Published: Oct 4, 2023

Introducing New Amendments to the Conditions of Abortion Operations

Abortion has been always a controversial area of law as it concerns the sacred right of life. Therefore, Abortion is, in principle, prohibited under Article 16 of the Federal Decree Law no. 4 of 2016 concerning Medical Liability (the “Old Law”) unless in certain cases and under specific conditions. On 16 September 2023, Federal Decree law no. 18 of 2023 (the “New Law”) came into force and introduced amendments to Article 16 of the Old Law.

As was the position under the Old Law, the New Law prohibits, in principle, abortion of pregnancy unless in two cases (“Cases”), as follows:

  1.  If continuing the pregnancy poses a threat to the life of the pregnant woman, after satisfying certain requirements. (“Case 1”)
  2.  If the fetus is proven to have a serious deformity that affects his health and life after birth, after fulfilling certain conditions. (“Case 2”)

The New Law however introduced, among other things, fundamental amendments to some conditions that need to be satisfied in the two Cases, as follows:

  • Husband’s approval to abortion is no more required in both Cases. Only the approval of the pregnant woman is required. In the event that her approval cannot be verified (e.g. due to her medical condition), there has to be an approval from her husband or her guardian (e.g. father). Nevertheless, in relation to Case 1, no approval would be required in emergencies which require immediate surgical intervention.
  • Abortion in Case 1 could only be operated in a governmental health facility or a private health facility that is specifically licensed to perform abortion operations. This alerts private health facilities that no abortion operation should be performed unless, among other conditions, they are specifically licensed to perform such operations.
  • Under the Old Law, abortion operation could have been allowed in Case 2 if, among other conditions, the pregnancy has been less than 120 days. The New Law did not require this condition. However, the New Law authorized the Cabinet to add other requirements in Case 2. It is therefore uncertain whether the 120 days condition would be restored by a Cabinet resolution. Unless it does, this condition is no more required under the New Law.

In addition to the above two Cases, the New law has authorized the Cabinet to issue a resolution includes other cases wherein abortion could be allowed and the conditions of such new cases, if any.

Medical facilities, and specifically private ones, should be alerted and draw special attention to the new amendments introduced under the New Law and update their policies accordingly.

If you are having any queries related to the New Law and its implications, please feel free to contact one of our key contacts.

Key Contacts

Ahmed Allouz

Partner, Regional Head of Litigation