The Effectiveness of Abortion Legislation in Six Countries
| DOI | http://doi.org/10.1111/j.1468-2230.1938.tb00397.x |
| Date | 01 September 1938 |
| Author | D. V. Glass |
| Published date | 01 September 1938 |
THE
MODERN
LAW
REVIEW
VOl.
II
SEPTEMBER,
I938
No.
2
THE EFFECTIVENESS OF ABORTION
LEGISLATION IN SIX COUNTRIES
HIS paper
is
a
modified version
of
a
memorandum sub-
mitted, in April, 1938, to the Inter-Departmental Commit-
tee
on
Abortion.1
It
attempts to analyse the efforts
which have been and are being made in
a
number of countries to
check the frequency of abortion. France
is
dealt with in some
detail, since the literature for that country has been most easily
accessible to the present writer, but reference will also be made to
the position in Belgium, Germany, Norway, Sweden and Denmark.
In France and Belgium the law relating to abortion derives
directly from the
Code
Pe'nul
of 1810, Paragraph 317, under which
the penalties prescribed were-
(a)
Penal servitude
(rf!cZzcsion)2
for anyone who, by foods
(aliments),
beverages, medicaments, violence, or any other
The population Investigation Committee. of which the writer is the Research
Secretary, was asked to submit a.memorandum to the 1nter;ppartmental Com-
mittee, the terms
of
reference
of
the latter Committee being to enquire into the
prevalence of abortion and the law relating thereto, and to consider what steps
can be taken, by more effective enforcement of the law or otherwise, to secure the
reduction of maternal mortality and morbidity arising from this cause." Since
the present paper-as also the memorandum
on
which it is based-was written
by one person, the opinions expressed in it cannot, of course, be taken as anything
more than the personal opinions of the writer, and should not be regarded as
indicative of the views of the Population Investigation Committee
as
a
whole.
*
The terms have been given the nearest translation in English.
In
France,
rbclusion
means penal servitude for five to ten years, and
travaux
forces
d
temps
means imprisonment with hard labour for five to twenty years. (Garraud,
R.,
Trait4 Thdorique
et
Pvatique
du
Droit
Pdnal
Fvawais,
Paris, edn. of
1891.
Vol.
I,
p.
605).
Trauaux
forcds
appears to have entailed transportation to a penal colony
T
MODERN LAW REVIEW
Sept.,
1938
means, procures the abortion of
a
pregnant woman, whether
the woman has given her consent or not.
(b)
The same penalty applies to
a
woman who procures an
abortion on herself, or who has consented to use the means
indicated or administered to her, if such means result in an
abortion.
(c)
Doctors, surgeons and other health officialsIg
as
well
as
pharmacists, who indicate or administer such means will be
sentenced to hard labour
(travauxfwcks
d
temps)
if
an abortion
ensues.4
In Belgium it was intended
to
reform the code in
1830,
when the
country gained its independence, but nothing was done until
1867.
In
that year, however, the whole penal code was subjected
to considerable modifications, and the law relating to abortion
was changed to the form
in
which
it
is
still found to-day. Under
the new law the following penalties were prescribeds-
(a)
Penal servitude
(rkclusim)
from five to ten years for
anyone who intentionally procures an abortion by foods,
beverages, medicaments, violence or any other means upon
a
woman who
has
not consented to the abortion.'I
(b)
Imprisonment
(emprisorzlzemerzt)
for two to five years,
and a fine of
IOO
to
500
francs
if
the abortion
is
procured with
the consent of the woman.'
and, under the law of 30th May, 1854,
this
also involved an enforced residence in
the penal colony, after the sentence had been served, for
a
period equal to the
length of the prison sentence if the sentence were for less than eight years, and
for life if the sentence were for more than eight years (Roux,
J.
A.,
Cours
de
Droit
Criminel
Frawais,
Pans, 1927, Vol. I, p. 407). Transportation
has
just
been
abandoned in France.
It
is
not, of
course,
part of the Belgian system of penalties.
In Belgium,
rt?clusion
has the same meaning
as
in France, but
travaux
fwds
d
temfis
extends for ten to fifteen, or for fifteen to twenty years. (Nypels,
J.
S.
G..
Le
Code Pknal
Bclge
Intevphtk,
Bruxelles, 1878, Vol.
11.
pp. 71-89).
Travaun
forcks
and
rlclusion
are penalties for criminal offences, and the crimes for which
they are given are tried by jury. Simple imprisonment
(empisonnement)
is given
for
a
misdemeauour, tried by
a
magistrate's court
(tribunal
cmrcctionncl).
*
Midwives were, in practice, included in the category of health officials who
were liable to specially heavy penalties. Herbalists were not. (See Garraud,
09.
cit.,
and Griolet, G., VergB, C., and Bourdeaux, H.,
Code d'lnstruction Criminelle
et
Code Hnal,
Collection Dalloz, Paris, edn. of 1912, p. 424.)
4
According to the interpretation of the law in France, attempted abortion
was not punished in the
case
of
a
woman who tried
to
procure an abortion on
herself. But attempts by other persons were liable
to
the
same penalties
as
if an
abortion had actually taken place, though in such cases doctors, etc., were not
liable to the specially heavy penalties (Garraud.
Sp.
cit.,
Vol. IV). In Belgium,
however, attempted abortions were not punishable, according to
a
decision of
the Court of Appeal. (Nypels,
Op.
cit.,
Vol.
11.)
6
Articles 348-353 of the penal code
(Codes Edmond Picard,
Bruxelles, 1937.
Vol. 11, p. 31).
*
If
the abortion
is
produced by wilful violence not, however, applied with the
intention of producing an abortion, the penalty
is
imprisonment
(empisonne-
ment)
for three months to two years and
a
fine of
26
to
300
francs (paragraph 349).
7
The fines are increased sevenfold since the devaluation of the Belgian franc.
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