PRO CHOICE OR PRO LIFE? WHAT SHOULD KENYA ADOPT?


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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

                                                    Image on Freepik on Freepik 

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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