Doctors mustn’t prioritise unborn child in medical abortions, court rules

Court Gavel/FILE

The court last Thursday, October 2, declared the policy’s Paragraph 12 of Clause 3.4.1 unconstitutional. It required health professionals to take into account the “highest attainable standard of health of the unborn child” before terminating a pregnancy.

The court said the requirement conflicted with Constitution Article 26(4), which sets out the legal grounds on which pregnancy may be terminated.

Justice Chacha Mwita delivered the judgment on the National Reproductive Health Policy 2022-32.

Petitioners call it a partial victory for those who had challenged the policy’s constitutionality and its impact on women and adolescents.

The petition was brought by the Kenya Legal and Ethical Issues Network (Kelin), Rachael Mwikali, Esther Aoko and the Ambassador for Youth and Reproductive Health Programme (Ayarhep).

Justice Mwita said that, apart from this one unconstitutional clause, most of the policy’s provisions were constitutional and the Ministry of Health had undertaken adequate public participation in developing the document adopted on July 5, 2022.

The petitioners had argued the policy process excluded many of the groups most affected by it, particularly young women and adolescents, and that some provisions discriminated against them. They cited as an example the limitation of cervical cancer screening to women aged 25 to 49, which they said left out younger and older women at risk.

They also opposed restrictions on access to reproductive-health services for women under age 21, arguing that those capable of making informed choices should not be denied services.

Another concern was the clause on abortion that the court struck down. The petitioners maintained that making the health of the unborn child a factor for doctors to consider went beyond what the constitution allows and would make it harder for women to obtain lawful emergency care.

After the ruling, the petitioners welcomed removal of the clause but said the ruling had decision had left other issues unresolved.

Petitioners such as Mwikali pledged to appeal it, especially parts of the policy that block access to contraceptives to teenage girls.

“While we respect the court’s ruling, we remain deeply concerned that it failed to fully acknowledge the unequal and discriminatory nature of public participation in the formulation of the NRH Policy,” she said.

“The process excluded and marginalised key groups most affected, myself included, and therefore cannot be considered meaningful or effective.”

Mwikali is a Pan-African human-rights defender and executive director of the Coalition for Grassroots Human Rights Defenders Kenya.

“As the first petitioner, I am not satisfied with the judgment, particularly on this critical issue of participation, non-discrimination and equality. I intend to appeal to ensure that constitutional rights and inclusive, rights-based policymaking are upheld,” she said.

The court also declined to strike down other sections challenged by the petitioners, including the requirement for HIV testing of pregnant women and their families, a provision they argued could breach privacy and human rights protections.

The judgment reinforces that in emergency cases in which pregnancy termination is necessary, medical practitioners are to follow the conditions provided under Article 26(4) of the Constitution.

It allows abortion if, in the opinion of a trained health professional, there is need for emergency treatment or if the life or health of the mother is in danger, or if permitted by any other written law.

The petitioners said they would study the full judgment once a certified copy is released before deciding on their next legal steps.

INSTANT ANALYSIS

Legal analysts say the ruling clarifies the limits of health policy-making in relation to constitutional rights.

While the NRH Policy 2022-32 largely remains in effect, the High Court’s decision removes a clause emphasising foetal health that critics said could deter doctors from providing constitutionally protected reproductive health services to women in emergencies.