Pregnancy dilemma: When abortion is the only way out

Tracy*, 15, lives in a safe house in Kimathi estate, Nairobi, a place she has called home ever since she discovered that she was pregnant.

Tracy has a seven-month-old child that was conceived after she was defiled by a pastor.

“Two older girls who were our former neighbours took me to their church one Saturday to clean it. When we reached there, they told the pastor that they had brought him a beautiful girl. They left me with him and that is when he forced himself on me,” she says.

Tracy says her father, who is a caretaker of the apartment block they live in, had previously evicted the two girls and their family after they failed to pay rent. Could it have been revenge?

“My counsellor told me that, perhaps, the girls were mad and they had organised the defilement just to get back at my family,” she says.

The pastor is still at large. Tracy says the pregnancy was not easy because of how she conceived, but the counselling sessions helped a bit.

From the same safe house, another girl, Mary*, 16, was defiled by their caretaker.

“We used to take food to him every time we cooked. One day when I went there, he locked the door and defiled me.

“He told me if I reported him, he would kill me and my family so I kept quiet. People found out about the incident when they discovered I was pregnant,” she says while rocking her three-week-old baby.

The caretaker was arrested, and Mary is still in therapy to help her cope. 

Jane*, now 30 years old, terminated a pregnancy when she was 21 after she was raped by a stranger.

“That time, I didn’t know about rushing to the hospital and being given drugs to prevent the pregnancy or STIs. I told my roommate in college after around a week when she noticed that I was not going to class and I was just in bed crying,” she says.

Jane would later discover she was pregnant, and she decided to terminate it.

“The trauma was too much, I felt dirty. There was no way I was going to keep that child. How was I supposed to cope for nine months knowing whatever was growing inside me was due to rape?!” she says bitterly.

Abortion in Kenya is regulated by Article 26(IV) of the Constitution, which states that: Abortion is not permitted unless, in the opinion of a trained health professional, there is a need for emergency treatment or the life or health of the mother is in danger, or if permitted by any other written law.

However, the debate always arises on the health bit. Health is defined as a state of physical, mental, and social well-being.

While the Constitution says abortion is permittable when the health of the mother is in danger, does it mean then, that when a woman or girl has been sexually assaulted and the act resulted in pregnancy, she is allowed to terminate it since her mental health is in danger?

Article 43(2) provides that: No person may be denied emergency medical treatment. This includes post-abortion care that is medically given to women for the treatment of abortion complications.

Linda Wanjiru Kroeger, Human Rights Lawyer and Acting Programme Manager SRHR at Kenya Legal and Ethical Issues Network on HIV and AIDS (KELIN), says the national guidelines on the management of sexual violations provide that a survivor of rape or defilement should be able to access a safe and legal abortion if she provides informed consent on the same to a health professional.

This is as nuanced in the above definition of a trained health professional under the Health Act, 2017.

“This has also been affirmed by the Constitutional Court at Milimani under Constitutional Petition 266 of 2015 which creates judge-made law,” she adds.

She further expounds on the last bit of the Constitution that states “or if permitted by any other written law, allows national or county level laws and policies to expand on these Constitutional aspects or conditions but NOT to reduce them.” (The Constitution is the supreme law of the land).

Following this, Makueni County, apart from what is already stipulated in the Constitution, allows termination of pregnancy if there exists a substantial risk that the foetus would suffer from a severe physical or mental abnormality; or where the pregnancy resulted from sexual assault, defilement, rape, or incest; or the pregnant woman, on account of being a mentally disordered person, is not capable of appreciating pregnancy.

Professor Joseph Karanja, an obstetrician and gynaecologist, echoes Linda’s sentiments. He says defilement and rape should be among the crucial instances a woman is allowed to terminate a pregnancy.

Referring to the Health Act of 2017, he says, “it interprets generally the same way,” adding that people just say it is illegal without reading the law properly and giving exceptions.

Prof Karanja expounds more on the law, saying that it defines a trained health professional as a doctor, a nurse, midwife or clinical officer.

There has been a lot of debate from some religious leaders and different groups on when a woman should be allowed to terminate a pregnancy.

Some argue that even if a woman is raped and got pregnant, she should keep the pregnancy and she can decide to raise the child or put it up for adoption.

Bishop Martin Njage of The Voice of Prophesy says that life begins at conception and it should not be permitted no matter the circumstances of conception.

“The Bible says before you have formed in your mother’s womb I knew you so there’s nothing like an accident when it comes to conception. I don’t see any reason to terminate a pregnancy.”

On the sticky issue of rape, Bishop Njange says: “When a woman is raped that person is not sick. If there’s trauma they should be exposed to counseling. It is better if they give birth and they give the child up for adoption.”

However, women who have been sexually assaulted and got pregnant have often talked about the trauma that comes with it. 

North Rift Council of Imams and Preachers of Kenya (CIPK) Chairperson Sheikh Abubakar Bin says Islam permits termination of pregnancy only when the mother’s life and health are in danger, and the pregnancy should not be more than four months.

“In case a woman is raped or defiled, and it might affect her psychologically and cause mental illness,  then the woman should be allowed to terminate it after consulting a doctor,” he says.

The argument for pro-lifers has been that if abortion is legalised, then the number of women procuring abortions would increase.

However, experts say that allowing abortion to be procured professionally would reduce morbidity and mortality rates, since women will be able to get the care they deserve.

Unsafe abortion is predicted to account for 35 percent of maternal deaths in Kenya whereas, in East Africa as a whole, unsafe abortions account for 18 percent of maternal deaths.

A survey in 2012 by the Kenyan Ministry of Health, African Population and Health Research Centre and IPSAS found there were 464,000 abortions induced that year, which translate to an abortion rate of 48 per 1,000 women aged 15–49; and an abortion ratio of 30 per 100 live births.

Despite the shocking findings, the lid remains open on whether the entire abortion debate should be closed once and for all. Meanwhile, it remains a personal problem for each of the women affected.

(*Names have been changed to protect the identity of the victims.)