By; Teddy Tabu Odira
Introduction
From Margaret Sanger[1] saying, “No woman can call herself free until she can choose consciously whether she will or will not be a mother,” to Mother Teresa[2] stating, “I feel the greatest destroyer of peace today is 'Abortion', because it is a war against the child... A direct killing of the innocent child, 'Murder' by the mother herself,” I am left to wonder, which side of the argument should we incorporate in our culture.
Abortion, the artificial or spontaneous termination of a pregnancy before the embryo or foetus can survive on its own outside a woman's uterus[3], has emerged as a polarizing and multifaceted debate within the Kenyan context. It traverses a spectrum encompassing medical, legal, moral, and socio-economic dimensions, profoundly impacting individuals, families, communities, and the nation at large. The discourse is interwoven with notions of bodily autonomy, religious doctrines, societal mores, and the pursuit of equitable healthcare, painting a nuanced portrait of a nation in pursuit of progress and compassion.
Unwanted pregnancies pose a serious health risk to women across various regions in the developing world, particularly in terms of morbidity and mortality related to pregnancy and childbirth.[4] In nations where safe abortion services are hindered either by legal constraints or logistical challenges, unsafe abortions become a major contributor to maternal fatalities. These unsafe procedures are often conducted by untrained individuals in unhygienic settings. However, in countries such as Kenya, accurately documenting the precise scale of morbidity and mortality linked to abortion, as well as the root causes of unsafe abortions, proves challenging.[5]
Be that as it may, in the years preceding the constitutional reform process of 2009-2010, a research done by center for reproductive rights indicated that approximately 2,600 women lost their lives each year in Kenya due to complications arising from unsafe abortions.[6] During the early 2000s, unsafe abortions accounted for 35% of maternal deaths in Kenya, a figure nearly three times higher than the global average for deaths resulting from unsafe abortions, which stood at 13%.[7]
In this exploration of Kenya's stance on abortion rights, I delve into the historical evolution of abortion legislation, the prevailing legal framework, its implications on women's health and well-being, and the role of cultural and religious beliefs. This journey unfolds against the backdrop of a nation at the crossroads, seeking to honor tradition while acknowledging the changing tides of global human rights discourse and the imperative of providing safe and compassionate reproductive healthcare to its populace.
Historical Evolution Abortion Legislation
In the golden era of Jamaican reggae, “Legalized Crime” by Ntshenge and the Jah Live was a powerful anthem we all cherished. Let’s reimagine its message, “I wonder why you pass laws that legalizes a crime, maybe you don’t know that abortion is a crime, abortion is not a human right, it is a crime, it is a crime, abortion is a crime.”[8] How true were these lyrics within the Kenyan context?
Throughout history, abortion has remained steeped in controversy and continues to do so. Reaching a moral consensus on this matter proves exceedingly difficult.[9] Concurrently, within the era of human rights, government entities, including legislative bodies and the judiciary, cannot cite the absence of political, moral, or religious consensus on abortion as a valid excuse for their failure to address the injustices women endure due to unsafe abortions.[10]
Kenya, being a British colony, relied so much on British laws. A significant historical milestone in the evolution of abortion legislation emerged with the English Offences Against the Person Act of 1861.[11] This legislation, along with its judicial interpretation, was later adopted and implemented in British colonies Kenya included.[12] The main abortion provision in the Act was Section 58 of the 1861 Act which made it an offence for a woman to “unlawfully” procure an abortion.[13] Additionally, Section 59 of the Act punished a person who supplied the woman with the means for unlawfully procuring an abortion.[14]
Section 58 of the Act stated that;
“Every woman being with child who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with the intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of a felony and being convicted thereof shall be liable to imprisonment for life.”[15]
The Right Honorable Sir Malcolm Macnaghten interpreted this Section in the case of Rex v. Bourne.[16] He stated that the 1861 Act, by employing the term "unlawfully" to describe the ban on procuring an abortion, conveyed to the courts that not every abortion was deemed unlawful. It subtly acknowledged situations in which an abortion could be obtained in a "lawful" manner. However, clarity was lacking regarding whether abortions, beyond those necessary to preserve the pregnant woman's life, could be lawfully conducted.[17] In the absence of legislative intervention, the case of Bourne in 1938 played a pivotal role in elucidating this legal stance.
