Abortion Laws: The Provisions under the Nigerian Legal Framework as a Cynosure

INTRODUCTION

In our world today, one of the most lethal threats to human life is the question of legal abortion. From time immemorial, abortion has been a controversial subject in many societies on religious, moral, ethical and political grounds. It has been banned frequently and limited by law. However, abortions continue to be common in many areas where they are illegal. While abortions are legal under certain conditions in most countries, these conditions vary widely. According to the United Nations publication World Abortion Policies 2013, abortion is allowed in most countries (97 percent) in order to save a woman’s life. Other commonly-accepted reasons are preserving physical (68 percent) or mental health (65 percent). In about half of countries abortion is accepted in the case of rape or incest (51 percent), and in case of fetal impairment (50 percent). Performing an abortion because of economic or social reasons is accepted in 35 percent of countries. Performing abortion only on the basis of a woman’s request is allowed in 30 percent of countries, including in the US, Canada, most European countries, and China, with 42 percent of the world’s population living in such countries. Thence, giving seal to the culture of death.

The general rule under International law is that right to life begins at birth. However, S.17 of the Childs Right Act provides that a child may bring an action for damages against a person for harm or injury caused to the child willfully, recklessly, negligently or through neglect before, during or after the birth of that child. Hence, an unborn child may possess certain rights that can be enforced against the mother.

WHAT IS ABORTION?

There are large discrepancies in the definition of abortion. This is owing to the contentious nature of abortion. Etymologically, abortion comes from two Latin words, abortus and abortive meaning miscarriage, premature birth or perishing by an untimely birth respectively.

According to the Court in Roe V Wade 410 U.S. 113 (1973), abortion includes all cases of fetal expulsion from the womb whether inadvertently- miscarriage or spontaneous abortion or induced abortion on demand. However, in its most concise extension, abortion so to speak denotes all cases of induced abortions.

There are two kinds of abortion- induced and spontaneous types. The former is also known as abortus provocatus and it is subdivided into direct and indirect abortion. Direct abortion is when the fetal expulsion is the aim of the act, for instance saving the mother’s life. Under Indirect abortion, the end of the fetus is never intended. Rather, it is allowed as an unavoidable side effect of a directly willed act; e.g. Death of the fetus in an attempt to treat a cancerous uterine wall of the mother.

Therapeutic abortion involves an intentional removal of the fetus from the uterus owing to some medical complications, in order to save the mother’s life.  But the question is how therapeutic is that which takes away the fetal life? Therapeutic abortion is criminal if it is not performed with the stipulations of the law-legal indications. It is however legal when it is carried out within the confines of the law.

THE FETAL RIGHTS

This refers to the rights of any unborn human fetus, which is generally a developing human from roughly 8 weeks after conception to birth, under natural and civil law. It came into wide usage after the landmark case Roe V Wade that legalized abortion in the United States of America in 1973. This right is interwoven into the right to life, which is regarded as the most fundamental of all rights because without it no other right is enforceable. The only international treaty specifically tackling fetal rights is the American Convention on Human Rights, 1969 which envisages the right to life of the fetus from conception in article 4(1). Albeit, these rights are recognized in the constitutions and civil codes of several countries.

The preamble of the Universal Declaration of the Rights of the Child (1959); confirms international agreement that the Universal Declaration of Human Rights (1948) recognizes the rights of the unborn. Also, the Hippocratic prohibition on abortion: “I will maintain the utmost respect for human life from the time of conception, even under threat…” does.

U.N. International Covenant on Civil and Political Rights, provides that “Every human being has the inherent right to life” and that the death penalty shall not be carried out on pregnant women. Joseph’s conclusion that throughout the 30 year period from 1948, human rights were understood to apply to the unborn seems well-grounded.

According to Charles Malik, rapporteur to the Commission on Human Rights, which drafted the UDHR; they are natural rights which are invariable and metaphysically prior to any positive rights.

PRESENT CONTROVERSY IN NIGERIA

The controversy as to whether abortion in Nigeria will be legalized has been protracted. This is because issues that border on life are always sensitive for society and all the more for the legislature and the courts. Notwithstanding, arguments from differential fields of knowledge relating to the amendment of the law as it is; are far-reaching. A great many insist that all form of willful abortion should be criminalized. In this school of thought who is Pro-life, we find the Catholic Church and religious bodies at the baseline. Nevertheless, the leftist pro-choice school defends the opinion that it is fair and just that a woman should be left to decide in such a grave matter as her life and death

THE PRO-CHOICE ARGUMENTS

The thrust of the pro-life arguments is that life begins at birth, or until there is a capacity for social interaction. In Paton V. British Pregnancy Advisory Service Trustees, [1979] QB 276 the court affirmed that “fetus cannot, in English law have a right of its own at least until it is born and has separated existence from its mother”. This decision of the court in Paton’s case was brought before the European Commission on Human Rights. The Commission considered the decision vis-à-vis the provision of Article 2 of the European Commission of Human Rights. At the end of their considerations they debunked the existence of prenatal rights.

