Ask a lawyer:
What does "abortion on demand" mean?
Introduction
The term "abortion on demand" refers to the ability of a woman to obtain an abortion at her request without any restrictions or requirements for justification. This concept is often discussed in the context of reproductive rights and the legal frameworks governing abortion. In Kenya, the legal provisions surrounding abortion are primarily found in the Constitution of Kenya, 2010, and the Penal Code. This response will delve into the legal aspects of abortion in Kenya, focusing on the relevant constitutional and statutory provisions.
Table of Contents
Constitutional Provisions
1.1 Article 26: Right to Life
1.2 Exceptions to the Right to Life
Penal Code Provisions
2.1 Sections 158-160: Offenses Related to Abortion
2.2 Section 240: Medical Exceptions
Interpretation and Application
3.1 Judicial Interpretations
3.2 Practical Implications
Conclusion
1. Constitutional Provisions
1.1 Article 26: Right to Life
The Constitution of Kenya, 2010, is the supreme law of the land and provides the foundational legal framework for all other laws. Article 26 of the Constitution addresses the right to life:
Article 26(1): "Every person has the right to life."
Article 26(2): "The life of a person begins at conception."
These provisions establish the fundamental right to life, which is protected from the moment of conception.
1.2 Exceptions to the Right to Life
While Article 26(1) and (2) establish the right to life, Article 26(4) provides specific exceptions where abortion may be permitted:
Article 26(4): "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 clause allows for abortion under certain conditions, primarily focusing on the health and life of the mother.
2. Penal Code Provisions
2.1 Sections 158-160: Offenses Related to Abortion
The Penal Code of Kenya, which predates the 2010 Constitution, contains several provisions that criminalize abortion:
Section 158: "Any person who, with intent to procure the miscarriage of a woman, whether she is pregnant or not, unlawfully administers to her any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, is guilty of a felony and is liable to imprisonment for fourteen years."
Section 159: "Any woman who, being with child, with intent to procure her own miscarriage, unlawfully administers to herself any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, or permits any such thing or means to be administered or used to her, is guilty of a felony and is liable to imprisonment for seven years."
Section 160: "Any person who unlawfully supplies to or procures for any person anything whatever, knowing that it is intended to be unlawfully used to procure the miscarriage of a woman, is guilty of a felony and is liable to imprisonment for three years."
These sections criminalize the act of procuring an abortion, whether by the woman herself or by another person.
2.2 Section 240: Medical Exceptions
The Penal Code also provides for exceptions under Section 240, which aligns with the constitutional provisions:
Section 240: "A person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation upon any person for his benefit, or 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 to all the circumstances of the case."
This section allows for medical professionals to perform abortions when it is necessary to preserve the life of the mother.
3. Interpretation and Application
3.1 Judicial Interpretations
Kenyan courts have had the opportunity to interpret these provisions in various cases. The judiciary plays a crucial role in balancing the constitutional right to life with the exceptions provided for abortion. For instance, in the case of Federation of Women Lawyers (FIDA) Kenya & 3 others v Attorney General & 2 others [2019], the High Court emphasized the need for clear guidelines to ensure that the exceptions to the prohibition of abortion are applied consistently and fairly.
3.2 Practical Implications
In practice, the legal framework means that "abortion on demand" is not permitted in Kenya. Abortions can only be performed under the specific conditions outlined in Article 26(4) of the Constitution and Section 240 of the Penal Code. This restrictive approach aims to protect the right to life while allowing for necessary medical interventions to safeguard the health and life of the mother.
Conclusion
In summary, "abortion on demand" is not legally recognized in Kenya. The legal framework, as established by the Constitution of Kenya, 2010, and the Penal Code, permits abortion only under specific conditions related to the health and life of the mother. These provisions reflect a balance between the right to life and the need for medical interventions in certain circumstances. Understanding these legal nuances is crucial for comprehending the status of abortion laws in Kenya.
Answered by mwakili.com