Influence of Rex v. Bourne in Kenyan Jurisprudence
The laws on abortion in Kenya were heavily inspired by a significant legal precedent that was set in 1938 in the United Kingdom with the case of Rex v. Bourne.[18] In this case, a surgeon faced charges under section 58 of the Offences against the Person Act 1861 for performing an abortion, via surgical means, on a 14-year-old girl impregnated through rape. The jury was instructed that the burden of proof rested with the prosecution to demonstrate, beyond a reasonable doubt, that the surgical procedure was not undertaken in good faith solely to preserve the girl's life. The court and jury relied on the surgeon's expert opinion, rooted in his vast knowledge and experience. The surgeon did not wait until the patient was in imminent danger but acted when he was convinced that the pregnancy resulting from rape would seriously jeopardize the physical and mental health of the young girl, putting her life at significant risk. The jury acquitted the surgeon based on these grounds.
The influence of this case could be seen in our constitution, penal code and case laws. Article 26(4) of the Kenyan Constitution states that abortion is not permitted unless, 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.[19] Section 240 of the penal code on the other hand outlines "offences endangering life and health." It introduced a subtle exception to the blanket prohibition against abortion. This exception is implicit, permitting a departure from the ban under specific circumstances. It stipulates that "a person is not criminally responsible for performing, in good faith and with reasonable care and skill, a surgical operation upon any individual for their well-being, or upon an unborn child to preserve the mother's life, provided that the performance of the operation is deemed reasonable, considering the patient's condition at the time and all pertinent circumstances."[20] In essence, this provision allows for a surgical intervention on an unborn child to be considered a lawful act if it is deemed reasonable and necessary for the preservation of the woman's life, even if the consequence may involve an abortion.
The standard established in Rex v. Bourne was subsequently affirmed in a Kenyan case of Mehar Singh Bansel v R .[21] The court held that, “Defined an illegal operation as one which is intended to terminate pregnancy for some reasons other than what can, perhaps be best be called a good medical reason, which the court interpreted to be the genuine belief that the operation is necessary for the purpose of saving the patients life or preventing severe prejudice to her health.” This was also reinstated in PAK & another v Attorney General & 3 others.[22]
However, the penal code, specifically section 240 and other Kenyan laws, lacked explicit guidance on how to put this provision into practice.[23] Furthermore, the language in section 240 of the penal code suggested a limited scope—only abortions resulting from surgical procedures on a fetus were implied to be permissible. This implication potentially excluded other medical treatment methods, like medical abortions, even if used to safeguard a woman's life, from being considered lawful.
Prevailing legal framework
Article 43(1)(a) of the 2010 Constitution of Kenya unequivocally articulates the fundamental right to the highest possible standard of reproductive health.[24] Its counterpart, Article 43(2), firmly decrees that no person shall be denied emergency medical treatment.[25] The nuanced sphere of safe abortion is particularly governed by the intricate mandate of Article 26(4), [26] emphasizing that abortion is permissible only if deemed necessary by a qualified health professional in situations of emergency, threats to the mother's life or health, or when authorized by pertinent laws.
Additionally, Section 6(1) of the Health Act provides invaluable insights into matters concerning abortion.[27] It emphatically affirms every individual's right to comprehensive reproductive healthcare, encompassing access to treatment by proficient healthcare practitioners for conditions arising during pregnancy. These encompass abnormal pregnancy conditions such as ectopic, abdominal, and molar pregnancies, or any medical condition exacerbated by pregnancy to an extent endangering the mother's life or health. Notably, all such cases are designated as notifiable conditions.