It is argued that rights attach to a person and that a fetus is not a person. In their opinion, a person is an adult moral agent who exhibits the characteristics of self-consciousness, rationality and moral awareness. From all indications, a fetus lacks these features. In fact, the pro-abortionists argue abortion is not murder, since the human fetus is not human. This pro-abortion view was affirmed in Winnipeg Child and Family Services V. G (D.F.), [1997] 3 S.C.R. where the Supreme Court of Canada held that the law does not recognize the unborn child as a legal or judicial person possessing any legal rights but has always treated the mother and the unborn child as one legal entity.

For the pro-choice advocates, the mother’s life and health which is altogether referred to as maternal indications including her psychological convenience is sufficient reason for a legal abortion. The argument behind this is that the fetus is part of the maternal body and so abortion should be made readily available to any woman. It thus became a legal position that psychological inconvenience of the mother can make abortion lawful.  This was for the first time in the English law established in R V Bourne [1938] 3 All ER 615.

The leftist pro-choice advocates also insist that a defective fetus should not be allowed to come to term. It has been argued that not only does a seriously affected fetus not have a right to be born it has a right not to be born when the outcome will be intense suffering and certain death. It is now said that for the good of humanity, parents have no rights to bring such life to term as such may jeopardize the genetic future of society.

Over-population has also been projected as a reason for a legal abortion.  Increase in population not met with availability of food does not bode well for the nation. Hunger, deprivation and increase in crime-rate are a result of over population.

PRO-LIFE ARGUMENTS

Pro-life advocates argue against the legality of abortion on moral and philosophical grounds. Many advocates also hold religious objections to abortion. They are of the belief that human life begins at fertilization; when the whole genetic plan and code of that individual is there.

The anti-abortionists believe that after conception, the embryo is still alive and can now replace its own dying cells and needs only food and time to grow into a mature adulthood. Advocates of Pro-life tacitly hold to the scientific claim that by twenty-five days, the heart is already beating and that by thirty days the brain is fully formed and all the organs are set for action.

Hence, efforts have been made to challenge the precedent set in Roe V Wade which legalized abortion-on-demand.  These arguments promote the sacredness of human life It is argued that the definition of a person in its strictest sense does not exclude the fetus. Thus, rights accruable to a person are obtainable by the fetus.

For pro-life advocates, physiological and even psychological imbalance or depravities do not constitute enough reason for legal abortion. They also believe that though it is more common and fashionable to believe that the malformed enjoys life less than normal, this appears to lack both empirical and theoretical support. They maintain that any attempt at the fetal life for any reason is but murderous, inhuman and out rightly unjust. According to Pope Francis; the world in the last century was scandalized about what the Nazis did to purify the race but today we do the same with white gloves in the bid to avoid birth defects.

Pope Pius XII’s statement during a 1951 papal encyclical sums up the whole argument of the pro-choice advocates

“Every human being, even the child in the womb has the right to life directly from God… Therefore, there is no man, no society, no human authority, no science…that may offer or give a valid judicial title for a direct deliberate disposal of an innocent human life…” 

THE PROVISIONS OF NIGERIAN ABORTION LAWS IN THE CONTEXT OF THE DEBATE

The 1999 Constitution of the Federal Republic of Nigeria is pro-life. This is because most of its provisions are life-sensitive; protection of this right is embedded in Section 33(1). It is built on the principle of natural law which respects the sanctity of the human life. Relevant statutes on abortion prescribe punishments for anyone, including the mother herself, involved in this menace to human life. The provision against abortion is generally found in the Criminal Code Act which applies to the whole of the Southern Nigeria (S.228-230, S.297) and in the Penal Code Act for the Northern Nigeria (S.233). The laws are relics of the country’s colonial past, dating back to the English Abortion Laws of 1861.

However, where a woman tries to induce her own miscarriage, whether she is pregnant or not by any administration of poison, force or means, she will be guilty of a felony punishable by seven-years imprisonment. This provision has been criticized for lumping two offences of different magnitudes together namely abortion and attempted abortion.

It is noteworthy that the provision of the Penal Code Act is in pari materia with that of the Criminal Code except for the fact that the former prescribes fourteen years imprisonment as punishment for procuring abortion. In AG Federation V Ogunro & Anor, (2001) 10 NWLR pt 720 it was held that to ground a conviction under S. 233 of the Penal Code, it is necessary for the prosecution to establish by credible evidence the cause of the death of the woman and that, it was the act of the accused, the respondent in this case done, with the intent to cause miscarriage, that resulted in the death of the deceased; else the effect of which is that the accused must be discharged.

However, it does not seem to have any provision for attempted abortion. Because it is stated explicitly that the punishment is for “whoever voluntarily causes a woman with child to miscarry…”.

