Legal Aspects of Abortion

What is Abortion? Legal Aspects and Important Considerations in Practice

Abortion, in medical literature, refers to the termination of pregnancy through various methods. This concept, also referred to as "causing a miscarriage" in the Turkish Penal Code, is significant from both health law and criminal law perspectives. Specifically, the Turkish Penal Code (TCK) and Law No. 2827 on Population Planningclearly define the conditions under which abortion can be performed.

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1. Definition and Scope of Abortion

Abortion is the termination of pregnancy through medication or surgical methods. Legally, abortion is a crime if it is performed outside legal limits or without the woman's consent.
Understanding the legal aspects of abortion in Turkey is crucial for protecting individual rights and avoiding medical and legal risks.

• If an abortion the legal timeframe and conditions , it is considered a medical procedure and does not constitute a crime.

• However, outside these limits, especially when done without consent or by unauthorized persons, it is considered a crime under the Turkish Penal Code.

2. The Legal Basis of Abortion in Türkiye

The legal basis for abortion procedures is determined by Law No. 2827 on Population Planning and Article 99 of the Turkish Penal Code

• Article 5 of Law No. 2827 , the first 10 weeks with the woman's consent.

• Abortion after ten weeks is only possible in cases of medical necessity. This applies to special circumstances such as situations that endanger the mother's health or when the fetus has serious anomalies.

• In cases of medical necessity, it is mandatory to obtain a medical board report and for the procedure to be performed by a specialist physician.

3. Consent Requirement and Whose Approval is Needed?

Consent is the most critical element for an abortion procedure

• For unmarried women, only the woman's own consent is required.

• For married women, the written consent of their husband is required.

• Parental consent is required for individuals under the age of 18

• Abortion without consent Article 99 of the Turkish Penal Code and carries severe prison sentences.

4. Turkish Penal Code Article 99 – The Crime of Abortion

According to Article 99 of the Turkish Penal Code:

• who terminates a pregnancy without the woman's consent is punishable by imprisonment for 5 to 10 years.

• Even with the woman's consent, terminating a pregnancy after 10 weeks by imprisonment for 2 to 4 years .

• Abortion performed by an unauthorized person is also punishable, and the fact that the perpetrator is not a doctor is an aggravating factor in the penalty.

• There is no criminal liability if there is a medical necessity or if the woman's health is at risk

5. 10-Week Time Limit

Elective abortion legally possible only during the first 10 weeks of pregnancy. This period is calculated based on the woman's last menstrual period.
For example, terminating a pregnancy at 12 weeks through elective abortion is a crime, and both the doctor performing the procedure and the woman face criminal risks.

6. Legal Status in Cases of Compulsory Abortion

According to Article 99/6 of the Turkish Penal Code, abortion is not a crime if there is a medical necessity. For example:

• Serious health problems that endanger the mother's life,

• Detection of severe anomalies in the fetus that are incompatible with life after birth,

• Abortion can be performed if there is a medical necessity, provided it is documented with a report.

7. The Role of Healthcare Institutions in Abortion

Abortion procedures can only be performed in institutions authorized by the Ministry of Health and by specialist physicians.

• In both state and private hospitals, abortions can be performed up to the 10th week of pregnancy, provided the legal conditions are met.

• After ten weeks, an abortion requires approval from a health board.

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8. Supreme Court Decisions and Practice

The Supreme Court has issued many important rulings regarding abortion.

• The 1st Criminal Chamber of the Supreme Court of Appeals, Case No. 2017/1283, Decision No. 2018/2056, stated: "Elective abortion performed after 10 weeks constitutes a crime, even with consent."

• The 4th Criminal Chamber of the Supreme Court of Appeals, Case No. 2016/4123, Decision No. 2017/5298, stated: “The perpetrator who forces a woman to undergo an abortion against her will should be punished; this act constitutes a crime against a woman and violates her bodily integrity.”

9. Abortion and Women's Rights

The issue of abortion should be considered not only from a criminal law perspective, but also in terms of women's bodily integrity and right to health.

• Article 17 of the Constitution: "Everyone has the right to life, to protect and develop their material and spiritual existence."

• The right to abortion is part of a woman's right to control her own body; however, the 10-week limit has been established for reasons of public order and the right to life of the fetus.

10th International Abortion Practices Conference

Abortion regulations vary from country to country.

• In many European countries, abortion is legal with certain time limits (France 14 weeks, Germany 12 weeks).

• Stricter regulations exist in Catholic countries.

• Turkey allows a shorter period than the world average , with a limit of 10 weeks

12. Conclusion and Recommendations

Abortion is a controversial issue from both legal and ethical perspectives. In Türkiye, elective abortion is permitted with the woman's consent up to 10 weeks. Beyond this period, it is only possible under medically necessary circumstances. Abortion without consent is considered a serious crime and carries severe penalties.

While women's right to control their own bodies is guaranteed by the Constitution and international human rights documents, it is important to emphasize that abortion is not an unlimited right due to the balance between public order and the right to life of the fetus.

Gozdenur Turna