Assisted Reproductive Technology (ART) is not a foreign concept in Kenya as it has been a topic of discussion for a while now. It is used to treat infertility in men and women and help those struggling with pregnancy issues. There are various types of treatments under this umbrella; surrogacy, Proimplantation Genetic Testing (PGT), Intracytoplasmic sperm injection (ICSI), Gamete Intrafallopian Transfer (GIFT), Donor Conception, Artificial Insemination (AI), Ovulation Induction (OI) and Invitro fertilization which will be our main focus.

Invitro fertilization (IVF) is a common treatment used to help in reproduction. It is a medical procedure in which a woman’s egg is fertilized externally with a sperm and then put back inside her uterus to grow into a baby. Many a times the embryos get destroyed or do not work and as such, the parties are advised to have more embryos frozen just to increase their chances. This process is elaborately explained by the American Society for Reproductive Medicine in a 2015 article titled; Assisted Reproductive Technology: A guide for patients.

This procedure is widely accepted and practiced globally. However, it has brought with it a fair share of legal and moral issues altogether. One of the biggest debates is whether the frozen embryo is a life or a property. This subject touches on various legal issues as well as moral principles and calls for an objective approach.

First and foremost, Article 26 of the 2010 Constitution of Kenya provides for the right to life which is guaranteed for everyone and is non-derogable. Further, Article 26 (2) provides that life begins at conception. What exactly is conception? It may be defined as the formation of a viable zygote by the union of the male sperm and the female ovum; fertilization. In an effort to understand this subject, I sought for the meaning in the Oxford Advanced learner’s Dictionary which is often at people’s disposal as compared to the medical dictionary. This defines it as; the process of an egg being fertilized inside a woman’s body so that she can get pregnant. (This reveals some underlying bias in this definition but I will put a pin on that for now.)

Additionally, from Section 2 of the Assisted Reproductive Technology Bill 2019, the embryo is a live human egg where fertilization is complete or in process. This therefore means that as long as fertilization has taken place, the fertilized egg takes the form of a life. Whether the fertilization is internal or external is immaterial in this case. In light of these statutory provisions, we can comfortable say that embryos are a form of human life.

The conclusion above begs the questions; can an embryo be a property of the relevant parties? And when is an embryo termed as such?

The first instance is when the parties froze many embryos to increase their chances and after using what they need, what happens to the other embryos? Are they at liberty to destroy them? The embryos belong to them after all don’t they? Are they mandated to keep them even if they do not intend to use them anymore?  The second scenario is where the parties store the embryos to use them for stem cell transplants to cure diseases such as sickle cell anemia or donate them for scientific research on the same. There is so much to explain in both scenarios but for personal preference, let me delve into the second scenario.

Embryonic stem cells are pluripotent in nature and can differentiate into various cell types of the body as long as they are specified to do so. This means that stem cells from embryos can potentially treat blood and immune system genetic diseases. The challenge therefore becomes whether the embryo which is considered a life can equally be termed as a property depending on its use and if so, which one outweighs the other. Many scientists and researchers have had their thoughts on this and opined that if the parties are no longer in need of the remaining embryos, they can be used for medical research hand stem cell transplants. This was highlighted in a case report study titled; Frozen embryos: a life-saving option, by Lowell T., Nanette Elster and Steven T. Nakajima. In their report, the embryos can be used to save lives and if the parties are not in need of them anymore then they should be at liberty to use them for that purpose.

In such an instance, one has to consider the apparent good which is curing a disease or the morality of the action which is taking away the life of a human. This is all dependent on whether you consider the embryo as a life or not. If it is, then the life that could be saved is immaterial and cannot be valued over that of the frozen embryo. However, if it is not, then it is prudent and medically wise to use it to cure the disorder. It seems difficult to determine what outweighs the other and one could argue that we go for that which works for the greater good, but which is it?

My take on this is reliant on the doctrine of double effect by Thomas Aquinas which states that; if doing something morally good has a morally bad effect, then it is ethically ok to do it as long as the bad effect was unintended. However, the doctrine highlights four conditions that are to be met in order for this to be justified;

  • The action itself is morally neutral or morally good?
  • The bad effect is not the means to achieve the goo effect.
  • The motive must be o achieve the good effect only.
  • The good effect is at last equivalent in importance to the bad effect.

We have established that the embryo is life as per Kenyan law and also morally speaking. Therefore, is destroying an embryo to cure a disorder a morally neutral act? Is the bad effect (destroying the embryo) the means to achieve the good effect? Is the good effect equivalent to the bad?

My opinion is simple; the good end does not justify the immoral means. This may be influenced by my personal assessment of the facts and arguments from my research as well as my religious beliefs. Every person, including the embryo, possesses an intrinsic dignity by virtue of being a creation of God (only that it happened through science). It is therefore just as valuable as any other human life.

Where does life start?

Were Kadogo Immaculate a current student at the Advocates Training Program (ATP) at the Kenya School of Law (KSL). 

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