Final Project print 7.3.15

THE CATHOLIC UNIVERSITY OF EASTERN AFRICA
FACULTY OF LAW.
DEPARTMENT OF PUBLIC AND PRIVATE LAW.
ANALYSIS ON BELGIUM’S LAW GIVING CHILDREN THE
RIGHT TO CONSENT TO EUTHANASIA AND ITS POSSIBLE
INTRODUCTION TO KENYA.
A Research Dissertation submitted to the School of Law in partial fulfilment of the
Requirements for the Award of the Degree of Bachelor of Law.
BY
STEVE MURIMI
1020903
JULY 2015.

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DECLARATION.
I hereby declare that this is my original work achieved through reading and research findings
done personally, which has not been presented by any other person to any other college or
institute of higher learning for the award of a Degree.
Name: Steve Murimi.
Sign: …………………………………………………………….
Date: …………………………………………………………….
APPROVAL.
This research paper has been supervised and approved by:
Supervisor: Ms. Judy Oloo.
Sign: …………………………………..
Date: …………………………………..
Head of Department: Mr. Ronald Ojuku Momanyi
Sign: …………………………………..
Date: …………………………………..

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ACKNOWLEDGMENTS.
I thank God for the opportunity to conduct this study fully with His blessings every day. Amen.
I owe special gratitude to my Supervisor Ms. Judy Oloo for sharing her knowledge wealth,
expertise and most of all her time throughout the duration of my research work. I dare not forget
to mention the teaching and non-teaching staff of the Faculty of Law in the Private and Public
Law departments as a whole.
I thank the various people and institutions who provided various news articles, journals, books,
research papers among other forms of educational media that I was able to access and use from
the internet and offline resources. The various experiences and opinions well documented and
explained in the media I was able to access was instrumental towards making the writing of this
research a reality and increasing the scope of my ideas.
I would like to thanks my family members for bearing with me during the course of my research
and providing a multitude of resources that enabled the doing of this work. I am especially
grateful for the encouragement given.
Finally, I appreciate and thank my friends and colleagues for their support.

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DEDICATION.
I dedicate this research project to my family whose support I could not do without. They helped
to give me strength and support that culminated in the success I have achieved in finishing this
research paper.
I would also like to dedicate this research project to God Almighty, it is only through faith and
patience that I was able to finish this work, but which effort would not have counted without the
blessings of God.

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ABSTRACT.
The human species is an ever evolving and dynamic society, we exercise our reasoning and
conscience towards the furtherance of the rights and freedoms of every individual in the
community. This is part of what makes us intelligent and superior over all creation. We are able
to adapt and move forward with the aim of achieving the goals we set for ourselves such as the
millennium development goals. It is in this light that this paper s written.
Historically, euthanasia has not always been an accepted practice. It was always frowned upon
by the authorities but done all the same behind closed doors. The case was even more dire when
it came to children’s euthanasia. In the African setting, if a child was born with a defect, or an
abnormality was detected before birth, the child would promptly be aborted or killed after birth.
This may have saved those souls a hard and unfulfilling life but the ones who developed
complications later on were not catered for. This presents the problem that this paper seeks to
address. A child may become the victim of a calamity, accident or disease that may eventually be
terminal. In the interim, the child is forced to live an unsatisfactory and meagre life. The crux of
this paper is that Children too suffer during terminal illness and should not only be given the
right to euthanasia but the right to consent to it. It is not in the best interests of the child to deny
hem this right.

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TABLE OF CONTENTS
DECLARATION.2
APPROVAL.2
ACKNOWLEDGEMENTS.3
DEDICATION.4
ABSTRACT.5
CHAPTER 1.1
TOPIC: ANALYSIS ON BELGIUM’S LAW GIVING CHILDREN THE RIGHT TO
CONSENT TO EUTHANASIA AND ITS POSSIBLE INTRODUCTION TO KENYA.1
1.0 Introduction1
1.1 Background of the problem2
1.2 Statement of the problem4
1.3 Significance of the study4
1.4 Research Aims and Objectives5
1.5 Research questions6
1.6 Research Methodology6
1.7 Literature review7
1.8 Chapter breakdown10
Chapter 2: Legal framework.11
2.0 Introduction:11
2.1 Children’s Right to life:11
2.1.1 Importance of Children’s Right to life.13
2.2 When can a doctor terminate life?16
2.3 What is euthanasia?18

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2.4 Is voluntary euthanasia allowed?19
2.5 What is consent in Medical law?20
2.5.1 Scope of children’s consent to euthanasia.21
2.6 Importance of consent.27
2.7 Conclusion.29
Chapter 3: Comparative analysis of the law in Kenya as against that of Belgium with specific
reference to child euthanasia.32
3.0 Introduction.32
3.1 Definition of a Child.32
3.2 Children’s Right to life in Kenya.33
3.3 Children’s Right to life in Belgium.33
3.4 Law on euthanasia in Kenya.35
3.5 Law on Euthanasia in Belgium.37
3.5.1 History of minor’s euthanasia in Belgium.37
3.5.2 The Belgian current position on euthanasia.39
3.6 Scope of Children’s consent in Kenya.41
3.7 Scope of Children’s consent in Belgium.43
3.8 Conclusion.43
Chapter 4 – Observations, Conclusions and Recommendations.45
4.1 Introduction.45
4.2 Children’s right to life.45
4.3 Children’s Capacity to consent.50
4.4 Observations from the Belgian model.51

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4.5 Solutions to the above mentioned concerns;52
4.6 Conclusion.53
4.7 Recommendations.54

