By Esther Pius Ekong I Sunday, June 14, 2026
LAGOS, Nigeria – Nigeria is among the countries with the highest maternal and perinatal mortality rates. Although inadequate advance medical technology and facilities contribute to these deaths, the refusal to give timely consent for a caesarean section also significantly contributes to maternal and perinatal mortality.
Life is so sacrosanct that a pregnant woman sentenced to death is allowed to deliver her baby before the execution of the death penalty. If the life of the child of a criminally liable woman is recognised and protected, why then should a woman who is not criminally liable be allowed to die because of a signature?
The requirement of a third party, usually the spouse, to consent to obstetric emergencies contributes to preventable deaths and equally undermines the fundamental right to life.
Section 33 (1) of the 1999 Constitution of the Federal Republic of Nigeria (As Amended 2023) provides thus: “Every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria”.
The Supreme law of the land guarantees this personal right to life and states circumstances under which such a right may be deprived. Withholding consent may constitute a breach of this right and could amount to negligence because of a breach of duty of care. In such circumstances, who has the locus standi to institute an action for damages? Is it the grieving husband, the parents of the woman or the infant who has been denied maternal care, love and attention?
Life is so sacrosanct that a pregnant woman sentenced to death is allowed to deliver her baby before the execution of the death penalty. If the life of the child of a criminally liable woman is recognised and protected, why then should a woman who is not criminally liable be allowed to die because of a signature?
Consent in its simplest form, means to be of one mind, to agree or freely permit something. Stricto sensu, consent should be the sole right of the patient. This further buttress the principle of “Volenti non fit injuria” meaning that a person who freely and knowingly consent to a risk, cannot complain of injury.
The Apex court in the case of OKEKEARU VS. TANKO (2002) LPELR-2437 (SC), define consent thusly: “Consent, which is the act of giving approval or acceptance of something done or propose to be done, is an exact conduct flowing from the person giving the consent.
While consent could be implied in certain situations, it is my view that consent to amputate a part of the body should be exact and unequivocal. There should be no doubt that Tanko Danjuma, the amputee, gave his consent that his finger be amputated.”
In Nigeria, the exercise of the right to consent often conflicts with culture and religion. Indeed, both play major roles in the application and enforcement of the law. In some states, consent solely belongs to the husband, such that even if the woman is presented with the consent form, she may not dare to sign it. There is therefore an interplay between the right to consent and fulfilment of marital obligations under cultural and religious norms.
During wedding ceremonies, whether cultural or religious, at the pronouncement of “husband and wife”, it is often presumed that the decision-making capacity of the woman has been surrendered by her or parents to her spouse, who is believed to be more capable. This is because religious leaders and custodians of culture emphasise the duties and obligations that couples owe each other and advise against third party interference in marital affairs.
Is marriage another uncodified exception to the right to life? In obedience to the admonition against third-party interference, many women rely entirely on their husbands to make decisions on their behalf, while their families are often reluctant to consent to caesarean sections for fear of liability.
In Nigeria, one of the common prayers for pregnant women is, “Delivery like the Hebrew women”. Without a proper understanding of its context, this expression has been adopted by persons in authority and by uninformed pregnant women to reject caesarean sections, which in some cases results in the death of the mother, the child or both.
The origin of the expression is found in Exodus 1: 15:21 of the Goodnews Bible Version reads: “Then the king of Egypt spoke to Shiphrah and Puah, the two midwives who helped the Hebrew women. “When you help the Hebrew women give birth,” he said to them, “kill the baby if it is a boy; but if it is a girl, let it live”. But the midwives feared God and so did not obey the king; instead, they let the boys live. So, the king sent for the mid-wives and asked them,
“Why are you doing this? Why are you letting the boys live? They answered, “The Hebrew women are not like Egyptian women; they give birth easily, and their babies are born before either of us gets there.” Because the midwives feared God, He was good to them and gave them families of their own. And the Israelites continued to increase and become strong. Finally, the king issued a command to all his people. “Take every newborn Hebrew boy and throw him into the Nile, but let all the girls live”. This account has unfortunately been interpreted by some people as a divine prohibition against medical intervention during childbirth.
Videos have circulated on the internet showing husbands refusing to sign consent forms for caesarean sections. I personally witnessed such an incident while I was a patient in a labour ward awaiting induction. One woman was carrying a baby weighing 4.2kg and was informed that she would not be able to deliver vaginally. When her husband who worked in Port Harcourt, Rivers State was contacted and informed of her condition, and the need for a caesarean section, he declined and insisted that his wife would deliver naturally. About an hour later, he was informed that the baby was in distress and quickly instructed his sister in-law to sign the consent form. The woman was rushed into the theatre, after which the nurses ran out with the baby and headed straight to the Intensive Care Unit because of severe asphyxia. Fortunately, both mother and child survived.
Another woman was brought in at about 12:30 a.m. from another hospital because she had been assured that she would deliver normally. Unfortunately, after prolonged labour, her baby did not survive. If the Constitution guarantees the right to life, do culture and religion supersedes such a right?
