By Bamidele Kolawole

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In Nigeria, abortion is illegal and carries a stiff jail sentence, up to 14 years, unless done to save the life of the pregnant woman. Abortion legislation in Nigeria and court decisions on the subject are examined.

Abortion is illegal in Nigeria except in specific circumstances outlined in the Criminal Code Act of 1990.

These circumstances are:When the pregnancy poses a serious risk to the life of the mother in good faith.When the pregnancy is a result of rape or incest.

Performing an abortion outside these circumstances is a criminal offense punishable by imprisonment. This law applies to both the woman seeking the abortion and the person performing it.However, it’s important to note that:Medical professionals can legally perform abortions under the exceptions mentioned above.

Access to safe and legal abortion services remains limited in many parts of Nigeria, leading to unsafe practices and potential health risks for women.The legal and social landscape surrounding abortion in Nigeria is complex and subject to ongoing debate.

While the current law restricts access to abortion, there are ongoing efforts to reform it and expand access to safe and legal abortion services for women.

The position of law on abortion in Nigeria is very clear and succinct: Sections 228 to 230 of the Criminal Code Act gives instances of abortion to include any of the following:

Any person who, with intent to procure miscarriage of a woman, whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, is guilty of a felony and is liable to imprisonment for 14 years. 

Any woman who, with intent to procure her own miscarriage, whether she is or is not with child, unlawfully administers to herself any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, or permits any such thing or means to be administered or used to her is guilty of a felony and is liable to imprisonment for seven years. 

Any person who unlawfully supplies to or procures for any person anything whatever, knowing that it is intended to be unlawfully used to procure the miscarriage of a woman, whether she is or is not with child is guilty of a felony and is liable to imprisonment for three years.

This position is also supported by judicial authorities wherein the Court emphatically stated in the case of.

However, in recent times, the position of law has been argued to reflect the dynamism in medicine. In the case of an overriding imbalance of the fetus over the mother, the life of the mother shall be secured, to the detriment of the fetus, thus resulting in the abortion of the baby.

 This can be said to be an offshoot of the Constitutional provisions related to the right to life, which it has been argued, gives precedence to an already existing life over a forming fetus.

Abortion is illegal in Nigeria and carries a sentence of up to but not limited to 14 years, except it is performed while they are trying to save the life of a pregnant woman and the procedure has to be confirmed as life threatening.

 Also section 228,229 and 230 of the criminal code Section 232 also provides that Whoever voluntarily causes a woman with child to miscarry shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment for a term which may extend to 14 years or with fine or with both.

Abortion is defined as the discontinuation of a pregnancy before attainment of viability See Black’s Law Dictionary In other words, the termination of pregnancy before the fetus is capable of independent existence.

Pregnancy may terminate on its own (i.e. miscarriage or spontaneous abortion) or intentionally (i.e. induced abortion). In Nigeria, it is considered a criminal offense punishable by up to 14 years imprisonment for anyone, including medical practitioners and healthcare workers, to attempt to terminate a pregnancy by any means, even if the woman is not confirmed to be pregnant.

Consequently, it is virtually impossible for a pregnant woman who does not wish to carry the pregnancy to term, except in cases where her life is at risk, to obtain an abortion in a government hospital.

Given that the majority of Nigerian women cannot afford the services of a private clinic, they are often compelled to seek unsafe abortion procedures from untrained individuals who utilize improper and contaminated instruments in unhygienic settings.

In all parts of Nigeria, abortion is a criminal offense except where it is performed to save the life of the mother. In the South, the relevant provisions are sections 228, 229, 230, 297, and 328 of the Criminal Code. In the North, the relevant provisions are sections 232, 233, 234, 235 and 236 of the Penal Code. Only a few of Africa’s 54 countries, including Togo, Tunisia and South Africa have legal abortion on request.

Whether abortion is legalized in Nigeria is a question of law and fact. To start with, abortion derives from the verb unit word ‘abort’, which means to terminate, to stop, end, or to sack. Therefore, abortion is the process, or procedure for aborting a pregnancy (in a human being). In law, abortion is a procedure, conduct, or omission deliberately designed to cause a miscarriage.

On the Other hand, to legalize means to make (something that was previously illegal) permissible by law. A casual look at Nigerian law will show that, as a general principle of law, abortion is not only prohibited but is highly forbidding.

In the first place, it is a felony for any person to, with intent to procure the miscarriage of a woman whether she is or is not with child, unlawfully administer to her or cause her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever.

The legal repercussion for such an act or conduct touching on an attempt to cause abortion is fourteen years imprisonment as provided by section 288 of the Criminal Code Law of Ondo State, Cap 37, Vol 1, Laws of Ondo State, 2006 (Criminal Code Law).