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CHAPTER 1.
TOPIC: ANALYSIS ON BELGIUM’S LAW GIVING CHILDREN THE RIGHT TO CONSENT
TO EUTHANASIA AND ITS POSSIBLE INTRODUCTION TO KENYA.
1.0Introduction
This research is a quest to find out whether Kenya should give terminally ill children the right to
choose death following the Belgian model. Life in the religious sense is a gift from God.1 In fact
the life of man is so important that God created man in His own image.2 No other human right is
of as much value as that of the right to life; it is the foundation of all other rights. In Christianity
for example, the ten-commandments stipulate that; ‘though shall not kill’.3 The constitution; the
supreme law of the land, guarantees one the right to life.4 However, a growing concern arises
with the ever more popular idea of resorting to euthanasia5 for terminally ill patients. Euthanasia
is now becoming so widely used that Belgium saw it fit to table the issue before its parliament.
The crux of the matter was that since it has long been the law that euthanasia is only allowed for
1 The Bible; Genesis chapter 2:7 “…then the Lord God formed the man of dust from the
ground and breathed into his nostrils the breath of life, and man became a living creature.”
2 Genesis 1:27; God created man in His image, in the divine image He created him, male
and female He created them.
3 The Bible; Exodus chapter 20 – The Ten Commandments
4 The Constitution of Kenya (2010); Article 2 - supremacy of the constitution. See also
Justice Mohammed in the case of State v Acheson 1991(0 SA 805) (page 813) Namibian. As
read with Article 26-right to life.
5 Euthanasia-the practice (illegal in most countries) of killing without pain a person who is
suffering from a disease that cannot be cured - Oxford Advanced Learners dictionary 6th Edition.
Also defined as the act or practice of painlessly putting to death persons suffering from incurable
and distressing disease. An easy or agreeable death. – Black’s Law Dictionary at page 654.

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adults in Belgium itself and Netherlands too, they were now debating whether children should be
given the right to consent to euthanasia.6
Belgium is the first country in the world to legalize children’s right to consent to euthanasia;
King Phillip himself on Sunday 2nd March 2014 signed the children’s euthanasia bill into law.
This law empowers minors to consent to end their life subject to certain exceptions and under
strict conditions. This research will look into the feasibility and legality of such a law with a
view to make recommendations as to whether Kenya should follow Belgium’s footsteps or not.
1.1Background ofthe problem
The topic in question has been chosen in an effort to fill the lacuna in the law as relates to
euthanasia. The law specifically outlaws the intentional and voluntary killing of another person.7
By so doing, the law has in effect made euthanasia a crime capable of prosecution under the
charge of murder. However, no specific legislation has been enacted on euthanasia thanks most
likely to the myriad of issues the country faces that are deemed more pertinent, however this
does not dilute the need for a reform in the law as regards euthanasia.
The subject of discussion has been narrowed down to deal with children’s right to consent to
euthanasia considering that pain knows not age. The law places all authority on the parent,
6 The Constitution of Kenya (2010) Article 260 - a child is any person below the age of 18.
See also Wanjiru v Lowe.
7 Penal Code CAP 63- Section 203 defines murder as any person who with malice
aforethought causes death of another person by an unlawful act or omission

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guardian or medic, the child is never given a chance to voice their opinion yet they are the direct
recipient of the consequences of any decision made.
To some extent, children with terminal illness get neglected. Kenyan children in acute and
chronic pain suffer needlessly due to government policies that restrict access to inexpensive pain
medicines, a lack of investments in palliative care services and inadequately trained health
workers.8 Therefore this paper will shine the light on the need for the government to protect the
rights of children with terminal illnesses and encourage their receiving of special attention.
The author’s aim in writing this paper is to give razor sharp focus on the governments need to
give children the capacity to consent to euthanasia. The government should invest in palliative
care and alleviation of symptoms that leave thousands of children suffering from acute and
chronic pain. Where this is not possible, then euthanasia should be a viable option.
The same kind of legislation is necessary in Kenya so as to save children from needless pain and
suffering. The author’s position on the Belgian law is that it is good law and that Kenya and the
world too should implement the same in their legislation. This is because the Belgian model
extracts the child victim of a terminal illness from needlessly suffering years of pain with no
reasonable prospect of living a life worth living. It transcends the age barrier and makes a more
accurate basis of the decision based on the child's understanding of the situation and the
consequences. It also places the child in a position to influence the decision on whether to be
euthanized and helps the parents and or guardians to make a legally correct decision while taking
into account the child’s views.
8 The People, Pg.14 Wed 11 Apr 2012 This paper is aimed at positively influencing the
current state of affairs.

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1.2Statement ofthe problem
Generally speaking, Kenya has one of the most progressive laws in the world.9 However, a
serious problem has arisen with regard to the fact that children are discriminated against when it
comes to their suffering a terminal illness. The situation has been left to fester since law in
Kenya does not allow euthanasia of any kind. A more grave matter is the fact that children in
Kenya lack the capacity to consent to such serious matters. Globally, this problem has led to
thousands of children suffering needlessly especially where there is no reasonable prospect of
recovery. Belgium has removed any age limit on euthanasia and is instead using a better, more
all-inclusive approach to determine candidates for the practice.
The debate concerning children’s right to euthanasia is mostly centred on when children develop
the capacity to understand the consequences of an irreversible act and to consent to it, and
whether the requirements in place are sufficient to protect against misuse. Ordinarily, a minor is
seen as lacking the capacity to consent to certain acts or omissions least of all life.10 This is
therefore contrasted by the fact that the law under review grants the power over the minor’s life
or death in the minor’s hands.
1.3Significance ofthe study
This study provides an arena for the argument for and against the formal introduction of the right
to euthanasia in Kenya with specific reference to children. The recommendations made from this
9 Leave our progressive laws alone, President Uhuru Kenyatta tells referendum agents.
http://www.standardmedia.co.ke/article/2000136366/leave-our-progressive-laws-alone-uhuru-tells-
referendum-agents accessed on Thursday 12/02/2015.
10 The law of contracts places restrictions on the contracts a minor can enter into by stating
that only contracts for necessaries are specifically enforceable. It further places certain rights and
obligations on the parent or guardian for the wellbeing of the minor and where they fail to
provide and care for the minor as required, the state will step in.

