ABORTION: MEDICAL AND RELIGIOUS IMPLICATIONS – THE NIGERIAN LEGAL POSITION
INTRODUCTION
The wonder of our being is yet another mystery apart from the Holy Trinity. The concepts of humanity and human rights have taken millenniums to evolve. Written "Bills of Rights" during the last few centuries have basically granted citizens protection against their government and some power to announce individual opinions. Philosophers of the age of enlightenment maintained, as expressed in the United States Declaration of Independence (1776) that all people are "endowed by their Creator with certain inalienable rights." These "natural rights" are distinct from the "civil rights" approved by the government. In 1948, the United Nations published the "The Universal Declaration of Human Rights" as a standard for all nations. In the declaration of the rights of the child, the United Nations declared in 1959 that "the child by reason of his physical and mental immaturity needs special safeguards and care, including appropriate legal protections before, as well as after birth.
It is an unchallengeable biological fact that, from the moment of conception, there exists a distinct individual being who is alive and is of the human specie. No witness has challenged this scientific consensus that unborn children are "human beings," in so far as the term is used to mean living beings of the human specie. Hence, as the nuclei of the ovum and sperm unite during the first hours of fertilization, they bring together twenty-three (23) chromosomes from the mother and twenty-three (23) from the father. These chromosomes set, carry some fifteen-thousand (15,000) genes from each parent cell. In the first hours of human conception, the genes, like letters of divine alphabets, spell out the unique characteristics of the new individual. The colour of the eyes, hair and skin, facial features, body type and certain qualities of personality and intelligence are determined by this genetic coding. Whether the baby just begun will be a boy or a girl is determined by an X or Y chromosomes in the father's sperm cell.
This quiet, yet sacred, act of conception has produced not a "potential human being", but rather, a human being with vast potentials. A new human life has just begun and will continue until natural or violent death.
In this wise therefore, any deliberate prenatal termination is not without its consequent moral or legal sanctions, and is therefore, either morally, "a mortal sin" or legally "a felonious crime"; and by virtue of systematic biological knitting of human body, a disorder in the system is being caused by doing unnaturally that which should have being done naturally and hence, the consequent medical effects.
THE CONCEPT OF ABORTION
The problem or rather, the difficulty in giving a classic definition of abortion has allegedly being tied to the changing definition of "viability" by the courts. This difficulty is as a result of the decision of the United States Supreme Court in 1973, in the famous case of Roe v Wade where the seven learned Justices of the court held that the interest of the State in protecting fetal life is not compelling until the fetal is viable (placing viability at the start of the third trimester). However, with due respect to learned Justices, the "viability principle" is hardly tenable, and by virtue of the elementary knowledge of biology that live begins at the meeting of the sperm and the egg to form a zygote, we refuse to base our definition herein on the "viability principle" which was induced by ignorance, on the fact that no one, according to the court, knows when life actually begins. In this wise therefore, on the witness of the undisputable biological fact, we stick to the traditional classical definition of abortion as "the expulsion of the fetus before it is viable." In this wise, abortion means killing of the unborn child at any stage of its prenatal existence, either as a zygote, embryo or fetus.
Before the modern methods of abortion, it was performed by the crude way of introduction of foreign objects (like sticks, needles, catheters etc) into the woman's uterus to disrupt the placenta and embryo, so that a miscarriage would result. In preindustrial societies, it was performed by hitting the pregnant woman in the abdomen over the uterus and jumping on her abdomen while she lies on the ground. Although these methods are effective, they are not without their consequences which may result in death if the uterus is ruptured, or if some of the amniotic fluid surrounding the fetus enters the bloodstream.
In the modern society however, abortions are performed surgically by physicians or other trained personnel experienced in this technique, making it "relatively safe". This modern procedure also influenced the decision in Roe v Wade where the court struck down, as unconstitutional, any federal, state or local laws regulating or restricting the practice of abortion on the premise that states no longer had the right to regulate abortion because the advances in modern medical research had now made abortion relatively safe. This shows that the decision was rather based on scientific advancement instead of preserving the sacredness of human life. However, whatever the reasons were, it is pertinent to point out that the same medical advancement has shown that those who engage in abortion are prone to experience more complications beyond what the court thought was a "relatively safe" procedure.
MEDICAL IMPLICATIONS
Statistics has shown that the rate of abortion is high among teenage women; and the rather alarming rate with which it is performed in our tertiary institutions is nothing to write home about. This ugly situation has almost turned the act into normality. However, an elementary knowledge in sociology will reveal that normalcy is different from desirability.
