A MAJOR WIN FROM THE HIGH COURT

On 12th June 2019, the high court ruled on Petition no 266 of 2015 commonly referred to as The JMM Case that “safe abortion is permissible under some circumstances such as in the opinion of a trained medical professional,  the health of the mother is in danger, or if permitted by any other written law or circumstances such as rape or incest” In regards to the health of the mother, Health as defined by the World Health Organization (WHO)’’ Is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity’’a trained medical professional is anyone who has undergone medical training and often involves; a midwife, clinical officer, nurse or any other trained medical worker.

JMM was born in 2000 in Kisii County. She went to school in the same county and proceeded to Form 1 in January 2014 at a day school in Keumbu Ward in Nyaribari Chache where she stayed with her elder married sister. JMM was forced into sexual intercourse and she realized she was pregnant when she missed her menstrual cycle for two months. On 8th December 2014 an older girl with whom JMM shared a bedroom took her to a person who they termed as ‘’doctor’’ who terminated the pregnancy at a fee of Ksh 1,500 and he injected her on the thigh advising her to go lie down and the pregnancy will be expelled the next day. When this did not happen, she went back and he inserted a metal-like cold object in her vagina telling her that the foetus will be expelled the next day. She then started vomiting and experiencing severe stomach pains accompanied by heavy bleeding. Her mother was then called and she was rushed to a nearby dispensary where she disclosed that she had procured an abortion as narrated by her mother, PKM the 2nd petitioner.

JMM was then rushed to Kisii level 5 Hospital where the foetus was removed after the medical staff confirmed that she had procured an abortion and her mother PKM was advised to transfer her to a health care facility that offers dialysis services as her kidneys were failing due to the heavy bleeding. JMM was then transferred to Tenwek hospital and was admitted into the intensive care unit and remained there for 7 days and was referred to Kenyatta National Hospital to receive treatment for septic abortion and hemorrhagic shock and had developed chronic kidney disease and was referred for follow-up in the renal unit of Kenyatta National Hospital. JMM later died in June 2018.

The key findings of a national study on the magnitude of unsafe abortions titled ‘’ Incidence and Complications of Unsafe Abortions in Kenya’’ published by the MOH in 2013, estimated that 464,690 induced abortions occurred in Kenya in 2012, corresponding to an induced abortion rate of 48 abortions per 1000 women. They also affirmed that an estimated 119,912 women received care for complications from unsafe abortion such as organ or systems failure, shock and in some other instances, these complications lead to death. Further, the study also found that women aged less than 25years represented 48% of those presenting for post abortion care, likely after unsafe abortion; whereas 17% were women aged 10-19years old.

The perceived incomplete illegality of abortion has been used to bar women from accessing reproductive health services even when they qualify under the law. The judges were clear that women who are survivors of sexual violence can access safe abortion services through the diagnosis of a trained medical practitioner.

The court’s ruling is a move towards a more humane, compassionate and rights based approach to the reproductive health of women and adolescent girls. This will enable women and girls have who have qualified for access to safe abortion services to undergo the process in the hands of trained medical personnel and therefore saving their lives.