The subsequent Section 6(2) defines the term "trained health professional," delineating qualifications at the proficiency level of a medical officer, a nurse, midwife, or a clinical officer.[28] These professionals must possess formal medical training and hold a valid license from recognized regulatory authorities to perform procedures concerning pregnancy-related complications in women. The Act further necessitates that such procedures be conducted within legally recognized health facilities, equipped with adequate human resources, infrastructure, commodities, and supplies.
In parallel, the Penal Code delineates the criminalization of unsafe abortion through sections 158-160.[29] It sternly penalizes any individual engaged in actions aimed at procuring a miscarriage through administering poison, using force, or other means. However, the Code extends a crucial exception under Section 240, providing a sanctuary for trained health professionals.[30] When acting in good faith and with reasonable care, they are shielded from criminal liability when conducting surgical operations to preserve the life of the mother or the unborn child.
In practice, law enforcement often manipulates Section 158 of the Penal Code to intimidate medical providers offering safe abortion services, contrary to the law.[31] Strikingly, Makueni County's progressive Maternal Newborn Child Health Act of 2017 embraces the recognition of termination of pregnancy under diverse circumstances, including rape, fetal abnormalities, and mental incapacity to comprehend the pregnancy.[32] Conversely, Kilifi County restricts access to safe termination only to emergent situations, highlighting the decentralized perspectives within the legal framework. However, at the national level, the established legal framework continues to serve as the overarching guiding principle.
Prevailing Case laws
PAK & another v Attorney General & 3 others[33]
At the center of this case is the petitioner, a second-year student, who found herself pregnant following a consensual encounter with another student. As her pregnancy progressed, complications arose, marked by severe pain and bleeding, compelling her to seek urgent medical attention at Chamalo Medical Clinic in Ganze Location. There, the second petitioner, a healthcare professional, diagnosed her with a spontaneous abortion and performed a successful manual vacuum evacuation, resulting in her stable condition.
However, the situation took an unexpected turn when plain-clothed police officers, without prior notice or consent, abruptly entered Chamalo Medical Clinic. They demanded access to the petitioners' medical records, eventually confiscating them from the second petitioner. Both the first and second petitioners, along with two female clinic employees working as cleaners, were then arrested and transported to Ganze Police Patrol Base.
Subsequently, the first petitioner was compelled to undergo a medical examination at Kilifi County Hospital, during which a medical examination form was completed. Following this, the first petitioner was charged with the offense of procuring abortion under section 159 of the Penal Code. The second petitioner faced charges in Kilifi under criminal case number 395 of 2019 for procuring abortion, with an alternative charge of supplying drugs to induce abortion under section 160 of the Penal Code.
In their response to these charges, the petitioners initiated legal proceedings to challenge the criminal trial at the Kilifi Law Courts. They contended that Article 26(4) of the Constitution outlined specific situations in which abortion was permissible.[34] The petitioners further asserted that the actions of the police, involving the detention of the first petitioner and a forced medical examination, infringed upon her fundamental human rights, including the rights to life, privacy, the highest attainable standard of physical and mental health, freedom from torture, inhuman and degrading treatment, and punishment.
In addition to seeking the quashing of their charges, the petitioners also called upon the court to declare sections 154, 159, and 160 of the Penal Code, which criminalize abortion, as unconstitutional.[35] In response, the respondents argued that the Constitution unequivocally declared abortion as illegal, except in circumstances where a qualified healthcare practitioner deemed the mother's life to be at risk, or when emergency treatment was deemed necessary, or when permitted by another written law. They asserted that it was therefore implausible to argue that Article 26(4) had nullified sections 158, 159, and 160 of the Penal Code.[36]
The courtroom, with its hallowed halls, resounded with a powerful proclamation: the sweeping ban on abortion, as dictated by Sections 158-160 of the Penal Code, exposed not only the expectant mother but also the unborn child to the haunting specter of mortality.[37] This, the Court declared, was nothing short of an infringement upon the sacred right to life.
With unwavering clarity, the Court ruled that a woman should be entrusted with the profound decision of whether to terminate her pregnancy, a choice to be made in the tender care and counsel of a trained healthcare professional. In this, the Court illuminated the path, affirming that such a medical expert, when guided by their expertise and the wisdom of the Constitution and allied statutes, bears no criminal burden for undertaking a medical abortion procedure.