The first case may be linked to religious belief that wives should submit to their husbands, who are equally commanded to love their wives as Christ loved the Church. The second woman’s case may be attributed to cultural beliefs.
Apart from culture and religion, other reasons for withholding consent for emergency caesarean sections include misconception that hospitals seek financial gain, fear of scars, concerns that caesarean delivery may reduce the number of children a couple intends to have because there is a limit to the number of caesarean sections a woman’s body can safely accommodate etc. Women who are subjected to forced vaginal delivery against medical advice may die, become temporarily or permanently disabled, suffer psychological trauma, develop ruptured uterus or experienced other severe complications.
What then is the role of medical practitioners in such situations, considering the legal maxim, “Necessitas inducit privilegium quoad jura private”, meaning, “Necessity gives a privilege with respect to private rights”? Does the Hippocratic Oath conflict with culture and religion regarding consent?
A doctor once narrated how a woman was brought to the hospital with a dead leg that had already begun to decay. He assessed the situation and explained the need for amputation. When the husband was informed, he stormed the hospital with his brothers, demanding to see the doctor who recommended the procedure. When they arrived at the doctors’ quarters, the doctor was advised not to come out. Other doctors and security personnel managed the situation.
The woman was eventually discharged and the family left the hospital. Days later, the husband returned, apologised for their conduct and requested that the procedure be carried out, which was eventually done. If the doctor had proceeded with the amputation out of necessity or in compliance with Hippocratic Oath, would his life have been saved from the wrath of the husband and his brothers? This scenario represents one of the many risks confronting medical practitioners in the discharge of their professional duties.
There are countries where only the woman has the sole right to consent and patient autonomy has been enacted into law. However, there are also arguments concerning the capacity of women in severe pain or psychological distress to give informed consent. Medical personnel generally assess a patient’s capacity based on the following factors: Understanding the medical procedure explained; retaining the information; evaluating the information and consequences and communicating an informed decision.
The concept of Lasting Power of Attorney (LPA) also applies. It allows the donor to appoint a donee to make decisions on his behalf when he loses the mental capacity. The donor of such authority must possess the capacity to grant it, in line with the legal maxim, “Nemo dat quod non habet”, which means, “You cannot give what you do not have”.
As a means of protecting medical personnel, Scotland provides an interesting example. Where a patient refuses treatment after being informed and subsequently becomes aggressive, medical personnel who consider the patient a danger to himself or society may sign an Emergency Detention Certificate (EDC) and commence treatment. Within twenty-four to fourty-eight hours, the doctor must alert the psychiatric unit for an evaluation to determine the patient’s capacity. If the patient lacks capacity, the Emergency Detention Certificate may be converted into Short-Term Detention Certificate (STDC) valid for twenty-eight days, subject to renewal.
Where a patient lacks the capacity to consent, the doctor’s decision overrides that of the patient because it is in the patient’s best interest. Conversely, where a patient possesses full capacity to consent and refuses treatment without any impediment, such a patient may be discharged against medical advice (DAMA).
This was the reasoning in the case of M.D.P.D.T VS. OKONKWO (2001) LPELR-1856 (SC), thus: “I am completely satisfied that under normal circumstances no medical doctor can forcibly proceed to apply treatment to a patient of full and sane faculty without the patient’s consent, particularly if that treatment is of a radical nature such as surgery or blood transfusion. So, the doctor must ensure that there is a valid consent and that he does nothing that will amount to a trespass to the patient. Secondly, he must exercise a duty of care to advise and inform the patient of the risks involved in the contemplated treatment and the consequences of his refusal to give consent”.
To combat maternal and perinatal mortality rates, the following remedial measures should be adopted: i) Medical personnel should play active roles in premarital counselling sessions to educate intending couples on the anatomy of women and child birth. ii) Awareness and orientation should be created among custodians of culture and religious leaders concerning patient’s right to consent during medical emergencies. iii) There should be an aggressive public sensitisation on patient’s right to consent. iv) Patient autonomy should be enacted into law and effectively enforced. v) Laws should be enacted to protect medical personnel who commenced treatment without consent during genuine emergencies. vi) There is a need for specialised medical courts to entertain medical negligence and other related issues. vii) Family members of patients should retain a reversionary right to consent in emergencies. viii) Women should keep records of the daily activities of the foetus, especially during the last trimester.
Notwithstanding that there are women who elect to undergo caesarean sections for certain reasons, the right to life is sacrosanct and should not be sacrificed on the altar of cultural misconceptions, religious misinterpretations or the dominance of third parties over the autonomy of patients. Timely medical intervention during childbirth emergencies should be encouraged and protected by law in order to reduce preventable maternal and perinatal mortality in Nigeria.
Above all, “Memento vivere” means “Remember to live”. No woman should lose her life or her child because someone else delayed a signature needed to save her.
NB: Esther Pius Ekong, legal practitioner, can be reached via, [email protected]
