By Joan Ogeto
Assisted Reproductive Technology Brings Hope
Parenthood has long been a cherished milestone for many couples worldwide, often seen as a cornerstone of personal fulfilment and family life. However, the journey to parenthood has its challenges; for some, it remains an unattainable dream.
The fertility landscape has dramatically transformed in Kenya over the past few decades. According to the 2022 Kenya Demographic and Health Survey (KDHS), the average number of children per woman dropped significantly from 6.7 in 1989 to 3.4 in 2022. This decline was driven by increased access to modern contraceptives, higher educational attainment among women, and broader socio-economic progress. By 2022, 63% of married women used contraceptives, a substantial rise from 27% in 1989. These methods, ranging from short-term options like pills and condoms to long-term solutions such as IUDs and implants, not only enabled better family planning but also empowered women to participate more actively in economic and societal development.
Beneath these encouraging statistics, however, lay a hidden and often painful reality: infertility remained a stigmatized and unspoken struggle for many. For those unable to conceive, the challenge extended beyond biology. It was a profoundly emotional and social crisis. In many societies, including Kenya, societal expectations around childbearing often place significant pressure on individuals, particularly women, to have children. This pressure can lead to isolation, discrimination, and even the breakdown of relationships. While the KDHS revealed that 88% of pregnancies among women aged 15 to 49 resulted in live births, the remaining 12%, which includes miscarriages, stillbirths, and infertility, represent a harsh reality that many endure in silence, often without access to the medical, emotional, or societal support they desperately need.
The Rise of Assisted Reproductive Technology (ART)
Assisted Reproductive Technology (ART) offers hope to those struggling with infertility, transforming the dream of parenthood into reality for many. These technologies have revolutionized reproductive medicine from in vitro fertilization (IVF) to surrogacy. However, as ART gains traction in Kenya, it raises complex cultural, ethical, and legal questions. Who should have access to ART? How can technological advancements coexist with deeply held cultural and religious values? And what safeguards are needed to prevent exploitation in an industry that remains largely unregulated?
These questions took centre stage 2022 when Kenya proposed a landmark Assisted Reproductive Technology (ART) Bill. The bill aims to regulate the rapidly growing ART industry, addressing critical issues such as access, ethical practices, and all parties’ rights. By establishing clear guidelines, the bill seeks to balance innovation with accountability, ensuring that ART is used responsibly and equitably.
What is ART?
Assisted Reproductive Technology (ART) refers to medical procedures designed to help individuals and couples achieve pregnancy when natural conception is challenging or impossible. According to the American Center for Disease Control (CDC), ART encompasses any fertility treatment involving the manipulation of eggs or embryos. The most widely recognized form of ART is in vitro fertilization (IVF), a process where an egg is fertilized by sperm outside the body and then implanted into the uterus.
A Historic Breakthrough: The Birth of Louise Brown
The field of ART achieved a monumental milestone in 1978 with the birth of Louise Brown, the world’s first “test-tube baby.” Louise’s mother, Lesley Brown, had blocked fallopian tubes, making natural conception impossible. With the assistance of Dr. Patrick Steptoe and Dr. Robert Edwards, Lesley underwent an unstimulated menstrual cycle, and a single egg was retrieved laparoscopically from her ovary. The egg was fertilized in vitro, and the resulting embryo was transferred into her uterus. Louise was born via caesarean section at Oldham General Hospital in Manchester, UK, marking a historic moment in reproductive medicine.
This breakthrough brought hope to millions of infertile couples worldwide and ushered in a new era of assisted reproductive technology. Today, ART has evolved into a diverse field, offering solutions such as IVF, surrogacy, and egg and sperm donation, providing hope to those who once believed parenthood was out of reach.
The Proposed 2022 ART Bill: A Landmark Initiative
The Assisted Reproductive Technology (ART) Bill, 2022 is a comprehensive legislative framework designed to regulate ART procedures, including In-Vitro Fertilization (IVF), Intrauterine Insemination (IUI), Intracytoplasmic Sperm Injection (ICSI), Cryopreservation, Donation, and Surrogacy. The bill addresses critical issues such as:
- The rights of donors and surrogates, including consent, obligations, and termination of agreements.
- The right to conceive through ART.
- The right of intersex individuals to access ART services.
- The ethical handling and fate of unused embryos.
- Licensing and regulation of ART clinics to prevent commercialization and exploitation.
Additionally, the bill prohibits unethical practices and establishes legal provisions for children born through ART. By creating a clear regulatory framework, it aims to balance the promise of ART with the protection of rights and dignity for all parties involved.
The Driving Force Behind the Bill
The ART Bill was introduced in 2022 by Suba North Constituency MP and Human Rights Activist Millie Odhiambo Mabona. Her motivation stemmed from personal experience and the struggles she witnessed among friends facing infertility. In a heartfelt statement, she shared:
“After enduring heavy menstrual periods for years, I was diagnosed with fibroids. I couldn’t conceive or carry a pregnancy in my prime. Even after the fibroids were removed, I had no knowledge of assisted reproductive technology and didn’t realize I could still have a child.”
