Abortion and its Law in the world and Nigeria

Abortion and it's law in the world and Nigeria 

Esther I. Ojeh

University of Jos

Abstract

  Abortion laws vary among countries and territories, and have changed over time. Such laws range from abortion being freely available in request, to regulation or restrictions of various kinds, to outright prohibition in all circumstances. Abortion continues to be a controversial subject in many societies of the world on religious moral, ethical, practical, and political grounds. Though it has been banned and otherwise limited by law in many jurisdictions, abortion continues to be common in many areas, even where they are illegal. The future of abortion is in flux and vast majority of abortions occur in response to unintended pregnancies. Currently, abortion is a serious problem, seen from the high number of abortions, which is increasing from year to year.

Introduction.

   Abortion has been practiced since ancient times, but it's legality and availability have been threatened continuously by forces that would denigrate women's fundamental rights. Currently, while efforts to decrease the need for abortion through contraception and education, laws that prohibit absolutely the practice of abortion was permitted for male fetus in the first 40 days of pregnancy and for female fetus in the first 80 - 90 days.

 Not until 1588 did pope sixtus V declare all abortion murder, with excommunication as the punishment. Only 3 years later a new pope found the absolute sanction unworkable and again allowed early abortions 300 years would pass before the Catholic Church under pius IX again declared all abortion murder. 

This standard declared in 1869, remains the official position of the church, reaffirmed by the current pope. In 1920 ,the Soviet Union became the first modern state formally to legalise abortion. In the early period after the 1917 revolution, abortion was readily available in state operated facilities.

 These facilities were close and abortion made illegal when it became clear that the Soviet Union would have to defend itself against Nazi Germany. After world war ll , women were encouraged to enter the labor force, and abortion once again became legal. 

Abortion legislations has never been in the hands of women. The legal history of abortion in the US illustrates dramatically that it was doctors not women, who defined the morality surrounding abortion. By 1973 pressure for reform had led 14 states to liberalise their existing abortion laws and the US supreme Court finally ruled that abortion is a private matter between a woman and her doctor. In Europe especially France, it's morality a nd legality was quite different in the early 20th century than they became in Europe and America after widespread legalization. French juries often showed leniency to women who aborted, although , they more frequently voted to convict abortionists, especially midwives. 

On a global scale, abortion laws have moved towards liberalisation. Since 2000, 38 countries have changed their legislation regarding abortions, and, all but one – Nicaragua – have expanded the legal grounds in which women can have access to abortion services.

To provide you with some examples, since 2020, Argentina and Thailand have legalized abortions, with some gestational limits, South Korea and Mexico have decriminalised abortions, New Zealand has eased its abortion restrictions, and Colombia has made abortion legal for up to 24 weeks of the pregnancy.

While greater freedoms for women’s reproductive rights have been on the rise across the world, some countries, which include the United States, are moving against the tide and enacting policies to tighten restrictions.

 Decriminalisation of abortion

The decriminalisation of abortion means removing specific criminal sanctions against abortion from the law , and changing the law and it's related policies. The following regulations include,

i. Not punishing anyone for providing safe abortion

ii. Not punishing anyone for having an abortion.

iii. Not involving the police in investigating or prosecuting safe abortion provision or practice.

iv. Not involving the courts I deciding whether to allow an abortion.

v. Treating abortion like every other form of health care - that is , using best practice in service delivery, the training of providers, and the development and application of evidence based guidelines, and applying existing law to deal with any dangerous or negligent practices.