It is a pity that abortion is now a matter of State policy. That is to say, a State reserves the right to term abortion legal or illegal. Little wonder countries like Canada, United State and to some extent United Kingdom have a positive state policy on the matter. However, whatever the States policy might be, it is undisputable that the medical effects are the same, both to the countries that recognize abortion and those that do not.
According to Dr. Warren Hern, a world-renowned abortionist, "In medical practice, there are few surgical procedures given so little attention and so underrated in its potential hazards as abortion. It is a commonly held view that complications are inevitable."
Medical research has therefore shown that over one-hundred potential complications have been associated with induced abortion. The complications include: (i) Ectopic (tubal) pregnancy. This is a pregnancy that occurs outside the uterus. Such is likely to occur after abortion, and if not soon discovered and pregnancy ruptures, one can bleed to death.
(ii) Women who have abortions have significantly higher rates of breast cancer later in life. (iii) One may develop DIC (disseminated intravascular coagulopathy) from abortion. That is to say, the blood does not clot and one will bleed uncontrollably – it is extremely life-threatening. (iv) Abortion may lead to sterility, and the risk is even greater for women who are infected with venereal diseases. (v)Abortion may perforate the uterus, and such causes "peritonitis"- an inflamed, infected lining of the abdomen. Where the uterus is perforated, intestines can as well be, and this will cause nausea, vomiting, abdominal pain, fever, blood in stool and possibly death, if not quickly treated. A portion of the intestines may be taken out and temporary or permanent colostomy put in the abdomen. (vi) Abortion may cause laceration of cervix. Normally, the cervix is rigid and tightly closed, and in order to perform an abortion, the cervix must be stretched open with a great deal of force and this can cause microscopic tearing of the cervix muscles and occasionally severe ripping of the uterus wall. The laceration of the cervix causes miscarriage in future pregnancies.
Effects on future pregnancies include: likely bleeding in the first three months of future pregnancies; less likely to have normal delivery; manual removal of the placenta with more complications in expelling the baby and its placenta; the baby will be likely to die in the first few months of its life and the baby will be more likely to be born prematurely.
RELIGIOUS IMPLICATIONS
The fifth of the Ten Commandment has always being "Thou shall not kill,"(Ex. 20: 13; Deu. 5: 17)
and the qualification in the New Testament has extended the scope further-
"You heard that it was said to the men of old ,"you shall not kill; and whoever kills shall be liable to judgment." But I say to you that everyone who is angry with his brother shall be liable to judgment" (Mt. 5: 21-23). This commandment has always formed the basis of the Church's teaching on abortion, terming it a "mortal sin," capable of leading a soul to hell in one commission. Since the first century, the Church has affirmed the moral evil of every procured abortion. This teaching has not changed and remains unchangeable. Direct abortion, that is to say, abortion willed either as an end or a means, is gravely contrary to the moral law – hence
"You shall not kill the embryo by abortion and shall not cause the newborn to perish,"
"God the Lord of life, has entrusted to men the noble mission of safeguarding life, and men must carry it out in a manner worthy of themselves. Life must be protected with the utmost care from the moment of conception: abortion and infanticide are abominable crime" (Cf. Tertullian, Apol. 9: PL 1, 319-320; GS 51).
The Church deems any formal co-operation in an abortion as a grave offence, whether by means of counseling, aid or procurement, and attaches a canonical penalty of excommunication to it. Hence, "A person who procures a complete abortion incurs excommunication latae sententiae,"( Cf. CIC, Can. 1398) "by the very commission of the offense (Cf. CIC, Can. 1314) and subject to the conditions provided by the Canon Law (Cf. CIC, Can. 1323-1324).
It is therefore, the sanction by the Church that not only is the woman who aborted guilty, but all who co-operated in the act which include, the doctor, friends who gave advise, the person who knowingly gave money for the act, the driver or the cyclist who with the knowledge of what is to be done took her to hospital etc. The Church does not thereby intend to restrict the scope of mercy, rather, She makes clear the gravity of the crime committed, the irreparable harm done to the innocent who is put to death, as well as the parents and the whole society.
