Cases of minors dying from unsafe abortions rise as law remains unclear
By Gardy Chacha
| June 30th 2021
Kerubo, 17, is lucky to be alive. In August last year, she went through an abortion that almost turned fatal.
Her aunt, who was her guardian at that time, allegedly forced her into a sexual relationship with a man who impregnated her but was not ready to take responsibility.
The man and the aunt steamrolled her to have an abortion. The ‘abortion expert’ was brought home to get it done but the procedure led to complications of excessive bleeding. The ‘expert’ ran off fearing the girl would die in his hands.
Neighbours took Kerubo to the nearest police station. The police involved a human rights defender and Wangu Kanja Foundation to get the girl to hospital.
“We took her to Nairobi Women’s Hospital where she accessed medical services,” says Wangu Kanja, the founder of the foundation.
After treatment, Kerubo was taken to a safe shelter where she received counselling. Afterwards, she was reunited with her elder sister who is now taking care of her.
There is no data currently showing the proportion of abortions directly linked to pregnancies resulting from defilement or rape. However, many human rights bodies such as Federation of Women Lawyers (Fida–Kenya) recognise that sexual violence is among contributors to unsafe abortion.
For Kanja, herself a victim of rape, many of those affected grow afraid of reporting that they have been raped because they would be blamed for it.
“And because many rape cases go unreported, if pregnancy results from the crime, the victim will almost always seek a backstreet abortion – because the rape was never reported in the first place.
“We live in a staunchly conservative society where no girl wants to be identified as having performed an abortion. Such a girl would be called loose and without morals; which then leads to mental health issues,” Kanja says.
Yet backstreet abortions have led to the death of many young girls.
The World Health Organisation (WHO) estimates that 266 deaths per 100,000 unsafe abortions occur in Kenya.
This is very high compared to 30 deaths per 100,000 unsafe abortions in the developed world.
In a landmark High Court ruling in 2019, the Ministry of Health was found culpable in the death and suffering of a rape-and-abortion victim for withdrawing standard guidelines on post-abortion care as well as banning training of health professionals on safe abortion in 2013.
The ruling resulted from a 2015 petition that had been filed by the victim, her mother, two human rights activists and Fida. The victim, identified by the court as JMM, was a schoolgirl from a poor family in rural Kisii. She had been forced into sexual intercourse by an older man in 2014 while she was in Form One.
Court documents say that JMM initially did not disclose details of the pregnancy to anyone for fear of being blamed and rejected by family members.
Later, she confided in her roommate, who then introduced her to someone who helped her get rid of the baby. The procedure took place on a Saturday morning and the ‘doctor’ advised her to go home and wait for the process to complete.
Out of control
At home, she began vomiting and bleeding heavily. At this point, JMM’s health started spiralling out of control. She was moved from one health facility to another in an attempt to save her life.
First, she was taken to a local dispensary, and then to Kisii County Referral Hospital. At Kisii, she was referred to Tenwek Mission Hospital for higher-level treatment and kidney dialysis.
Twelve days after the abortion, JMM was taken to Kenyatta National Hospital where she received post-abortion care and dialysis. She stayed in the hospital for 68 days before her first discharge. She fell ill again and was readmitted for two weeks.
However, JMM lived with a kidney disease that resulted from the abortion for three years. She passed on in June 2018 as she battled the disease.
JMM’s mother was awarded Sh3 million for the physical, psychological, emotional and mental anguish, stress, pain, suffering and death of her child.
Dr Elly Odongo, a gynaecological oncologist at Moi Teaching and Referral Hospital, says JMM died because she lacked and could not access proper post-abortion care.
Article 43(2) of the Constitution makes emergency medical treatment mandatory for every citizen. This, according to Wanjiru Kroeger, a human rights lawyer, includes post-abortion care that is medically given to women for the treatment of abortion complications.
“Abortion is illegal. However, the law allows doctors to carry out safe abortion in cases where the life of the mother is in danger, or the pregnancy resulted from incest, or the foetus has severe congenital deformities.
Through the Sexual Offences Act, the law also permits safe abortion where pregnancy resulted from rape,” Odongo, who is also the current acting CEO of Kenya Obstetrical and Gynaecological Society, says.
Rape occurs when there is no express consent from an adult for penetration to occur. If the sex act involves an adult and a minor, consent is irrelevant as minors cannot give consent.
“This type of rape is called defilement because anyone under the age of 18 cannot consent to enter into a sexual relationship with an adult,” says Wanjiru Kamanda, a lawyer with Fida.
This, Dr Odongo notes, presents doctors and other medical practitioners with a conundrum.
“It places us in great dilemma whether such pregnant minors automatically qualify for safe abortion. We need much clearer legal interpretation on that,” he says. Odongo says there is great need for education on matters of abortion resulting from defilement as well as rape.
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