Why we should reject the Reproductive Healthcare Bill (2019)
Our constitution asserts that life begins at conception. I subscribe to this belief. But even if we doubt this claim, we must be prepared to conduct ourselves as though it is absolutely true if we think it could potentially be true. Where in doubt, we must always err on the side of protecting human life—and the possibility of it. This is also why it is not the responsibility of pro-life advocates to prove that life begins at conception. It is the responsibility of those who support (so-called) abortion to prove beyond the shadow of human doubt, that it doesn’t. That is where the burden of proof must lie. Because we do not want to look back 10 or 100 or 1000 years from now and say we were wrong. We do not want to have to say “never again.” And we will not want to know that hundreds of millions of unborn children paid the price for our error. We cannot gamble with life, least of all children’s lives. The stakes are too high.
We know this. As Africans, black people, or any once-oppressed or systematically eliminated group, we also know, all-too-well, how the arsenal of academia, the implements of science, and the instruments of law can be coopted to build, enforce, and sustain oppressive systems that are underpinned by a presumption of the sub or non-humanity of a group of people. We know the suffering that can ensue when dehumanizing assertions are callously peddled amid fast-moving, emotively-charged political environments. We who were once “less than human”, or who have observed the worst consequences of dehumanization, should be the most alive to how mainstream, popular, dogmatic ideas about how to determine the value of human life can be wrong. We should be the slowest to affirm them, the most painstakingly thoughtful and deliberate about assessing them, and the first to call our society to the highest possible standard in proving their veracity.
So I believe we are fortunate to live in a country where the constitution itself asserts that life begins at conception. But this assertion doesn’t automatically eliminate every difficult conversation or scenario, though it certainly frames how we should think, act, and feel about them. What should happen in cases where an expectant mother’s life is truly endangered by the fact of her pregnancy? These cases may be rare, but where they do exist, they are tragic. Heartbreaking, I can only imagine, for the mothers involved in them.
The Reproductive Healthcare Bill 2019, tabled in Kenya’s Senate, seeks, among other things, to try to answer this question. Under a section covering “termination of pregnancy”, the bill sets out to legislate the circumstances under which it is permissible to pro-actively end the life of an unborn child. Presumably, the goal is to create clarity for medical professionals about how to approach these ethical dilemmas. Following a provocative recent conversation, it is not immediately apparent that this is necessary. As was pointed out to me, doctors are always making decisions about the best course of treatment for patients based on the best available medical evidence and to protect human life. Are all these decisions legislated? Do we need to legislate them in the context of pregnancy? Why? Do doctors feel a need for legal guidance? Doesn’t the penal code already offer them protection if they can show that the actions they pursued, with patient consent, were in keeping with the aim of saving the patients’ life?
These are genuine questions to which I welcome responses. But they do not change how problematic the proposed legislation is. Even if we do need laws that define the parameters in which medics can take action to end the life of an unborn child to protect his/her mother, it is doubtful that this particular bill achieves that purpose and clear that it opens the door for a host of egregious and immoral actions.
Potentially flinging the door wide-open for so-called abortion–and at any stage of embryonic development.
The constitution states that “abortion is not permitted unless, 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.” The proposed Reproductive Healthcare Bill (2019), far from providing specificity that elaborates on the constitution’s meaning, repeats the same vague language, except for one problematic additive clause, addressed in detail below.
Many questions remain unanswered.
First, what is the threshold of risk that warrants a medical professional pro-actively ending an unborn child’s life? Pregnancy isn’t easy. Every pregnancy is inherently risky, and this argument has been used to justify “abortion” on demand. Presumably, the proposed legislation is not seeking to make it possible for every expectant mother to pursue action that ends their unborn child’s life. So what level of risk to mother’s life-and-health warrants this action? 5%? 25%? 50%? 85%?
It gets more complicated. Doctors are always making assessments about risks in medical situations and these assessments differ. Such differences can be consequential to these kinds of decisions. For example, one expectant mother may be willing to endure a 30-40% chance that carrying a pregnancy to term will pose a personal threat. But if this probability rises to 65%, it may change her calculus.
It is also problematic to put the prospect of endangering a mothers’ life in the same category as the prospect of endangering a mother’s health. These ideas aren’t necessarily mutually interchangeable. There are many cases in which a pregnancy may have health impacts, including potential mental health impacts that are not fundamentally life-threatening. True, they may be severe. True, they may have implications for quality-of-life. But we cannot value these losses at an equivalent level to the loss of a child’s life. In such situations, we are no longer pitting the loss of one life (mother) against the loss of another life (child), and therefore the same thinking cannot apply.
Since it is not clear what type of health impacts are severe enough to be covered under this legislation, it is consequently unclear what types of health professionals are endowed with the power to make decisions about ending the life of an unborn child. Can a psychiatrist make this recommendation on the grounds that an expectant mother would suffer mental or emotional hardship if she continues to carry her child? Once again, can we draw an equivalency between this hardship and the value of the child’s life? Surely not!
Unfortunately, the proposed legislation also does not provide a helpful framework for weighing risks to an expectant mother’s health and life during different stages of embryonic development. When ending a child’s life in the womb could, quite literally, involve the piece-by-piece dismemberment of the child and crushing of its vital organs, including its brain, can’t we agree that this is the absolute wrong course of action? Wouldn’t the right course of action be not to end the child’s life but to deliver/extract the child if necessary, albeit prematurely, and do everything possible to sustain that child’s life through medical intervention? Isn’t this the course of action we should promote?
