Problems with the East African Community Sexual and Reproductive Health Bill

By C-Fam Staff | August 4, 2022

INTRODUCTION

The “East Africa Sexual and Reproductive Health Bill” (henceforth “Reproductive Health Bill”) is an initiative of the Legislative Assembly of the East Africa Community. If adopted by the Legislative Assembly and approved by the heads of state of the countries that make up the East Africa Community, it will supersede any national laws in the region. By the terms of the Treaty for the Establishment of the East Africa Community, after adoption by the Legislative Assembly bills become “Acts of the Community.” These are not required to be ratified by the national parliaments of the member states of the regional organization, but only require the “assent” of the heads of state of the region.

The East Africa Community is a regional treaty-based agreement modelled on the European Union that paves the road for the economic and political integration of seven East African countries: Kenya, Uganda, Tanzania, Rwanda, Burundi, Democratic Republic of the Congo, and South Sudan. The Treaty for the Establishment of the East Africa Community was adopted in 1999 and includes EU-style mechanisms, including a Secretariat, a Legislative Assembly, a Council of Ministers, a Coordinating Committee, the East Africa Court of Justice, and an annual Summit of the heads of state to oversee the whole. The East Africa Community’s budget is substantially supported by foreign assistance from the European Union, the U.S. government, other donor states and private foundations.

This Reproductive Health Bill would be the first legislation of its kind for the East Africa Community, in that it deals exclusively with controversial social issues. The only other kind of acts and directives from the East Africa Community organs until now have been solely to promote free trade across the region and cooperation in security matters. A previous version of the Reproductive Health Bill did not advance in the Legislative Assembly of the East Africa Community in 2017. Objections to the bill included the promotion of sexual autonomy for children, interference in national abortion legislation, and its promotion of gender ideology.

Below is a discussion of the more controversial aspects of the bill for the aid of legislators in East Africa and their staff in discussing the bill.

The Bill Promotes the concept of “sexual rights”, which is not internationally agreed and is understood to promote homosexuality, transgenderism, and sexual autonomy for children. The bill’s opening memorandum begins with “The object of this Bill is to protect and facilitate the attainment of the life-course sexual and reproductive health and rights of all persons in the Community.” The phrase “sexual and reproductive health and rights” (SRHR) has never been accepted by the UN General Assembly despite repeated attempts to introduce it. It contains the ambiguous and controversial formulation “sexual rights,” which was excluded at the International Conference on Population and Development (ICPD), where the terms “sexual and reproductive health” and “reproductive rights” were adopted and carefully defined as excluding a right to abortion.  However, to the extent that a definition of SRHR exists, its proponents rely on the Guttmacher-Lancet Commission on SRHR, which defines it as including abortion as a human right, the right to “freely define” one’s sexuality free from biological sex or any notion of gender as a binary, and comprehensive sexuality education. These things have never been accepted by international consensus, either separately or together under the framing of SRHR.

The Reproductive Health Bill promotes sex education that teaches children that homosexuality is normal and that children can be born in the wrong body. The bill does not define SRHR, nor “sexual rights,” “comprehensive sexuality education,” or “gender.”  As these are politically contentious issues, their meaning should be made explicit for the purposes of this bill. Moreover, the few definitions included in the bill contain key omissions and ambiguities. For example, the bill says that sexuality education must take into account “the rights and needs of different genders.”  This language, in place of the more obvious “both sexes,” is clearly designed to normalize homosexuality and transgenderism and to promote teaching children about, gender as a social construct, that a person can be born in the wrong body, and of gender identity as conferring rights.

The Reproductive Health Bill explicitly promotes a right to abortion.  The bill states that abortion, among other services, should be integrated into universal health coverage and made affordable if not free.  In the list of services to be included, the bill lists “access to permitted, safe and effective abortion services.”  But beyond promoting access to abortion as a health service, it also promotes a right to access abortion regardless of national legislation.

According to the language in the bill, “A woman may terminate a pregnancy if in the opinion of a health professional, there is need for emergency treatment, the pregnancy endangers the mental or physical health or life of the woman, in the case of sexual assault, rape, incest or as may be permitted by the law of a Partner State” (emphasis added).  As a matter of international consensus, laws regarding abortion are to be determined by individual national and local governments without external interference.  By attempting to create a regional standard establishing a right to abortion, even under narrowly defined grounds, this bill attempts to curtail the ability of individual governments to regulate or restrict abortion.  This is further accelerated by the inclusion of SRHR language, which already presupposes unrestricted abortion as a human right.

