The Commissioner for Human Rights in the Republic of Abkhazia, Asida Shakryl, requested the RA Constitutional Court to verify the constitutionality of the provisions of Part 5 of Article 40 of the RA Law "On Healthcare". The reason for the appeal was the revealed uncertainty as to whether the law (dated February 8, 2016 No. 4031-c-v) is in conformity with the Constitution of the Republic of Abkhazia.

On January 29, 2016, the People's Assembly-Parliament of the Republic of Abkhazia adopted the Law "On Healthcare", according to Part 5 of Article 40 of which the state recognizes a right to life before birth, from the moment of conception and prohibits artificial termination of pregnancy. Part 6 of the same article provides for criminal liability for abortion, excluding cases of intrauterine death (paragraph 1).

In her Request, the Commissioner notes several inconsistencies of the Law "On Healthcare" with constitutional norms of the Republic of Abkhazia:

•            The provisions of Part 5 of Article 40 of the Law of the RA "On Healthcare" in its current form are restrictive of constitutionally protected freedoms, including the right to life. The provisions contradict articles 1, 11, 12, 13, 13.1, 19, 34, 35 of the constitution. The legislator allowed the situation where there is a threat to the life of a woman during pregnancy since she is denied the full range of reproductive health services.

•            The newly adopted provisions jeopardize women’s constitutional rights to health, privacy, dignity, equality, and autonomy, by bestowing on a zygote or embryo the rights equal or superior to the rights of women. Systematic interpretation of the constitutional provisions guaranteeing the right to life (art. 13 of the Constitution) and the right to privacy (art. 14 of the Constitution) does not allow unreasonable restrictions of women’s right to artificial termination of pregnancy.

•            The restriction contained in Part 5 of Article 40 of the Law of the Republic of Abkhazia "On Healthcare" contradicts the principle of proportionality, since the improvement of the demographic situation cannot be used as the basis for restricted access to abortion. Highly restrictive abortion laws are not associated with lower abortion rates. Instead, restrictive abortion laws contribute to higher rates of unsafe abortion with attendant risks to the life and health of pregnant women.

•            The newly adopted provision of the Law "On Health Care " violates the right to health (part 1 of Article 25 of the Universal Declaration of Human Rights, part 1 of Article 12 of the International Covenant on Economic, Social and Cultural Rights), in particular, the right to reproductive health. The criminalization of abortion is recognized as a form of gender-based violence that, in cases where medical indications for termination of pregnancy are present may amount to torture or cruel, inhuman, and degrading treatment.

Shakryl emphasized that in international practice the right to abortion is defined and enforced as a fundamental human right. Denying women the right to decision-making in respect of their reproductive health, including access to safe and legal abortions goes against the meaning of article 1 of the Convention on the Elimination of All Forms of Discrimination against Women (adopted by General Assembly resolution 34/180 of 18 December 1979).

Imposing barriers for women in pursuit of their health goals compels them to resort to unsafe abortions, performed by unprofessional providers and practices. 

According to the Commissioner, the Law on Healthcare in its current form is profoundly discriminatory and violates several rights guaranteed under international law, as well as the principle of equality established by Article 12 of the Constitution. The law is arbitrary and has a disproportionate impact on particular groups of socially vulnerable women.

As part of the Request, the Commissioner for Human Rights called on the RA Constitutional Court to recognize the content of Part 5 of Article 40 of the Law of the Republic of Abkhazia "On Healthcare" No. 4031-c-v as contradictory to Article 1, 11, 12, 13, 13.1, 19, 34, 35 of the Constitution of the Republic of Abkhazia. She also urged to speak out about the need to amend the restrictive abortion law, to permit abortion on socio-medical, social, or economic grounds.