The High Court, in no uncertain terms, reinforced the notion that the right to abortion, though not an absolute liberty, is etched within the constitutional and human fabric. Yet, it unveiled a shadowy void in the Penal Code, a gaping omission in the context of Article 26(4) of the Constitution, rendering it flawed and incomplete.
Reasoning of the court
Judge Reuben Nyambati Nyakundi had a lot to disclose in the Obiter. In his opinion, in Kenya, the legal status of abortion had long been a complex issue, yet a glimmer of hope shone through the Constitution and various international agreements such as CEDAW.[38] They provided a solid legal framework to bolster the reproductive rights of women, reaffirming their place in the pursuit of equality and the highest attainable standard of health. These rights encompassed not only their right to benefit from scientific progress but also to access healthcare services, especially those linked to reproductive and sexual health. Failing to protect these rights could amount to a grave transgression, including cruel, inhuman or degrading treatment, torture, or even a violation of the right to life.
The application of international law to the unique Kenyan context found its footing in Article 2(5) of the Constitution.[39] It unequivocally declared access to safe abortion services as a fundamental human right. Forcing someone to bear an unwanted pregnancy or pushing them towards unsafe alternatives infringed upon their human rights, including the cherished rights to privacy and bodily autonomy.
He reiterated that, the absence of accessible, quality abortion care posed a serious threat to various human rights of women and girls. These encompassed the right to life, the right to the highest attainable standard of physical and mental health, and the right to benefit from scientific progress. Equally significant were the rights to make decisions regarding the number, spacing, and timing of children, as well as the right to be free from torture, cruel, inhuman, and degrading treatment and punishment.
Kenya's restrictive abortion laws, coupled with the lack of effective legislation to give life to Article 26(4) of the Constitution, left women and girls exposed to mental and physical health risks, often associated with unsafe abortions. These laws stigmatized those seeking abortions, further violating their right to life and the right to the highest attainable standards of health.
He stated that the right to terminate a pregnancy stood as a fundamental and deeply personal liberty. The court recognized the immense burden the State placed upon pregnant women by denying them this choice, including the potential health risks of pregnancy and the financial and emotional toll of bringing a child into a family without regard for the fetus's viability or the mother's well-being.
The honorable judge opined that it was imperative for the legislature, as the governing body, to expedite the passage of legislation that ensured access to safe abortion for women in Kenya, fully realizing the provisions of Article 26(4) of the Constitution. In the criminalization of abortion under the Penal Code, the judge found a shifting landscape, one that hadn't been a consistent feature in the adjudication of evidence destined for use by the Director of Public Prosecution under Article 157(6), (7), and (8) of the Constitution.
The contentious sections aimed to address societal concerns regarding the preservation of the right to life, predating the enactment of the 2010 Constitution. It became imperative for a new act to be enacted by the legislature, outlining conditions under which procuring an abortion would be deemed a criminal offense. The prohibited conduct should be clearly and unambiguously defined within the text of Article 26(4) of the Constitution, and the scope of the disputed sections should be scrutinized in light of fundamental rights, such as women's rights to health, life, dignity, and security.
Federation of Women Lawyers (Fida – Kenya) & 3 others v Attorney General & 2 others; East Africa Center for Law & Justice & 6 others[40]
In September 2012, the Ministry of Medical Services, following a consultative process, issued the "2012 Standards and Guidelines for Reducing Morbidity and Mortality from Unsafe Abortion in Kenya" (referred to as the 2012 Standards and Guidelines) and the "National Training Curriculum for the Management of Unintended, Risky, and Unplanned Pregnancies" (the Training Curriculum). However, on December 3, 2013, the third respondent, the Director of Medical Services (DMS), issued a letter withdrawing both the 2012 Standards and Guidelines and the Training Curriculum. Subsequently, the DMS issued a memo to all health workers, instructing them not to participate in any training related to safe abortion and the use of medabon (medicines for inducing abortion). The memo warned that those who attended such trainings or used medabon would face legal and professional consequences.
