ON THE ABORTION QUESTION
Professor Japheth Mati, MB, ChB, MD, FRCOG
Formerly, Professor and Chairman,
Department of Obstetrics and Gynaecology, and
Dean, Faculty of Medicine,
University of Nairobi, Kenya.
The Abortion Debate has dominated the thoughts of Kenyans since Parliament passed without ammendments, the draft Constitution of Kenya, on 1st April, 2010. I think most people would agree that the way to go is not “abortion on demand”; beyond that the differences creep in over the issue of rights- rights of the mother and rights of her unborn child. On the one side are those who would wish to guarantee unconditionally rights of the unborn child; on the other, are those who, faced with the difficult decision on which life to save, would apply ‘the principle of the lesser of two evils’. This article presents a brief overview of the varied opinions on abortion over the ages; these may be relavant to the current debate. It examines the place of abortion in African cultural settings, as well as within the major religions. Further, it explores the scientific and philosophical arguments on questions such as ‘when life begins’, ‘when life become morally valuable’ and ‘when personhood begins’.
As Kenyans prepare for the Referendum it is imperative that we familiarise ourselves with what we currently have and what is proposed in the New Constitution. On the charged question of abortion it seems like there is no advantage either way. Whichever way the Referendum vote will go, it will still remain bad news for reproductive health and rights of women in Kenya. The law will remain restrictive either way! Perhaps the only difference one might notice will be that whilst today the clause restricting abortion lies in an Act of Parliament (the Penal Code), ‘tomorrow’, it will be entrenched in the Constitution (I wish the wording could be improved!).
Abortion as a Cultural and Religious Issue
The history of abortion (i.e. termination of pregnancy) can be traced back to antiquity. The ancient Egyptians possessed effective abortifacients. However, the knowledge about these and other methods of fertility control was gradually lost over the course of the Middle Ages, becoming nearly extinct by the early modern period[i]. There is considerable anecdotal evidence to suggest abortion features prominently in Traditional Medicine in most African countries. The following extract describes the practice among the Samburu in Kenya, where specific indigenous abortifacients are known:
“Abortion (airony) is rare but will be performed on unmarried girls by older women. It is carried out away from the village in the bush. Methods include the ingestion of several strong purgatives (including a solution made from the roots of the “toothbrush” tree sokotei (Salvadora persica L.) mixed with sheep’s urine and dung), accompanied by hard massaging and rope tightening about the girl’s abdomen. In addition, Western pharmaceuticals such as chloroquine may be ingested in large quantities. If the abortion is successful, the girl drinks tea made with I-terikesi (Acacia senegal L. Wild.) and siteti (Grewia bicolor A. Juss), boiling the bark until it turns red, symbolic of women’s reproductive powers”[ii].
Administration of abortifacient agents has been described among Rwandese Traditional Healers in Refugee Camps in Tanzania[iii], as well as in a study involving adolescents and young adults also in Tanzania[iv]. The latter study found that abortion was widely, if infrequently, attempted, by ingestion of laundry detergent, chloroquine, ashes, and specific herbs. “Most women who attempted abortion were young, single, and desperate. Some succeeded, but they experienced opposition from sexual partners, sexual exploitation by practitioners, serious health problems, social ostracism, and quasi-legal sanctions”.
- · Abortion in the Judeo-Christian Tradition
The word ‘abortion’ does not feature anywhere in the Bible, either the Old or the New Testament, even though the books of Moses contain rules governing issues like menstruation, rape, and incest, and both Jesus and Paul provide guidance regarding marriage. On the other hand, there are texts among the so called “disputed” books which specifically address the issue of abortion. The 2nd century Epistle of Barnabas says “….You shall not slay a child by abortion. You shall not kill that which has already been generated” (Epistle of Barnabas 19:5). Overall, the argument against abortion is hinged on Exodus 20:13 “Thou shalt not kill”, in this case, killing a fetus.
Generally speaking, traditionalist Jews firmly oppose abortion, with few health-related exceptions; while liberal Jews tend to allow greater latitude for abortion. The Torah says little about the status or treatment of the embryo or fetus. Indeed, only one crucial Biblical law establishes a rule about the killing of an embryo or fetus. Specifically, Exodus 21:22-23 deals with miscarriage resulting from injury inflicted on a pregnant woman caught up in a fight. In mainstream rabbinic Judaism, abortion is sanctioned under certain circumstances, namely for medical reason. In principle, Judaism does not regard the fetus as a full human being. While deliberately killing a day old baby is murder, according to the Mishnah, a fetus is not covered by this strict homicide rule[v]. Embryo is not a person; homicide concerns an animate human being (nefesh adam from Lev. 24:17) alone, not an embryo… because the embryo is not a person (lav nefesh hu)[vi].
