Judge’s verdict on birth records may lead to more abortion cases

Many voiceless mothers are likely to gnash their teeth over the celebrated Justice Mumbi Ngugi “landmark judgment” (Daily Nation, May 28), in which “all birth records will have a mandatory inclusion of the father’s name, even if the children are born out of wedlock”.

According to the Daily Nation article, the celebration of this judgment is based on the assumption that “irresponsible fathers” are the ones who will feel the pinch of the new law. I feel the legislation may cause a lot of pain to women, who might not even have the courage to complain about it. It is a judgment about which one may correctly say the devil is in the detail.

The relevant detail here has to do with the Kenyan traditional conceptualisations of fatherhood versus the purely biological conceptualisation assumed in Justice Ngugi’s judgment. The biological conceptualisation of fatherhood does not consider the cultural norms regulating who may possibly be regarded as a given child’s father.

Biologically, fatherhood is only related to sex and conception. As everyone in our rural villages knows, fatherhood by sex is the most trivial conceptualisation of the father-child relationship. Among the Luo of Nyanza, for example, fatherhood is more seriously defined within a relationship of marriage, which must involve people of different clans.

Technically, it is said that in such communities, marriage must be exogamous (involving people of different clans). It would be unimaginable that someone of my clan, the Kaswanga of Rusinga Island, would have a father from the same clan as the mother. Thus, if my mother is a daughter of the Kaswanga people, it is inconceivable that my publicly recognised father could also be a Kaswanga man.

In such a culture, sexual relationships involving members of the same clan are in principle incestuous. Unfortunately, most of the teenage pregnancies occurring in rural villages involve such incestuous relationships. It has not been easy in recent times to prevent young girls and boys from engaging in sex with members of their clans.

Although they are generally stopped from getting married, no one has the supervisory capacity to prevent them from engaging in sex. The situation is made more complex by the fact that some of the traditional clans have become extremely big. Take, for example, a place such as Karachuonyo in Homa Bay County. Although Karachuonyo has become so big that it has within it administrative sub-categories that include locations, divisions, districts and political constituencies, genealogically, the people of this region are treated as members of one clan and, therefore, do not marry fellow Karachuonyo people.

One finds many incestuous sexual relationships in such a large clan, though no marriages are allowed to take place, except if one member of the relationship comes from an immigrant family known to belong to another clan outside Karachuonyo. Thus, among the descendants of Rachuonyo, one may cross district and constituency boundaries before they find someone they are allowed to marry. Who would blame their teenagers for engaging in culturally incestuous sexual activities?

The fact is that such sexual activities among teenagers are known to take place, even in places such as Rusinga Island, where clans are much smaller. When young girls get children from such extramarital relationships, they never declare the biological fathers of their children. Generally, they wait until they find a man from outside their clan to marry them, and become the recognised father of the child they got from their extramarital relationship. As the Swahili saying goes, Aliye na mama ndiye baba (The one who has my mother is my father). This cultural arrangement, odd as it might sound to those who are not used to it, gives such children someone they can publicly declare as their father without experiencing any cultural stigma.

It is the opportunity to have this cultural laundering of one’s parental background that Justice Ngugi’s law will deny the mothers a cultural opportunity to straighten an awkward consequence of their teenage sexual adventures. It is reasonable to expect the mothers in such situations to look for ways of saving themselves and their children from the embarrassment of living with such a stigma, not to mention the politics emanating from the attitude of the women’s husbands, if they ultimately get them, towards children whose birth certificates show names of other men as fathers.

Will the men, if they are willing to accept such children as their own, be required to apply for adoption through a legal process? It is unlikely that many young women in such situations will wait to deal with all the attendant cultural and legal encumbrances.

One obvious solution for such young women will be to seek an abortion once they realise they have a pregnancy arising from such an incestuous relationship. Given the material circumstances of such women in rural villages, the abortions are likely to be carried out in unhealthy life-threatening situations.

Another category of women who may adopt the same solution but in less life-threatening circumstances will be the whole range of particularly middle and upper class women who have children with the kind of men popularly known as "sperm donors" in Nairobi.

These are not the kind of men the cited Daily Nation article refers to as “irresponsible fathers”. They are not liars or hit-and-run personalities. The women who have children with them choose them for that particular purpose and have no intention of marrying them.

Prof Okombo teaches at the University of Nairobi.