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study could be used to recommend new laws or amend the existing laws to introduce into Kenya
favourable policies regarding children’s rights with emphasis on the extent of their involvement
in the decision for them to be euthanized.
This research should contribute to the on-going international debate on whether the Belgian;
newly introduced law regarding children’s right to consent to their euthanasia is good law and
whether it should be localized. This research will also help the possible debate amongst
practitioners, legislators, human rights activists and researchers alike on the subject matter when
the issue arises locally. This research will also add to the existing body of knowledge and
information in Kenya with regard to euthanasia and to help in the development of a body of laws
to be followed in relation to children’s consent to euthanasia in Kenya. It is also aimed at
deriving better arguments in solving the existing challenges with regard to the social and
religious stigma associated with euthanasia.
1.4ResearchAims and Objectives
Statement of objectives
1. General objective
The main broad objective of the study is to examine the law in Belgium empowering children
with the right to consent to their own euthanasia. This will be contrasted against the current laws,
policies and legislation in Kenya, to determine whether they would support the same or if they
should be amended.
2. Specific objectives
The specific objectives are to:
i. Determine the competency of children to make such a high stake’s decision.
ii. Determine the scope of consent to receive treatment vis a vis the scope of consent not to
receive treatment with regard to euthanasia.

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iii. Determine the challenges facing the implementation of laws and policies that recognize
children’s right to consent to euthanasia.
iv. Explore possible practical solutions to the challenges faced.
1.5Researchquestions
1) Are children competent to make a decision as regards their euthanasia?
2) Is a child’s consent enforceable?
3) What are the challenges facing the implementation of laws and policies that may
influence the recognition of children’s right to consent to euthanasia?
4) What are the possible practical solutions to the challenges faced in the implementation of
children’s right to consent to euthanasia?
1.6ResearchMethodology
The study is aimed at making a qualitative enquiry into the available material such as textbooks,
books, journals and encyclopaedias to determine the objectives of the study and to satisfy them.
A comparative study will also be made between Belgium and Kenya in relation to the application
of the law giving children the right to consent to euthanasia so as to establish the similarities and
differences between the two countries and to know whether the same can be adopted in Kenya.

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1.7Literature review
There is heated debate among both legal scholars and human rights activists both within their
own inner circles and outside on the right to euthanasia and even more so for children.11 Where
one side contends that it is inhumane to watch another human suffer, the other party would rather
have the human suffer than take action to relieve the pain.12
Jonathan Glover,13 one of the world’s leading ethical and moral philosophers rejects the view
that all human life is sacred and is absolutely valuable. He proposed the concept of a “life worth
living” and proposed that killing is only morally wrong when it destroys a “life worth living.”
Glover further states that it is wrong to help a suicide who asks for help to die because their
request is likely to be a cry for help or another sort. However, if someone who cannot kill
themselves asks for help to die then their request is different. He goes ahead to suggest that under
certain conditions (the decision is serious and properly thought out not a temporary emotional
state; the decision is a reasonable one – your life appears to an outward observer as not worth
living; the state is permanent), it is right to help. Failure to do so is a ‘serious denial of the
person’s autonomy over the matter of his own life and death.’ He also claims that it is hard to see
a moral distinction between one bringing about death and one simply standing aside while the
patient takes their own life. If it makes sense for the patient to die, then there is no moral
significance as to who causes that death. Glover even gives the illustration of leaving a pill for
11 Belgium Becomes First Country to allow Euthanasia for children by Alexander Smith-
http://www.nbcnews.com/news/europe/belgium-becomes-first-country-allow-euthanasia-dying-
children-n29441 accessed on Wednesday 8th Oct 2014.
12 Ibid.
13 Glover Jonathan. “Causing death and saving lives” [Penguin 1982],p 53

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someone to take as opposed to giving them the pill. The difference is a single movement but the
mens rea seems to be the same, they are equal in intent and outcome.14
James Rachels15, a philosopher and medical ethicist who wrote some of the most influential
works on euthanasia, on the difference between active and inactive euthanasia suggests that there
is no moral difference since the decision not to take action to save a patient’s life is in fact an
action. He suggests that once one makes the moral choice to euthanize it might be more morally
sound to be active in bringing about a swift end.
Dr. Neil Campbell paper16, an American scientist known best for his textbook ‘Biology’, in his
book suggests that doctors will hold or withdraw treatment and bring about death for infants
suffering from serious disability in the belief that it is in the patient’s best interest to do so. The
distinction here is “best interest.”
R. M. Hare17, an English moral philosopher, in his book; “The Abnormal Child “ broadens the
best interest test and asks that all parties interests be taken into account when deciding if one
should treat or not treat the seriously disabled child. In particular the “next child in the Queue” as
being the decider between killing and not killing.
14 Jonathan Glover, Causing Death and Saving Lives chapters 14 and 15.
15 James Rachels, ‘Active and passive Euthanasia’. The New England Journal of Medicine,
Vol. 292, pp 78-80, 1975
16 Campbell, Neil “When Care Cannot Cure: Medical problems in seriously ill Babies” pp
202-315, 2006 Kuhse, H., Singer, P., Bioethics, An Anthology, Blackwell Publishing, 2nd ed.
17 Hare, R.M “The Abnormal Child: Moral Dilemmas of Doctors and Parents” pp 329-334,
2006 Kuhse, H. Singer, P., Bioethics, An Anthology, Blackwell Publishing, 2nd ed.

