Is abortion legal in the Democratic Republic Of Congo?
Under the Congolese Penal Code (Book II, Articles 165 and 166), abortion is generally prohibited in the DRC.
- Article 165: ‘Whoever, by food, drink, medicine, violence or any other means aborts a woman, will be punished by a penal servitude from five to fifteen years.
- Article 166: ”A woman who voluntarily has an abortion, will be punished by a penal servitude of five to ten years.’
The Child Protection Act of 10 January 2009 also punishes abortion under Article 145.
- Article 145: ‘Any pregnant woman who has caused an abortion will be punished by a penalty of two to five years.’
Although the penal code expressly prohibits the provision of abortion, there remains an exception introduced by Article 32 of the 1970 Ordinance Law, which states that abortion is allowed when the pregnancy puts the health of the mother in danger. However, this exception is rarely complied with by medical practitioners and oftentimes women resort to clandestine and unsafe means to procure an abortion.
The DRC has ratified, without reservation, the Maputo Protocol , which allows for abortion in cases of rape, incest, and maternal mental health problems. The DRC is a pure monist state, meaning that international laws and treaties are immediately incorporated into national law and dictates that any national law (Penal Code) that contradicts international law or treaties (Maputo Protocol) is null and void. Therefore, in principle, the Maputo protocol should invalidate the national penal code. However, this has not been the case.
The ratification of the Maputo Protocol and the principle of monism has been the basis of advocacy by the DRC women’s movement, which calls for the legalization of abortion and/or the extension of therapeutic abortion to the cases provided for in the Maputo protocol.
In 2015, a group of women’s organizations under the umbrella organization CAFCO drafted a law on reproductive health that transformed into law all initiatives and efforts to meet the reproductive needs of the Congolese population, including abortion and family planning. This bill repeats the terms of the Maputo Protocol and intends to extend therapeutic abortion to cases of sexual assault, rape, incest and when the pregnancy endangers the mother’s mental and physical health or the life of her mother or the fetus.