We must grapple with these questions, which cannot be addressed by overly simplistically-worded legislation. With these types of questions unanswered, there is too much room left for interpretation, legal maneuvering, abuses, and the potential for so-called abortion to become effectively and practically legal for all intents and purposes.
Paving the way for discriminatory action
Another problematic aspect of the bill lies in the one new clause it does introduce in defining the circumstances in which it is permissible to seek to end the life of an unborn child. The bill states that one can seek to end the life of an unborn child if “there exists a substantial risk that the fetus would suffer from a severe physical or mental abnormality that is incompatible with life outside the womb.” The wording immediately raises alarm bells. What does “incompatible with life outside the womb” mean? That the child would not stay alive? That they wouldn’t thrive? The vague language creates the potential for egregious abuses that could see the lives of unborn children with disabilities being ended much more frequently on the sole basis that they are thought to suffer “a severe physical or mental abnormality incompatible with life outside the womb”. That is discrimination. It undermines the intrinsic human value of people with disabilities. The obvious question is why we would not wait to see if these unborn children genuinely are “incompatible with life outside the womb”? Why must we intervene to pro-actively end these lives?
Not a high-enough bar for child protection
Because we assert that life begins at conception, and because we place a high value on human life, we must also be rigorous in coming to any decision that, if pursued, will end the life of an innocent, unborn child. This bill falls short of that standard in three respects. First, it does not explicitly require that health professionals share with expectant mothers the risks and implications—present and future, physical and psychological—that may come with pursuing a procedure to end the life of their child on medical grounds. These risks are real. Oddly, in a prior section of the bill that deals with sterilization, the drafters of the legislation do take this obvious and understandable step. They state that:
“A health professional shall not carry out a sterilization procedure on a person unless the health professional has offered non- directive counseling to the person [and] explained the implications of the sterilization procedure to the person” as well as obtained their consent.
But in the bill’s “termination of pregnancy” section, a health professional is only required to “offer non-directive counseling before and after the termination of a pregnancy.” They are not explicitly required to explain the implications of the course of action that the mother is considering. That is wrong. Why the omission/oversight?
Secondly, the bill ultimately leaves decisions in the hands of expectant mothers alone. While mothers certainly are the primary party affected by these decisions, the decisions also involve the life of an unborn child. And there are ways in which mothers may be ill-equipped to make the best decision for both parties. For one, an expectant mother may innocently but wrongly assume that the opinion of one medical professional represents the range of views available within the medical field. It is common in life-or-death situations about our health to seek first, second, and third opinions–and with good reason. Medical opinions differ. We have to find ways to ensure that expectant mothers can access the wide range of medical views available about their particular conditions and the treatment options. After all, it could mean life or death for them and/or their unborn child.
Beyond this, it is important to recognize that expectant mothers may face many pressures that skew their perception and affect their decision-making powers. They’ve just found out about their difficult pregnancy. They may be afraid of societal, parental, or partner views of their pregnancy. There could be financial fears. A range of factors could converge to make them mentally and emotionally ill-suited to process the information being offered by health professionals and unilaterally make a decision that will affect their lives forever and eliminate the lives of the child they are carrying. Yet under the Reproductive Healthcare Bill, their consent is all that is required.
The bill also allows those suffering from mental health challenges to unilaterally make decisions about ending their child’s life–as long as they are able to give consent. If there is reason to think that a perfectly-healthy expectant mother can be compelled, by circumstances and feelings, towards the wrong decision, there is more reason to believe that a mother suffering from any mental health challenge, whether anxiety, depression, or something more severe, may need additional support to make this kind of life-or-death decision. In Germany, all expectant mothers are required to go through mandatory 3-day state-counseling before pursuing a (so-called) abortion. I may disagree with the laws of that land and believe they do not go anywhere near far enough to protect children. But the counseling requirement at least represents some understanding that women may need help thinking through the kind of severe medical situations the Reproductive Healthcare Bill attempts to speak to, and that we shouldn’t take lightly the decisions made in those situations.
To protect each child’s rights, we have to find ways to create a much higher bar of informed consent in situations where the life of an unborn child is being ended because it presents a medical risk to expectant mothers. Around the world, governments understand that this kind of intervention in “personal decisions” can be necessary, which is why we have legal provisions that allow the state to intervene in “private” familial situations, even usurp the authority of parents, if it is to protect the life and wellbeing of a child.
Back to the drawing board
I don’t know how many medical situations exist where pregnancy creates an imminent threat to a mother’s life. In my (limited) readings so far, I’ve found one: ectopic pregnancies. To my understanding, it is impossible in these types of pregnancies for the embryo, which has been implanted somewhere outside the uterus, to be delivered to term. Attempting to do so would jeopardize the mothers’ life. I am open to hearing about other examples like this. And it is important to distinguish between expectant mothers having to pursue medical treatment that may, as an unintended consequence, jeopardize the life of their unborn child and expectant mothers having to bring their unborn child’s life to an end as a form of medical treatment. If the situations that fall in the second category are few enough to be named, why not name them? If it’s not possible to name them, outline the processes that need to be taken to adequately assess and ascertain the risk and need. Ultimately, we need to rethink and revise this legislation, guided by the recognition that it affects the lives and rights of two groups of people: expectant mothers and their children. It is worth remembering that one of those parties cannot speak for themselves and depends on all of us for protection.