Seven months after the UAE decriminalised premarital sex, the legal change is not always reflected in how pregnancies outside marriage are treated, according to government guidance, lawyers and hospital staff.
While women are no longer jailed for premarital sex, new births require the parents’ marriage certificate, health insurers do not offer maternity cover to unmarried women and in private online chatrooms unmarried women remain wary of seeking medical help for pregnancy issues.
The disconnect underlines the challenge faced by the United Arab Emirates, which includes the holiday and business hub Dubai, as it seeks to become a secular, more socially liberal state and maintain its status as an investment and tourism hub.
Two major areas of concern are medical insurance and the registration of births.
If a new mother cannot provide a marriage certificate needed to issue a birth notification, hospitals will call the police who refer a file to a Personal Status Court for a judge to issue a decision on how to register the birth, three hospital staff involved in the process and two lawyers said.
A UAE government information website last updated in March reads: “The man and woman must be legally married to each other to get legal recognition for their child.”
On health insurance, current Dubai Health Authority (DHA) policy directives state that “females unmarried at time of enrolment and females without child bearing capacity should not be offered [maternity insurance] cover”.
When asked whether its policies would be updated to reflect the decriminalisation of sexual relations outside marriage, the DHA said in an email: “At this time we have no intention of changing the policies in this regard.”
The DHA gave no further details. UAE’s police, prosecutors and government communications offices declined to comment for this article.
Dubai-based lawyer Ludmila Yamalova, who has represented unmarried women who gave birth in the UAE, said there was still “an overarching view” they had committed a crime.
“If pregnancies outside of marriage are no longer a violation of the country’s laws, then the issuance of birth certificates should be just an administrative step,” Yamalova told Reuters.
“It should not require either a court process or any other complicated procedures involving judicial authorities, such as the police, for example … unless there is an actual dispute about parentage.”
COURT RULINGS HINT AT CHANGE
Like socially conservative, Sunni Muslim Gulf neighbours including Saudi Arabia and Qatar, the UAE used to penalise consensual premarital sexual relations – most commonly evidenced by a birth.
Rights groups criticised that law for discouraging rape reporting, for jailing and deporting women and their children and for depriving children of birth documents needed for travel and schooling when women fled into the shadows to avoid prosecution.
But in late September, Article 356 of the UAE Penal Code was amended to decriminalise “indecent assault with mutual consent”, a phrase used for decades to penalise sex outside marriage, co-habitation, extra-marital relationships and same-sex relations.
The change is beginning to make its way through the courts.
Local media reported that appeal courts in Dubai and Sharjah this year acquitted people from verdicts made previously under Article 356 for consensual premarital sex.
In one case Yamalova has dealt with, she said a UAE resident was charged last year with the crime of unmarried sexual relations after she gave birth.
By the time the police criminal file reached the public prosecutor, the law had changed. In March, the case was dismissed on the grounds that the decriminalisation of consensual premarital sex rendered the act “unpunishable”, Yamalova said.
But while the woman’s record was cleared, the baby remains without a birth certificate, the lawyer added.
“The reforms were an important step in the right direction … but authorities must ensure unmarried pregnant women can access healthcare and birth certificates for their children,” said Rothna Begum of Human Rights Watch.
In private social media chatrooms seen by Reuters, women continue to post messages anonymously asking for information on “safe clinics” they can attend for an unmarried pregnancy or miscarriage.
One group raises 14 separate topics regarding legal issues and accessing pregnancy-related healthcare outside marriage – a major worry with the coronavirus pandemic reducing options for travelling abroad for birth or abortions, which remain illegal.
The responses range between those who say they need not worry and those who advise the opposite, highlighting the confusion on the issue.
Last year’s reform of personal and criminal laws included decriminalising alcohol consumption and cancelling provisions for leniency when dealing with so-called “honour killings”.
It was part of UAE’s efforts to attract business and tourists as it pursues economic diversification away from hydrocarbons, including offering long term visas and citizenships for the first time.
Lawyers and some UAE residents saw some of the changes as bringing the law into line with practice: the ban on cohabitation in Dubai, for example, was rarely prosecuted.
And in a sign of more reforms to come, UAE Ambassador to the United States, Yousef Al Otaiba, last month said he and the UAE government believed in separation between religion and state.
“This is the biggest faultline or point of contention that we have in the region. Do we want a more civil forward looking society or do we want a more ideological religious society?”