Prohibition Of Abortion In Nigeria, A Reflection Of The Repression Of Women’s Rights - Lessons From South Africa
Author: LawSphereX
Category: General Law
Published:
Updated:
PROHIBITION OF ABORTION IN NIGERIA, A
REFLECTION OF THE REPRESSION OF WOMEN’S RIGHTS: LESSONS FROM SOUTH AFRICA Lilian O. Akhirome - Omonfuegbe, Ph.D, Public Law Department, Benson Idahosa University, Benin- City, Edo State, Nigeria Esohe U. Oyemwense, Ph.D, Public Law Department, Benson Idahosa University, Benin- City, Edo State, Nigeria
ABSTRACT
The concept of Reproductive health and rights has been a global discourse for decades, albeit the arising controversies surrounding the subject, it managed to break through the status quo and gain universal recognition as far back as 1994 specifically at the International Conference on Population and Development in Cairo Egypt. This platform gave reproductive rights universal status. One of the core arguments of Reproductive Rights is the right of a woman to body autonomy which invariably translate to her ability to make safe decisions on timing of childbearing and the spacing of children as well as the right to safely decide whether or not to have children. This right is borne from the obvious fact that the woman bears the brunt of childbearing and raising the child.
The implicit complications arising from juggling family life, career and or education can be tasking and often overbearing and, in many cases, deter the woman from realizing her full potential- which is paramount for the overall enjoyment of Reproductive Rights. This paper adopts the doctrinal methodology and criticizes Nigeria’s legal prohibition of abortion as well as highlighting the provisions of South Africa’s Choice on Termination of Pregnancy Act, 1996 (CTOPA) which provides legal guidelines regulating the practice of safe abortion.
This paper finds that the outright prohibition of Abortion in Nigeria is responsible for the upsurge of illegal and unsafe abortions thus exacerbating maternal mortality and concludes that laws are required to safe guard and permit safe abortions where necessary while seeking to promote and enforce women’s reproductive rights through intense education and enlightenment especially at grass root level.
I. Introduction
The concept of Reproductive health and rights has been a global discourse for decades, albeit the arising controversies surrounding the subject, it managed to break through the status quo and gain universal recognition as far back as 1994 specifically at the International Conference on Population and Development 1 in Cairo Egypt. This platform gave reproductive rights universal status. Reproductive Rights and Reproductive Health was extensively addressed in Chapter VII of the ICPD’S program of Action. This formed the crux of the discussions throughout the Cairo conference. This landmark event eventually led to, the Fourth World Conference on Women which adopted the Program of Action (PoA) in Beijing, China in 1995. This program reminded the participants about the decisions agreed on at Cairo regarding reproductive health and reproductive rights.
It is important to note that Reproductive rights are not restricted to information about the reproductive organs or reproductive health only. Rather, Reproductive rights are a reflection of already existent and established rights, for example- the rights to dignity, privacy, health and freedom from discrimination. These rights address all matters concerning both men and women as it affects them physically, mentally as well as psychologically.
This paper will embark on this discourse in four Parts- Part I is the introductory paragraph, Part II will discuss the relationship between Reproductive Health and Rights and Abortion, Part III will discuss the legal framework of Abortion in South Africa, Part IV will discuss the right to abortion in Nigeria side by side the legal prohibition, Part V will make recommendations to address the problems arising from enforcement of abortion rights and the Conclusion of the work. II. The Nexus between Reproductive Health and Rights and Abortion The ICPD program of Action, defines Reproductive Health as: “A state of complete physical, mental and social wellbeing and not merely the absence of disease or infirmity, in all matters relating to the reproductive system and it’s functioning and processes.
Reproductive health therefore implies that people are able to have a satisfying and safe sex life and that they have the capability to reproduce and the freedom to decide if, when and how often to do 1 The ICPD was endorsed by the UN General Assembly in its Resolution 49/28, also known as the Cairo program, held from 5-13 September. 1994. so, implicit in this last condition are the right of men and women to be informed [about] and to have access to safe, effective affordable and acceptable methods of family planning of their choice as well as other methods of appropriate health — care services that will enable women to go safely through pregnancy and childbirth services and provide couples with the best chance of hearing a healthy infant.
”2 Therefore, the Human rights of women encompasses their right to exercise control over and decide freely and responsibly on matters related to their sexuality, including sexual and reproductive health, free of coercion, discrimination and violence. Equal relationships between men and women in matters of sexual relations and reproduction, including full respect for the bodily integrity of the person, require mutual respect, consent and shared responsibility for sexual behaviour and its consequences. 3 Apart from The Additional Protocol on Women’s Right to The African Charter 2003 also known as Maputo Protocol, the core international and regional human rights treaties do not explicitly address the issue of abortion. 4 The Maputo Protocol requires State parties to: “...
protect the reproductive rights of women by authorising medical abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the fetus. ”5Governments are expected to comply with the duties that their countries have undertaken to protect reproductive and sexual health and rights. Thus, in order for a country to conform to human rights standards, it may need to amend existing national laws. States are therefore expected to ensure that its health care providers and medical facilities are properly positioned as well as guarantee women’s reasonable access to safe abortion and related health services, in accordance with the provisions of international human rights law.
Therefore, where a restrictive national law on abortion is clearly leading to multiple cases of maternal mortalities, the State is obligated to consider legal reform to ensure that its laws are in compliance with
2 Ibid.
3Beijing Declaration and Platform for Action (5) 1995. 4International Justice Resource Center https://ijrcenter. org/thematic-research-guides/womens-human-rights/ Accessed 11 April 2024. 5Ibid. human rights standards for women’s health and dignity. 6 National policies can therefore be expressed in laws that adequately balance limitations on abortion with women’s rights to safe abortion and access to health services necessary to protect their lives and dignity, and to be free from inhuman and degrading treatment. 7 Over the years, some international courts, have suggested that women’s rights are more protected when the laws are more liberal.
