Abortion and the Law

Chapter 9
Abortion and the Law

Babafemi Odunsi

Introduction

The incidence of termination of unplanned and unwanted pregnancies has been very high in Nigeria and beyond,¹ with a reported termination of one out of four pregnancies globally.² The situation can be attributed to various factors; these include lack of knowledge about or access to contraception, the failure of contraceptive devices and unprotected sex under conditions of coercion and violence. The conditions under which abortion is legally permitted differ from country to country. In some countries, access is highly restricted; in others, abortion is available on broad medical and social grounds or on request.³ As will be shown subsequently, termination of pregnancy in Nigeria is highly restricted under the criminal law system and attracts severe penal sanctions except where abortion is undertaken for the preservation of the life of the mother.⁴ The legal restrictions have not deterred nor discouraged the incidence of abortion in any way, with the country having an abortion rate of 25 per 1,000 women aged 15–44 years and about 610,000 abortions annually.⁵ The principal product of the legal restrictions is that a greater percentage of abortions in Nigeria occur through unsafe procedures involving acts undertaken by unskilled providers using harmful methods. Consequently, unsafe abortion has been a major cause of maternal mortality and morbidity in Nigeria accounting for 30–40 per cent of maternal deaths.⁶ On the whole, while it has had little or no impact in preventing abortion, the Nigerian abortion law has spawned high levels of clandestine unsafe abortions with serious health and human rights implications for women.

Abortion is generally safe when performed by trained healthcare providers with proper equipment, correct technique and sanitary standards. Thus, when carried out in safe settings, the deaths and complications from unsafe abortions can be prevented.⁷ Removing the legal restrictions on abortion is a crucial step towards making it safe.8 It is for this reason that advocates for reform of Nigeria’s abortion laws have vigorously canvassed over the years to stem the unwholesome consequences of unsafe abortion.⁹

Against this background, this chapter undertakes an analysis of Nigeria’s abortion law. It highlights the health and human rights implications of unsafe abortion as the main by-products of the law. Taking a broad look at the conflicting positions of protagonists and antagonists of reform, the chapter engages, among others, the emotive issue of right to life of the foetus or ‘unborn child’. Building on the general analysis of the debate, the chapter aligns with the calls for reform of restrictive abortion laws, though taking a departure from the conventional discourses in terms of methodology for reform. In this aspect, the chapter posits that the drive for reform holds better promises of attainment through the courts than the legislature where reform activists have traditionally pitched their calls for reform.

Nigeria’s Criminal Law on Abortion

Nigeria has dual criminal law systems. The Criminal Code¹⁰ operates in the 17 predominantly Christian states of the southern part of the country while the Penal Code¹¹ operates in the 19 predominantly Muslim states of the northern part as well as the Federal Capital Territory of Abuja. The Nigerian statutory law on abortion is set out in these two codes. In the Criminal Code, applicable in the southern part of Nigeria, the law is expressed in sections 228, 229 and 230. With regard to the northern part of the country, the abortion law is contained in sections 232 to 234 of the Penal Code. The Criminal Code provides:

228. Any person who, with intent to procure miscarriage of a woman whether she is or is not with child unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, is guilty of a felony, and is liable to imprisonment for fourteen years.

229. Any woman who, with intent to procure her own miscarriage, whether she is or is not with child, unlawfully administers to herself any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, or permits any such thing or means to be administered or used to her is guilty of a felony and is liable to imprisonment for seven years.

230. Any person who unlawfully supplies to or procures for any person anything whatever, knowing that it is intended to be unlawfully used to procure the miscarriage of a woman, whether she is or is not with child, is guilty of a felony, and is liable to imprisonment for three years.

