Comments on the Assisted Reproductive Technology Bill, 2023

Drawn by:
Nyiha, Mukoma, and Company Advocates
7th Floor, Alta Towers
Ring Road Kilimani, Opp. Yaya Centre
P.O. Box 28491-00200,
Nairobi, Kenya

Dated: 16th May 2023

Not everything that can be done should be done.

Assisted reproductive technology reduces people to objects for use. It is, therefore, unconstitutional and morally reprehensible. The Assisted Reproductive Technology Bill of 2023, which seeks to legalize assisted reproductive technology, should not be passed into law.

1. Even when resorted to with the best of intentions, assisted reproductive technology (ART) treats women as objects instead of persons.

• ART involves many arrangements centered on six persons: the “commissioning mother,” the “commissioning father,” the “surrogate mother,” the sperm donor, the egg donor, and the child. Egg donation and surrogacy reduce women to objects. Besides being morally reprehensible, ART contravenes Articles 28 and 45(1) of the Constitution of Kenya.

In both surrogacy and egg donation, the commissioning parents reduce women to wombs or ovaries for hire. 

• Though a person is not only her body, she is her body. To touch her shoulder is to touch her; to slap her face is to slap her; to use her womb is to use her.
• A woman’s ovaries and womb tend naturally to the generation of a new human being through sexual intercourse. This is the biological purpose of a woman’s reproductive organs. This is not to say that this is the only purpose of a woman’s reproductive organs; a woman is infinitely more than just biology. But she is also biology, with aims that she does not determine any more than a man can define his biological purposes. Any action that uses her body for a purpose other than what it naturally does tends to make her body a means to an end. Because the woman is her body (though not only her body), an action that reduces her body to a mere means makes her a means to an end.
• In both surrogacy and egg donation, the egg of a woman is extracted from her ovary and fertilized outside the womb. Sexual intercourse is excluded. And yet, because the woman, like every person, is infinitely more than just biology, sexual intercourse has a purpose that transcends biological reproduction. In sexual intercourse, a man and a woman are called to love the other entirely, as they are, in their bodies and as persons. Fertilization of the egg in vitro assumes that the biological and personal aspects of sexual intercourse can be separated. In other words, it reduces sexual intercourse to a purely biological act, with a purely biological outcome. Reducing sexual intercourse to a purely biological act ignores the act’s personal dimension, reducing the person to reproductive organs, to body parts that can be used to achieve desired outcomes. Indeed, the rapist makes just such a reduction. Both surrogacy and egg donation reduce the woman to a biological machine.

Egg donors are enticed to undergo severe real and potential health risks. 

a. Egg donation involves four stages, each involving grave risks.

• The first stage is stopping ovarian function. The woman self-injects synthetic hormones to induce menopause. The physician can then synchronize her maturation and release of eggs with a surrogate. Synthetic hormones can increase the risk of cardiovascular disease, pulmonary and colorectal cancer, and stroke.
• The second stage is superovulation. The physician stimulates the maturation of dozens of egg follicles. “Dozens” is over 12 times the number of egg follicles that mature during natural ovulation. As a result, the ovaries enlarge significantly. At this stage, 1 in 20 women contract Ovarian Hyperstimulation Syndrome (OHSS). OHSS causes other bodily changes, which can lead to pulmonary infarcts, blood clotting, and fluid imbalances.
• The third stage is releasing the eggs from the ovaries. The woman takes a final injection to release the mature eggs.
• The fourth stage is removing the eggs. A catheter with a needle at the end is inserted vaginally to remove the eggs via suction. This surgical procedure comes with its risks including perforation of organs.
• All these risks are short-term. Very limited study has been done on the long-term health risks. Anecdotal evidence indicates higher levels of breast cancer in the long term for egg donors.

b. The pressure to entice women to undergo this risky process is high.

