Abortion: Do mothers have more rights than foetuses?
In Kenya, the question of abortion is largely evaluated from the moral compass and religious compass as opposed to women’s rights and medical science.
Nathalie is 20 years old. She is anxious and afraid. She is terrified because she is two-and-a-half months pregnant. She doesn’t want the pregnancy. She is not ready to be a mother. She is a university student studying commerce in Nairobi. She is the only hope in a single mother’s family of six children from Laikipia County. “My family is really poor.
My mother works as a casual farm labourer at Njebi in Laikipia. She can hardly fend for my younger siblings,” she says. Four of her siblings are in primary school while one dropped out of secondary school in May this year. In her second year, Nathalie has been surviving on bursaries from the Constituency Development Fund.
Now that she is pregnant, she is terrified that the dream of graduating, getting a job, and rescuing her family from the abyss of poverty might never come true.
“I will become a mother in six-and-a-half months. I am not ready for it. I don’t want it. I have my family’s hopes riding on my shoulders. I cannot afford motherhood at the moment,” she says.
She hasn’t told anyone about her pregnancy. Not even her mother.
“I don’t want to break her heart,” she says. “I must abort. If I don’t, my life will crumble helplessly.”
She sighs, bows her head, perhaps in acknowledgment of the slim options she has. She is aware that if her pregnancy grows any bigger, people might know and judge her more harshly if she aborts. But she also feels that it is her right to decide if she wants to be a mother or not, if she wants to carry the pregnancy or not, even if this might mean breaking the law.
“I know procuring an abortion is illegal and I could lose my life in the process. But I must do it. It’s my shoe and only me who knows where it pinches the most,” she says.
Nathalie will be joining thousands of women who daily put their lives at risk to get rid of unwanted pregnancies. Her predicament speaks to the grim statistics of lives that get lost in the process of unsafe abortions, and the dilemma thousands of women with unwanted pregnancies face. Every day in Kenya, at least seven women die from complications related to unsafe abortions. Every day, in Kenya, hundreds of others like Nathalie put their lives at risk by procuring unsafe abortions. According to Marie Stopes, a reproductive health institution, every day, at least 320 women in Kenya are hospitalised for procuring unsafe abortions.
Morality vs rights
In Kenya, the question of abortion is largely evaluated from the moral compass and religious compass as opposed to women’s rights and medical science.
For instance, according to Bishop David Munyiri Thagana, the Bishop in charge of Glory Outreach Assembly (GOA) and the General Secretary of the Federation of Evangelical and Indigenous Christian Churches of Kenya (FEICCK), abortion must not be allowed, regardless of the circumstances involved.
“Abortion is murder. It is unethical, immoral and contrary to God’s expectation of us,” he says.
In an instance where the woman decides to procure an abortion because she got pregnant as a result of an act of rape, Bishop Thagana says that the act of abortion will be tantamount to two wrongs that don’t make a right.
“Life begins at conception and abortion should not be allowed under whatever circumstances. The woman who gets pregnant from rape should be shown love by the society and not be encouraged to get an abortion,” he says.
He, however, acknowledges that there could be social stigma associated with this type of pregnancy, parenthood and childhood, especially if the child ever gets to know about it.
“Nevertheless, the baby is innocent of the rape and must not be made a victim of circumstances,” says Bishop Thagana who is also the International Director at the International Leadership Institute English and Swahili Speaking African Nations.
When the Saturday Magazine presented to him the scenario of a difficult pregnancy that puts the life of the mother at risk, Bishop Thagana insisted that medical abortion should not be the option either.
“We are living in days of great medical advancement. Rescue measures of both baby and mother should be available. God also heals through prayers,” he said.
The procurement of abortion reflects the conception of unwanted pregnancies. According to the 2014 Kenya Demographic Health Survey (KDHS), unsafe abortions in Kenya accounted for 35 percent of maternal deaths.
This was not the first national data set to show the high cases of unintended pregnancies. An example is the 2008 to 2009 KDHS survey. This survey report showed that 43 percent of women had unplanned pregnancies.
Married women involved
It might be easy to assume that it is single women who are involved in the majority of abortion cases. But according to a study that was conducted at the Kenyatta National Hospital (KNH), nearly two-thirds of women who sought post-abortion care services were married, 22 percent were single, 12 percent were divorced or separated while 4.4 percent were widowed.
