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, and the right to attain the highest standard of sexual and reproductive health.

Article 14 of the Maputo Protocol guarantees the respect and promotion of women’s right to health, including Sexual and Reproductive Health (SRH); control over fertility, and over whether and when to have children, are central to women’s health. This is in turn closely related to women and girls’ right to choose any method of contraception and their right to family planning education (Arts 14(1)(a)(b)(c) and (f)). It also addresses women’s right to self-protection and to be protected from HIV, and to be informed of their health status and that of their partner.

Control over fertility, and other decisions on whether and when to have children, is closely linked to access to contraceptive methods and comprehensive SRH education.

The total fertility rate for the African continent is the highest in the world, at an estimated 4.6 children per woman. However, the fertility rate in Kenya stands at 3.5 on average.

The decrease in fertility is partially as a result of increased contraceptive use. Another contributor is the fact that “age at first marriage” has risen over the last few decades and so has the “age at first birth”.

This is perhaps attributable to the increased access and use of contraception as well as the fact that more women are opting to pursue their careers and postponing their “age at first birth”. However, the vast majority of those unable to have children is occasioned by growing rate of infertility.

According to the World Health Organisation more than 180 million couples in developing countries suffer from primary or secondary infertility. In sub-Saharan Africa, infertility is caused by infections in more than 85 per cent of women compared to 33 per cent worldwide.

In Kenya, it is estimated that two in every 10 people suffer from one form of infertility or another. This can be occasioned by untreated sexually transmitted infections, medical conditions such as endometriosis, fibroids, among others.

With the vast majority unable to access treatment due to the high costs and the fact insurance companies do not cover (in)fertility treatments, many couples (more so women) are left to face societal stigma due to their barrenness.

Some childless couples opt for adoption. However, adoption is seen as an option for the well off as one of the requirements needed to be allowed to adopt is demonstration of capacity to provide for and take care of the adopted child.

Adoption is however the less expensive alternative, the other being assisted reproduction technologies (ART) such as vitro fertilization-embryo transfer (IVF-ET), gamete intra-fallopian transfer (GIFT), zygote intra-fallopian transfer (ZIFT), and frozen embryo transfer (FET). These techniques also apply to oocyte donation and gestational carriers (surrogacy).

Presently the ART space operates in a lacuna as there is no law governing the same; however, the services are available but at a premium price. For instance, according to a fertility clinic operating in Nairobi, the average cost of a complete package comprising of IVF and surrogacy is USD 30,000- USD37,000/- whereas another clinic operating in a nearby facility charges up to $40,000/-. However, these costs do not include additional services such as sperm freezing, embryo freezing, frozen embryo transfer cycle all of which average between $350-$4,000/- (some which are charged per annum).

Further to this, there is the additional legal fees. The legal fees arises from the fact that upon delivery, the Kenyan birth Certificate names the birth mother and the genetic father, thus the intended parents would have to adopt their baby regardless of whether or not they had opted to have a gestational surrogate (where the woman (surrogate) uses the eggs and sperm of the intended parents or the egg or sperm donor and the developed embryo is implanted in her womb to carry the pregnancy for the intended mother who cannot carry the pregnancy due to some medical illness and her fertility expert advise her to go for the surrogacy procedure which case the surrogate is not the biological mother of the newborn as her egg as are not used for the IVF cycle).

In addition, other than the high cost of ART, is the arising conflicts of laws specifically Law of Succession. Currently there is no provision on how to deal with the gametes (male of female germ cell which is able to unite with another of the opposite sex in sexual reproduction to form a zygote) of deceased persons. Moreover, for purposes of succession, a question arises over the rights of the child born via surrogacy and whether s/he can claim from the birth mother’s estate.

However, there is a light at the end of the tunnel. The proposed Reproductive Healthcare Bill, 2019 seeks to address some of these glaring gaps and to some extent ease the burden of prospecting parents.

The proposed legislation provides that:

• A child born via surrogacy shall be deemed to belong to the intended parents (in this case commissioning parent(s)) and they (the commissioning parents) shall be named as the parents of the child at birth on the birth notification under section 10 of the Births and Deaths Registration Act. This means that the commissioning parent(s) will not have to go through adoption of their own child regardless of whether one chooses gestational or traditional surrogacy. Further, the child shall acquire the citizenship of the commissioning parent or commissioning parents in accordance with Article 14 (1) of the Constitution of Kenya.
• With regards to succession, the Bill provides that a child born pursuant to a surrogate parenthood agreement shall not, for the purposes of the Succession Act, be deemed to be a beneficiary of the surrogate mother or spouse or relative of the surrogate mother.
• With regards to gametes’ of embryos’ control the proposed legislation provides that consent must be given prior to the demise of the donor/ parties to a surrogacy agreement which means that this should be factored in a succession matter.

Whereas the Bill does not address the concerns of the high cost of ART and (in)fertility treatments, it does help to bring to the fore the gaps in our reproductive healthcare as well as create an opportunity for discussion and consideration of the growing need for affordable and accessible reproductive health care services.