Along similar lines, though in a more direct manner, the Penal Code provides in section 232 that ‘Whoever causes a woman with child to miscarry shall, if the miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with a term of imprisonment which may extend to fourteen years or with fine or both’.12 The Nigerian statutory provisions on abortion can be traced to the English Offences against the Person Act 1861,¹³ from where they were transplanted into the Criminal Code which Britain, as colonial masters, enacted for Nigeria in 1916.¹⁴

The Penal Code is relatively clear-cut with section 232 permitting abortion only where it is undertaken to preserve the mother’s life. But the same cannot be said of the Criminal Code abortion provisions. In the phraseology, there is no provision making exception in the preservation of the mother’s life. It may thus seem that abortion on any ground whatsoever is culpable in southern parts of Nigeria by virtue of the Criminal Code provisions. However, based on the case of R v Edgal,¹⁵ which followed the English case of R v Bourne,¹⁶ it is now trite that abortion undertaken to preserve the life of the mother would not amount to a culpable transgression of the Criminal Code. Thus, with the exception of the judicial modification introduced by the cases of R v Bourne and R v Edgal, Nigeria’s Criminal Code provisions on abortion remain unchanged. Generally, it is settled that across Nigeria, abortion is only permissible where it is undertaken for the preservation of the mother’s life. Apart from this, abortion on any other ground, however sacrosanct or pressing, remains a crime punishable with terms of imprisonment ranging from three to 14 years, depending on which sections of the abortion provisions a person is prosecuted. In light of its criminal law position on abortion, Nigeria is classified as one of the countries with the most restrictive abortion laws.¹⁷

Broad Impact of Nigeria’s Restrictive Abortion Law

Nigeria’s restrictive abortion law spawns some socio-legal and human rights questions. These questions flow from the primary effects of the restriction imposed by the law. The predominant effects are resort to unsafe abortion procedures and involuntarily carrying unwanted pregnancies to term. Every woman in reproductive age carries the risk of an unwanted pregnancy. Hence there is no distinctive profile of women prone to unwanted pregnancies regarding factors such as age, socioeconomic background, educational status, type of current relationship or the state of knowledge of contraception.¹⁸ Furthermore, according to the World Health Organization (WHO) over 40 per cent of pregnancies worldwide are unplanned due to non-use of contraception, ineffective contraceptive use or method failure.19 Nigeria has been grappling and, predictably, will continue to grapple with the incidence of unwanted pregnancies and the concomitant need for abortion on grounds other than preservation of life.²⁰ It is along this axis that the two predominant effects of Nigeria’s restrictive abortion law are discussed below.

Resort to Unsafe Abortion Procedures

As noted earlier, different factors may warrant the desire for abortion apart from threat to the life of a mother. At broad levels, the reasons for inevitable resort to unsafe abortion can be social, cultural, religious or economic.²¹ In the case of adolescents, fear of negative parental reactions to a pregnancy, expulsion from school or dread of stigma or recriminations may lead to the decision to terminate a pregnancy. Fear of job loss or other career considerations can also propel some people to terminate pregnancies where they amount to constraints. For some people, religious compulsions such as the need to avoid the shame or stigma of having babies out of wedlock may propel them to abortion. This may particularly be the case where the person involved, in her community, has manifested the impression of religious piety or is from a family that has.

Many of the women engaging in abortion are married or live in a stable union and have several children.²² In this context, a pregnancy that was originally wanted and planned may become unwanted through changing circumstances such as breakdown of relationship, rejection of paternity or sudden and unanticipated economic downturn. A woman in a stable relationship may be confronted with unplanned and unwanted pregnancy, and a natural desire for abortion, due to contraceptive failure.²³ For married women, resort to abortion for terminating unwanted pregnancies due to contraceptive failure or non-use of contraceptives is apt to occur when they have attained planned family size and cannot accommodate additional children. Furthermore, where a woman, married or unmarried, becomes pregnant as a result of rape, it is probable that she will opt for abortion so as to avoid reliving the trauma of the rape through the pregnancy or the child if the pregnancy is carried to term.

In all the foregoing situations, it is doubtful that legal prohibitions would suppress the desire for abortion. And with the foreclosure of access to safe abortion, unsafe abortion represents an open option. Indeed, the number of people resorting to unsafe abortion in Nigeria has been enormous²⁴ and the consequences, in many cases, horrendous and tragic.²⁵ Depending on the circumstances in which an unsafe abortion is performed, typical complications include incomplete removal of the foetus, cervical or vaginal lacerations, haemorrhage, bowel or uterine perforation, sepsis and secondary reproductive tract infections; there can sometimes be long-term consequences such as chronic pelvic inflammatory disease and secondary infertility. Any of these complications, if not promptly and effectively treated, can lead to the affected woman suffering severe impairment or death.26 In the specific context of Nigeria, the outlook of unsafe abortion has been presented as follows:

