Memorandum on the Reproductive Health Bill,2019

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MEMORANDUM SUBMITTED BY ECONOMIC AND SOCIAL RIGHTS CENTER – HAKIJAMII ON THE REPRODUCTIVE HEALTH BILL No. 23 of 2019

To: The Clerk of Senate/Secretary,

Parliament Service Commission,

P.O. Box 41842-00100. NAIROBI.

Email address: csenate@parliament.go.ke

Greetings,

Economic and Social Rights Centre (Hakijamii) is a national human rights organization duly registered in 2007 as a Non-Governmental Organization (NGO) under the NGO Coordination Act. The organization has strategic community partners nationally and advocates for the realization of these partners’ Economic, Social and Cultural Rights. The Organization’s thematic areas are Land, Housing and Litigation, Education, Health, Water & Sanitation and Policy Research & Budget.

We are grateful for the opportunity to submit our proposals on the draft Reproductive Health Bill to this Committee.

Observations:

Kenyan adolescent girls and young women face an array of reproductive health risks that can be addressed by promoting and protecting their reproductive and sexual health rights, and putting in place a National Legislation on Reproductive Health, whose absence continue to inhibit full enjoyment of these rights, leading to sexually transmitted infections, HIV, unsafe abortion and unplanned pregnancies. 6,300 women die annually during pregnancy or childbirth in Kenya, and 17% of these deaths are as a result of unsafe abortion.

The Bill has provided a framework that will govern access to family planning, safe motherhood, termination of pregnancy, reproductive health of adolescents and assisted reproduction. It stipulates that every person has the right to access reproductive health services; and that every health care provider is obliged to provide family planning information and services to women who need them.

Our proposals are guided by the provisions of Article 26 (IV) of the Constitution of Kenya (2010) that guarantees the right to health, including reproductive health care and the right to access safe abortion services where in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law; Article 43 of the Constitution of Kenya that recognizes right to health, including reproductive health; and the International standards as set out in various treaties and conventions on Reproductive and Sexual Health that Kenya is a party to.

We loud the Bill for seeking to address reproductive health gaps, especially for providing a framework that would govern access to family planning, termination of pregnancy, safe motherhood, assisted reproduction and reproductive health of adolescents. It also reaffirms the right of every person to access reproductive health services, and reiterates the obligation of every health care provider to give family planning information and services to girls and young women who need them. The bill also mandates the national and county governments to provide free reproductive health care services, including antenatal care, delivery and postnatal care. It sets conditions within which women and girls can seek abortion services, among other issues.

However, there is need to highlight that much more needs to be done to respond to the sexual and reproductive health needs of adolescent girls and young women in the country. Evidence from demographic surveys and literature shows that economically and socially disadvantaged adolescent girls and young women have worse reproductive health outcomes. They are least likely to access lifesaving reproductive health services and more likely to have early, unintended pregnancies, unsafe abortions, and die as a result of pregnancy. The perception that adolescents’ lack political power often makes politicians reluctant to act in spite of the obvious need for intervention.

We note with concern that the bill has been severely criticized by opposing groups because of the lack of public awareness and political will. It has orchestrated discussions around controversial points of contention, including termination of pregnancy, sexuality education for adolescents, and treatment of infertility.

We therefor humbly submit as follows;

1. Replace the term family planning with contraception. The term family planning in itself is limiting, leaving out young people, including individuals, adolescents and youth in need of reproductive health services but are not in the definition of starting a family; whereas contraception means the deliberate prevention of pregnancy by measures that prevent the normal process of ovulation, fertilization and implantation

2. The Bill defines trained health professional as a registered clinical officer, a registered nurse and a registered midwife who has acquired the relevant skills for decision making and provision of reproductive health services, thus leaving out the medical practitioners. The bill should therefore adopt the definition as provided in the Health Act, 2017

3. The Bill should define the terms Termination of Pregnancy and Abortion, and these terms should not be used interchangeably. Abortion has been defined in the Health Act, 2017

4. Definition of the term Consent is critical in the context of the Bill. Consent means the voluntary agreement with what is proposed or done by a health care provider without any force, fraud or threat and with full knowledge and understanding of the medical and social consequences of the matter to which the consent relates

5. Amendment of Clause 26 on Termination of Pregnancy to include the following;

i. Abortion is not permitted unless the pregnancy is as a consequence of rape or defilement and endangers the physical, mental, psychological or social wellbeing of the woman

ii. Termination of Pregnancy shall be performed by a trained health professional

6. Amendment of Clause 27 (2) to explicitly forbid exercise of conscientious objection by trained health professional in cases of emergency treatment

7. Amendment of Clause 32 (1) to include Adolescent-friendly reproductive health services that are not only age-appropriate, but are also nonjudgmental, confidential, evidence-based and culturally sensitive

8. Amendment of Clause 33 to guarantee adolescents’ consent to their own medical treatment or services if they are;

i. Pregnant;

ii. Already a parent;

iii. Already sexually active

9. The Bill should make provisions for reproductive health care for persons with disabilities and intersex persons, including continuous activities to raise awareness and address sexual and reproductive health needs and rights of persons with disabilities and intersex persons.

10. Formation of Reproductive Healthcare Committee comprising of youth, medical professionals, legal professionals, religious leaders, human rights defenders, private sector players and government representatives. The committee will, among other things, advise the Cabinet Secretary – Health on matters relating to reproductive health care, coordinate the implementation of national and county government policies, regulations and obligations on reproductive and child health care rights, and propose laws, rules, guidelines and policies for the implementation of reproductive health care rights.

In Conclusion, we urge the Senate to work with Reproductive Health experts to strengthen the proposed Bill and ensure its alignment with existing national laws and policies.

We welcome an opportunity to highlight our memorandum by way of oral submissions on this matter as we trust that the Senate shall promptly and adequately respond to these proposals.

Yours Sincerely,

Pauline Vata

Executive Director

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