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An Examination of the Effects of New Reproductive Technologies in Kenya

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An Examination of the Effects of New Reproductive Technologies in Kenya 'Averting a Clash between Culture, Law and Science' An Examination of the Effects of New Reproductive Technologies in Kenya. Angela W asunna, Institute of Comparative Law, McGill University, Montreal, November 1 999. A thesis submitted to the Faculty of Graduate Studies and Research in partial fùlfillment of the requirements of the degree of Master of Laws. O Angela Wasunna November 1999. uisitions and Acquisitions et '7Bib mgraphic Services services bibliographiques The author has granted a non- L'auîeur a accordé une licence non exchisive licence allowing the exclusive permettant à la National Library of Canada to Bibiiothèque nationale du Canada de reproduce, loan, disûiiute or seIl reproàuire, prêter, disûibuer ou copies of this thesis in microform, vendre des copies de cette thèse sous paper or electronic formats. la forme de microfiche/nlm, de reproduction sur papier ou sur format électronique. The author retains ownersbip of the L'auteur conserve la propriété du copyright in this thesis. Neither the droit d'auteur qui protège cette thèse. thesis nor substantial extracts fiom it Ni la thèse ni des extraits substantiels may be printed or otherwise de celle-ci ne doivent être imprimés reproduced without the author's ou autrement reproduits sans son permission. autorisation. TABLE OF CONTENTS TABLEOF CASES INTRODUCTION CHAPTERONE SE~NGTHE STAGE:A HISTORYOF INFER~~UTYIN KENYA (1) POLYGYNY (II) LEVIRATEUNIONS (111) SORORATE UNIONS (IV) WOMANTO WOMANMARRIAGES (lo DISCUSSION (II) CONFUCTOF LAws (IV) IN Vmo FER~UZA~N (1) IS WERE ROOM FOR REPRODUC~VETECHNOLOGIES IN KENYA'SLEGAL ORDER? (II) MAIRIMONY,PARENTAGE AND CUSTODY OF CHILDREN A. ~UGITIMACY AND LEGALPARENTAGE C. CUSTODYAND MAINTENANCEOF CHILOREN (111) ~NHER~ANCEAND SUCCESS~ON CHAPTERFOUR (II) EDUCA~ONAND PUBLICDEBATE (VI) TORTS BIBLIOGRAPHY (1) Bas (II) AR~CLES (111) WORLDWlo~ WEB The purpose of this thesis is to investigate the legal and ethical consequences of new reproductive technologies in the context of Kenya's two systems of law, namely, English-based statutory law and native customary law. The papa starts by examining how infertility was deait with by traditionai Kenyan societies before the advent of reproductive technologies and proceeds to look at some of these custorns that have surviveci in contemporary Kenya Currently reproductive technologies are being carrieci out in a legal vacuum in Kenya and in the event of any dispute hvolving the procedures, courts have to refer to existing laws, both customary and statutov. The thesis therefore examines what these technologies are and how Kenya's dual system of law would respond to some of the fdylaw dilemmas raised by the use of these reproductive procedures. The thesis then disasses whether there is enough justification to enact a new, uniform, hybrid Act that takes hto consideration both systems of laws in relation to the challenges brought on the technologies. It is the position of the author that an integrated hybid Act ought to be passed. This Act would act as a broad fhmework for regulation, however the Act would not be the exclusive form of regulation The last part of the thesis therefore makes recommendatioos on other forms of control that ought to be considered by legislators and policy makers in Kenya, to deal with the m.adof legal and ethicai issues precipitated by reproductive technologies. Resumé Le but de cette thèse est d'examiner les conséquences légales desnouvelles technologies de reproduction dans le contexte des deuxsystèmes juridiques du Kenya, notamment le Droit statutaire anglais et le Droit coutumier du pays. Cette étude examine d'une part, la manière que l'infertilité est abordé au Kenya et d'autre part, les effets combinés complexes des lois du Kenya. En ce moment, les technologies de reproduction sont éxécutées dans le contexle d'un vacuum légal au Kenya. En cas de toute dispute impliquant les procédures, les tribunaux doivent se réferer aux lois existantes. La thèse examine ces lois et cherche à découvrir s'il existe une justification pour donner force de loi à un Acte spécifique concernant les technoiogies de reproduction. C'est la position de cet auteur qu'un nouvel Acte devrait être passé mais ne devrait pas demeurer la forme exclusive de régulation. La dernière partie de cette thèse propose des recommendations pour d'autres formes de contrôle qui devraient être considérées par les législateurs et les auteurs des politiques au Kenya. Acknowtedgements 1 wouid like to sincereIy thank my supervisor, Professor Ahson Harvison Young for ail her comments, suggestions and dcisms, aU of which gave my thesis direction. 