Law in Kenya

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Health; under the WHO, it is defined as a state of complete physical, mental and social well being and not merely the absence of disease or infirmity.

  • Article 26(4) of the Kenyan constitution 2010, Abortion is permitted if, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other  Under the new Kenyan constitution, women have the right to access safe and legal abortion where the pregnancy presents a danger to their mental or physical health.

Access to safe abortion in cases of pregnancy resulting from sexual violence should be and in Kenya has been understood as central to preserving woman’s life and health.  By specifying conditions under which abortion may be legally provided, the constitution addresses the terrible toll caused by unsafe illegal abortion.

A “trained health professional”:  Should be interpreted to include doctors, clinical officers, nurses and midwives  who have the appropriate training.

Emergency treatment is a treatment that must be immediately rendered to the patient to to prevent further disability or death. This separate ground for providing for providing abortion services which is distinct from the life and health exceptions.

  • The clause “or if permitted by any other written law” makes clear that the grounds listed in this provision are the minimum conditions under which abortion should be legal and leaves it open for further legislation and should create additional conditions under which abortion should be permitted.
  • Article 43(1)(a) of the new constitution affirms that every person has a right to the highest attainable standard of health which includes the right to healthcare services including reproductive health
  • Article 43(2) of the new constitution provides that “ A person shall not be denied emergency medical treatment
  • This provision places a strong obligation on the government to ensure that all persons including women seeking post abortion services or emergency abortion services receive necessary medical treatment.
  • The inability to pay for services ; objections to providing certain type of care and stigma related delays in care are impermissible and unconstitutional.

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