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Reproductive Rights in Afghanistan

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 Melanie M. Brookes

excerpted Wrom: CUFPEGAUTFJMVRESKPNKMBIPBARHDMNN Rights in Afghanistan: Considerations of Abortion Regulation in Light of the Afghan Reconstruction Process, 18 Connecticut Journal of International Law 595 - 619, 595-597 (Spring, 2003) (108 Footnotes Omitted)

After nearly thirty years of warfare and political strife in Afghanistan, the international community, in large part motivated by Washington's sudden call to action in the wake of September 11, 2001, finally took an interest in lending the beleaguered country the military aid needed to expel the Taliban regime and take steps toward stability. Pursuant to the expulsion of the Taliban and the convening of the United Nations Talks on Afghanistan, provisional arrangements for the struggling nation were unveiled after nine days of debate by a council of Afghan leaders in Bonn. The resulting agreement established a plan to create a new Afghan government by means of a series of stages that would commence with an interim authority to take power that month, and would eventually form a transitional authority to rule until a new Afghan constitution could be laid out and elections could take place. The current legal system, to be adhered to in accordance with the Bonn Agreement until completion of the new constitution, relies upon Afghanistan's Constitution of 1964 and "existing laws and regulations" for guidance, to be interpreted by a Supreme Court of Afghanistan and other unspecified Afghan courts.

Diversity is a running theme in the Bonn Agreement. Religious and secular interests, the rights of women, respect and recognition of old local custom, international guidance, and many other factors were envisioned during the UN Talks, and will hopefully continue to influence the new Afghanistan. The Afghan justice system will be built with respect to "Islamic principles, international standards, the rule of law and Afghan legal traditions." The question is how this will be accomplished.

While the above topics are relevant in the context of rebuilding Afghanistan generally, this Comment focuses specifically on abortion regulation. Women played an enormous role in arousing international sympathy for the plight of Afghanistan, as evidenced by feminists, human rights organizations, and academics who decried "gender apartheid" throughout the Taliban's control of the country in the 1990s, long before most Americans began speaking passionately of what they could do for Afghan women as Washington began devising a military strategy to uproot the fundamentalist regime. Arguably, no other force in modern history has practiced such severe cruelty in its segregation of women from all aspects of the public realm. Accordingly, the transitional authority seeks to include women in the reconstruction effort, and will hopefully implement improved freedoms and protections for women in all areas of society.

The need for improved reproductive health care is only one part of the grim specter of failing women's health that has prompted humanitarian organizations and international physicians' organizations to take action in the devastated country. From a legal standpoint, the regulation of abortion by the new government, be it a centralized authority in Kabul or one of several local bodies already existing or yet to be created, will play an important role in defining women's freedoms and status in the new Afghanistan. Though many other concerns may seem more important to address than reproductive rights in the short run (such as providing emergency aid, building schools, and organizing free and fair elections), women's reproductive health and freedom to choose whether to terminate their pregnancies must be a major concern of the current authority's focus on women, if they are to be fully reintegrated into Afghan society and if the country as a whole is to immunize itself from future tendencies to fall victim to terrorism and fundamentalist control.

Resolving the issue of abortion in the context of rebuilding Afghanistan involves an in-depth examination of current medical practice and the construction of a stable hospital and health care system, including such objectives as locating and training medical practitioners and obtaining needed supplies. This Comment discusses abortion solely as a legal matter for the purpose of focusing on the first step in the political process of protecting Afghan women's reproductive freedoms. As emergency health care operations subside and a new system is implemented for Afghanistan's population, the law will be looked to as a guideline for this process. But the legality of abortion and its regulation by the government are likely to pose a more unique challenge to the shapers of the new Afghan health care system, in light of Afghanistan's particular gender relations, traditional treatment of abortion from a religious and cultural standpoint, and diversity of viewpoints further fractured by a largely decentralized governmental system. For all the reasons indicated by the nature of the subject and its treatment in recent history, abortion is a controversial and heavily regulated procedure in societies where many other more dangerous and costly medical procedures are carried out daily without undue interference from legislative and judicial bodies. In a country such as Afghanistan, where much is uncertain and crisis is a daily observance, legal access to abortion is a necessary element of an overall guarantee of women's rights and autonomy, which in turn will aid the eventual development of a viable Afghan state that respects the varied needs and values of its people along with international human rights standards.

This Comment examines existing Afghan law and tradition to predict the issues pertaining to reproductive rights that will necessarily arise in the process of lawmaking and institution building. Specifically, abortion is regarded as part of an overall human rights context to demonstrate its significance as an issue for both Afghan women and society as a whole. Part I focuses on the results of the Bonn Agreement and the structure, functions, and responsibilities of the transitional authority. In Part II, the Afghan Constitution of 1964 is analyzed to provide a framework for how the transitional authority will address legal issues that may arise in the courtroom concerning abortion, such as the scope of individual rights and the appropriateness of regulation by the state. This constitution is also discussed as a possible model for the new Afghan constitution, and its potential effect on the authors of the new constitution is considered. Part III discusses two schools of thought on abortion that will likely be considered as "existing laws and regulations" in terms of the Bonn Agreement: Afghanistan's Penal Code of 1976, and the Hanafi school of the sharia (Islamic law).

In Part IV, these topics are further analyzed in terms of how the transitional and permanent authority may interpret Afghan abortion law. Part V ties together the above ideas, and discusses the possible attempts to reconcile local rule with national lawmaking in terms of the efforts to create a stable civil society out of what remains of the war-ravaged and fragmented Afghan population. This section concludes with an argument that abortion is an important legal right that should be treated as part of an overall concern for human rights, specifically the rights of women, by the framers of the new Afghan government. This is necessary not only for the benefit of Afghan women, who have suffered unique and tragic hardships during the many years of war and poverty, but for their families and society as a whole. This human rights context is essential if Afghanistan is to centralize its authority, become economically and politically stable, and insulate itself and the global community from future disaster.

[a1]. J.D., University of Connecticut School of Law, expected 2004; B.A., Bard College, 2001.

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Professor Vernellia R. Randall
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The University of Dayton School of Law
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