Embryo personhood and how it affects disposal procedures in IN vitro fertilization

Abstract

Assisted reproduction technologies are fairly new to Kenya and therefore have not been subjected to the necessary legal scrutiny. This is especially true of in vitro fertilization which describes the process where the female egg is fertilized in a laboratory after being retrieved from the lady and the now fertilized egg is guided into the uterus of either the biological mother or a surrogate who carries it to term. This study aims to bridge the gap in academic and particularly legal commentary on the issue especially as regards the disposition of embryos. The issue of disposal of embryos raises the basic question of how the legal system sees the embryo. The Kenyan Constitution views the embryo as persons and this study analyses the effect of this personhood approach. Any legislation that pertains to in vitro fertilization will therefore have to consider this key issue when considering matters such as disposal, storage and conveyance. However, as the study will demonstrate, this should not translate to excessive measures such as absolute bans since the practice is part of the greater framework on reproductive freedom. The study investigates various jurisdictions to ascertain their approach to in vitro fertilization and finds that it is possible to preserve reproductive rights while remaining true to the Constitution. To achieve this, the study recommends careful legislative drafting and balanced interpretation of rights as has been the case in various jurisdictions the world over. Fidelity to the Constitution is never a reason for unnecessary restrictions on basic rights and this is true in this case as well. It is the recommendation of this study that Parliament should pass laws to adequately legitimize the practice of in vitro fertilization in the country and provide ethical and medical standards on the same. The reproductive rights and freedoms of couples should also be respected in drafting of the same. The study also recommends that more research should be done on the practice in Kenya in order to provide better informed legislative, judicial and executive decision making. Finally, this study has adopted a qualitative approach based on journal articles, case law, books and other internet sources.