- · Abortion in the world of Islam
In the world of Islam, while there is no actual approval of abortion, there is no strict, unanimous ban on it, either. The Qur’an does not explicitly mention abortion, but condemns the killing of humans (except in the case of defense or as capital punishment). Generally, abortion is forbidden after the stage of ensoulment (when soul is presumed to have entered the embryo, after 120 days). After this stage, abortion is prohibited completely except where it is imperative to save the mother’s life. This exception is based on the principle of the lesser of two evils (see below) – either abort the unborn child or let a living woman die. There is a lack of unanimity in the way abortion is treated in the different parts of world of Islam. For example, in Egypt, Jurists of the Shiite Zaidiva believe in the total permissibility of abortion “before life is breathed into the fetus”, no matter whether there is a justifiable excuse or not[vii]. The Maliki school of thought (prevalent in North and sub-Saharan Africa) and the Hanbali school (predominant in Saudi Arabia and United Arabic Emirates) permit abortion only up to 40 days[viii]. In addition, there are those within Islam who oppose abortion under any circumstances, quoting the text “Do not kill your children for fear of poverty for it is We who shall provide sustenance for you as well as for them.” (Surah, Al-An’ am, 6:151). However, this Qur’anic reference is usually interpreted to apply only to the killing of already born children, and does not explicitly refer to abortion.
- · Buddhism and abortion[ix]
There is no single Buddhist view concerning abortion. Buddhist monastic code, hold that life begins at conception and that abortion, which would then involve the deliberate destruction of life, should be rejected. Complicating the issue is the Buddhist belief that “life is a continuum with no discernible starting point”[x]. The Dalai Lama has said that abortion is “negative,” but there are exceptions. He said, “I think abortion should be approved or disapproved according to each circumstance.”[xi]
While traditional sources do not seem to be aware of the possibility of abortion as being relevant to the health of the mother, modern Buddhist teachers from many traditions – and abortion laws in many Buddhist countries – recognize a threat to the life or physical health of the mother as an acceptable justification for abortion as a practical matter, though it may still be seen as a deed with negative moral or karmic consequences.
Individual Hindus hold varying positions on abortion, although traditional Hindu texts and teachings condemn elective abortions. Classical Hindu texts are strongly opposed to abortion; in practice, however, abortion is practiced in Hindu and Sikh culture in India, because the religious ban on abortion is sometimes overruled by the cultural preference for sons, this leading to abortion to prevent the birth of girl babies (‘female foeticide’).”[xiv] The Sikh code of conduct does not deal directly with abortion, but because Sikhs believe that life begins at conception, this implies abortion is generally forbidden since it interferes in the creative work of God.
Hindus generally tend to support abortion in cases where the mother’s life is at risk or when the fetus has a life threatening developmental anomaly. Some Hindu theologians believe personhood begins at 3 months and develops through to 5 months of gestation, possibly implying abortion is permissible up to the third month, and that beyond the third month abortion is considered to be destruction of the soul’s current incarnate body[xv].
Summary of abortion practices that are common across the major religions
The common message from all the major religions is that of discouraging abortion; however, in almost all of them abortion is sanctioned where there is threat to the life (or in Budhism, physical health) of the mother, or where the fetus has a life threatening developmental anomaly (in Hinduism). The word ‘abortion’ does not feature anywhere in the Holy Bible (both Christian and Jewish), neither is abortion explicitly mentioned in the Holy Qur’an. Generally, the argument against abortion hinges upon the commandment against homicide, i.e. “Thou shalt not kill” (Exodus 20:13), but this is not specific to killing a fetus (in Judaism the fetus is not regarded as a full human being). The Qur’anic reference to the killing of children for fear of poverty (Surah, Al-An’ am, 6:151) has usually been interpreted to apply to the killing of children already born, and does not explicitly refer to abortion.