In the same vein, the Criminal Code provides that a woman who, with intent to abort a pregnancy or to procure her miscarriage unlawfully by taking or administering to herself drugs, chemicals, or aborting inducing substances, or uses any other means whatever, or permits any such thing or means to be administered or used to her, is guilty of a felony, and is liable to imprisonment for seven years.

See section 229 of the Criminal Code Law.

In order to dissuade citizens from contemplating abortion and to make sure that abortion-inducing drugs, materials or substances are not readily available, the Criminal Code Law (section 230) criminalizes any unlawful supplies of drugs, medical tools, or procurements of ‘anything whatever, knowing that it is intended to be unlawfully used to procure the miscarriage of a woman, whether she is or is not with child’.

However, rather than legalising abortion in Nigeria, the lawmakers created some legal exceptions and provisos under which a pregnancy may be lawfully terminated. It is apposite to note that in law, an exception does not amount to legislation of a prohibited act, action, or omission.

Therefore, the narrow window allowed for a certified person to perform ‘in good faith and with reasonable care and skill a surgical operation upon any person for his benefit, or 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’ (see section 297)’, is not and cannot amount to legislation of abortion in Nigeria.

Hence, under a given situation and certain limited circumstances, termination of a pregnancy may be justifiable and allowed in law if the abortion is (1). In good faith, (2) is for the benefit s of the unborn child, and (3) if the abortion is necessary for the preservation of the mother’s life.

 Anything other reasons outside the three stipulated situations is a felonious offence heavily punishable by the law.

Abortion is the intentional termination of pregnancy. This act is still yet to be legalized in Nigeria today.

However, as far as our laws are concerned, any person who is found culpable to have carried out abortion, shall be punished. 

In a developed country, abortion has been and is being legalized as a form of freedom to take decision on when to have children. It is however, an illegal act to terminate a pregnancy for whatever reason.

The pro abortion have advocated that girls should have the freedom to determine when to have children but the extant laws still frown at terminating pregnancy and the only situation where an abortion is allowed is when it is meant to save the life of the mother.

Apart from this, abortion under any guise is illegal in Nigeria today. Anybody who is found in the act shall be punished by law irrespective of status and medical reasons.

The moment there is a fertilization of the female eggs by the male spermatozoa, the law believes a human being has been created and as such, the embryo has assumed the status of a human being capable of being protected under the law.

It is accorded the status of a human being that should enjoy full rights such as right to life, right freedom of dignity of his person. etc.

The question is, a child in the womb of its mother is not a human being and cannot be accorded the status of a human being.

The law has criminalise the act of abortion today in Nigeria. On the whole, the only condition under which abortion is allowed, is to save the life of the mother.

In Nigeria, abortion is illegal and carries a stiff jail sentence, up to 14 years, unless done to save the life of the pregnant woman. Abortion legislation in Nigeria and court decisions on the subject are examined.

Abortion is governed by the Criminal Code in the southern states, and the Penal Code in the northern states. In “R v. Idiong and Umo,” the 2 defendants had been convicted of murder on the grounds that the first accused had obtained the services of the 2nd accused, a native doctor, to give native medicine to bring about an abortion. The abortion resulted in the woman’s death.

Therefore the 1st accused was party to the crime. The West African Court of Appeal found that the 2nd accused had acted innocently believing that the medicine would relieve pain that the dead woman suffered from a retained placenta. He gave an abortifacient for expulsion of the placenta.

He was found “not guilty” of murder and manslaughter. The 1st accused was found criminally responsible for causing the abortion, but was found not guilty of murder.

He was guilty of manslaughter, however. In 1981, the Nigerian Society for Gynecology and Obstetrics sponsored a Termination of Pregnancy Bill in the House of Representatives. However, pressure groups lobbied against it, and the bill did not pass.

In 1984, a survey was done to assess incidence of abortion. Representative samples were taken from the north and the south.

The capital cities of 8 different states were covered. In 5 sample hospitals within the Lagos Metropolis in Lagos State, 125 abortions or treatments of incomplete abortions were recorded within a month.

In 4 representative hospitals from Oyo State, 81 abortions or corrections of incomplete abortions were recorded within 1 month. In the northern state of Kaduna, information was very difficult to obtain. At one of the University Teaching Hospitals in Zaria, records showed there were 103 treatments of incomplete abortions during the preceding year.

The usual approach to revising abortion laws has been to expand or extend the grounds for legal abortion. In some jurisdictions, courts have widened the ground by adopting the decision that life includes mental and physical health.

Abortion may be possible for eugenic reasons. In February, 1988, the Nigerian government announced its adoption of a population policy; a new abortion policy should take this into consideration.

