Abortion is the destruction of an unborn child while it is still in the womb. It is a topic which elicits varying viewpoints among the disputants. While it is an option of dealing with unwanted pregnancies, it is a very controversial one and, probably the most contentious moral and intensely debated ethical issue. The issue of controversy herein is whether abortion should be legalized and the ethical, legal and moral issues surrounding such legalization.
There are two stances taken on abortion, on one hand we have the pro-life movement who are those against abortion altogether, and on the opposing end we have the pro-choice movement who assert that it is the prospective mothers right to decide whether or not to procure an abortion. Both offer different solutions to the problem.
It is notable that many governments around the world struggle to strike a just balance between the rights of prospective mothers and the unborn child. It has often been complex for countries to come up with policies that govern when and under what circumstances a woman may legally have an abortion. Despite legal or moral restrictions against abortion procedures, abortions remain in great demand.
Each country has different abortion laws. But the widespread acceptance of legalized abortion says a lot about our morality. ?Sexual revolution? has facilitated the notion of freedom on all matters of sexuality and demands that abortion be recognized as a legal right. According to Peter Hitchens, a critic once stated; ?abortion corrupts any society which freely permits it. The idea that innocent life may be lawfully ended for the convenience of others or for the alleged good of society, once generally accepted, devastates the rule of law itself?.
This study looks at legislative approaches made on abortion in Kenya. It also attempts to place forward a comparative study of the legislations with that of other nations both developing and developed nations. While discussing the above, the study also looks at the moral, legal and ethical issues which affect the legalization and restriction of abortion.
1.2 Background of the study
Morality is defined as rules of right conduct concerning matters of greater importance. Violation of such can bring disturbance to individual conscience and social sanctions. Law is defined as rules which are enforced by society. Violations may bring a loss or reduction in freedom and possessions .
The general argument has always been that the government cannot enact and enforce moral laws in a free society because it constitutes an abuse of political power. Some ?immoral? acts like abortion are legally permissible. The perception about morality is different for every individual. Freedom on matters such as abortion reigns utmost in the modern world and restricting it has been a challenge. Therefore, what one person considers moral is considered immoral by another individual. As nauseating or obnoxious an act may be it is not an offence unless it is outlawed.
Abortion is legal in many parts of the world. But this is not true for countries in Africa. Most of the countries in Africa are a little reluctant to accept the legalization of abortion. Arguably, the reason that informs the perception is because traditionally most African states did not accept the act as such. Majority of the natives still frown upon abortion generally.
Debatably, in the quest for modern civilization, morality was surrendered. One such instance is the Sex revolution brought about by the western world. The revolution expedited the separation of sexual activity from pregnancy. Women had little or no reason to wait for marriage before engaging in coitus. Abortion provided a means to do away with unplanned pregnancy. In fact, what this has come to achieve is a decline in social significance of marriage or long term sexual relationships, which in turn have had an impact on divorce rates increase. In the similar token, premarital sex, promiscuity, or casual sex is ?normal?.
The expression of these ?freedoms? brought with it many social ills. These ills include prenatal sex selective abortions and human foetal research. The practices are immoral. Human foetal remains are commodities to various research centers and or cosmetic companies. According to the pro-life argument, they are of the opinion that abortion is a gross violation of morals, but to have an aborted foetus sold or used as a commodity is unimaginable. As Judie Brown opined:
?It is horrific enough that babies are torn apart by the thousands on a daily basis, but as we learn more and more about the sale of their tiny body parts, we cannot help but be sickened even further. When the mentality of the country treats babies as commodities, it is a wonder they are actually bought and sold?.
Pre-natal sex-selection abortion is an akin trend that has contributed to an increase in induced abortions around the world. Sex-selective abortion is one where a pregnancy is terminated based upon the predicted sex of the infant.
In most cases it is the female foetuses that are terminated. This is especially true in countries or societies where male offspring are considered more valuable than female offspring. This holds true for most countries in Africa.
International law sought to provide a solution to eradicate pre-natal sex-selective practices. In 1994, over 180 States signed the programme of Action of the International Conference on Population and Development. All member states agreed to ?eliminate all forms of discrimination against the girl child?. In this case, discrimination on a pregnancy based on the sex of a foetus is not only perceived immoral but also prohibited. Children ought to get equal treatment.
For instance, under the Constitution of Kenya, 2010, it provides that ?every person is equal before the law and has the right to equal protection and equal benefit of the law. Equality includes the full and equal enjoyment of all rights and fundamental freedoms. The argument therefore follows that when prospective mothers are allowed to terminate their pregnancies since the foetus is not of the desired sex, then arguably, it is morally wrong. This also perpetuates the idea that men are a superior gender to women and the practice is a global security threat which may result in other grave consequences including a sharp decline in birth rates which might have a negative impact on the economy of countries where the procedure thrives.
1.3A Statement of problem
The pro-choice and pro-life movement has different beliefs and opinions on the moral and ethical status of abortions. But these beliefs and opinions have proved difficult for either side to understand or appreciate. While the pro-life argue that abortion is immoral and should remain illegal, the Pro-choice on other divide argue that it is the choice of the mother to make a decision to carry the pregnancy or not. The debate between the two opposing sides is hotly debated with no consensus.
Furthermore, unlike other debates in legal discourse, the debate on abortion is a bit different, as the matter in contention is life of the unborn. Either way, the decision made whether abortion is legal or illegal, moral or immoral, ethical or unethical, has a significant impact on the lives of the unborn. This is where the real challenge abides. Therefore, the issue of abortion is not a mere intellectual exercise for scholars of family law and lawyers alike. It is a debate that society as a whole needs to engage in with a sober mind.
Another challenge that exists between the two extreme sides of the argument (the pro-life and the pro-choice) is the risk of the other of the unborn child. While the pro-life advances that life should not be terminated by way of ending pregnancies, the same argument is not appealing, if considered that the life of the mother is at risk. The pro-life fail to provide solutions to unwanted pregnancies for instance in cases of rape. Conversely, the pro-choice argue that life of the unborn should be dependent of the decision of the mother. On the face of it, this is also not the right approach as it therefore means the mothers would freely abort the unborn at own volition. The foregoing represents the ?tensions? that this research seeks to make a contribution.
1.3B Objectives of Study
The research paper will be guided by one main objective of the study which is; to conceptualize the legal, ethical and moral issues surrounding the legalization of abortion.
Other subsidiary objectives include:
To discuss the emerging issues and the legal developments in Kenya with regards to abortion.
To contextualize the historical perspectives and the developing jurisprudence with regards to abortion.
To make a comparative study of various legal regimes with regards to abortion.
To find out whether there are better solutions of addressing the concerns that have so far arisen with regards to the debate on abortion.