NAME: EDWIN UTIBE-IMA-ABASI EDDY

MATRIC NO: 15/LAW01/064

COURSE TITLE: HEALTH LAW II

COURSE CODE: LPB 514

1. Termination of Pregnancy:
A 30 years old lawyer, Charity, is happily married and has a good income. She has just
discovered she is pregnant. She does want Children at some point but has also just been
nominated for promotion at work. She knows she would not get the promotion if she told
her boss she was pregnant.
She decides that, at this time in her life, the promotion is more important to her than
having a baby. She consults her general practitioner (GP) a few weeks later, having
finally decided that she would like to have an abortion. She asks the GP about whether
she has a right to an abortion.
Questions:
a) What are the grounds for a lawful termination of pregnancy?
b) Does the potential father have any legal rights in this decision?

ANSWER:

ISSUES:

 Whether Charity is married.

 Whether Charity planned on having an abortion
 Whether she needs her husband’s permission or not.

RULE:

Abortion is a controversial topic in Nigeria. Abortion in Nigeria is governed by two laws that
differ depending on geographical location. Northern Nigeria is governed by the Criminal Code. 1
The only way to have an abortion in Nigeria is if having the child is going to put the mother’s
life in danger. Nigeria’s abortion laws make it one of the most restrictive countries regarding

1
Criminal Code.
abortion.2 Nigeria’s criminal law system is divided between the northern and southern states of
Nigeria.

The Criminal Code is currently enforced in Southern States. The abortion laws of the Criminal
Code are expressed within sections 228, 229 and 230. Section 228 states that any person
providing a miscarriage to a woman is guilty of a felony and up to 14 years of imprisonment.
Section 229 states that any woman obtaining a miscarriage is guilty of a felony and up to
imprisonment for 7 years. Section 230 states that anyone supplying anything intended for a
woman’s miscarriage is also guilty of a felony and up to 3 years of imprisonment.3

The Penal Code operates in Northern States, with abortion laws contained in sections 232, 233
and 234. The sections of the Penal Code parallel the Criminal Code, besides the exception for
abortion with the purpose of saving the life of the mother. The Penal Code’s punishments include
imprisonment, fine, or both. The offenses of these codes are punishable regardless of whether the
miscarriage was successful.4 No provisions have been made to the Criminal Code making
exceptions for the preservations of the mother’s life. However, the cases of Rex v. Edgar 5 and
Rex v. Bourne6 have made it generally accepted that abortion performed to preserve the mother’s
life is not an appropriate transgression of the Criminal Code.

According to section 17 of the Child’s Rights Act, 7 a child may bring an action for damages
against a person for harm or injury caused to the child willfully, recklessly, negligently or
through neglect before, during or after the birth of that child.

In State v. Linus Akpan,8 the accused persons were charged with killing a child in consequence
of an omitted to be done during child birth contrary to section 247 of the Criminal code. 9 It was
held that since there was no proof that the child was born alive, the offence with which the
accused persons were charged could not be sustained.

2
O. I. Iyioha, “Comparative health law and policy: Critical perspectives on Nigerian and global health law”.
3
Criminal Code Act, chap.77.
4
C. Umeha, “Unsafe Abortion: Threat to Nigerian Women”.
5
Rex v. Edgar (2003) SCC 47.
6
Rex v. Bourne (1939) 3 ALL E. R. 615.
7
Child’s Right Act, s.17.
8
State v. Linus Akpan (1972) 2UILR 457.
9
Criminal Code, s.247.
In R. V. Senior,10 it was held that the word willfully, when used in the context of an offence
prohibiting cruelty to children, “means that the act is done deliberately and intentionally, not by
accident or inadvertence, but so that the mind of the person who does the act goes with it.

In R. v. Castles,11 abortion was induced on a woman who was 22 weeks pregnant. The child was
born alive but died 2 hours later. Accused was charged with manslaughter. On appeal decision
reverted to the offence of abortion.

APPLICATION:

a) The circumstances in which an abortion is not unlawful is when it is performed to save

the woman’s life. The relevant section of the Criminal Code is Section 297 12 which states
that a person is not criminally responsible for performing in good faith and with
reasonable care and skill a surgical operation, 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 all the circumstances of the case. This section is limited by
its terms to those cases of abortion done by surgical operation. 13 Another circumstance is
where the child when born would be seriously handicapped. Another is where the
pregnancy is a result of rape or incest. When a pregnancy is terminated by a registered
medical practitioner, the person shall not be guilty of an offence under the law relating to
abortion. Another exception is when two registered medical practitioners are of the
opinion formed in good faith:
 that the pregnancy has not exceeded its 20 th week and the continuing of pregnancy would
invoke risk greater than if the pregnancy were terminated.
 that the termination of pregnancy is necessary to prevent grave permanent injury to the
physical or mental health of the pregnant woman.
 that the continuance of the pregnancy would involve risk to the life of the pregnant
woman greater than if pregnancy were terminated.
 that there is a substantial risk that if the child were born it would suffer from physical or
mental abnormalities as to be seriously handicapped.