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Callahan D18, an American philosopher in the field of biomedical ethics and a senior research
scholar argues that it is not “medicine’s place to determine when lives are not worth living or
when the burden of life is too great to be borne” Medicine should try to relieve human suffering,
but only that suffering which is brought on by illness and dying as biological phenomena not that
suffering which comes from anguish or despair at the human condition.”
Peter Admiral19, who himself has carried out almost 100 mercy killings and is the leader of the
successful movement to legalize direct killings in the Netherlands, disagrees and states that
doctors have a duty to ensure the wellbeing of patients and respect their autonomy. He argues
that the provision of voluntary euthanasia is a doctor’s role.
Some doctors support the Belgian law because they feel it gives children a voice in the right to
be euthanized especially in countries where euthanasia is practised. They argue that the criteria
that must be met before a child can procure his own euthanasia as given by the Belgian laws are
wholesome and can ensure a high degree of accountability. It is not simply for the child to
choose euthanasia, but the parent and doctors too must be involved in the final decision20. Very
few children will actually meet the criteria required to qualify for it but the few who do will be
guaranteed a just end to their suffering.
18 Callahan Daniel “When Self-Determination Runs Amok”, pp 381-386, 2006, Kuhse, H.,
Singer, P., Bioethics, An Anthology, Blackwell Publishing, 2nd ed.
19 Admiral, Peter “Listening and Helping to Die: the Dutch Way”, pp 391-399, 2006
Kuhse, H., Singer, P., Bioethics, An Anthology, Blackwell Publishing, 2nd ed.
20 “I must live!” Andrea- 15 years, Wilm’s tumour, Palliative care for Infants, Children and
Young people, The Facts; page 23.

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What most authors do agree on is the fact that should such a law be applied, it should be subject
to the highest evidential burden and under similar scrutiny. It is thought to be mercy killing when
an adult is euthanized however, the same pain and suffering that an adult can undergo, a child
can too and therefore they should not be discriminated against.
The researcher recommends that a delicate balance must be forged. It is the researchers view that
in line with the scholars and authors who postulate that human life is sacred and inviolable, that
no human has the right to life over himself or any other person.21
1.8Chapter breakdown
Chapter one of the research paper introduces the area of study, it discusses the background of the
problem, the problem statement, significance of the study, research questions, the research aims
and objectives, research methodology, literature review and the breakdown of chapters.
Chapter 2 of the research paper looks into the legal framework. This chapter will describe the
national and international legal and institutional framework that allows or discourages euthanasia
with specific reference to children’s consent and children’s rights in Kenya.
Chapter 3 of the research paper is aimed at making a Comparative analysis. This chapter will
establish similarities and differences in approaches to dealing with the right to consent to
euthanasia for children in Kenya and in Belgium.
21 Pope Francis: Human life sacred and inviolable by Vatican Radio-
http://www.news.va/en/news/pope-francis-human-life-sacred-and-inviolable accessed on
Monday 02-02-15.

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Chapter 4 of the research paper will be used for the purpose of making conclusions and
recommendations based on the previous chapters. Conclusions on the issues relating to whether
children should be given the right to consent to euthanasia in Kenya will be drawn up and
appropriate suggestions and recommendations to remedy the situation made.
Chapter 2:Legalframework.
2.0Introduction:
This chapter looks at the legal framework that supports or blocks the application of the Belgian
law with regard to children euthanasia in Kenya. The Kenyan position will further be highlighted
against the back drop of regional instruments.
2.1Children’s Right to life:
To start off, it is important to state exactly when life begins. In Kenya, the life of a person begins
at conception.22 A child becomes a person capable of being killed when it has completely
proceeded in a living state from the body of its mother, whether it has breathed or not, and
whether it has an independent circulation or not, and whether the navel string is severed or not.23
A child put succinctly is an individual who has not attained the age of eighteen years.24
22 The Constitution of Kenya 2010 Article 26 (2) - Right to life. As read with Article 5 of
the African Charter on Children’s rights – Every child has an inherent right to life, Convention
on the rights of the child Article 6- Survival and development-Children have the right to live.
23 The Penal Code CAP 63 Laws of Kenya-Section 214-When Child deemed to be a
person.
24 The Constitution of Kenya 2010; Article 260 – Interpretation of child.

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Following promptly is the definition of the term ‘right to life.’ The Right to life is a legal term
used in International and regional human rights instruments.25 The Right to life means that
nobody – including the government – can try to end your life except as per the constitution.26 It
also means that you have the right to be protected if your life is at risk.27 The right to life
imposes an obligation on the state to protect the right to life, prohibits the state from intentionally
killing and requires an effective and proper investigation into all deaths caused by the state.28
The right to life encompasses the fact that human beings are inviolable. Every human
being shall be entitled to respect for his life and the integrity of his person. No one may
arbitrarily be deprived of this right.29
Both local and International instruments dictate that every person has the right to life.30 These
instruments also stipulate that the right to life shall be protected by the law.31 In Kenya, a person
25 The Constitution of Kenya 2010 Article 26(1)-Right to life; African Charter on
Children’s Articles – Article 5(1), Convention on the rights of the child- Article 6(1).
26 The Constitution of Kenya 2010 Article 26 (3) - Right to life.
27 Equality and human rights commission, Right to life, The human rights act requires the
government to protect life, http://www.equalityhumanrights.com/your-rights/human-rights/what-
are-human-rights%3F/the-human-rights-act/right-to-life accessed on Tue 25th Mar 2015.
28 Liberty, Article 2 Right to life: https://www.liberty-human-rights.org.uk/human-
rights/what-are-human-rights/human-rights-act/article-2-right-life accessed on Wednesday
25/03/15.
29 The African Charter on Human and People’s Rights - Article 4, Right to life. As read
with the International Covenant on Civil and Political Rights – Article 6 (1).
30 The Constitution of Kenya 2010 Article 26 (1)- Right to life, African Charter on
Children’s articles- Article 5 (1), Convention on Rights of the child-Article 6(1).