Many types of instruments have been employed to procure abortion … Other unorthodox improvisations may be adopted by quacks. Such improvisations include knitting needles, bicycle spokes or similar instruments which are introduced into the uterine cavity in order to disturb the pregnancy. Any type of instrumentation has its own hazards. Perforation of the vaginal formix or uterine wall may occur, resulting in bleeding, infection or in both. Serious injury may be inflicted by grabbing and tearing intraperitoneal organs especially the intestines and omenturn. Sometimes, a loop of bowel is pulled through into the vagina by the foolhardy and ignorant abortionist who may be a doctor, chemist, nurse, hospital attendant or other unqualified persons.²⁷

Based on the outlook of unsafe abortion in Nigeria as depicted above, it is evident that the practice constitutes a serious health and human rights crisis for women in Nigeria, a problem that includes exposure to suffering and inhuman treatments as well as premature deprivation of lives.²⁸

Carrying to Term Unwanted Pregnancies

Another fallout of Nigeria’s restrictive abortion law is that those who cannot embrace unsafe abortion are railroaded into carrying unwanted pregnancies to term, notwithstanding their physiological, mental and other unpreparedness or disinclinations at the time. This ‘involuntary motherhood’ has some negative health and other implications for the mothers and the unwanted children. Due to forced and premature maternity, young women die in the course of pregnancy or child delivery because of inadequate medical attention as well as inability of the mothers to cope with the biological rigours of pregnancy or childbirth. Some who survive may suffer various health complications, notably vesico-vaginal fistula (VVF) and the related vesico-rectal fistula (VRF) due to the fragility of the bodies of the girls forced into premature motherhood. For long, Nigeria has had to grapple with a very high rate of VVF incidence.²⁹ According to an account, one hospital consistently experienced the admission of about 700 teenage mothers per year; while this number is troubling, many cases do not get to hospitals where they can be officially recorded. In many situations, the young mothers suffering from VVF are abandoned to their fate and left to struggle with the debilitating health condition.³⁰

Persons forced into premature motherhood are also prone to economic, social and other deprivations. For many adolescents who are suddenly vaulted into motherhood, their situations can be chaotic as they have to grapple with daunting physical and psychological yokes. Typically, they suffer discontinuation of education and lives of hunger, suffering, ill-health and so on. A Nigerian weekly newsmagazine which investigated this incidence presented some pathetic images of premature and involuntary mothers in Nigeria. The following extract from the newsmagazine illustrates the characteristic situation:

Her spindle legs wobbled under the weight of frozen fish that she hawked and her seven month old baby she strapped on her back (sic). She sported an over-sized blouse and wrapper of different colours. Her pair of slippers was worn out. But beyond all these was the unspoken emotion weighing her down. Comfort Alabi definitely had every reason to be overwhelmed by her circumstances. She was barely 14 years old and was already a mother … She dropped out of school and became an itinerant fish seller … And as she was saddled with the challenges of mothering, gone was her ambition to pursue a nursing career after graduation from secondary school.31

Due to the economic hardships faced by the deprived mothers, they become particularly vulnerable and easy victims for unscrupulous men who prey on them for sex with financial enticement. Unable to insist on safe sex due to financial incapacity, there is the tendency for some young mothers to have unwanted pregnancies again or to contract sexually transmitted diseases which would further compound their situations.

Conceivably, as a means of avoiding the hardships of undesired and forced motherhood, some people simply resort to the drastic measure of abandoning or literally throwing away babies after birth. Abandonment of unwanted babies is a global occurrence;³² however, the phenomenon appears to be at an alarming level in Nigeria.³³ Newborn babies are regularly found abandoned in various places in Nigeria. Some are lucky to be found barely alive while others experience gruesome deaths.³⁴ Abandonment, in effect, translates to subjecting such babies to torture, inhuman and degrading treatment.

