RETHINKING SEXUAL AND REPRODUCTIVE RIGHTS

AND HEALTH OF WOMEN IN NIGERIA: AN ARGUMENT

FOR THE REFORM OF THE ABORTION LAW IN NIGERIA.

BY
ALIU, FUNMILOLA
140601227

BEING A RESEARCH PROJECT SUBMITTED TO THE

FACULTY OF LAW IN PARTIAL FULFILLMENT OF THE
AWARD OF BACHELOR OF LAWS (LL.B) DEGREE OF THE
UNIVERSITY OF LAGOS, AKOKA, NIGERIA.

OCTOBER, 2019
 CERTIFICATION

This is to certify that the project titled: RETHINKING SEXUAL AND REPRODUCTIVE
RIGHTS AND HEALTH OF WOMEN IN NIGERIA: AN ARGUMENT FOR THE
REFORM OF THE ABORTION LAW IN NIGERIA submitted by ALIU FUNMILOLA
in partial fulfilment of the award of Bachelor of Laws (LL.B) Degree of the University of
Lagos, Akoka, Nigeria, is an authentic work carried out under my supervision and guidance.

……………………………………… ………………………………………..
DR. AKEEM BELLO DATE
(Project Supervisor)

……………………………………….. ………………………………………..
Aliu, Funmilola Khadijat DATE
140601227

ii
 DEDICATION

This project work is first and foremost dedicated to God Almighty, without whose guidance
and directions this project work would not have been completed.

I also dedicate this work to my parents, Mr. and Mrs. Aliu, and my brothers, Dr. Toyin Aliu,
and Mr. Femi Aliu, whose unending support served as a constant source of encouragement
and motivation to me throughout the journey of this project work.

Finally, this work is dedicated to every woman in Nigeria, who has suffered in one way or the
other, due to Nigeria’s restrictive abortion laws. Your struggle is not unnoticed.

iii
 ACKNOWLEDGEMENT

First and foremost, praises and thanks to God Almighty, for His showers of blessings,
inspiration and guidance throughout my research work.

I cannot express enough gratitude to my parents, Mr. and Mrs. Aliu, for their continuous love
and support to me, providing me with all I need to complete this project work. I also
acknowledge my first brother, Dr. Toyin Aliu, whose advice and guidance enabled me to
properly work out a scope for this project paper. Also, I acknowledge my second brother, Mr.
Femi Aliu, whose constant support and motivation provided a shining light in my times of
uncertainty.

I would like to express my deep and sincere gratitude to my project supervisor, Dr. Akeem
Bello, for giving me the opportunity to do this research and providing invaluable guidance
throughout this research. It was a great privilege and honor to work and study under his
guidance.

Special appreciation goes to the Lagos Model United Nations 2019 Conference (LMUN), the
platform on which I served as the Chair for the United Nations Entity on Gender Equality and
Women Empowerment committee, where my passion for gender equality, and my quest for
the proper treatment of women seeking to terminate their pregnancies began. I cannot but
thank my fellow staff for their immense contribution; Chizulu Uwolloh, Amirah Rufai,
Ogaku K. Agabi, Titilope Adedokun, Tanidabioluwa Idowu, Mbamalu Azukaego, and
Funmilayo Oyekanmi, as well as the many delegates of my committee who inspired and
impressed me with their diligent submissions. To my LMUN Family, from my Secretary-
General, Ipinnuoluwa Ade-Ademilua, to those I served with and under, I say thank you.

Finally, I extend my gratitude to every person who has supported me in this project work,
directly and indirectly. I thank Mr. Ibrahim Obadina for his advice and contribution to this
project topic and scope. Special appreciation goes to Reverend Father Gabriel Emeasoba,
whose wisdom and guidance assisted me a great deal in the completion of this project work.
My completion of this project would not have been possible without the help and support of
my friends and roommates. Your encouragement when the times got rough are much
appreciated and duly noted. My heartfelt thanks.

iv
 TABLE OF CONTENTS

Cover Page i

Certification ii

Dedication iii

Acknowledgement iv

Table of Content v

Table of Cases viii

Table of Statutes ix

Abstract x

CHAPTER ONE

1.0 Background of Study 1

1.1 Statement of Problem 1

1.2 Research Objectives 2

1.3 Research Questions 3

1.4 Methodology 3

1.5 Scope of Research 3

1.6 Clarification of Concepts 3

CHAPTER TWO: LITERATURE REVIEW

2.0 Introduction 4

2.1 The Abortion Debate and Conflicting Schools of Thought 4

2.1.1 Pro-Life Argument 4

2.1.2 Pro-Choice Argument 6

2.2 Opinions of Writers in Books and Law Journals 7

2.3 Conclusion 11

v
CHAPTER THREE: ABORTION IN NIGERIA

3.0 Introduction 12

3.1 Nigerian Criminal Law on Abortion 12

3.2 Judicial Decisions 15

3.3 Statistical Information of Abortion in Nigeria 16

3.4 Detrimental Effects of Restrictive Abortion Laws on the Physical Health of Women 17

3.5 Mental Health Consequences of Restrictive Abortion Laws 20

3.6 Unwanted Pregnancies as the Major Cause of Unsafe Abortions in Nigeria 22

3.6.1 Lack of Sex Education in Schools 22

3.6.2 Inadequate Use of Contraception and Family Planning in Nigeria 23

3.6.3 Sexual Violence 25

3.7 Factors Responsible for Unsafe Abortions 25

3.8 Conclusion 27

CHAPTER FOUR: INTERNATIONAL AND REGIONAL STANDARDS OF

ABORTION

4.0 Introduction 28

4.1 The Right to Abortion as a Woman’s Human Right 28

4.1.1 Women’s Right to Life 29

4.1.2 Women’s Right to Health 31

4.1.3 Women’s Right to Equality and Non-Discrimination 34

4.1.4 Women’s Right to Reproductive Self-Determination 38

4.1.5 Women’s Right to be Free from Cruel, Inhuman and Degrading Treatment 41

4.2 Comparative Analysis of the Right to Abortion in Other Jurisdictions 42

4.2.1 Abortion in South Africa 42

vi
 4.2.2 Abortion in the Netherlands 44

4.2.3 Abortion in Canada 47

4.3 Conclusion 49

CHAPTER FIVE: RECOMMENDATIONS AND CONCLUSIONS

5.0 General Overview and Summary 51

5.1 Recommendations 52

5.1.1 Legislative Reform of the Abortion Law 52

5.1.2 Judicial Activism and Liberal Interpretation of Laws 55

5.1.3 Maintenance and Establishment of Reproductive Health Clinics 55

5.1.4 Adequate Training of Medical Personnel 57

5.1.5 The Inclusion of Sexual Education in School Curriculum 57

5.1.6 Public Enlightenment and Education 58

5.1.7 Domestication of Treaties 59

5.2 Conclusion 59

vii
 TABLE OF CASES

NIGERIAN CASES
A. G. Ondo v. A. G. Federation (2002) 9 NWLR (Pt 772), 222 33

Commissioner of Police v. Modebe 1980 (1) NCR 367 16

R v. Idiong and Umo (1950) 13 WACA 30 15
State v. Ade-Ojo (1972) 12 CC.H.C.J. 27 16
State v. Njoku (1973) ECSLR 638 15

FOREIGN CASES

Head of Department, Department of Education, Free State Province v. Welkom High School
& another CCT 103/12 [2013] ZACC 25 36
Head of Department, Department of Education, Free State Province v. Harmony High School
& another CCT 103/12 [2013] ZACC 25 36
K.L. v. Peru U.N. Doc. CCPR/C/85/D/1153/2003 (2005) 39
L v. Lithuania App. No. 27527/03, 46 Eur. H.R. Rep. 22 (2008) 40
L.M.R. v. Argentina U.N. Doc. CCPR/C/101/D/1608/2007 (2011) 41
Lloyd Chaduka and Morgenster College v. Enita Mandizvidza 2002 (1) ZLR 72 (S) 37
Mfolo and Others v. Minister of Education [1992] (3) LRC 181 37
R v. Bourne (1938) 3 All ER 1953 14
R v. Edgal (1938) 4 WACA 133 14
R v. Morgentaler [1988] 1 SCR 30 8
R v. Poulton (1832) 5 C&P 329 9
R v. West (1848) Vol. 2 C&K ER 9
R.R. v. Poland 27617/04, Eur. Ct. H.R., para. 209 (2011) 42

Roe v. Wade 410 U.S. 113 8

Student Representative Council of Molepolole College of Education v. Attorney General,
[1995] (3) LRC 447 36
Tysiąc v. Poland 5410/03, Eur. Ct. H.R., para. 107 (2007) 39

viii
 TABLE OF STATUTES

NIGERIAN STATUTES
Child’s Rights Act 2003 19
Constitution of the Federal Republic of Nigeria 1999 22
Criminal Code Cap. C.38 LFN 2004 26
Penal Code Cap. P3 LFN 2004 26
Termination of Pregnancy Bill 1981 20
FOREIGN STATUTES
Canadian Charter of Rights and Freedom 1982 22
Choice on Termination of Pregnancy Act 1996 56
Constitution of South Africa 1996 51
Constitution of Zimbabwe 1980 51
Criminal Code of Canada 1892 22
Criminal Code of Netherlands 1881 58
Offences Against the Person Act 1861 29
INTERNATIONAL FRAMEWORK
African Charter on Human and People’s Rights (ACHPR) 1981 43
American Convention on Human Rights (ACHR) 1969 43
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
1979 43
International Covenant on Civil and Political Rights (ICCPR) 1966 43
International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966 43
Universal Declaration of Human Rights (UDHR) 42
Committee on the Economic, Social and Cultural Rights General Comment on the Right to
the Highest Attainable Standard of Health 45
Convention on the Rights of Child (CRC) 1989 43
International Conference on Population and Development (ICPD) 1994 52
Statement of the UN Committee on the Elimination of Discrimination against Women on
Sexual and Reproductive Health and Rights: Beyond the 2014 ICPD Review 46
United Nations Human Rights Committee’s General Comment on the Right to Life 44
World Population Plan of Action (WPPA) 1974 52
REGIONAL FRAMEWORK
Protocol to the African Charter on Human and Peoples Rights (MAPUTO Protocol) 43

ix
 ABSTRACT

The question of whether a woman has the right to terminate a pregnancy has fuelled one of
the most controversial debates in the world. Abortion is illegal in Nigeria except for the
purpose of preserving the life of the woman. As will be seen in this research project,
Nigeria’s criminal law on abortion has done more harm than good, as it leaves women no
other choice but to resort to unsafe procedures in terminating unwanted pregnancies. This
inevitably results in the death or health complications of many women, who may have fared
better in an abortion-friendly legal regime. The aim of this paper is to examine the effects of
Nigeria’s criminal law on abortion on the sexual and reproductive rights and health of
Nigerian women, in order to propose solutions and recommendations towards safeguarding
such rights. This paper seeks to answer the core question of the ways to ensure protection of
the sexual and reproductive rights of Nigerian women, highlighting and discussing the
benefits of legal and safe abortion in the country. This paper employs both a doctrinal and
comparative approach in achieving the aforementioned objective, and providing answers to
the problems stated above. At the end of this paper, the writer will show that there is an
urgent need for a reform of Nigeria’s law on abortion as well as a great need for tackling the
causes of unwanted pregnancies with solutions including but not limited to access to safe,
effective and affordable contraceptives.

x
 CHAPTER ONE

1.0 Background of Study

It is unfortunate that many women are still constantly being denied key sexual and
reproductive rights, that is, their right to enjoy control over and make decisions on their
sexual and reproductive health without discrimination.1 But perhaps, nowhere is this more
apparent than in Nigeria, where a woman cannot autonomously decide the number and timing
of children she wishes to have,2 and this is particularly as a result of the criminal law on
abortion in Nigeria, which makes women resort to unsafe abortion procedures. Despite the
unending controversial debate as to the morality or otherwise of abortion, millions of women
and young girls in Nigeria still engage in the practice, with over half of them dying or
suffering complications as a result of the unsafe measures they resort to. The only exception
permissible for abortions is the preservation of the woman’s life, but the law in Nigeria on
this is unclear as to what exactly may amount to ‘preserving the woman’s life’. There is an
urgent need to review and reform the law relating to abortion in Nigeria.

The essence of this paper is to examine the status of abortion in Nigeria, in line with regional
and international standards, while also considering the detrimental effects and impacts of
illegal abortion, as well as suggesting possible reforms and recommendations towards
safeguarding the sexual and reproductive health and rights of Nigerian women. This paper
will also focus on various ways of preventing unplanned pregnancies, being the major cause
for undergoing unsafe abortion, therefore emphasizing the importance of educating women
and men on contraceptives and family planning mechanisms, as well as the need for
affordable medical services and materials.

1.1 Statement of Problem

It is alarming that a large number of women either die or suffer from serious complications as
a result of undergoing unsafe abortion procedures. According to research done by the
Guttmacher Institute, an estimated 456,000 unsafe abortions are done in Nigeria every year,3

1
Tolu Ajiboye, “Rethinking Sexual And Reproductive Rights In Nigeria,” available at
https://www.thebookbanque.com/tbbnqsociety/sexual-reproductive-rights (accessed 27 June 2019)
2
Criminal Code, Cap C38 LFN 2004, s. 228-230; Penal Code, Cap. P3 LFN 2004, s. 232-234.
3
Akinrinola Bankole,“The Incidence of Abortion in Nigeria,” available at
https://www.guttmacher.org/journals/ipsrh/2015/10/incidence-abortion-nigeria (accessed 27 June 2019)

1
while an estimated number of 2,000 Nigerian women die annually of unsafe abortion.4 The
major problem is that the current anti-abortion law in Nigeria constitutes a serious threat to
safe abortion procedures thereby leaving women, especially uneducated or low-income
earning women, to resort to hazardous measures in terminating an unwanted pregnancy. Also,
not enough attention is being paid to the actual causes of these unwanted pregnancies in the
first place such as the lack of proper sex education amongst adolescents in schools, little
knowledge about contraceptives and family planning, and even when women are aware of
these birth control mechanisms, they are not easily affordable or accessible. Some health care
facilities have inadequately trained staff who are not skilled enough to perform safe abortion
services, while some women merely resort to harmful self-help activities. All these, coupled
with the criminality of abortion, only serve to violate women’s sexual and reproductive rights
and health.

1.2 Research Objectives

The overall objective of this research project is to examine the effects of criminal abortion in
Nigeria on the sexual and reproductive rights and health of Nigerian women, in order to
propose solutions and recommendations towards safeguarding such rights. Specific objectives
include:

i. To examine the legal framework prohibiting abortion in Nigeria as well as its effects
on the society.
ii. To explore the implications of restrictive abortion laws in Nigeria.
iii. To examine the causes of unwanted pregnancies, and the factors contributing to
unsafe abortions in Nigeria.
iv. To compare the status of abortion in Nigeria with regional and international standards,
as well as with its status in other jurisdictions.
v. To suggest possible reforms and make appropriate recommendations on how to
reduce unsafe abortions and its complications in Nigeria, and specifically, ways of
reducing unwanted pregnancies.

4
Urowayino Warami, “2,000 Nigerian women die annually of unsafe abortion,” Vanguard, 18 June 2019,
available online at https://www.vanguardngr.com/2019/06/2000-nigerian-women-die-annually-of-unsafe-
abortion-gynaecologist/(accessed 28 June 2019)

2
1.3 Research Questions

i. What is the current law dealing with abortion in Nigeria?

ii. What are the health and human rights implications of abortion being criminal in
Nigeria?
iii. What is the major cause of unwanted pregnancies in Nigeria and what are the factors
which contribute to the incidence of unsafe abortions?
iv. Are there regional or international laws, treaties or frameworks safeguarding the right
to safe abortions, and how is this right treated in other jurisdictions?
v. How can the incidence of unsafe abortions and its complications be reduced?

1.4 Methodology

The method of research shall be doctrinal as relevant legal rules, facts, problems and gaps
shall be thoroughly scrutinised to enable the writer form opinions and make a critical
evaluation of the subject matter. Also employed will be a comparative research analysis with
a number of countries chosen specifically for their liberal laws regarding abortion. Such
countries include South Africa, the Netherlands and Canada.

1.5 Scope of Research

The area of this study covers laws and policies relating to abortion in Nigeria. It also covers
statistics relating to unsafe abortion in Nigeria, and its major cause being unplanned
pregnancies. This paper focuses on the implication of unsafe abortion on various human
rights, especially the right to health and life. Also covered in this research project are
comparisons with regional and international standards such as international treaties, policies,
programmes etc.

1.6 Clarification of Concepts

Abortifacient – a drug which causes abortion.

Abortion – the deliberate termination of a pregnancy by a woman, usually before the 24th
gestational week.

Back-alley abortions – abortions done by unskilled individuals usually in secret places.

3
 CHAPTER TWO
LITERATURE REVIEW

2.0 Introduction

This chapter seeks to give a detailed insight into the laws and societal perceptions from
various social groups as well as studies conducted by outstanding researchers, with regards to
the current state of abortion in Nigeria, and its effects on the sexual and reproductive health
and rights of women. This chapter also gives a detailed analysis and critical review of
previous studies regarding the problem aforementioned, in an effort to identify and synthesise
what has been established, discredited or accepted, strengths and weaknesses of previous
arguments, areas of controversies and conflicts, unsolved problems and gaps, as well as
emerging trends and approaches. The purpose of this literature review is to justify the writer’s
need for embarking on this research journey. At the end of this chapter, the writer will show
how this research project departs from, supports or contributes to already existing literature
on the subject matter.

2.1 The Abortion Debate and the Conflicting Schools of Thought

Just like many other parts of the world, the topic of abortion has generated a highly
controversial debate in Nigeria with protagonists and antagonists aligned on seemingly
irreconcilable fronts. Based on popular terminologies, the two opposing sides of the abortion
debate are ‘pro-life’ and ‘pro-choice’. Simply put, the pro-life group holds the view that
abortion is unacceptable as it amounts to the destruction of the life of an unborn child, thus
favouring restrictive abortion laws. On the other hand, the pro-choice group canvasses the
liberalization of abortion laws to empower a woman to determine whether or not to carry a
pregnancy into full term or terminate it.

2.1.1 Pro-Life Argument

The major argument of pro-lifers is that human life begins at conception and therefore,
abortion is akin to murder as it is the deliberate act of taking of a life.5 But this argument
seems flawed as there is yet to be a universally acceptable answer as to when life actually
begins. Though, there is indeed medical evidence of the fact that, upon the moment of fusion
of human sperm and egg, a new entity comes into existence which is distinctly human, alive,

5
ThoughtCo., “Key Arguments From Both Sides of the Abortion Debate” available at
https://www.thoughtco.com/arguments-for-and-against-abortion-3534153 (accessed July 2 2019)

4
and an individual organism,6 however, the concept of human life and personhood are two
completely different things. Personhood is, to a large extent, determined by personal moral or
philosophical beliefs. Whereas, some believe that human life in the womb is a person, some
others believe that the foetus does not become a person until it is born, and therefore the right
to life cannot be attributed to it. The law may also determine who a person is, for example,
Section 307 of the Criminal Code of Nigeria provides that:

A child becomes a person capable of being killed when it has completely proceeded in
a living state from the body of its mother, whether it has breathed or not, and whether
it has an independent circulation or not, and whether the navel-string is severed or not.

This implies that Nigerian law does not ascribe personality to an unborn child until it has
been born, and thus terminating a pregnancy does not amount to murder, but rather, a
separate crime.7 The reasoning behind this is quite logical. A foetus cannot survive on its own
as it is fully dependent on its mother’s body until it is born.

The argument of pro-choicers is not about when life begins but about when, or whether, that
life deserves legal acknowledgment and protection.8 The life of the foetus is usually
discussed in contradistinction to the life of the mother, and ironically, not enough attention is
being paid to the life of the mother. We cannot claim to advocate right to life but go ahead to
completely disregard the life and health of the mother who carries the foetus in her body.
Assuming but not conceding that the foetus has a right to life, this right cannot necessarily
imply a right to live by threatening the life of someone else.9 Childbirth may be especially
threatening for women especially teenage girls who may not have strength to undergo it. The
law must strike a balance between the life of the mother and the potential life of the foetus,
and it is the contention of this research paper that the life of the mother prevails.

Another argument of the pro-lifers is that adoption is a viable alternative to abortion as it

accomplishes the same result.10 Adoption is not an alternative to abortion because it remains
the woman's choice whether or not to give her child up for adoption. 11 It is interesting to note

6
Rob Schwarzwalder, “The Best Pro-Life Arguments for Secular Audiences,” available at
https://www.frc.org/brochure/the-best-pro-life-arguments-for-secular-audiences(accessed July 2019)
7
Supra note 2.
8
Supra note 6
9
Seth Millstein, “How To Argue Pro Choice: 11 Arguments Against Abortion Access Debunked,”
https://www.bustle.com/articles/17141-how-to-argue-pro-choice-11-arguments-against-abortion-access-
debunked
10
Supra note 5
11
Ibid.

