| dc.description.abstract | Abortion is recognised as an emotive, sensitive and even divisive issue. Following the decision
in the US case of Roe v Wade, abortion has persistently remained a controversial issue in today‘s
society. In Kenya, for instance, the prolife and prochoice are often fighting for what each side
believes to be the correct position with regard to the abortion question. While the prochoice
argue in favour of the pregnant woman‘s autonomy based in law, the pro-life work to disproof
that fact in order to advocate for the protection of the unborn child as well as the long term
psychological welfare of the woman. This controversy is exacerbated by the inconsistency that
exists in Kenya‘s legal framework on abortion. For instance, Article 26 (4) of the Constitution
prohibits abortion but provides for exceptions, such as ―emergency treatment,‖ ―if the life or
health of the mother is in danger,‖ and ―if permitted by any other written law.‖ Section 240 of
the Penal code only provides the ―health or life‖ exception but introduces an important threshold
to check the opinion of the doctor contemplated under Article 26 (4) of the Constitution: ―good
faith‖ and ―with reasonable care.‖ However, insofar as sections 158-160 of the Penal Code
remain prohibitive, the enforcement of the constitutional exceptions is rhetoric. In addition,
sections 211 and 240 of the Penal Code have not been harmonized to reflect the spirit of Article
26 (2) of the Constitution on when life begins. The inconsistency arising from these provisions
imply that the unborn child is not adequately protected under the Kenya‘s law. Best practices
from UK draw the argument that having severe penalties to contain clandestine abortions in
Kenya cannot be the only solution; there is need for more thresholds, such as the provision of the
opinion of two other registered medical practitioners and more importantly seeking alternative
options such as adoption as is increasingly occurring in the USA. | en_US |