 Abortion was legally restricted in almost every country of the nineteenth century. The most important sources of such laws were the imperial countries of Europe - Britain, France , Portugal, Spain, and Italy who imposed their own laws forbidding abortion in their colonies. Historically, restrictions on abortion were introduced for three main reasons.

i. Abortions was dangerous and abortionists were killing a lot of women. Hence, the laws had a public health intention to protect women who nevertheless sought abortions and risked their lives in doing so .

ii. Abortion was considered a sin or a form of transgression of morality, and the laws were intended to punish and act as a deterrent.

iii. Abortion was restricted to protect fetal life in some or all circumstances. From the American revolution to the mid 19th century abortion was not an issue of significant controversy. Many states subsequently passed various laws on abortion untill the supreme Court of the United States decisions of ROE v. WADE and DOE v. BOLTON decriminalized abortion nationwide in 1973.

  

Types of abortion 

There are several types of abortion, the options depend on the duration of the pregnancy. And each having it's advantages and disadvantage, recovery, and potential risks.

i. Medical abortion: it requires a pregnant person to take pills at separate times and it involves taking two medications which mifepristone ( korlym mifeprex) and misoprostol ( cytotec). mifepristone stops the pregnancy from developing, while misoprostol triggers the uterus to empty, which will begin 2 - 24 hours after taking the pill.

ii. Vacuum aspiration: it is a type of surgical abortion that involves using gentle suction to end a pregnancy. This type of abortion is always recommended during the first trimester.

iii. Dilation and evacuation: A D&E is a type of surgical abortion that doctors commonly use during the second trimester.

iv. Labor induction abortion: it is a late term method of ending a pregnancy in the second or third trimester. This type of abortion is rare, and a doctor may recommend it if a pregnant person's life is in danger. Different countries have different rules about whether a person can end a pregnancy and under what conditions since the year 2000 ,at least 38 countries have either legalized or reduced the limits on abortion procedures. 

Reasons for abortion

While every person has unique reasons for seeking an abortion, researchers have found that those who've had the procedure report a number of common factors that influenced their decision. These concerns include:

• Financial
• Timing
• Partner and Family Issues
• Other Children
• Health Reasons

Other top issues that influence this choice are related to not being prepared to be a parent and the relationship with one's partner.

Reasons for Abortions by percentage

• Not financially prepared 40%
• Not a good time 36%
• Issues with partner 31%
• Need to focus on other children 29%
• Interferes with future plans 20%
• Not emotionally or mentally prepared 19%
• Health issue 12%
• Unable to provide a “good” life 12%
• Not independent or mature enough 7%
• Influence from family or friends 5%
• Don’t want children 3%

These findings are the result of a five-year survey of people who have had at least one abortion and were asked to give reasons they chose to terminate their pregnancy.

Aristotle wrote that "The line between lawful and unlawful abortion will be marked by the fact of having sensation and being alive. Before that point was reached, Aristotle did not regard abortion as the killing of something human. Aristotle considered the embryo to gain a human soul at 49 days if male and 90 days if female before that, it had vegetable and animal souls".

In the early 1950s, the Chinese government made abortion illegal, with punishments for those who received or performed illegal abortions written into law. These restrictions were seen as the government's way of emphasizing the importance of population growth. In the early 1980s, the state implemented a form of family planning which used abortion as a backup method.

 As of 2009, although China had the highest number of abortions in the world, Russia had the highest rate in the world. 

India enforced the Indian penal code from 1869 - 1971, criminalising abortions and punishing both the practitioners and the women who sought out the procedure. Abortion was made legal under specific circumstances in 1971 ,but as scholar S. Chandrasekhar notes, lower class women still find themselves at a greater risk of injury or death as a result of botched abortion.

As a result of the problem relating to abortion half hearted recognition has been given to the legality of abortion by laws of various jurisdictions. Lord Denning dealing with the problem in this regard in ROYAL COLLEGE OF NURSING OF THE UNITED KINGDOM v. DEPARTMENT Of HEALTH AND SOCIAL SECURITY (1981) AC 800 held thus,

" Abortion is a subject in which many people feel strongly in both discretions. Many are for it , many against it . One object to it as the destruction of life. Others favour it as the right of the woman. Emotions run so high on both sides that I feel that we as judges must go by the very words of the statute, without stretching it one way or the other, and writing nothing in which is not there".

