A new book by a Supreme Court Judge and a biomedical researcher is likely to rekindle the controversial debate on conception and abortion.
The book, which also explores themes such as mercy killing, In Vitro Fertilisation (IVF) and surrogacy highlights the existing gaps within Kenyan law and the ever evolving medical needs. The are concepts that are catching on among Kenyans but have narrow or no definitions within the country’s laws.
While the Constitution advances that “life begins at conception,” the book notes that the constitutional statement is ambiguous and can be debated.
“… statement (life begins at conception) is vague since conception can either refer to fertilization or implantation,” reads part of the book co-authored by Justice Isaac Lenaola and Prof Marion Mutugi.
The book, titled Bioethics of Medical Advances and Genetic Manipulation, interrogates the grey area in the legal system in Kenya and challenges scholars in medicine and law to offer clear explanations.
According to the book, if life begins at fertilisation, it means that some family planning contraceptives would be illegal and those involved should be charged with murder.
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Contraceptives such as the use of uterine contraceptive devices, often referred to as coil, as well as emergency pills stop the next stage of conception which is implantation. At this stage, the fertilised egg attaches itself to the wall of the uterus and grows into a foetus.
Lenaola and Mutugi say that if life begins at fertilisation, abortion of an embryo discovered to be deformed would be considered as murder and the culprits can face the law over the act.
“Furthermore, an embryo fertilized in vitro (controlled environment outside the body) would be considered ‘alive’ and discarding it is murder,” adds Lenaola and Mutugi in their new book.
The writers present Kenya as standing on shaky ground when it comes to assisted reproductive technologies often referred to as test tube babies. “…unwanted embryos are injected with a chemical that stops them from growing…it obviously poses an ethical issue related to beginning of life,” reads the book
“It follows that if life begins at fertilisation, stopping the embryo from growing like in the case of test tube babies is equivalent to murder,” it reads.
But with no surrogacy regulations in Kenya, the book indicates, there is a confusion. Contracts between different parties do not have legal standing in case of a disagreement.
If a surrogate mother carrying the pregnancy on behalf of another woman decides to keep the child after birth, the courts will find themselves in an awkward position as there are no laws on the matter.
It highlights the story of a surrogate mother who delivered twins at MP Shah Hospital in Nairobi in January, 25, 2014, and decided to keep them against an earlier agreement with the genetic parents who owned the embryo.
When the matter was taken to court, Justice David Majanja realized the absence of law on the issue and ruled in favour of the genetic parents and prohibited surrogate mother from accessing the children.
To reach a concrete judgement on when life begins, the two writers say the question of whether reproductive cells (gametes and embryos) are living or non-living should be made clear. The constitution should also be specific on what it means by conception; whether it is fertilization or implantation.
The book also questions the end of life and what the law says about mercy killing referred to as euthanasia in philosophy and medicine.