ABORTION BILL?

Explainer: Reproductive Healthcare Bill, 2019

Every person has the right to the highest attainable standard of health.

In Summary
  • Bill requires national and county governments to ensure access to adolescent-friendly reproductive health services. 
  • Abortion provisions are in line with the Constitution.
A file photo of pregnant woman.
A file photo of pregnant woman.

Opinion is sharply divided over the Reproductive Healthcare Bill, 2019 that is before Parliament. It has led to strong exchanges between supporters and opponents.

The sponsor of the Bill, Nakuru Senator Susan Kihika, explains in the Memorandum of Objects and Reasons that the proposed law is meant to actualise the constitutional guarantee that every person has the right to the highest attainable standard of health, including the right to reproductive healthcare (Article 43). 

To this end, the Bill provides a framework for assisted reproduction services by outlining the requirements for surrogate parenthood.

The Bill also provides a framework for access to reproductive health services by adolescents.

Teenage sexuality remains a hotly contentious public issue in Kenya. Calls for an honest discussion based on the facts on the ground are routinely met with strident moral arguments. 

Despite the large numbers of teenage pregnancies reported around the country and the threat this poses to the future of girls, attempts to introduce sex education in schools have been fiercely resisted, especially by the Church, over the years.

They say such education would increase sexual immorality among teenagers and that it is the responsibility of parents and religious institutions to teach children about sexuality.  

But the large numbers of teenage pregnancies, unsafe abortion and dropping out of school due to pregnancy do not suggest parents and faith groups have succeeded in that task.

The Bill obligates the state to provide adolescents with correct information, guidance and counselling on reproductive health. 

Contrary to what the critics say, the proposed law is not an “abortion Bill”. Article 26 of the Bill deals with “termination of pregnancy” or abortion. The provisions are in line with the Constitution, which allows abortion only in limited medical cases. 

These include, need for emergency treatment; the pregnancy would endanger the life or health of the mother; or there exists a substantial risk that the foetus would suffer from a severe physical or mental abnormality that is incompatible with life outside the womb.

The provision for reproductive healthcare to adolescents (Article 32) is another major source of friction. The Bill requires national and county governments to ensure access to adolescent-friendly reproductive health services. 

The church and other moralist voices have long rejected the term reproductive health, which they believe is a euphemism for legalised abortion and indiscriminate access to contraceptive services.

But the list of reproductive services in the Bill includes mentorship, spiritual and moral guidance, counselling on sexual abstinence, consequences of unsafe abortion, drug abuse and training in life skills.

The problem seems to be the clause that, “A health care provider from whom reproductive health services are sought by an adolescent shall refer the adolescent to a qualified person for the provision of the necessary services.”

Critics read this provision as opening the way for legalised abortion and use of contraceptives among adolescents.