Furthermore, the Penal Code Act allows therapeutic abortion if caused in good faith for the purpose of saving the life of a pregnant woman. This exception as explicitly provided in the Penal Code is latent in the Criminal Code Act. It is only implied therein by the use of the word “unlawfully”. Hence, “whoever commits an offence “unlawfully” is guilty of an offence.” Although it is not explicitly stated, the courts have used the precedent set in R V Bourne to answer this question. The case law has established that a lawful abortion is one procured for saving the life of the mother. This principle has been allowed in practice in the whole of Nigeria thence. Also, S. 297 of the Criminal Code Act appears to further strengthen the exception to the Nigerian laws on abortion, for the preservation of the mother’s life alone.

PROPOSED LEGISLATIVE REFORMS TO THE NIGERIAN ABORTION LAWS

There have been two distinct and significant attempts at reforming the laws on abortion in Nigeria. The two were unsuccessful because they failed to appeal to the volkgeist.

In 1982, Dr Obatayo Oguntayo sponsored a bill for the reform of abortion laws in Nigeria. The bill was titled “The Termination of Pregnancy Bill” It proposed that abortion should be lawful and legal if the pregnancy is terminated by a registered practitioner if two registered practitioners are of the opinion in good faith that: the continuance of the pregnancy would adversely affect maternal indications. Or that there is a substantial risk that if the child was born it would suffer such physical or mental abnormalities as to be seriously handicapped. The bill was strongly opposed by religious leaders and by the Nigerian National Council of Women’s Societies who feared that its passage would promote sexual promiscuity.

The second attempt at amendment of the Nigerian Abortion Law was in 1992 by Prof. Ransom Kuti then of the Ministry of Health. His ministry sponsored a draft decree which was of the same effect with Oguntayo’s titled “The Termination of Unsafe Pregnancy and other related matters”. This bill failed as its forebear did. The abortion law is believed unchanged to date.

CONCLUSION

It is pertinent to note that in 1998, having undergone two religious conversions, Noma McCorvey (Jane Roe of Roe V Wade) publicly declared her opposition to abortion. She became a Roman Catholic activist in the pro-life movement till her death. In 2005, she petitioned the Supreme Court to overturn the 1973 decision with McCorvey V Hill, 385 F.3d 846 (5th Cir. 2004), arguing that it should be reviewed in the light of the evidence that the procedure harmed women. Basically, the plaintiff has flawed the argument in the locus classicus case for abortion.

We should acknowledge the fact that Nigeria is one of the very few countries which have taken a stance against liberal abortion laws. This is very commendable because this conservative position negates the position of many world-powers and developed nations on this issue. However, it is pertinent to note that Nigeria’s legal defense of abortion on the grounds of protecting the mother’s life is abhorrent to rational jurisprudence. It also negates the principle enunciated by the Natural School of Thought, Historical School and Sociological School. The termination of a person’s life is only acceptable on the grounds of legalism. Anything contrary is against human ethics and unlawful. We must not forget that the fetus is also regarded as a person entitled to a right to life and the accruing benefits. Thus, termination of human life is merely an “economic” reason in a scale of preference, where the life of the child is an alternative forgone.

I believe that there is no differential value between the life of the fetus and that of the mother. Indeed, no one can decide for another in a matter as ultimate as having to die. This is the error of most legal systems. Arguments of lack of the wherewithal to take care of the child are flawed. And without prejudice to medical evidence and expertise, fetal abnormality does not reduce the value of life itself. Basically, it cannot be said that the life of a crippled man is of less value to that of a man who is not.  Any variant attitude would lead to a degenerate society where the lives of specially-abled persons are expendable. The protection of the child’s right to life is not legalism but the correct use of the law. Where a person’s privacy, dignity or honor is given preference over a person’s life, the whole sanctity of human life is disregarded and we are thrown into a throng of craze materialism. This is an assault to social conscience and reason. Nigeria needs to consider the legal provisions of countries like Korea for legislation. Korea does not support abortion for medical reasons.

To be certain, Nigeria is not the most prohibitive of African countries in this regard. In Angola, Congo-Brazaville, Congo-Kinshasa, Egypt, Gabon; abortion is not permitted under any circumstance. Hence, we would not be overshooting the mark if we decided to make legislations that completely respect the sanctity of fetal life.

Nigeria’s high population and high fertility rate, coupled with the very low contraceptive use by its people, fosters unwanted pregnancy as well as induced abortion. In Nigeria, only 11 percent of women in reproductive ages (15-49) are using any modern contraceptive method. The current unprecedented contribution of abortion to its maternal morbidity has to be addressed, this will require the invigoration of family planning services and its utilization, coupled with the pursuance of abortion law reforms- which protects and preserves the legitimate rights of the fetus as a person and allows abortion only as an indirect effect of a directly willed act to save the mother’s life in instances of illness. Instead of seeking pro-choice laws; we should advocate for sex education at all levels across the country.

Oludayo Olufowobi is a 200-level Law student at the Faculty of Law, University of Lagos; with a keen interest in Human Rights and Constitutional Law. He is deeply interested in world issues and is passionate about the realization of the SDGs. With a zest for self-development, he seeks to garner sufficient knowledge to enable him contribute his quota to demystifying seemingly grey areas of law. He is a also member of the Mooting Society, Unilag.