In 2014, the second petitioner, an 18-year-old, was subjected to non-consensual sexual intercourse, resulting in an unwanted pregnancy. She sought an abortion, which led to severe complications. She was subsequently admitted to Kenyatta National Hospital, where her diagnosis at the time of discharge indicated a septic abortion, hemorrhagic shock, and the development of chronic kidney disease. Tragically, the second petitioner passed away before the resolution of this petition. The petitioners argued that the DMS had exceeded their authority by unilaterally and arbitrarily withdrawing the 2012 Standards and Guidelines and the Training Curriculum. This withdrawal created a void and exposed individuals, including the second petitioner, to a denial of their reproductive health rights, among other consequences.
A panel of judges, including Aggrey Otsyula Muchelule, Lydia Awino Achode, Mumbi Ngugi, George Vincent Odunga, and John Muting'a Mativo, rendered a partial decision in the case. They ruled that the third respondent's actions, particularly the letter dated December 3, 2013, had violated and/or threatened the rights of the second, third, and fourth petitioners, who represented women of reproductive age, along with other women and adolescent girls of reproductive age. These violated rights encompassed the right to the highest attainable standard of health, the right to non-discrimination, the right to information, consumer rights, and the right to benefit from scientific progress.
The judges issued a declaration that the memo dated February 24, 2014, issued by the third respondent, violated or threatened the rights of healthcare professionals. These rights included access to information, freedom of expression and association, consumer rights, and the right to benefit from scientific progress.
Furthermore, the judges decreed that the third respondent's letter dated December 3, 2013, and the memo dated February 24, 2014, were not in accordance with the law. They were deemed unlawful, illegal, arbitrary, and unconstitutional, and, as a result, were null and void from their inception. These documents were consequently revoked.
The court upheld the general illegality of abortion in Kenya, except for specific exceptions as provided under Article 26(4) of the Constitution. Additionally, the court confirmed that in cases of pregnancy resulting from rape and defilement, a trained health professional may terminate the pregnancy if it poses a danger to the life or health (physical, mental, and social well-being) of the mother, as permitted by the exceptions outlined in Article 26(4) of the Constitution.
In terms of compensation, an order was issued, directing the respondents, whether jointly or individually, to pay PKM a sum of Ksh. 3,000,000. This compensation was granted to address the physical, psychological, emotional, and mental anguish, stress, pain, suffering, and the unfortunate death of JMM, all of which were attributed to the respondents' violation of JMM's constitutional rights.
Implications of abortion on women's well-being and health
Mother Theresa of Calcutta[41] asked a rhetorical question that remains disturbing to date. She asked, “It is poverty to decide that a child must die so that you may live as you wish?” The Turnaway Study conducted at the University of California, San Francisco, tends to answer this question. It shows that women experience harm from being denied a wanted abortion.[42]
The study found that refusing a woman's request for an abortion has far-reaching economic repercussions and creates long-term insecurity.[43] Women who were declined an abortion and subsequently gave birth faced a significant and enduring increase in household poverty, spanning at least four years, compared to those who were granted an abortion.[44] Even years after being denied an abortion, these women were more likely to struggle with financial challenges, including difficulties in affording basic necessities such as food, housing, and transportation.[45]
Furthermore, the denial of an abortion had a negative impact on a woman's financial stability. It led to a decline in their credit score, an increase in their overall debt burden, and an uptick in the number of adverse financial records, such as bankruptcies and evictions.[46]
The Turnaway study also found that women who are refused abortions are more likely to remain in contact with a violent partner and are also at a higher risk of becoming single parents responsible for raising the child alone.[47] Notably, instances of physical violence from the men involved in the pregnancy decreased for women who chose to receive abortions.[48] However, for those who were denied abortions and subsequently gave birth, the pattern of violence from these partners persisted.
Over a span of five years, it became evident that women who were denied abortions were more likely to be in a situation where they were raising their children independently, without the support of family members or male partners.[49] This was in stark contrast to women who opted for an abortion.
