Illegal, Not Absent: Bodily Autonomy and the Human Cost of Criminalizing Abortion in Nigeria

Abstract

This article examines the constitutional and practical failures of abortion criminalisation in Nigeria. It argues that the current legal framework under sections 228 to 230 of the Criminal Code and sections 232 to 236 of the Penal Code is both inconsistent with constitutional values and ineffective as a public-health measure. On the constitutional plane, the article contends that although the 1999 Constitution does not expressly guarantee a right to abortion, sections 34 and 37 provide a basis for locating reproductive decision-making within dignity, privacy and bodily autonomy, especially when read alongside the Supreme Court’s reasoning in Medical and Dental Practitioners Disciplinary Tribunal v Okonkwo.

On the practical plane, the article shows that criminalisation has not prevented abortion in Nigeria, but has instead driven it underground, exposing women—particularly poorer, younger and rural women—to unsafe procedures, complications and death. It concludes by advocating the decriminalisation of consensual abortion and the adoption of a rights-based, health-centred framework that protects bodily autonomy while ensuring access to safe and confidential reproductive healthcare.

Keywords: Abortion; bodily autonomy; criminalisation; unsafe abortion; reproductive rights; maternal mortality; Nigeria

Introduction

In Nigeria, abortion is illegal in almost every circumstance, yet it remains very common. Sections 228-230 of the Criminal Code and Sections 232-236 of the Penal Code criminalise abortion,1 exposing women to prosecution instead of protection. But making abortion illegal has not made it disappear. It has only pushed it underground, where unsafe methods and untrained hands contribute to maternal morbidity and mortality in Nigeria.2 This article argues that Nigeria's abortion laws fail in two clear ways. First, although Sections 34 and 37 of the 1999 constitution do not expressly guarantee bodily autonomy,3 forcing a woman to carry an unwanted pregnancy to term violates her dignity and privacy under these provisions. Relying on the Supreme Court's "fullness of liberty" doctrine in Medical and Dental Practitioners Disciplinary Tribunal v Okonkwo,4 this article submits that a woman has the right to terminate a pregnancy once she freely consents to it. Secondly, criminalization does not even achieve its stated aim; instead of preventing abortion, it simply makes it deadlier. This article proceeds by examining the legal framework, before turning to autonomy and the empirical harm of unsafe abortion, and concluding with a proposed framework for reform.

The Legal Framework: Abortion Under the Criminal and Penal Codes

Nigeria's abortion law is principally governed by the Criminal Code in the Southern states and the Penal Code in the Northern states. Under the Criminal Code, sections 228-230 respectively criminalise procuring the miscarriage of a woman, attempting to procure one's own miscarriage, and knowingly supplying or procuring anything intended to unlawfully procure a miscarriage. The offences attract maximum terms of fourteen, seven and three years' imprisonment respectively.5

The principal exception is contained in section 297, which protects a person from criminal responsibility for a surgical operation performed in good faith and with reasonable care and skill where it is necessary for the preservation of the mother's life 6. In R v Edgal, the West African Court of Appeal considered the meaning of ‘unlawfully’ in section 230 and affirmed that the preservation of the mother's life constituted a lawful basis for termination.7

Under the Penal Code, sections 232-236 respectively address causing miscarriage, causing the death of a woman while intending to cause miscarriage, unintentionally causing miscarriage through force, preventing a child from being born alive or causing its death after birth, and causing the death of a quick unborn child in circumstances amounting to culpable homicide. Section 232 expressly recognise an exception where the act is done in good faith to save the mother's life.8

Taken together, these provisions establish a highly restrictive framework in which the preservation of the woman's life, rather than her autonomous choice, remains the principal recognised basis for lawful termination of pregnancy.

Bodily Autonomy: Sections 34, 37, and the Fullness of Liberty

Section 34(1) of the 1999 Constitution guarantees every individual the right to the dignity of the human person,9 while section 37 protects the privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications.10 Neither provision expressly mentions abortion or reproductive choice. Yet it is difficult to give these guarantees meaningful content without recognising that they extend to intimate decisions concerning a person's own body. A constitutional order that respects dignity cannot lightly permit the state to require a woman to sustain an unwanted pregnancy against her will. Beyond these express protections, the right to privacy should not be confined to correspondence and telephone calls; it should extend to intimate decisions concerning reproduction, medical care, and whether or not to continue a pregnancy.

