In the Democratic Republic of the Congo (DRC), abortion is legal in cases of risk to life or fetal defects, as established by legislation, with additional grounds established by the Maputo Protocol, though abortion is completely criminalized by the country's penal code. As an international treaty incorporated as law, the Maputo Protocol takes precedence over domestic law, and the country's abortion guidelines reflect its legal grounds of rape, incest, and risk to physical or mental health (up to fetal viability). However, the medical code of ethics includes only the grounds established by legislation. Illegal providers continue to exist, and unsafe abortion is common.
As a Belgian colony, the DRC inherited Belgium's abortion ban, which was kept after independence. A 1970 presidential act of Mobutu Sese Seko permitted abortions in cases that risked death or fetal defects, with physician approval, though this did not overturn the legislation. The abortion debate became a prominent subject in the country around 2006, amid reports of unsafe abortion and of violence against women during the country's civil wars. The country ratified the Maputo Protocol by 2009. Supported by the Ministry of Gender, activists called for the treaty to be published within the country's government gazette to become law. This occurred in March 2018, followed by a government circular by the Superior Council of the Judiciary saying that the treaty should be enforced. The same year, a public health law legalized abortion on the grounds of risk to life and fetal defects, narrower than the Maputo Protocol. The Ministry of Public Health established abortion guidelines in 2020, following the Maputo Protocol.
The DRC, especially Kinshasa, has had a high abortion rate since before the procedure was legal. Factors include a high rate of unintended pregnancy—sometimes caused by sexual violence—and a stigma surrounding premarital pregnancy. Most surgical abortions at public facilities use the non-recommended dilation and curettage method, while medical abortions are allowed to be performed at home with pills available at pharmacies. Legal abortion access is limited and geographically unequal. Illegal abortions are performed using traditional methods, mostly in urban clinics. Post-abortion care is required to be available at public facilities, and a 2017 initiative led to its availability from midwives. Abortion is opposed by many Christians in the country, and several of the country's cultures view it as taboo.
Legislation The DRC has three conflicting abortion laws: the country's penal code completely criminalizes abortion, a public health law permits abortion only if the pregnancy threatens the life of the mother or risks birth defects, and the Maputo Protocol—a treaty incorporated as law in the DRC—permits abortion on additional grounds. As the Constitution of the Democratic Republic of the Congo declares the primacy of international law, the Maputo Protocol takes precedence. Contradictions between the public health law and the Maputo Protocol lead to confusion about the legal status of abortion. , the dominant legal interpretation remains that abortion is illegal. Article 32 of the country's medical code of ethics includes the same grounds as the public health law; this is followed by most medical providers, .
The Maputo Protocol and the Comprehensive Abortion Care Standards and Guidelines permit abortion in cases of a pregnancy from incest or rape or if there is a risk to health. The guidelines use the World Health Organization's definition of "a state of complete physical, mental and social well-being and not merely absence of disease or infirmity", thus allowing abortions on mental health or socioeconomic grounds. It also allows abortions for women with conditions that may threaten the fetus or may be intensified by pregnancy. No legal proof is required in the case of rape or incest.
Legal abortions must be approved by three physicians. Minors who receive abortions require approval from a parent or other representative, though the medical code of ethics authorizes physicians to treat minors without approval if necessary. The country recommends, but does not require, spousal consent. Conscientious objection to abortion and to other medical procedures is allowed. The abortion guidelines establish that abortions may be performed up to fetal viability, defined as a gestational age of 28 weeks. Medical abortions using misoprostol (alone or in combination with mifepristone) are approved up to this limit; such drugs must be prescribed and provided by healthcare facilities. Surgical abortions using dilation and evacuation are approved up to 13 to 16 weeks, while vacuum aspiration and dilation and curettage are approved up to 13 weeks, though the latter is discouraged.
Articles 165 and 166 of the penal code respectively set prison sentences of five to fifteen years for the provider and five to ten years for the recipient. Article 178 prohibits promotion or advertising of abortion, punishable by eight days to one year in prison and a fine of 25 to 1,000 zaires. Before abortion was decriminalized through the Maputo Protocol, criminal penalties applied to abortion in all cases, with a legal principle generally permitting life-saving abortions. The African Union noted in 2023 that, as these articles remain in the penal code, the country has not taken legislative action toward the Maputo Protocol's right to abortion.
History Abortion ban Belgian Congo initially inherited Belgium's abortion law, with a total ban on birth control and non-life-saving abortion in the territory's 1940 penal code. The territory's law was based on the Belgian Penal Code of 1867—in turn based on the Napoleonic Code of 1810—which included an abortion ban, generally interpreted to permit only life-saving abortions. After the DRC's independence, its penal code kept the abortion law of the Napoleonic Code.