5
that under the Child’s Rights Act 2003,12 a married person must be at least 25 years old
before he or she can adopt a child, while a single person must be at least 35 years old before
he or she can adopt.13 The reason behind this particular restriction may be said to align with
the principle of ‘best interest of the child’ as articulated in Section 1 of the Act.14 A child
deserves the best kind of upbringing it can get, and this may most likely be provided by one
the law considers responsible enough to raise a child, hence the age requirement. It seems
quite absurd that if a 21 year old young woman wants to adopt a child, she cannot meet legal
requirements, probably because she may be considered too irresponsible to raise a child. Why
then does the law through its abortion provisions force young women to carry a pregnancy
into full term and raise a child that they may not be able to cater for?

2.1.2 Pro-Choice Arguments

The major argument for pro-choicers is that a woman has the right to control her own body.
The ability of a woman to control her body is critical to civil rights and thus, taking away her
reproductive choice is a violation of these rights. However the pro-lifers often counter this
argument with the idea that abortion is immoral, unethical and unjustifiable, as it amounts to
the deliberate killing of an innocent being,15 often citing religious beliefs in advocating
against abortion. But religion ought not to influence laws, considering the fact that laws are
universal while religion binds its adherents only.

Another argument of the pro-choice school is that abortion laws do more harm than good
because it only makes women resort to having clandestine abortions which are often done by
unskilled individuals under hazardous or dangerous conditions. Most of this ‘back-alley
abortions’ often lead to the death or severe medical complications of numerous women.
Despite this, one may ask, would it be okay for the society to legalize a crime just because
people might do it anyway? The answer to this lies in the fact that abortion bans are peculiar
cases. One could argue that it is an unjust law which ought not to be obeyed in the first place.
Alternatively, it could be argued that abortion bans violate several human rights and therefore
ought not to be recognized as law.

12
Act No. 26 of 2003, Child's Rights Act, 2003 [Nigeria], 31 July 2003, available at
https://www.refworld.org/docid/5568201f4.html [accessed 2 July 2019]
13
Ibid, s.129.
14
In every action concerning a child, whether undertaken by an individual, public or private body, institutions or
service, court of law, or administrative or legislative authority, the best interest of the child shall be the primary
consideration.
15
Campaign Life Coalition, “Pro-life Answers to Pro-Choice Arguments,” available at
https://www.campaignlifecoalition.com/pro-life-answers (accessed July 2 2019)

6
Finally, contrary to what pro-lifers may claim, abortions, when performed by trained
professionals, are one of the safest procedures in medicine, with a death rate of less than .01
percent.16 The risk of dying while giving birth is roughly 13 times higher. Abortions
performed by people without the requisite skills and training, however, are extremely unsafe.
An estimated 68,000 women die every year from back alley abortions, which are generally
most common when abortion is illegal and/or inaccessible.17

2.2 Opinions of Writers in Books and Law Journals

It is one of the recommendations of this paper that the grounds for abortion should be
expanded to include rape, incest, safeguarding the physical and mental health of the woman,
as well as possibility of fetal abnormality or deformity.18 While it is understandable that the
ground of fetal abnormality arose from the 1981 Termination of Pregnancy Bill,19 and is well
recognized in the international sphere, it raises some disturbing concerns. Does this mean that
abortion is justified if the child would be born with physical or mental disabilities? Does this
imply that children likely to be born with deformities are less deserving of a chance at living?
This seems to place more premium on the lives of able-bodied humans over those who are
handicapped, further reinforcing the unfair treatment constantly faced by persons with
disabilities in their daily lives. However, the argument of this paper is legal and safe abortion
for women regardless of her reasons.

In Omo-Aghoja,20 the historical development of the practice of abortion was put into
consideration, as well as various theological perspectives relating to it. An important thing to
note is the argument on whether abortion is a legal discussion or a moral, religious or
philosophical one.21 Constitutional scholars seem to believe it is a matter of the latter rather
than the former, and this can be seen from the fact that most objections to abortions are on
religious wrongs. Though there is nothing wrong with such religious-based reasons, imposing
personal religious convictions and forcing others to abide by religious beliefs they may not
share may be said to violate the right to freedom of thought, conscience and religion. Another

16
David A.G et. al., “Unsafe abortion: the preventable pandemic,” (2006) The Lancet Sexual and Reproductive
Health Series, Journal Paper of World Health Organization.
17
“Preventing Unsafe Abortion”, https://www.who.int/news-room/fact-sheets/detail/preventing-unsafe-abortion
(accessed July 2 2019)
18
Okagbue, Isabella, “Pregnancy Termination and the Law in Nigeria.” (1990) vol. 21, no. 4, Studies in Family
Planning, pp. 197–208. JSTOR, www.jstor.org/stable/1966614.
19
For a detailed review of the Bill, see I.E. Adi, “The Question of Abortion,” (1982) Nigerian Current Law
Review p. 191.
20
Omo-Aghoja L.O, et.al., “The Story of Abortion: Issues, Controversies and a Case for the Review of the
Nigerian National Abortion Laws,” (2010) Vol. 7 No. 4 East African Journal of Public Health.
21
Ibid, p.338

7
argument noted by Omo-Aghoja is that liberalizing abortion will lead to an increase in the
rate of abortion therefore overburdening the health-care infrastructure. However, the
situation in countries with liberalized abortion laws would say otherwise. Take the
Netherlands for example, which has unrestricted access to free abortion and contraception,
yet has one of the lowest abortion rates in the world.22 It is also important to note that such
countries are characterized by adequate family planning services as well as proper sex
education and easily accessible and affordable contraceptives, therefore reducing the need for
abortion services in the first place.23

Odunsi noted that there are three ways access to safe abortion may be ensured: by amending
existing laws and expanding them to accommodate more grounds upon which abortion may
be legally sought asides preserving the life of the woman, by legalizing abortion through a
fresh legislation or court ruling; or by expunging the existing restrictive provisions from the
country’s criminal framework.24 A shift from a legislative approach to a judicial approach
was suggested, and this would be done by challenging the constitutionality of the abortion
laws on grounds of human rights violations like was done in the United States of America
and Canada. In the US Supreme Court case of Roe v. Wade,25 access to abortion became an
issue of constitutional right in America. The court declared the abortion law in Texas (which
proscribed procuring or attempting abortion except on medical advice for the purpose of
saving the mother’s life) violated a woman’s constitutional right to privacy guaranteed in the
Ninth Amendment to the United States Constitution. Through Roe v. Wade, the US Supreme
Court legalized abortion in the country, which was not legal at all in many states and was
limited by law prior to the decision. In the landmark decision of R v. Morgentaler,26 the
Supreme Court of Canada held that the abortion provisions in the Criminal Code of Canada,27
was unconstitutional as it violated a woman’s right to security of person guaranteed under
Section 7 of the Canadian Charter of Rights and Freedom.28

22
Abuzer V.L, “Total number of abortions in The Netherlands goes down”
https://dutchreview.com/news/dutch/total-number-of-abortions-in-the-netherlands-goes-down/ (accessed 9 July
2019)
23
Ketting E.V, “Contraception in The Netherlands: the low abortion rate explained”, Patient Education and
Counselling, 1994; 23(3): 161–71..
24
B. Odunsi, “Abortion and the Law” in Irehobhude O. Iyioha and Remigius N. Nwabueze, Comparative Health
Law and Policy: Critical Perspectives on Nigerian and Global Health Law (2015), Ch. 9, p.212
25
410 U.S. 113.
26
[1988] 1 SCR 30
27
Section 251 of which permitted abortions only at accredited hospitals with the proper certification of approval
from the hospital’s Therapeutic Abortion Committee.
28
Ibid.

8
It seems that it might be a much better approach to ensure legal and safe access to abortion
through the courts rather than by legislative amendment. Previous cases of legislative
attempts have shown that such bills are always antagonized and are never eventually
passed.29 It is possible for the abortion provisions in our Criminal and Penal Codes to be
challenged for being unconstitutional on grounds of violation of the fundamental human
rights guaranteed in Chapter IV of the Nigerian Constitution. Pro-life activists have argued
that the foetus has a right to life, while the pro-choice activists claim the woman’s right to
bodily freedom and privacy amongst other rights, prevail over any right the foetus may have.
The bone of contention has always been which right deserves to prevail over the other. But it
is pertinent to note that our statutory provisions do not even recognize the foetus as a person
who may be entitled to fundamental human rights in the first place. An unborn child cannot
be recognized as a person capable of being killed by virtue of Section 307 of the Criminal
Code which provides that

A child becomes a person capable of being killed when it has completely proceeded in
a living state from the body of its mother, whether it has breathed or not and whether
it has an independent circulation or not and whether the navel string is severed or not.

In the case of R v. Poulton,30 it was held that an unborn child is incapable of being killed and
it is not sufficient that the child breathes in the progress of the birth, as the child may die
before the whole delivery takes place. In this case, the jury found the child not to be born
alive, and therefore the mother could not be guilty of murder. But in R v. West,31 while an
abortion was being carried out, the baby was delivered prematurely and it was alive.
However, due to external circumstances, the baby died. It was held that in as much as the
baby proceeded alive from its mother’s womb, it was a human being capable of being
murdered. Thus, the accused was convicted for murder.

As can be seen from the foreign cases above,32 abortion laws have been declared to be
unconstitutional for contradicting the fundamental human rights enshrined in the respective
constitutions. The Nigerian Criminal and Penal Codes can as well be challenged for violating
certain rights in our Constitution. One of such rights, as noted by Odunsi, is the right to
freedom of religion as contained in Section 38. Arguments against abortion are often

29
Infra note 78
30
(1832) 5 C & P 329
31
(1848) Vol. 2 C & K ER
32
Roe v. Wade; R v. Morgentaler

9
predicated on grounds of religious beliefs,33 which play a prominent role in Nigeria’s
restrictive abortion laws especially considering the fact that there have been religious based
protests in thwarting attempts at reforming the abortion law in Nigeria.34 It is very disturbing
that a State which claims to be religiously neutral is still very much influenced by religious
dictates of specific religions. Religion is a personal thing between man and his God. The law
should not therefore be influenced by religious dictates. There ought to be a strict separation
between law and religion, as religious doctrines need not be elevated to the status of law
governing an entire society. It is highly unfair to non-adherents of a particular religion to be
governed by the dictates of another religion, for this in itself contradicts the freedom of
religion guaranteed in Section 38. More aptly put by Odunsi,

However, religious right is not a one-sided affair. Thus, on another side, the right to
religion entitles other citizens not to subscribe to, or be subjected to the religious
ethos of the antagonists of liberalized abortion. Such people may not adhere to any
religion at all, or may embrace religious beliefs that are accommodating to abortion.
In that light, it would amount to imposing the religious outlook of antagonists on
others as well as predicating state policy on religious dictates of some groups in a
country that constitutionally disavows state religion.35

As noted in Okagbue, even if abortion was decriminalized in Nigeria, this may not
significantly reduce the incidence of abortions in Nigeria as legalizing abortions does not
automatically ensure the availability of services at the earliest possible stage of pregnancy.36
It may take some time for practical realities to conform to the new legal standard. Also, it
may take a while to ensure everything is properly in place for safe abortions to occur, for
example, practical policies, adequately trained staff in qualitative health care facilities and so
on. Bureaucratic procedures may also pose a challenge for having abortions without delay.
Tackling all these may take some time before Nigeria would eventually witness a significant
reduction in the incidence of abortion despite a change, if any, in the current abortion laws.
Thus, the legalization of abortion does not automatically ensure access to safe abortion as this
33
“Religion and abortion”, available at http://www.bbc.co.uk/ethics/abortion/religion/religion.shtml (accessed
10 July 2019)
34
‘AFRICA: Church Leaders an Obstacle To Preventing Maternal Deaths’ Inter Press Service News Agency, 12
November 2010, available at http://www.ipsnews.net/2010/11/africa-church-leaders-an-obstacle-to-preventing-
maternal-deaths/ (accessed 13 July 2019); ‘Catholic Bishops kick against Imo abortion law’ Vanguard News, 23
September 2013, available at https://www.vanguardngr.com/2013/09/catholic-bishops-kick-against-imo-
abortion-law/ (accessed 13 July 2019)
35
Supra note 24 at p. 211
36
Supra note 18 at p. 205

10
may still be hampered by stigmatization due to unchanging societal beliefs and attitudes
towards abortion. Ensuring safe abortion for women in Nigeria transcends mere
decriminalization of abortion or the reform of laws from restrictive to liberal. This is why it is
submitted that there needs to be a complete and thorough engagement of every possible
avenue in the reformation process of abortion in Nigeria. There needs to be a complete re-
orientation of Nigerians when it comes to this sensitive issue. Also, more tolerant attitudes
need to be inculcated in children through the educational system as well as from their homes.
We need to be more tolerant of those who may have opinions which may not align with ours,
especially when it comes to moral, ethical, philosophical or religious matters.

2.3 Conclusion

The purpose of this chapter as stated earlier in the introduction, was to critically assess
existing literature as regards the state of abortion in Nigeria, in an effort to justify the writer’s
need for embarking on this research journey by evaluating what has been established,
accepted or disagreed upon, problematic areas of controversies as well as unsolved gaps and
emerging trends as regards this topic.

This second chapter has been able to evaluate the current literature on this subject, and
although current literature will show that there is a never-ending heated debate as to whether
abortion should be legal or not, this writer has been able to identify the key arguments of
opposing sides to the debate, pointing out the flaws and strengths of both sides, and
eventually elevating the side of the pro-choice school over that of the pro-life. This is based
on the fundamental opinion that a woman’s rights and freedoms must prevail over the highly
controversial ‘right’ a foetus may have. The chapter also recommended the use of legislative
innovation by the expansion of the grounds of abortion, as well as judicial intervention
through liberal interpretations of the exception, in line with foreign jurisdictions, in
combatting the problems stated above. Regardless of societal or religious attitudes towards
abortion in Nigeria, it is the fundamental obligation of the State to respect, protect, fulfil and
promote the sexual and reproductive rights and health of women. It is not enough to deal with
the problem legally, there is need to combat social problems as well. Nigeria, being a socially
and religiously heterogenous country, lacks the vital feature of tolerance, and respect for
human rights of everyone. Once we can attain a level of national tolerance for the opinions
and acts of others which do not harm anyone else such as abortion, this would be a vital step
in combating the stigmatization of abortion in Nigeria.

11
 CHAPTER THREE
ABORTION IN NIGERIA

3.0 Introduction

This chapter seeks to provide a detailed analysis of the status of abortion and other related
matters such as unwanted pregnancies and the use of contraceptives in Nigeria. This chapter
will examine the legal framework prohibiting abortion in Nigeria, as well as judicial
decisions on the matter. This chapter will show that there have not been numerous judicial
decisions concerning abortion in Nigeria, and that the law prohibiting is largely an
impediment to the health of Nigerian women as it is rarely enforced, but still has the negative
effect of preventing women from freely accessing legal and safe abortion. In line with this,
the various health and human rights implications of criminal abortion on Nigerian women
will be examined. However, the focus would not only be on the results and effects of abortion
in Nigeria. There are many causes of unwanted pregnancies, some of which will be discussed
in this chapter, as well as the many factors which contribute to the incidence of unsafe
abortions in Nigeria. The purpose of all these is to bring to light the plight of Nigerian women
who decide to terminate pregnancy for their various personal reasons dependent on the
circumstances of their lives. The aim of this chapter is to encourage readers to empathize with
women who undergo abortion procedures, as opposed to enforcing the persistent taunts and
social castigation these women face for their reproductive decisions.

3.1 Nigerian Criminal Law on Abortion

Abortion in Nigeria is governed by two laws; the Penal Code for Northern Nigeria and the
Criminal Code37 for Southern Nigeria, which both make abortion illegal. Sections 228, 229
and 230 of the Criminal Code are the provisions dealing with abortion.

228. 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.

229. Any woman who, with intent to procure her own miscarriage, whether she is or
is not with child, unlawfully administers to herself any poison or other noxious thing,
or uses any force of any kind, or uses any other means whatever, or permits any such

37
Supra note 2.

12
 thing or means to be administered or used to her, is guilty of a felony, and is liable to
imprisonment for seven years.

230. Any person who unlawfully supplies to or procures for any person anything
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.

Meanwhile, the Penal Code criminalizes abortion in Sections 232, 233 and 234.

232. Whoever 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
woman, be punished with imprisonment for fourteen years or with fine or both.

233. Whoever with intent to cause miscarriage of a woman, whether with child or not,
does any act which results in the death of such woman shall be punished with
imprisonment for fourteen years.

234. Whoever uses force to any woman and thereby unintentionally causes her to
miscarry, shall be punished-

(a) with imprisonment for a term which may extend to three years or with fine or with
both, and

(b) if the offender knew that the woman was with child, he shall be punished with
imprisonment for a term which may extend to five years or with fine or with both.

From the foregoing sections, we can see that Nigeria is not an abortion-friendly country.
Section 228 of the Criminal Code imposes criminal liability on individuals who try to procure
abortion on a woman while Section 229 imposes criminal liability on the woman who
procures her own abortion. This criminal liability stands regardless of whether the abortion
was successful or not. These sections reflect the reason why there are not a lot of skilled
abortionists in the country as health care facilities cannot expressly and legitimately perform
abortions without the risk of being prosecuted. Thus, most abortions are clandestinely done,
often by unskilled individuals or with dangerous instruments. It is the contention of this paper
that these provisions are unnecessarily harsh as they amount to unreasonable violations of
constitutionally guaranteed and internationally recognized rights.

13
Curiously, the Penal Code expressly permits abortions to be done for the purpose of saving a
woman’s life, however, the Criminal Code does not provide for this. Does this mean that an
abortion done to save a woman’s life in Southern Nigeria is illegal as well? Recourse may be
made to Section 297 of the Criminal Code which provides thus:

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 means that any surgical operation upon an unborn child so as to preserve the life of the
mother will not make the person who performs it criminally liable. Thus, abortions done to
save the life of a woman, albeit through surgical means, are permitted under the Criminal
Code. However, this section is quite narrow as it is limited to ‘surgical operations’ alone. 38
Therefore, other acts covered in Sections 228 and 229 such as unlawful administration of
poisons or noxious substances, or the use of force of any kind, cannot come within the scope
of Section 297 and thus, anyone involved in procuring abortion through such means will still
be guilty of an offence even if done to save the woman’s life.

However, this position of the Criminal Code is supported by R v. Edgal,39 four persons were
charged under Section 230 of the Criminal Code for unlawfully supplying drugs to procure an
unlawful abortion. The West African Court of Appeal, opining that Section 297 applied to
surgical operations only, then adopted the decision in the English case of R v. Bourne,40 that
no abortion is unlawful when done to preserve the pregnant woman’s life. R v. Bourne
however went a bit further in its interpretation of ‘preserving the life of the mother’ by
defining life as inclusive of physical and mental health. In the case, a 15 year old girl was
raped by four men. A skilled surgeon performed the operation on her, and was charged with
unlawfully procuring the abortion of the girl under the Offences Against the Person Act
1861.41 The court held that it was not unlawful to procure an abortion for the purpose of
preserving the life of the mother. In describing what amounts to ‘preservation of the life of

38
According to Bouviers's Law Dictionary 3209 (8th ed. 1984), the term surgery, comes from two Greek words
signifying the hand and work, meaning a manual procedure by means of instruments....the practice of medicine,
in contradistinction to the practice of surgery, denotes the treatment of disease by the administration of drugs or
other sanative substances.
39
(1938) 4 WACA 133
40
(1938) 3 All ER 195
41
24 & 25 Vict c 100, s.58

14
the mother,’ Macnaghten J. made reference to physical and mental health of the woman but
nevertheless, the court in R v. Edgal did not make mention of this interpretation, simply
holding that abortions are legally permitted to save the life of the woman. This is a narrow
interpretation of the exception of ‘preservation of the mother’s life’ for it implies a
preservation of her life from instant death, and not death which may occur as a result of her
physical or mental health being negatively affected. This draws a thin line between ‘danger to
life’ and ‘danger to health’ as was noted in R v. Bourne. It cannot be disregarded that there
are certain cases where a danger to health may actually constitute a danger to life, for
example, cancer. There is a need for a more liberal interpretation of this exception under
Nigerian law.

