OPINION: The foetal personhood and the future of rights in Kenya

On a recent judgment that overturned a landmark 2022 High Court ruling, ruling that abortion is not a fundamental right in Kenya, involves an underage Kenyan girl whom I will name Anita not her real name has implications for every Kenyan.

The judgement touches on constitutional rights, access to healthcare, gender equality, and the fundamental question of how the law should balance the interests of a foetus with the rights of the person carrying the pregnancy.

The case arose from litigation concerning access to safe abortion services and the interpretation of constitutional protections relating to reproductive health, making it one of the most significant reproductive rights decisions in Kenya's recent history.

This is not merely a legal debate. It is a conversation about how courts interpret the Constitution and how those interpretations affect the lives of women and girls across the country.

It is also a conversation about whether judicial reasoning remains aligned with Kenya's constitutional values and international human rights obligations.

A question that I would like for all of us to reflect on is; Is a foetus a person in the eyes of the law? Should the foetus be recognized as a legal person with rights equivalent to those of a born human being.

This argument is increasingly being advanced in litigation involving abortion, reproductive health, and constitutional rights. The anti-rights individuals often frame it as a means of protecting life.

However, experience from other jurisdictions shows that once foetal personhood enters legal doctrine, its effects extend far beyond the courtroom and deeply into the lives of women and girls.

Kenya's Constitution provides an important framework for understanding this issue. Article 26 recognizes the right to life and states that life begins at conception.

However, this provision cannot be read in isolation which in turn allows one provision to undermine the others. Some have seized upon this provision to argue that a foetus should enjoy the same legal status and constitutional protections as a born person.

Yet this interpretation overlooks a fundamental principle of constitutional law. No provision of the Constitution exists in isolation.

The Constitution must be read as a whole. Alongside the right to life are guarantees of dignity, equality, privacy, freedom from discrimination, access to healthcare, and bodily autonomy. These rights are not secondary.

 They are central to the constitutional order that Kenyans overwhelmingly endorsed. Any interpretation that elevates foetal interests above the rights of women and girls risks upsetting this balance and weakening the very protections the Constitution was designed to secure.

Across the world, foetal personhood arguments have been used to justify restrictions on reproductive healthcare, deny access to abortion services, and interfere with medical decision making. In some cases, women experiencing pregnancy complications have faced delays in receiving lifesaving care because healthcare providers feared legal consequences.

In others, women have been investigated or criminalized following miscarriages and stillbirths. What begins as a legal argument about protecting life can quickly become a mechanism for controlling the bodies and choices of those who are pregnant.

The implications of this debate become clearer when viewed alongside other high profile cases. The case of Republic v Okoth Obado and Others remains etched in the public memory because of the horrific killing of Sharon Otieno, who was pregnant at the time of her death. Understandably, many Kenyans viewed the tragedy as involving the loss of two lives.

The public outrage reflected not only the brutality of the crime but also the recognition of the profound loss associated with a wanted pregnancy. However, the law must distinguish between recognizing the profound harm caused by the loss of a pregnancy and creating a doctrine of foetal personhood.

The two are not the same. Legal systems can acknowledge the gravity of violence against pregnant persons without granting a foetus the same legal status as a born person. Confusing these concepts may create legal precedents that have unintended consequences for constitutional rights and access to healthcare.

Once legal personhood is extended to a foetus, courts are inevitably forced to decide whose rights prevail when those rights appear to conflict. History shows that it is often the rights of women and girls that are diminished in the process.

The danger is not that courts are discussing prenatal life. Courts have every right and duty to engage with difficult constitutional questions. The danger lies in adopting legal reasoning that creates rights bearing entities without fully considering the consequences for those whose health, dignity, and liberty are directly affected.

Every pregnancy exists within the body of a woman or girl. Any legal framework that ignores this reality is detached from lived experience and likely to produce unjust outcomes.

Human rights standards provide useful guidance. International and regional human rights bodies that Kenya is signed to including the Maputo protocol, have consistently affirmed that reproductive rights are human rights.

They have repeatedly warned against legal interpretations that subordinate the rights of women and girls to foetal interests. Such approaches often result in discrimination, denial of healthcare, and violations of fundamental freedoms. They also disproportionately affect poor women, young people, survivors of sexual violence, and those living in areas with limited access to healthcare.

Furthermore, the Constitution of Kenya was designed to safeguard human dignity, freedom, equality, and social justice. These values must remain at the centre of judicial interpretation. Respect for pregnancy and respect for the rights of pregnant persons are not mutually exclusive.

Courts can recognize the importance of prenatal life without diminishing the constitutional rights of women and girls.

Consequently, policymakers and anti-rights groups must resist efforts to advance legal theories that threaten established rights.

Today I ask a difficult question: if constitutional rights can be limited through interpretations that prioritize a foetus over the person carrying the pregnancy, whose rights will be weakened next?

The future of constitutional rights in Kenya depends on how we answer that question. Silence is not neutrality. Silence creates space for dangerous precedents to take root.

This is the moment for courts, policymakers, healthcare professionals, civil society, and the public to defend a constitutional order that protects dignity, equality, health, and freedom for all. The stakes are too high to wait until those rights have already been eroded.

The writer, Ms. Kathia, is a Human Rights Defender and Communications Specialist