The Reproductive Health Bill calls for the provision of reproductive health services, including abortion, confidentially to adolescents as young as 10 years of age.  The bill defines “adolescent” as “any person aged between ten and nineteen years.”  It further states that “[t]he information, education or services referred to in subsection (1) shall be confidential, adolescent and youth friendly, and non-discriminatory.”  Because abortion is listed in the bill as one of the services identified in subsection (1), this means that girls as young as ten years of age should be able to access confidential abortions and other services without parental involvement.  The provision that these services must be made affordable or free means that they will be paid for, at least in part, by taxpayers.

The Reproductive Health Bill promotes surrogacy and the ability of homosexuals and transexuals to contract children through surrogacy arrangements.  Despite including a prohibition of commercial surrogacy, the bill promotes “access and availability of information on surrogacy” rather than banning the practice outright. While the language is crafted so as to ensure that assisted reproductive technologies, which is defined to include surrogacy, is only available to persons who are medically unable to bear children or carry a pregnancy to term, there is ambiguity in the use of the gender-neutral “persons” rather than “women,” and the absence of clarifying language specifying that the “medical” nature of the reason cannot include the couple being of the same sex.

The Reproductive Health Bill is a threat to religious freedom. The bill calls for public awareness programs to combat “social, cultural, and religious limitations on realization of sexual and reproductive health.”  Given that the bill envisions abortion and contraception for minors as parts of “sexual and reproductive health,” as well as highly controversial “comprehensive sexuality education” curricula, cultural and religious limitations should not be presumptively opposed, but rather, taken seriously into account when creating policies.

The Reproductive Health Bill undermines parental rights. It frames the role of parents solely in terms of duties and limitations, but not of rights. The bill insists that parents have a duty to “provide age and culturally appropriate sexual and reproductive health information to an adolescent or young person under their care” and are prohibited from consenting to the marriage or betrothal of such children.  However, the bill makes no effort to outline the rights of parents as the primary educators and caregivers of their children, and instead undermines this important role by making provision for confidential sexual and reproductive health education and services for minors as young as ten without parental consent or involvement.

The bill makes no provision for the conscience rights of health care providers or educators. To the extent that the bill includes language about under which circumstances “a woman may terminate a pregnancy,” it must also recognize the right of health care providers to conscientiously object. Health care workers should not be mandated to assist in such highly controversial and objectionable practices. Many see abortion as a violation of their duty of care, especially in light of other provisions in the bill promoting “the right of every woman to safe motherhood including the right to access information and quality services throughout pregnancy, childbirth and post-partum period with the desired outcome of a live and healthy baby” (emphasis added).

The bill is supported by radical abortion advocacy groups. Among the civil society organizations working to promote the bill at the regional and national level are Ipas, which “aim[s] to build sustainable abortion ecosystems that address all factors impacting a person’s ability to access abortion,” the International Planned Parenthood Federation (IPPF), and the African Population and Health Research Center (APHRC), which receives funding from several Western governments to undertake projects promoting “sexual and reproductive health and rights” of adolescents, “safe” abortion, and LGBTQ+ issues—topics chosen specifically because they are politically contentious.

CONCLUSION

This legislation is being promoted as an entirely Eastern African initiative, downplaying the influence of Western governments, donor organizations, and abortion-promoting NGOS in promoting its passage.  This bill contains terms (most obviously, “sexual and reproductive health and rights” and “comprehensive sexuality education”) which have been repeatedly rejected at the UN General Assembly as being too controversial.  In that context, African countries, including members of the East African Community, have opposed their inclusion.  It is therefore incongruous that a coalition of East African nations would voluntarily bind themselves to legislation containing these terms, given the fact that, while the UN General Assembly has not formally defined them, it is because their meanings are generally known to be radical and controversial.  While proponents of the legislation might argue that this language will be interpreted in light of local norms, its adoption will nevertheless be used to undermine the positions East African countries take against the same contentious language in the global context.  We recommend that unless these harmful elements are completely removed, the bill should once again be withdrawn.

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