This interpretation finds support in the Supreme Court's decision in Medical and Dental Practitioners Disciplinary Tribunal v Okonkwo.11 That case concerned a competent adult who, on religious grounds, refused a blood transfusion. In upholding the doctor's decision to respect the patient's wishes, the Court affirmed that the right to privacy protects the body from unauthorized invasion and that liberty includes the freedom of a competent adult to determine the course of her own life and medical treatment.12 Ayoola JSC emphasised that, save for a clear and compelling overriding state interest, the individual ought to be left alone to make such decisions and to enjoy the “fullness of liberty.”13

Although Okonkwo was not an abortion case, its reasoning is highly relevant by analogy. A decision whether to continue a pregnancy, like a decision whether to accept or refuse medical treatment, concerns bodily integrity, consent, and personal autonomy in one of their most intimate forms. If the Constitution protects a competent adult's authority to refuse life-saving treatment, it is at least arguable that it should also protect a competent woman's authority to decide whether to continue gestation within her own body. To be sure, the state may claim interests in fetal life, public morality, or the regulation of medical practice. But the existence of such interests does not automatically justify a blanket criminal prohibition. The constitutional question is whether those interests are sufficiently weighty to override the dignity, privacy, bodily integrity and decisional liberty of a competent adult woman acting with informed consent. In that light, sections 228 to 230 of the Criminal Code Act 2004 and sections 232 to 236 of the Penal Code (2004), insofar as they criminalise consensual abortion, sit uneasily with the constitutional values reflected in sections 34 and 37 and developed in Okonkwo.14

Criminalisation Without Prevention: The Reality of Unsafe Abortion

If bodily autonomy supplies the constitutional argument against Nigeria’s abortion laws, unsafe abortion supplies the practical one. Criminalisation does not eliminate abortion; it merely makes it more dangerous. This is not a new insight. Writing in 1997, Friday Okonofua observed that across sub-Saharan Africa, restrictive abortion laws, combined with limited access to safe reproductive health services, often drive women toward clandestine and unsafe methods of terminating unwanted pregnancies. In Nigeria, the consequences were already severe. The evidence reviewed by Okonofua indicated that abortion was a leading contributor to maternal mortality and was associated with serious complications such as secondary infertility, ectopic pregnancy, and other reproductive injuries.15

More than two decades later, newer evidence indicates that abortion remains common in Nigeria despite its restrictive legal framework. The Performance Monitoring and Accountability 2020 (PMA2020) abortion survey, published in 2020, estimated that in 2017 the annual incidence of abortion in Nigeria was 29.0 per 1,000 women aged 15–49, amounting to more than 1.2 million abortions; when confidante reports were incorporated, the estimate rose to nearly 2.0 million. More than six in ten abortions were classified as “most unsafe”, while 11% of women experienced complications for which they sought post-abortion care at a health facility.16

More recent research based on data collected in Lagos and Abuja in 2023 found that 44.7% of reported abortions were classified as most unsafe. The study also noted that applying the 2017 confidante-estimated incidence rate to the 2023 population of women of reproductive age would amount to approximately 2.4 million abortions annually, compared with an estimated 1.25 million in 2012, suggesting that abortion incidence may have increased over the past two decades.17

The comparison between the earlier and more recent evidence is instructive. Although the 2023 study recorded a lower proportion of most unsafe abortions than the 63.4% estimated in 2017, the authors caution that their sample was not nationally representative and may have been skewed towards women who had accessed relatively safer care.18 The continued prevalence of most unsafe abortions, together with the increasing estimated incidence of abortion, therefore indicates that criminalisation has not eliminated abortion or removed the risks associated with unsafe access. The burden also remains unequal: the 2023 study found that women living in rural areas and those experiencing poverty were significantly more likely to have experienced a most unsafe abortion.19

The findings of the Performance Monitoring and Accountability 2020 (PMA2020) abortion survey, published in 2020 likewise expose the weakness of the deterrence rationale behind Nigeria’s abortion laws. One respondent, a 23-year-old unmarried woman, remarked: “Nobody can stop anyone from having abortions... If I tell you that it has stopped in this community then I am telling a lie.”20 Her statement is anecdotal, but it captures the broader point reflected in the data: abortion has not disappeared under criminal prohibition. What prohibition has done is shape the circumstances in which abortion occurs—whether it is obtained safely through proper medical care or unsafely through secrecy, delay and dangerous methods.

