Proposed assisted reproductive technology Bill is discriminatory

A lawyer friend shared the proposed Assisted Reproductive Technology Bill intended to regulate the provision and access to assisted reproductive health services in Uganda. Assisted Reproductive Technologies (ART) refer to a range of fertility treatments aimed at aiding reproduction for persons suffering from infertility or to persons who may wish to have a child through artificial methods.  These arrangements include in-vitro fertilisation (IVF) which involves fertilising an egg in the lab, egg or sperm donation, and surrogacy, where a baby is carried by a non-biological mother.

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There is currently no law in place in Uganda yet the technology has existed for several years and some Ugandans have already accessed these services.  Infertility affects many, male and female. So, the Bill in and of itself is supposed to be a good thing, indicative of government’s commitment to ensure that all persons who wish to utilise these services to have children, which is a fundamental right, can access safe and effective medical services. Unfortunately, the very first line of the Bill dashed my hopes of equity in access to services.

The first line reads: “The object of the Bill is to regulate the use of assisted reproductive technology by married couples!” Yes, a Bill intended to regulate access to reproductive health services. It intends to make it illegal for unmarried persons to benefit from said services. Part 3 of this bill which caters to duties of the facility centre clause 7 reads: “A facility centre shall require proof of marriage by a married couple seeking assisted reproductive technology services before providing the services.” It further states: “A facility centre shall be deemed to have discharged the duty if the couple produces a marriage certificate issued in accordance with the laws of Uganda, or in the absence of a marriage certificate, a statutory declaration.”

It is difficult to imagine why something so clearly discriminatory in nature and unconstitutional was drafted as such. One can only assume that it is rooted in efforts to maintain “the idea” of the traditional family unit which in Uganda as in many other parts of the world is constituted by a father, mother and their children.

The problem with this Bill, and others such as the Marriage Bill, which activists have called out as contentious, is that it ignores the societal reality and instead makes prescriptions whose intent is to control how people live their lives and the choices they are or are not allowed to make. This makes them largely ineffective and also marginalises significant portions of society.

If there is one thing Ugandans are intent on, and this clearly doesn’t exclude our lawmakers, it is to bury our heads in the sand. We have a significant number of cohabiting couples in this country, a majority to be precise. The Uganda Demographic and Health Survey 2021 notes a decline in marriage rates in the country.  Also, the number of single women seeking to have children on their own has also been steadily increasing. The two prior mentioned phenomena are due to a series of factors that cannot be done justice in this piece.

For these reasons however, the reality is that the nature of families has morphed to the point where several Ugandan children are being raised in homes that aren’t the traditional nuclear family. The crux of the matter is that we need laws that are informed by the societal reality if they are going to serve all people equally.

The Constitution provides for the right to equality, freedom from discrimination, the right to life, respect for human dignity, the right to privacy, the right to found a family, the right to provide facilities and opportunities for enhanced welfare of women and the right to information. All the above stated are thwarted in this Bill.

Uganda is also a signatory to various laws and treaties such as the East African Community Sexual and Reproductive Bill 2021 which states that the use of assisted reproductive technologies to ensure that assisted reproductive services provided in the public and private sector are lawful, safe and effective. The same applies to the Universal Declaration of Human Rights and others with provisions which this Bill contravenes in its present form.

Denying a man or woman access to reproductive health services on the basis of their marital status is discriminatory, whatever the motivation. It is reasonable to conclude that the intent is to punish those who don’t toe the line and potentially force people to conduct themselves a specific way.

What makes this particularly cruel, however, is that issues such as infertility, and even singlehood are mostly outside of people’s control. Solutions to both elude many even when pursued with the utmost fervor. Why deny anybody their fundamental right to have children if they are unable to do so naturally?

For women in particular, this Bill touches on a very sensitive socio-cultural aspect which is that motherhood is considered to be the ultimate manifestation of one’s womanhood. This is what makes infertility extremely stigmatising. Many a marriage has been considered rightly dissolved due to a woman’s perceived inability to have children.

It is also difficult not to question how much preparation goes into the drafting of our bills because there are glaring contradictions in this bill when juxtaposed against others that have been signed into law. The Children’s Act, on Guardianship and Adoption grants Ugandans and non-Ugandans above the age of 18 the right to apply for legal guardianship of a child. The application can be made by individuals or couples.

It seems odd that it is considered acceptable for unmarried individuals to adopt children but not to access Assisted Reproductive Technology health services. To my mind the outcomes are largely the same. I have never heard of unmarried women being required to provide proof of marriage before accessing antenatal services. It isn’t illegal for unmarried women in Uganda to have children. Why then is it illegal for them to access these services in particular? It is a splitting of hairs that only serves to further marginalise those who have already been relegated to the position of second-class citizens due to their non-conformance to societal norms and expectations.

It is worth noting that for classed individuals, many of these hindrances are less of an issue because they can circumnavigate them by obtaining the services elsewhere or greasing the right palms to get a few unattainable requirements “disregarded.” Therefore, like is often the case, this bill, if passed in its current form will only deny rights to categories of individuals that are already disadvantaged such as poor, single and older women. Ugandan women already suffer grave injustices in this country and unfortunately, our laws, even the ones clearly well intended, do not effectively serve to protect from systemic sexism.

This bill further normalises discrimination and we need to be deliberate about calling for the revision and in this case, creation of laws that are progressive, not regressive. This bill needs to reflect the realities of Ugandans so that it serves the purpose for which it should be intended; to enable safe, effective and affordable access to Assisted Reproductive Technology health services for all who may wish to have children. My motherhood has been central to my joy and personal fulfillment in life, others are not any less deserving of the same if parenthood is what they want.

The writer, Stella Kanyike, is a feminist and Communication Specialist