Childbirth is associated with a greater incidence of severe health complications compared to having an abortion. Women, in the Turnaway study who were denied an abortion and subsequently gave birth reported a higher occurrence of life-threatening issues such as eclampsia and postpartum hemorrhage, in contrast to those who received the desired abortion.[50] Additionally, these women who gave birth instead experienced more chronic health problems, including headaches or migraines, joint pain, and gestational hypertension, compared to their counterparts who chose abortion.[51]
Tragically, the increased risks associated with childbirth were starkly exemplified by two women who were denied an abortion and tragically lost their lives following delivery. No such fatalities were reported among women who underwent abortions.[52]
Furthermore, the study found that the financial well-being and overall development of children are adversely affected when their mothers are denied abortion.[53] In cases where women already have children when they seek abortion, the children's development tends to suffer when their mothers are denied this choice, in contrast to the children of women who are granted an abortion.[54] Children born as a result of the denial of abortion are more likely to grow up below the federal poverty level when compared to children born from a subsequent pregnancy to women who received the abortion they sought.[55]
Furthermore, the act of carrying an unwanted pregnancy to full term is linked to a diminished maternal bonding experience. This may manifest as feelings of being trapped or harboring resentment towards the child, particularly in the case of the child born after an abortion was denied, as opposed to the next child born to a woman who received the abortion she wanted.[56]
In the Kenyan context, the findings of this study can be linked to the Article 53 (2) of the Constitution which states that a child’s best interests are of paramount importance in every matter concerning the child.[57]
Role of Cultural and Religious Beliefs on Matters Abortion
The decision to seek abortion services was deeply influenced by a complex interplay of religious beliefs, community norms, and cultural traditions, directly and indirectly shaping women's choices regarding abortion and post-abortion care (PAC). For instance, in numerous rural communities and religious groups, there was a strong preference for traditional birth attendants (TBAs) and traditional healers over hospitals. This cultural preference actively discouraged women from accessing abortion services at healthcare facilities.
A study named, “Stigma and agency: exploring young Kenyan women’sexperiences with abortion stigma and individual agency,”[58] interview girls aged 18 to 24 to understand this dynamic. One participant, who is a Maasai-Kikuyu, said that the Maasai believes in getting wakunga (Swahili name referring to mid-wives) when you give birth. Even when you want to terminate a pregnancy, they call all the elderly women, and they sit on your stomach repeatedly. She stated that the women then bounce on a woman’s stomach it till it's 'dead.' For her this process was scary. [59] The respondent in this case was aged 24 years.
When asked about the significant influence of religious beliefs and cultural traditions on women's ability to access abortion-related care, participants noted a pervasive belief in Nairobi that abortion is morally wrong, sinful, and illegal. This belief was firmly rooted in faith in God and the sanctity of life.
Another Respondent aged 20 stated that in her religion, they are not allowed to abort a child, and apart from religion, she opined that it's something that is not right. Moreover, in addition to the powerful impact of religious and cultural beliefs, many communities employed stigma, isolation, and shame as mechanisms to ensure that women adhered to traditional norms.[60] Women who sought abortion services and were discovered often faced public condemnation as immoral and hypersexual. As a result, they might be ostracized, disowned, or subjected to even more severe consequences.[61]
The study also indicated that the first thing people think of when they hear someone had an abortion is that the person is a prostitute. For some, the weight of these cultural beliefs was so profound that they felt that women who sought abortions "deserved" to be stigmatized or mistreated. While experiences with social stigma and cultural beliefs surrounding abortion varied among participants, the unanimous thread was the belief that abortion is morally wrong and a sin, and that women who choose abortion are often labeled as promiscuous and shameful.
Conclusion.
In conclusion, from Margaret Sanger to Mother Teresa to real life stories of the girls in our country and beyond, it is evident that our journey through this intricate debate, in the Kenyan context, goes far beyond the realm of laws, medical complexities, religious beliefs, and cultural norms. It's a profoundly human narrative, where the stories of countless lives are interwoven, shaping our collective identity.