It goes without saying that the presence of restriction and the dread of punishment for violating such restrictive laws will inevitably prevent women from seeking safe abortions in approved health facilities in the hands of qualified medical practitioners. 8 Abortion laws are seen to be liberal and permitted in some African countries. In South Africa for instance, and Zambia, women have unrestricted access to legal abortions as long as the requirements prescribed by law are observed. In 1996, South Africa enacted the Choice on Termination of Pregnancy Act, which is regarded as one of the most liberal abortion laws in the world. The Act provides that abortion can be carried out during the first 12 weeks of pregnancy, if it is within 20 weeks, it is permitted under certain conditions such as where there is risk to the women’s life or of severe fetal impairment.
The Act repealed a 1975 law that had prohibited abortion unless the pregnancy was a result of rape or incest, the mother’s life was in danger, or there was a fetal impairment. 9 Another example is Zambia, where the law permits abortions on ‘social and economic grounds’. However, the definition of social and economic justification has been subject to varying interpretations. Notwithstanding, medical personnel will generally take into consideration, the economic strength, age, marital status and the number of children of a woman, seeking abortion services. In other countries like Nigeria, abortion is strictly prohibited or permitted only to save the woman’s life’. In Senegal, the criminal law prohibits abortions and makes no explicit exception to protect life, even though it has been interpreted to permit abortion on the ground of necessity’. 10 6Nkolika Ijeoma Aniekwu.
Reproductive Health Law; A Jurisprudential Analysis of Gender Specific Human Rights for the African Region1st ed. (Nigeria: Ambik Press 2011) 101. 7Ibidp. 101. 8Centre for Reproductive Rights: The World’s Abortions Laws https://reproductiverights. org/maps/worldsabortion-laws/ Accessed 11 April 2024. 9Centre for Reproductive Rights: The World’s Abortions Laws https://reproductiverights. org/maps/worldsabortion-laws/ Accessed 11 April 2024. 10Ibid.
Significantly, abortion is still criminalized in Nigeria except where to do so, will endanger the life of the woman. In several northern states of Nigeria, where the practice of sharia law is significantly more, abortion services are completely inaccessible. Administrative barriers, coupled with widespread patriarchal beliefs and practices, make it impossible for these women to have access to safe abortion services. It is even more prohibited for young girls. In order to procure a legal abortion, a woman must obtain permission from a physician and a gynaecologist, and on several occasions, these practitioners demand consent from her husband too. Thus, unmarried women or those who fail to gain their husband’s consent are often without any hope of having a safe abortion. Not surprising, Nigeria has one of the highest maternal mortality rates in the world, due largely to unsafe abortion.
11 It is important to note that the general function of the law is to provide legality in the context of reproductive health and to offer remedies for violations of reproductive rights, in order to advance reproductive health goals. 12 Unsafe abortion is the leading cause of maternal mortality in many developing countries, including Nigeria. 13 In these countries, applying the right to 1iberty and security requires governments to improve services for treatment of unsafe abortion, to change restrictive laws regarding access to abortion and to ensure the provision of contraceptives and family services. 14 The right to health, security and liberty have been applied by some national courts, especially in the west, to protect women’s freedom to decide if, when and how often to bear children.
From the foregoing, it is imperative that our laws align with this growing concept of reproductive health. A case in point is Ireland, where the prohibition of abortion eventually led to an amendment of the national constitution. The resultant effect of this amendment was to curtail the incessant travelling of women outside Ireland to procure abortions. 15 As noted in this paper, the struggle for women’s body autonomy has been a long and painful 11International Women’s Health Coalition “Expanding Access to Safe Abortion in Nigeria, One Woman at a Time” Accessed 23rd June 2021. 12George Izevbuwa, Rita Ngwoke et al “The Role of Law In Advancing the Reproductive Health and Rights of Women in Nigeria.
” International Journal of Law, Justice and Jurisprudence 2021; 1(2): 116 13‘Reproductive Rights Moving Forward’: Report of the center for Reproductive Law and Policy 2002 [Accessed July 12 2023].
14 Ibid.
15Ibid. journey. Beginning from the ICPD where reproductive rights were elevated to a global pedestal and recognized as rights worthy of protection, state parties have demonstrated their commitments to the protection of these rights in varying degrees. Some countries proceeded to enact laws reflecting the change in ideology, while others have amended existing laws to reflect the willingness to protect reproductive rights. Consequently, the courts in many of such countries have made pronouncements in line with the legislative reforms granting women power to enforce their reproductive rights. The landmark case of Roe v Wade16 was a major influence in the fight for recognition and protection of women’s reproductive rights, specifically on abortion.
This case dates back to 1970, when “Jane Roe” (a fictional name used to protect the identity (due to the sensitivity of abortion issues at that time) of the plaintiff. 17 Jane filed a federal action against one Henry Wade, who was the district attorney of Dallas County, Texas, where she lived at that time. The Supreme Court disagreed that Roe’s had an incontestable right to terminate pregnancy in any way and at any time. The court argued that states must create a balance between a woman’s rights of privacy with a state’s interest in regulating abortion. The court further argued that only “compelling state interest” can vindicate regulations limiting “fundamental rights” such as privacy. Furthermore, the court held that legislators must therefore produce statutes carefully in order to properly reflect the intention of the legislators in protecting valid state interests.
