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| Mbita MP Millie Odhiambo has sponsored the Invitro Fertilisation Bill. |
Nairobi, Kenya: The National Assembly will soon debate a Bill designed to protect test tube babies and their mothers.
The term “test tube baby” refers to a human baby created by uniting the mother‘s egg and the father‘s sperm in a laboratory dish or test tube, a process known as in vitro fertilisation, and then putting the egg inside a woman — either the biological mother or a surrogate (substitute mother) — to grow.
Built into the In Vitro Fertilisation Bill 2014 are safeguards to protect babies conceived in this manner. It establishes an authority to maintain a register of such births and the identities of their biological fathers who provided the sperm.
The Bill grants special legal rights to such babies, and says that “they shall enjoy equal rights as children born through sexual intercourse.”
And if you wanted to know if you are a laboratory baby, it will be easy to find out.
“A person who has attained the age of 18 may by notice to the Authority require the Authority to provide information stating whether or not the information contained in the register shows that a person other than a parent of the applicant may be a parent of the applicant,” states the Bill, sponsored by Mbita MP Millie Odhiambo.
Any adult who wishes to know if he or she was born through in vitro fertilisatiion will be able to check with the authority. Among other things, this will reduce the chances of involuntary incest in cases where a man donates sperm several times to different women, but his biological offspring grow to adulthood and meet later in life, unaware of the fact that they are related.
But the information will only be provided after the person seeking it has undergone counselling on the consequences of such knowledge. It will not be given to minors unless for medical reasons.
Although in vitro fertilisation has been going on in Kenya, there is no register of beneficiaries, meaning that a person born through the technology risks marrying a close relative in cases where a man may have donated his sperm to multiple women.
The proposed law would also seal a legal gap that led to the biological parents of a child who was born by a surrogate being forced to surrender the baby to the substitute mother who bore the child at MP Shah Hospital in Nairobi. In that case, the hospital refused to hand over the child to the biological parents and instead put the baby in a children’s home because the law did not distinguish between surrogates and the biological parents.
The matter ended up in court where the judge gave temporary custody of the infant to the surrogate.
PARENTAL RIGHTS
The Bill is clear that a surrogate will automatically cede parental rights of the child upon birth, unless there is a contrary agreement. It is already with the Budget and Appropriations Committee for costing.
According to Odhiambo, there is no legal framework to guide in vitro fertilisation and the procedure has been going on “in legal nudity”. She told The Standard that the Bill, if passed, would help couples unable to bear children through natural means. “A person may not be infertile, but due to lifestyle dynamics or complications arising from conditions such as fibroids, they may not be able to bear children. This Bill aims at helping such women raise their own children,” she said.
Dr John Ong’ech, Assistant Director and Head of Reproductive Health at Kenyatta National Hospital, said the Bill would cure an existing legal lacuna.
“This is the right way to go. There was a task force that was appointed by former Health Minister Anyang Nyong’o to come up with a legal framework, and I hope that the new Bill has taken into consideration the views of all stakeholders,” Dr Ong’ech says.
He added: “This is not a new practice, and it is being borrowed from the UK. Kenyatta National hospital is in the process of setting up a fully fledged IVF centre to benefit ordinary women who need to access IVF services in the same way it has been done in Zambia.”
Joy Noreh, Nurse and Administrator of Nairobi IVF Centre, concurs. “Anything that is done with regard to IVF should aim at benefiting the thousands of women who seek assistance to get children. The debate on IVF and surrogacy should never be distorted,” she said.
Reverend Frank Kioko of the African Inland Church (AIC), Nairobi, welcomed the legislation saying what they were however opposed to is cloning.
“What we are opposed to is the extremes of cloning, where people are attempting to play God. But as long as the motive for IVF is right, there is no problem. People who cannot get children through natural means seeking medical alternatives is like a person seeking a kidney donation. That in my view is understandable,” Rev Kioko observes.
The lack of such a law has left Kenya behind other countries such as Australia, UK and South Africa.
“Due to the lack of a legal framework in the country, we have been using best practices in the Commonwealth and doctors have strived to keep to ethical practices. With the new Bill, we should domesticate the key issues that affect the practice,” says Dr Ong’ech.
The procedure has, however, raised moral concern, with opponents arguing that it is inherently unnatural and wrong. Perhaps cognisant of this controversy, the Bill places a caveat on undertaking inv itro fertilisation purely for speculative purposes.
“A person shall not undertake in-vitro fertilisation for any purpose other than creating a human being; or for purposes of modifying the human race....A person shall not for purposes of in-vitro fertilisation place in a woman — an embryo other than a human embryo; or a gamete other than a human gamete.”
The proposed authority shall also not issue a license that allows the placing of an embryo in any animal. According to the mover of the Bill, the State has a legitimate interest in restricting reproductive freedom if there is demonstrable harm or negative impacts on society.
“Due to reliance on technology in assisted reproduction, the state has a legitimate interest in ensuring high standards of treatment, with a view to enhancing safety and protecting individuals from exposure to high levels of risk. Furthermore, the intervention of a third party in assisted removes the matter from private domain to public domain, warranting legislative intervention,” she argued.
The Bill is, however, silent on a number of issues, among them the number of times a woman can undergo the procedure, and also many times a man can donate his sperm for use in vitro fertilisation. Neither does it provide any guidelines on the possibility of using the procedure in bearing twins, only stating that the Government would draw up such regulations.