providers to refuse abortion to a woman whose life is not in danger. It mandates family planning counselling before and after abortion. It authorises minors' parents to approve or reject their abortions, unless the provider determines it is necessary.
COPUA had gotten a majority of the parliament to support the bill, but after the 2014 Malawian general election, in which most members of parliament lost their seats, it was unable to secure support among the new members. In August, all political parties voiced support for the recommendations. In March 2016, the Ministry of Justice and Constitutional Affairs recommended that the National Assembly debate the proposal. The Cabinet of Malawi reviewed the bill to be sent to the National Assembly for debate. Many members of parliament, including Aisha Mambo who is Muslim, were noncommittal and said they would base their decision on their religious beliefs. The bill was presented to the Ministry of Health in 2017, and lobbyists expected the bill to be presented to Parliament in fall of that year. The attempt to introduce the bill was rejected after protests.
The Ministry of Health and the international NGO Ipas have pushed for abortion reform. They say that legal abortion would save the government money, be good for the economy, and result in fewer deaths. Ipas has argued that an abortion ban violates the Gender Equality Act. The organisation frames unsafe abortion as a "pandemic" and aims to deemphasise counterarguments about morality and rights. The Obstetrician and Gynaecologist Association of Malawi was established in 2016 and became a vocal supporter of abortion reform. The chair of COPUA argued in 2016 that the law did not provide enough grounds for legal abortion. The president of the Women Lawyers Association of Malawi, Immaculate Maluza, said, "This is a health issue, [but] most opposition is on religious and moral grounds, claiming this [bill] is a Western thing."