The principle of the lesser of two evils
Many of the day to day decisions we take in medical practice have for ages been guided by the principle of the ‘lesser of two evils’. For example, every now and then, a pregnancy has to be terminated prematurely because a woman’s life is in danger, for example, in women with very severe preeclampsia. This is done despite the fact that the baby may be so immature as not to survive after delivery. This action is justified by accepting that the fetus cannot live without the mother, and in the process we unwittingly assign value on life. In this regard we act as if the life of the fetus is somehow of less value compared with that of its mother, and so deny it the protection and rights that adults have. Another situation where we differentially attach value to lives is when we undertake prenatal diagnostic tests for suspected severe abnormalities in the baby in utero, for example Down’s syndrome; this may be followed by termination of the pregnancy if the test comes back positive. In doing this we are actually treating the life of the affected baby (in utero) differently from that of mentally and physically handicapped individuals in society whom we accord no less value on account of their disability.
The issue of value also arises at the other end of the continuum of life- for example, whether or not to devote limited resources to life-support services in the case of the terminally ill, or those in a permanent coma. It might be argued that these resources are better put to use providing health care services where there is chance of successful treatment and recovery. Further, it can also be said that maintaining such cases on long-term life-support is not only expensive, but also emotionally traumatising to the family. Another example of differentiating value of life is in stem cell research. In recent years, advances in assisted reproduction technology have made it possible to sustain ‘spare’ embryos in the laboratory (i.e. the excess embryos that are not transferred into the uterus following in-vitro fertilisation). These extra embryos can provide tailor-made human tissue that can be used in the treatment of several chronic debilitating illnesses. In this situation we consider the relative value of the embryo’s life versus that of the beneficiaries of the treatment
When does life of a person begin?
The most pertinent question arising from the above examples is not when life begins and ends, but when life begins to matter morally. Biology defines life at the cellular level, with the cell being the smallest unit of life. Every living thing is comprised of cells. An organism made up of only one cell, such as an amoeba, is alive as much as an organism made up of an estimated 10 trillion cells, such as a human being. The draft Proposed Kenyan Constitution Article 26(2) states that ‘The life of a person begins at conception’. However, although the moment of conception (fertilisation) is fundamental to the subsequent development of the baby, it nevertheless is a process which involves two already living human cells, the egg and the sperm. The woman’s egg and man’s sperm both have essentials of living things. By the time these cells meet and fuse they have undergone a series of complex developmental changes, which are crucial to their ability to fuse and develop into a baby. When they fuse at fertilisation a new individual living cell (zygote) is formed that can be said to have human life because it results from fusion of human gametes, and an adult human being can certainly be derived from it.
It is also important to appreciate that a number of things may happen at conception. Fertilisation can result not in a fetus but in a type of tumour known as hydatidiform mole, which every now and then, becomes a threat to the life of the mother. Does this tumour, a product of conception, have all the rights and protection that the fetus has? Even in ‘normal’ fertilisation the fertilised egg eventually divides into two major components, the embryoblast which becomes the fetus and trophoblast which forms the placenta, membranes and the umbilical cord. These derivatives of the trophoblast are alive, are human, and have the same genetic composition as the fetus, but they are ‘discarded’ at birth.
On the whole there is no consensus among scientists as to when human life begins[xvi]. All that can be safely said of the fertilised egg is that it is live human tissue. Both the egg and sperm have been alive from the moment they differentiated within the ovary and testis respectively, and before they met at fertilisation. It is not strictly correct to say life begins at conception. Life is a continuum and the emergence of the individual person occurs gradually.
When does life begin to matter morally?
The Constitution guarantees the right to life to a ‘person’; a ‘person’ is made a bearer of rights; and a ‘person’ ought to be respected. The question is: when does the fertilised egg or “progenitor” human cell become a person?
The definition of ‘person’ has been a subject of concern for philosophers since the time of John Locke (1632 – 1704) who proposed that what distinguishes a person from other creatures was a combination of rationality and self-consciousness. This view is also taken by Singer[xvii] (1984) and Harris[xviii] (1985) who see personhood as consisting in the natural capacity of a human individual to express itself through various functions and activities, especially self-conscious rational and free acts. On the other hand, there is no question that newborn babies are human persons, even though they have not yet developed to the stage of having acquired the ability to exercise self-conscious rational acts. It is understood that the infant has an inherent natural active capacity to develop to the stage of being able to exercise self-conscious and rational acts expected of human individual. We recognise that we are the same being today that was born many years ago.