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shall not be deprived of life intentionally, except to the extent authorised by the constitution or
other written law.32 With regard to children, the state is further mandated to ensure to the
maximum extent possible, the survival and development of the child.33 In Africa, a child's life is
resolutely protected; the African Charter states that all state parties to the Charter shall ensure, to
the maximum extent possible, the survival, protection and development of the child.34 It is also
stated that the death sentence shall not be pronounced for crimes committed by children.35
2.1.1 Importance of Children’s Right to life.
Having stated the importance of the right to life, the researcher will now delve into the
importance of the child. Kenya being an African country, the child is subject to various duties
and obligations that are unlike any other part of the world. Africa’s regional instrument gives the
child various rights and responsibilities towards his family and society, the state and other legally
recognized communities and the international community.36 This necessitates the increased need
to protect the child not kill them because of the purpose they serve to the community as a whole.
Among the laws Kenya is bound by, it is provided that every child shall have the duty:
i. To work for the cohesion of the family and to assist and respect his family and
elders…
31 The Children’s Act CAP 141 Article 4 (1) Every child shall have an inherent right to life
and it shall be the responsibility of the government and the family to ensure the survival and
development of the child.
32 The Constitution of Kenya 2010 Article 26 (2) - Right to life.
33 Convention on Rights of the child-Article 6(2) as read with Article 53 (1)(d) of The
Constitution of Kenya 2010.
34 The African Charter on Children's rights Article 5(2) - Survival and development.
35 The African Charter on Children’s rights Article 5(3) - Survival and development
36 The African Charter on Children Articles, Article 31: Responsibilities of the child.

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ii. To serve his national community.
iii. To preserve and strengthen social and national solidarity.
iv. To preserve and strengthen African cultural values.
v. To preserve and strengthen the independence and integrity of his country.
vi. To contribute at all times to the promotion and achievement of African Unity.37
Kenya’s laws further state that all judicial and administrative institutions and all persons acting
in the name of public or private social welfare institutions, where they are exercising any powers
conferred by the children’s act shall treat the interests of the child as the first and paramount
consideration to the extent that this is consistent with a course of action calculated to safeguard
and promote the rights of the child while simultaneously conserving and promoting the welfare
of the child.38
Local law proceeds to recognize that a child’s capacity is constantly evolving and therefore
parental responsibility39 should be exercised in relation to it. Therefore, considering that a child's
capacity is constantly evolving, shouldn’t they be given a voice when it comes to their own
37 Ibid. As read with Section 21 of the Children’s Act - Duties and responsibilities of the
child.
38 The Children’s Act CAP 141 Article 3 – Realization of the rights of the child.
39 Parental responsibility means someone with the rights and responsibilities that parents
have in law for their child; including the right to consent to medical treatment for them up to the
age of 18 in England, Wales, Northern Ireland and Kenya too, while in Scotland its 16 - General
Medical Council 0-18 years: guidance for all doctors pg35. See also Children's act Section 23(1)
- Definition of parental responsibility.
Note that in Kenya, parental responsibility in respect of a child may be extended by the
court beyond the child’s eighteenth birthday. See Children’s Act Section 28(1)-Extension of
responsibility beyond eighteenth birthday, as read with Section 107 (1) Children’s Act.

15
euthanasia? Of which should then be exercised in conformity with the parents exercising their
parental responsibility and all the other constraints set by Belgium’s child euthanasia law.40
The law states that in all judicial or administrative proceedings affecting a child who is capable
of communicating his/her own views, an opportunity shall be provided for the views of the child
to be heard either directly or through an impartial representative as a party to the proceedings,
and those views shall be taken into consideration by the relevant authority in accordance with the
provisions of appropriate law.41 This supports the fact that children do have a voice or opinion
and due regard should be given to their wishes.
African regional instruments state that parties to the Charter are required to undertake to pursue
the full implementation of the right to health and health care services and in particular shall take
measures to reduce infant and child mortality rate.42 There may be a lacuna created by this
statute. One could argue that children too have the right to health and healthcare services and
therefore the right to physician assisted euthanasia is part of the healthcare that can be sought.
However, the same statute dictates that the provision of health and healthcare services shall be
applied to reduce the child mortality rate. It is therefore the researchers understanding that when
providing health and health care services, they do not include the right to have a child's life
40 The Constitution of Kenya Article 53 1(e) - parental responsibility; A child is entitled to
parental care in all circumstances whether the parents are separated or not.
41 The African Charter on Children’s rights Article 4(2)-Best interests of the child as read
with Article 53 (2) of the constitution of Kenya (2010).
42 The African Charter on Children’s rights Article 14(2) (a) - Health and healthcare
services. As read with Section 9 of the Children’s Act CAP 141 on the Right to healthcare.