At the heart of this discussion is our commitment to ensuring the reproductive health, autonomy, and well-being of women. It is evident from the above findings that finances also play a huge role in this conversation, both to the mother and the child’s wellbeing. The haunting specter of unsafe abortions, with their devastating impact on maternal health, serves as a stark reminder of the urgent need for transformation. We are challenged to create a healthcare system that is not only equitable but also compassionate, embracing every individual, regardless of their beliefs or backgrounds.
Ultimately, in the Kenyan context where religion and culture also plays a role, it is safe to say that resolving the abortion debate doesn't require imposing one belief over another. It demands that we engage in open dialogue, understanding, and compassion. This debate calls for finding a path that respects individual choices while nurturing the common good. It's a journey marked by complexity and kindness, where diverse voices contribute to our nation's vibrant story. I will end this with a quote by Abhijit Naskar in his book, “Hometown Human: To Live for Soil and Society.” Worse than aborting is birthing in instability.
[1] Margaret Higgins Sanger, also known as Margaret Sanger Slee, was an American birth control activist, sex educator, writer, and nurse.
[2] Mary Teresa Bojaxhiu MC, better known as Mother Teresa, was an Albanian-Indian Catholic nun and the founder of the Missionaries of Charity.
[3] ‘ABORTION Definition & Meaning - Black’s Law Dictionary’ (The Law Dictionary28 March 2013) <https://thelawdictionary.org/abortion/#:~:text=ABORTION%20Definition%20%26%20Legal%20Meaning&text=The%20artificial%20or%20spontaneous%20termination> accessed 17 October 2023.
[4] Jean Baker and Shanyisa Khasiani, ‘Induced Abortion in Kenya: Case Histories’ (1992) 23 Studies in Family Planning 34.
[5] Ibid
[6] Center for Reproductive Rights., ‘A Decade of Existence: Policy Work Revealing Progress, Reversals, and Betrayal of a National Compromise’ (2020) <https://reproductiverights.org/sites/default/files/documents/A-Decade-of-Existence-Kenya_0.pdf> accessed 17 October 2023.
[7] Ibid
[8] ‘Ntshenge & the Jah Live - ABORTION IS a CRIME’ (www.youtube.com) <https://www.youtube.com/watch?v=lhiINgsUiXg&ab_channel=MutevhetsindoWaMbilu> accessed 18 October 2023.
[9] Prof Charles Ngwena, ‘A Handbook for Judges Human Rights and African Abortion Laws’ (2014) <https://www.kelinkenya.org/wp-content/uploads/2015/12/HANDBOOK-ON-AFRICAN-ABORTION-LAWS.pdf> accessed 18 October 2023.
[10] Ibid
[11] Offences Against the Person Act of 1861.
[12] RJ Cook & BM Dickens ‘Abortion Laws in African Commonwealth Countries’ (1981) 25 Journal of African Law 60.
[13] Offences Against the Person Act of 1861, Section 58
[14] Ibid, Section 59
[15] Ibid
[16] Rex v. Bourne, Central Criminal Court 3 All E. R. 615 (1938)
[17] Ngwena (n9)
[18] Ibid
[19] Constitution of Kenya, 2010
[20] Penal Code ‘CAP. 63’ (Kenyalaw.org2014) <http://www.kenyalaw.org/lex/actview.xql?actid=CAP.%2063>.