18 The Court then attempted to balance the state’s distinct compelling interests in the health of pregnant women and in the potential life of fetuses. It placed the point after which a state’s compelling interest in the pregnant woman’s health would allow it to regulate abortion “at approximately the end of the first trimester” of pregnancy. 19 On January 22, 1973, the Supreme Court ruled that excessive limitation of abortion by state laws is unconstitutional. In a majority opinion led by Justice H. Blackmun, the Court held that the laws of Texas criminalizing abortion20was a direct infringement on a woman’s constitutional right of privacy. This right to privacy was held to be guaranteed in the Fourteenth Amendment which provides thus; (“... nor shall any state deprive any person of life, liberty, or property, without due process of law. 21 16SC 410 U. S. 113 93 S. Ct. 705 35 L. Ed.
2d 147 (Jane Roe, et al. , Appellants, v. Henry Wade). 17Her real name is Norma McCorvey. 18https://www. law. cornell. edu/supremecourt/text/410/113 [Accessed 19th September 2022]. 19Ibid. 20Texas first criminal abortion statute SB8 was enacted in 1854. 21Ibid.
Based on this right of privacy, the U. S. Supreme Court in Roe v. Wade declared that women, having sought advice from their qualified physicians, are eligible by law to elect abortion for any reason in the first trimester. From the second trimester onwards, the state’s Abortion Law in is authorized to regulate abortion to protect maternal health, as well as to protect potential life in the third trimester. 22 This implication of this decision is that the court in this case created a framework based on what trimester the woman’s pregnancy was in, which became the standard for determining when a woman could access abortion. Meaning that in the first trimester she had unrestricted access to elect an abortion. However by the second trimester, the state restrictions would now be applicable, without obstructing her right to abortion as long as it was in the interest of her health.
Then by the third trimester, the fetus is held to be viable and thus the state laws can prohibit abortion at this stage as it constitutes the best interest of the fetus, except the abortion at this stage is necessary for preservation of the health or life of the mother. 23 It is therefore no surprise that the Roe case became a sign post for advocates of abortion rights which gave rise to legislative reforms around the world. Pursuant to the judgment in Roe global movements sprang up advocating for recognition of reproductive health and self-determination as fundamental factors necessary for realization of women’s equality. Thus some scholars have noted that the case of Roe established the right to abortion.
The court ruled that as far as the restrictions did not constitute an undue burden to the person seeking an abortion, the restrictions are applicable on the condition that that at the time of seeking such abortion, the fetus is not viable. This ambiguity as to what constitutes “undue burden” provided an opening for many states to enact laws with varying conditions such as the requirement of counselling, waiting periods, parental consent where the abortion is sought by a minor, in addition to other requirements such as number and qualifications of physicians to carry out the procedure and other hospital restrictions. 24 The burden was now on the courts to determine which of these restrictions will be considered as burdensome. Significantly, the Roe case was a landmark cases reinforcing the argument on abortion rights.
This further gave rise to 22Rachel Rebouché “A Functionalist Approach to Comparative Abortion Law” https://scholarshare. temple. edu/bitstream/handle/20. 500. 12613/6216/Rebouche-BookChapter- 2014. pdf? sequence=1 [Àccessed 2nd September 2022]. 23Deepa Shivaram “’Roe Established Abortion Rights” www. npr. org [accessed 19th September 2023]. 24Supranote 528. legislative reforms and judicial activism in many countries reiterating the global support for a woman’s right to privacy and family life. It was therefore a huge shock when the Supreme Court of the United States reversed the decision in the case of Roe v Wade. This recent action, has sparked a global controversy. The US Supreme Court recently voted to strike down the decision that ruled that the US Constitution protects a pregnant woman's choice to have an abortion.
The case protected the right to abortion in many US states; consequently the overruling will now allow the prohibition of abortion in over 26 states. 25 On the 24th of June 2022 the U. S Supreme Court in the case of Dobbs v Jackson Women’s Health Organization, which came before it seeking to declare a Michigan state law on abortion as illegal. The Supreme Court proceeded to overrule the decision of Roe v wade which had been in existence for over five decades. This decision implies that women in America have lost their right to abortion. This leaves the American women are at the mercy of state laws. These state laws vary in their provisions, while some have total prohibitions on abortion accompanied by penalties for breach of the laws, others have additional conditions as pre requisite to access abortion, such as, funding for clinics, legal protection for the clinic practitioners et al.
26 However in states like Washington DC, abortion remains legal because they have been legal way before the decision in the Roe case. While states like Kansas has a constitutional amendment in the works to amend the constitution to expressly provide that the state does not grant a right to abortion, neither does it provide funding for abortions. 27 Activists have submitted that this decision has taken America’s reproductive laws back in terms of development. Consequently, abortion will no longer be accessible in many parts of the United States. Medical and mental health experts have submitted that the court ruling has no scientific basis and believe it could trigger potentially devastating health consequences which would invariably result in increased maternal mortality rates.
28 Further consequences of the overruling of the decision in Roe case include that an estimated 36 million women will lose 25Artiga Samantha, Hill Latoya et al “What are the implications of the overturning of Roe v Wade for racial Disparities? http:www. kff. org [Accessed 19th September 2023].
26 Ibid.
27Ibid. 28Andrea Rice “Roe v. Wade: The Mental and Physical Health Effects of Anti-Abortion Laws” https://www. healthline. com/health-news/roe-v-wade-the-mental-and-physical-health-effects-of-anti-abortionlaws [Accessed 20th September 2022]. access to safe abortion services, which will consequently lead to increased search for abortion in the hands of unqualified personnel. It is argued that Anti-abortion laws are not supported by the medical community because they are not based on scientific evidence. 29 The limitation of reproductive rights could result in millions of American women having no choice but to carry a pregnancy to term, irrespective of whether or not it jeopardizes their health. Some other women may as a last resort, seek unsafe measures to terminate a pregnancy on their own.
