MISCELLANY OF ISSUES ON ABORTION UNDER THE LAW: AN APPRAISAL


1.       Introduction
            Legally, “abortion” is defined as the termination of pregnancy before the twenty eighth week of gestation. Abortion may be spontaneous or induced. Abortions which have been illegally induced is a criminal abortion.
             It’s common nowadays to find many medical practitioners procuring an abortion for the mere purpose of allowing the mother to get rid of an unwanted pregnancy. This without more is an offence except for therapeutic reasons. It might be that the reason for agreeing to procure an abortion may be moral. At other times, it may be based on a consideration of the convenience of the mother.

            The law as it stands in Nigeria today does not allow a medical practitioner to procure an abortion except for the purpose of preservation of life of the mother. This is otherwise referred to as therapeutic abortion[1].
            A child is said to have “a separate existence” after it must have proceeded in living state from the body of the mother. This is assured by section 307 of the Criminal Code[2]. Thus, except that state is in existence the unborn child cannot be said to be a person[3]. It would have been technically correct to refer to killing in such a state to an abortion but having regard to the controversy with respect to when abortion could be said to have taken place. The CC seems to have correctly entered a section in the Code to the effect that such an event should be regarded as “killing an unborn child”.
Section 328 of the CC provides that:

any person who, when a woman is about to be delivered of a child, prevents the child from being born alive by any act or omission of such a nature that, if the child had been born alive
and had then died, he would be deemed to have unlawfully killed the child, is
guilty of a felony, and is liable to imprisonment for life”.

            Section 236 of the Penal code makes a similar provision. A medical practitioner is therefore not allowed to prevent a child from being born alive except as provided under section 297 of the CC. Section 297 of the CC deals with surgical operations carried out for the purpose of preserving the life of the mother. It states that a person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation upon any person for his benefit or upon an unborn child for the preservation of the mother’s life if the performance of the operation is reasonable having regard to the patient’s state at the time and to all the circumstances of the case.
            This contribution despite dearth of cases on this area of law will state the fundamentals of abortion under the law; methods of procuring illegal abortion and comparative studies shall be highlighted from other jurisdictions pertaining to abortion.

2.       Methods of Procuring Illegal Abortion
            Methods of procuring abortion may be divided into invasive[4] and non- invasive methods. The non-invasive methods constitute mostly ingestion of drugs or spirits while invasive methods are injections, insertion or instrumentations. The use of chemical agents is common. The variety of chemical agents is limited only by the boundaries of the imaginations of the user or the provider. Drugs which may be used include purgatives and oxytocics such as quinine, ergots and prostaglandins. In Nigeria, many women consume excessive quantities of spirits such as gin or brandy with the hope of inducing abortion. Assorted native concoctions prepared from herbs, roots and animal products are also commonly used. Such concoctions may be ingested orally or maybe inserted in the vagina. Many of these abortifacients have deleterious effects and maybe hepatoxic, nephrotoxic, or corrosive on the vaginal tissues.
            The use of soap solution often self-administered has been an old and popular method in several cultures. A syringe is used to inject soapsuds into the uterine cavity through the cervical os. This is a very dangerous method which can lead to complications of infection and chemical toxicity.
            The methods used in procuring illegal abortion in any country are in some measure influenced by the abortion laws of that country. Modern and safe abortion techniques are more readily available in countries with permissive abortion laws than in countries with restrictive abortion legislations which may result in acute tubular necrosis and acute renal failure. Maternal death may even result from air embolism. Many types of instruments[5] have been employed to procure abortion. The scientific instruments used by trained doctors are the instruments for dilatation of the cervical os and curettage of the uterine cavity. Sims curettes, sponge-holding forceps, or some form of vacuum suction curettes may be used to evacuate the uterus in the first trimester. 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 fornix 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 omentum. Sometimes, a loop of bowel is pulled through into the vagina by the foolhardly and ignorant abortionist who may be a doctor, chemist, nurse, hospital attendant or other unqualified persons.
            Instrumentation may also result in infection if the instruments are unsterile. It may also result in perforation of the uterus, the vagina or the bowel. In such cases, peritonitis and septicaemia may occur leading to septic shock. Occasionally, reflex vagal inhibition of the heart may occur on touching the cervix. This is due to stimulation of the vagal nerve. This stimulation leads to shock, collapse and death. Haemorrhage may occur from incomplete evacuation of the uterus or perforation of the cervix, uterus or other viscus.
            In countries with liberal Abortion Laws[6], second trimester abortions are legally induced by intra-amniotic injection of hypertonic saline or intravenous infusion of oxytocics such a prostaglandin. Vaginal application of prostaglandin preparations is also used. The risk of hypernatremia or hypofibrinogenemia following the use of hypertonic saline must be borne in mind. Prostaglandin infusions are often complicated by diarrhoea and vomiting but not so in vaginal applications. A ploy sometimes used by Nigerian abortionists in second trimester pregnancies is to rupture the membranes and instruct the patient to report to the hospital when contractions or bleeding commences. This is then treated as a case of spontaneous abortion.
The law of abortion under Nigeria law can be summed up in the various sections of the criminal code. Section 297 of the Criminal Code deals with surgical operations carried out for the purpose of preserving the life of the mother. It states that:

