The Social Stigmatisation of Involuntary Childless Women in Sub-Saharan Africa: The Gender Empowerment and Justice Case for Cheaper Access to Assisted Reproductive Technologies? This thesis is submitted in fulfilment of the requirements for the Degree of Doctor of Philosophy Hephzibah Egede Cardiff Law School September 2015 i DECLARATION This work has not been submitted in substance for any other degree or award at this or any other university or place of learning, nor is being submitted concurrently in candidature for any degree or other award. Signed ………………………………………… (candidate) Date ………………………… STATEMENT 1 This thesis is being submitted in partial fulfilment of the requirements for the degree of …………………………(insert MCh, MD, MPhil, PhD etc, as appropriate) Signed ………………………………………… (candidate) Date ………………………… STATEMENT 2 This thesis is the result of my own independent work/investigation, except where otherwise stated. Other sources are acknowledged by explicit references. The views expressed are my own. Signed ………………………………………… (candidate) Date ………………………… STATEMENT 3 I hereby give consent for my thesis, if accepted, to be available for photocopying and for inter-library loan, and for the title and summary to be made available to outside organisations. Signed ………………………………………… (candidate) Date ………………………… STATEMENT 4: PREVIOUSLY APPROVED BAR ON ACCESS I hereby give consent for my thesis, if accepted, to be available for photocopying and for inter-library loans after expiry of a bar on access previously approved by the Academic Standards & Quality Committee. Signed ………………………………………… (candidate) Date ………………………… ii Summary This thesis considers the social stigmatisation of involuntary childlessness in Sub-Saharan Africa. It explores the socio-legal issues that arise when involuntary childlessness is given a gendered meaning and how this contributes to the social stigmatisation of involuntarily childless women in this developing region. The social stigmatisation of involuntarily childless women in Sub-Saharan Africa has been widely documented in the social science literature. This body of literature on the gendered meaning of infertility and its impact on involuntary childless women has helped to change attitudes and perspectives on involuntary childlessness in the international public health framework. This has led to calls that infertility should no longer be treated as the ‘Cinderella of reproductive health rights in the developing world.’ The World Health Organisation (WHO) recently designated infertility as a global public health concern and has canvassed for wider access to assisted reproductive technologies (ARTs) in the developing world. The case for wider access to ARTs in the developing world has been made on a number of grounds, including those of human rights and social justice. International public health policy makers have also canvassed for wider access of affordable ARTS based on the notion of universal access to reproductive health care. This thesis queries why the law, unlike medicine and other disciplines, has been slow to respond to the gendered social stigmatisation of involuntary childlessness in developing regions of the world such as Sub Saharan Africa. It explores whether the law can facilitate wider access to affordable ARTs based on the notion of universal access to reproductive health care as canvassed by international public health policy makers. It also considers whether law in its regulatory function can be used as an agent of change to combat and curb the social stigmatisation of infertility and involuntary childless women in Sub-Saharan Africa. iii Acknowledgements I owe my gratitude to a number of people who provided me with the help and support necessary to complete my doctoral programme. I would first like to express my gratitude to my first supervisor, Dr. Nicky Priaulx. I would like to thank her for her invaluable guidance and the supervision she provided me throughout my doctoral programme. I would also like to thank Professor Robert Lee who not only acted as my second supervisor but has been my mentor since the inception of my academic career in the United Kingdom. Professor Lee provided me with guidance and support way beyond his designated role as my second supervisor. My grateful thanks also goes to Professor Gillian Douglas who granted me the opportunity from the onset to undertake this programme as a staff PhD candidate. I would also like to gratefully acknowledge the kind support and assistance of Professor Luke Clement who provided constructive criticism and suggestions on the chapters he reviewed as during the monitoring process. He also gave me the opportunity to share my research at a conference organised by the Cardiff Centre for Human Rights. I would also like to express my gratitude to Sharron Alldred, Sarah Kennedy and Helen Calvert for the friendly help and administrative support they provided me over the years. I appreciate the valuable support and encouragement that I have received from my academic colleagues at the Buckingham Law School. I would like to thank Professor John Hatchard who gave me helpful