Under Article 43 of the constitution, every person has the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care.
According to the United Nations International Conference on Population and Development (ICPD), reproductive rights rest on the recognition of the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so. it also includes the right to attain the highest standard of sexual and reproductive health and their right to make decisions concerning reproduction free of discrimination, coercion and violence.
These rights are already recognised in national laws, international human rights documents and other consensus documents.
The ICPD 1994 elaborates that reproductive health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity in all matters relating to the reproductive system and to its functions and processes. Reproductive health implies that people are able to have a satisfying and safe sex life and that they have the capability to reproduce and the freedom to decide if, when and how often to do so.
The duty to legislate on reproductive health rights in Kenya rests on the government. This is because it results in human rights violations where it arises in whole or in part, from the failure of a duty-bearer, commonly a state, to meet an obligation. Article 21 of the constitution states that it is a fundamental duty of the state and every state organ to observe, respect, protect, promote and fulfill the rights and fundamental freedoms in the Bill of Rights and that the state shall take legislative, policy and other measures, including the setting of standards, to achieve the progressive realization of the rights guaranteed under Article 43. Progressive realization obliges states to show that they are making measurable progresses towards the full realisation of the Reproductive Health Rights and are restraining from adopting regressive measures.
Towards realising the reproductive rights in Kenya, we have The Health Bill 2012 which tasks the state with the duty to observe, respect, protect, promote and fulfill the right to the highest attainable standard of health including reproductive health. The Bill under Section 9 further provides for the informed consent of patients before any health service is given to them unless the patient is unable to give informed consent and such consent is given by a person mandated and authorized by the patient or by an applicable law or court order.
Where such violations occur, Article 23 states that the high court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.
The reliefs for breach of one’s Reproductive Rights include a declaration of rights; an injunction; a conservatory order; a declaration of invalidity of any law that denies, violates, infringes, or threatens this right, an order for compensation; and an order of judicial review.
International conventions that back up this right include The Convention on the Rights of Persons with Disabilities, which is the first comprehensive international human rights instrument to specifically identify the right to reproductive and sexual health as a human right. At the regional level, the Protocol to the African Charter on Human and Protocol on the Rights of Women in Africa expressly articulates women’s reproductive rights as human rights, and explicitly guarantees a woman’s right to control her fertility.
It also provides a detailed guarantee of women’s right to reproductive health and family planning services. The protocol affirms women’s right to reproductive choice and autonomy and clarifies African states’ duties in relation to women’s sexual and reproductive health. Reproductive rights have also been incorporated into the international development agenda with the adoption of the UN Millennium Development Goals (MDGs) in 2000. Governments have agreed that addressing women’s reproductive health is key to promoting Development.
We cannot talk of family law without making constant reference to reproductive health rights.