       The provision of abortion laws in Nigeria 

In Nigeria, statistics indicate that over 1,000,000 abortions in the country annually representing about 33 abortions per 1,000 women of child bearing age, and as for many reasons namely, financial and emotional inability to care for a baby; fear of rejection by partners, parents, peer groups, religious and community leaders and society if the pregnancy is discovered.

The section 33. (1) of the 1999 constitution of the federal Republic of Nigeria is embedded with the right to life and protection of that life. It is built on the principle of natural law which respects the sanctity of human life. Relevant statutes on abortion prescribe punishment for anyone, including the mother herself, involved in this menace to human life.

The provision against abortion is generally found in the criminal code Act which applies to the whole of the Southern Nigeria ( s. 228. - 230, s. 297 ) and in the penal code Act for the northern Nigeria (s. 233). The laws are relics of the country's colonial past, dating back to the English abortion laws 1861.

However, where a woman tries to induce her own miscarriage, whether she is pregnant or not by any administration of poison, force or means, she will be guilty of a felony punishable by seven years imprisonment. The provision of the penal code Act is in Pari - materia with that of the criminal code except for the fact that the former prescribes fourteen years. Imprisonment as punishment for procuring abortion. AG FEDERATION v. OGUNRO & ANOR (2001),10 NWLR pt 720.

    The penal code Act allows therapeutic abortion if caused in good faith for the purpose of saving the life of a pregnant woman. This exception as explicitly provided in the penal code is latent in the criminal code Act. It is only implied therein by the use of the word " unlawfully". The case law in R v . BOURNE has established that lawful abortion is one procurred for saving the life of the mother. This principle has been allowed in practice in the whole of Nigeria. Thence also, s. 297 of the criminal code Act appears to further strength the exception to the Nigerian laws on abortion.

  Many countries of the world are shifting grounds to very liberal abortion laws. The United Kingdom from where Nigeria copied her abortion laws has in 1967 gone liberal on her abortion laws. Hence, section 1 of the English abortion act of 1967 now permits abortion in demand for health of the mother and the risk of fetal abnormality. Not withstanding that pressures from Europe and America are much on the Nigerian legislators to go liberal on the issue of abortion. 

"I feel the greatest destroyer of peace today is 'Abortion', because it is a war against the child... A direct killing of the innocent child, 'Murder' by the mother herself... And if we can accept that a mother can kill even her own child, how can we tell other people not to kill one another? How do we persuade a woman not to have an abortion? As always, we must persuade her with love... And we remind ourselves that love means to be willing to give until it hurts..." Mother Teresa. 

  Conclusion 

   The termination of a person's life is only acceptable on the grounds of legalism. Anything contrary is against human ethics and unlawful. We must not forget that the fetus is also regarded as a person entitled to a right to life and the accruing benefits. Thus, termination of human life is merely an "economic" reason in a scale of preference, where the life of the child is an alternative forgone. 

Nigera needs to consider the legal provisions of countries like Korea for legislation. Korea does not support abortion for medical reasons.

The current unprecedented contribution of abortion to it's maternal morbidity has to be addressed, this will require the invigoration of family planning services and it's utilisation, coupled with the pursuance of abortion law reforms, which protects and preserves the legitimate rights of the fetus as a person and allows abortion only as an indirect effect of a directly willed act to save the mother's life in instances of illness. Instead of seeking pro - choice laws; we should advocate for sex education at all levels across the country.

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

References 

i. Nigeria criminal code Act, ( Southern Nigeria)

ii. Nigeria penal code Act, ( Northern Nigeria) 

iii. Abortion laws; The provision - unilagreview.Org

iv. Abortion | Definition, procedure. www.Britannica.com

v. Global Abortion policies - biomedcentral.com

vi. Sexual health abortion - verywellhealth.com

vii. Abortion rights across the US. www.theguardian.com