a person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation upon any person for his benefit or upon an unborn child for the preservation of the mother’s life.. If the performable of the operation is reasonable, having regard to the patient’s state at the time and to all the circumstances of the case”.

In like manner, S. 232 of the Penal Code provides for exculpation of a medical practitioner where such is done for the purpose of preserving the life of the mother. It states that:

Whomsoever voluntarily causes a woman with child to miscarry shall, if such miscarriage be not caused  in good faith for the purpose of saving the life of the mother, be punished with imprisonment for a term which may extend to fourteen years or with fine or with both’.

 On the other hand, S. 228 of the CC provides that:

“ 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”.

Further more, S. 230 of the CC also provides that:

any person who unlawfully supplies to or procures for any person anything whatsoever, knowing that it is intended to be unlawfully used to procure the miscarriage of a woman Whether she is or not with child is guilty of a felony and is liable to imprisonment for three years. The offender cannot be convicted without warrant”.

            The law on abortion is apt based on the above provisions. But there exist dearth of cases. The reason could be to the fact that most cases on abortion are usually resolved at the police stations or sometimes during negotiations at family levels.

3.       Other Jurisdictions
            In Britain, the Abortion Act 1967 has been significantly amended by the Human Fertilization and Embryology Act 1990[7]. In summary, it now states that a person shall not be guilty of an offence under the law of abortion when termination is performed by a registered medical practitioner and two registered medical practitioners have formed the opinion in good faith that the continuance of the pregnancy would involve risk greater than if the pregnancy were terminated, of injury, to the physical or mental health of the pregnant woman or if the child were born it would suffer from such physical or mental abnormality as to be severely handicapped.
            The great majority of legal abortions are performed for therapeutic reasons. This has affected medical ethics and has abrogated a main tenet of its Hippocratic conscience The decision in R v Bourne[8] is illustrative on this point. Mr. Bourne performed an abortion with no attempt at secrecy on a fifteen years old girl who was pregnant following a particularly unpleasant rape. He was indicted. He was acquitted by the court and this brought to the fore view that a woman’s life depended upon her physical and mental health and that an abortion wasn’t illegal if it was performed because they were in jeopardy. The law turned a sympathetic eye based on therapeutic reasons.
            As to the right of the fetus, the court in Paton v British Pregnancy Advisory Service Trustee[9], Sir George Baker stated that:

there is no existing basis in law which justifies the conclusion that foetuses are legal persons

It is everywhere accepted that although fetal rights may be established while in utero or even before conception they cannot be realized unless a fetus is born alive. Nevertheless, the case demonstrated a clear intention to acknowledge or even to create a persona in the feotus when it is possible to do so.
            Moreover, in Scotland, a fetus has been recognized as a person when criminally injured under the Road Traffic Act. The reasoning according to the court in Hamilton v Fife Health Board[10] was that;

“It is perfectly common in ordinary speech to refer to a child in the womb as “he”, “she”, “him” or “her”…it was this child who sustained injuries to his person and who died in consequence of personal injuries sustained by him”.