This could also mean that survivors of sexual violence will be forced to give birth to the children of their abuser- which no doubt leaves them with devastating mental and emotional trauma. 30 Worthy of note is the fact that the decision in Roe extends beyond just abortion rights. The court significantly recognized the right to privacy which invariably includes the right to make personal decisions about one’s family or one’s body. This by implication includes decisions concerning child bearing and rearing, marriage, right to decide whether or not to have children as well as timing and spacing which invariably includes matters of contraception use- these are all rights as recognized by International instruments. Respect and recognition of a woman’s right to make decisions about her body is key in the promotion of gender equality in educational, economic and political areas.
Suffice it to say that an unplanned pregnancy can severely impede a woman’s progress in life. This is very much unlike her male counterparts who will not have to be saddled with the discomfort and complications of pregnancy and consequent tasks of raising the child while also trying to advance a career or education. It is therefore imperative that advocates of international aid endeavor to keep at the efforts to increase the standard and accessibility of all-inclusive sexual health and education programs, which is inclusive of safe abortion in developing nations. 31 One of the key components of reproductive rights is the right to safe motherhood. This includes a plethora of rights enjoyable by a woman, such as, the decision on whether to marry or not, whom to marry, at what point in her life to get married, the right to autonomy over her body, 29Ibid. 30Andrea Rice “Roe v.
Wade: The Mental and Physical Health Effects of Anti-Abortion Laws” https://www. healthline. com/health-news/roe-v-wade-the-mental-and-physical-health-effects-of-anti-abortionlaws [Accessed 20th September 2022]. 31Ibid. decisions involving when to have sexual intercourse, whether or not to get pregnant, when to be pregnant, whether to have the bay or not, care during and throughout the pregnancy et al. Finally, in spite of existing laws and restrictions, there will always be women who will require abortion services. It is unarguably true that women’s rights especially on the right to safe abortion will be better protected when the laws are more liberal, providing safe standards and procedural framework.
Thus, addition of sanctions or restrictions will inevitably create an enabling environment for quacks and illegal persons to thrive in the provision of unsafe and illegal abortion services. It is therefore imperative that governments should actively pursue and initiate reforms in legislations and implement anti-discrimination laws and policies to enable women have unfettered access to services that promote and protect their reproductive health and rights. III. Lessons from South Africa South Africa in the past recorded one of the highest rates of maternal mortality- this in fact is true of most African countries, for obvious reasons. Unsafe and illegal abortions were a major contributory factor to this statistics of maternal mortality.
32 subsequently, due to the continued morbidity and mortality among women of all races, the National Party government of South Africa introduced a law in the 1970s, the Abortion and Sterilization Act, 1975 (Act No. 2 of 1975). 33 That Act made abortion accessible under specified circumstances. The required criteria were however too rigid and made accessible to only a few women who were based in urban and well-resourced areas. 34Incidentally, the women who genuinely needed these services were based in the rural areas which were not easily accessible and who did not have information about the provisions of the Act. It can thus be deduced that The Act was more inclined to cater to the privileged (mostly white) population, with a disregard for the welfare of the rural women with little or no details about the available facilities and legal protection now obtainable.
However, the merely having the information about abortion still would not suffice, as provincial hospitals were governed by the apartheid laws which prohibited Blacks from making use of White hospitals. This led to 32 RE Mhlanga Abortion: “Developments and impact in South Africa” British Medical Bulletin, volume 67, Issue 1, December 2003, Pages 115–126. 33 RE Mhlanga Abortion: “Developments and impact in South Africa” British Medical Bulletin, volume 67, Issue 1, December 2003, Pages 115–126. 34Ibid. women seeking help in the unhealthy environments of backstreet rooms. This inevitably led to an upsurge in mortality and morbidity. 35 Political liberation around 1994, led to major legislative reforms. The protection of women reproductive rights was at the forefront of some of these reforms.
As part of its significant healthcare reforms, South Africa reviewed the stance on abortion and the existing law in a bid to promote the health of women (irrespective of colour or status) and constrain the surge in maternal deaths. 36 This is no doubt one of the most laudable efforts made by the South African Government, in the aspect of reproductive health and rights. The relevant law in this regard is the Choice on Termination of Pregnancy Act, 1996. 37 This Act is a radical deviation from the erstwhile stance that viewed women as minorities irrespective of age or marital status. 38 The Act is also at variance with the ideology that ‘the doctor always knows best’ and thus makes decisions based on his or her judgment. 39 South Africa also responded to some of the recommendations of CEDAW and ICPD which put women’s reproductive rights on a global pedestal.
Other benefits of this Act, are that it enables and eases access to safe abortions which in turn has significantly reduced the incidents of deaths from unsafe and illegal abortions. One year after the enactment of the Act, the South African Ministry of Health established the National Committee for the Confidential Enquiry into Maternal Deaths (NCCEMD )40, and made notification of maternal deaths mandatory. 41 The NCCEMD investigates all maternal deaths notified, and makes recommendations to the Minister of health every 3 years. 42 The committee also makes special recommendations with regard to abortion procedures in the country. This consequently accentuates the Choice on Termination of Pregnancy Act, 1996 as a relevant tool for the cutback on maternal mortality and morbidity. 43 The Act expanded the criteria for eligibility for termination of pregnancy.