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terminated. The promotion and preservation of life supersedes any need to provide services
whose end is the termination of life.
This contention is further supported by the fact that suffering is an experience of all. It is
best to live as long as possible and make the most of what you’ve got. Anyone who is
alive in the world of the living has some hope; a live dog is better off than a dead lion.
The living know they are going to die, but the dead know nothing. They have no further
reward; they are completely forgotten.43
2.2When cana doctor terminate life?
Firstly, it is important to state that any person who of malice aforethought44 causes the death of
another person by an unlawful act or omission is guilty of murder.45 For the purposes of this
paper, a person is deemed to have caused death if by any act or omission he hastened the death of
a person suffering under any disease or injury which apart from such act or omission would have
caused death or if his act or omission would not have caused death unless it had been
accompanied by an act or omission of the person killed or other persons.46 Also any person who
procures another to kill himself; or aids another in killing himself is guilty of a felony and is
43 The Bible, King James Version, Ecclesiastes chapter 9.
44 The Penal Code CAP 63 Laws of Kenya- Section 206 (a) and (b), Malice aforethought
has been defined as being established by evidence proving an intention to cause the death of or to
do grievous harm to any person, whether that person is the person actually killed or not, or
knowledge that the act or omission causing death will probably cause the death of or grievous
harm to some person, whether that person is the person actually killed or not, although such
knowledge is accompanied by indifference whether death or grievous bodily harm is caused or
not, or by a wish that it may be caused.
45 The Penal Code CAP 63 Laws of Kenya-Section 203-Murder.
46 The Penal Code CAP 63 Laws of Kenya-Section 213 – Causing Death Defined.

17
liable to imprisonment for life.47 Physician assisted euthanasia is therefore an illegality in Kenya
since the doctor is overstepping his authority by aiding a child to kill themselves be it through a
positive act or omission.
Alternatively one may ask whether voluntary euthanasia, while being a voluntary procurement or
aiding another to kill himself, can it lead the doctor to being held culpable of committing a
felony? The answer to the preceding question is that despite the doctor acting in a sympathetic
capacity and not fuelled by selfish or malevolent interests, the doctor’s involvement in any form
of euthanasia, as per the current laws is an offence and the medical personnel will indeed be held
liable for committing a felony. The exception however is that a person is not criminally
responsible for performing in good faith and with reasonable care and skill a surgical operation
upon any person for his benefit… if the performance of the operation is reasonable, having
regard to the patients state at the time and to all the circumstances of the case.48 Therefore,
euthanasia is a crime and such an act will be met by punishment using the full force of the law.
The doctor or any medical personnel involved will be held liable unless it can be proven that the
surgical operation in question was not for purposes of euthanasia and that a reasonable standard
of care was exercised. This is in furtherance of the right to promote and protect life not
extinguish it.
47 The Penal Code CAP 63 Laws of Kenya-Section 225 (a) and (c) – Aiding suicide.
48 The Penal Code CAP 63 Laws of Kenya-Section 240 - Surgical operation.

18
2.3What is euthanasia?
The word ‘euthanasia’ comes from the Greek word—‘eu’ meaning ‘goodly or well’ + ‘thanatos’
meaning ‘death.’ Euthanasia is therefore literally means ‘good death.’49 Euthanasia is the
practice of intentionally ending a life in order to relieve pain and suffering.50 Euthanasia is
chosen rather than the result of an accident.51
The main types of euthanasia include:
i. Voluntary euthanasia where euthanasia is carried out at the request of the person who
is going to die.52
ii. Involuntary euthanasia where someone who is capable of deciding is killed to save
them from suffering either without being asked or against their own wishes.53
iii. Non-voluntary euthanasia is when someone is killed who cannot express their own
wishes, for example if they are in a persistent vegetative state.54
49 MedicineNet.com-Definition of Active euthanasia -
http://www.medicinenet.com/script/main/art.asp?articlekey=7422 - accessed on Thursday 26-03-
2015
50 MedicineNet.com-Definition of euthanasia -
http://www.medicinenet.com/script/main/art.asp?articlekey=7365 - accessed on Thursday 26-03-
2015. See also Compassion in Dying v Washington State No. 94-35534 United States Court of
Appeals, Ninth Circuit; where euthanasia was defined as the act or practice of painlessly putting
to death persons suffering from incurable and distressing disease, as an act of mercy, but not at
the persons request.
51 Euthanasia - http://study.abingdon.org.uk/rs/euthanasia.htm - accessed on Thursday 26-
03-15.
52 Euthanasia - http://study.abingdon.org.uk/rs/euthanasia.htm - accessed on Thursday 26-
03-15.
53 Euthanasia - http://study.abingdon.org.uk/rs/euthanasia.htm accessed on Thursday 26-
03-15.

19
This paper will deal with voluntary active euthanasia via ‘physician assisted suicide.’
2.4Is voluntary euthanasia allowed?
The taking of another person’s life in Kenya is classified as either being murder55 or
manslaughter56; both of which are felonies and attract punishment.57 This classification is mainly
based on the accused’s intent. Voluntary euthanasia and physician assisted euthanasia both fall
under the ambit of causing the death of another intentionally or otherwise and is therefore a
crime. Euthanasia despite any good intentions is therefore illegal in Kenya no matter how dire
the situation may be.58
Justice Goff reiterated the position at common law when he stated that ‘To cross the Rubicon
which runs between on the one hand the care of the living patient and on the other hand
euthanasia – actively causing his death to avoid or to end his suffering. Euthanasia is not lawful
at common law.’59
54 Ibid.
55 The Penal Code CAP 63 Section 203-Murder- Murder is defined as the act of causing the
death of another person with malice aforethought by an unlawful act or omission.
56 The Penal Code CAP 63 Section 202(1)-Manslaughter- Manslaughter has been defined
as where any person who by an unlawful act or omission causes the death of another person.
57 The Penal Code CAP 63 Laws of Kenya-Section 202 as read with Section 203.
58 R v Stephen Kiprotich Letting and 3 Others [2009]eKLR; Judge D.K Maraga stated that
“ a person who commits euthanasia out of motives of mercy or compassion to alleviate suffering
may, nevertheless, be guilty of murder, just as a person who kills in the ‘heat of the moment’
without prior planning may also be guilty of murder.”
59 Airedale N.H.S Trust v Bland [1993] A.C 789.

