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November 16, 2018

The law on reproductive health

A healthy nation is said to be a wealthy nation. Health ranges from the physical, mental to psychological wellbeing of a human being. When we are unwell, we are unhappy. We do not have the morale to do anything. It makes the entire family sad. This is so because poor health leads to death.

Good health forms the backbone on the basis of which we enjoy our rights. You cannot enjoy any right as a human being if you are not healthy.You cannot discharge your obligations effectively. You cannot contribute in nation building.

Article 26 of The Constitution tells us that life begins at conception.This goes a long way to show us that the right to life is guaranteed from the time one is in the womb to death. It is unfortunate to note that at the time of birth many life's are lost. The child and mother are always at risk of loss of life during delivery. Infant mortality rate is very high in the far flung hospitals where access to hospitals is very poor. The child to mother HIV/AIDS transmission is reducing after the State reigned in on the issue.

Unless we have sound maternal care, then we shall lose all the children and the mothers on the delivery bed. The State takes care of the population size and standard of health through sound medical and health care systems that are of sound quality. Its no wonder children must at all times be vaccinated.

Under A.43 (1) 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.

Article 21 (2) provides partly that The State shall take legislative, policy and other measures, including the setting of standards, to achieve the progressive realisation of the rights guaranteed under Article 43.

In discharging the obligations towards ensuring that there is legislative action to achieve the progressive realisation goal of this right , one of the Honorable members of Parliament has said enough is enough. Although the Constitution in Schedule 5 sets no time limit for the legislative action in coming up with an Act of Parliament to address the reproductive health question, she has developed a bill known as The reproductive health care bill, 2014.

The Bill proposes an Act of Parliament to provide for the recognition of reproductive rights, to set the standards of reproductive health, provide for the right to make decisions regarding reproduction free from discrimination, coercion and violence; and for connected purposes.

According to the Bill defines “reproductive health” means 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 rights” include the right of all individuals to attain the highest standard of sexual and reproductive health and to make informed decisions regarding their reproductive lives free from discrimination, coercion or violence.

Under the Bill, “adolescent” means any person aged between 10-19 years. “Adolescent-friendly reproductive health services” means reproductive health services that are accessible, age-appropriate and safe for adolescents and are designed to attract interest and sustain adolescent motivation to utilise such services.

In an interesting suit filed by an adolescent boy who is facing the offence of defilement against his girlfriend, Justice Ochieng brought out the fact that the boys who engage in underage consensual activities have to face the full force of the Sexual Offences Act which creates the offence of defilement. This was in law.PT.6/2013-CKW VS The AG and The DPP-www.kenyalaw.org.

The boy was of the view that penalising him for engaging in consensual sexual intercourse amounted to discrimination. He wondered why the teenage girl he had sexual intercourse was not charged alongside him. The rationale behind having a law that prohibits adolescence sex whether consensual or otherwise is obvious. There is a need to ensure that sex remains a preserve of the married.

Under the Bill,“gestational surrogacy” means the process by which a woman attempts to carry and give birth to a child created through in vitro fertilization using the gamete or gametes of at least one of the intended parents and to which the gestational surrogate has made no genetic contribution.

"In vitro fertilization means" means the process by which an egg is fertilised by a sperm outside the body by placing sperms inside a woman’s uterus to facilitate fertilisation.

We shall be looking deeper at the Bill and what it provides for under the issue of surrogacy.

 

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