NIGERIAN LEGAL POSITION
Since the 1973 decision in Roe v Wade, the protection of the right to life and other inherent rights of the unborn child has been left to the States - State policy. Based on this, the legislation of some States stipulate that legal capacity begins with birth (Cf.
article 1 Italian Civil Cod) which presupposes that the unborn child is not a human person and therefore has no right to life. The international instruments on human rights are ambiguous on the issue. Hence, there is no explicit protection of the right to life of the unborn child. The Regional Commissions, the Courts of human rights and some national courts have refused to declare categorically that the child is a subject of the right to life.
Under the Nigerian law, "It is unlawful to kill any person unless such killing is authorized or justified or excused by law" (Cf. S. 306 Nigerian Criminal Code) and by S. 315 of the same Code,
"Any person who unlawfully kills another is guilty of an offence which is called murder or manslaughter according to the circumstances of the case." It follows that unlawful killing can either be murder or manslaughter, the circumstance that will amount to murder are provided in S. 316; unlawful killing in such circumstance as not to constitute murder, is manslaughter - (Cf.
S. 317 Criminal Code). It is important to note that only "persons" (i.e. human beings) are capable of being killed. Hence, any other killing not amounting to murder or manslaughter (except in certain circumstances, such as infanticide) is not unlawful though one is deemed to have "killed."
It is further provided in S. 307 that "A child becomes a person capable of being killed when it has completely proceeded in a living state from the body of its mother, whether it has breathed or not, and whether it has independent circulation or not, and whether the navel-string is severed or not." It follows from the above that an unborn child cannot be killed; hence the offenders cannot be guilty of murder or manslaughter. However, the Code in S. 309 provides "When a child dies in consequence of an act done or omitted to be done by any person before or during its birth, the person who did or omitted to do such acts is deemed to have killed the child." This provision is quite funny since an unborn child cannot be a subject of killing; so the effect of killing in this section cannot easily be fathomed, since it is neither murder nor manslaughter. What then can such killing be called - I wonder! To make the situation worse, no punishment is provided for such. It is rather a dramatic situation if a look is taken at S. 328 which makes it a felony (crime punishable with 3 or more term of imprisonment), in fact, felony of life imprisonment, for any person, who when a woman is about to be delivered of a child prevents the child from be born alive. This provision makes stupid of the provision in sections 307 & 309. This is because, why should a person be punished for preventing delivery of a child since such child cannot be killed under S. 307. Such is the volte-face position of Nigerian law over the right of an unborn child to life. The inference is that "killing" under S. 309 cannot be a crime while the same killing under s. 328 can be punished, even with life imprisonment- what a contradiction in face of the same unborn child involved!
Ordinarily, if killing under S. 309 is a punishable crime, those who engage in abortion would be liable under it. But even though offence under S. 328 is punishable, those who engaged in abortion cannot be charged under it, since in abortion, the woman do not present herself to be delivered of the child, but to be terminated of it.
However, it is actionable in cases of failed abortions, where the child was eventually born, for the child to institute a civil action against the mother for injury resulting from tortuous conduct preventing his birth.
It is evident in the above analysis that Nigeria is playing a volte-face in her position on abortion. It is pertinent that Nigeria, as "giant of Africa" should make her stance on the issue clear, and should set a pace by making a negative state policy against such abominable acts. A call is hereby made to make S. 309 punishable, thereby criminalizing abortions, for it is an affront against life and should rightly be called murder and not by any other name.
CONCLUSION
Ours is a generation that has lost the sense of sacredness and consciousness of God. What ordinarily should not be heard of is being told in the market place. Days are gone when men do or refrain from doing certain acts because God abhors such. All that is "good" is being checked from the background of "legality or illegality," without any reference to what God commands. Men term good and hence legal whatever they wish to, all is forgotten about what God said through the instrumentality of His Church. People rather abhor certain acts and term them bad and hence illegal with reference to scientific advancement. As such, people are afraid to have sex, not because it is against God's laws, but because science has shown that a terminal disease "AIDS" can be contacted through it; once, the same science proclaims it relatively safe by the use of condoms, people are back on it again.
The essence of this article is not to instill fear in us by outlining the medical implications, since that is only what people listen to and not God, but it is rather to make it clear that, inasmuch as one may be "lucky" not to have any of those complications, the complications we have created between ourselves and God is rather fiery, on the basis that human life is sacred from its beginning and involves the creative actions of God and it remains forever in a special relationship with the Creator who is its sole end. God alone is the Lord of life from its beginning until its end; no one can under any circumstance claim for himself the right directly to destroy an innocent human being.
UMEH ALOYSIUS N.
FACULTY OF LAW
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