            In Northern Ireland, abortion is illegal and not supported even in the event of risk to the life of the mother. The law is still governed by the Abortion Law of 1861. Although this has been severely criticized.
            Pointedly, in the United States of America, abortion laws have been modified as a result of persistent legal intervention which has been notable by its absence in Great Britain.  Majority of the States in America have almost similar abortion laws like that of Britain. Without prevarication, but in 1973, the decisions in Roe v Wade[11]and Doe v Bolton[12] made far reaching decisions which could be summarized thus: it was an invasion of a woman’s constitutional right to privacy to limit her access to abortion by statute and these applies also to school children although their parents may still be informed of the circumstances. It was suggested at the time of the decision that health is inclusive of convenience and that this effectively allows for abortion on demand. There is no doubt that the decision of Roe was that abortion during the first trimester pregnancy is an inalienable prerogative of the American woman and is grounded to the right of individual privacy. The court gave some regards to the rights of the developing fetus. The court stated that in the first trimester, the question of abortion was to be decided solely between the woman and her physician; during the second trimester, the State Authority could intervene by reason of his interest in the health of the mother. Interference of this type could be by stating where and by whom an abortion could be done. It was agreed that the State had the compelling interest in the health of the fetus and could therefore constitutionally intervene on his behalf excepting when the condition threaten the lives or health of the mother.
            Abortion in the United State is not so much a philosophical issue. It is one of Constitutional Law[13]. The Abortion debate still continues in an atmosphere of increasing acrimony and increasing subservience to political exigency. This is so because while some States recognize the Supreme Court decision in Roe and Doe to the facts that a woman has a constitutional right to abortion, other States seem to be against this.
            Succinctly, in Canada, the law on abortion has not been liberal until when the Supreme Court in R v Morgentale[14]  held while interpreting section 251 of the Criminal Code of 1971 that this section violated the security and liberty of the pregnant woman. Dickson CJ expressed his reasons for this conclusion as follows:

forcing a woman, the threat of criminal sanction to carry a fetus to term unless she meets certain unrelated to her own priorities and aspirations is a profound interference with a woman’s body and thus a violation of the security of the person

Conversely, in Borowski v AG of Canada[15], it was held that the Canada Charter of rights was inapplicable to fetus. In Tremblay v Diagle[16] in which a father gained an interlocutory injunction to prevent the abortion of his child. This situation was however short-lived as the Supreme Court reversed the decision unanimously.
            From the several decisions on abortion from different countries, modern medicine now shows no embarrassment in courting the concept of the wanted and the unwanted “child” as ably supported by the decisions of the courts.

4.       Conclusion
            It could be deduced from this contribution that the law on abortion in Nigeria and that of Great Britain are similar in the sense that abortion is only permissible for therapeutic reasons.
            Other jurisdictions such as Canada and some States in the United States of America such as New York have liberal abortion laws to the extent that a woman can constitutionally terminate her pregnancy whenever she chooses. The cases of Roe v Wade and Doe v Bolton are illustrative on this point.
            Succinctly, Nigeria and Great Britain laws on abortion are founded from or are on a philosophical base while those of Canada and America are based squarely on their constitution as pronounced upon squarely by their courts.
Conclusively, from time immemorial right to life has been held to be sacrosanct and individuals can only be deprived of this in exceptional circumstances. We think that such lives should be protected and preserved constitutionally except for therapeutic reasons.


*K. O. MRABURE ESQ, LL.M (Benin) Lecturer, Delta State University, Faculty of Law, Oleh Campus. Delta State. Email: kingomote@yahoo.com  07035420479
[1] Yakubu, Medical Law in Nigeria. Pg. 30-1.
[2] Cap C38 Laws of the Federation 2004. Simply “CC”.
[3] Conversely, if the child being born alive who proceeded from foetus has rights and the foetus does not have any right. Can the child be born alive without being a foetus first? We think that the foetus ought to have rights especially in cases where abortion is illegally induced.
[4] Umerah B.C. Medical Practice and Law in Nigeria, Longman, Nigeria, 1989. Pg. 62.
[5] Ibid at 63.
[6] Ibid.
[7] Mason & Smith. Law and Medical Ethics. Butterworths 4th ed, London, 1994. Pg. 100
[8] (1939) 1K.B 687 at 619.
[9] (1979) QB at 276 at  279.
[10] (1993) SLT 624.
[11] (1973) 93 S Ct 705 cited in Mason & Smith op.cit at 104
[12] (1973) 93 S Ct 739 cited in Mason & Smith op.cit at 104
[13] See Mason & Smith op.cit at 104.
[14] (1988) 1 SCR at 30
[15] (1987) 39 DLR (4th) 731.
[16] (1989) 59 DLR (4th) 609.
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