1 would also like to thank her for being both my mentor and fiiend during my year at McGiil. 1 also wish to express my gratitude to Dean Blaine Baker, Prof Jererny Webber and Dr Derek Jones of Institute of Comparative Law for their continued and tireias support. I am also indebted to Dr. Kathieen Glass, Dr Eugene Bereza and Professor Margaret Somerville of the Biomedical Ethics Unit and McGill Center for Medicine, Law and Ethics for going out of their way to make sure that 1 was able to attend the Bioethics Graduate Program. 1 also wish to acknowledge the most important people in my Mey my parents Dr. Joab Wasunna and Mrs. Rose Wasunna and my siblings Bettyy Tony and Arthur who continue to love me, support me and beiieve in me. Finally, and rnost important, 1 thaok God for seeing me through this eventfûl year. Table of Statutes Adoption Act of Kenya (Chapter 143 of the Laws of Kenya). hcanWills Act (Chapter 169 of the Laws of Kenya). Evidence Act (Chapter 80 ofthe Lam of Kenya). Familv MomAct (UK) 1969. Hurnan Fertilization and Ernbryolq Act (ü.K,)1990. La&hacy Act (Chapter 145, Laws of ffiya). Matrimonial Causes Act (Chapter 152 of the Laws of Kenya). Medical Practitioners and Dentists Act (Chapter 253, Lam of Kenya). The Afncan Christian Mmeand Divorce Act (Chapter 15 1 ofthe Laws of Kenya). The Birth and De& Registration Act, (Chapter 149 ofthe Lam of Kenya). The Human Fertilization and Embryolotzy Act (U.K.) 1990. S. 27. Fereùiafter HFEA] The Law of Succession Act (Chapter 160 ofthe Law of Kenya). The Marriage Act (Chapter 150 of the Laws of Kenya). The Matrimonial Causes Act (Chapter 152 Laws of Kenya). The Pend Code of Kenya (Chapter 63 of the Laws of Kenya). The Perpetwties and Accumulations Act, (Chapter 161 ofthe Laws of Kenya). The Surroaacv Arrangements Act (UK) The Uniform Probate Code ss 2-2008 (1991). The Uniforni Status of Children of Assisted Conception Act (USCACA) 9B, U.LA 16 1 (Supp. 1996) Uniform Paren~eAct of Califomia (Cal. Evid.) Code ss 62 1 (West 1966). vii Table of Cases Anonynous v Anonymous 1991 WL 57753 (N.Y.Sup. Ct. Jan 18,1991). Ayoob v Avmb [1968] EA 72. Barret v Barrett [l96 1) EA 503. Becker v. Schwartz 386 N.E.2d 807,8 1 1- 12 (N.Y. 1978). klsito V Clark 644 N.E. 2d 760 (Ohio Ct. C. P. Div. 1994). Billings v Head 1I 1 N.E. 177, 177 (lnd. 19 16). Bishan Si@ v R IIJganda High Court Criminal Appeal No 13 of 1923: umqmrted]. Davis v Davis 842,2d 588 (Tenn. 1992). Eliud Mamati v Milia Makaya d/o Daruna Wgh Court of Kenya at Kisumu, December 5, 1977 Cid Appeal No. 47 of 1976. Eshugbavi Eleko v OBicer Administering the Govefnment of Ni-ria & Another [ 193 11 AC 662. Evmbg Standard Co. v. Henderson 1987 1.C.R 588. Fazalan Bibi v Tehran Bibi (192 1) 8 EAPLR 200. Gertrude Nelima Nalwa v Francis Nalwa pistrict Magistrate's Court at Nairobi, Septanber 26, 19721 Maintenance Suit No. 7 of 1972. Grace Oheno v Richard Bwala [Kenya HCCC No. 6 of 1973: unreporteci] Haluna Rashidi v Aman Peter [High Court Civil Appeal No. 34 of 19933 (22/3/93). Harbeson v. Parke-Davis 656 P.2d 483,494-97 (Wash. 1983). Hecht v Supior Court 20 Cal. Rptr- 2d 275 (Ct. App. 1993). in Re B.G. 523 P.2d 244 (Cal. 1974). In Re BabvM 537 G2d 1227 (N.J. 1988) In Re Carnialeta B. 579 P.2d 5 14 (Cd.1978). In Re M-e of Buzzanca 61 Cd. App. 4th 1410,72 Cal. Rptr. 26 280. In Re Succession of Brown 522 So. 2d 1382, 1385 (La. Ct. App. 1988). in Re Wildeboer 406 So. 2d 687,691 (Za Ct. App. 198 1). Javcee B. v. Supior Ct. 49 Cal. Rptr- 2d 694,696 (Ct. App. 1996). Johnson v Calvert 19 Cal. 2d 494 (1993) at 371. Jordan C. v. Mary K 179 CalApp.3d 386,224 Cal. Rptr. 530 (1986). Joseph Makanii v Sebenzia Yisicho do Atondola mesident Magiserate Court's Case at Kakamega] 1969 Divorce Case No. 6 of 1967. Karanu v Karanu [ 19751 EA 18. Kibie~nArap Tireito v Jeptams Tapsiam [District Magistrate's Court at Kapsabet, August 19, 198 11 Divorce Cause No. 11 of 1981. Lehr v Robertson 463 US 248 (1983). Lucv Nvokabi Muiaai v Arthur Ochwada pistnct Magistrate's Court at Nairobi, Januq 11, 19691 Divorce Case No. 8 of 1968. Lurnley v. Wamer 1 De G.M. & G. 604 (1852). Marcella Okutoyi v Frederick Nyonp.esa DMCC at Bungoma, May 22, 1978, Civil Case No. 17 of 1978. Marianne MdWier v Arbon Lanyish and Southem Ltd. [1969] EA 292. Mary Khavere Kefà v PmWalusimbi [Court of Appeal at Nairobi, May 16, 19821 Civil Application No. 33 of 1981. Matthews v. Lucas 427 US. 495,509 (1976). McKay v Essex Area Hedth Authority [1982] (1) Q.B. 1 166. Meyer v Nebraska 262 US 390 (1923). Montreal Tramways v Me[1933] 4 D.L.R 337. Nelson v. Knisen 678 S.W.2d 9 18,92425.
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