MP Odhiambo also emphasized the lack of preconception information available to women, which often leads to tragic outcomes. She noted:
“Some women give birth to babies who don’t survive long, and they end up believing they’ve been bewitched, when in reality, they may have genetic conditions affecting their pregnancies or newborns. This bill advocates for women to have access to preconception information and the support they need.”
Her advocacy highlights the importance of education, awareness, and access to ART services, ensuring that no one is left behind in the pursuit of parenthood.
The Reality of Infertility and the Promise of ART
For many in Kenya, the dream of parenthood is overshadowed by the harsh reality of infertility. Countless individuals yearn to start families, only to discover that natural conception is not possible. Compounding this challenge is the lack of awareness about alternatives like Assisted Reproductive Technology (ART), leaving many to believe their lineage has ended. Yet, ART offers hope, a lifeline for those who feel all is lost.
The 2022 ART Bill seeks to make these technologies accessible while ensuring safety, ethics, and protection from exploitation. For instance, Section 17 prohibits the procurement of sperm or eggs from donors under 18, except for the minor’s future use with parental consent. This provision safeguards vulnerable individuals from exploitation, particularly those facing financial desperation. Violations of this provision will attract severe penalties, including fines of up to five million shillings or imprisonment for up to five years, or both. By criminalizing such practices, the bill prioritizes the dignity and rights of all parties involved, ensuring that the pursuit of parenthood does not compromise ethical integrity.
The 2022 ART Bill outlines strict prohibitions and ethical guidelines to govern the creation and use of embryos, reproductive material, and assisted reproductive technology (ART). These provisions are designed to ensure that ART is used responsibly and ethically, safeguarding the rights and dignity of all parties involved. Key prohibitions include:
- Consent for Reproductive Material: Reproductive material (sperm or eggs) can only be used to create an embryo with the explicit consent of the donor.
- Use of Deceased Donors: Reproductive material cannot be taken from a deceased individual unless they provided written consent prior to their death.
- Medical Certification: Assisted reproduction is permitted only when certified by a qualified medical professional for legitimate medical or health reasons.
- Purpose of ART: ART cannot be used for purposes other than human procreation. It is explicitly prohibited for modifying the human race, commercial gain, or experimental use.
- Non-Human Material: The use of non-human eggs or sperm for ART is strictly banned.
Preventing Gender Selection and Genetic Manipulation
The Bill prohibits the intentional selection of a child’s sex through ART, except for medical reasons such as diagnosing or treating sex-linked disorders. This provision aims to prevent the misuse of technologies like pre-implantation genetic diagnosis (PGD) for non-medical sex selection, which could lead to gender imbalances and reinforce societal biases. By banning such practices, the Bill promotes gender equality and ensures ART is used responsibly.
Regulating Surrogacy Agreements
The Bill establishes a legal framework for surrogacy, outlining clear provisions to protect both surrogate mothers and commissioning parents. Key eligibility criteria for surrogate mothers include:
- Being at least 25 years old.
- Having given birth to at least one child previously.
- Agreeing to relinquish all parental rights over the child upon birth.
Surrogacy agreements must be in writing, witnessed by two individuals, and include provisions for the child’s welfare. The agreement can be terminated before embryo implantation in cases of disputes or automatically after a pregnancy termination. However, once the embryo is transferred, the agreement cannot be terminated, ensuring stability for all parties.
Further, the Bill clarifies that surrogate mothers are not entitled to monetary compensation beyond reimbursement for reasonable expenses, including IVF, pregnancy-related care, medical complications, loss of earnings, and insurance coverage for risks like death or disability. The commissioning parents cover these costs, ensuring fair compensation without commercializing surrogacy. Upon birth, the surrogate must hand over the child and has no further rights or obligations, balancing protection from exploitation with the rights of commissioning parents.
The 2022 ART Bill marks a crucial moment in Kenya’s reproductive health system, offering hope to countless individuals while addressing the ethical complexities of ART. Its success however hinges on more than legislation. It requires widespread awareness, education, and access to ensure these technologies benefit all who need them.
The question remains: How can we ensure ART becomes a source of hope and empowerment for the future?
References
KNBS AND ICF. Kenya Demographical and Health Survey. (2022). Demographic and Health Survey Summary Report.
Njogu, A., Njogu, J., Mutisya, A. et al. Experiences of infertile women pursuing treatment in Kenya: a qualitative study. BMC Women’s Health 22, 364 (2022). https://doi.org/10.1186/s12905-022-01950-4
The Assisted Reproductive Technology Bill (2022).
Joan Ogeto is a Law graduate (LLB Keele University UK) and writer. She is pursuing the Advocates Training program (ATP) at the Kenya School of Law.
Email: ogetojoan@gmail.com