This is the central failure of Nigeria’s current legal approach. Sections 228 to 230 of the Criminal Code Act 2004 and the corresponding provisions of the Penal Code 2004 rest on the assumption that criminal sanction protects women and deters abortion. However, the persistence of abortion despite criminal prohibition, the continued prevalence of most unsafe abortions, and the unequal burden of unsafe abortion among poorer and rural women indicate that criminalisation has not achieved its purported deterrent or protective purpose.21

In these circumstances, criminalisation appears less as a protective measure than as a legal regime that displaces abortion from the formal health system into the shadows, while leaving women to bear the human cost.

Recommendations

Nigeria should repeal the criminal provisions that prohibit consensual abortion, including Sections 228 to 230 of the Criminal Code and Sections 232 to 236 of the Penal Code, to the extent that they criminalise abortion performed with the free and informed consent of a competent pregnant woman. The law should also make clear that criminal sanctions apply only where abortion is procured without consent, through coercion, force, fraud, or abuse.

Nigeria should replace criminal prohibition with a health-based framework that guarantees access to safe, legal, confidential, and affordable abortion care within defined legal and clinical parameters. That framework should also ensure access to post-abortion care, contraception, sexuality education, and counselling so that women can prevent unintended pregnancy and receive timely care where pregnancy occurs. The state should further protect women from stigma and discrimination in healthcare settings by requiring confidentiality, informed consent, and respectful treatment in all reproductive health services. Legal reform must be matched by practical access to services, provider training, and public-health implementation.

Conclusion

Nigeria’s abortion regime has failed because it criminalises a practice it cannot eliminate while shifting the burden of unsafe abortion onto women, especially those who are poorer and more vulnerable. A rights-based approach that respects bodily autonomy, informed consent, and access to healthcare would better protect both women’s dignity and women’s lives. In Nigeria, abortion has not been absent; it has been illegal. The law should now reflect that reality.

REFERENCES

1 Criminal Code Act, Cap C38, Laws of the Federation of Nigeria 2004, ss 228–230; Penal Code (Northern States) Federal Provisions Act, Cap P3, Laws of the Federation of Nigeria 2004, ss 232–236.

2 Friday E Okonofua, ‘Preventing Unsafe Abortion in Nigeria’ (1997) 1(1) African Journal of Reproductive Health 25; Performance Monitoring and Accountability 2020 (PMA2020), ‘PMA2020 Abortion Survey Results: Nigeria’(Brief, March 2020)

3 Constitution of the Federal Republic of Nigeria 1999, ss 34, 37.

4 Medical and Dental Practitioners Disciplinary Tribunal v Okonkwo (2001) 7 NWLR (Pt 711) 206 (SC). 5 Criminal Code Act, Cap C38, Laws of the Federation of Nigeria 2004, ss 228–230.

6 ibid s 297. 

7 R v Edgal (1938) 4 WACA 133. 

8 Penal Code (Northern States) Federal Provisions Act, Cap P3, Laws of the Federation of Nigeria 2004, s 232. 

9 Constitution of the Federal Republic of Nigeria 1999, s 34(1).

10 ibid s 37. 

11 MDPDT v Okonkwo (n 4). 

12 ibid. 

13 ibid (Ayoola JSC). 

14 Constitution of the Federal Republic of Nigeria 1999, ss 34, 37; MDPDT v Okonkwo (n 4). 

15 Friday E Okonofua, ‘Preventing Unsafe Abortion in Nigeria’ (1997) 1(1) African Journal of Reproductive Health 25, 26.

16 Performance Monitoring and Accountability 2020 (PMA2020), ‘PMA2020 Abortion Survey Results: Nigeria’ (Brief, March 2020) 

17 Matthea Roemer, Boniface Ayanbekongshie Ushie, Akinsewa Akiode and others, ‘Inequities in safe abortion: women’s care trajectories in Abuja and Lagos, Nigeria’ (2025) 25 BMC Public Health 2869. 18 ibid. 

19 ibid.

20 Performance Monitoring and Accountability 2020 (PMA2020), ‘PMA2020 Abortion Survey Results: Nigeria’ (Brief, March 2020); Matthea Roemer, Boniface Ayanbekongshie Ushie, Akinsewa Akiode and others, ‘Inequities in safe abortion: women’s care trajectories in Abuja and Lagos, Nigeria’ (2025) 25 BMC Public Health 2869.