The High Court in Malindi recently ruled that abortion is part of reproductive health rights as enshrined in the Constitution. The judgement was the culmination of petition E009 of 2020 in which a 16-year-old resident of Kilifi had been arrested and detained by police for procuring an abortion.
The girl, identified as PAK, had experienced pregnancy complications and sought medical care at a clinic near her home.
She was attended to by a clinical officer, who, upon examining her, determined that she had lost the pregnancy and needed post-abortion care (PAC).
While receiving the treatment, police officers stormed the clinic, confiscated PAK’s treatment records and arrested her, along with the clinical officer.
The clinical officer was detained for one week while PAK was remanded to a juvenile remand for more than a month.
The case was filed on December 2, 2020 by the Centre for Reproductive Rights (CfRHR) advocates Martin Onyango and Prudence Mutiso on behalf of PAK and the clinical officer.
Judge Reuben Nyakundi wrote the judgement. He determines that abortion care is a fundamental right and that arbitrary arrests and prosecution of patients and healthcare providers seeking or offering such services is illegal.
In the wake of the judgement, can women merely ask health professionals to terminate pregnancies?
Article 26(section 4) of the Constitution, states: ‘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.’
Dr Elly Odongo is an obstetrician and gynaecologist. He is also President Emeritus at Kenya Obstetrical and Gynaecological Society (KOGS).
He says: “A woman’s life could be in danger in case of an accident or a disease, thus needing termination to save her life. One such situation would be an ectopic pregnancy – when the foetus grows inside the fallopian tube instead of the womb. Another relatively common condition is uncontrolled high blood pressure medically known as pre-eclampsia. This is a dangerous condition that has led to the death of many pregnant women.”
Dr Wahome Ngare, a gynaecologist well known for his opposition to abortion, terms it, “deliberate killing of preborn children.”
Dr Ngare’s opinion on ectopic pregnancy is in resonance with Dr Odongo. Even so, he accompanies it with a caveat.
“An ectopic pregnancy is not a normal pregnancy but a disease. Pregnancy in the fallopian tube will cause it to rapture and bleed. The doctor would then remove the bleeding tube as the treatment to save the mother’s life. Unfortunately, the unborn child would die because the baby is too small to survive outside of the mother."
“The primary intention of the doctor, in this case, is to preserve the life of the mother. The loss of the child is an inevitable consequence. Such a doctor would have acted in a manner consistent with the Constitution. The doctor hasn’t done an abortion but offered treatment. His or her intention was not to kill the baby,” he says.
Beyond ectopic pregnancy, Dr Ngare holds a totally different opinion on termination of pregnancy (TOP).
According to him, bringing a pregnancy to an end by deliberately killing the unborn child is inconsistent with the Constitution.
“In my professional opinion, there is no medical diagnosis that would warrant ending a pregnancy by deliberately killing the unborn child. Any medical or surgical intervention performed on a pregnancy woman need to consider both the life of the mother and that of the unborn child."
“Life begins at conception. After fertilisation, we no longer have a sperm and an egg but a person. That the person is unborn and regardless of their location (inside or outside of the mother), they have a right to life just like the person who is already born,” he says.
Onyango of CfRHR also practices as an advocate of the High Court. He says that the Constitution gives priority to the mother.
“Remember, the mother’s life is independent. The foetus is dependent on the mother. If the mother dies the foetus dies. Viability of the foetus – its ability to survive without the mother – is determined by circumstances."
“In a resource-poor setting like a remote village where the closest health facility is a dispensary located 10 or more kilometres away, viability is when the pregnancy hits full-term. In Nairobi, where there is a hospital with a neonatal ICU, viability can go as low as 22 weeks of pregnancy.
“Viability is defined by trained health professionals: looking at all factors in a situation,” he says.
According to Onyango, the Constitution views a woman in need of safe abortion services as a patient. As such, doctor-patient confidentiality rule applies.
“If you are sick and you visit a doctor, the public cannot demand to know what went on with your doctor. The conversation is between you and your doctor. The same applies to women who need TOP services,” he says.
The Malindi High Court judgement says as much: that private communication between a patient and a healthcare provider is protected in the Constitution.
The law, Onyango says, (through Sexual Offences Act) allows for TOP if pregnancy arises from rape or defilement.
“That law is inconsistent with the Constitution and therefore null and void,” Dr Ngare says.
He adds: “A rape victim’s choice of not wanting to keep the child should be respected while at the same time preserving the life of the child.
“She should be taken into a rescue home and provided with basic needs. During this time, she should go through counselling so that she reaches an informed choice about whether to keep her child or give up the child for adoption.”
To which Onyango says: “We cannot assume that a victim of rape is feeling healthy enough to carry a pregnancy forced onto them through a criminal act. That’s why the law allows them to be able to access safe termination if they so wish.
“Why should anyone force another to live ‘morally’ at the expense of their health and well-being?” he poses.