1.0 Introduction
A lady is a victim of rape, due to the shame, trauma and pain that comes with it, she keeps it to herself. Soon she finds out that she is pregnant, the father (rapist) unknown. She does not want to keep the child because he/she is a result of an unwanted unfortunate situation. Could she abort the fetus growing in her womb to become a child? Wouldn’t that be right considering the fact that she (a Secondary School Student) of poor parents who has no means to cater for the wellbeing of a soon to be child with no man enough father? Or would it be illegal to do so? Several sad tales.
The argument for or against abortion is a never ending debate, the legal position in respective jurisdictions notwithstanding.
The different sides of the divide will be the pro-choice (for abortion) and the pro-life (against abortion).
Part of the reoccurring questions that comes with this sensitive subject will be-
- Is Abortion always wrong?
- What about when it is done in certain situations such as:
- When the life or health of the mother is at stake?
- In the case of rape or incest?
- When exactly does life begin? – At fertilization? At the first heartbeat? At the existence of brain waves? Or immediately after carnal knowledge takes place.
- The pro-Choice
The Pro-choice will argue that for a lot of pro-lifers, it seems abortion is all about the baby.(Embryo or Fetus as the case may be). The woman, and the factors that might contribute to her decision to terminate her pregnancy, do not seem to matter much. But how can we end abortion if we do not examine why women seek out abortions in the first place? What if she wants to terminate the pregnancy because she does not have the maturity and capacity to carry and raise a child? What if she was just a victim of circumstance?
More so, making it illegal will not stop it from happening. The estimated unintended pregnancy rate is 59 percent per 1,000 women aged 15-49. 56 percent of unintended pregnancies are resolved by abortion and a research by Guttmacher Institute put the number of unsafe abortions done in Nigeria every year to 456,000.
The staggering statistics above shows that banning abortion does not necessarily reduce the abortion rate, and enforcing a ban on all abortions would be impossible, but will instead drive women to likely seek out abortions through unsafe, illegal procedures anyway which will only increase the mortality rate of young women.
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The Pro-choice activists further argue that there might be a political undertone, because if this was about babies, there would be universal healthcare and free education for the children instead of Anti-abortion Laws. Or maybe Anti-abortion laws and Universal healthcare and free education policies and laws floating side by side. That is; if the Government really cared as much for the babies. The pro-choice activists will sum up their arguments by stating that as a woman, the idea that a government can make decisions about what a person should do with a person’s body in 2022 is absurd.
- Pro-life
The pro-lifers will definitely love to start their argument by stating that “If you do not want a baby, do not do the do that will make you have a baby”. Pretty straightforward right?Of cause not! What about the victims of rape?
The Pro-lifers will say that everything happens for a reason and that no matter how sad a person situation might be, you have no right to take “a life”. For this school of thought, once a baby begins to form, a life you have no right to take begins to form.
The only meeting point between morality (pro-life) and “being free” (pro-choice) will be in an instance when keeping the embryo or fetus in the womb of the mother could lead to the death of the mother. That is the only meeting point.
2.0 What is the position of the law?
The law is a tool of social engineering, blinded so it could see no sentiments or emotions, holding a sword to be used on anyone who does not comply with the words that flows freely from its unfettered mouth.
In Nigeria, criminal law system is divided between the northern and southern states. The Criminal Code is currently enforced in southern states. The abortion laws of the Criminal Code are expressed within sections 228, 229, and 230. Section 228 states that any doctor providing a miscarriage to a woman is guilty of a felony and up to 14 years of imprisonment. Section 229 states that any woman obtaining a miscarriage is guilty of a felony and may be sentenced to imprisonment for up to 7 years. Section 230 states that anyone supplying anything intended for a woman’s miscarriage is also guilty of a felony and maybe sentenced to up to 3 years of imprisonment. (Miscarriage in this instance means “Abortion on grounds aside health of the mother”).
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The Penal Code operates in northern states, with abortion laws contained in sections 232, 233, and 234. The sections of the Penal Code parallel the Criminal Code, besides the exception for abortion with the purpose of saving the life of the mother. The Penal Code’s punishments include imprisonment, fine, or both. The offenses of these codes are punishable regardless of whether the miscarriage was successful. No provisions have been made to the Criminal Code making exceptions for the preservations of the mother’s life. However, the cases of Rex v. Edgar and Rex v. Bourne have made it generally accepted that abortion performed to preserve the mother’s life is not an appropriate transgression of the Criminal Code.
3.0 Conclusion
The simple sublime interpretation is that the law has closed its eyes to any circumstance, be it; rape, incest, child pregnancy etc., but for the singular grounds of a life threatening situation for the mother.
Conclusively, the scale on the other hand of Justice in Nigeria as regards Abortion weigh in favour of the Pro-lifers. This is the situation not only in Nigeria but even in the United States thanks to the recently overturned decision of the Supreme Court of the United States in the case of Roe v. Wade.
The Pro-choice choristers will live to sing another day.
Sam Omotoso Esq, ACarb is a Lawyer, Chartered Arbitrator and an On Air Personality with special interest in Litigation, Human Rights and Legal Writing.
Martha Kama Esq is a Lawyer and an Equality advocate with a flair for family law and human rights.