Abortion is defined as the discontinuation of a pregnancy before attainment of viability.See BLACK’S LAW DICTIONARY (Bryan A. Garner ed., 8th ed. 2004).

There has been raging argument amongst lawyers, academia, medical practitioners, social scientists and other scholars as to whether abortion in justifiable or not.

To the liberal school of thought, abortion is justifiable in the sense that the woman has the right to make a choice whether she wants the baby or not.

Liberalism is also of the view that abortion is justifiable in cases where pregnancy results from rape, incest or any other form of sexual violence.

Furthermore, members of the liberal school of thought are also of the view that termination of a pregnancy that may endanger the life of the mother is justifiable.

The view of the conservative school of thought differs significantly from that of the liberal school of thought. The conservative school is of the opinion that no matter what, abortion cannot be justified. It is tantamount to murder as no one can create a soul except God.

Generally, in all parts of Nigeria, abortion is a criminal offence

except where it is performed to save the life of the mother.

In the South, the relevant provisions are sections 228, 229, 230, 297, and 328 of the Criminal Code.

In the North, the relevant provisions are sections 232, 233, 234, 235 and 236 of the Penal Code.

For the purpose of this discourse, we shall restrict ourselves to the provisions of the Criminal Code as they apply to Southern Nigeria.

RELEVANT PROVISIONS OF THE CRIMINAL CODE

1. Section 228 – Attempt to Procure Abortion “Any person who, with intent to procure miscarriage of a woman whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatsoever, is guilty of a felony and is liable to imprisonment for fourteen years.”

Under the above provision, it is an offence punishable with 14 years imprisonment for any person (including medical practitioners and health workers)to attempt to terminate any pregnancy by any means whatsoever, even where the woman is not certified pregnant.

2. Section 229 – Attempt to Procure Owns Miscarriage by a Woman “Any woman who, with intent to procure her own miscarriage, whether she is or is not with child, unlawfully administers to herself any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, or permits any such thing or means to be administered or used to her, is guilty of a felony, and is liable to imprisonment for seven years.”

Under this provision, it is an offence punishable with 7 years imprisonment for a woman to attempt to terminate her pregnancy by any means whatsoever. It is also immaterial that the woman is, in fact, not pregnant.

It would technically, therefore, constitute an offence under this provision where, for example, a woman, upon suspicion that she is pregnant (perhaps after missing her monthly period) drinks salt or abortion pills.

3. Section 230 – Supplying Drugs or Instruments to Procure Abortion.

“Any person who unlawfully supplies to or procures for any person anything whatever, knowing that it is intended to be unlawfully used to procure the miscarriage of a woman, whether she is or is not with child, is guilty of a felony, and is liable to imprisonment for three years.”

The provision creates an offence against any person who supplies or procures anything which he or she knows is intended to be used to procure abortion whether or not the woman is pregnant. It follows that a local chemist who sells drugs to a pregnant woman or the errand boy who mixes salt water being aware of the use intended, may well be guilty of an offense under the provision.

4. Section 328 – Killing Unborn Child

“Any person who, when a woman is about to be delivered of a child, prevents the child from being born alive by any act or omission of such a nature that, if the child had been born alive and had died, he would be deemed to have unlawfully killed the

child, is guilty of a felony, and is liable to imprisonment for life.”

Under this provision, it is unlawful for anyone to prevent the birth of a child and this offence attracts life imprisonment as punishment.

Section 297 – Surgical Operation (Lawful Abortion).

Even though clandestine abortions are regularly carried out in Nigeria, abortion is illegal and carries up to 14 years imprisonment. It is only permitted under the laws where the mother’s life will be endangered if the child is born.

The provisions of the criminal code (sections 228-230, 297, 328) on abortion is termed to be restrictive because the statute did not elaborate the conditions or situations that fit into the exceptions permissible under the law.

There was a policy document to guide safe abortions of pregnancy in Lagos state released in June 2022. The Policy document was suspended less than two weeks after release because some religious leaders reacted to it.

Nigeria has one of the highest maternal mortality ratios in the world because of unsafe abortions and low usage of contraceptives.

In “R v. Idiong and Umo,” the 2 defendants had been convicted of murder on the grounds that the 1st accused had obtained the services of the 2nd accused, a native doctor, to give native medicine to bring about an abortion. The abortion resulted in the woman’s death. Therefore the 1st accused was party to the crime.

The West African Court of Appeal found that the 2nd accused had acted innocently believing that the medicine would relieve pain that the dead woman suffered from a retained placenta. He gave an abortifacient for expulsion of the placenta. He was found “not guilty” of murder and manslaughter.

The 1st accused was found criminally responsible for causing the abortion, but was found not guilty of murder. Abortion is illegal in Nigeria except when it is done for medical purposes, particularly to save the life of the carrier of pregnancy.