Warnock[xix] (1983) finds it practically impossible to decide what is to count as a person in general, on the criteria of rationality and self-value. On the issue of whether a foetus values itself or its life, and whether embryos morally matter, Warnock concludes this is a question that must be answered by judgement and decision, according to a particular moral standpoint. How much human life should be respected in its very early stages and whether human embryos have rights, are not a question of fact but a question of value.
Two other views are based on the stage of embryological development reached by the fetus. The first is that by Ford[xx] (1988) who argues that the appearance of the primitive streak is the critical embryological stage when the embryo depicts a definite human body plan, therefore attaining person-hood. This occurs about 14 days after fertilization and following the completion of implantation of the embryo in the mother’s womb. This is the time when the human body is first formed with a definite body plan and definitive axis of symmetry. He argues that prior to the primitive streak stage it would seem to be quite unreal to speak of the presence of a distinct human individual. The second is by Lockwood (1985)[xxi] according to which the development of the nervous system is quintessential to development of rational self-conscious behaviour, and a human being cannot begin before the appropriate brain structures are developed that are capable of sustaining awareness. He says “just as I shall live only as long as the relevant part of my brain remains essentially intact, so I came into existence only when the appropriate part or parts of my brain came into existence…… When I came into existence is a matter of how far back the relevant neuro-physiological continuity can be traced. Presumably then, my life began somewhere between conception and birth”.
According to Ozolins[xxii] (2003) human personhood can be regarded as a cluster concept, which involves not only criteria such as consciousness, bodiliness, rational soul or mental faculties, but also relational and social criteria. He argues that because it is evident that the human embryo is a stage in the continuum that constitutes the human person – beginning with the zygote and ending in old age, the human embryo is a person from the moment it comes into existence. From the biblical point of view “God created man in his own image” (Genesis 1:27). Thus, being made in the image of God connotes that human beings have intrinsic moral value based on whom they are instead of extrinsic moral value based on certain functions and capabilities they possess (Powell, 2010)[xxiii]. The above two arguments are in support of the so-called ‘potentiality argument’ which says that even if life does not begin at conception, and if it cannot be said that a new individual human being begins there, at least the potential for a new human being is then present, complete with its full genetic make-up, and with all its uniqueness and individuality. Hence, since the fertilised egg is potentially a human being we must endow it with all the same rights and protections that are possessed by actual human beings. The counter argument states that the bare fact that something will become X is not a good reason for treating it now as if it were in fact X. Also, as argued above, the fertilised egg does not always develop into the adult human being.
In summary, there is lack of consensus not only on when life of a person begins, but also when the embryo attains the status of personhood. Most laws confer status of personhood on children at birth- i.e. once humans are born, personhood is considered automatic.
Kenya is at the crossroads; the decisions taken today can propell us to a healthy and prosperous nation. Specifically, the way we handle the emotive abortion question today can have far reaching impacts on the health (and lives) of women and children of this country. Unsafe abortion is a major contributor to the unacceptably high levels of maternal morbidity and mortality prevailing in Kenya, and it is a key challenge to the achievement of Millennium Development Goal 5 of improving maternal health by 2015, as well as attaining the health targets set out in Vision 2030. In addressing the issue of unsafe abortion particular focus should be on ensuring equity in access to health care, especially for the poor and marginalised communities. To quote Dr Njoroge Waithaka, the Chairman of the Kenya Obstetrical and Gynaecological Society: “… rich women have many options for terminating a pregnancy. In Kenya today, women leaders who want to terminate pregnancies have it easy. They just drive to leading private hospitals, consult a gynaecologist, undergo counselling and the abortion is done in no time, although at a high cost. On the other hand, poor women depend on quacks in backstreet clinics, risking their lives”[xxiv].
In Kenya, despite the absence of supportive statistics, it is highly possible that considerably more induced abortions occur among the wealthier and more mature women than among the poor young single women, that are often reported from public institutions. It is the latter that sustain Kenya’s high maternal mortality rates, and who will make it impossible to attain national and international goals, if they are left ‘out of the loop’. We may take heed of the following observation by a leading proponent of reproductive health, the renowned Professor Mahmoud Fathalla of Egypt who, referring to maternal deaths, (many of them due to unsafe abortion), concluded: “…women do not die from conditions we cannot manage; they die because society has yet to determine that their lives are worth saving”.
