To: J.M.

Nyegenye, Clerk of the Senate

From: World Youth Alliance Africa, africa@wya.net
Re: The Reproductive Health Care Bill 2014
Date: 20 June 2014


The World Youth Alliance Africa (WYA Africa) is a coalition of young people across Africa
dedicated to promoting the dignity of the human person through policy, education, and culture.
We, as young people from Kenya and across the continent, oppose the Reproductive Health Care
Bill of 2014 in its entirety. For the following reasons, it does not serve the interests of women,
adolescents, or children.

The bill is not comprehensive. It is not about womens overall health and safe motherhood.

The bill states that its objects and purposes are to- (a) provide a framework for the protection
and advancement of reproductive and health rights for the women; (b) promote womens health
and safe motherhood; (c) achieve a rapid and substantial reduction in maternal and child
mortality rate; and (d) ensure access to quality and comprehensive provision of health care
services to women and children.

These objects and purposes are not accurate for the bill that follows. Safe motherhood is hardly
addressed. Part IV on safe motherhood is just three sentences long, while the provisions on
gestational surrogacy, pregnancy termination, and adolescent reproductive health are much
longer. There is no indication how gestational surrogacy or other measures will reduce the
maternal and child mortality rates. The bill does not ensure access to comprehensive health
services; the prioritized services are surrogacy, abortion, and contraception. Each of these
sections has a lack of clarity and specificity, which leaves the bill open to abuse.

Further, the title of the bill is the Reproductive Health Care Bill, but there is no definition of
reproductive health care in the bill. Under ICPD Programme of Action paragraph 7.6,
reproductive health care can be construed to include abortion. Indeed, this term is avoided in
United Nations negotiations because of its abortion connotations.

The bill allows for the provision of abortion to adolescents without the consent of their
parents.

Part IX of the bill focuses on reproductive health services for adolescents. There is no definition
of reproductive health services in the bill, although it appears several times in Article 33. This
definition could be construed to include abortion, under the definition of reproductive health
services in ICPD Programme of Action paragraph 13.14(b). This means that this Article could
provide for the provision of abortion services to adolescents as young as 10 years old without the
consent of their parents.

The bill allows for the education of adolescents on sexual identity, sexual orientation, and

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abortion without the consent of their parents.

Article 34(1)(d) states that adolescents will be given access to comprehensive sexuality
education. Comprehensive sexuality education is the term used for a specific type of sex
education; it is not just education on the basics of reproduction. As defined by Planned
Parenthood, comprehensive sexuality education teaches about masturbation and other sexual
behaviors; options for unintended pregnancy: raising a child, placing a child for adoption,
abortion; [ . . . ] moral and religious values, safer sex, [ . . . ] sexual identity; sexual orientation;
social and cultural expectations about sex and sexuality. This means that adolescents as young
as 10 years old will be instructed on such issues as same-sex relationships and access to abortion.
Most parents would be outraged to find out their children were learning these topics in a setting
where the parents were not involved.

The international organizations that promote comprehensive sexuality educationand that
certainly will make their curricula available to the Boardpromote a view of sexuality that does
not acknowledge its holistic nature. Instead, under their view, one should explore ones sexuality
and gender identity from a young age, even as a toddler. Abstinence is not emphasized.

There is no right to comprehensive sexuality education in international law, and thus Kenya does
not have an obligation to provide it. The term comprehensive sexuality education is not
mentioned in any international treaty, nor is it in the Maputo Protocol or the Constitution of
Kenya.

The bill indicates that parents should not be involved in their childrens health care.

Articles 34(1)(b) and 34(1)(d) emphasize that reproductive health services provided to
adolescents should be confidential. Parents thus will not know what services are being provided
to their children. This confidentiality can shield abuse of children. For example, a child who has
been sexually abused by a peer, teacher, or other adult may receive reproductive health services
and the parents will not be told, when the responsible action would be to notify parents so that
they can seek help for and give emotional support to the child.

The bill creates a right to gestational surrogacy, which is impossible to guarantee.