20
No person is protected from the searing pain; anguish and torment caused by being the victim of
a terminal illness or fruitless life nor the sorrow caused on the loved ones who in the current laws
are powerless to intervene.
Children comprise a special portion of the society’ children who are terminally ill deserve tender
love and care towards the end of life; they are children in need of care and protection.60 Children
should not suffer needlessly, perhaps it is better for victims to die on their own terms especially
where not doing so will cause them stress, pain and suffering yet the end result would be the
same. This way, the child will be saved from unnecessary pain and the family will be saved from
having to see their loved one degenerate and die a brutal death. Their last memories should not
be of the unrelenting grip that pain has on their beloved but of happier moments when the patient
is still capable of exhibiting happy emotions.
Euthanasia is currently not allowed in Kenya.61 With reference to children, the topic has not yet
been legislated upon but the researcher postulates that Kenya being a conservative country; it is
thought not to be in the best interests of the child. For the purposes of this paper, supposing that
children’s euthanasia was to be allowed, what would be the scope of children’s consent?
2.5What is consent in Medical law?
Consent is defined as the agreement, approval, or permission as to some act or purpose,
especially given voluntarily by a competent person; legally effective assent.62
60 Children’s act CAP 141 Section 119 (1).
61 Ibid. 37.
62 Black’s Law dictionary, Standard Ninth Edition- Definition of Consent at page 374.

21
In order for consent; express or implied to be valid, the patient must know exactly what he or
she is consenting to i.e. it must be real. It includes knowing the nature and purpose of the
proposed treatment otherwise a patient may claim for trespass to person. The test for legal
capacity to consent is as follows:
i. Could the patient comprehend and retain the necessary information?
ii. Did the patient believe this information?
iii. Had the patient weighed the information by balancing the risks against the benefits?
There are two types of consent; express or implied. Consent need not be expressly stated or
written to be valid in law. Implied consent could be an act, or the lack of it, that shows that
one does not object to treatment beginning or in some cases continuing.63
2.5.1 Scope of children’s consent to euthanasia.
A child's best interests are of paramount importance in every matter concerning the child.64 It is
for this reason that children currently are neither in charge of their person nor their belongings,
this power is either vested in the parents or in their guardians. Where both parents are still
married, they share responsibility for bringing up their children and should always consider what
is best for each child.65
The law does not recognize a child’s capacity to make decisions nor be responsible for that
matter. However recent developments in the law have seen the advent of children being able to
63 CLS 417 Medical law and Ethics notes by Dr. Agbo J. Madaki, PhD, LLM, LLB, BL; a
lecturer at Catholic University of Eastern Africa.
64 The Constitution of Kenya (2010) Article 53 (2) Children’s rights, The African Charter
on Children’s rights Article 4(1): Best interests of the child, A.O.G vs S.A.J and another [2011],
Boyani vs Mwaghoti [2002]
65 UNITED NATIONS CHARTER ON THE RIGHTS OF THE CHILD Article 18 –
parental responsibility of both parents.

22
consent to contracts for necessaries and be held accountable, the law is now progressively
realizing that children, once equipped with all the necessary information and guidance are
sometimes able to eloquently express their wishes and desires to a standard to which they can be
held accountable. In tandem with securing the rights of a child, in any matter of procedure
affecting a child, the child shall be accorded an opportunity to express his opinion, and that
opinion shall be taken into account as may be appropriate taking into account the child’s age and
the degree of maturity.66
The Gillick principle which is the current law on a child's competency states that a child is
Gillick competent if they have a sufficient understanding and intelligence to enable him or her to
understand fully what is proposed.67 The principle does not confer an absolute right on a child to
refuse treatment, the presumption can be rebutted if a child although 16 or 17 suffers from
mental disability which affects their understanding and capacity to give a valid consent to
surgical, medical or dental decisions.
“Whether or not a child is capable of giving the necessary consent will depend on the child's
maturity and understanding and the nature of the consent required. The child must be capable of
making a reasonable assessment of the advantages and disadvantages of the treatment proposed,
so the consent, if given, can be properly and fairly described as true consent.”68
66 Children’s Act CAP 141 Section 4 (3) – Survival and best interests of the child. As read
with Article 12(1) of the Convention on the rights of the child.
67 Gillick v West Norfolk & Wisebech Area Health Authority [1986] AC 112.
68 Mr Justice Woolf in Gillick v West Norfolk & Wisebech Area Health Authority [1986]
AC 112.

