UAE Amends the Abortion Laws Under Medical Liability Laws; Empowers Women

December 21, 2023by Jerome Jose0

Medical Termination of Pregnancy is allowed when:

  • aborting the fetus is the only option available to save the life of the pregnant woman.
  • the fetus is malformed, with high chance of stillbirth or deficiencies in the child’s health, development and quality of life.

Private health facilities must refrain from abortion operations unless they hold specific licenses for such procedures.

The husband’s consent is no longer necessary; only the expectant mother’s consent is needed.

Abortion, if it is illegal or without the pregnant woman’s consent, invites imprisonment and monetary penalties.

A Comprehensive Analysis of Recent Amendments to the Medical Liability Laws in the UAE ensuring greater autonomy for women about their life and reproductive health.

Abortion is a contentious area of law that deals with the fundamental right to life. It is generally prohibited and a criminal offense under the UAE Penal Code, except in certain specific conditions, even if the pregnancy is the result of rape. This is because abortion is strictly prohibited under Islamic law, regardless of the reason for the pregnancy.

However, the Federal Decree-Law No. 18/2023 on Amending Some Provisions of Federal Decree-Law No. 4/2016 on Medical Liability, issued on September 16, 2023, outlined two exceptional cases wherein abortion is permitted. This reiterates the UAE’s commitment to women’s reproductive and sexual healthcare.

Overview of the abortion law amendment

Under the Medical Liability Law of 2016, abortion was primarily proscribed under the provisions of Article 16. The new amendment to the provision, while maintaining the overarching prohibition, introduces nuanced changes to the circumstances under which abortion is permissible in the country, providing greater autonomy for women over decisions related to their life and reproductive health. The amendment to the law maintains the prohibition of abortion in principle, but introduces two distinct cases wherein abortion is permissible:

Case 1: Threat to the Life of the Pregnant Woman

If the continuation of the pregnancy endangers the life of the pregnant woman, abortion is permissible after fulfilment of the following conditions and controls:

In cases where aborting the fetus is the only option available to save the life of the pregnant woman.

Abortion must be done at a government health facility or a private health facility that is authorized by the Competent Health Authority. The procedure must be carried out with the knowledge of an obstetrician and gynecologist and with the approval of the attending physician overseeing the patient’s abortion-requiring case.

The medical specialists mentioned above should draft a report including justifications to carry out the abortion operation, provided that the pregnant woman signs such report as an approval of the abortion. In case it is not possible to get her approval, then it is necessary to get the approval of her spouse or guardian. The health facility and each person signing the report shall keep a copy thereof. The consent of family is not required in emergency cases that necessitate immediate surgical intervention.

Case 2: Fetal Malformation

Fetal Malformation is understood as a structural defect in the body due to abnormal embryonic or fetal development. Often referred to as birth defects, these are structural changes to one or more parts of the fetus’ body that increase the chance of stillbirth and can cause deficiencies in the child’s health, development and quality of life. Abortion is allowed, subject to the following conditions, if fetal malformation has been proven to have occurred:

  • The malformation shall be proven in a medical report issued by a medical committee that shall be formed by a decision of the health entity and shall consist of at least three consultants specialized in obstetrics, gynecology, pediatrics, and radiology.
  • The health committee shall carry out all medical examinations through the use of scientific techniques and shall prove the results of the medical examinations using scientific techniques and shall prove the results of the examinations and the impact of the malformation on the embryo in the report.
  • The procedure shall be performed based on the approval of the pregnant woman on the results of the report. In case of failure to obtain the approval thereof, it is necessary to obtain the approval of the spouse or guardian.

Cabinet Authorization and Potential Changes

The Amendment to the law empowers the Cabinet to issue resolutions that may introduce additional cases wherein MTP could be allowed, along with specifying the conditions for such instances. This broadens the scope for potential amendments and highlights the adaptability of the legal framework to evolving societal norms and medical advancements.

Under the Old Law, abortion operation could have been allowed in Case 2 (Fetal Malformation) only if the pregnancy was less than 120 days. The New Law does not mandate this condition. However, the New Law authorized the Cabinet to add other requirements in Case 2. It is therefore uncertain whether the 120 days condition would be restored by a Cabinet resolution. Unless it does, this condition is not specified under the New Law.

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Impact on Medical Facilities

Private medical facilities, in particular, are urged to recalibrate their policies in alignment with the recent amendments. Notably, the New Law explicitly mandates that private health facilities refrain from performing abortion operations unless they hold specific licenses for such procedures. This directive aims to regulate and standardize the provision of abortion services, underscoring the government’s commitment to ensuring the highest standards of medical care.

However, the New Law brought about significant changes to a few requirements that must be met in the two Cases, including the following:

In both cases, the husband’s consent is no longer necessary for the abortion. All that is needed is the expectant mother’s consent. If her consent cannot be confirmed (for example, because of her health), her spouse or legal guardian (such as her father) must give their consent. However, about Case 1, in cases where urgent surgical intervention is needed, no approval would be needed.

In Case 1, abortion could only be performed at a public or private health facility that is officially licensed to undertake such operations. This notifies private health facilities that such procedures should not be conducted unless they are officially licensed to do so, among other things.

Penalties under the UAE Penal Code

Article 391 of the UAE Penal Code addresses the legal consequences surrounding abortion. If a pregnant woman intentionally terminates pregnancy using any means, she may face imprisonment for up to one year and/or a fine of up to AED 10,000.

In cases where another person, with the pregnant woman’s consent, facilitates the abortion, the potential punishment includes imprisonment for a minimum of two years or a fine of at least AED 10,000.

Notably, if the individual causing the MTP is a qualified professional such as a physician, surgeon, pharmacist, midwife, or technician, the penalty escalates to temporary imprisonment, capped at five years. It’s important to highlight that this penalty is in addition to any more severe consequences outlined in other laws.

Furthermore, intentional MTP without the pregnant woman’s consent carries a potential sentence of temporary imprisonment, with a maximum duration of seven years.

These legal provisions underscore the gravity of actions related to pregnancy and maternal health within the UAE, reflecting the legal system’s commitment to safeguarding life and maternal well-being.

The recent amendments to the UAE’s abortion laws reflect a nuanced and evolving approach to a complex legal and ethical issue. By empowering women with greater autonomy over decisions related to their reproductive health, the amendments align with global trends promoting individual rights. As medical facilities adapt to the new regulatory landscape, ongoing dialogue and cooperation between legal, medical, and ethical stakeholders will be paramount to ensuring the effective implementation of these changes. The government’s commitment to ongoing evaluation, as exemplified by the Cabinet’s authorization to introduce additional cases and conditions, positions the UAE at the forefront of progressive legislative frameworks in the region.

About ATB Legal

ATB Legal is a full-service legal consultancy in the UAE providing services in dispute resolution (DIFC Courts, ADGM Courts, mainland litigation management and Arbitrations), corporate and commercial matters, IP, business set up and UAE taxation. We also have a personal law department providing advice on marriage, divorce and wills & estate planning for expats. Please feel free to reach out to us at office@atblegal.com for a non-obligatory initial consultation.

by Jerome Jose

Jerome is a legal consultant at ATB Legal, handling corporate and commercial matters. He is a law graduate from Christ University, Bangalore, and has practised with legal consultancies in the UAE and India.

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