A related study that was conducted by Marie Stopes and published in the science journal Plos One in November 2019 showed that 22.4 percent of women living in Nairobi who procured abortions were married, partnered or cohabiting. This study also involved The University of California, San Francisco, and Innovations for Poverty Action.
The KNH study, titled Acceptability of Rapid HIV Test Screening Among Patients Presenting with Incomplete Abortion at Kenyatta National Hospital, also showed that a significant number of women who procure abortion for the first time will be likely to do it again. Why is this?
“I fall pregnant when I am not financially or mentally ready, I will definitely go for an abortion,” says 30-year-old Alice Mwende.
She says that the scale of reproduction is always tilted in favour of men because they are not as affected by the burden of pregnancy as women are. “There is no justification for keeping a pregnancy that ruins your entire life just to conform to society. No one will help me raise my unplanned and unwanted baby. No one will mind my mental wellness. If I am not ready, I will not keep it,” she says.
Her sentiments resonate with those of La Patrona, a reproductive justice advocate and feminist. Ms Patrona says that there is nothing that inconveniences many young women, especially those from humble backgrounds, more than unplanned pregnancies.
“Men can check out of being parents so easily but as a woman, you usually have to stick with that baby to the end,” she says.
Ms Patrona cautions that a woman must not proceed to have a baby she isn’t ready for.
“Do not have children you cannot take care of. Use condoms. Abstain. Use contraceptives. Take emergency pills every weekend if you have to. Get that abortion. But never allow yourself to keep a child you are not ready for because it is the greatest form of violence you can ever subject yourself to,” she says.
While some women are able to procure safe abortions, the vast majority of women take the unsafe route in unlicensed backstreet clinics. The life and financial consequences of unsafe abortions have been extreme. A study titled The Costs of Treating Unsafe Abortion Complications in Public Health Facilities in Kenya that was conducted by the African Population and Health Research Centre and the Ministry of Health between 2012 and 2016 found that Kenya used Sh500 million on cases of unsafe abortion during that period.
The report estimated that in Kenya, about 464,690 abortions are procured every year. “These cases could be higher, since these are only figures that are officially reported at health centres,” says Dr Janet Thuthwa, an obstetrician-gynecologist based in Nairobi.
The legality, illegality and the moral dilemma around abortion has gained prominence globally following the Roe vs Wade decision overturning by the Supreme Court of the United States last month.
Does body autonomy count?
According to Harriet Onyiego, an advocate of the High Court of Kenya, and a member of the Young Lawyers Committee of the East Africa Law Society, the Roe vs Wade decision overturning by the Supreme Court of the United States has stirred a cocktail of reactions as it touches deep into the question of the bodily autonomy and integrity of women and girls.
“The overturning of Roe vs Wade risks eroding a woman’s fundamental right to her own bodily autonomy; a right that ought to be holistically protected,” she says.
She explains that this decision was overturned by the Supreme Court of the United States in its decision in the Dobbs vs Jackson case.
“In Roe vs Wade, the court had held the position that a set of statutes in Texas which criminalised abortion violated women constitutional right of privacy,” she says. “In its decision, the court ruled that the Constitution of the United States generally protects the liberty to choose whether or not to have an abortion.”
Here in Kenya, says Ms Onyiego, safe abortion is permissible but only within the bounds of Article 26(4) of the Constitution of Kenya.
“Article 26(4) provides that, an abortion may only be permitted if in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law,” she says. “This must be conducted only by registered and licensed medical professionals using proper equipment, employing the correct techniques, while working in a functional and well equipped health facility.”
However, Ms Onyiego adds that whereas Kenyan laws permit safe abortions albeit on specific situations, this does not necessarily prevent women and young girls with unwanted pregnancies from electing to undergo the procedure illegally.
Dying from unsafe abortion
The effects of unsafe abortions and the legal and morality dilemma in Kenya are exemplified by the case of an 18 year old girl identified as JMM who died in 2018. JMM died after suffering complications from an unsafe abortion. In 2014, at age 15, JMM had become pregnant after rape.
