The state of Texas in the United States of America recently passed a law on abortion that caused an uproar both nationally and internationally. Parts of the law that garnered controversy include:

  1. Once a heartbeat is detected during pregnancy, aborting is no longer possible. There are no circumstantial exceptions to this.
  2. Anyone may report and sue any person suspected of aiding and abetting the act (abortion). If a successful lawsuit comes out of this, a reward of $10,000 is certain for the winning defendant.

In light of this, it is perhaps prudent to take note of the laws relating to abortion in Nigeria. While there can be no doubt that abortions are illegal, what are the specifics of the illegality? What actions amount to an act and what are the consequences?

Section 235 of the Penal Code (Northern States) Federal Provisions Act (No. 25 of 1960) expressly deals with the legality of an Act done with intent to prevent a child being born alive or to cause it to die after birth. It provides thus;

“Whoever before the birth of any child does any act with the intention of thereby preventing that child from being born alive or causing it to die after its birth and does by such act prevent that child from being born alive or causes it to die after its birth, shall, if such act 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.”

The Penal Code clearly states that both the intention to commit the act (if caught) and going through with the act in itself are considered criminal offenses.

The Criminal Code of Nigeria has a larger number of provisions relating to the issue of abortion, cutting across several situations. But here are  a couple we consider relevant;

Section 230 of the Criminal Code Act Cap C38 LFN 2004 deals with the Supplying of drugs or instruments to procure abortion. It provides that;

“Any person who unlawfully supplies to or procures for any person any thing whatever, knowing that it is intended to be unlawfully used to procure the miscarriage of a woman, whether she is or is not with child, is guilty of a felony and is liable to imprisonment for three years.

The offender cannot be arrested without a warrant.”

Unlike the Penal Code, the language of the Criminal Code in this section is ambiguous. However, it seems clear that for the action to be considered criminal, the supplier must be aware of  the intended use of the drugs and instruments.

Supplying such drugs for such use would also be considered criminal even if the woman is yet to be with a child.

Section 309 of the Criminal Code 2004 focuses on Death by acts done at childbirth to which the code states thus:

“When a child dies in consequence of an act done or omitted to be done by any person before or during its birth, the person who did or omitted to do such act is deemed to have killed the child.”

The provisions of Section 309 in our view are both vague and broad with little or no clarity as to what the consequences for the act. As such, it is feasible that any act can be said to fall within the scope of the Section, however small or big, has been done or not done, as long as it results in the death of a child. As vague and broad as this provision may be, it is clear as to what the law permits.

The law on abortion in both countries provides no circumstantial exceptions (e.g. rape) save for where the woman’s life is at risk. The law fails to consider situations that have led to women making the choice abort. Criminalizing the act, is taking away from women’s right to choice and autonomy. The law cannot and should not dictate on the choices women make concerning their bodies, especially if they are not aware of the events leading up to that decision.

Ogheneyome E. Okpow[/vc_column_text][/vc_column][/vc_row]

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