3.2 Judicial Decisions

There are not many reported court decisions on abortion contrary to what one may think,
especially considering the number of abortions performed on Nigerian women annually.42
This supports the observation that ‘abortion laws may be the most heartily defended but least
enforced laws on national statute books.’43 This does not mean there are not a lot of
prosecutions on the matter as there may be several unreported decisions although their
number is not known. A few of the reported decisions will be highlighted and discussed
below.

In R v. Idiong and Umo,44 the two defendants were convicted of murder by the trial court, on
grounds that the first accused had obtained the services of the second accused, a native
doctor, to procure an abortion by the administration of native medicine resulting in the death
of the pregnant woman. On appeal, the court found that the second accused had not acted
with the intent to procure an abortion on the woman, as he honestly believed the medicine he
administered was needed to relieve the pain that the deceased was suffering from. The first
accused was however found criminally responsible for causing the abortion of the woman but
not for murder because he was not aware that the act of second accused was likely to
endanger life as required under Section 316(3) of the Criminal Code. In State v. Njoku,45the
court interpreted the words ‘poison or other noxious thing’ in Section 228 of the Criminal

42
Supra note 3.
43
Supra note 23.
44
13 W.A.C.A. 30 (1950)
45
E.C.S.L.R. 638 (1973)

15
Code, holding that any substance having a harmful effect, whether or not it is an abortifacient
is a noxious thing.46

It seems that prosecutions are most often done when the pregnant woman has died and the
accused is arraigned on a charge of murder or manslaughter, with abortion sometimes but not
always being charged alternatively. In cases where the pregnant woman was alive, she served
as a prosecution witness.47 Where the accused persons were convicted, sentences were
usually light. The accused in two of the cases, R v. Edgal and State v. Njoku, received
sentences ranging from three to six months imprisonment for unlawfully supplying drugs to
procure abortion to unlawfully administering drugs with the intent to procure abortion. In
other cases where the death of the pregnant woman had occurred, defendants were sentenced
to five years imprisonment, as seen in State v. Ade-Ojo48 and R v. Idiong and Umo. The case
of Commissioner of Police v. Modebe49 involved a medical practitioner who was later
acquitted. Though the woman had died, the accused’s defence was that he was in fact treating
an incomplete abortion in light of evidence that the deceased had tried to procure her own
miscarriage by taking some pills prior to visiting the doctor.

In light of the foregoing, it seems that cases regarding abortion are either not seriously taken,
or they are underreported. The secretive nature of activities of unqualified individuals may
probably explain the reason for the infrequent enforcement of abortion laws. The pregnant
woman who seeks their services would obviously not make a formal complaint, since she
may implicate herself, or expose herself to societal condemnation. A review of the
abovementioned cases merely confirms that the enforcement of the law on abortion widely
contradicts the practice and modern realities of abortion in Nigeria.

3.3 Statistical Information of Abortion in Nigeria

Despite the fact that abortion in Nigeria is criminal, this does not stop women and girls from
resorting to usually unsafe measures to terminate unwanted pregnancies. The rate at which

46
In this case, the accused persons were tried for supplying a pregnant woman with a powdered substance, after
which she had a miscarriage eight hours later. There was no evidence as to what the powdered substance might
have been.
47
Supra note 44.
48
(1972)12 CC.H.C.J. 27. In this case, a man hired two medical practitioners to perform an abortion on his
girlfriend. The man was charged and convicted, but the practitioners were not charged since they acted as
prosecution witnesses. However, this does not mean that the conduct of the doctors was legally permissible.
They merely escaped on a legal technicality, which was that the State needed independent evidence to prove its
case which largely depended on the evidence of the man or the practitioners. The Court condemned their
conduct, with the presiding judge promising to send a copy of the judgment to the Attorney General and the
Nigerian Medical Council for appropriate disciplinary actions against the practitioners.
49
1980 (1) NCR 367

16
unwanted pregnancies and unsafe abortions occur in Nigeria is alarming, and this is largely as
a result of low level of contraceptive use. Because of Nigeria’s low contraceptive prevalence,
a substantial number of women have unintended pregnancies, many of which are resolved
through clandestine abortion, despite the country’s restrictive abortion law. 50 The first
national study to examine the incidence of abortion estimated that in 1996, about 610,000
abortions occurred in Nigeria.51 A decade later, another study noted that if the abortion rate
had not changed since 1996, then 760,000 abortions would have occurred in 2006, given the
increase in Nigeria’s population during this period.52 Fast forward to 2012, where an
estimated 1.25 million induced abortions were performed, with an equivalent rate of 33
abortions per 1,000 women aged 15–49. 56% of unintended pregnancies were resolved by
abortion. About 212,000 women were treated for complications from unsafe abortion,
representing a treatment rate of 5.6 per 1,000 women of reproductive age, and an additional
285,000 experienced serious health consequences but did not receive the treatment they
needed.53 Even in recent times, the situation does not seem to be getting any better. A survey
conducted by the Performance Monitoring and Accountability (PMA2020) in collaboration
with Bill and Melinda Gates Foundation has shown that Nigerian women committed about
2.7 million abortions in 2017.54 The survey also showed that the annual incidence of likely
abortions in Nigeria that year was 41.8 per cent per 1000 women aged, 15 to 49, which is
nearly 1.8 million abortions. But when including information related to the experience of
respondents closest confidants, the rate of likely abortions in Nigeria rose to 2.7 million.55

3.4 Detrimental Effects of Restrictive Abortion Laws on the Physical Health of Women

Unsafe abortion impacts every level of Nigerian society. It compromises the health and well-
being of women, thereby compromising the well-being of their families and communities. It

50
Akinrinola Bankole, Isaac F. Adewole, Rubina Hussain, Olutosin Awolude, Susheela Singh and Joshua O.
Akinyemi, ‘The Incidence of Abortion in Nigeria’, International Perspectives on Sexual and Reproductive
Health, (2015), 41(4):170–181, doi:10.1363/4117015, available at
https://www.guttmacher.org/journals/ipsrh/2015/10/incidence-abortion-nigeria (accessed 31 August 2019)
51
Ibid.
52
Ibid.
53
Ibid.
54
Chijioke Jannah, ‘Nigerian women committed 2.7m abortions in 2017 – Study’, available at
https://dailypost.ng/2018/09/21/nigerian-women-committed-2-7m-abortions-2017-study/ (accessed 2 September
2019)
55
Ibid.

17
also imposes a tremendous burden on Nigeria’s health care system, as post-abortion care
diminishes the system’s capacity to provide other services.56

Unsafe abortion is a major cause of the death of women. Notwithstanding the high
probability of death, several women still risk their lives undergoing unsafe abortions, rather
than having the child. The harsh reality is that women get unsafe abortions done, and more
than half of them die from it, especially due to the dangerous modes of terminating
pregnancies that are carried out in this day and time. As at 2008, it was estimated that unsafe
abortions account for at least 13%, and possibly 30–40%, of maternal deaths in Nigeria. An
estimated 142,000 women are treated annually for abortion-related complications; 2% of
them, which is equivalent to more than 3,000 women, die from such complications.57 Earlier
in 2019, at the capacity building workshop for journalist on Sexual Reproductive Health and
Rights (WSRHR) organized by International Project Assistance Services (IPAS) Nigeria, an
international NGO, it was reported by IPAS that Nigeria loses about 10,000 women yearly to
unsafe abortions.58 According to Dr. Christopher Lamai, the Head of Department of
Obstetrics and Gynaecology, Federal Teaching Hospital, Gombe, no fewer than 2,000
Nigerian women die of unsafe abortion annually, with the Northeast recording the highest
rate.59 He said the rate contributed to 13 per cent of mortality in the country as many women
died from abortion more than malaria. According to him, every eight minutes women die of
unsafe abortion while an estimated 220,000 children are left motherless annually as a result
of abortion related death.60 According to a recently released NDHS 2018 data state that ten
percent (10%) of maternal deaths in Nigeria is due to unsafe abortion.61 Every day about 111
women and girls in Nigeria die due to preventable pregnancy and child birth related
complications (every hour five women die) and majority of those that die are young
women.62 Nigeria accounts for one in nine maternal deaths world wide and 30 per cent of

56
Sudhinaraset M, ‘Reducing unsafe abortion in Nigeria’, (2008) In Brief, New York: Guttmacher Institute, No.
3.
57
Henshaw SK et al., ‘Severity and cost of unsafe abortion complications treated in Nigerian hospitals,’
International Family Planning Perspectives, 2008, 34(1): 40–50.
58
‘Nigeria loses 10,000 women yearly to unsafe abortion’, Punch, 9 February 2019. Also available at
https://punchng.com/nigeria-loses-10000-women-yearly-to-unsafe-abortion/ (accessed 10 September 2019)
59
‘2,000 Nigerian women die annually of unsafe abortion’, available at https://www.pulse.ng/news/local/2000-
nigerian-women-die-annually-of-unsafe-abortion/p5lq0l4 (accessed 10 September 2019)
60
Ibid.
61
'Nigeria: Police Accused of Raiding Family Planning Clinic’, https://allafrica.com/stories/201905230779.html
(accessed 10 September 2019)
62
‘How to end unintended pregnancies in minors’, available at http://leadership.ng/2019/09/09/how-to-end-
unintended-pregnancies-in-minors/ (accessed 10 September 2019)

18
such deaths can be prevented by increasing access to and uptake of family planning.63
Despite the aforementioned statistic, there is every possibility that the actual number of
affected women may be higher than this because most of the reports do not include records of
women who die before getting to a hospital. Nevertheless, the information already provided
for is enough to indicate that there is an urgent need to address the problem of unsafe
abortions.

Asides maternal mortality, Nigerian women experience a variety of complications as a result

of unsafe abortions. These could be both early, or late complications, and the severity of the
complications is usually dependent on the way the abortion was carried out. The
complications are more severe among women that use traditional remedies, and less among
those that use injections or tablets.64 The most common early complications of unsafe
abortion are hemorrhage, sepsis, uterine perforation, bowel perforation, trauma to the cervix,
mostly due to the instruments used, acute renal failure, bladder injury, deep vein thrombosis,
tetanus, bowel fistulae and death from anesthesia.65 Sepsis is the commonest early
complication of unsafe abortion.66 It normally manifests itself with high-grade fever and
purulent offensive vaginal discharge and it mostly arises due to use of unsterilized
instruments by quacks or by the women themselves.67 Other complications include retained
pregnancy tissue, infection, shock, anemia, intra-abdominal injury (including perforation of
the uterus and damage to the cervix or bowel) and reactions to chemicals or drugs used to
induce abortion. Other long-term medical problems such as chronic pelvic pain or pelvic

63
Ibid.
64
Yau Garba Abbas, ‘Causes and Impact of Unsafe Abortion’, 50th International Course in Health
Development (ICHD) September 16, 2013 – September 5, 2014;
65
Ibrahim I.A. et al., “Patterns of Complicated Unsafe Abortion in Niger Delta Teaching Hospital Okolobiri; A
Four Year Review,” (2011) 11 Nigerian Health Journal, no. 4;
Bankole A et al., “Unwanted Pregnancy and Induced Abortion in Nigeria: Causes and Consequences,” New
York: Guttmacher Institute, 2006;
Okonufua F, “Clinical Consequences of Unsafe and Induced Abortion and their Management in Nigeria; A
Seminar Prevention of Morbidity and Mortality from Induced and Unsafe Abortion in Nigeria,’ (1991)
Population Council, pp.19-28;
Rehan, “Cost of the Treatment of Complications of Unsafe Abortion in Public Hospitals,’ (2011) Journal of
Pakistani Medical Association, pp. 61:169.
66
Sepsis is a serious condition resulting from the presence of harmful microorganisms in the blood or other
tissues and the body’s response to their presence, potentially leading to the malfunctioning of various organs,
shock, and death.
67
Ibrahim IA et al., “Patterns of Complicated Unsafe Abortion in Niger Delta Teaching Hospital Okolobiri; A
Four Year Review,” (2011) 11 Nigerian Health Journal, no. 4.

19
inflammatory disease,68 an increased risk of ectopic pregnancy,’69 and infertility may result if
complications are not promptly or properly treated.

As can be seen from the above, unsafe abortion has so many dire consequences for women.
But despite these health risks and life threatening complications caused by clandestine
abortions, women continue to procure them. One cannot logically argue that any woman
would want to go through such unsafe abortions willingly, as a decision to procure an unsafe
abortion, is very well a risk of death. The law therefore, ought to protect women from the risk
of death and health problems by providing necessary sexual and reproductive health services.
This could either be by way of ensuring access to legal and safe abortion and post-abortion
services, or by ensuring access to safe, effective and affordable contraceptives, amongst other
approaches.

3.5 Mental Health Consequences of Restrictive Abortion Laws

Usually, the impact of restrictive abortion laws is more discussed in relation to the physical
and bodily dangers women are exposed to in the course of procuring illegal and unsafe
abortions, but not enough attention is paid to the mental and psychological distress these laws
directly or indirectly put women through. A large number of women do not procure these
unsafe abortions, and end up carrying their unwanted pregnancies to full term. Several studies
have shown that unwanted pregnancies cause a lot of psychological damage to the pregnant
women involved. The aim of this part of this project paper is to bring to fore, the negative
effects these restrictive abortion laws have on women, with a bid to reducing the societal
condemnation and further ostracization of women who procure abortions, or individuals who
perform them.

Restrictive abortion laws either force women to carry the unwanted pregnancies to full term,
or force them to procure unsafe abortions. Both options go a long way in affecting the mental
health of the women significantly. In fact, unwanted pregnancies alone cause a lot of mental
agony to the pregnant woman, which is further complicated by her inability to terminate it
legally and safely. Unwanted pregnancy has consistently proven in several studies to be one

68
“Pelvic inflammatory disease (PID) is an infection of the woman’s reproductive organs (uterus, fallopian
tubes and ovaries) and upper genital tract”; Center for Disease Control (CDC), ‘Pelvic Inflammatory Disease,’
available at http://www.cdc.gov/std/pid/stdfact-pid.htm (accessed 10 September 2019)
69
“Ectopic pregnancy is a pregnancy that occurs outside the uterus (womb) which is considered life threatening
to the woman”; University of Maryland Medical Center, ‘Definition of Ectopic Pregnancy,’ available at
http://umm.edu/Health/Medical/Ency/Articles/Ectopic-pregnancy (accessed 10 September 2019)

20
of the main risk factors associated with the development of depression during pregnancy,70
and postpartum,71 and with lower levels of psychological well-being during pregnancy,
postpartum and in the long term.72 Various studies have specifically shown that women are at
a greater risk for suffering negative health consequences during and after an unwanted
pregnancy.73 According to Eastwood, there’s a greater incidence of postpartum depression
symptoms among women with an unwanted pregnancy.74 Meanwhile, Keng found that there
is a 40% greater incidence of high levels of psychological stress and three times greater
incidence of high levels of depressive symptoms among those with an unwanted pregnancy. 75
Edwards discovered that there was twice the risk of postpartum depression among women
with an unwanted pregnancy compared to women who wanted pregnancy.76 Barber provides
a more long-term look at how an unwanted pregnancy affects the mental health of women
through a 31-year study performed on 1113 women in the United States. This study showed
greater scores of depressive symptoms and lower indicators of happiness among women who
reported giving birth to and raising an unwanted child in the 1960s, when abortion was
illegal.77 It is possible that these findings may have been influenced by various personal
circumstantial factors for example, low socioeconomic status, absence of a partner, low
educational level, drug abuse or the presence of violence, in which case the termination or
continuation of a pregnancy would not factor in as a health risk.78

Not only are these mental effects felt when women are forced to continue with unwanted
pregnancies, they are also pervasive in situations when the pregnancies are terminated. This
is why there is the need for post-abortion care and counselling. Many women often battle
various mental reactions or disorders after terminating a pregnancy, for which they need
appropriate medical attention. Their case is further complicated when the abortion procedure
70
Bunevicius R. et. al., “Psychosocial risk factors for depression during pregnancy.” Acta Obstetricia et
Gynecologica Scandinavica, 2009;88(5):599-605.
71
Rich-Edwards J.W. et. al., “Sociodemographic predictors of antenatal and postpartum depressive symptoms
among women in a medical group practice.” Journal of Epidemiology and Community Health,. 2006 Mar;
60(3):221-7.
72
Barber J.S., Axinn W.G., Thornton A. “Unwanted childbearing, health, and mother-child relationships.”
Journal of Health and Social Behavior, 1999 Sep; 40(3):231-57.
73
Logan C., Holcombe E., Manlove J., Ryan S. “The consequences of unintended childbearing.” The National
Campaign to Prevent Teen and Unplanned Pregnancy. Child Trends, INC, May 2007.
74
Eastwood J.G., Phung H., Barnett B. “Postnatal depression and sociodemographic risk: factors associated
with Edinburgh Depression Scale scores in a metropolitan area of New South Wales, Australia.” Australian and
New Zealand Journal of Psychiatry, 2011, Oct 22.
75
Lau Y., Keung D.W. “Correlates of depressive symptomatology during the second trimester of pregnancy
among Hong Kong Chinese.” Social Science & Medicine. 2007 May; 64(9):1802-11.
76
Supra note 71.
77
Supra note 72.
78
Grupo Médico por el Derecho a Decidir - Colombia (Global Doctors for Choice Network), Unwanted
Pregnancy, Forced Continuation of Pregnancy and Effects. Position Paper, December 2011, p.11

21
was unsafe, as they may have to battle physical problems in addition to their mental
disorientation. Psychological reactions to terminating an unwanted pregnancy include relief,
denial, anger, doubt, guilt, shame, depression, anxiety, somatisation and flashbacks.79
Sometimes, it may affect the bond between a mother and her other children, or encourage the
mistreatment of other children by the mother.80 These reactions, and several other negative
consequences of abortions, necessitate the existence of treatments and support structures,
including psychological therapy and counselling, for women who may need them. For
example, in Belgium and France, “Hope Alive” offers the therapy course designed by Philip
Ney.81

3.6 Unwanted Pregnancies as the Major Cause of Unsafe Abortions in Nigeria

The major cause of unsafe abortion in Nigeria is the incidence of unwanted pregnancies, for
if there were no such pregnancies, there would be no need to resort to unsafe abortions. What
then causes these unwanted pregnancies?

3.6.1 Lack of Sex Education in Schools

In Nigeria, sex education does not seem to be rampant, as parents barely speak to their
children about it until shortly before marriage. The thinking is that, if children are exposed to
the sexuality education at an earlier age, it may increase promiscuity even though evidence
has shown that it does not.82 The irony is that young people now engage in sexual activities at
an earlier age than their parents did in their youth, and they have easy access to sexual
materials and information. Most Nigerians do not like to openly discuss sexual matters, and
this is because Nigerians like most African countries are culture bound.83 Sex education has
suffered a lot of setback in its proper implementation in schools because of the multicultural
nature of the Nigerian society. This is hardly surprising because individuals are all products
of their culture.84 Even the attitude of teachers towards the subject varies. A study conducted
in Lagos shows that older and more educated teachers are of the opinion that sex education

79
Laetitia Pouliquen, “The Psychological Consequences of Abortion”, Dossier of the European Institute of
Bioethics, available at https://www.ieb-eib.org/ancien-site/pdf/20170215-en-consq-psy-abortion.pdf
80
Relationship between abortion and child abuse by Philip G. Ney, MD, in Canadian Journal of Psychiatry –
Vol. 24, 1979
81
Belgium: www.hopealive.be; France: Unité de Ressources pour la Restauration de la Dignité de la Personne
[Resource Unit for Restoring Human Dignity], e-mail: u2rdp@aol.com.
82
Dienye, VU 2011, ‘The Educational and Social Implications of Sexuality and Sex Education in Nigerian
Schools,’ African Journal of Social Sciences vol. 1, no. 2, pp. 11 -19.
83
This could be because our culture hardly encourages conversations between children and adults. Most times,
what is done is talking down to children or ordering them.
84
Ibid.