It divides the gestational period into three parts for the sake of termination of pregnancy, thus- Up to and 35Ibid 36Ibid. 37Hereinafter referred to as [CTOPA]. 38Ibid. 39Ibid. 40Hereinafter referred to as [NCCEMD]. 41Ibid. 42RE Mhlanga Abortion: “Developments and impact in South Africa” British Medical Bulletin, volume 67, Issue 1, December 2003, Pages 115–126. 43Ibid. including 12 weeks gestation by dates, Above 12 weeks up to and including 20 weeks gestation by dates, Above 20 weeks gestation by dates. The Act provides that termination must be carried out by skilled and professional doctors and midwives for pregnancies up to and including 12 weeks gestation. 44 However, where the pregnancy is above 12 weeks, only a qualified doctor can carry out the procedure and it must be under strict conditions.
The Act has thus reduced the upper limit from the 28 weeks that is traditionally accepted as the limit for viability. The Act also governs the termination of pregnancy up to and including viability, thus including induction of labour and caesarean section. 45 The Act now makes termination on request available to women of any age and she need not proffer reasons, as long as the pregnancy is not beyond 12 weeks gestation. Termination of pregnancies above 12 weeks gestation can only be done under certain conditions. 46The requisite conditions are: (a) Pregnancy resulting from rape. (b) Severe fetal abnormality. (c) Severe maternal physical or mental disease,, (d) Or where continuation of the pregnancy would result in severe social or economic hardship.
According to the Act, a pregnancy exceeding 12 weeks but not more than 20 weeks can only be terminated upon the recommendation of a midwife or a medical practitioner, and must be with the consent of the woman concerned- spousal or guardian consent is not a requirement. 47 However for pregnancies beyond 20 weeks, two practitioners may carry out the procedure where they determine it poses a serious danger to the woman’s health or life, or if the fetus will be severely malformed. 48 One of the major outstanding features of the Act is the respect for 44Ibid. 45Ibid. 46Ibid. 47https://journals. sagepub. com/doi/pdf/10. 1177/002581727003800103 [Accessed 15th June 2022]. 48Mary Favier, MS Jamie, Greenberg et al,“Safe abortion in South Africa: We have wonderful laws but we don’t have people to implement those laws” International journal of Obstetrics and Gynecology vol.
143 issue S4 women’s right to choose, irrespective of the age of the woman who is pregnant. By 2008, due to sketchy and problematic implementation, the statute was reviewed to enlarge the types of facilities capable of providing safe abortion services, as well as to permit registered nurses (RNs) provide the service after training and certification (there are three categories of nurses in South Africa; only registered or professional nurses, who have obtained 4 years of training, can carry out abortions). 49 Physicians do not require accreditation, whereas mid-wives and RNs must undergo a training to be qualified to provide abortion services. 50 South Africa has no national abortion guidelines covering standards of care or methods of abortion procedure, although some aspects of procedure services are covered by standard clinical guidelines.
The public health sector is saddled with the responsibility of providing abortion services in facilities assigned and accredited by the National Department of Health. Private health facilities are permitted to offer abortion services provided they are accredited centers. 51 The CTOPA is not applicable in cases where the doctor objects to abortion on conscientious basis. It is generally believed that Doctors are guided by a personal conviction to carry out their duties fairly and efficiently, and as such if he makes an objection because of a strong conviction that the rejection is the fair and just thing to do, and then the CTOPA will not apply. 52 The Act however, sets out guidelines for providers of the services. These rules specify the following; (a) Only a direct service provider can invoke conscientious objection.
(b) A service provider cannot deny a woman medical care unrelated to abortion services. (c) All clinical staff are required to treat patients with abortion complications and to perform abortion services in an emergency. (d) The Service provider’s objections must be stated in writing for their employer. 53 49Ibid. 50Ibid. 51Ibid. 52Harries J, Cooper D, Strebel A, Colvin CJ ,“Conscientious objection and its impact on abortion service provision in South Africa: A qualitative study”. Reproductive Health. 2014;11:16. 53Ibid.
As noted earlier, South Africa has one of the most advanced and progressive reproductive laws in the world. However, like most African countries besotted with bad leadership negatively impacting all sectors; the health sector not being left out, South Africa has equally suffered her share of setbacks in the implementation of its reproductive laws however laudable they may be. Though the CTOPA guidelines for conscientious objection restrict it to clinical providers, and to the actual abortion procedure, there are reports that both clinical and administrative staff invoke conscientious objection broadly to avoid and to obstruct all stages of abortion services. 54 In rural and conservative areas, it is reported that entire facilities in practice, raise conscientious objections where an ample number of practitioners or administrators decline to provide the service.
55 This in many ways constitute an impediment to the enforcement of women’s reproductive right, in terms of determining how and when and whether or not to have children- which is obviously a constitutionally protected right. 56 The prevalent number of conscientious objectors in South Africa has continuously contributed to a high number of illegal abortions, as these women will continually fall prey to uncertified and illegal abortion practitioners in a bid to avoid being victims of conscientious objections in accredited clinics.
57 Some of the other factors suggested that invariably contribute to why women continually seek abortions in illegal facilities, is the need for privacy which they are unable to get in some of these accredited facilities, largely due to the fact that stigma (which is also another dominant factor) very often they know someone who works there and are afraid of being judged. Finally, it was reported that women who have passed their first trimester (above 12 weeks), usually face more restrictions due to the abortion provision, and are thus driven to seek illegal services. 58 However, the Courts in South Africa have consistently passed judgments which are reflective of the growing consensus on liberalization and non- criminalization of abortion in the country. This can be seen in the attitude of the South African Supreme Court of Appeal which cited the landmark American case of Roe v.
