Delay in enacting fertilisation Bill insensitive to women’s plight

News that an in-vitro fertilisation unit is to be constructed at Kenyatta National Hospital is certainly a source of celebration for couples unable to get children through natural conception. This procedure involves the laboratory combination of sperms and eggs or insertion of selected sperm into an egg for fertilisation. This comes 17 years after Dr Joshua Noreh set up the first fertility clinic in Kenya, in 2006. The planned unit would address the astronomical costs of the service and the stigma around childlessness, particularly for women.

The stigma is rooted in patriarchal norms that blame women for infertility, yet scientific evidence shows that men are responsible for 50 per cent of the cases. Women’s infertility moves from being a private affair to a source of public ridicule leading to brutalisation, insults, false accusations of witchcraft, dispossession of family property, divorce and blatant infidelity from husbands who use it as a perfect excuse to prospect for other partners or additional wives.

Ironically, some, such divorced women, end up getting children while their estranged husbands continue to wallow in childlessness in new marriages.

Technology

This issue inspired Hon Millie Odhiambo-Mabona’s In-Vitro Fertilisation Bill in the 11th Parliament. The Bill cites that “in vitro fertilisation is often a couple’s or individuals’ only chance at conception”. The problem is that no current Kenyan law provides a substantive framework on the procedure. Thus, those who use such technologies have no legal protection and do it at their own risk.

By putting in place such a law, the state will be “ensuring high standards of treatment, with a view to enhancing safety and protecting individuals from exposure to high levels of risk”, states the Bill. Moreover, assisted reproduction implies a third party which “removes the matter from the private to public domain”.

When moving the Bill, Ms Mabona self-identified as the “voice of the many women who have challenges in having children”. One of her colleagues also confessed having been lampooned for being childless, adding that even after getting one through technological assistance, she went through a four-year legal ordeal to adopt the son as existing laws did not allow her to own him outright since he was birthed by a surrogate!

Read also: The other side of infertility coin

All contributors to debate on the Bill observed that childlessness occasioned violence against women, frustration by family members and separation. They also noted that assisting such women would eliminate disputes arising when surrogates hired to carry embryos get attached to and claim the children as their own.

Renamed the Assisted Reproductive Technology Bill, the proposed law was passed on March 10, 2016 and handed over to the Senate where it was lost on October 19, 2016. Thus, it had to be reintroduced in parliament for fresh debate. A 2019 version is still awaiting consideration.

The Bill defines who qualifies for the services and differentiates surrogate motherhood from conceptions sought by legally married couples that have extracted their own gametes for fertilisation. It provides for: “the consents necessary before undergoing in vitro fertilisation; regulation of the handling of embryos; protection of identity, status and welfare of children borne as a result; and obligations of persons seeking to undertake the procedure and their status as parents upon obtaining children through the process”. It proposes regulations on; eligibility of donors, mechanisms for storage of gametes and embryos; how many times a patient can be exposed to the procedure; and means of settling disputes arising from the arrangement.

Cross-fertilisation

The potential debates the procedure arouses on marital relations, reproductive liberty, privacy, and child and parental rights and responsibilities are highlighted as ethical issues to be considered. The same applies to possible misuse of the harvested tissue, their experimental exploitation for purposes other than procreation, cross-fertilisation with non-human gametes, and use without the donor’s consent.

If the Bill is eventually enacted, Kenya would have an institutional authority to regulate use of reproductive technology, moderate the rights and obligations of donors and beneficiaries, control the extraction and use of the gametes and license entities that wish to provide the services.

Such an entity would be required to maintain strict confidentiality with regard to information in its custody, and give legal access only to parties that are entitled to it.

Apart from benefiting individuals that cannot conceive naturally, the proposed unit at Kenyatta National Hospital also stands to assist career people who wish to delay parenthood, couples living apart for protracted periods, and people who want children without intimacy.

It will certainly complement private clinics offering the service. Hopefully, it will charge affordable rates. Parliamentary delay in debating and passing the pending Bill is not only a disservice to the country, but also signals insensitivity to the plight of the many potential beneficiaries.

Dr Miruka is an international gender and development consultant and scholar ([email protected])