22
will really benefit the students, while the younger ones believe that introducing sex education
to secondary schools, will encourage promiscuity and its social consequences.85

Sex education is very important, especially considering the fact that young people nowadays
engage in sexual relations at an earlier age than their parents did in their youth. A study
conducted in Plateau, showed that there is a decrease in the age of sexual debut, because at 13
years, more than one quarter of the secondary school students in the region had already
started sexual intercourse.86 It is therefore essential that sex education aims at inculcating
information in the youth from an early age. According to Achalu, consequences of improper
or lack of sex education include teenage pregnancies, teenage deaths through abortions,
abandoned babies, sexually transmitted diseases and so on.87 The acquisition of accurate and
adequate information with regards to sexual and reproductive health cannot therefore be over
emphasized. Proper sex education is very vital, as it helps individuals avoid negative health
consequences, communicate properly about sexuality and sexual health, understand healthy
and unhealthy relationships, understand value and feel autonomy over their bodies, and also
respect the right of others to bodily autonomy.88

3.6.2 Inadequate Use of Contraception and Family Planning in Nigeria

Family planning encompasses the services, policies, information, attitudes, practices, and
commodities, including contraceptives, that give women, men, couples, and adolescents the
ability to avoid unintended pregnancy and choose whether and/or when to have a child. 89
Unfortunately, family planning is not taken very seriously in Nigeria. Contraceptive use in
Nigeria is very low. Many sexually active adolescents in the country don’t practice
contraception with the resultant effect of high level of unintended pregnancy and illegal
abortion.90 The reason for such low contraceptive use can be attributed to either a lack of
knowledge of contraceptives, or the unavailability or unaffordability of such contraceptives.
A community-based survey of 2,093 women aged 15–49 years about the factors associated

85
Onwuezobe, IA & Ekanem EE 2009, ‘The Attitude of Teachers to Sexuality Education in a Populous Local
Government Area in Lagos, Nigeria,’ Pak J Med Science, vol. 25, no. 6, pp. 934-937.
86
Slap G.B., et.al., ‘Sexual behavior of adolescents in Nigeria: cross sectional survey of secondary school
students 2003,’ British Medical Journal, vol. 326 no. 7379 pp. 15
87
Achalu E.I. (2002) Facts and fictions about sex and reproduction. Lagos Sinarch Limited.
88
Supra note 82.
89
Ellen S.,et.al., “Investing in Family Planning: Key to Achieving the Sustainable Development Goals,” Global
Health: Science and Practice, Advance Access Article published on June 9, 2016 as DOI: 10.9745/GHSP-D-15-
00374
90
https://leadership.ng/2019/09/09/how-to-end-unintended-pregnancies-in-minors/ (accessed 25 September
2019)

23
with unwanted pregnancy was conducted in eight states of Nigeria in 2002–2003.91 The
results indicated that 28% of women reported having an unwanted pregnancy and, of that
28%, half reported having attempted to end their last unwanted pregnancy.

If done properly, family planning can go a long way in preventing unintended pregnancies
which may ultimately lead to death or complications from the procurement of unsafe
abortions.92 A major contributing factor to the low contraceptive use in Nigeria has been a
lack of knowledge about the various available options, combined with misconceptions about
the use of contraceptives.93 About 85% of women and 95% of men reported knowing a
contraceptive method. But just 15% were using it. The unmet needs of women wishing to
stop or delay births by not using contraception is 16%.94 It is also important that individuals
get adequate knowledge as to the various kinds of contraceptives available. On average, a
Nigerian woman or man aged 15 - 49 knows about 5 out of the 15 methods of
contraceptives.95 Even more worrying is that the most popular contraceptive measures were
those which carried the highest risks of pregnancy. The most common method women cited
was the pill (71%) which has a failure rate of 9% and can lead to nine unintended pregnancies
per one hundred women a year.96 For men, the most common method cited was the male
condom (91%), which has a failure rate of 18% . This can lead to 18 unintended pregnancies
per one hundred women in a year.97 Among the least known methods by both men and
women in Nigeria was the long acting reversible implants method which can last between
three to five years for women who use it. Implants have a 0.05% failure rate. However, only
17.9% men and 24.7% women knew about it.98

91
. Guttmacher Institute. A Survey of Women Admitted to Public and Private Medical Facilities for Treatment
of Complications of Abortion. New York, NY: The Alan Guttmacher Institute; 2002–2003.
92
Jean C.F. et. al., “Family Planning and Reproductive Health in Urban Nigeria: Levels, Trends and
Differentials, Measurement, Learning & Evaluation Project,” (2011) Technical Working Paper.
93
Funke Fayehun, “Contraceptive use in Nigeria is incredibly low. A lack of knowledge may be why”, available
at https://theconversation.com/contraceptive-use-in-nigeria-is-incredibly-low-a-lack-of-knowledge-may-be-
why-81453 (accessed 25 September 2019)
94
Ibid
95
National Population Commission (NPC) [Nigeria] and ICF International. 2014. Nigeria Demographic and
Health Survey 2013. Abuja, Nigeria, and Rockville, Maryland, USA: NPC and ICF International.
96
Funke F. et.al., “Sex of preceding child and birth spacing among Nigerian ethnic groups,” African Journal of
Reproductive Health, 2011 Jun;15(2):79-89.
97
Healthwise Staff, “Male Condoms”, available at
https://wa.kaiserpermanente.org/kbase/topic.jhtml?docId=hw190504spec (accessed 25 September 2019)
98
Supra note 95.

24
3.6.3 Sexual Violence

Sexual violence in Nigeria is very common, even though it is very difficult to obtain accurate
statistical information because majority of the cases are not reported. According to available
statistical data, annually about 32,000 pregnancies occur in Nigeria as results of rape.99 The
country has an extremely low conviction rate for rape and sexual abuse, despite an increase in
violence against women in recent years.100 According to ‘Mirabel’, a sexual assault referral
center in Lagos supported by UK Department for International Development (DFID), some
of the health implications of sexual assaults are: STI including HIV/AIDS, physical injuries
and unwanted pregnancies.101

It seems that women do not seem to be safe anywhere as rape is a heinous crime perpetrated
in all sectors of the society, from churches to mosques, or from schools to workplaces and
domestic residences such as the home. This has largely contributed to the high incidence of
unsafe abortion in the country, as it is highly unlikely that a woman with an unwanted
pregnancy resulting from rape would want to keep the child. This puts such women in serious
mental agony as rape alone psychologically destabilizes a woman, and her situation is further
complicated by the presence of an unwanted pregnancy. This is why many countries include
the ground of rape as a legally permissible ground for abortion. Nigeria unfortunately still
remains very strict in its laws as rape is not considered as a justifiable ground to legally
induce an abortion. It is therefore part of the argument of this project paper, that Nigeria’s
laws on abortion be expanded to include at least rape as a justifiable ground for abortion.

3.7 Factors Responsible for Unsafe Abortions

From the above, we have seen the major causes of unwanted pregnancies. The pregnant
woman has two options; she either endures the mental agony such unwanted pregnancy
causes and carries it to full term, or she procures an illegal, and most times unsafe, abortion.
The reasons why women ultimately decide to get these unsafe abortions vary, usually
depending on personal circumstantial factors. One major reason women resort to terminating
unwanted pregnancies is being single.102 Many women without partners do not feel they are

99
Okoro- Eweka, R 2014, ‘The Magnitude and Burden of Rape in Nigeria,’ The Nigerian Observer, Viewed 24
June 2014, http://www.nigerianobservernews.com/04092013/features/features9.html#.U6nXRRYxHFI
100
https://www.theguardian.com/world/2016/feb/25/welcome-to-mirabel-the-first-centre-supporting-survivors-
in-nigeria (accessed 25 September 2019)
101
Mirabel Centre 2013, ‘A Sexual Assault Referral Centre, J4A (DFID).
102
Sedgh, G, et.al., ‘Meeting young women’s sexual and reproductive health needs in Nigeria,’ Guttmacher
Institute, 2009.

25
mentally, physically or even financially ready to raise a child alone, and would therefore
resort to getting an abortion. Some others feel they are too young to raise a child, or they have
to finish with their education.103 Financial constraint is another major reason women
terminate pregnancies.104 There are various factors hindering the access to safe abortion
services in Nigeria, which are:

(a) Legal Barriers: Not only do these legal restrictions punish women for procuring
abortions, they prevent the existence of standard abortion clinics and well-trained
abortion practitioners, as well as further institutionalizing the stigma placed on women
and individuals who undergo or perform abortions. Because of these legal restrictions,
abortion has been swept under the carpet at an exorbitant price and the services by skilled
providers are not available for most of the women who need them. 105 This means a
woman that needs abortion has to rely on the service provisions of unskilled providers in
an ill-equipped setting.106 Another example of how restrictive laws influence unsafe
abortion is the case of Romania, where they had a liberal law in place until 1966.107 In
1960 maternal mortality ratio from unsafe abortion was 20 per 100,000 live births. In
1966 they introduced a new law, which made abortions illegal all over the country, until
the year 1989, the maternal mortality ratio skyrocketed to 148 per 100,000 live births.
When they reversed the law in the same year, within one year the mortality ratio fell to 68
per 100,000 live births. By the year 2002 maternal mortality ratio from unsafe abortions
in Romania was 9 per 100,000 live births.108
(b) Socio-cultural and religious barriers: These seem to be the greatest contributor to the
incidence of unsafe abortions. The stigmatization of abortion mostly due to the
excessively rigid cultural and religious views seem to place pregnant women with a desire
to terminate their pregnancies in a tricky place. They are often stuck between doing what
they want and refraining from doing it due to the fear of being exposed. Because of the
same fear they delay in seeking healthcare services till the pregnancy is too advanced, and
this increases the possibilities of complications. Sometimes they prefer the services of

103
Ibid.
104
Ibid.
105
Supra note 98 at p. 25
106
Adinma, E 2011, ‘Unsafe abortion and its ethical, sexual and reproductive right implication,’ West African
Journal of Medicine, vol. 30, no 4, pp. 245-249
107
Amy Mackinnon, “What Actually Happens When a Country Bans Abortion”, available at
https://foreignpolicy.com/2019/05/16/what-actually-happens-when-a-country-bans-abortion-romania-alabama/
(accessed 25 September 2019)
108
Haddad, LB 2009, ‘Unsafe abortion: Unnecessary maternal mortality,’ Journal of Obstetrics and
Gynecology, vol. 2, no. 2, pp. 122-126.

26
 unqualified personnel far from their communities because of stigma in spite the
availability of safe procedure in their communities.109
(c) Financial Constraints: Another major contributing factor to the incidence of unsafe
abortions in Nigeria is the lack of financial resources. Nigeria’s abortion laws mostly
affect rural and low-income women who do not have the money to engage the services of
a skilled professional, often forcing them to resort to the services of quacks and unskilled
individuals, usually in unsanitary conditions and with dangerous equipment. A study
conducted on the perception of health care providers about induced abortion in Nigeria
revealed that, the majority of the prosperous women both in the rural and urban areas use
the services of qualified health professionals.110 While rural and urban poor cannot afford
the exorbitant cost charged by the professionals, they instead patronize the services of
cheap untrained personnel or herbalists for the services.111

3.8 Conclusion

The third chapter of this paper embarked on a detailed analysis of the criminal framework of
abortion in Nigeria, judicial attitude towards it and the statistical information available, as
well as the various causes, effects and contributing factors to unsafe abortions in Nigeria.
Also, it was shown that despite this law, there are not many reported cases on abortion, even
though there have been several reports of death or complications from unsafe abortion
procedures. This goes to show that the abortion law in Nigeria is in effect a toothless bulldog,
as it is rarely enforced. This realization alone is one that is infuriating and oppressive to the
core, as its main effect is the denial of women their rights to adequate health care and
freedom from torture and mental agony, amongst many other rights necessarily violated due
to such laws which are unfavourable to women in their application.

109
Koster, W 2010, ‘Linking two opposites of pregnancy lost: Induced abortion and infertility in Yoruba
society, Nigeria,’ Journal of Social Science and Medicine, vol. 71, pp. 1788-1795.
110
Adebusoye, MP, Singh, S & Audam, S 1997, ‘Nigerian Health Professional’s Perceptions About Abortion
Practice,’ International Family Planning Perspectives, vol. 23, pp. 155-161
111
Ibid.

27
 CHAPTER FOUR
INTERNATIONAL AND REGIONAL STANDARDS OF ABORTION

4.0 Introduction

The previous Chapter of this project paper sought to examine the status and causes of
abortion in Nigeria, as well as its attendant effects and consequences on the lives and health
of Nigerian women. We have seen that abortion is criminal and illegal in Nigeria, with
prescribed punishment for women and others who perform the abortion on them. Despite the
fact that abortion is criminal, millions of Nigerian women have been recorded to have died or
suffered complications as a result of the procurement of clandestine abortions. This has led to
an agitation for the right to legal and safe abortion services. Although, this right does not
seem to be recognized in Nigeria, it seems to be gaining steady ground in the international
scene. The aim of this Chapter, is to examine the right to legal abortion in the current
international and regional framework, as well as to make a comparative analysis with the
liberal abortion laws of three other countries namely: South Africa, the Netherlands and
Canada.

4.1 The Right to Abortion as a Woman’s Human Right

Internationally, there is no right to abortion guaranteed in any legal framework however, it is

argued that the right to abortion may be implied from a liberal interpretation of legally
recognized rights, under several international and regional human rights documents. States’
obligations to respect, protect, and fulfil human rights includes areas of sexual and
reproductive health and autonomy. Where access to safe and legal abortion services are
unreasonably restricted, a number of human rights may be at risk. These include the right to
life, right to health and health care, right to information, rights to non-discrimination and
equality, right to be free from cruel, inhuman, or degrading treatment, right to privacy and
bodily autonomy, right to decide the number and spacing of children, right to security of
person, right to liberty, right to enjoy the benefits of scientific progress, and the right to
freedom of conscience and religion.112 These rights are safeguarded under various
international and regional human rights instruments, for example, the Universal Declaration
of Human Rights (UDHR),113 the International Covenant on Civil and Political Rights

112
“Q&A: Human Rights Law and Access to Abortion” available at https://www.hrw.org/news/2017/07/24/qa-
human-rights-law-and-access-abortion
113
Universal Declaration of Human Rights, adopted Dec. 10, 1948, art. 27, G.A. Res. 217A (III), U.N. Doc.
A/810 at 71 (1948).

28
(ICCPR),114 the International Covenant on Economic, Social and Cultural Rights
(ICESCR),115 Convention on the Rights of the Child (CRC),116 Convention on the
Elimination of All Forms of Discrimination against Women (CEDAW), 117 the American
Convention on Human Rights (ACHR),118 the African Charter on Human and People’s
Rights (ACHPR),119 the Protocol to the African Charter on Human and Peoples Rights, more
popularly known as the African Women’s Protocol, or the MAPUTO Protocol,120 and other
regional instruments.

4.1.1 Women’s Right to Life

The right to abortion has been argued to be subsumed under the right to life and it is based on
the strong argument that denying women the right to legal and safe abortion, which in turn
forces them to procure unsafe and life-threatening abortions, is a violation of a woman’s right
to life. The right to life is guaranteed under several United Nations human rights instruments
including but not limited to the UDHR,121 the ICCPR,122 the CRC,123 and the MAPUTO
Protocol.124 In fact, the Human Rights Committee, in elaborating States’ obligations in
reporting on their compliance with the right to life enshrined in the International Covenant on
Civil and Political Rights (ICCPR), called upon States to inform it of “any measures taken by
the State to help women prevent unwanted pregnancies, and to ensure that they do not have to
undergo life-threatening clandestine abortions.”125

114
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), U.N. GAOR, 21st Sess., Supp.
No. 16, U.N. Doc A/6316 (1966), 999 U.N.T.S. 171 (entered into force Mar. 23, 1976).
115
International Covenant on Economic, Social and Cultural Rights, adopted Dec. 16, 1966, art. 12 G.A. Res.
2200A (XXI), U.N. GAOR, Supp. No. 16, U.N. Doc. A/6316 (1966) (entered into force Jan. 3, 1976),
[hereinafter ICESCR].
116
Convention on the Rights of the Child, adopted Nov. 20, 1989, G.A. Res. 44/25, annex, U.N. GAOR, 44th
Sess., Supp. No. 49, at 166, UN Doc. A/44/49 (1989), reprinted in 28 I.L.M. 1448 (entered into force Sept. 2,
1990).
117
Convention on the Elimination of All Forms of Discrimination against Women, adopted Dec. 18, 1979, art. 1,
G.A. Res. 34/180, U.N. GAOR, 34th Sess., Supp. No. 46, at 193, U.N. Doc. A/34/46 (1979) (entered into force
Sept. 3, 1981) [hereinafter CEDAW].
118
American Convention on Human Rights, Nov. 22, 1969, O.A.S.T.S. No. 36, O.A.S. Off. Rec.
OEA/Ser.L/V/II.23, doc. 21, rev. 6 (entered into force July 18, 1978).
119
African Charter on Human and Peoples’ Rights, adopted June 27, 1981, O.A.U. Doc. CAB/LEG/67/3, rev. 5,
21 I.L.M.58 (1982) (entered into force Oct. 21, 1986).
120
Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 2nd
Ordinary Sess., Assembly of the Union, adopted July 11, 2003, art. 14 [hereinafter Maputo Protocol].
121
Art. 3, supra note 113.
122
Art. 6, supra note 114.
123
Art. 6, supra note 116.
124
Art. 4, supra note 120.
125
Human Rights Committee, General Comment No. 28: Equality of rights between men and women (Art. 3)
(68th Sess., 2000), para. 10, U.N. Doc. CCPR/C/21/Rev.1/Add.10 (2000).

29
It has been established in the previous chapter, that death is a likely consequence of unsafe
abortions, and many women have lost their lives due to the procurement of such unsafe
abortions in the hands of unskilled or semi-skilled individuals. The incidence of unsafe
abortions is closely associated with high maternal mortality rates. Therefore, laws that force
women to resort to unsafe procedures infringe upon women’s right to life.126 Several UN
human rights bodies have framed maternal deaths due to unsafe abortion as a violation of
women’s right to life.127 As a result, they have called on States to review restrictive laws that
criminalize abortion, and increase access to family planning and sexual and reproductive
health information, in order to reduce the number of unsafe abortions.128 The language of the
United Nations Human Rights Committee’s General Comment on the Right to Life affirms
that abortion is a human right, and that preventable maternal deaths are a violation of the
right to life, and that the right to life begins at birth.129 The General Comment on the Right to
Life provides the international community with a much-needed framework to hold
governments accountable for the high rates of death and injury which occur when women are
forced to seek out unsafe abortions. This General Comment requires states to provide safe,
legal, and effective access to abortion including when the pregnancy presents a threat to the
woman’s health or will cause her substantial pain or suffering, particularly in pregnancies
resulting from rape or incest.

Locally, the right to life is guaranteed under Section 33 of the Constitution of the Federal
Republic of Nigeria.130 The Criminal Code also permits abortions through surgical operations
to be performed on a pregnant woman in order to save her life, but this is only when the

126
Center for Reproductive Rights, “Safe and Legal Abortion is a Woman’s Human Right”, Briefing Paper,
October 2011, available at
https://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/Safe%20and%20Legal%20Abortio
n%20is%20a%20Womans%20Human%20Right.pdf
127
Report of the Human Rights Committee, 76th Sess., Oct. 14 – Nov. 1, 2002, 77th Sess., Mar. 17 – Apr. 4,
2003, 78th Sess., 78th Sess., July 13 – Aug. 8, 2003, para. 81(14), U.N. Doc. A/58/40 (Vol. I), GAOR, 58th
Sess., Supp. No. 40 (2003);
The Committee is concerned that the criminalization of abortion, even when pregnancy threatens the
life of the mother or results from rape, leads to unsafe abortions, which contributes to a high rate of
maternal mortality.
128
Report of the Committee on the Elimination of Discrimination against Women (CEDAW Committee), 20th
Sess., Jan. 19 – Feb. 5, 1999, 21st Sess., June 7-25, 1999, pt. 2, Ch. IV, Belize, para. 56, U.N. Doc.
A/54/38/Rev. 1, GAOR, 54th Sess., Supp. No. 38 (1999). Article 31(c) provides thus:
State Parties should…..prioritize the prevention of unwanted pregnancy through family planning and
sex education and reduce maternal mortality rates through safe motherhood services and prenatal
assistance. When possible, legislation criminalizing abortion should be amended, in order to withdraw
punitive measures imposed on women who undergo abortion;
129
Paragraph 8 of General comment No. 36 (2018) on Article 6 of the International Covenant on Civil and
Political Rights, on the “Right to Life”, CCPR/C/GC/36
130
1999 Constitution of the Federal Republic of Nigeria, Cap 23 LFN 2004.

30
pregnancy constitutes a threat to the life of the woman. However, the presence of criminal
provisions on abortion in Nigeria seem to passively ignore the fact that forcing a woman to
undergo life threatening abortions due to the legal barriers to safe abortions, actually
constitutes a violation to the tight to life of the Nigerian woman. Therefore, our law seems to
give the right to life to women in one hand, only to take it back in the other hand with
criminal laws violating the right to life of women. It is submitted that the Nigerian State has
failed in its internationally binding obligation to respect, protect and promote the right to life
of women, with the extremely restrictive provisions on abortion in the criminal laws of the
country.