Wade,59 in a bid to reject a constitutional challenge to the CTOPA. The act which substantially liberalized South Africa’s abortion law, allowing abortion 54Mary Favier, Jamie M. S. Greenberg et al, “Safe abortion in South Africa: We have wonderful laws but we don’t have people to implement those laws” International journal of obstetrics and gynecology vol. 143 issue S4. 55Ibid. 56See sections 12 and 27 The Constitution of South Africa. 57Harries J, Cooper D, Strebel A, Colvin CJ, “Conscientious objection and its impact on abortion service provision in South Africa: A qualitative study”. Reproductive Health. 2014;11:16. 58https://www. healthn-i. gov. uk/articles/congenital-disabilities-civil-liability-act-1976 [Accessed 6th July 2022]. 59SC 410 U. S. 113 93 S. Ct. 705 35 L. Ed. 2d 147 (Jane Roe, et al. , Appellants, v. Henry Wade).
on request within the first twelve weeks of pregnancy, as noted earlier in this paper: However the CTOPA came under fire. In defense of the act, the Court quoted from the Roe Case at length, pointing to it as a symbol of progressive reform inspired by women’s autonomy and equality: “the same considerations as applied in the [United States] would compel one to conclude that our Constitution protects a woman’s right to choose. ”60 The South African Supreme Court of Appeal similarly quoted from the subsequent case of Planned Parenthood of Southeastern Pennsylvania v. Casey61 to support a holding that minors can seek abortion without parental permission. Yet in the Casey Case, the U. S. Supreme Court upheld a Pennsylvania law that required parental permission. 62 Courts’ willingness to oversimplify the authorities they cite may be an effort to fix the law to the facts.
In other words, courts confer legal authority to new legislative or constitutional interpretations in order to open access to abortion, and citation to foreign comparators is one means to justify that exercise of power. 63 This paper submits that continuous nationwide education on the scope of CTOPA as well as training and educating of service providers will facilitate smooth implementation of the CTOPA in South Africa. IV. The Illegality of Abortion in Nigeria 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.
Equal relationships between men and women in matters of sexual relations and reproduction, including full respect for the bodily integrity of the person, require mutual respect, consent and shared responsibility for sexual behaviour and its consequences. 64 With the exception of the Maputo Protocol, the core international and regional human rights treaties do not explicitly address the issue of abortion. 65 The Maputo Protocol requires State parties to: “... protect the reproductive rights of women by authorizing
60 Quoted in Rachel Rebouché “A Functionalist Approach to Comparative Abortion Law”
https://scholarshare. temple. edu/bitstream/handle/20. 500. 12613/6216/Rebouche-BookChapter- 2014. pdf? sequence=1 [Àccessed 2nd September 2022]. 61U. S 833 112 S. Ct. 2791 (1992). 62Ibid. 63Ibid. 64Beijing Declaration and Platform for Action (5) 1995. 65International Justice Resource Center https://ijrcenter. org/thematic-research-guides/womens-human-rights/ [Accessed 11 April 2022]. medical abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the fetus. ”66 Unsafe abortion is a large cause of maternal mortality in many developing countries, including Nigeria.
In these countries, applying the right to 1iberty and security requires governments to improve services for treatment of unsafe abortion, to change restrictive laws regarding access to abortion and to ensure the provision of contraceptives and family services. The right to health, security and liberty have been applied by some national courts, especially in the west, to protect women’s freedom to decide if, when and how often to bear children. It is now widespread belief that restrictive abortion provisions are a violation of a woman’s right to security of her person. 67 The Convention on the Elimination of all Forms of Discrimination against Women (CEDAW)68 provides thus: State parties to refrain from obstructing action by women in pursuit of their health goals......
Barriers to women’s access to appropriate health care include laws that criminalize procedures only needed by women and that punish women who undergo those procedures. 69 A good example of one of such procedures referred to in the provision above is abortion. The World Health Organisation defines abortion as the ‘discontinuance of a pregnancy before attaining viability. ’70Abortion can be either spontaneous, where it occurs naturally without any external inducement (usually referred to as a miscarriage) or it can be induced by terminating the pregnancy. 71 Sadly, key international instruments like CEDAW have not been domesticated as required by the Constitution. Feminist legal theory and discussions surrounding reproductive health is rooted in the belief that a woman should have the right to choose whether to bear a child or not. 72 This derives 66Ibid. 67Ibid. 68Para 93. 69Ibid.
70Information from World Health Organisation website May https://www. who. int/whr/1997/en/whr97_en. pdf [Accessed 23rd June 2021]. 71Ibid. 72Nkolika Ijeoma Aniekwu, Reproductive Health Law; A Jurisprudential Analysis of Gender Specific Human Rights for the African Region1st ed. (Nigeria:Ambik Press 2011) p101. from the right to privacy and family life. 73 International instruments require governments to respect and protect these fundamental rights by ensuring that women have access to reproductive care – which includes safe abortion. In Nigeria, induced abortions are criminalized as provided in the Penal and Criminal code. This is regardless of the duration of the pregnancy the only exception being if it is for “the purpose of saving the life of the woman”.
74 The result of these restrictions is that women subject themselves to unsafe abortions by untrained personnel in quack facilities at the hands of quacks leading to the untimely death of many women and young girls as well as severe damage to the reproductive organs of those who survived the procedures. About 600,000 illegal abortions are believed to be carried out in Nigeria yearly. 75 The legality of abortion has been subject to diverse arguments globally, with some countries having stricter restrictions than others. 76 Countries like Canada and the United Kingdom77 allow women to elect to have an abortion. The key argument is whether the fetus is a living being? Several activists argue that the fetus or embryo is a living thing and terminating it is murder. Other arguments arise out of religious perspective and yet others solely on moral and public policy grounds.
