Abortion Law

Abortion may be described as the termination of a pregnancy by the willful act of any person. This activity impinges on many areas of Law. Abortion and Contraception have been widely available throughout the history of Western Civilization, despite ethical concerns on the part of some. Plato and Aristotle both argued in favour of compulsory abortion under certain circumstances though Hippocrates expressly disapproved of the practice. Under Roman Law, abortion sometimes occurred but family planning was conducted mainly through the exposure of healthy newborns – usually to protect the rights and interests of the biological father.

Religious authorities have taken various positions on abortion. As a matter of common law in England and the United States, abortion was illegal any time after quickening – when the movement of the foetus could first be felt by the woman. Many Western countries used statutes  to codify or further restrict abortion. However, by the 20^th century, many countries had begun to legalize abortions when performed to protect the life of the woman, and in some cases to protect the health of the woman.

Abortion under International Law

In addition to national and regional Laws, there are multinational and international treaties, conventions and laws that may actually be  enforced on or within signatory nations. However, there is an inherent difficulty in the enforcement of International Law due to the issue that state sovereignty poses. As such the effectiveness of even binding multi- national efforts to legislate the rights to life and liberty in general, or abortion in specific it difficult to measure. Examples of such efforts that have bearing for Abortion Law, nationally or internationally includes;

 The 1995 Beijing Platform for Action States in paragraph 96

“The human rights of women include their right to have control over and decide freely and responsibly on matters related to their sexuality, including sexual and reproductive health, free of  coercion, discrimination and violence”.

The non-binding document has been adopted by 189 countries at the United Nations fourth World Conference on Women held in Beijing, China.

Abortion Law in Nigeria

Abortion related offences under the Nigeria law are mainly:

           i.       Attempt to procure abortion, knowingly supplying things to procure abortion,

           ii.     Killing an unborn child,

          iii.   Child destruction and (in the case of the death of the victim) Murder or manslaughter as the peculiar facts of each case may determine.

Attempt to Procure Abortion

The Criminal Code Act (CC); Penal Code (P.C.); also codify this offence. This offence is committed when: “any person with intent to procure the miscarriage of a woman, whether or not she is 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 whatsoever.”

The offence of attempting to procure an abortion is a felony which attracts a punishment of 14 years imprisonment.

Knowing supplying things to procure Abortion

Any person who unlawfully supplies to or procures for any person anything whatsoever, knowing that it is intended to be unlawful used to procure a miscarriage, is guilty of a felony and is liable to imprisonment for 3 years. In RV Edgal (1938) 4 WACA 133. it was contended that the thing supplied by the appellant were mere “abaisoko leaves, blue  powder, “urine” seed and ‘kaun’ (potash) which the prosecution had not proved to be noxious, poisonous, by definition of S. 230 of the Criminal Code. Dismissing the contention, the court noted that section 230 spoke of “anything whatsoever” and therefore the prosecution was not required to prove that the substance were in fact noxious.

The English Law regarding abortion has been expanded beyond the scope of Nigeria law on the subject. In 1967, the Abortion Act was passed in England which introduced some notable changes to section 58 and 59 of the Offences against the Persons Act 1891. Importantly, it stipulated that a person is not liable for the offence of procuring an abortion where such a person is a registered medical practitioner, if two other registered medical practitioners are of the opinion formed in good faith that the abortion should be carried out for the purpose of:

i.                    Preventing risk to the life of the pregnant woman

ii.                  Preventing injury to the physical and mental health of the pregnant woman

iii.                Preventing injury to existing children of her family.

iv.                Preventing substantial risk of physical or mental abnormality in the unborn child.

The Act further provides that, in determining the necessity for an abortion, the medical practitioner responsible may take cognizance of the pregnant woman’s actual or foreseeable environment.

“Under Section 1 (3) of the 1967 Law, any treatment for the termination of a pregnancy must be carried out in a “hospital registered in the Minister of Health or the secretary of State under the National Health Services Acts. The 1967 Act is obviously a remarkable development in the Law.

Killing an Unborn Child

The offence of killing an unborn child in Nigeria is created  under  section 328 and 236 of the Criminal and Penal Codes Respectively. The Codes provide for the punishment of life imprisonment for any persons who by an act of omission or commission prevents a child from being born alive by a woman about to be delivered of a child. Allowance is made under section 297 and 235 of the Criminal and Penal Codes respectively for a situation where the unborn child may be killed for the preservation of the life of the mother. This is the only statutory expression of the preservation of the life of a mother as a lawful justification for “abortion” under Nigeria Criminal Law. When this provision is read in conjunction with section 228 and 229 of the criminal code, it reinforces the judicial position expressed in RV Edgal to the effect that an abortion performed to preserve the life of a pregnant woman is lawful.

Constitutional Aspect of Abortion

Constitutionally abortion touches on several fundamental rights guaranteed under the constitution of Nigeria namely, the rights to life, the Right to Privacy and family life; the Right to freedom of thought, conscience and religion. Whenever the individual asserts any of these rights; he invariably struggles for more leeway against state intervention.

In the area of Criminal Law, there is no doubt that the law relating to abortion needs to be reviewed, at least along the lines of the English Abortion act 1967 to allow for legally supervised abortions. The present law presents the prospects of serious physical danger to many pregnant women seeking abortion who are forced to patronize back street abortions and quack chemist peddling dangerous drugs.

The present Law stifles progressive development of Medical expertise in this area because Medical practitioners are understandably afraid to engage their skills for fear of Criminal sanctions. Despite the Criminalization of abortion, a number of women still go ahead and fund their own means of getting it. The need for legal but regulated abortion procedures definitely outweighs any social harm implicit in retaining laws against the practice.

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