Whether rescued or not, the torture and dehumanization which abandoned babies experience are enormous. It would therefore seem unimaginable that any woman, having gone through the pains of gestation and childbirth can throw away her baby. However confounding it may seem, the stark reality is that unwanted pregnancies and unwanted children would constitute clogs and burdens to some people. And in desperation to get on with their lives they literally toss away the babies, an action which must have appeared to them as appropriate in the circumstances. Whatever may be the moral perception of safe abortion, it, arguably, would qualify as a better option to subjecting live babies to the agonizing torture and gruesome deaths associated with abandonment.

Unsafe Abortion and Nigerian Law: Human Rights Perspective

The effects of Nigerian abortion law, as discussed above, generate some human rights questions bordering on the violation of some human rights of women as guaranteed under the Nigerian Constitution,³⁵ and regional and international human rights instruments. Particularly, the abortion law impacts on women’s right to health, right to dignity of the human person and right to life. The impact will be examined under the different headings of the affected human rights, with reference to effects of the abortion law as previously discussed.

Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.36 Guarantee of the right to health has been unambiguously expressed in a series of human rights instruments operating at international and regional levels. Very prominent among the international instruments is the International Covenant on Economic, Social and Cultural Rights³⁷ which in its Article 12 provides, among others, that States parties to the Covenant ‘recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’.³⁸ Article 12 of the Convention on the Elimination of all forms of Violence against Women (CEDAW)³⁹ established beyond any doubt that women are entitled to the right to access healthcare on an equal basis with men. At the African regional level, the African Charter⁴⁰ in its Article 16 also guarantees for everyone the right to enjoy the best attainable state of physical and mental health. It is quite remarkable that the African Charter has been domesticated as a Nigerian legislation by means of the African Charter Act⁴¹ and is placed on a higher level above other national statutes, being subject to only the Constitution which is the supreme law.⁴²

In effect, the abortion law drives women into unsafe abortion with all the probable medical and other complications, or forces motherhood with all the psychological torture and hardships, on them as earlier depicted.⁴³ In any of the consequences of the abortion law, the women affected or the babies abandoned cannot in any way be said to enjoy health as a state of physical, mental and social wellbeing. Thus, in depriving access to safe abortion, the law amounts to a tacit expression of unwillingness to ensure that women confronted with unwanted pregnancies enjoy the required standard of physical and mental health in relation to pregnancies.

In another context, the abortion law transgresses the right to health through the emasculation of reproductive health rights. Reproductive health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity in all matters relating to the reproductive system and to its functions and processes.⁴⁴ Among others, reproductive health connotes that people have the capacity to reproduce and the freedom to decide if, when and how often to do so, free from discrimination, coercion and violence.45 Reproductive health is a genre of the broader concept of health. Through various mechanisms at the international level, reproductive health has become well recognized as a right.⁴⁶ At the International Conference on Population and Development (ICPD) held in Cairo in 1994, the nature of reproductive right was succinctly highlighted:

Reproductive rights embrace certain human rights that are already recognised in national laws, international human rights documents and other consensus documents. These rights rest on the recognition of the basic rights of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so, and the right to attain the highest standard of sexual and reproductive health.⁴⁷

More recently, at the African regional level, the Protocol to the African Charter on the Rights of Women (Women’s Protocol)⁴⁸ in Article 14 enjoins States parties to ensure that the right to health of women, including sexual and reproductive health, is respected and promoted. In compelling people who cannot embrace unsafe abortion to carry to term unwanted pregnancies and to have undesired children, abortion law vitiates reproductive rights in depriving such people of the freedom to decide if, when and how often to reproduce. Similarly, such people are being forced into reproducing by means of coercion vis-à-vis the punitive sanctions of the abortion law that intimidates them into carrying to term pregnancies that they would otherwise have preferred to terminate. Thus, a major way in which the abortion law affects reproductive health rights is in blocking access to safe abortion for women thereby depriving them a complete state of physical, mental and social well-being in matters relating to reproduction.

