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.