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Legal and Human Rights Issues Surrounding Abortion in Africa and Globally

Once a woman is diagnosed with uniformly or commonly fetal anomalies that can be fatal,

she is given an option of undergoing termination of pregnancy (TOP) or go for feticide in either

the third or late pregnancy trimester (Heuser, Alexandr, and, Janice p.392). Termination is morally

acceptable if it will be of benefit to the mother, the fetus and the expected child (Fleischman et al.,

p185) since doctors are obligated to implement the available scarce healthcare resources in their

effort to provide non-futile treatment. Some international laws that are against cruel human

punishment that is protected by the International Covenant on Civil and Political Rights (ICCPR's)

act in support of TOP (Keith p.107). The support was demonstrated in the case of KL vs. Peru

which involved a woman denial of TOP to a woman pregnant with anencephalic fetus due to

restrictive national policies on abortion. The woman was forced to carry the pregnancy till its

maturity and birth, before nursing the child until its demise. According to the United Nations

Human Rights Committee, although it violated article 7 of the ICCPR, such action was inhumane

and cruel. HRC held that sections 2, 17 and 24 of the ICCPR were violated which only necessitates

administrative measures by state parties to liberalize abortion policies and to compensate victims

in case of injuries. State parties were therefore instructed to avoid such occurrences.
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The HCR findings coincide with the American Charter on the Rights of Women protocol

whose article 14(2)(c) states, “to protect the reproductive rights of women by authorizing medical

abortion in cases of sexual assault, rape, incest, and where continued pregnancy endangers the

mental and physical health of the mother or the life of the mother or the fetus.” (Union Africa p.71)

As a result, African countries are obligated as African Charter signatories, to liberalize abortion

policies for women to exercise their right to undergo TOP. Abortion could also be acceptable in

countries that have deeply held beliefs such as Islamic countries provided it precedes the

“ensoulment” period; before 120 gestation days. Women from countries with liberal laws on

abortion such as South Africa can easily access TOP services since it is consistent with the stats

laws such as the choice on TOP act 1996 (De Roubaix, p.145). According to the act, any woman

is entitled to termination of pregnancy provided that it is during the first 12 gestation weeks. The

bill also allows a woman to undergo an abortion at the late trimester if it is likely to endanger her

life, cause injuries to the fetus or in case the fetus has severe malformations. However, no

procedure should take place without the woman’s consent.

The need to differentiate the various degrees of abnormalities in the legal and ethical debate

concerning the termination of pregnancies for fetal abnormalities is an issue worth consideration.

The only challenge is distinguishing between sever uniformly and commonly lethal defects such s

comparing anencephaly with nonlethal abnormalities like port wine stain which may result to

disfigurement in future (Heuser, Alexandr, and, Janice p.394). It is unfortunate that the South

African Choice act fails to discern between lethal and non-lethal abnormalities and does not entail

what should be considered as “sever fatal abnormality” to qualify for TOP of feticide. Clinicians

and mother are therefore left to make the decision. The law dictates that an abnormality can only

be considered severe and qualified for feticide or TOP when two qualified medical practitioners
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agree on the same. Although religion and culture tend to oppose liberal laws on abortion, such

policies would be of many benefits to most African countries in minimizing the incidence of

precarious abortions maternal mortality associated with restrictive abortion policies (v p.202).

In most Islamic countries and countries with restrictive laws on abortion such as Argentina,

Ireland, Australia, Kenya, and Nigeria, offering feticide or TOP is more complicated (McNamara

et al., p.185). TOP is also vexed incase the victimized women refuses to take the option and

proceeds to give birth to a physically challenged child with severe neurodevelopment disorders.

Some people argue that as far as the woman’s rights to wellbeing and body integrity must be upheld

as states by the constitution, it is also worth considering the wellbeing of the fetus and it

beneficence-based compulsions (Chervenak, Frank, and Laurence p.396). Such consideration

could be applicable where there is a scarcity of technological equipment such as incubators that

would otherwise have been used to support neonates that have better chances of survival rather

than administering futile treatment. The debate on withdrawing or withholding healthcare of

severely-disabled neonates is in support with the interest of equity and justice which coincides

with regulatory bodies' perceptions such as the Health Professions Council of South Africa. Such

decisions are however subjected to criticism by parents who act in their children’s best interest

(Strong p.123). Philosophers who support TOP and feticide base their arguments on utilitarianism

and the protective beneficence principle. On the contrary, ethicist argues that regardless of the

severity of a fetus disability, a fetus should be preserved basing their arguments on the inherent

moral worth and dignity accorded to human beings regardless of biological differences.
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Work Cited

Chervenak, Frank A., and Laurence B. McCullough. "Ethical issues in recommending and offering

fetal therapy." Western Journal of Medicine 159.3 (1993): 396.

De Roubaix, M. "Ten Years Hence-Has the South African Choice on Termination of Pregnancy

Act, Act 92 of 1996, Realised Its Aims: A Moral-Critical Evaluation." Med. & L. 26

(2007): 145.

Fleischman, Alan R., Frank A. Chervenak, and Laurence B. McCullough. "The physician's moral

obligations to the pregnant woman, the fetus, and the child." Seminars in perinatology.

Vol. 22. No. 3. WB Saunders, 1998.

Heuser, Cara C., Alexandra G. Eller, and Janice L. Byrne. "Survey of physicians' approach to

severe fetal anomalies." Journal of medical ethics 38.7 (2012): 391-395.

Keith, Linda Camp. "The United Nations International Covenant on Civil and Political Rights:

Does it make a difference in human rights behavior?." Journal of Peace Research 36.1

(1999): 95-118.

McNamara, Karen, et al. "Antenatal and intrapartum care of pregnancy complicated by lethal fetal

anomaly." The Obstetrician & Gynaecologist 15.3 (2013): 189-194.

Ngwena, Charles G. "State obligations to implement African abortion laws: Employing human

rights in a changing legal landscape." International Journal of Gynecology & Obstetrics

119.2 (2012): 198-202.

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Strong, Carson. "Fetal anomalies: ethical and legal considerations in screening, detection, and

management." Clinics in perinatology 30.1 (2003): 113-126.

Union, African. "Protocol to the African Charter on Human and People's Rights on the Rights of

Women in Africa." (2003).