4.1.2 Women’s Right to Health

International law guarantees women the right to “the highest attainable standard of physical
and mental health.”131 The right to health implies that State parties are expected to provide
adequate healthcare, as well as work towards creating conducive environment for the
enjoyment of good health.132

Several UN human rights bodies have recognized the deleterious impact of restrictive
abortion laws on women’s health and have consistently raised general concerns about the
inaccessibility of safe abortion services. In 2000, the Committee on Economic, Social and
Cultural Rights recognized that the right to health includes “the right to control one’s health
and body, including sexual and reproductive freedom, and the right to be free from
interference.”133 The Committee, in its General Comment on the Right to the highest
attainable standard of health, established that the right to health, which comprises
reproductive and sexual health, requires health services, including legal abortion services,
which are available, accessible, acceptable and of good quality.134 The Special Rapporteur on
the Right to Health, in emphasizing the importance of this General Comment, stated that laws
criminalizing abortion “infringe women’s dignity and autonomy by severely restricting
decision-making by women in respect of their sexual and reproductive health”, and
proceeded to call on States with restrictive abortion laws to “decriminalize abortion.”135

131
Art. 12 supra note 129.
132
Anika Rahman & Rachel Pine, “An International Human Right to Reproductive Health Care,” (1995) 1
Health and Human Rights, pp. 405-406.
133
Committee on Economic, Social and Cultural Rights, General Comment No. 14: The right to the highest
attainable standard of health, (22nd Sess., 2000), para. 80, U.N. Doc. E/C.12/2000/4 (2000).
134
Paras. 8; 12, ibid.
135
“Right of everyone to the enjoyment of the highest attainable standard of physical and mental health: Note by
the Secretary-General,” A/66/254, para. 21

31
Furthermore, the right to health “requires the removal of all barriers interfering with access to
health services, education and information, including in the area of sexual and reproductive
health.”

The UN Committee on the Elimination of Discrimination against Women (CEDAW

committee) has declared it discriminatory for a State to refuse to legally provide for the
performance of certain reproductive health services for women.136 It further stated:

Unsafe abortion is a leading cause of maternal mortality and morbidity. As such,

States parties should legalize abortion at least in cases of rape, incest, threats to the
life and/or health of the mother, or severe foetal impairment, as well as provide
women with access to quality post-abortion care, especially in cases of complications
resulting from unsafe abortions. States parties should also remove punitive measures
for women who undergo abortion.

It is worthy of note that the Maputo Protocol is the first human rights treaty to explicitly call
on States to ensure access to abortion in certain circumstances.137 This Protocol explicitly
recognizes that the right to health includes access to safe and legal abortion, at a minimum, in
certain circumstances. It requires States Parties to

ensure that the right to health of women, including sexual and reproductive health is
respected and promoted….and….take all appropriate measures to protect the
reproductive rights of women by authorising medical abortion in cases of sexual
assault, rape, incest, and where the continued pregnancy endangers the mental and
physical health of the mother or the life of the mother or the foetus.138

Safe abortion services protect women’s right to health.139 The right to health can be
interpreted to require governments to take appropriate measures to ensure that women have
the necessary information and the ability to make crucial decisions about their reproductive
lives, such as determining whether or not to continue a pregnancy, and to guarantee that
women are not exposed to the risks of unsafe abortion, which can have devastating effects on
their health, leading to long-term disabilities, such as uterine perforation, chronic pelvic pain

136
“Statement of the UN Committee on the Elimination of Discrimination against Women on Sexual and
Reproductive Health and Rights: Beyond 2014 ICPD review”, available at
https://www.ohchr.org/Documents/HRBodies/CEDAW/Statements/SRHR26Feb2014.pdf (accessed 21
September 2019)
137
https://www.ohchr.org/Documents/Issues/Women/WRGS/SexualHealth/INFO_Abortion_WEB.pdf
138
Art. 14, supra note 135.
139
Supra note 135.

32
or pelvic inflammatory disease.140 Such measures include removing barriers that interfere
with women’s access to health services, such as legal restrictions on abortion, and ensuring
access to high-quality abortion information and services.141

In Nigeria, the right to health is provided for in Section 17(3)(d) in Chapter II of the
Constitution of the Federal Republic of Nigeria.142 It requires the State to direct its policy to
ensuring that there are adequate medical and health care facilities for all persons. However,
the Constitution itself has prescribed that this part of the Constitution is non-justiciable,143
that is, the courts cannot adjudicate on any provisions of Chapter II. In A. G. Ondo v. A. G.
Federation,144 the Supreme Court held, inter alia, that courts cannot enforce any of the
provisions of Chapter II of the constitution until the National Assembly has enacted specific
laws for their enforcement, as has been done in respect of section 15(5)145 of the
Constitution.146 Thus we can see that the right to adequate health care and medical facilities
as provided for in Section 17(3)(d) is merely an objective that the State is expected to realise
when it can, such that failure to do so cannot be the subject of any legal action. This only
further serves as an impediment to the protection and fulfilment of the sexual and
reproductive health of women. The only way that this provision can be enforced in Nigeria is
for the legislative arm to enact a legislation directly providing for the right. It seems
impracticable for the National Assembly to enact a law safeguarding the sexual and
reproductive health of Nigerian women with a necessary inclusion of access to safe abortion
services, in light of the criminal provisions relating to abortion. Past attempts have however
been faced with a lot of opposition.147

140
Ibid.
141
Ibid.
142
Chapter II of the Constitution refers to the ‘Fundamental Objectives and Directive Principles of State Policy’.
143
Section 6(6)(c) provides that:
The judicial powers vested in accordance with the foregoing provisions of this section…shall not,
except as otherwise provided by this Constitution, extend to any issue or question as to whether any act
or omission by any authority or person or as to whether any law or any judicial decision is in
conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter
II of this Constitution.
144
(2002) 9 NWLR (Pt 772), 222
145
S.15(5) CFRN 1999 provides that the state shall abolish all corrupt practices and abuse of power. This
section has been realised in the establishment of the Independent Corrupt Practices and Other Related Offences
Commission, by virtue of the Corrupt Practices and Other Related Offences Act, 2000, Cap C31 LFN,2004.
146
According to the Supreme Court, those objectives and principles that serve as the constitutional policy of
governance remain mere declarations which cannot be enforced by legal process but would be seen as a failure
of duty and responsibility of state organs if they acted in clear disregard of them. The court however went ahead
to maintain that the Directive Principles (or some of them) can be made justiciable by legislation
147
Supra note 42.

33
4.1.3 Women’s Right to Equality and Non-Discrimination

The right to gender equality is a fundamental principle of human rights law. In fact, the
attainment of gender equality is represented in Goal 5 of the Sustainable Development Goals
(SDGs) to be achieved by 2030.148 All major human rights instruments require freedom from
discrimination in the enjoyment of protected human rights.149 In 1999, the Committee on the
Elimination of Discrimination against Women recognized that “laws that criminalize medical
procedures only needed by women and that punish women who undergo those procedures” as
a barrier to women’s access to appropriate health care.150 Therefore, denying women access
to abortion is a form of gender discrimination. Laws which restrict abortion have the effect
and purpose of preventing a woman from exercising any of her human rights or fundamental
freedoms on a basis of equality with men. It is even more laughable to discover that these
restrictive abortion laws are often drafted and enacted by a male dominated legislative
system.151 It only makes it easier to conclude that restrictive abortion laws mainly exist to
reinforce male dominance over female sexual autonomy, and further subject women to the
control and authority of men, rather than because of the concern for the innocent foetus.

Restricting abortion has the effect of denying women access to a procedure that may be
necessary for their equal enjoyment of the right to health. Only women must live with the
physical, as well as mental consequences of unwanted pregnancy.152 Some women suffer
maternity-related injuries, such as hemorrhage or obstructed labor. The presence of restrictive
abortion laws makes women consequently exposed to health risks not experienced by men.
Therefore, laws which restrict abortion are discriminatory in nature as they serve to
undermine women’s capacity to make responsible decisions about their bodies and lives. This
often coincides with the tendency to deny women decision-making roles in the areas of

148
The 2030 Agenda for Sustainable Development, adopted by all United Nations Member States in 2015,
provides a shared blueprint for peace and prosperity for people and the planet, now and into the future.
Available at https://sustainabledevelopment.un.org/sdgs (accessed 21 September 2019)
149
Supra note 141.
150
Committee on the Elimination of Discrimination against Women, General Recommendation No. 24: Article
12 of the Convention (women and health), (20th Sess., 1999), in Compilation of General Comments and
General Recommendations Adopted by Human Rights Treaty Bodies, at 358, U.N. Doc. HRI/GEN/1/Rev.9
(Vol. II) (2008)
151
For example, the recent abortion ban by Alabama’s all-male senate majority, only goes to show that here is
an under representation of women in positions where decisions affect the lives and health of women. See
“Alabama abortion ban: Republican state senate passes most restrictive law in US”, available at
https://www.theguardian.com/us-news/2019/may/14/abortion-bill-alabama-passes-ban-six-weeks-us-no-
exemptions-vote-latest (accessed 21 September 2019)
152
Supra note 141.

34
political, economic, social, and cultural affairs, as seen in the dominance of men in positions
where they can make decisions relating to women’s affairs.

Under the Nigerian Constitution, the right to be free from discrimination is provided for in
Section 42.153 The particular ground relevant in the context of this paper is the ground of
‘sex’. The Constitution provides that a citizen of a particular sex, by reason he or she is of
that sex, shall not be subjected either expressly, or in practical application of any law in force
in Nigeria or any executive administrative action of the government, to disabilities or
restrictions that citizens of the other sex are not made subject to.154 It is submitted that, in
accordance with the aforementioned international contributions on the matter, the law
prohibiting abortion under the Criminal and Penal Codes operate to discriminate against
Nigerian women. This is because the abortion law is one which inherently affects only
women. This is seen in the harsh reality that men who impregnate women, are not made to
suffer the disabilities and restrictions women who have unwanted pregnancies suffer. These
disabilities and restrictions are made manifest in the restrictive abortion laws in Nigeria, as
well as the inaccessibility to legal and safe abortion services. It is only women who suffer the
consequences of unprotected, or inadequately protected sexual intercourse, and they are
further restricted by the abortion laws from terminating unwanted pregnancies legally and
safely. This results in the death and health complications of several Nigerian women. It is
thus the contention of this paper that the restrictive abortion laws violate Section 42(1) of the
Constitution as they serve to subject Nigerian women to disabilities and restrictions which
Nigerian men are not subjected to, therefore, they ought to be null and void to the extent of
their inconsistency.155

It is worthy of note that other countries have acknowledged laws and policies which seem to
unfairly punish women for being women, as discriminatory and unconstitutional. For
example, in South Africa, it has been the long term practice of schools to include in their
educational policies, that female students who get pregnant would be expelled from schools.
This has led to hundreds of young girls losing their access to educational institutions based on

153
Section 42(1)(a) goes thus:
A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political
opinion shall not, by reason only that he is such a person…be subjected either expressly by, or in the
practical application of, any law in force in Nigeria or any executive or administrative action, of the
government to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic
groups, places of origin, circumstance of birth, sex, religions or political opinions are not made subject.
154
Emphasis mine.
155
Section 1(3) of the Constitution provides that “if any other Law is inconsistent with the provisions of this
Constitution, this Constitution shall prevail, and that other Law shall to the extent of the inconsistency be void.”

35
the fact that they fell pregnant due to unprotected sexual intercourse, a consequence that
would never be attached to the male students also involved in the intercourse. These policies
have been challenged on the grounds that they are discriminatory against women, as they
seek to punish women for undergoing something inherently attached to their gender.
Pregnancy is not something that can be separated from being a woman, and young female
students ought not to get punished for undergoing something inherently connected to their
nature as a woman, especially when their male counterparts are not punished as well.

In Head of Department, Department of Education, Free State Province v. Welkom

High School & another156 and Head of Department, Department of Education, Free State
Province v. Harmony High School & another,157 two South African high schools had
adopted policies that provided for automatic exclusion of any student from school if it is
found that she is pregnant. When in two separate instances the schools applied the policies to
pregnant students, the Head of the provincial department of education intervened in the
decisions of the school’s governing bodies and ordered them to ignore the pregnancy policy
and reinstate the students. The respondents took the matter to the High Court which ruled that
this official had no authority to tell the principals not to implement their adopted policy. The
Supreme Court upheld the High Court’s decision.158 However, the Constitutional Court of
South Africa ruled that these policies were unconstitutional and the Head of the provincial
department of education was entitled to intervene to stop the application of the policy. The
pregnancy was held to have unjustifiably discriminated on the basis of pregnancy and sex.159

The Court’s opinion follows several older African judgments such as Student Representative
Council of Molepolole College of Education v. Attorney General,160 where the Botswana
Court of Appeal held that a regulation that required a student to report pregnancy to the
authorities, and would be obliged to leave the College or be expelled if this was a second

156
CCT 103/12 [2013] ZACC 25
157
Ibid
158
Reprohealthlaw Blog, “South Africa: Expulsion of pregnant students violated constitutional rights”, available
at https://reprohealthlaw.wordpress.com/2017/09/29/south-africa-expulsion-of-pregnant-students-violated-
constitutional-rights/ (accessed 29th October 2019)
159
Other reasons adduced by the court include, the policies limited the right to education by requiring that the
student repeat an entire year, the policies prima facie violated students’ rights to human dignity, privacy, and
bodily and psychological integrity by requiring them to report their own pregnancy or that of others and also, the
policies violated the best interests of the child because they failed to take into account the health and other needs
of the pregnant student.
However, it must be noted that the South African Constitution, unlike the Constitution of Nigeria, explicitly
provides for freedom from discrimination on the grounds of pregnancy.
160
[1995] (3) LRC 447

36
occurrence, was unconstitutional as it was discriminatory on the basis of sex. 161 Similarly,
in Mfolo and Others v. Minister of Education,162 Bophuthatswana (South Africa, Supreme
Court, Bophuthatswana and General Division) determined whcrimether Regulation 13(2),
which suspends pregnant women from pursuing their studies, violates Section 9 of the South
African Constitution and it was held that regulations that required pregnant students to
withdraw from college were unconstitutional.163 Also in Lloyd Chaduka and Morgenster
College v. Enita Mandizvidza,164 the Supreme Court of Zimbabwe held that a clause in a
student-college contractual agreement that requires women to withdraw from the college if
they become pregnant is contrary to public policy and the Constitution. The Court also held
that even if the college is not a “public authority” falling within the meaning of Section 23 of
the Zimbabwean Constitution, the expulsion of female students who become pregnant while
attending the college constitutes gender-based discrimination, and is thus contrary to public
policy. The clause of the college contract is thus null and void.165

From the foregoing cases, it can be seen that policies which operate to discriminate against
women and treat them unfairly on grounds of sex and pregnancy have been held to be
unconstitutional as it amounts to a violation of the right to equality and freedom from
discrimination. Thus, it is neither far-fetched nor unreasonable to argue that a law which
prohibits legal and safe access to abortion services which only women require, also punishing
them for procuring such services illegally, is a violation of the right to freedom from
discrimination, because it unfairly subjects women to disabilities and restrictions which the

161
“Student Representative Council of Molepolole College of Education v. Attorney General”, available at
https://uniteforreprorights.org/resources/student-representative-council-molepolole-college-education-v-
attorney-general/ (accessed 30th October 2019)
The Court reasoned that it is unfair to deny pregnant female students the opportunity to continue their studies.
Moreover, the Court recognized that it appeared from testimonies that pregnant students who are married would
be permitted to continue their education, and the Court reasoned that such testimony demonstrated that the
regulation was designed to punish unmarried pregnant women, rather than assist them. Further, a male student
who impregnates a woman is not punished under Regulation 6.
162
[1992] (3) LRC 181
163
“Mfolo and Others v. Minister of Education, Bophuthatswana”, available at
https://uniteforreprorights.org/resources/mfolo-others-v-minister-education-bophuthatswana/ (accessed 30th
October 2019);
The Court noted that the constitutional right of equality applies not merely to matters before a court of law, but
also to any law or regulation promulgated by the state. However, the Court noted that the right of equality is not
absolute, and the law may discriminate on various grounds to achieve legitimate objectives, provided the
discrimination is based on “reasonableness” and “rationality.” The Court reasoned that in the present case, no
legitimate objective is achieved by prohibiting pregnant women from continuing their studies. Therefore, there
is no correlation between a legitimate objective or the purposes of the regulation, and its discriminatory effects.
The Court thus held that Regulation 13(2) violates Section 9 of the Constitution.
164
2002 (1) ZLR 72 (S)
165
“Lloyd Chaduka & Morgenster College v. Enita Mandizvidza” available at
https://uniteforreprorights.org/resources/lloyd-chaduka-morgenster-college-v-enita-mandizvidza/ (accessed 30th
October 2019)

37
men are not subjected to, despite the fact that the pregnancy could not have occurred without
the man. It is pertinent to note that this right to freedom from discrimination seems to be
absolute in that Section 45 does not include it in the list of rights which may be derogated
from in the interest of defence, public safety, public order, public morality or public health or
for the purpose of protecting the rights and freedom of other persons.166

4.1.4 Women’s Right to Reproductive Self-Determination

Human rights instruments provide the basis for the right of women to make decisions
regarding their own bodies.167 Particularly, they require the right to freedom in decision-
making about private matters. Such provisions include the right to decide freely and
responsibly the number and spacing of one’s children and the right to privacy.168

The right to determine the number and spacing of one’s children is guaranteed in the
CEDAW,169 and the MAPUTO Protocol as well.170 The 1994 International Conference on
Population and Development in Cairo (ICPD) defined reproductive rights to include the
rights to decide freely and responsibly the number, spacing and timing of their children and to
have the information and means to do so, and the right to attain the highest standard of sexual
and reproductive health, as well as the right of all to make decisions concerning reproduction
free of discrimination, coercion and violence as expressed in human rights documents.171 The
International Conference on Population made notable recommendations for the further
implementation of the World Population Plan of Action (WPPA), with a special section on
the Roles and Status of Women and a comprehensive set of recommendations on
'reproduction and the family' to ensure the effective exercise of the right of deciding the
number and spacing of children.172 It was recommended that:

Governments are urged to ensure that all couples and individuals have the basic right
to decide freely and responsibly the number and spacing of their children and to have
the information, education and means to do so; couples and individuals in the exercise

166
Section 45 provides that:
Nothing in sections 37, 38, 39, 40, and 41 of this Constitution shall invalidate any law that is
reasonably justifiable in a democratic society—
(a) in the interest of defence, public safety, public order, public morality or public health; or
(b) for the purpose of protecting the rights and freedom of other persons.
167
Supra note 141.
168
Ibid
169
Art. 16.1(e)
170
Art. 14(1)(b)
171
Supra note 158.
172
“Reproductive Rights”, https://www.un.org/en/development/desa/population/theme/rights/index.asp
(accessed 21 September 2019)

38
 of this right should take into account the needs of their living and future children and
their responsibilities towards the community.173

It seems that this right may be the closest to the right to legal abortion for women, when it
necessarily involves the right to make decisions concerning reproduction, as stated above.
This implies that women have the right to decide whether or not to bring a pregnancy to
term.174 A pregnant woman may seek advice from others, but only she knows whether she is
ready to have a child, and governments ought not to interfere with her decision.

The right to determine whether one wants to carry a pregnancy to full term has also been
argued to fall under the right to privacy. Decisions one makes about one’s body, particularly
one’s reproductive capacity, lie squarely in the domain of private decision-making. This view
is pursuant to the Supreme Court ruling in Roe v. Wade, where it held that the Due Process
Clause of the Fourteenth Amendment to the U.S. Constitution provides a fundamental "right
to privacy" that protects a pregnant woman's liberty to choose whether or not to have an
abortion. The right however is not absolute, and must be balanced against the government's
interests in protecting women's health and protecting prenatal life. The law in Texas which
made it a crime to assist a woman to get an abortion, was held to have violated this right.175
The Human Rights Committee has recognized that denying women access to legal abortion
services is an arbitrary interference in their private lives. In the landmark case of K.L. v.
Peru,176 the Committee confirmed a State´s positive obligation to provide therapeutic
abortion when the pregnancy poses mental or physical threats to the girl or woman, especially
if she is a minor. Additionally, the Committee importantly recognized that mental suffering
caused by the inability to access legal therapeutic abortions amounts to torture and cruel,
inhuman and degrading treatment.177 This case established that denying access to a legal
abortion constitutes a violation of the ICCPR, specifically violations to the right to be free
from cruel, inhumane, and degrading treatment,178 the right to privacy,179 and special
protection of the rights of a minor.180 In Tysiąc v. Poland,181 a visually impaired Polish

173
Ibid.
174
Supra note 141.
175
Supra note 8.
176
K.L. v. Peru, Human Rights Committee, Communication No. 1153/2003, para. 6.4, U.N. Doc.
CCPR/C/85/D/1153/2003 (2005)
177
“K.L. v. Peru,” https://www.womenslinkworldwide.org/en/gender-justice-observatory/court-rulings-
database/kl-v-peru (accessed 21 September 2019)
178
Art. 7
179
Art. 17
180
Art. 24
181
Tysiąc v. Poland, 5410/03, Eur. Ct. H.R., para. 107 (2007).