insights on how to balance my work commitments in the University of Buckingham with my commitment of completing my doctoral programme. I would also like to thank Professor Alistair Alcock, Deputy Vice-Chancellor University of Buckingham and Professor Susan Edwards, the Acting Dean of the Law School for their kind support in ensuring that I completed the writing up my thesis. On a personal level, I really do not know how I would have been able to complete this thesis without the unflinching love, patience and encouragement of my darling husband, companion and friend, Dr, Edwin Egede. His calm and assuring presence provided me with the motivation to complete this thesis. I am also very grateful to my parents, Professor and Professor (Mrs) J.P Clark-Bekederemo for their love and support throughout the years. When I felt that I could not complete this thesis, my husband and my parents lovingly motivated and supported me all the way. I am also grateful to my siblings and my in-laws for their expressions of love and care throughout my PhD programme. I also remember with great affection and love, my grandma, Madam Leticia Olusola Ogunbanjo (R.I.P) and look forward with joyous expectation to the awaited arrival of Isaac and Charis. Finally and most especially, I would like to thank the Lord God Almighty, my Maker, Lifetime Guide and Friend. He is the source, inspiration and primary motivation for this thesis. His words in Luke 23:29 below have provided me with the unrelenting determination to complete this thesis to His glory, honour and praise. “For the days are coming when they will say ‘Fortunate indeed are the women who are childless, the wombs that have not borne and the breasts that have never nursed.” To Him alone I dedicate this thesis. iv Table of Contents Title page i. Declaration ii. Summary iii. Acknowledgments iv. Table of contents v. Abbreviations ix Glossary of Terms x. Table of Cases xiii. Table of Legislation xv. List of Figures xix. List of Figures xx. CHAPTER ONE INTRODUCTION AND FRAMEWORK OF THE STUDY 1.0. Introduction 1 1.1. Statement of the Problem 1 1.2. Purpose and Query of the Research 5 1.3. Theoretical Approach and Methodology 6 1.4. General Review of the Literature 11 1.5. Outline and Structure of the Thesis 25 1.6. Motivation for the Thesis 27 CHAPTER TWO PUBLIC ATTITUDES AND THE NEGATIVE FEMINISATION OF INFERTILITY AND INVOLUNTARY CHILDLESSNESS IN SUB-SAHARAN AFRICA 2.1. Introduction 31 2.2. The Construction of Public Attitudes in Sub-Saharan Africa 35 2.3. Shaping Public Attitudes by an African Social Ordering Rule: 42 An Appraisal of the Omoluabi or Ubuntu Principle 2.4. Procreation and Child Bearing: An Existentialist 50 Issue for African Communities 2.5. The Language of Infertility and the Negative 53 Feminisation of Infertility 2.6. Religious Perceptions of Infertility and the 61 Social Stigmatisation of Involuntary Childlessness 2.7 Conclusion 69 v CHAPTER THREE THE AFRICAN FEMINIST RESPONSE TO SOCIAL STIGMATISATION OF INFERTILITY AND INVOLUNTARY CHILDLESSNESS 3.1. Introduction 71 3.2. The Meaning of Feminism from an African Perspective 72 3.2.1 The Indigenousness of African Feminism 74 3.3. Interdisciplinary African Feminist Discourses on 77 Involuntarily Childlessness 3.3.1 The Involuntary Childless Discourse in 78 African Feminist Literary Works 3.3.2 African Feminism and Involuntary 83 Childlessness in Social Science Literature 3.4. African Legal Feminism: Leading the Way in the 90 Development of a Rights Regime for Involuntary Childless Women? 3.5 Conclusion 101 CHAPTER FOUR REPRODUCTIVE IDENTITY: CONSTRUCTIONS OF MOTHERHOOD AND THE STATUS OF INFERTILE WOMEN IN SUB-SAHARAN AFRICA 4.1. Introduction 103 4.2. Background and Context of Case Study Groups 106 4.3 Introduction to the Nigerian Pluralistic Legal 113 System and its Role in Regulating Family Structures 4.4 The Construction of Motherhood under Customary Law 119 4.4.1 Motherhood: The Symbolism of Adult Womanhood 119 in Sub-Saharan Africa 4.4.2 The Superiority of Biological Motherhood over Non- 130 Biological Motherhood 4.5 The Meaning of Motherhood under Islamic (Shariah) Law 141 4.6 Motherhood under Nigerian Statutory law and 150 Received English law 4.7 Conclusion 154 CHAPTER FIVE THE STATUS OF CHILD ADOPTION IN AFRICAN PLURALISTIC LEGAL SYSTEMS: A CASE FOR WIDENING ACCESS TO ARTS IN DEVELOPING COUNTRIES 5.1. Introduction 156 5.2. Western and Non- Western Perspectives of Child 159 Adoption: Matters Arising 5.3 An Appraisal of the Functions of Adoption under 167 Western and Non- Western Legal Systems vi 5.4 The Status of Adoptive Parents under International Law: 171 An Examination of International Human Rights Law And International Conventions on Child Adoption 5.5 The Status of Adoptive Parents under National Law: 178 Case Study Examples of National Legislation on Child Adoption 5.5.1 The Nigerian Child’s Act 2003 179 5.5.2 The South African Legislative Approach to 183 Child Adoption 5.6 Conclusion 187 CHAPTER SIX UNIVERSAL ACCESS TO REPRODUCTIVE HEALTH CARE AND THE CASE FOR WIDENING ACCESS TO AFFORDABLE REPRODUCTIVE TECHNOLOGIES IN SUB-SAHARAN AFRICA 6.1.