Finally, the following four comments and observations summarise some bitter truths which we may keep in mind as the debate on abortion continues:
1) Criminalisation of abortion in Kenya, perpetuated from the colonial laws, (even though abortion was decriminalised in Britain way back in 1967), has not minimised the magnitude of the problem of induced abortion. I do not believe any woman goes for termination of pregnancy because she likes it. The reality is that she is forced into it! And the desire to get over with it is sometimes so intense that she will avail herself of this last resort irrespective of risks to her own life.
2) Enactment of strict laws against abortion is not one and the same with reduction of induced abortion; in fact, what such laws do is to change the patterns of morbidity and mortality associated with abortion, towards increased morbidity and mortality. The only sure way of effectively minimizing unsafe abortion is to ensure women (including adolescents and youths) have easy access to contraceptive information and services, backed up by positive legislation that decriminalizes abortion.
3) Like many other opportunities, decriminalisation of abortion can be abused, when abortion is used as a primary method of birth control. This happened in the former Soviet Union, however, with increased access to contraception since its collapse, there has been a marked reduction in numbers of abortions in Russia. Here in Kenya, for many marginalised women (including adolescents and youths), abortion may still be the only birth control option available to them, since they lack easy access to contraception.
4) The existing law as well as the provisions in the Proposed Constitution will only permit legal abortion where the life of the mother is in danger. In fact, the life of any woman carrying an unwanted pregnancy can be shown to be in danger: all such women suffer from stress, often suffer depression, and may even develop suicidal tendencies. However, the process that such women have to undergo in order to meet the requirement of the law is demeaning; often, it gives them a label of psychiatric illness, not to mention that it is expensive, time consuming, and in many respects unnecessary. Do these women enjoy the provision in Article 28 in the Proposed Constitution, which states: Every person has inherent dignity and the right to have that dignity respected and protected?
John Riddle Contraception and Abortion from the Ancient World to the Renaissance, 1992 www.flipkart.com/contraception…/0674168763-o3w3f9wmrc – India
[ii] Elliot Frankin Traditional Medicine and Concepts of Healing Among Samburu Pastoralists of Kenya Journal of Ethnobiology 16(1):63-97 Summer 1996
[iii] Dorothy C. Ramathal ;Olipa D. Ngassapa, Medicinal Plants Used by Rwandese Traditional Healers in Refugee Camps in Tanzania, Pharmaceutical Biology, Volume 39 (2) February 2001 , pages 132 – 137, DOI: 10.1076/phbi.220.127.116.1151
[iv] Mary L. Plummer, Joyce Wamoyi, Kija Nyalali, et al., Aborting and Suspending Pregnancy in Rural Tanzania: An Ethnography of Young People’s Beliefs and Practices, Studies in family Planning Volume 39 Issue 4 , p 281-292 Published Online: Nov 24 2008 1:39PM DOI: 10.1111/j.1728-4465.2008.00175.x
For rabbinic sources, see Feldman 254f. notes 17-19
[vii] A booklet published in the Arab Republic of Egypt entitled “Islam’s Attitude Towards Family Planning”, www.sacredchoices.org/islam_contraception_abortion_in_SacredChoices.htm
Harvey, Peter. Introduction to Buddhist Ethics (2000). Cambridge University Press. pg. 328-29
Barnhart, Michael G. (1995). Buddhism and the Morality of Abortion. Journal of Buddhist Ethics, 5. Retrieved August 10, 2006.
[xv] Hinduism Today “Hindus In America Speak out on Abortion Issues” www.hinduismtoday.com/modules/smartsection/item.php?
[xvi] Scott F. Gilbert (2007) When ‘personhood’ begins in the embryo: Avoiding a Syllabus of Errors. http://www3.interscience.wiley.com/journal/119818460/abstract?
[xvii] Peter Singer The Reproductive Revolution: New ways of Making Babies, Oxford, OUP, 1984
[xviii] John Harris The Value of Life, Routedge & Kegan Paul, London, Boston, Melbourne, Henley, 1985
[xix] Baroness Warnock In-Vitro Fertilisation: The Ethical Issues II, The Philosophical Quarterly 33:239, 1983
[xx]Norman Ford When did I begin? Cambridge, Cambridge University Press, 1988
[xxi] Michael Lockwood Moral Dilemmas in Modern Medicine, Oxford, Oxford University Press, 1985
[xxiii] Christina M.H. Powell (2010) How Bioethics Addresses Personhood
[xxiv] Source: K. Kiberenge and J. Kiarie, The standard, 12 February 2010