PRO CHOICE OR PRO LIFE? WHAT SHOULD KENYA ADOPT?
INTRODUCTION
Abortion
is one of the most controversial topics in Kenya and Africa as a whole. This is
because most African countries are guided and follow almost blindly two aspects
that being religion and their customary traditions. This means that if an act
contravenes the very specific codes of religion and tradition it will be
rejected at the fullest extent. This is evidenced by a recent event where a
homosexual, Edwin Chiloba, was killed and instead of being sympathetic and
supportive to the deceased’s family, most Kenyans were quick to condemn the
dead fellow and some even went to the extent of stating that his death was a
punishment from the heavens due to his life choices.
The
purpose of this write up is to discuss abortion in general, look at both
pro-life and pro-choice arguments, how the Kenyan law interprets abortion and
my own personal views and recommendations.
1) ABORTION IN
GENERAL
Abortion simply means
the termination of pregnancy.
Abortion has become a
hot topic recently after the supreme court of the United States overturned the famous
or infamous, depending on the lenses you use to look into it, the decision
adopted in the 1973 case of Roe v Wade where the supreme court
reaffirmed that the U.S. constitution protects right to abortion as an
essential liberty which is in conjunction with other rights to liberty like
bodily autonomy. The court, in the case of Dobbs v Jackson women’s health organization,
provided that there is no constitutional right to abortion.
This decision sparked a
heated argument between the supporters of abortion and those against it. Though
I will look deeply into the two sides, I feel it to be essential to summarily
discuss the major arguments presented by both sides. However, the major
arguments differ in different regions. For instance, as earlier provided, in
most countries in the African continent, abortion is highly frowned upon, due
to religious, moral and customary grounds. However, in the western countries,
the fight against abortion is not majorly on religious grounds but rather takes
a more secular approach which regards abortion as immoral in the society
without due reference to religion.
However, abortion
supporters almost have a similar major argument on why abortion should be
allowed that being bodily autonomy. They
argue everyone has a right to choose what they can do with their bodies and it
is no body’s business.
It is safe to say that
there is no conclusively acceptable approach to be taken with regards to
abortion. Every decision is certainly going to be met with criticism and
opposition from a significant part of the society. This is the case with most
controversial topics like abortion and LGBTQ rights; there will almost
certainly be no conclusive finding in the appropriate decision to be taken that
will please everyone.
However, as this paper
will highlight, we can try to find a common ground for both sides that might
not make everyone happy but an approach that they can agree to live with for
the betterment of the society.
Firstly, I believe it
is essential to look into both arguments and try to get a better understanding
of their motivations.
PRO-LIFE AND PRO-CHOICE
ARGUMENTS
PRO
LIFE ARGUMENTS
One major question that
needs to be answered is where does life begin?
Most pro-life
proponents are of the view that life begins at conception and not birth. As
earlier provided, prolife proponents mostly rely on religious beliefs in
support of their claims. This therefore means that, if an unborn baby is to be
considered a human being, and then it would be against God’s will to kill the
baby as even in the bible, one of the Ten Commandments is ‘you shall not kill.’
They even try to
justify their claims scientifically by providing that as per the science of
embryology, the unborn is a human being at the earliest stages of development.
This means that looking at the scientific development of the unborn, a zygote
or an embryo is still a human being and it would be morally and even legally
wrong to kill it.
MCCL since 1996 provide
for features proving the unborn is most definitely a human being, the four
features include;
1) DISTINCT-
The unborn has a DNA and body distinct from its father and especially its
mother. It develops its own arms, legs and brain.
2) LIVING-
The unborn meets the biological criteria for life. She grows by reproducing cells;
it turns nutrients into energy through metabolism and can respond to stimuli.
3) HUMAN-
The unborn has a human genetic signature. It is the offspring of human parents
and humans can only beget humans.
4) ORGANISM-
The unborn is an organism (rather than a mere organ or tissue), an individual
whose parts work together for the good of the whole.
According to ‘The
Developing Human Clinically Oriented Embryology,’ ‘Human development begins at
fertilization when a sperm fuses with an oocyte to form a single cell, a
zygote.’ This would mean that the unborn child is not just a clump of cells but
rather a human being which brings me to another argument presents by the pro-lifers
that being that since we have established the unborn is a human, then human
rights law applies to them.
It is argued that all
human beings have human rights which include the right to life as established
in most human rights instruments for example the European Charter of Human
Rights under Article 6. This therefore means that abortion violates the human
rights of the child.
PRO-CHOICE
ARGUMENTS
Before I begin
discussing what the proponents postulate, I recently came across an interesting
assessment which provided that, ‘Pro-choice does not mean pro-abortion. Anyway,
pro-choice supporters have put forward various arguments in support of their
claims. They include;
1) CHOICE
It is no secret that
most prochoice supporters are members of the feminine gender. They argue that
most pro-lifers are men who try and control their bodies. They state that women
should have a right to choose what they would like to do or be done to their
bodies and we should trust them and let them decide. They often question why a
man should tell them what they can or cannot do with their bodies and what does
a man know about being pregnant and why is someone with no uterus trying to
control their uteruses?
2) UNAVILABILITY
OF CONTRACEPTIVES
Contraceptives are
basically products used mostly during intercourse to prevent pregnancy for
example condoms and drugs. Use of contraceptives is a whole other unresolved
discussion. The irony of the matter is that those opposing use of
contraceptives are also the ones opposing abortion. In this day and age youth
sex is most rampant and without contraceptives the need for abortion will
logically and obviously increase at exponential rates.