39
woman, was denied an abortion on health grounds, even though medical diagnoses confirmed
that continuing her pregnancy could severely impact her vision, thereby constituting a risk to
her health. The European Court of Human Rights held that the Polish government had failed
to fulfill its positive obligation, under Article 8 of the European Convention on Human
Rights, to ensure the applicant’s right to respect for her private life. Although the decision
dealt with procedure, the fact that the Court found Poland in violation of its positive
obligations, follows other cases such as L v. Lithuania,182 providing that when services are
legally available these services should not be illusionary but made available through
appropriate procedures.183 This obligation requires them to establish procedural safeguards to
ensure that women can make an informed decision about whether or not to terminate a
pregnancy,184 and access safe and legal abortion services in a timely manner.185

In Nigeria, while there is no right to determine the number and spacing of one’s children, one
may argue that the right to receive and impart ideas and information without interference
under Section 39 of the Constitution may also accommodate the right to receive adequate and
accurate information with regard to family planning mechanisms.186 Everyone is entitled to
receive information which may be used to preserve and promote their family life, in
realization of the objective stated in Section 17(3)(h) which requires the State to direct its
policy towards ensuring that the evolution and promotion of family life is encouraged. The
right to privacy on the other hand seems to be a more contentious right to challenge. Section
37 guarantees and protects the privacy of citizens, their homes, correspondence, telephone
conversations and telegraphic communications. Construing the bounds of the right to privacy
under Nigeria law is not an easy one due to the absence a universal definition of the concept
of privacy.187 The exact scope of the right to privacy is a very controversial area but it is the
contention of this paper that the decision of a woman to have a child or terminate her
pregnancy falls within her private life, which the government ought not to interfere with.

182
App. No. 27527/03, 46 Eur. H.R. Rep. 22 (2008).
183
“Tysiąc v. Poland”, https://www.womenslinkworldwide.org/en/gender-justice-observatory/court-rulings-
database/tysiac-v-poland (accessed 21 September 2019)
184
R. R. v. Poland, 27617/04, Eur. Ct. H.R., para. 209 (2011).
185
Supra note 182.
186
Section 39(1) is to the effect that “every person shall be entitled to freedom of expression including freedom
to hold opinions and to receive and import ideas and information without interference.”
187
Olomojobi, Yinka, “Right to Privacy in Nigeria” (October 31, 2017). Available at
SSRN: https://ssrn.com/abstract=3062603 or http://dx.doi.org/10.2139/ssrn.3062603

40
4.1.5 Woman’s Right to be Free from Cruel, Inhuman, or Degrading Treatment

International law recognizes that women have a right to be free from cruel, inhuman, or
degrading treatment, and that denying women the right to abortion thereby causing them to
carry the pregnancy to full term, or procure unsafe abortions, is a violation of that right.188
This paper has earlier examined the consequential effects that unwanted pregnancies have on
the mental health of the pregnant women. Thus, it is not far-fetched to argue that restricting
abortion services constitute a necessary violation of a woman’s right to be free from cruel,
inhuman or degrading treatment. The Human Rights Committee has stated that cruel,
inhuman, or degrading treatment is not restricted to acts that cause physical pain, but also
applies to mental suffering, which often accompanies denials of access to abortion
services.189 It has been established earlier in this paper that forcing women to carry unwanted
pregnancies to full term causes both physical and mental suffering. The Committee against
Torture (CAT) has also recognized the impact of restrictive laws, which force women to
carry unwanted pregnancies to term or to undergo illegal abortions that often place their
health and lives in danger, and noted that the failure of States to take steps to prevent these
acts constitutes cruel and inhuman treatment.190 In fact, the Committee specifically stated that
a total ban on abortion, forcing a woman to carry an unwanted pregnancy resulting from
gender based violence such as rape, “entails constant exposure to the violation committed
against her and causes serious traumatic stress and a risk of long-lasting psychological
problems such as anxiety and depression.”191

In L.M.R. v. Argentina, the Human Rights Committee found that the State’s failure to ensure
a woman’s access to abortion services to which she was legally entitled, caused her physical
and mental suffering, which constituted cruel, inhuman or degrading treatment. 192 The
Committee recognized that the physical and mental suffering the woman was forced to
endure was further aggravated by her status as a young woman with a disability, and
confirmed that the treatment covered by Article 7 of the ICCPR extends to acts that cause

188
See Chapter 3 for the mental consequences of unwanted pregnancies on women.
189
UN Human Rights Committee (HRC), CCPR General Comment No. 20: Article 7 (Prohibition of Torture, or
Other Cruel, Inhuman or Degrading Treatment or Punishment), 10 March 1992, (44th Sess., 1992), ch. II, para.
5 at 200, U.N. Doc. HRI/GEN/1/Rev.9 (Vol. I) (2008). Available at:
https://www.refworld.org/docid/453883fb0.html [accessed 21 September 2019]
190
CAT Committee, Concluding Observations: Peru, para. 23, U.N. Doc. CAT/C/PER/CO/4 (2006).
191
CAT Committee, Concluding Observations: Nicaragua, para. 16, U.N. Doc. CAT/C/NIC/CO/1 (2009).
192
L.M.R. v. Argentina, Human Rights Committee, Views: Communication No. 1608/2007, para. 9.2, U.N.
Doc. CCPR/C/101/D/1608/2007 (2011).

41
mental suffering.193 Additionally, in R.R. v. Poland, the European Court of Human Rights
established a violation of the right to be free from inhumane and degrading treatment because
of the suffering experienced by R.R., due to the knowledge that she could not terminate her
pregnancy even though the fetus had an incurable deformity and she was entitled to have an
abortion under the Polish law.194 The Court stated that “she suffered acute anguish through
having to think about how she and her family would be able to ensure the child’s welfare,
happiness and appropriate long-term medical care.” Furthermore, the denial of access to
abortion services in certain circumstances, regardless of the legality of the procedure,
constitutes cruel, inhuman or degrading treatment.

The right to freedom from inhumane treatment is contained in Section 34(1)(a) of the
Nigerian Constitution,195 and it is unclear whether this includes mental suffering as well.
However, the inclusion of mental agony as part of the meaning of the right to be free from
inhumane treatment under the Nigerian Constitution can only be achieved upon judicial
intervention through liberal interpretation of the right in accordance with international
standards and best practices.

4.2 Comparative Analysis of the Right to Abortion in Other Jurisdictions

4.2.1 Abortion in South Africa

South Africa is one of the three countries in Africa which makes abortion legal on all grounds
for its citizens. The Choice on Termination of Pregnancy Act, (CTOPA) 1996 is the law
governing abortion in South Africa and it allows abortion on demand up to the twelfth week
of pregnancy,196 under broadly specified circumstances from the thirteenth to the twentieth
week,197 and only for serious medical reasons after the twentieth week.198 The Act has been
described by the Guttmacher Institute as "one of the most liberal abortion laws in the
world."199 Abortions may only be done with the informed consent of the pregnant woman and

193
Ibid.
194
Supra note 184.
195
Every individual is entitled to respect for the dignity of his person, and accordingly…no person shall be
subjected to torture or to inhuman or degrading treatment.
196
Section 2(1)(a) of the Act
197
Section 2(1)(b) of the Act
198
Section 2(1)(c) of the Act
199
Althaus, Frances A. (June 2000). "Work in Progress: The Expansion of Access to Abortion Services in South
Africa Following Legalization". International Family Planning
Perspectives.https://www.guttmacher.org/journals/ipsrh/2000/06/work-progress-expansion-access-abortion-
services-south-africa-following ( accessed 21 September 2019)

42
no other person's consent may be required.200 Health workers are under no obligation to
perform or take active part in an abortion if they do not wish to, however they are obligated
by law to assist if it is required to save the life of the patient, even if the emergency is related
to an abortion.201 A health worker who is approached by a woman for an abortion may
decline if they choose to do so, but are obligated by law to inform the woman of her rights
and refer her to another health worker or facility where she can get the abortion.202 Since the
legalisation of abortion in South Africa, there has been a decrease in deaths from backstreet
abortions, but the number of deaths following abortions is still quite high. According to
statistics gathered in Gauteng province, 5% of maternal deaths following childbirth are
abortion related.

South Africa is still faced with major barriers to the access to safe abortion, one of which is
lack of adequate information. Studies and anecdotal evidence show that there is lack of
knowledge among women and girls that they can access legal abortion services, which means
they are more likely to seek unsafe abortions.203 According to a 2017 study, 32% of South
African women do not know abortion is legal.204 Access to safe abortion services is also
impeded by unavailability or inaccessibility to healthcare facilities in South Africa. In
Amsterdam, those seeking abortions have to travel 46km to the nearest hospital, which has
one provider, resulting in long waiting times and the risk of being denied an abortion when
the procedure is delayed beyond the gestational limits under the Choice on Termination of
Pregnancy Act.205 In 2016 the National Department of Health confirmed with Amnesty
International that 505 of 3880 (13%) government health facilities were designated to provide
abortion services, however, only 264 (3,8%) were providing services.206 Another problem is
the lack of personnel to perform abortion services. A recent survey by Bhekisisa, the Mail &
Guardian newspaper’s health journalism centre, found that less than 5% of public clinics and

200
Section 5 of the Act.
201
Supra note 188.
202
Ibid.
203
Daily Maverick Reader, “Women are still being denied access to safe, legal abortion in SA,” Daily Maverick,
28 May, 2019, available at https://www.dailymaverick.co.za/article/2019-05-28-women-are-still-being-denied-
access-to-safe-legal-abortion-in-sa/ (accessed 22 September 2019)
204
Firoza Haffejee, et. al, (2018) Factors associated with unintended pregnancy among women attending a
public health facility in KwaZulu-Natal, South Africa, South African Family Practice, 60:3, 79-83, DOI:
10.1080/20786190.2017.1396790
205
Supra note 193.
206
Ibid.

43
hospitals offer the procedure.207 According to Leading Safe Choices, over 40% of designated
abortion care sites in 2011 weren’t actually providing the service.208 This is because of the
‘conscientious objection’ option, or the right for medical professionals to refuse to perform
abortion on religious or moral grounds.209

South Africa’s situation demonstrates a truth that is important for the global reproductive
health community to remember: legalizing abortion is one thing, but ensuring safe abortion
is accessible can be quite another.210 While stigma remains a problem in certain clinics,
places like ‘Marie Stopes’ and ‘Nalane 4 Reproductive Justice’ are a few trusted places to
turn to for services and information.211 However, these places may not be easily affordable by
low-income women, thus complicating matters for them.

4.2.2 Abortion in the Netherlands

Abortion in the Netherlands was fully legalized in 1984, allowing abortions to be done on-
demand until the twenty-first week.212 The peculiarity of Netherlands’ law on abortion is that
abortion is still included in the Criminal Code of Netherlands, but doctors do not face
prosecution if they perform the procedure in accordance with the criteria set out in the
Termination of Pregnancy Act.213 This shows that the law in the Netherlands punishes
backalley or clandestine abortions. Legal abortions must be performed by a medical
practitioner in a clinic pursuant to the Termination of Pregnancy Act. In the Netherlands,

207
Bhekisisa Team, “#SizaMap: Find a safe, legal abortion near you with this list of designated providers”,
available at https://bhekisisa.org/article/2017-11-20-sizamap-find-a-safe-legal-abortion-near-you-with-this-list-
of-designated-providers-1/ (accessed 22 September 2019)
208
“Abortion is Illegal in South Africa – But Illegal Clinics are Thriving, Why?” available at
https://brightthemag.com/abortion-in-south-africa-is-legal-but-half-are-done-illegally-why-969ffcb7dfea
(accessed 22 September 2019)
209
Health-care professionals who claim conscientious objection must refer the woman to another willing and
trained provider in the same, or another easily accessible health-care facility. Where referral is not possible, the
health-care professional who objects, must provide safe abortion to save the woman’s life, to prevent serious
injury to her health and provide urgent care when women present with complications from an unsafe or illegal
abortion.
210
Supra note 198.
211
“How to Get a Safe Abortion in South Africa”, available at https://www.cosmopolitan.co.za/health-
fitness/how-to-get-a-safe-abortion-in-south-africa/ (accessed 22 September 2019)
212
Q&A on Abortion in the Netherlands, Publication of the Netherlands Ministry of Foreign Affairs, available
at https://web.archive.org/web/20080405222048/http://www.hollandnagykovetseg.hu/files/4486929507.pdf
(accessed 22 September 2019)
213
Article 296 of the Criminal Code of the Netherlands provides thus:
Any person who provides treatment which he knows or could reasonably suspect might terminate a
pregnancy shall be liable to a term of imprisonment not exceeding four years and six months or a
fourth category fine (not exceeding NLG 25,000*).
The act referred to in paragraph 1 shall not be an offence if the treatment is given by a medical
practitioner in a hospital or clinic in which such treatment may be provided pursuant to the Termination
of Pregnancy Act.

44
abortion is prohibited once the fetus is viable and capable of surviving outside its mother’s
body. The absolute limit is after 24 weeks. In practice, however, the limit is 21 weeks and a
few days. After the first trimester, the procedure becomes stricter, as two doctors must
consent to treatment. Practically, abortions are performed until approximately 24 weeks into
pregnancy, although this limit is the topic of ongoing discussion among physicians in the
Netherlands, since, due to recent medical advancements, a fetus can sometimes be considered
viable prior to 24 weeks. As a result of this debate, abortions are only rarely performed after
22 weeks of pregnancy.

Abortions must be performed in a hospital.214 In 2000 the abortion pill (Mifepristone) was
registered in the Netherlands under the trade name Mifegyne.215 At present, 108 hospitals and
17 clinics in the Netherlands are licensed to perform abortions.216 Such licenses are granted
by the Minister of Health to establishments that satisfy the statutory requirements relating to
the quality of treatment in terms of medical competence and facilities as well as
psychological care. The directors of these establishments must submit quarterly reports to the
Health Care Inspectorate, stating, for instance, the number of patients they have treated, but
without disclosing private information.217 The procedure in which a woman undergoes before
ultimately deciding whether she wants to have an abortion is very thorough.218 If a woman
wants to terminate her pregnancy, she must first consult her doctor who will discuss
alternative solutions to her problem. If the woman nevertheless decides to terminate the
pregnancy, he must establish that she has reached her decision after careful consideration and

214
Ibid
215
The Editors of Encyclopaedia Britannica, “RU-486”, available at https://www.britannica.com/science/RU-
486
216
https://www.hollandexpatcenter.com/themes/personal---social-needs/health-care/abortion/ (accessed 22
September 2019)
217
Supra note 202.
218
Section 5(1) provides that:
General administrative regulations shall be issued setting forth conditions governing the provision of
assistance and the reaching of decisions designed to ensure that any decision to terminate a pregnancy is
taken carefully and is reached only if the distress in which the woman finds herself leaves no other choice.
In particular, the conditions referred to are designed to ensure:
i. that the woman who intends to terminate her pregnancy and has approached a physician with a
request to this effect is given assistance, particularly through the provision of sound information
regarding ways of dealing with her distressed situation other than termination of pregnancy;
ii. that, if the woman is of the opinion that there is no other way to end her distressed situation, the
physician is satisfied that the woman has submitted and upheld her request of her own free will,
after careful consideration and in full awareness of her responsibilities towards the unborn child
and of the consequences to herself and those nearest her;
iii. that, without prejudice to the provisions of Section 20, the physician provides the treatment only if
it can be considered justifiable on the basis of his findings; and
iv. that, following termination of the pregnancy, the woman and those nearest to her have access to
adequate aftercare, including information regarding methods of preventing unwanted pregnancies.

45
of her own free will.219 Both the woman and the doctor are responsible for the process of
reaching a decision, although the decision as such is ultimately made by the woman.220 For
women who are resident in the Netherlands, the costs of a termination performed by a
licensed clinic are covered by the Exceptional Medical Expenses Act. 221 Treatment in a
hospital is covered by the health insurance fund or a private insurance company. Women who
are resident abroad and who have a pregnancy terminated in the Netherlands have to pay the
costs themselves.222

Despite its abortion-friendly clime, the Netherlands has always had a relatively low abortion
rate, and this is largely due to the widespread use of contraceptives in this country.223 Factors
facilitating the rapid transition to a contraceptive society in the Netherlands were a voluntary
family planning movement, fear of overpopulation, role of general practitioners in providing
family planning services, and inclusion of family planning in the national public health
insurance system.224 The Netherlands society seems to be more focused on the prevention of
unwanted pregnancies, rather than the termination. Acceptance of contraception thus
preceded liberalization of abortion.225 The popularity of contraceptives was propelled by
concerns about overpopulation.226 In a short space of time, the Netherlands was transformed
from a country with a high birth rate by European standards into one in which birth control
was common practice. The Dutch experience with family planning shows the following
characteristics: a strong wish to reduce reliance on abortion, ongoing sexual and
contraceptive education related to the actual experiences of the target groups, and low barrier
family planning services.227

219
Supra note 202.
220
Supra note 202.
221
“The new Dutch Health Insurance Scheme: Challenges and Opportunities for Better Performance in Health
Financing”, Discussion Paper No 3 – 2007, Department "Health System Financing" (HSF) & Cluster "Health
Systems and Services" (HSS), WHO, available at https://www.who.int/health_financing/documents/dp_e_07_3-
new_dutch_healthinsurance.pdf (accessed 22 September 2019)
222
“Costs” available at https://www.bloemenhove.nl/en/abortion_care/practical_information/costs (accessed 22
September 2019)
223
Supra note 202.
224
Ketting E, Visser AP, “Contraception in The Netherlands: the low abortion rate explained.” Patient
Education and Counseling, Volume 23, Issue 3, July 1994, pp. 161-171; available at
https://www.ncbi.nlm.nih.gov/pubmed/7971545.
225
Special family planning programs in the Netherlands target groups at risk of unwanted pregnancy,
particularly teenage pregnancy. Almost all secondary schools and about 50% of primary schools address
sexuality and contraception. Sex education has largely been integrated in general health education programs.
The mass media address adolescent sexuality and preventive behavior. Teens have wide access to contraceptive
services through general practitioners who maintain confidentiality and do not require a vaginal exam and
through subsidized family planning clinics.
226
Supra note 214.
227
Supra note 214.

46
From the foregoing examination of abortion in the Netherlands, one can see that there is a
deliberate step to protect and women’s sexual and reproductive health and rights, with its
thorough procedure and conditions for performing abortions. There are condition precedents
to performing legal abortions on women. For example, a woman and her physician must
agree that her circumstances are compelling, the doctor must inform her of other possible
solutions, and there must be a lapse of at least five days between the woman's first
consultation with her doctor and the actual termination of the pregnancy to give the woman
time for reflection. The Netherlands also seems to have managed to figure out a way to
balance both the rights of the woman and that of the foetus. The aim of the Termination of
Pregnancy Act of 1984 is to balance the two potentially conflicting interests. It is also
commendable that the country seems to place more emphasis on preventing unwanted
pregnancies through the constant push for the use of contraceptives, as well as several
campaigns and educational programs on sex education and family planning. Abortion seems
to be a last resort in the Netherlands.