Whatever point of view holds sway, the reality is that women are constantly terminating unwanted pregnancies and some of these women patronize quacks in trying to ‘shy away’ from societal condemnation and judgment. Countries are required to enact laws which conform to human rights standards, where necessary, amendments should be made to national laws, demonstrating the government’s willingness to comply with their countries obligation to protect rights relating to reproductive and sexual health. 78 A State is therefore responsible to require its health care providers and facilities to ensure women’s reasonable access to safe abortion and related health services, in accordance to international human rights law. If the prohibition in a national law exacerbates maternal mortalities, the States are obligated to consider legal reform so that its law complies 73Sec 37 CFRN.
74Criminal Code Laws of the Federation Cap C 38 2004 sec 227- 230. 75‘Reproductive Rights Moving Forward’: Report of the center for Reproductive Law and Policy 2002 [Accessed July 12 2023]. 76El Salvador, Nicaragua do not allow abortion even if to save the life of the woman. Vatican City and Malta have a total ban on abortion. 77Except Northern Ireland. 78Nkolika Ijeoma Aniekwu, Reproductive Health Law; A Jurisprudential Analysis of Gender Specific Human Rights for the African Region1st ed. (Nigeria: Ambik Press 2011) p101. with human rights standards for women’s health and dignity. 79 Thus the laws should be reflective of National policies which balance limitations on abortion with women’s rights to safe abortion side by side the access to health services necessary to protect their lives and dignity, and to be free from inhuman and degrading treatment.
80 In recent times, abortion is now permitted in some African countries without strict legal restrictions. In South Africa as discussed in this paper, women now have unfettered access to legal abortions as long as procedural requirements prescribed by law are observed. In 1996, South Africa enacted the Choice on Termination of Pregnancy Act, making its abortion law one of the most liberal in the world. The Act permits abortion without limitations during the first
12 weeks of pregnancy, within 20 weeks on numerous grounds and at any time if there is risk
to the women’s life or of severe fetal impairment. The Act repealed a 1975 law that had prohibited abortion unless the pregnancy was a result of rape or incest, the mother’s life was in danger, or there was a fetal impairment. 81 While some other African countries (like Zambia) now permit abortion in cases where the health of the woman is jeopardized by the pregnancy or where she is not economically capable to birth and raise a child82, abortion is still criminalized in Nigeria except when the life of a woman is at risk. In some northern regions of the country, where sharia law is widespread and Boko Haram is active, abortion services are not accessible at all. Administrative barriers, coupled with widespread patriarchal beliefs and practices, make access to abortion extremely limited for women, and even more out of reach for girls.
To procure a legal abortion, a woman must obtain permission from a physician and a gynecologist, and many times providers demand consent from her husband too. Unmarried women or those who fail to gain their husband’s consent are often left with no safe options. Nigeria has one of the highest maternal mortality rates in the world, due in large part to unsafe abortion. 83 This paper advocates for the right of every woman to enjoy autonomy over her body, void of political or other external influences. This paper however recognizes that the right to safe abortion, just like every other human right should be enforced within legal limits – to prevent 79Ibid. 80Ibid p. 101. 81Ibid. 82Ibid. 83International Women’s Health Coalition “Expanding Access to Safe Abortion in Nigeria, One Woman at a Time” [Accessed 23rd June 2021]. abuse.
The argument is that making abortion services accessible on demand can lead to abuse. However, total prohibition of abortion is not the solution, as women and girls will always find ways to get these services outside legal ambits. A better approach would be the enactment of laws to safe guard the process as well as structured institutions which inter alia will exercise supervisory roles over abortion procedures, in addition to monitoring and authenticating practitioners who carry out these procedures. Drawing inspiration from South Africa’s Choice on Termination Of Pregnancy Act (CTOPA), Nigeria requires a law with similar legal guidelines as seen in the CTOPA which divides the gestational period into three parts for the sake of safe termination of pregnancy. 84 The present legal framework in Nigeria is too restrictive.
It consequently compels a victim of sexual abuse who becomes pregnant to carry the pregnancy to term. This is without consideration for the mental and psychological impact on her. Our present stance on reproductive health enables mental and emotional torture which is an infringement of women’s rights. Access to safe and legal abortions in certain circumstances is a prerequisite to safe guarding women’s health. 85 Some countries allow abortion in cases where the pregnancy results from rape, incest or where there is serious fetal abnormality. 86 Suffice it to say, the issue of abortion is still a “forbidden” discourse in several parts of Nigeria today. Notwithstanding, there are several advocacy groups today calling for the reform of abortion laws in Nigeria.
The Campaign Against Unwanted Pregnancy (CAUP) was inaugurated on the 17th August 1991 to address this public health crisis through advocacy for reform of the abortion law, research, education and preparation of service providers, and development of a constituency to support provision of safe abortion to the full extent of the law. 87 When carried out by a skilled provider in safe conditions, abortion is very safe. There is clearly a nexus between availability of legal abortion and the safety and survival of women. When legal restrictions are removed, the number of deaths from complications of induced 84RE Mhlanga Abortion, “Developments and impact in South Africa British Medical Bulletin”, Volume 67, Issue 1, December 2003, Pages 115–126. 85Nkolika Ijeoma Aniekwu, Reproductive Health Law; A Jurisprudential Analysis of Gender Specific Human Rights for the African Region1st ed.
(Nigeria:Ambik Press 2011) p101. 86Anonymous, https//www. theweek. co. uk [Accessed 1st August 2020]. 87Boniface A Oye-Adeniran et al, “Advocacy for Reform of the Abortion Law in Nigeria” Advocacy for Reform of the Abortion Law in Nigeria (tandfonline. com) [Accessed 23rd June 2021]. abortion reaches almost nil. It is, therefore, imperative that the law be reformed to prevent Nigerian women from dying from unsafe abortions. 88 The initial motivation for creating CAUP was the concern of three medical doctors specialising in obstetrics and gynecology, who had to treat women with severe complications and morbidity who came to their hospitals for care in the aftermath of unsafe abortions. Many women were dying and many more suffered irreparable harm as a result of dangerous procedures.