3) BODILY
AUTONOMY IS A BASIC HUMAN RIGHTS
One of the major
principles of medical law and ethics is an autonomy which provides that a
patient is free to choose what their body should be subjected to. Most human
rights instruments incorporate bodily autonomy as part of their provisions
which proves its importance and this human right should also be provided to the
women with regards to abortion as per the proponents.
4) SUPPORTING
MENTAL HEALTH AND WELL BEING
Supporters of the
prochoice state that pregnancy is not a purely physical experience, it also
severely alters both the emotional and mental aspects of the woman during
gestation. Approximately 1 in 10 women will experience postpartum depression
after giving birth, which lasts 3 to 6 months and nearly 50% of mothers with
postpartum depression are not diagnosed by a health professional.
5) PREGNANCY
AND CHILD BIRTH IS A MASSIVE FINANCIAL UNDERTAKING
Even with health
insurance the cost of having a child is still astronomical. The famous saying
goes, ‘having a child isn’t the challenge, and the challenge is raising the
child.’ Even the pro-lifers will not be at the forefront of helping a single
orphan mother take care of the child after she has had it. This will definitely
cost the mother especially a single mother a great deal of fortune that they
will almost definitely not afford.
6) THERE
ARE TOO MANY ORPHANED CHILDREN IN THE WORLD
In the name of ‘saving
babies’ anti-choice protestors are often inclined to make empty promises to
‘adopt your child’ and ‘support you through the pregnancy’. Despite their pleas
and vows, they are effectively neglecting the 102,000 adoption eligible,
already born U.S. children in foster care system.
After the brief
introduction into both arguments, I believe it is important to look into the
Kenyan perspective and identify how abortion affects us.
KENYA’S PERSPECTIVE
I tend to believe that
most African countries including Kenya have to systems that govern them. This
is the black letter laws and the societal beliefs or the moral propositions.
Moreover, I further dare to say that societal beliefs in some instances even
superseded the black letter law especially in controversial matters like
abortion.
For that reason is why
I would like to divide this part of the paper into two;
1) What
actual Kenyan law postulates about abortion
2) Societal
mindset stance with regards to abortion
Well it is pretty
obvious how the Kenyan society feels about abortion, that it is Western
introduced concept with the aim of degrading the society and is morally wrong.
Being a highly religious country, society is viewed as going against the
religious beliefs and is viewed as murder.
Kenyan laws take a
slightly different abortion. Firstly let’s look at Kenya’s supreme law that being
the Constitution which states in Article 26(4), under the right to life, 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 law’
Article 26(2) also
provides that, ‘The life of a person begins at conception’ which means that
generally abortion would be considered as murder.
This showcases a real
evolution of Kenyan laws taking both the mental and physical health into
consideration of when abortion can be considered. There is obviously a conflict
as though the laws appear appealing; their application to the general society
is not as stellar or impressive.
MY VIEWS AND
RECOMMENDATIONS.
At the onset, I would
like to look at some of the limitations of the Kenyan laws. Firstly, it is
common knowledge by now that one of the major challenges Kenya faces is
poverty. Kind of ironic that they would not incorporate financial difficulties
as one of the reasons of having an abortion. I t does not seem like that much
of a challenge until you find that most urban streets in Kenya consist of
street children who their parents abandoned due to incapability of taking care
of them.
It should also worth noting
that taking care of the child is also no easy task. Education, food, diapers,
health care, and other expenses that result from begetting the child will soon
fall towards the mother taking into consideration that most mothers are not
only single but also under age. For instance data produced by the Ministry of
Health in the year 2021, showcased that Kenya recorded the third highest
teenage pregnancies worldwide with one in every five adolescent girl’s aged
15-19 already mothers or pregnant. It is clear that this most likely have
adverse effects to the young girls, and data shows that most are from poor
families, meaning that they will not only not be to take care of the child,
they might also be forced to drop from schools which does not help the situation.
As is the case with
Kenya, the government is highly invested in making appealing laws but does not
apply the same intensity in implementing leaving the public, in this case the
unfortunate girls at a bad position.
Lastly, a way has to be
found to bring together the law and society mindset.
It is evident that I
support the pro-choice argument and believe that though we have made great
strides with regards to abortion, a lot more can be done. Creating awareness of
the dangers of unwanted pregnancies to the communities especially the rural
ones could benefit the girls. Moreover convincing the society would reduce the
instances of unsafe abortion which results to the death of many girls in Kenya.
Unsafe abortion remains a leading cause of maternal morbidity and mortality in
Kenya. Treatment of complications of unsafe abortion also consumes significant
health systems resources.
In understand the
reservations of not allowing abortion, the major one being that some people
might take advantage and have unprotected coitus recklessly as they are aware
of the fact that they can get abortion services. A solution to this would be,
before conducting an abortion; an extensive research should be done with
regards to the girl including health implications and background to determine
whether they need the abortion.
In conclusion, creating
awareness and expanding the grounds required to get an abortion seem like a
temporary solution the conundrum that is abortion in Kenya at least.
Jeff Manga is a 3rd year law student at Mount Kenya University, he can be contacted via email kangejeff720@gmail.com; 0795466382
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