In concluding this section, one issue that seems pertinent is whether the right to health generally is a justiciable or enforceable right in Nigeria, considering that it is not listed as a guaranteed human right in the Constitution, which is the supreme law of the land. This issue is pertinent because if the right to health, and by extension, reproductive health, has no legal basis in Nigeria, then there would be no ground to posit its violation by the abortion law. An in-depth discussion of the jurisprudential basis for the enforceability of the right to health in Nigeria cannot be made in the limited scope of this chapter. It, however, suffices to state here that, with sincere commitments on the part of co-state parties, the principles of state responsibility and accountability under international human rights law remain viable means of enforcing the right to health. Above all, the domestication of the African Charter in Nigeria with an inclusive guarantee of the right to health offers a strong platform for individual citizens to lay valid claim to an enforceable right to health as well as reproductive health in Nigeria.⁴⁹

Right to Dignity of the Human Person

Right to dignity of the human person is expressly guaranteed in section 34 of the Nigerian Constitution which, among others, provides: ‘Everyone is entitled to respect of the dignity of the human person, and accordingly – no person shall be subjected to torture or degrading treatment ….’ This right has also been guaranteed in a series of international human rights instruments.50 According to the African Commission on Human and Peoples’ Rights, exposing a person to ‘suffering and indignity’ amounts to a violation of the right to dignity guaranteed under Article 5 of the African Charter.⁵¹

In light of its effects in steering women to unsafe abortions or involuntary birth of unwanted babies, the Nigerian abortion law exposes women to suffering and indignity and therefore constitutes a violation of their right to dignity of the human person. In one respect, the violation manifests in the harrowing physical suffering and, at times, painful death arising from compulsive resort to unsafe abortion. Similarly, the violation manifests in the suffering and deprivations to which women compelled to have unwanted children are exposed, or would be prone to. For example, one can imagine the situation where a woman is compelled to give birth to a malformed or terminally ill child who may invariably suffer and die.⁵² One can further imagine the situation where the woman is financially handicapped and gets pregnant due to rape and is still saddled with an unwanted child in the circumstances. In another vein, the torture, indignity and dehumanization to which unwanted and abandoned children are subjected also translates to violation of the right to dignity of the human person in relation to those abandoned babies. In summation, the physical sufferings, economic and educational deprivations along with other disadvantages suffered by women because of the abortion law constitute torture and degrading treatment which contravene the Nigerian Constitution and international human rights law.

Right to Life

Right to life is expressly guaranteed in the Nigerian Constitution. Section 33(1) of the Constitution provides, ‘Every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria’. The right to life is universally guaranteed and finds expression in a plethora of national, international and regional human rights instruments.⁵³ The right to life includes a positive duty on states to prevent foreseeable loss of life.⁵⁴ This principle can be applied in the context of the Nigerian abortion law.

It is trite that due to a legal blockade of access to safe abortion, women are forced into unsafe abortion or involuntary motherhood in Nigeria. Many women, as well as unwanted babies literally thrown away, have lost their lives as a result of this situation. Many more remain prone to the same fate for as long as the law remains in its restrictive form. In essence, the restrictive abortion law exposes women as well as unwanted babies to foreseeable death. Along this line, through its operation, the abortion law constitutes a threat to the lives of Nigerian women confronted with unwanted pregnancies and unwanted babies. The duty to safeguard the right to life requires the government to remove the restriction which constitutes the core of the threat and facilitate access to safe abortion. Failure to do this would amount to failing to prevent foreseeable loss of life, and a violation of the right to life of people who fall victims.

As in other parts of the world, abortion has been a highly contentious issue in Nigeria55 with protagonists and antagonists aligned on seemingly irreconcilable fronts.⁵⁶ Based on popular euphemisms, the two opposing sides in the abortion debate can be described as ‘pro-choice’ and ‘pro-life’ groups respectively. Simply, the pro-choice group supports or canvasses the liberalization of abortion with the consequence of empowering the person concerned to make the decision or choice whether or not to abort. The position of the pro-choice group is grounded in the right to autonomy which encompasses the right of all people to determine how they use their bodies, including deciding whether or not to carry a pregnancy to term or terminate it.⁵⁷ The pro-life group is of the position that abortion is unacceptable as it amounts to destruction of the sacred human life of an ‘unborn child’.⁵⁸

The right to autonomy in making health decisions and in particular sexual and reproductive decisions is rooted in the fundamental human right to liberty which is guaranteed under the Nigerian Constitution⁵⁹ and a host of international human rights instruments.⁶⁰ Simply, the right to autonomy can be explained as the right of a person, but no other person, to take decision on what would affect that person’s life.⁶¹