10
R. v. Senior, (1832) Mood C. C. 346.
11
R. v. Castles, (1960) W. W. N. 36.
12
Criminal Code, s.297.
13
I. Okagbue, “Pregnancy Termination and the Law in Nigeria”. (1990) (21) (4) Family Law Journal.
 b) While discussions about abortion often focus on the rights of a mother or unborn child,
there have been efforts to elevate fathers’ rights in abortion decisions through notice
requirements or “opt outs”. After all, expectant fathers might oppose a pregnant mother’s
decision to terminate a pregnancy or, conversely, may not wish to assume the
responsibilities of fatherhood and oppose the carrying of a pregnancy to term. While
courts have largely treated fathers’ rights in abortion decisions as secondary to those of
the mother, other means exists for fathers to influence the decision, through private
agreements.
 If a man’s pregnant partner seeks to have an abortion, the father’s consent isn’t legally
required; a woman may choose to terminate a pregnancy against the father’s objections.
The legal reasoning for this is twofold, based on a woman’s right to privacy in her
medical decisions, and the fact that the mother is more directly affected by pregnancy.

The Supreme Court has found laws requiring a spouse’s consent for an abortion to be
unconditional. In Planned Parenthood v. Danforth,14 the court reasoned that a husband’s refusal
to consent would in effect veto a woman’s choice to terminate a pregnancy. While both
prospective fathers and pregnant women have an interest in the decision, when the two disagree,
only one partners position can prevail. According to the court, since the woman actually carries
the pregnancy, the balance weighs in her favour, preventing the husband from vetoing her
choice.

 If the father’s consent isn’t required to abort a fetus, does he have a legal right to be
notified before it happens? What if state lawmakers pass a law that says a married woman
must inform her husband before she has an abortion?

The Supreme Court addressed this question in Planned Parenthood v. Casey 15 and found that
such a law was unconstitutional. While most women discuss an abortion with their partners,
those who don’t were much more likely to be in abusive relationships, according to the court.
The Supreme Court saw spousal notification requirements as placing an undue burden on women
who may fear for their safety, or that of their children.

14
Planned Parenthood v. Danforth (1976) 428 U. S. 52.
15
Planned Parenthood v. Casey (1992) 505 U.S. 833.
  Another question that arises is whether a man should be obligated to financially support a
child that his partner gives birth to, if the man would prefer to remain childless. After
birth, the father generally will be responsible for child support payments despite his
objections to carrying the pregnancy to term. This has led some fathers’ rights advocates
to oppose what they see as a double standard in family planning.

A “financial abortion” right would require a woman to notify a prospective father when she’s
allowed to refuse financial or legal responsibility for the baby if he doesn’t want to be a father.
Should the child be born despite this, the biological father would not be legally or financially
responsible for the child’s upbringing.

 A father may be able to come to agreement with his pregnant partner outside of the court
system if he would like her to keep the baby. If a prospective mother seeks to abort a
pregnancy against a father’s wishes, an attorney may be able to draft an agreement where
the father agrees to pay the costs of pregnancy and obtain full custody after birth.

CONCLUSION:

Abortion is an intentional expulsion of the product of conception any moment from conception
up till the birth of the child. It’s not a question of whether women will try to procure an abortion
or not regardless of the law, whether we like it or not, it’s going to happen, no matter if it is safe
or not. No woman should have to go to jail because they don’t want a pregnancy. A pregnancy
which if carried to term would solely be her responsibility for a major part of her life. By the
way, the government doesn’t care if the woman can’t afford to take care of the baby, but they are
going to take care of that baby, but they are going to try and force the woman to keep the baby.
No such thing as welfare/ aid for you if you are a poor mother in Nigeria. The closest a woman is
going to get to welfare in this country is rice or money shared by political aspirants during
election season. With the high cost of living and low income plaguing the country, raising an
unwanted child is very expensive. It is time consuming, it drains one financially and emotionally.
The onus is on the woman to bear the burden of taking care of the baby alone in majority of the
cases of unwanted pregnancies. Is she’s lucky, the baby’s father or family members help out. It is
the governments job to make sure women don’t die unnecessarily from unsafe abortion. The
right way for the government to reduce abortion is to make it less necessary instead of less
available. Programs should be made available to educate people on the use of various means of
contraceptives. Another way is to make sure, women have the financial means and access to
health care should they choose to keep the baby. This is by far, a better way of reducing
unintended pregnancies. Women should also have access to safer abortion procedures. They can
make sure of this by lifting the ban first and then training professionals who can carry out the
procedure safely on a world class level.