4.2.3 Abortion in Canada

Abortion in Canada is legal on all grounds, although it is still a bit complicated. Canada has
had no national abortion law to regulate this medical service at a federal level. Instead,
regulations and accessibility vary between provinces, making it both politically and
constitutionally sensitive.228 The reason behind this lack of uniformity is found in the
historical development of legal abortion in Canada. Prior to 1969, abortion in Canada was
229
illegal. In 1969, the Criminal Law Amendment Act legalized abortion, as long as a
committee of doctors certified that continuing the pregnancy would likely endanger the
woman's life or health.230 Abortion in Canada was further liberalized in 1988, when the
Supreme Court of Canada ruled in R. v. Morgentaler that the existing law was
unconstitutional, and struck down the 1969 law.231 This ruling became a significant milestone
in the quest for ensuring access to legal and safe abortion for Canadian women. The Supreme
Court had declared that Section 251 of the Criminal Code violates a woman's right to security
of person under section 7 of the Canadian Charter of Rights and Freedoms and cannot be
saved under section 1 of the Charter. However, this decision left Canada without any laws

228
“Decades later, abortions in Canada are still hard to get.” Available at
https://policyoptions.irpp.org/magazines/august-2019/decades-later-abortions-in-canada-are-still-hard-to-get/
(accessed 22 September 2019)
229
Criminal Law Amendment Act, 1968–69 (SC 1968–69), c 38.
230
Trudeau's Omnibus Bill: Challenging Canadian Taboos (TV clip). Canada: CBC. 1967-12-21.
231
[1988] 1 SCR 30

47
regulating abortion through all nine months of pregnancy.232 With no legal successor to date,
the 1988 decision decriminalizing abortion has spawned an ad-hoc legal environment that
remains confusing and ambiguous. As a result, to date the provision of abortion remains
largely governed by the terms of the Canada Health Act, under which the federal government
has argued that abortion is a “medically necessary service.”233 Provinces have taken action to
restrict access to abortion in various ways that do not involve criminal law.234

The regulation of abortion by Canadian provinces has shown to result in a lack of equal
access to abortion service providers by Canadian women. For example, there are no abortion
clinics on Prince Edward Island, for instance, and New Brunswick refuses to fund any
abortion performed at a private clinic, a policy which Dr. Morgentaler himself took on in a
2008 court challenge against the government of New Brunswick.235 It wasn’t until a local
advocacy group filed a lawsuit that the Prince Edward Island (PEI) government agreed, in
2016, to establish a provincially operated clinic. Yet, as this one clinic has a capacity well
under the annual demand, many women and girls are still paying out-of-pocket expenses to
travel to neighbouring provinces for abortions.236 By comparison, Ontario has been perceived
as a more progressive province. Even though Ontario was one of the leaders in establishing
Therapeutic Abortion Committees (TACs) under the 1969 law, 46 percent of Ontario
hospitals had no committee and 12 of the participating hospitals did not approve a single
procedure from 1969 to 1988.237 The Ontario government made steps to improve access in
1990 by placing the five abortion clinics active at the time under the Independent Health
Facilities Act, a move that made abortions performed there fully funded.238 However,
successive governments have not made attempts to amend the Act, so procedures in clinics
set up more recently are yet to be fully paid for. Additionally, all 13 clinics operating today
are located in or near metropolitan centres, making their services largely inaccessible for

232
“Abortion rights: significant moments in Canadian history”, available at
https://www.cbc.ca/news/canada/abortion-rights-significant-moments-in-canadian-history-1.787212 (accessed
22 September 2019)
233
“Historic ruling in Morgentaler abortion case left a controversial 'legislative void'.” Available at
https://nationalpost.com/news/canada/henry-morgentaler-abortion-case-left-a-controversial-legislative-void
234
Karine Richer, Law and Government Division, Parliament of Canada. “Abortion in Canada: Twenty Years
after R. v. Morgentaler.” 24 September 2008
235
Supra note 223.
236
LEAF and AANPEI Welcome Announcement that PEI Government Will End Its Discriminatory Abortion
Policy, available at https://www.leaf.ca/leaf-and-aanpei-welcome-announcement-that-pei-government-will-end-
its-discriminatory-abortion-policy/
237
Supra note 218.
238
Ibid

48
northern residents.239 Meanwhile, some provinces have taken steps to protect abortion rights
and make it more easily accessible. Most recently in June 2018, Alberta passed the
“Protecting Choice for Women in Accessing Health Care Act.”240

Prince Edward Island and Ontario illustrate the unique way that Canadian abortion policies
have been like for decades. While women in one province had to fight to get just one abortion
provider, residents in the other have many clinics, in theory, but geography and religious
practices create challenges of accessibility. Across Canada, barriers of one kind or another
persist. With very few instances of the federal government enforcing the Canada Health
Act in the area of abortion, Canadian women have been left to navigate their reproductive
futures alone.241 All these, in addition to the absence of a national law on abortion, only serve
to make the issue of abortion in Canada very tricky and unpredictable, as well as subjecting
the legality of abortion to possible danger due to the heavy politicization of the matter, as
seen in the ongoing controversy of whether or not to reopen the abortion debate.242 This
peculiar situation in Canada also goes to show that, like South Africa, it takes more than just
a Supreme Court ruling on abortion to ensure equal access to legal and safe abortion for
Canadian women.

4.3 Conclusion

An analysis of the international and regional provisions on the issue of abortion was
considered necessary to show the emerging trends as regards the matter. Human rights are
interrelated and interdependent. Each one contributes to the realization of a person’s human
dignity through the satisfaction of his or her developmental, physical, psychological and
spiritual needs. The fulfilment of one right often depends, wholly or in part, upon the
fulfilment of others.243 In the context of this research paper, the right to life, health, privacy,
freedom from discrimination or freedom from inhumane treatment, may depend, in certain
circumstances, on the right to safe and legal abortion for women. Asides judicial intervention
through liberal interpretation, these rights may be enforced in a number of other practicable
ways. For example, the legislative arm of government may enact laws on specific provisions
of the Constitution which are non-justiciable, for example, the right to adequate medical

239
Ibid
240
https://globalnews.ca/news/5310984/abortion-rules-canada/
241
Ibid
242
“Canada’s abortion issue gets renewed attention ahead of federal election,” available at
https://globalnews.ca/news/5884692/abortion-election-federal-canada/
243
United Nations Population Fund (UNFPA), “Human Rights Principles” available at
https://www.unfpa.org/resources/human-rights-principles (accessed 21 September 2019)

49
facilities. For the protection and promotion of women’s sexual and reproductive health, this
legislation should necessarily include access to legal and safe abortion and post-abortion
services. Another way to enforce these rights, is to domesticate the international and/or
regional treaties which have been ratified in accordance with Section 12 of the
Constitution.244 The position of Nigerian law is that mere ratification of foreign treaties does
not ipso facto make it enforceable in Nigerian courts. The National Assembly must enact
such treaty into law before it can be enforceable within the Nigerian legal system.245

Bearing all these in mind, the argument of this paper is that the existence of criminal
provisions on abortion is a gross violation of Nigerian women’s fundamental human rights,
the protection of which can only be achieved with drastic and deliberate steps by the Nigerian
government. Also, from the comparative analysis with other countries, we can see that it
takes more than a friendly legal environment to guarantee safe access to abortion services.
Some countries are held back by non-legal barriers such as societal stigma as in the case of
South Africa, or varying laws within different regions of the country, as in the case of
Canada. However, very few countries seem to have managed to have a firm grasp on the
matter of abortion, for example, the Netherlands. It must be noted that this is largely due to
the country’s emphasis on the use of contraceptives. It seems the Netherlands favors a
‘prevention is better than cure’ approach, but however still guarantees a woman’s right to
safe and legal abortion if adequate preventive measures were not taken, or had failed.

244
No treaty between the Federation and any other country shall have the force of law except to the extent to
which any such treaty has been enacted into law by the National Assembly.
245
See African Charter on Human and Peoples' Rights (Ratification and Enforcement) Act, Chapter A9,
(Chapter 10 LFN 1990).

50
 CHAPTER FIVE
RECOMMENDATIONS AND CONCLUSIONS

5.0 General Overview and Summary

This project paper began with an analysis of the major problem to which solutions are being
proposed. It was established that the current anti-abortion law in Nigeria constitutes a serious
threat to safe abortion procedures thereby leaving women, especially uneducated or low-
income earning women, to resort to hazardous measures in terminating an unwanted
pregnancy. The harmful effects of these unsafe abortions have been presented in various parts
of this paper, with the objective of strongly urging for the need to reform this law so as to
cater to the sexual and reproductive rights and health of Nigerian women.

The second chapter evaluated the current literature on this topic, identifying the key
arguments of opposing sides to the abortion debate, pointing out the strengths and
weaknesses of both sides, and eventually siding with the pro-choice school. This is based on
the idea that a woman’s rights and freedoms must prevail over the highly controversial ‘right’
a foetus may have. This chapter also recommended the use of legislative innovation by the
expansion of the grounds of abortion, as well as judicial intervention through liberal
interpretations of the exception, in line with foreign jurisdictions, in combatting the problems
stated above.

The third chapter of this paper embarked on a detailed analysis of the criminal framework of
abortion in Nigeria, judicial attitude towards it and the statistical information available, as
well as the various causes, effects and contributing factors to unsafe abortions in Nigeria.
Also, it was shown that despite this law, there are not many reported cases on abortion, even
though there has been several reports of death or complications from unsafe abortion
procedures. This goes to show that the abortion law in Nigeria is in effect a toothless bulldog,
as it is rarely enforced. This realization alone is one that is infuriating and oppressive to the
core, as its main effect is the denial of women their rights to adequate health care and
freedom from torture and mental agony, amongst many other rights necessarily violated due
to such laws which are unfavourable to women.

In the fourth chapter, an analysis of the international and regional provisions on the issue of
abortion was done to show the emerging trends as regards the matter. Since human rights are
interrelated and interdependent, the fulfilment of one right often depends, wholly or in part,

51
upon the fulfilment of others.246 In the context of this research paper, the right to life, health,
privacy, freedom from discrimination or freedom from inhumane treatment, may depend, in
certain circumstances, on the right to safe and legal abortion for women. The argument of
this paper is that the existence of criminal provisions on abortion is a gross violation of
Nigerian women’s fundamental human rights, the protection of which can only be achieved
with drastic and deliberate steps by the Nigerian government. Also, from the comparative
analysis with other countries, we can see that it takes more than a friendly legal environment
to guarantee safe access to abortion services. Some countries are held back by non-legal
barriers such as societal stigma as in the case of South Africa, or varying laws within
different regions of the country, as in the case of Canada. However, very few countries seem
to have managed to have a firm grasp on the matter of abortion, for example, the Netherlands.
It must be noted that this is largely due to the country’s emphasis on the use of
contraceptives. It seems the Netherlands favors a ‘prevention is better than cure’ approach,
but however still guarantees a woman’s right to safe and legal abortion if adequate preventive
measures were not taken, or had failed.

5.1 Recommendations

The whole essence of this paper is to call for a fundamental rethinking of the law prohibiting
abortion in Nigeria, with a strong conclusion that a thorough reform of the abortion
provisions is a sine qua non of safeguarding the sexual and reproductive health and rights of
Nigerian women. The major recommendation of this paper is a reform of the abortion law. In
addition, this concluding chapter will also include other non-legal recommendations towards
ensuring that the sexual and reproductive rights and health of women are protected and
promoted. These recommendations will encompass measures to prevent unwanted
pregnancies, as well as measures to combat the occurrence of such pregnancies.

5.1.1 Legislative Reform of the Abortion Law

It is therefore suggested that the current law on abortion in Nigeria be reformed to the extent
of one or more of the following provisions:

a. Expansion of the legal grounds for abortion in Nigeria: In order to safeguard the
various sexual and reproductive rights of women in Nigeria, it is suggested that the
country amends its existing laws and expands them to accommodate more grounds upon

246
https://www.unfpa.org/resources/human-rights-principles (accessed 21 September 2019)

52
 which abortion may be legally sought asides preserving the life of the woman.247 Under
the current Nigerian law, the only legally permissible ground for abortions is to save the
life of the pregnant woman. The various grounds upon which abortion is legally allowed
in other countries are: to save or preserve the life of the woman, to preserve the physical
or mental health of the woman, in cases of rape, incest or fetal abnormality, for socio-
economic reasons, or upon the request of the pregnant woman, usually with gestational
limits, for example, a country may allow abortion on request until 12 weeks, and may
create exceptions to this general gestation limit for later abortions in specific
circumstances. Thus, in line with international best practices, it is suggested that Nigeria
amends its laws by expanding its laws to include at least, other grounds such as rape,
incest, fetal abnormality, physical or mental health of the woman, and for socio-economic
reasons. This necessarily means that the law must put into consideration factors such as
age of the woman, financial capability, current health of the woman, both physical and
mental, etc.
b. Inclusion of Certain Legal Limitations: Bearing in mind the extremely conservative,
religious and cultural nature of the Nigerian society, this law may be met with various
challenges as has been done in the past. Thus, in an attempt to balance communal
interests with individual rights of women, the amended legislation may include
limitations on the legally permissible grounds to ensure that the leeway given by the law
is not ultimately abused or frustrated. For example, it may provide for parental consent in
cases for minors,248 gestational limits on abortions, and an approval by a number of
qualified medical practitioners that the continued pregnancy constitutes a threat to the
physical or mental health of the woman, or that the foetus is seriously malformed.
c. Reform of the Exception to Preservation of the Life of the Pregnant Woman: It was
noted in the third chapter of this project paper, that abortion is legally permissible only to
save the life of the pregnant woman, and the legal basis for this is Section 297 of the
Criminal Code, as well as Section 232 of the Penal Code. Section 297 is however
restricted to surgical operations done to save the pregnant woman’s life and does not
accommodate other procedures which may be done to save her life. Therefore, for
example, administering the abortion pill, which is known for its effectiveness and safety,
would not qualify as a procedure done to save the life of a pregnant woman under the

247
Supra note 52; also, note that these laws may be at both federal and state levels.
248
The insertion of a limit such as parental consent may seem contradictory to the aims and objectives of the
law, as it may not be likely that Nigerian parents would willingly permit their female children to get abortions
done.

53
 Criminal Code. It is recommended, that this section be subject to legislative reform so as
to accommodate a wider means of procedures which can be done to safeguard and protect
the life of a pregnant woman.
d. Establishment of a Special Committee: It is suggested that a special committee called,
‘Special Committee on the Sexual and Reproductive Health of Women’, be established
by this law in the various states of the Federation. The objective of this committee would
be to deal with matters relating to the sexual and reproductive health of women, and
particularly, in context of this discussion, matters relating to legal and safe access to
abortion for women. Therefore, in line with the recommended expansion of grounds
stated above, this special committee would be charged with the responsibility and duty of
listening to applications for legal and safe abortions by women, and assessing each case
to determine whether or not they meet the criteria for legally permissible abortions. So for
example, a woman who seeks to legally induce an abortion on socio-economic grounds
may approach the committee within her geographical location, and make her case
justifying a will to terminate her pregnancy, with proof as to financial standing and
incapability of raising the child due to her dire circumstances. If the committee is satisfied
with her application, she may thus be issued a certificate of approval which would permit
her to approach a licensed clinic or health centre to undergo a safe abortion procedure.
The amended legislation would provide the modus operandi of such committee, its
constitution, appointment and so on.
e. Reform of the Criminal Sanctions on Illegal Abortions: Under the current criminal
provisions on abortion in Nigeria, abortion is punishable with imprisonment for up to
fourteen years.249 These provisions are submitted to be extremely harsh on women who
may be in dire need of abortions. It is therefore recommended that abortions which are
done outside the grounds stated in the proposed amended legislation, be punished with
imprisonment for a term not more than twelve (12) months, for both women who undergo
illegal abortions, as well those individuals who perform the abortions. Although, it is not
desirable that women be punished for undergoing abortions, in light of the Nigerian
society, this kind of proposal may be necessary to ensure that women do not suffer
excessively under the restrictive nature of our abortion laws. The law may also propose
various alternatives to imprisonment, such as fines and community service.

249
Under the Penal Code, imprisonment may be up to life if the abortion causes the death of the woman.

54
f. Certification of Qualified Health Centres and Medical Personnel: For the safety and
well-being of women who undergo legal abortions, it is pertinent for the law to provide
mechanisms to ensure their protection. One of such measures is the certification and
licensing of hospitals, as well as individuals who have undergone special training in
medical field, especially in the surgical department, so as to qualify them as being able to
legally perform abortions on women. Without this certification, such health centres or
individuals cannot legally terminate a woman’s pregnancy.

5.1.2 Judicial Activism and Liberal Interpretation of the Laws

Whether under the existing criminal framework or under the recommended amended
legislation, it is suggested that the laws be liberally interpreted in a way that the human rights
of the woman are secured. For example, the exception for saving the life of the pregnant
woman under the current framework, may be liberally interpreted so as to include the health
of the woman as well. In R v. Bourne,250 the court stated that protecting the life could be
understood to include health, both physical and mental, of the pregnant woman. It thus
introduced into the legal framework, the concept that the pregnancy could have detrimental
effect on a woman’s health, to include both physical and mental health, such as to pose a
significant risk to her life.251 In the proposed amended legislation, grounds of physical and
mental health may be liberally interpreted to accommodate cases where the pregnant woman
who does not feel emotionally or mentally ready to have a child, either due to compelling
reasons such as age, financial capability or education, may qualify for a legal abortion.

5.1.3 Establishment and Maintenance of Reproductive Health Clinics

The Nigerian government should endeavour to establish well-equipped maternal and

reproductive health clinics towards the promotion of women’s sexual and reproductive
health. These clinics are to provide a variety of services ranging from performing legal
abortions, to provision of contraceptives, and the education of women on the prevention of
unwanted pregnancies with family planning. Whether all these would be done free of charge,
like in some countries, or at a subsidized fee, it is submitted that the establishment and
maintenance of these facilities in various places especially the rural areas, is core to the
protection of women’s sexual and reproductive health, as this would help in strengthening
accessibility of the public to safe, effective and available contraceptives.

250
Supra note 70.
251
“R v. Bourne”, https://www.womenslinkworldwide.org/en/gender-justice-observatory/court-rulings-
database/r-v-bourne (accessed 27 September 2019)

55
These centers are to also provide mandatory post-abortion care, as well as vital physical and
mental health checks, for women who have undergone abortion procedures. It is further
recommended that there should be a special unit for therapy and counselling of women, as
well as rehabilitation centres for women who may be suffering from mental distress as a
result of carrying an unwanted pregnancy or terminating a pregnancy. This should be headed
by medical personnel who specialize in psychological health and counselling. It is also
suggested that these health clinics be set up in prisons for female prisoners who may be
suffering health complications due to illegal abortions. Alternatively, these female prisoners
could be transported without unreasonable delay, to nearby health facilities who can treat
post-abortion complications.

In achieving this objective, the government could collaborate with private health
organizations and NGOs towards the training of youths in the medical field, as well as
medical practitioners on various safe abortion methods to enable deployment of such
personnel to such reproductive health clinics. Partnerships with international organizations,
NGOs dedicated to sexual and reproductive health and health service providers like Marie
Stopes International, International Women’s Health Coalition (IWHC) are also encouraged,
to ensure the promotion of effective reproductive healthcare services and the provision of
subsidized contraceptives that will be distributed to reproductive health clinics and primary
health centers especially in rural areas. It is further suggested that there are special
information and enlightenment units in these health facilities which would be charged with
the responsibility of coordinating reach-out campaigns and awareness programs where sexual
and reproductive health resources such as information pamphlets and contraceptive devices
would be provided. Alternatively, NGOs, educational institutions and civil societies may
collaborate with these maternal and reproductive health facilities to spearhead awareness
campaigns on the importance of contraceptives and family planning mechanisms.

Finally, in balancing the interest of all stakeholders, the government may include a
‘conscientious objection’ ground for health practitioners who may have religious or moral
objections to performing abortions on women, however, it is suggested that this does not
extend to cases where the life of the pregnant woman is in danger. Also, there should be the
obligation of such practitioners with conscientious objections to refer the pregnant woman to
the services of a practitioner who does not object on such grounds. In ensuring that such
services are readily available, hospitals and maternal health clinics should include the
question of conscientious objections in applications to take up employment in such

56
institutions, so as to know the number of practitioners who have conscientious objections, as
opposed to those who do not. This would prevent a situation where a pregnant woman may
not find any practitioner willing to perform an abortion for her, thus requiring her to go from
clinic to clinic.

5.1.4 Adequate Training of Medical Personnel

For the effective performance of legal abortions on women, and for the proper treatment of
those who may be suffering complications from unsafe abortions, it is essential that there are
skilled and professional medical personnel available to perform such procedures. The
Nigerian government is therefore urged to provide adequate training for medical practitioners
in developing countries and this could be done by granting scholarships to exceptional
individuals, to study in countries which are advanced in the medical field. The government
could alternatively collaborate with other countries who are ready and willing to be involved
in programs where medical personnel would be brought into Nigeria for the sole purpose of
information and technology sharing between the two countries, in an effort to improve the
quality of medical care for women and drastically reduce the number of casualties. At the end
of such trainings, the individuals would then obtain the proper certification and license for
them to practice as abortion providers.