Article 7(1) states, Every person has a right to gestational surrogacy. This is an unprecedented,
radical right. It is impossible for the State to guarantee because there is no assurance that a
surrogate will be available to each person who wants to avail himself of this alleged right.

The bill does not adequately protect surrogate mothers or the children resulting from the
surrogacy arrangement.

The bill does not list an age requirement for surrogate mothers, meaning a 16-year-old woman
with living children could be a surrogate, or a 50-year-old with living children. The suitable
person standard is incredibly vague and open to interpretation and abuse.

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The bill requires that surrogacy agreements include adequate provisions on the care of the
child, but there are no real standards and no indication of how these provisions would be
enforced. It is easy to draft an agreement with protection provisions and then not follow through
on the protections. There is no indication of what will happen if the child is rejected by the non-
surrogacy parents because, for example, the child has a disability.

A surrogate agreement can also be made between a surrogate and a single person. The resulting
child will thus have only one known parent. This can be emotionally and psychologically
damaging to the child. The surrogate will also face emotional and psychological challenges after
giving up the child she has carried for nine months.

Surrogacy bills in other countries are much longer, with detailed provisions that cover all aspects
of surrogacy and the potential problems. The section on surrogacy in this bill is very inadequate.
It should not be lumped into a bill that includes other topics (which are also inadequately
outlined).

The only way for a surrogacy agreement to terminate is the termination of the pregnancy,
which treats a childs life as trivial and expendable.

The bill states in Article 13, A surrogate parenthood agreement is terminated by a termination
of pregnancy. There is no indication of any other way for the agreement to terminate. This
means not only that a childs life can be created artificially (through IVF, which is necessary to
achieve pregnancy in a surrogacy arrangement) but that it can simply be ended when the
contracting parties decide they no longer want the arrangement.

It also does not protect the non-surrogates from the decision of the surrogate to terminate the
pregnancy without their consent.

The bill does not protect the partners of surrogates.

Article 9(3) states, Where a husband or partner of a surrogate mother who is not the genetic
parent of the child unreasonably withholds his consent, the parties shall proceed to sign the
agreement and it shall be valid. This unreasonableness standard is incredibly broad and open
to interpretation. A husband or partner who is opposed to surrogacy may have valid reasons for
that opposition, but those views can easily be classified as unreasonable. This provision can only
serve to undermine the marriage or partnership and ignore the rights of men.

The bill authorizes all abortions.

Part V addresses termination of pregnancy. It is incredibly broad. First, the bill does not define
trained health professional. As the person who makes the determination of when it is
acceptable for a woman to terminate a pregnancy, it is essential that this be defined. Second, the
health of the mother exception allows for nearly any reason to be justification for an abortion

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(pregnancy-induced nausea, headaches, stress, etc.).

It also allows for minors to get abortions without the consent of their parents. Although parents
(or persons with parental responsibility, which is vague) must be consulted, parental consent is
not required. If the parent disapproves of the abortion, then the best interest of the minor
standard prevails. It does not indicate who determines what is in the best interests of the minor,
and the standard itself is broad. A judge could simply approve all abortions for minors.

Finally, abortion is a serious matter. The bill has no counseling or waiting period requirements,
the lack of which facilitates rash decision-making.

The bill misdefines pregnancy.

Article 2 defines pregnancy as the presence of a foetus in the womb. This definition is wrong.
First, the foetal stage of pregnancy begins at 9 weeks. This definition thus ignores the stages of
pregnancy before the foetus develops, such as the embryonic stage. This false definition of
pregnancy can allow for unrestricted abortion access prior to 9 weeks.

The bill ignores knowledge-based family planning methods and focuses almost entirely on
contraceptives as family planning methods.

Under the definition of family planning in Article 2 and in Part II on access to contraceptives and
family planning, contraceptives are prioritized. There is no mention of knowledge-based
methods or natural methods. It is critical to state the importance of these methods since many
women do not want to or cannot use contraceptives for health or religious, ethical, or moral
reasons.