By a 1970 presidential decree of Mobutu Sese Seko, the country's code of medical ethics added exceptions for abortions in "exceptional cases" that risked maternal death or fetal defects. This allowed conscientious objection and required that abortions be approved by three physicians. These restrictions and the dearth of medical providers in the country hindered access to abortion. A legal ambiguity also existed as the penal code's abortion ban remained; as the penal code was issued by the legislative branch, it could not be overturned by the executive branch. Birth control was partly legalized, but only for birth spacing, by a parliamentary decree signed by Mobutu in 1973. By 1990, a legal principle permitted abortions if a family's socioeconomic status prevented it from having another baby.
Abortion was widespread in the 1990s and 2000s, when 15% of women who had ever been pregnant had had abortions. After the failure of a family planning program launched in the 1980s, the government again began to prioritize family planning around 2006. In the aftermath of a series of civil wars, rebuilding healthcare and social services was a key point in that year's election. Reports of violence against women during the wars sparked activism for the rights of the victims. This brought the abortion debate into mainstream political discourse, fueled by widespread reports of unsafe abortion. At the time, the law did not specify legal grounds for abortion, but life-saving abortions were excused under the defense of necessity.
Maputo Protocol Amid a post-war commitment to human rights in the country, the DRC signed the African Union's Maputo Protocol—the first international treaty to include a right to abortion—on 5 December 2003 and ratified it on 9 June 2008, which was finalized on 9 February 2009. The Ministry of Gender sought to have it codified in the (the country's government gazette), which would allow it to become law. The ratification of Article 14, which required government support for abortions on health grounds, was opposed by some groups. The Catholic Church, supporting the right to life, led a movement against the treaty's codification, which was influential on public opinion. Religious opposition and stigmatization surrounding abortion contributed to a lack of political incentive to bring the country's law in line with the treaty.
As the DRC adhered to the legal approach of monism, it was bound to international treaties, so activists held the legal argument that the implementation of Article 14 could overturn the national abortion ban. Opponents of this argument argued that the treaty contradicted national law and societal and legal practices. The monist argument was supported by the Manual for Judges by Charles Ngwena, a work of comparative law that said courts have a duty to protect women's rights, and by a general comment by the African Commission on Human and People's Rights, which established medical practices to protect bodily autonomy. Alongside legal studies by Ipas and Pathfinder International, constitutional scholars supported the application of Article 14 as the easiest way to implement abortion reform.
A coalition of civil society groups, (CNGD), was founded in 2016, connecting international organizations and other groups interested in abortion reform. It backed the Ministry of Gender in its goal of codification and highlighted the country's commitment to the law of the AU. Coalition Article 14 was also formed with this goal. Another advocacy group, formed in 2012, instead aimed to decriminalize abortion through a reproductive health law. As the group felt it would be difficult to pass such a law on its own, its proposal was incorporated into the 2018 public health law. The Vice Prime Minister also proposed legalizing abortion as a measure against child abandonment. Anti-abortion movements said that the practice violated the country's social mores.
Groups supporting the legalization of abortion focused on the lack of data on unsafe abortion in the country. A 2016 study by the Guttmacher Institute and the University of Kinshasa's School of Public Health and a 2017 study by Ipas and the Ministry of Public Health were the first to quantify unsafe abortion in the country and its correlation with maternal mortality. Several public events presented this research, alongside firsthand reports of unsafe abortion, to stakeholders unfamiliar with the Maputo Protocol. Discussions led by the Ministry of Public Health and CNGD argued that abortion was a right as well as a public health issue, while discussions by scholars of African legal history and feminist history contributed to arguments of bodily autonomy. With stakeholders being educated about the history of the abortion law and the contemporary state of abortion, the subject entered discourse beyond that of rights activists. Meanwhile, the public associated unsafe abortion with sexual violence in conflicts in the eastern region.
The Cabinet published the Maputo Protocol in the Official Journal on 24 March 2018. A government circular was issued on 6 April by the presidents of the Constitutional Court and the Superior Council of the Judiciary, mandating that courts use the Maputo Protocol as law, thus decriminalizing abortion. These actions were the first in Francophone Africa to largely increase abortion access. In December 2018, titled Law or "Fixing Basic Principles Relating to the Organization of Public Health", legalized abortion in cases of risk to life or fetal defects, with an executive decree acknowledging the Maputo Protocol. It was not in line with the treaty, which included the grounds of rape, incest, or risk to health. By 2019, the Maputo Protocol was well known in major cities but not in rural areas, according to activist Anny Modi.