One night in September four years ago, pregnant Clementine (not her real name) felt uneasy in the middle of the night. Pain that felt like intense cramps kept bordering her until she woke her husband. As the pain intensified, she started bleeding. The fear of losing her child to miscarriage after two years of trying to get one was mortifying.
That night, Clementine lost her baby. She has never been able to get pregnant again. She has been told by multiple doctors that her chances of getting pregnant get lower as time passes.
Clementine’s pain is shared by many couples in Rwanda. Available data by Rwanda Biomedical Center suggest that 24 percent of patients who consult the genetic department every year struggle with primary infertility caused by chromosomal abnormalities. Women are more affected than men.
These couples’ last resort to have children is adoption, at least until a law that allows medically assisted reproductive methods, such as surrogacy, is passed.
A Bill has been tabled by a group of deputies headed by MP Gamaliel Mbonimpa in the Lower Chamber, which proposes several reforms to the Law on Human Reproductive Health including legalising surrogacy. According to Mbonimpa, it could take at least a year for the Bill to pass due to controversies it has attracted.
Current law allows assistance in production between a man and a woman but does not provide details on the procedure. Lawyers say loopholes in the law make the procedure risky.
Rights to medically assisted reproductive methods came to the fore in 2020 after a case of a desperate couple took it to court after their doctor refused to run the procedure without legal permission.
A primary court judge ruled against their petition that the law provides that assisted reproduction occurs between a man and a woman while the petitioners were seeking reproduction between two families which is out of the law.
The couple had been unable to have a child for over 10 years until a family member agreed to surrogacy. The couple appealed the decision to the intermediate court.
The Presiding Judge of Kicukiro Intermediate Court, Adolphe Udahemuka, granted surrogacy based on the fact that surrogacy is included in medically assisted reproduction by the World Health Organisation and Rwandan law clearly allows such technological means to be used.
While the ruling was good news to the couple, Odette Uwineza, Lecturer of Family Law at the School of Law, University of Rwanda, argues that opting for surrogacy based on the current law is a risky decision that could backfire in the future due to gaps in the law as it doesn't address what happened after the child is born.
“Does the child have the right to know the surrogate mother? These are all the loopholes that could cause conflicts in the future,” Uwineza said.
While the currently proposed law reforms concern Law no 21/2016 of 20/05/2016 on Human Reproductive Health, legalizing medically assisted reproductive methods could mean more law reforms.