She had procured an abortion at a cost of Sh1,500 from a chemist who used metal rods to terminate the pregnancy. Her legal guardian who was identified as PKM received a call informing her that JMM was vomiting and bleeding profusely at a clinic where she had sought medical attention after procuring the abortion. While JMM received post abortion care at numerous hospitals, she sustained a chronic kidney disease that eventually claimed her life in June 2018.
Following JMM’s predicament, the Centre for Reproductive Rights filed a case challenging the government’s withdrawal of the guidelines for reducing morbidity and mortality from unsafe abortion in Kenya.
In a landmark ruling that was delivered by the High Court in June 2019, a five-judge bench unequivocally termed abortion as illegal in Kenya, save for the cases specified by Article 26 (4) of the Kenyan constitution. The judges also ruled that any Kenyan woman can go to a licensed health facility and procure an abortion on the basis that there are guidelines to support the process.
This ruling effectively restored the abortion guidelines that had been withdrawn by the Ministry of Health in February 2014.
“The withdrawal of the national guidelines on safe abortion amounts to discrimination, violated right to life, violated the rights of women and adolescent girls, violated access to information, consumer rights as well as having access to scientific progress,” the judges ruled.
This ruling was echoed by the March 2022 ruling by the Malindi High Court which found that abortion care is necessary and asked Parliament to enact an abortion law that allows such exceptions. In this ruling, the High Court also set free PAK, a 16-year-old minor who had gone to obtain post-abortion care and Salim Mohammed, the trained clinician who conducted the care treatment.
“The position by High Court is a step in the right direction given that the court called for parliamentary enactment of reforms towards advancing sexual and reproductive health rights,” says Ms Onyiego. “It also emphasises that no person may be denied emergency medical treatment including post-abortion care that is medically given to women for treatment of abortion complications.”
Despite abortion being undertaken in the tens of thousands every year, the cases of abortion that are reported to the authorities remain acutely low. This suggests that unsafe abortions occur unnoticed by the national legal apparatus. For example, according to the Economic Survey 2022, only 36 cases of procured abortions were reported to the police. Eight were male suspects (probably arrested while assisting others procure abortion) while 28 were female.
Dr Thuthwa says that for many women, procuring an abortion is not so much about the legality of the process but the morality and stigma associated with it.
“No woman wants to walk down the street bearing the abortion tag. The stigma associated with abortion is one of the reasons we have hundreds of women suffering and reporting the effects of unsafe abortions when it is already too late for effective post-abortion care service,” says Dr Thuthwa.
According to a report by Marie Stopes, women who report higher levels of stigma may be more likely to report lower levels of person-centered post-abortion care because they generally get low support, even from trusted individuals such as healthcare providers or family members.
“Abortions continue to be highly stigmatising in Kenya, with communities perceiving that abortions are linked to promiscuity or engaging in sex work or prostitution,” says the Marie Stopes study report.
In Kenya, Marie Stopes International is one of the facilities that provides abortion care services. This is the Kenyan branch of Marie Stopes International (MSI), a global organisation that provides personalised contraception and safe abortion services to women and girls.
Medical procedure preferred
“There are two methods that are used: the medically-induced abortions, also known as the pills method, and the surgical abortions method which includes vacuum aspirations,” says Dr Thuthwa.
Most women in Kenya undertake the medical abortion method. In the Marie Stopes survey, 56 percent of women who confessed having an abortion took abortion pills while 44 per cent had surgical abortion.
Eighty per cent of all women reported that getting transport money to go to a clinic to procure money was not a problem. However, more women tended to face difficulties in meeting the actual cost of the abortion.
This is echoed by Kristie who says that securing a safe abortion at a proper clinic is not a walk in the park.
“The illegality of abortion means that it can be quite a costly affair that will require you to have the right network,” she says. As such, the high costs, and the risk of facing a jail sentence and social wrath may keep married and unmarried women trooping to backstreet, unsafe clinics to procure abortions.
Post-abortion care service providers have not had it easy either. For example, in 2018, Marie Stopes was ordered to stop providing abortion related services by the Health ministry over what was termed as running abortion-by-choice adverts.
The ban on the reproductive health facility was however lifted in December of that year after the Health ministry determined that the facility was not encouraging and inviting women to carry out abortions by choice. Over the three weeks that the ban was in effect, the clinics reported turning away three women who needed post-abortion care services.
