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Penal code slowing down constitutional abortion care services

Health & Science

By Bernard Muthaka

Nairobi, Kenya; If you stopped any three women and asked them when a woman is likely to get pregnant, only one is likely to give the correct answer. And in every four men, only one would answer the question, says a recent study in five local towns.

If that is not alarming, experts have established a few consequences of such ignorance.  For instance in Nairobi slums, six out of every ten girls say they have had an unintended pregnancy. Also, 13 per cent of students had experienced their first pregnancy by age 14.

These are some of the findings of a survey led by Jhpiego – an NGO affiliated to John Hopkins University – under the Kenya Urban Reproductive Health Initiative, known as Tupange.

When these sexually-active, unmarried girls were interviewed, four of ten said they wished to avoid becoming pregnant, but were not using any method of contraception. Among the poor and uneducated married women, less than one in five use modern contraceptives.

Even though expulsion from school for pregnancy is no longer legally permitted, many adolescents believe that if a girl becomes pregnant, abortion is the only way to avoid expulsion from school.

Unintended pregnancy has two main outcomes – unplanned births and unsafe abortion.

In Kenya, more than 300,000 abortions occur every year.  The World Health Organisation estimates that 13,000 women in Eastern Africa die from unsafe abortion each year.

One Kenyan study found that as many as 60 per cent of all gynaecologic emergency hospital admissions are due to abortion complications.

In 2010, Kenya adopted a new Constitution that explicitly permits abortion when there is need, in the opinion of a trained health professional, for emergency treatment; if the life or health of the woman is in danger; or if it is permitted under any other written law. Previously, abortion was only permitted to protect a woman’s life.

Health personnel are however not clear about the new legal status of abortion. This is largely because sections of the Kenyan Penal Code have not been revised to reflect the language in the new Constitution. 

Medical providers may be reluctant to perform abortions for any reason for fear of legal consequences.  The Penal Code currently lists self-inducing abortion, or providing any other type of “unlawful” abortion, as felonies punishable by a seven–14-year prison sentence.

Despite the medical risks associated with clandestine procedures, Kenyan women are forced to obtain abortions from a wide range of alternative providers, including midwives, traditional herbalists and other untrained providers.  Some women induce abortion themselves. These methods are life threatening.

The cost of clandestine abortion varies widely. Private and public providers may charge any amount from Sh1,000 to Sh10,000, depending on how old the pregnancy is and sometimes on what the woman can afford.

In its Health Sector Strategic Plan, the ministry of Health classifies post-abortion care as “essential”, but while nurses and midwives are legally allowed to provide that care, in many instances only doctors are adequately trained, which means very few women can access it, since most facilities do not have doctors.

Apart from synchronising the language of the Penal Code with the constitutional provisions, experts say the Government must strive to reduce the unmet need for contraception and eliminate barriers to obtaining family planning services for all women.

  “Comprehensive programmes need to be established in schools to offer vital information that adolescents need to make informed decisions and protect their health and future. Both providers and the general public should be made aware that abortion is an available option to protect the health of a woman,” says a policy expert at IPAS, a non-profit organisation that promotes women’s health and reproductive rights.


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