A clause in the proposed Draft Kenyan giving the rights to terminate pregnancy when the mother’s life is in danger has elicited passionate debate on general abortion legislations worldwide.
On one hand are the Catholic and Evangelical Churches, protesting that inclusion of abortion in the constitution is faulty, immoral and therefore the draft constitution should be rejected. They further argue that the clause opens doors for leisurely sex and unwanted pregnancies, especially in the era of HIV AIDS. Separately women rights activists and medical practitioners say that there are special circumstances warranting termination of pregnancy. This includes when conception is a result of rape or when the mothers life at risk. Should Kenyans pass the Draft Constitution on August 4 referendum, any law that seeks to support abortion shall be null on basis of inconsistency with this clause in the constitution.
The The Kenyan Penal Code as amended in 1973 (Sections 158-160), generally prohibits abortion. It explicitly states “Any person who, with intent to procure the miscarriage of a woman, unlawfully administers to her any noxious thing or uses any other means is subject to 14 years’ imprisonment. A woman who undertakes the same act with respect to herself or consents to it is subject to seven years’ imprisonment. Any person who supplies any thing knowing that it is intended to be unlawfully used to procure a miscarriage is subject to three years’ imprisonment”. An abortion must be performed by a certified physician, with the consent of the woman and her spouse.
Two medical opinions, one of which must be from the physician who has treated the woman and the other from a psychiatrist, are required before the abortion is performed. The abortion must also be performed in a hospital. It is reported that, in practice, two medical opinions are required before the abortion is performed: one from the physician who has treated the woman and the other from a psychiatrist. The abortion must be performed by a licensed physician and reportedly requires the consent of the pregnant woman and her husband if she is married Nonetheless, under other provisions of the Penal Code an abortion may be performed to save the life of a pregnant woman.
Section 240 of the Code provides that a person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation upon an unborn child for the preservation of the mother’s life if the performance of the operation is reasonable having regard to the patient’s state at the time, and to all the circumstances of the case. Recent research by Planned Parenthood Federation of America (PPFA), Kenya Branch, indicates that more than 700 illegal abortions are procured in Kenya every day, with 30 to 50 percent of all maternal deaths are directly attributed to unsafe abortion.
long standing debate surrounding legislation on abortion universally and lately in Kenya is the question of whether life begins at conception or birth. Anti abortion crusaders popularly known as the pro-life activists argue that life begins at conception. They rely on the scientific fact that the life of every human being begins at fertilization – when the father’s sperm and the mother’s egg united. Nothing is added after fertilization (conception) except the nutrition received from the mother and the abortion debate is about a child with a beating heart. Accordingly, their argument proceeds to them that all human beings have rights which must be protected. But while a woman has a right to protect her own body, the child has rights, beginning with the right to continued life.
The pre-born child is separate and distinct from the mother genetically, and has her/his own blood type, heart, brain, other organs, and may have differently colored eyes, hair, and complexion, or even a different sex. Being dependent on others should not deprive a helpless human being of her/his fundamental rights. Beating down the argument that women need control their reproductive life, the pro life activists implore that a control that allows for violence against another human being is a macho, oppressive kind of control. Women rightly object when others try to have that kind of control over them, and the movement for women’s rights asserts the moral right of women to be free from the control of others. When women feel that a pregnant body is a body out of control, deviant, diseased, they are internalizing attitudes of low self-esteem toward the female body.
These attitudes contradict the rightful feminist affirmation of pregnancy as a natural bodily function which deserves societal respect and accommodation. Proponents of abortion on the other hand say abortion is a complex issue revolving around fundamental variables such as the reproductive health of the mother, women reproductive rights and sometimes removing stigma associated with undesired pregnancies such as those arising from rape. Acknowledged as pro choice, the Proponents argue that life begins at birth and further complicating the wishy-washy debate on abortion.