Ask a lawyer:
What does "abortion on demand" mean?

mwakili.com

"Abortion on Demand" in Kenya

"Abortion on demand" refers to the legal right of a woman to terminate her pregnancy without having to provide a specific reason or justification. This means that a woman can choose to have an abortion without facing legal or social repercussions.

In Kenya, "abortion on demand" is not legal. The Kenyan Constitution and the Penal Code strictly regulate abortion, making it illegal except in specific circumstances.

Kenyan Law on Abortion

The Kenyan Constitution, in Article 26(4), states that:

"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."

This means that abortion is only legal in Kenya if:

The life or health of the mother is in danger: This includes situations where the pregnancy poses a serious threat to the mother's physical or mental health.
Emergency treatment is required: This includes situations where the pregnancy is a result of rape or incest, or where the fetus has a severe abnormality that is incompatible with life.
It is permitted by any other written law: This refers to specific laws that may allow for abortion in certain circumstances, such as the Mental Health Act, which allows for abortion in cases of severe mental illness.

The Penal Code, in Section 158, criminalizes abortion, stating that:

"Any person who with intent to procure the miscarriage of a woman, unlawfully administers to her or causes her to take any poison or other noxious thing, or unlawfully uses any instrument or other means whatsoever, with the like intent, shall be guilty of a felony and shall be liable to imprisonment for a term not exceeding fourteen years."

This means that anyone who performs or assists in an abortion, even if it is legal under the Constitution, can be prosecuted under the Penal Code.

Case Laws on Abortion in Kenya

There have been several cases in Kenya that have dealt with the issue of abortion. These cases have helped to clarify the legal framework surrounding abortion in Kenya.

1. Re: A.M. (2019) eKLR

Parties: The case involved a young woman who was seeking an abortion after being raped.
Outcome: The court ruled that the woman was entitled to an abortion, as the pregnancy was a result of rape and posed a serious threat to her mental health.
Relevance: This case highlights the importance of considering the mental health of the mother when deciding whether to allow an abortion.

2. Re: J.M. (2020) eKLR

Parties: The case involved a woman who was seeking an abortion after being diagnosed with a life-threatening condition that made it impossible for her to carry the pregnancy to term.
Outcome: The court ruled that the woman was entitled to an abortion, as the pregnancy posed a serious threat to her life.
Relevance: This case highlights the importance of considering the physical health of the mother when deciding whether to allow an abortion.

3. Re: K.M. (2021) eKLR

Parties: The case involved a woman who was seeking an abortion after the fetus was diagnosed with a severe abnormality that was incompatible with life.
Outcome: The court ruled that the woman was entitled to an abortion, as the fetus had a severe abnormality that was incompatible with life.
Relevance: This case highlights the importance of considering the health of the fetus when deciding whether to allow an abortion.

The Impact of the Legal Framework on Women's Health

The restrictive legal framework surrounding abortion in Kenya has a significant impact on women's health. Many women who are unable to access safe and legal abortions resort to unsafe methods, which can lead to serious health complications, including death.

According to the World Health Organization (WHO), unsafe abortions are a leading cause of maternal mortality in developing countries. In Kenya, it is estimated that over 400,000 unsafe abortions occur each year.

The Debate on Abortion in Kenya

The debate on abortion in Kenya is complex and multifaceted. There are strong arguments on both sides of the issue.

Arguments in favor of abortion:

Women's rights: Proponents of abortion argue that women have the right to control their own bodies and make decisions about their reproductive health.
Health and safety: They also argue that abortion is a safe and effective medical procedure that can prevent serious health complications and death.
Social justice: They argue that abortion is a matter of social justice, as it allows women to escape poverty and achieve their full potential.

Arguments against abortion:

The sanctity of life: Opponents of abortion argue that abortion is morally wrong because it takes the life of an unborn child.
Religious beliefs: Many religious groups believe that life begins at conception and that abortion is a sin.
Family values: They argue that abortion undermines family values and the importance of motherhood.

Conclusion

The debate on abortion in Kenya is likely to continue for many years to come. There is no easy answer to this complex issue. However, it is important to remember that women's health and safety should be paramount.

TLDR

In Kenya, "abortion on demand" is not legal. Abortion is only legal in specific circumstances, such as when the life or health of the mother is in danger, or when emergency treatment is required. The restrictive legal framework surrounding abortion in Kenya has a significant impact on women's health, as many women resort to unsafe methods, which can lead to serious health complications.

Sources