Reproductive health is defined by
WHO as the state of complete physical, mental and social well-being in all
matters relating to the reproductive system and to its functions and processes.
This is not merely the absence of diseases or infirmities but the ability have
a satisfying and safe sex life, the capability to reproduce and the freedom to
decide if, when and how often to do so.
In Kenya, reproductive health is
enshrined under Article 43 of the Constitution that provides that every person
has the right to the highest attainable standard of health which includes the
right to health care services including reproductive health care. There has
been no statute enacted that comprehensively covers issues of Reproductive Health
since the promulgation of the 2010 Constitution. It is not for lack of trying; there have been
two failed attempts at enacting the Reproductive Health Bill in 2014 and 2020.
The objective of the Reproductive
Health Bill 2019 (the Bill) was to provide for the right to reproductive health
care, to set the standard of reproductive health, provide for the right to make
decisions regarding reproductive health and for connected purposes. The Bill was
in my opinion, a progressive and relevant piece of legislation that
comprehensively covered issues pertaining to reproductive health such as access
to family planning, assisted reproduction including surrogacy and in vitro
fertilization, provision of adolescent friendly reproductive health services,
safe motherhood, termination of pregnancy and elaborates the roles of the
national and county governments in ensuring that the objects of the
Reproductive Health Bill are met.
If the Bill was so good, the question then is what are the reasons of its failed enactment? The Bill failed for various reasons including; lack of political goodwill, lack of public awareness, misinformation ans strong opposition from civil societies and religious groups that viewed the Bill as one that promoted moral decay by allowing abortions and promoting adolescent sex.
The Bill exemplified the
provisions of Article 26 of the constitution that allows abortion only if certain
pre-conditions are met; if in the opinion of a trained professional, there is
need for emergency treatment or when the life or health of the mother is
endangered. The Bill expanded the scope of allowed abortions by adding one other
pre-condition being; where if in the opinion of a trained professional, the
existence of substantial risk that the fetus would suffer a severe physical or
mental abnormality that is incompatible with life outside the womb.
The controversies that arise as a
result of the above provision of the constitution and Reproductive Health Bill are twofold. One being who does the law refer to when it speaks of a trained
professional, is it a doctor? A nurse? Or a clinical officer? The second issue
is what is meant by health of the mother; is it the physical health? The psychological/mental
health? Or the emotional health of the mother? The Reproductive Health Bill should be able to
answer these question and seal the overt loopholes of the constitution by narrowing
down the scope of legally allowable abortions and limiting the recommending
trained professional to licensed medical doctors.
Further, there was a belief that
the Bill promoted adolescent sex. This cannot be further from the truth. The Bill
echoed the National Adolescent and Reproductive Health Policy and appreciated
the times we live in by providing a structured and age-appropriate mechanism
within which adolescents can be educated on their reproductive health rights.
The Bill structured the adolescent friendly reproductive health services to
include mentorship programs, spiritual and moral guidance, training on
livelihood and life skills, vocational training and counselling on abstinence,
consequences of unsafe abortion, sexually transmitted infection and HIV &
AID, substance and drug abuse. The decision to include adolescent friendly
health services was informed by scientific research that had proven that
adolescent friendly reproductive health education resulted in a steep reduction
of numbers of teenage pregnancies and unsafe teenage abortions.
Another distinct feature of the Bill was the introduction of assisted reproduction through in vitro fertilization and surrogacy. This is a novel and critical area that was geared towards governing surrogacy agreements by providing the rights and responsibilities of parties to a surrogacy arrangement. Further, it regulated in vitro fertilization by providing for conditions and limitation for which it can be conducted. Additionally, the Bill emphasized on the right to confidentiality for individuals receiving assisted reproduction services.
It is apparent that women, young
adolescent girls and boys and couples experiencing difficulty in siring
children were the target beneficiary of the Bill. The benefits of the Bill to
the aforementioned groups outweigh the perceived disadvantages. It is therefore
imperative that all the stakeholders find a middle ground, engage in
consultative meetings, conduct rigorous civil education and that there be a
deliberate attempt to address the concerns of all stakeholders before there can
be a third attempt at passing the Reproductive
Health Bill into the Reproductive Health Act.
It is my hope as is many Kenyans that that the third time’s a charm.
