For the Records: Full details of the Nigerian abortion law

by Rachel Ogbu

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Many people hold very strong opinions and believe that abortion no matter what is wrong. Others hold that abortion is right in some certain circumstances like if the mother faces life threatening issues and could die. Then there are the pro-choice group that hold abortion is morally acceptable.

This week on YNaija, the abortion debate is asking in this day and age, can it be morally right to terminate a pregnancy? Does a woman have the right to do what she wants with her body? When does it become murder?

Here is a detailed report on the Nigerian abortion law:

                                                                                    ABORTION POLICY

Grounds on which abortion is permitted: 

       To save the life of the woman                                                           Yes

To preserve physical health                                                              Yes*

To preserve mental health                                                                 Yes*

Rape or incest                                                                                          No

Foetal impairment                                                                                 No

Economic or social reasons                                                               No

Available on request                                                                            No

 

Additional requirements:

Two physicians are required to certify that the pregnancy poses a serious threat to the life of the woman.

___________

* Nigeria has two abortion laws:  one for the northern states and one for the southern states.  Both laws specifically allow abortions to be performed to save the life of the woman.  In addition, in the southern states, the holding of Rex v. Bourne is applied, which allows abortions to be performed for physical and mental health reasons.

                                                                                        BACKGROUND

 Abortion in Nigeria is governed by two different laws. In the predominantly Muslim states of Northern Nigeria, which contain about half the population of the country, the Penal Code, Law No. 18 of 1959, is in effect.  In the southern part of the country, which is largely Christian in religion, the Criminal Code of 1916 is in effect. While both Codes generally prohibit the performance of abortions, differences in the wording of the Codes, as well as in their  interpretation, that have resulted in two slightly different treatments of the offence of abortion.

Under the Penal Code, which is related to the criminal law of India and Pakistan, an abortion may be legally performed only to save the life of the pregnant woman. Except for this purpose, a person who voluntarily causes a woman with child to miscarry is subject to up to fourteen years’ imprisonment and/or payment of a fine. A woman who causes her own miscarriage is subject to the same penalty. Harsher penalties are applied if the woman dies as a result of the miscarriage.

Like the Penal Code, the Criminal Code, which is modelled on the English Offences against the Person Act of 1861, permits an abortion to be legally performed only to save the life of the woman. Section 297 provides that “a person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation…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 all the circumstances of the case”. Any person who, with intent to procure the miscarriage of a woman, unlawfully administers to her any noxious thing or uses any other means is subject to fourteen years’ imprisonment.  A woman who undertakes the same act with respect to herself or consents to it is subject to seven years’ imprisonment. Any person who supplies any thing knowing that it is intended to be unlawfully used to procure a miscarriage is subject to three years’ imprisonment.

Unlike the Penal Code, however, the Criminal Code has been interpreted to allow abortions to be legally performed under broader circumstances. In the southern states of Nigeria, at least one court has followed the holding of the 1938 English Rex v. Bourne decision in determining whether an abortion performed for health reasons is lawful.  In the Bourne decision, a physician was acquitted of the offence of performing an abortion in the case of a woman who had been raped. The court ruled that the abortion was lawful because it had been performed to prevent the woman from becoming “a physical and mental wreck”, thus setting a precedent for future abortion cases performed on the grounds of preserving the pregnant woman’s physical and mental health.

A 1982 attempt to liberalize abortion law in Nigeria was defeated. A termination of pregnancy bill, sponsored by the Society of Gynaecologists and Obstetricians of Nigeria, was presented to the National Assembly. The bill would have permitted abortion if two physicians certified that the continuation of a pregnancy would involve risk to the life of a pregnant woman, or of injury to her physical and mental health or to any existing children in her family greater than if the pregnancy were terminated.  The bill would also have allowed abortion if “there was a substantial risk that the child, if born, would suffer such physical and mental abnormalities as to be seriously handicapped”. Abortions performed on these expanded grounds could have been carried out only in the first 12 weeks of pregnancy, except to save the life of the woman. The bill also would have permitted physicians to refuse to perform an abortion on grounds of conscience. The bill was strongly opposed by religious leaders and by the Nigerian National Council of Women’s Societies of Nigeria who feared that its passage would promote sexual promiscuity. The abortion law is believed unchanged to date.

Induced abortion is increasing and is considered to be a major cause of maternal mortality, which is quite high in Nigeria. Reports from several surveys, principally from university teaching hospitals, indicate that the highest risk group is young girls between 15 and 19 years old. The fear of interruptions in education, the risk of unemployment and the social stigma of raising a child born out of wedlock are the principal reasons for seeking an abortion. A significant number of incomplete abortions are regularly treated in hospitals in Nigeria, indicating a high incidence of illegal and poorly performed abortions. Moreover, abortion is reported to be widely available in the private sector.

National data on the incidence of abortion are not readily available, mainly because of the social stigma attached to having an abortion and the potentially severe consequences for the patient, as well as for the physician performing an abortion. Although abortion is generally illegal, there appears to be a large discrepancy between the law and the practice of abortion in Nigeria. A survey of hospitals in Nigeria conducted in 1984 indicates that a majority (55 per cent) of abortion cases involved young girls under age 20, for whom illegal abortion is currently the leading cause of death; some 85 per cent of those having an abortion were unmarried and 60 per cent of the women had at least a secondary-school education.  In 1980, a Ministerial Committee of Inquiry estimated that there were 500,000 illegal abortions performed during that year.

A 1990 Demographic and Health Survey recorded a modern contraceptive prevalence rate of 4 per cent.  The total fertility rate for 1995-2000 is estimated at 5.2 children per woman. Nigeria also suffers from a very high maternal mortality ratio, estimated in 1990 to be over 1,000 per 100,000 live births. Concerned about the unsatisfactory state of its population dynamics, the Government of Nigeria adopted a national population policy in 1988. Since then, the Government has actively supported and promoted the availability and distribution of family planning services through government facilities, as well as private and social marketing channels. However, the availability of family planning services is still felt to be limited and the use of modern methods of contraception is very low.  Abortion laws have yet to undergo any substantial reforms.

Since the International Conference on Population and Development, held in Cairo in 1994, the Ministry of Women Affairs and Youth Development has been established at both national and regional levels throughout Nigeria. Similarly, the Federal Ministry of Health has been restructured: a division of reproductive health has been created in the department of primary health care and disease control to implement the integration of reproductive health care into the decentralized health system.

Source: United Nations report (www.un.org/esa/population/publications/abortion/doc/nigeria.doc)

 


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