They viewed this as a public health crisis and wanted to take action to stop the unnecessary suffering and death. 89After the failed attempt to push for a change in the law, Professor Ransome-Kuti asked CAUP for data on the scope of unsafe abortion in Nigeria, in order to garner support from within the government. The Campaign realized that there were no reliable data with which to convince government officials and others in the community of the seriousness of the problem. 90 Between 1995 and 1997, CAUP carried out a joint study with colleagues from the Alan Guttmacher Institute (AGI) in New York. Interviews for this national study were carried out in a sample of 672 health facilities, conducted by experienced physicians trained by CAUP and AGI. The study found that there were approximately 610,000 abortions a year, a rate of 25 abortions per 1,000 women aged 15- 44.
This study is still considered the most authoritative research on abortion in Nigeria. 91Abortion is criminalized in Nigeria except when the life of a woman is at risk. In some northern regions of the country, where sharia law is widespread and Boko Haram is active, abortion services are not accessible at all. Administrative barriers, coupled with widespread patriarchal beliefs and practices, make access to abortion extremely Some states in Nigeria have taken the lead in the widespread acceptance of reproductive rights. For instance, the National Coalition for Reproductive Justice has actively promoted reproductive rights in communities across Lagos, Nigeria. They have advocated loudly for the right to safe abortion where required.
They have participated in educating women on reproductive health and their rights, including accessing safe abortion and postpartum hemorrhage and post abortion care. 93 The International Women’s Health Coalition, IWHC”s newest grantee partner known as, Generation Initiative for Women and Youth Network (GIWYN), supports the National Coalition and trains its members to raise awareness in communities where access to sexual and reproductive information and services are hard to find. 94 GIWYN is assessable via a highly publicized hotline called “Ms. Rosy. ” Through this line, they provide accurate and non-judgmental reproductive health and rights information to callers, including information on abortion. Since its inception in 2014, the hotline has received approximately 135,000 calls from across Nigeria.
95 Because abortion is so severely restricted in Nigeria, GIWYN uses a harm reduction model, where trained professionals provide callers with accurate information on how to use the drug misoprostol, which is available over-thecounter and can be used to terminate unwanted pregnancies. For women who face uncountable impediments in their quest for safe abortion services, using misoprostol is safer than the methods these women without safer options may be forced to resort to. 96 According to WHO, Abortions are safe when they are carried out as recommended by WHO and during the acceptable period of pregnancy duration. As well as when the personnel carrying out the procedure possesses the requisite knowledge and has the necessary skills. 97 Victims of sexual abuse- rape and even incest should have safe options to avoid the consequences of such abuse of which they are victims.
Notwithstanding, this paper strongly advocates for education on family planning and pregnancy prevention, as prevention is always better than cure. V. Recommendations and Conclusion From the foregoing, this research submits that it is imperative that the Nigerian laws should 93Ibid. 94Ibid. 95International Women’s Health Coalition “Expanding Access to Safe Abortion in Nigeria, One Woman at a Time” [Accessed 23rd June 2021]. 96Ibid. 97Information from World Health Organisation Website https://www. who. int/health-topics/abortion#tab=tab_1 [Accessed 23rd June 2021]. align with and be reflective of this growing concept of reproductive health globally. It is apparent that the criminalization of abortion has only led to the upsurge of illegal clinics and the proliferation of unsafe abortion in Nigeria.
This indicates that a national prohibition will not stop women from procuring abortions, rather it opens up opportunities for them to procure such services outside and illegally. The preferable option is to have legislative guidelines on performance of abortion services. Nigeria can emulate South Africa where the CTOPA 1996 allows and eases access to safe abortions which in turn has significantly reduced the incidents of deaths from unsafe and illegal abortions. The CTOPA as noted in this paper, also significantly expanded the criteria for eligibility for termination of pregnancy. It divides the gestational period into three parts for the sake of termination of pregnancy, thus- Up to and including 12 weeks gestation by dates, Above 12 weeks up to and including 20 weeks gestation by dates, Above 20 week’s gestation by dates.
The requirement that termination must be carried out by skilled and professional doctors and midwives for pregnancies up to and including 12 weeks gestation, by the Act is also commendable as it provides accountability and prevents abuse. This paper therefore conclusively submits that regulatory guidelines such as those discussed above, are essential machinery for the promotion and protection of reproductive health and rights in Nigeria. The law should be engaged as machinery for promotion and enforcement of reproductive rights and not as a tool for repression of these rights. This paper advocates for the recognition of reproductive rights as rights that are essential and fundamental to the human existence, and should therefore be protected. Consequently, the following recommendations are made:
1. Nigeria is long overdue for legislative reform which should include the enactment of
specific Reproductive Health Laws. Legal reforms should actively promote and advance women’s rights
2. There is need to enact a comprehensive legislation similar to South Africa’s CTOPA, to
safeguard and regulate safe abortions where necessary.
3. Enlightenment and active dissemination of information is key to comprehension and
understanding of women’s right and body autonomy both by citizens and persons in power.
4. Comprehensive sex education, family planning and contraceptive education should be
provided to educate the public on preventing unintended pregnancies. This should further be inculcated into school curriculum. By empowering individuals with knowledge and resources, the incidence of unplanned pregnancies and consequently abortions can be reduced.
5. Key international instruments like CEDAW which are yet to be domesticated should
speedily be domesticated as they actively promote reproductive rights.