[21] Mehar Singh Bansel v R 111 (1959) EA 832
[22] PAK & another v Attorney General & 3 others (Constitutional Petition E009 of 2020) [2022] KEHC 262 (KLR) (24 March 2022) (Judgment)
[23] Centre for Reproductive Rights (n 4)
[24] Constitution of Kenya 2010, Article 43(1)(a)
[25] Ibid
[26] Ibid, Article 26 (4)
[27] Health Act, 2017 Section 6 (1)
[28] Ibid Section 6 (2)
[29] Penal Code, 2009
[30] Ibid Section 240
[31] Ibid Section 158
[32] Maternal Newborn Child Health Act of 2017
[33] PAK & another v Attorney General & 3 others (Constitutional Petition E009 of 2020) [2022] KEHC 262 (KLR) (24 March 2022) (Judgment)
[34] Constitution of Kenya 2010, Article 26
[35] Penal code 2009, Section154,159 and 160
[36] Ibid
[37] Ibid
[38] Convention on the Elimination of All Forms of Discrimination against Women 1979
[39] Constitution of Kenya 2010, Article 2(5)
[40] Federation of Women Lawyers (Fida – Kenya) & 3 others v Attorney General & 2 others; East Africa Center for Law & Justice & 6 others (Interested Party) & Women’s Link Worldwide & 2 others (Amicus Curiae) [2019] eKLR
[41] Mary Teresa Bojaxhiu MC, better known as Mother Teresa, was an Albanian-Indian Catholic nun and the founder of the Missionaries of Charity.
[42] The Turnaway Study included one thousand women from clinics in 21 states, who closely resemble the population seeking abortions in the United States as a whole. Women who received abortions and women who were denied abortions were similar at the time they sought abortions. Their lives diverged after in ways that were directly attributable to whether they received an abortion. A testament to how well the study was designed and its scope, the Turnaway Study has produced 50 peer-reviewed papers in top medical and social science journals.
[43] ANSIRH, ‘The Harms of Denying a Woman a Wanted Abortion Findings from the Turnaway Study Denying a Woman an Abortion Creates Economic Hardship and Insecurity Which Lasts for Years. 1’ (2020) <https://www.ansirh.org/sites/default/files/publications/files/the_harms_of_denying_a_woman_a_wanted_abortion_4-16-2020.pdf>.
[44] Diana Greene Foster and others, ‘Socioeconomic Outcomes of Women Who Receive and Women Who Are Denied Wanted Abortions in the United States’ (2018) 108 American Journal of Public Health 407.
[45] Ibid
[46] Sarah Miller, Laura Wherry and Diana Foster, ‘NBER WORKING PAPER SERIES the ECONOMIC CONSEQUENCES of BEING DENIED an ABORTION’ (2020) <https://www.nber.org/system/files/working_papers/w26662/w26662.pdf>.
[47] ANSIRH n 43
[48] Sarah CM Roberts and others, ‘Risk of Violence from the Man Involved in the Pregnancy after Receiving or Being Denied an Abortion’ (2014) 12 BMC Medicine <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4182793/>.
[49] Miller n 46
[50] Caitlin Gerdts and others, ‘Side Effects, Physical Health Consequences, and Mortality Associated with Abortion and Birth after an Unwanted Pregnancy’ (2016) 26 Women’s Health Issues 55 <https://www.sciencedirect.com/science/article/pii/S1049386715001589>.
[51] Lauren J Ralph and others, ‘Self-Reported Physical Health of Women Who Did and Did Not Terminate Pregnancy after Seeking Abortion Services’ (2019) 171 Annals of Internal Medicine 238.
[52] Ibid
[53] ANSIRH n 43
[54] Diana Greene Foster and others, ‘Effects of Carrying an Unwanted Pregnancy to Term on Women’s Existing Children’ (2019) 205 The Journal of Pediatrics 183 <https://www.jpeds.com/article/S0022-3476(18)31297-6/fulltext>.
[55] Diana Greene Foster and others, ‘Comparison of Health, Development, Maternal Bonding, and Poverty among Children Born after Denial of Abortion vs after Pregnancies Subsequent to an Abortion’ (2018) 172 JAMA Pediatrics 1053 <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6248140/>.
[56] Ibid
[57] Constitution of Kenya 2010, Article 53(2)
[58] Deeqa Mohamed, Nadia Diamond-Smith and Jesse Njunguru, ‘Stigma and Agency: Exploring Young Kenyan Women’s Experiences with Abortion Stigma and Individual Agency’ (2018) 26 Reproductive Health Matters 128.
[59] Ibid
[60] Ibid
[61] Ibid