The Impact of the Legal Requirement for Spousal Consent for Abortion on Women’s Reproductive Rights

• Main Authors: Hsieh, Yi-Ni, 謝宜霓
• Other Authors: Lin, Shin-Rou
• Format: Others
• Language: zh-TW
• Published: 2013
• Online Access: http://ndltd.ncl.edu.tw/handle/80358695625399100268

碩士 === 國立交通大學 === 科技法律研究所 === 101 === Taiwan’s Bureau of Health conducted “The Tenth Family and Fertility Survey” in 2008 to find out the pregnancy and fertility condition of married women who aged from 20-49 in Taiwan. The results show that out of the 2706 samples, around one-third (34.82%) of respondents had experiences of induced abortion. This high ratio highlights the close relationship between abortion regulations and protection of women reproductive rights. Under the Criminal Code of the Republic of China, abortions are considered as criminal offences. However, women may be exempted from criminal liability if exception clauses provided in Article 9 of the Genetic Health Act are met. Exceptional clauses provides in the Genetic Health Act are out of the concerns of either population quality or women’s mental health and family life. Although the law takes women’s freedom of making decisions for their own bodies into consideration, spousal consent requirement is imposed on married women who seek for abortion with the reason of “pregnancy or childbirth is likely to affect their mental health or family life.” The legal requirement of spousal consent is undoubtedly a constraint on women’s reproductive rights. Therefore, this study aims at analyzing and reviewing the legitimacy of the spousal consent clause from the perspective of women’s reproductive rights. The first part of this thesis reviews the legislative history of the Genetic Health Act, relevant judicial decisions and academic articles in order to find out the legal status of women’s reproductive rights under Taiwan’s legal system. Secondly, the study discusses the statutory purpose for the establishment of the spousal consent clause. This study finds that due to the lack of awareness of and respect for women’s rights, the legislators with patriarchal ideology regarded this provision as a means to oversee women’s abortion decision-making. This study argues that there’s no sufficient legal basis to justify the existence of the spousal consent clause. This legal requirement may deepen gender inequality in Taiwan and as a result should be changed. This study also conducted an empirical study to explore how the spousal consent clause is implemented and to what extent women’s reproductive rights may be affected by the spousal consent requirement. Totally 13 semi-structured depth interviews were conducted, including 11 health care workers (5 physicians, 6 nurses) and 2 advocators for women’s rights. Interview results reveal that the spousal consent clause constitute a de jure obstacle impinging women’s reproductive rights; moreover, due to fear of getting sued for malpractice or charged with criminal offence, clinicians are not only hesitated to provide abortion medical but also inclined to strictly interpret the law. The actual practice of the spousal consent requirement reflects the existence of de facto restriction for women seeking for abortion. Even if the proposed law requires informing women’s spouses before receiving abortion instead of getting spousal consent, this study argues that the actual practice may remain the same and women’s reproductive rights may still be undermined. The legal requirement of spousal consent must be abolished to protect women’s reproductive rights.