5.1.5 The Inclusion of Sexual Education in School Curriculums

The importance of sex education for the youth and adolescents has been established in this
paper. The government should therefore take steps towards inculcating sexual and
reproductive health policies into the educational sector. This would be geared towards the
educating pre-teens, adolescents and youths on the importance of sexual and reproductive
health and importance and the benefit of contraceptives, and also with the aim of eliminating
the stigmatization of abortion. This could be done by organizing occasional programs on the
matter, or by making sex education a course of study of an academic or extracurricular
nature, subject to the discretion of the educational institution. Another way of further pushing
the agenda of sex education in schools would be to organize re-orientation programs for
teachers in these educational institutions as well, seeing as sometimes they may be the ones
encouraging the stigmatization of abortion or the use of contraceptives. This could be done
through periodic seminars, workshops, conferences or symposiums. Schools could also
employ the use of art mediums such as drama, fine art, animation to pass across the sexual

57
and reproductive health message to a younger audience, which would inform the need for
extinguishing of the stigma that accompanies women who opt for abortions.
However, it is one thing for something to be recognized as necessary, and another thing to
actually be enforced. The inclusion of sexual education in education curriculums may face a
few challenges due to the heavily conservative nature of the society, as well as the attitude of
parents to the topic of sex. The Ministry of Education may need to regulate the scope of
content which this sexual and reproductive health education policy may contain, as well as
the ages of children which would be covered by the system. Also, the educational institutions
and the government must be able to work with parents in drafting the sexual and reproductive
policy in the educational sector. For example, a Law was enacted in Alaska, United States,
which requires local school boards to adopt policies to promote the involvement of parents in
the school district’s education program, in consultation with parents, teachers and school
administrators. Among other requirements, the policies must allow parents to object to and
withdraw a child from an activity, class or program. The policies must also include a
procedure for notifying parents at least two weeks before any activity, class or program with
content involving human reproduction or sexual matters is provided to a child. Sex education,
human reproduction education and human sexuality education curriculum and materials must
be approved by the school board and available for parents to review. In addition, sets
requirements for those who teach sex education, human reproduction education or human
sexuality education.252

5.1.6 Public Enlightenment and Education

In addition to the awareness programs to be done by health institutions stated above, other
bodies, institutions, NGOs and civil societies are encouraged to organize programs,
campaigns and initiatives geared towards enlightening the public on the prevention of
unwanted pregnancies and importance of contraceptives. This could be done through various
media outlets such as television, sexual and reproductive health newspaper columns, social
media, sponsored advertisements and many more channels. Also, the assistance of indigenous
people may be engaged in each locality in order to breach the barrier of language, custom,
culture and tradition. For the effective promotion of sexual and reproductive health
information and enlightenment, it is important to fully involve the youth. These campaigns
and programs may be done through the empowerment of youth-led initiatives which advocate

252
“State Policies on Sex Education in Schools,” available at http://www.ncsl.org/research/health/state-policies-
on-sex-education-in-schools.aspx (accessed 27 September 2019)

58
for the right to sexual and reproductive health of women and NGOs for the organization of
rallies, educational programs, and to run language and location specific sexual and
reproductive outreaches targeted at rural areas. Alternatively, it could be done through
facilitating the alliance of youth-led organizations with existing international reproductive
health campaigns such as the ‘She Decides Initiative’ and ‘SatelLife Initiative’ which uses
effective technology to provide information to about 4,000 health professionals in Africa &
Asia. Also, a youth-led forum may be launched to facilitate discussions on sexual and
reproductive health matters and issues at the youth level.

5.1.7 Domestication of Treaties

Finally, it is important to emphasize the need for the domestication of international treaties in
line with Section 12 of the Nigerian Constitution. This would ensure the rights guaranteed in
these treaties are locally enforceable. It is therefore recommended that the National Assembly
ratifies, and enacts into law, and implements the provisions of the Protocol to the African
Charter on Human and Peoples Rights, also known as the MAPUTO Protocol. This would
make Article 14 which permits abortions on certain grounds, to be legally enforceable within
Nigeria.

5.2 Conclusion
This project paper has been able to examine the legal framework prohibiting abortion in
Nigeria as well as its effects on the society, the implications of restrictive abortion laws in
Nigeria, the main causes of unwanted pregnancies and unsafe abortions, as well a comparison
of the status of abortion with regional and international standards, as well as with its status in
other jurisdictions. This paper has also been able to suggest possible and practical reforms
and appropriate recommendations on how to reduce unsafe abortions and its complications in
Nigeria. From all these, it is safe to say that there is an urgent need for the reform of the
abortion law in Nigeria. It is only hoped that perhaps a day will come, where the incidence of
deaths and complications from unsafe abortions, will be seen as a thing of the past, never to
resurface again.

59
 BIBLIOGRAPHY
ARTICLES IN JOURNALS AND INTERNATIONAL DOCUMENTS
Adebusoye, MP, Singh, S & Audam, S 1997, ‘Nigerian Health Professional’s Perceptions
About Abortion Practice,’ International Family Planning Perspectives, vol. 23, pp. 155-161
Adinma, E 2011, ‘Unsafe abortion and its ethical, sexual and reproductive right implication,’
West African Journal of Medicine, vol. 30, no 4, pp. 245-249
Anika Rahman, Rachel Pine, “An International Human Right to Reproductive Health
Care,” (1995) 1 Health and Human Rights, pp. 405-406.
Bankole A et al., “Unwanted Pregnancy and Induced Abortion in Nigeria: Causes and
Consequences,” New York: Guttmacher Institute, 2006
Barber J.S., Axinn W.G., Thornton A. “Unwanted childbearing, health, and mother-child
relationships.” Journal of Health and Social Behavior, 1999 Sep; 40(3):231-57.
Bunevicius R. et. al., “Psychosocial risk factors for depression during pregnancy.” Acta
Obstetricia et Gynecologica Scandinavica, 2009;88(5):599-605.
David A.G et. al., “Unsafe abortion: the preventable pandemic,” (2006) The Lancet Sexual
and Reproductive Health Series, Journal Paper of World Health Organization.
Dienye, VU 2011, ‘The Educational and Social Implications of Sexuality and Sex Education
in Nigerian Schools,’ African Journal of Social Sciences vol. 1, no. 2, pp. 11 -19.
Eastwood J.G., Phung H., Barnett B. “Postnatal depression and sociodemographic risk:
factors associated with Edinburgh Depression Scale scores in a metropolitan area of New
South Wales, Australia.” Australian and New Zealand Journal of Psychiatry, 2011, Oct 22.
Ellen S.,et.al., “Investing in Family Planning: Key to Achieving the Sustainable
Development Goals,” Global Health: Science and Practice, Advance Access Article
published on June 9, 2016 as DOI: 10.9745/GHSP-D-15-00374
Firoza Haffejee, et. al, (2018) Factors associated with unintended pregnancy among women
attending a public health facility in KwaZulu-Natal, South Africa, South African Family
Practice, 60:3, 79-83, DOI: 10.1080/20786190.2017.1396790
Funke F. et.al., “Sex of preceding child and birth spacing among Nigerian ethnic groups,”
African Journal of Reproductive Health, 2011 Jun;15(2):79-89.
Grupo Médico por el Derecho a Decidir - Colombia (Global Doctors for Choice Network),
“Unwanted Pregnancy, Forced Continuation of Pregnancy and Effects.” Position Paper,
December 2011, p.11
Haddad, LB 2009, ‘Unsafe abortion: Unnecessary maternal mortality,’ Journal of Obstetrics
and Gynecology, vol. 2, no. 2, pp. 122-126.
Henshaw SK et al., ‘Severity and cost of unsafe abortion complications treated in Nigerian
hospitals,’ International Family Planning Perspectives, 2008, 34(1): 40–50

60
I.E. Adi, “The Question of Abortion,” (1982) Nigerian Current Law Review p. 191.
Ibrahim I.A. et al., “Patterns of Complicated Unsafe Abortion in Niger Delta Teaching
Hospital Okolobiri; A Four Year Review,” (2011) 11 Nigerian Health Journal, no. 4
Jean C.F. et. al., “Family Planning and Reproductive Health in Urban Nigeria: Levels,
Trends and Differentials, Measurement, Learning & Evaluation Project,” (2011) Technical
Working Paper.
Ketting E, Visser AP, “Contraception in The Netherlands: the low abortion rate explained.”
Patient Education and Counseling, Volume 23, Issue 3, July 1994, pp. 161-171; available at
https://www.ncbi.nlm.nih.gov/pubmed/7971545
Koster, W 2010, ‘Linking two opposites of pregnancy lost: Induced abortion and infertility
in Yoruba society, Nigeria,’ Journal of Social Science and Medicine, vol. 71, pp. 1788-1795.
Lau Y., Keung D.W. “Correlates of depressive symptomatology during the second trimester
of pregnancy among Hong Kong Chinese.” Social Science & Medicine. 2007 May;
64(9):1802-11.
Logan C., Holcombe E., Manlove J., Ryan S. “The consequences of unintended
childbearing.” The National Campaign to Prevent Teen and Unplanned Pregnancy. Child
Trends, INC, May 2007.
National Population Commission (NPC) [Nigeria] and ICF International. 2014. Nigeria
Demographic and Health Survey 2013. Abuja, Nigeria, and Rockville, Maryland, USA: NPC
and ICF International.
Okagbue, Isabella, “Pregnancy Termination and the Law in Nigeria.” (1990) vol. 21, no. 4,
Studies in Family Planning, pp. 197–208. JSTOR, www.jstor.org/stable/1966614.
Okonufua F, “Clinical Consequences of Unsafe and Induced Abortion and their
Management in Nigeria; A Seminar Prevention of Morbidity and Mortality from Induced and
Unsafe Abortion in Nigeria,’ (1991) Population Council, pp.19-2
Olomojobi, Yinka, “Right to Privacy in Nigeria” (October 31, 2017). Available at
SSRN: https://ssrn.com/abstract=3062603 or http://dx.doi.org/10.2139/ssrn.3062603
Omo-Aghoja L.O, et.al., “The Story of Abortion: Issues, Controversies and a Case for the
Review of the Nigerian National Abortion Laws,” (2010) Vol. 7 No. 4 East African Journal
of Public Health.
Onwuezobe, IA & Ekanem EE 2009, ‘The Attitude of Teachers to Sexuality Education in a
Populous Local Government Area in Lagos, Nigeria,’ Pak J Med Science, vol. 25, no. 6, pp.
934-937.
Rehan, “Cost of the Treatment of Complications of Unsafe Abortion in Public Hospitals,’
(2011) Journal of Pakistani Medical Association, pp. 61:169.

61
Rich-Edwards J.W. et. al., “Sociodemographic predictors of antenatal and postpartum
depressive symptoms among women in a medical group practice.” Journal of Epidemiology
and Community Health,. 2006 Mar; 60(3):221-7.
Slap G.B., et. al., ‘Sexual behavior of adolescents in Nigeria: cross sectional survey of
secondary school students 2003,’ British Medical Journal, vol. 326 no. 7379 pp. 15
The 2030 Agenda for Sustainable Development, adopted by all United Nations Member
States in 2015, provides a shared blueprint for peace and prosperity for people and the planet,
now and into the future. Available at https://sustainabledevelopment.un.org/sdgs (accessed 21
September 2019)
Yau Garba Abbas, ‘Causes and Impact of Unsafe Abortion’, 50th International Course in
Health Development (ICHD) September 16, 2013 – September 5, 2014

BOOKS
B. Odunsi, “Abortion and the Law” in Irehobhude O. Iyioha and Remigius N. Nwabueze,
Comparative Health Law and Policy: Critical Perspectives on Nigerian and Global Health
Law (2015), Ch. 9, p.212

INTERNET MATERIALS
2,000 Nigerian women die annually of unsafe abortion, available at
https://www.pulse.ng/news/local/2000-nigerian-women-die-annually-of-unsafe-
abortion/p5lq0l4 (accessed 10 September 2019)
Abortion is Illegal in South Africa – But Illegal Clinics are Thriving, Why? available at
https://brightthemag.com/abortion-in-south-africa-is-legal-but-half-are-done-illegally-why-
969ffcb7dfea (accessed 22 September 2019)
Abortion rights: significant moments in Canadian history, available at
https://www.cbc.ca/news/canada/abortion-rights-significant-moments-in-canadian-history-
1.787212 (accessed 22 September 2019)
Abuzer V.L, “Total number of abortions in The Netherlands goes down”
https://dutchreview.com/news/dutch/total-number-of-abortions-in-the-netherlands-goes-
down/ (accessed 9 July 2019)
AFRICA: Church Leaders an Obstacle to Preventing Maternal Deaths Inter Press Service
News Agency, 12 November 2010, available at http://www.ipsnews.net/2010/11/africa-
church-leaders-an-obstacle-to-preventing-maternal-deaths/ (accessed 13 July 2019)
Akinrinola Bankole, Isaac F. Adewole, Rubina Hussain, Olutosin Awolude, Susheela
Singh and Joshua O. Akinyemi, ‘The Incidence of Abortion in Nigeria’, International
Perspectives on Sexual and Reproductive Health, (2015), 41(4):170–181,
doi:10.1363/4117015, available at

62
https://www.guttmacher.org/journals/ipsrh/2015/10/incidence-abortion-nigeria (accessed 31
August 2019)
Althaus, Frances A. (June 2000). "Work in Progress: The Expansion of Access to Abortion
Services in South Africa Following Legalization". International Family Planning
Perspectives.https://www.guttmacher.org/journals/ipsrh/2000/06/work-progress-expansion-
access-abortion-services-south-africa-following (accessed 21 September 2019)
Amy Mackinnon, “What Actually Happens When a Country Bans Abortion”, available at
https://foreignpolicy.com/2019/05/16/what-actually-happens-when-a-country-bans-abortion-
romania-alabama/ (accessed 25 September 2019)
Campaign Life Coalition, “Pro-life Answers to Pro-Choice Arguments,” available at
https://www.campaignlifecoalition.com/pro-life-answers (accessed July 2 2019)
Canada’s abortion issue gets renewed attention ahead of federal election, available at
https://globalnews.ca/news/5884692/abortion-election-federal-canada/
Catholic Bishops kick against Imo abortion law Vanguard News, 23 September 2013,
available at https://www.vanguardngr.com/2013/09/catholic-bishops-kick-against-imo-
abortion-law/ (accessed 13 July 2019)
Center for Reproductive Rights, “Safe and Legal Abortion is a Woman’s Human Right”,
Briefing Paper, October 2011, available at
https://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/Safe%20and%2
0Legal%20Abortion%20is%20a%20Womans%20Human%20Right.pdf
Chijioke Jannah, ‘Nigerian women committed 2.7m abortions in 2017 – Study’, available at
https://dailypost.ng/2018/09/21/nigerian-women-committed-2-7m-abortions-2017-study/
(accessed 2 September 2019)
Daily Maverick Reader, “Women are still being denied access to safe, legal abortion in SA,”
Daily Maverick, 28 May, 2019, available at https://www.dailymaverick.co.za/article/2019-
05-28-women-are-still-being-denied-access-to-safe-legal-abortion-in-sa/ (accessed 22
September 2019)
Funke Fayehun, “Contraceptive use in Nigeria is incredibly low. A lack of knowledge may
be why”, available at https://theconversation.com/contraceptive-use-in-nigeria-is-incredibly-
low-a-lack-of-knowledge-may-be-why-81453 (accessed 25 September 2019)
Healthwise Staff, “Male Condoms”, available at
https://wa.kaiserpermanente.org/kbase/topic.jhtml?docId=hw190504spec (accessed 25
September 2019)
Historic ruling in Morgentaler abortion case left a controversial 'legislative void'. Available at
https://nationalpost.com/news/canada/henry-morgentaler-abortion-case-left-a-controversial-
legislative-void

63
How to end unintended pregnancies in minors, available at
http://leadership.ng/2019/09/09/how-to-end-unintended-pregnancies-in-minors/ (accessed 10
September 2019)
How to Get a Safe Abortion in South Africa, available at
https://www.cosmopolitan.co.za/health-fitness/how-to-get-a-safe-abortion-in-south-africa/
(accessed 22 September 2019)
K.L. v. Peru, https://www.womenslinkworldwide.org/en/gender-justice-observatory/court-
rulings-database/kl-v-peru (accessed 21 September 2019)
Laetitia Pouliquen, “The Psychological Consequences of Abortion”, Dossier of the
European Institute of Bioethics, available at https://www.ieb-eib.org/ancien-
site/pdf/20170215-en-consq-psy-abortion.pdf
LEAF and AANPEI Welcome Announcement that PEI Government Will End Its
Discriminatory Abortion Policy, available at https://www.leaf.ca/leaf-and-aanpei-welcome-
announcement-that-pei-government-will-end-its-discriminatory-abortion-policy/
Lloyd Chaduka & Morgenster College v. Enita Mandizvidza available at
https://uniteforreprorights.org/resources/lloyd-chaduka-morgenster-college-v-enita-
mandizvidza/ (accessed 30th October 2019)
Mfolo and Others v. Minister of Education, Bophuthatswana, available at
https://uniteforreprorights.org/resources/mfolo-others-v-minister-education-bophuthatswana/
(accessed 30th October 2019);
Nigeria: Police Accused of Raiding Family Planning Clinic’,
https://allafrica.com/stories/201905230779.html (accessed 10 September 2019)
Okoro- Eweka, R 2014, ‘The Magnitude and Burden of Rape in Nigeria,’ The Nigerian
Observer, Viewed 24 June 2014,
http://www.nigerianobservernews.com/04092013/features/features9.html#.U6nXRRYxHFI
Q&A on Abortion in the Netherlands, Publication of the Netherlands Ministry of Foreign
Affairs, available at
https://web.archive.org/web/20080405222048/http://www.hollandnagykovetseg.hu/files/4486
929507.pdf (accessed 22 September 2019)
Q&A: Human Rights Law and Access to Abortion available at
https://www.hrw.org/news/2017/07/24/qa-human-rights-law-and-access-abortion
Reprohealthlaw Blog, “South Africa: Expulsion of pregnant students violated constitutional
rights”, available at https://reprohealthlaw.wordpress.com/2017/09/29/south-africa-expulsion-
of-pregnant-students-violated-constitutional-rights/ (accessed 29th October 2019)
Rob Schwarzwalder, “The Best Pro-Life Arguments for Secular Audiences,” available at
https://www.frc.org/brochure/the-best-pro-life-arguments-for-secular-audiences(accessed 2
July 2019)

64
Seth Millstein, “How To Argue Pro Choice: 11 Arguments Against Abortion Access
Debunked,” https://www.bustle.com/articles/17141-how-to-argue-pro-choice-11-arguments-
against-abortion-access-debunked (accessed 2 July 2019)
State Policies on Sex Education in Schools, available at
http://www.ncsl.org/research/health/state-policies-on-sex-education-in-schools.aspx
(accessed 27 September 2019)
Statement of the UN Committee on the Elimination of Discrimination against Women on
Sexual and Reproductive Health and Rights: Beyond 2014 ICPD review, available at
https://www.ohchr.org/Documents/HRBodies/CEDAW/Statements/SRHR26Feb2014.pdf
(accessed 21 September 2019)
Student Representative Council of Molepolole College of Education v. Attorney General,
available at https://uniteforreprorights.org/resources/student-representative-council-
molepolole-college-education-v-attorney-general/ (accessed 30th October 2019)
The new Dutch Health Insurance Scheme: Challenges and Opportunities for Better
Performance in Health Financing, Discussion Paper No 3 – 2007, Department "Health
System Financing" (HSF) & Cluster "Health Systems and Services" (HSS), WHO, available
at https://www.who.int/health_financing/documents/dp_e_07_3-
new_dutch_healthinsurance.pdf (accessed 22 September 2019)
ThoughtCo., “Key Arguments From Both Sides of the Abortion Debate” available at
https://www.thoughtco.com/arguments-for-and-against-abortion-3534153 (accessed 2 July
2019)
Tolu Ajiboye, “Rethinking Sexual And Reproductive Rights In Nigeria,” available at
https://www.thebookbanque.com/tbbnqsociety/sexual-reproductive-rights (accessed 27 June
2019)
Tysiąc v. Poland, https://www.womenslinkworldwide.org/en/gender-justice-
observatory/court-rulings-database/tysiac-v-poland (accessed 21 September 2019)
United Nations Population Fund (UNFPA), “Human Rights Principles” available at
https://www.unfpa.org/resources/human-rights-principles (accessed 21 September 2019)

NEWSPAPERS, MAGAZINES AND PERIODICALS

Nigeria loses 10,000 women yearly to unsafe abortion, Punch, 9 February 2019. Also
available at https://punchng.com/nigeria-loses-10000-women-yearly-to-unsafe-abortion/
(accessed 10 September 2019)
Urowayino Warami, “2,000 Nigerian women die annually of unsafe abortion,” Vanguard,
18 June 2019. Also available online at https://www.vanguardngr.com/2019/06/2000-nigerian-
women-die-annually-of-unsafe-abortion-gynaecologist/(accessed 28 June 2019)

65