• If the ART procedure has a low success rate, it would be unprofitable to engage in it unless there is a multitude of eggs cheaply available.
• In 2010 (the last year for which there is good data available) in the United States alone, 100,000 ART cycles were using non-donor eggs. Over 80,000 of those cycles failed. That means the procedure had a 20% success rate with non-donor eggs.
• Donor eggs raise the chance of live birth in an ART cycle. To increase the success rate of the ART procedure, there is pressure to entice women to donate eggs, even by fraud. This has been prevalent in the United States.

2. ART, even when used non-commercially, reduces children to commodities.

• A commodity is “a useful or valuable thing”.^[1] Although the Assisted Reproductive Technology Bill, 2023, prohibits using genetic material for commercial purposes, it reduces children to commodities. Once again, besides being morally reprehensible, ART contravenes Article 28 and Article 53(d) of the Constitution of Kenya. It also occasions the contravention of Article 26(3) of the Constitution of Kenya and Section 203 of the Penal Code.

ART involves the murder of discarded embryos, that is, human persons.

• The ART process involves fertilizing dozens of eggs in vitro for a single procedure. Each of these eggs becomes an embryo. Each of these eggs becomes a human person. This is a scientific fact, not an unjustified moral dogma.
• Indeed, the Assisted Reproductive Technology Bill itself recognizes this scientific fact. The Bill defines the term “embryo” as “a live pre-born person or child from fertilization or conception until transfer into the adoptive or surrogate mother.”
• This scientific fact is also manifested in the lived experiences of many infertile women who resort to ART.
• Even in the hypothetical scenario that we were unsure whether the embryo is a human person, this action would amount to an unconscionable degree of recklessness. To kill when we are fully aware that what we are killing might be a human is grossly negligent and incredibly callous.
• Some embryos are deemed incapable of surviving a pregnancy (“non-viable”). They are discarded – killed. This action amounts to deliberately causing the death of a human person, that is, murder. This deprives the child of life contrary to Section 203 of the Penal Code and Article 26(3) of the Constitution of Kenya.

The child conceived in vitro is treated not as a person, but as an object for the gratification of others.

• Fertilization in vitro excludes the act of sexual intercourse from the procreation of the child. It treats sexual intercourse as a purely biological mechanism whose outcome can be reproduced technologically. Therefore, it treats the child as just a biological mechanism. Regardless of the subjective state of the commissioning parents or the surrogate mother, the child is impliedly seen as the fruit of a biological process, a process that can be used for desirable results. The child is treated as valuable not in himself, but for the gratification he can afford a man and a woman. He is reduced in his body to a means to an end, an object for use.
• This is even more true of the child conceived via donated eggs or sperm. In this case, the donor treats the child as foreign, as not belonging to him or her. The commissioning parents (and the proposed legislation) countenance this rejection of responsibility over the child by the donor. They tolerate reducing the child to a contract as if the child were an (important) commodity.

3. ART is detrimental to the family, which the State has a constitutional duty to protect.

• ART reduces the woman and the child to objects for use. To love someone or something as a means to an end is to love them only insofar as they are useful for that end. To love a child as an object of gratification is to love the child only insofar as he occasions pleasure. To love a woman without accepting her body completely, as it is, in sexual intercourse is to love her only on condition that she can be made fruitful, or that she occasions pleasure.
• Therefore, ART is inimical to the unconditional love that is the necessary basis of the family unit. ART is inherently destructive of the cement that binds the family unit together. If any family unit that has undergone ART is still intact, it is despite ART.
• Despite being morally reprehensible, the Assisted Reproductive Technology Bill is therefore contrary to Article 45(1) of the Constitution of Kenya, which mandates the State to protect the family.

In summary, the Parliament should dismiss the Assisted Reproductive Technology Bill of 2023. It reduces women to objects and children to commodities. Moreover, it occasions the murder of pre-born human persons. For all of these reasons, it is morally reprehensible and contrary to Section 203 of the Penal Code and several provisions of the Constitution of Kenya, 2010. Therefore, we urge that the Assisted Reproductive Technology Bill be dismissed.

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