23
In the Gillick case,69 Lord Templeman identified causes of necessity that were exceptional and
not requiring the child’s consent. The cases of necessity include inclined surrogacy,
abandonment and child abuse where one can proceed without consent. Notably, euthanasia is not
included in the list. The Gillick case was specifically about contraceptive advice and treatment,
but the case of Axon, makes clear that the principles apply to decisions about treatment and care
for sexually transmitted infections and abortion, too.70 The take away is that children in certain
exceptional circumstances have the capacity to give valid consent.
If patients are not able to make decisions for themselves, the doctor must work with those close
to the patient and with other members of the healthcare team. The doctor must take into account
any views or preferences expressed by the patient and must follow the law on decision-making
when a patient lacks capacity.71 A doctor must not assume that a patient lacks capacity to make a
decision solely because of their age, disability, appearance, behaviour, medical condition
(including mental illness), their beliefs, their apparent inability to communicate, or the fact that
they make a decision that you disagree with.72
69 Gillick v West Norfolk & Wisebech Area Health Authority [1986] AC 112.
70 See R (on the application of Axon) v Secretary of State for Health [2006] EWHC 37
(Admin)
71 General Medical Council- Consent: patients and doctors making decisions together part
1 rule 6 pg. 8
72 General Medical Council- Consent: patients and doctors making decisions together at pg.
27

24
Children and young people are individuals with rights that should be respected. This means
listening to them and considering what they have to say about things that affect them. It also
means respecting their decisions and confidentiality.73 One should therefore take children and
young people’s views seriously and not dismiss or appear to dismiss their concerns or
contributions.74 Children have the right to say what they think should happen when adults are
making decisions that affect them and to have their opinions taken into account.75
Children and young people usually want or need to know about their illnesses and what is likely
to happen to them in the future. It is expressly stated that a doctor should provide information
that is easy to understand and appropriate to their age and maturity.76 A doctor should take care
not to overburden children and young people or their parents, but give them information at an
appropriate time and space, and check their understanding of key points.77
Doctors have the same duty of confidentiality to children and young people as they do to adults
but there is a general presumption that parents are usually the best judges of their children’s best
interests and should make the important decisions up until children are able to make their own
decisions.78 This being the case, a doctor should nevertheless involve children and young people
73 General Medical Council 0-18 year’s guidance for all doctors- Rule 7
74 General Medical Council 0-18 years: guidance for all doctors rule 16 as read with rule 3.
75 United Nations Charter on the Rights of the Child Article 12.
76 General Medical Council 0-18 years: guidance for all doctors rule 17

25
as much as possible in decisions about their care, even when they are not able to make decisions
on their own.79
The capacity to consent depends more on young people’s ability to understand and weigh options
than on age. When assessing a young person’s capacity to consent the physician should bear in
mind that at 16 a young person can be presumed to have the capacity to consent. A young person
under 16 may have the capacity to consent, depending on their maturity and ability to understand
what is involved.80
It is important that a doctor assess the maturity and understanding on an individual basis with
regard to the complexity and importance of the decision to be made. In Kenya for instance, the
government now recognizes that children have kernel knowledge which was previously a
preserve of adults, it is now providing condoms for minors.81 The doctor should also remember
that a young person who has the capacity to consent to straightforward, relatively risk free
treatment may not necessarily have the capacity to consent to complex treatment involving high
risks or serious consequences. The capacity to consent can also be affected by their physical and
emotional development and by changes in their health and treatment.82
80 General Medical Council 0-18 years: guidance for all doctors rule 25, as read with
Family Law Reform Act 1969: Age of Majority Act 1969 (Northern Ireland); Age of legal
Capacity (Scotland) Act 1991; Mental Capacity Act 2005; Gillick v West Norfolk and Wisebech
AHA [1986] AC 112.
81 President Uhuru Kenyatta launches condoms for kids’ campaign-
http://www.standardmedia.co.ke/ktn/video/watch/2000089279/-president-uhuru-kenyatta-launches-condoms-for-
kids-campaign. Accessed on February 17th, 2015

26
Where a child lacks the capacity to consent, the doctor should ask for their parents’ consent.83
For a young person with the capacity to consent to treatment, they should be encouraged to
involve their parents in making important decisions, but one should usually abide by any
decision they have the capacity to make themselves.84
A general presumption is that regardless of the child’s capacity to consent to treatment, a doctor
must carefully weigh up the harm to the rights of children and young people of overriding their
refusal against the benefits of treatment, so that decisions can be taken in their best interests.85
There is a great effort in promoting the best interests of the child, International law dictates that
all organisations concerned with children should work towards what is best for each child.86
To assess a child’s best interests one should consider the religious and cultural beliefs and values
of the child or young person and their parents as well as any social, psychological and emotional
benefits.87
An assessment of best interests will include what is clinically indicated in a particular case.
One should also consider: -
i. The views of the child or young person, so far as they can express them, including
any previously expressed preferences.
ii. The views of the parents
iii. The views of others close to the child or young person
iv. The cultural, religious or other beliefs and values of the child or parent.88
83 General Medical Council 0-18 years: guidance for all doctors rule 27. See Re C (Welfare
of Child Immunisation)[2003] EWCA Civ. 1148,[2003] 2 FLR 1095 and paragraph 34-35 for
guidance on procedures undertaken primarily for religious, cultural, social or emotional reasons.
84 General Medical Council 0-18 years: guidance for all doctors rule 29.
85 General Medical Council 0-18 years: guidance for all doctors rule 32 See Re W (A
Minor)(Medical Treatment: Court’s Jurisdiction)[1993] Fam. 64, [1992] 4 All ER 627 CA
86 United Nations Charter on the Rights of the Child - Article 3.
87 General Medical Council 0-18 years: guidance for doctors rule 35

27
v. The views of other healthcare professionals involved in providing care to the child or
young person, and any other professionals who have an interest in their welfare.
vi. Which choice, if there is more than one, will least restrict the child or young person’s
future options.89
2.6Importance ofconsent.
The development of international laws focusing on children reflects a continuous evolution in the
concept of childhood. Be that as it may; children still continue to be perceived as objects and not
the subjects of international law long after adults have been accorded subject status. Until 1979,
the child’s perspective is either absent or assumed to be coterminous with that of adults.90 The
status quo has been to focus exclusively on adults, the other provisions on Children concentrate
on the protection of children rather than the means by which they could become more
autonomous.91 Among the basic principal approaches that the Convention on the rights of the
child seeks to protect includes the participation of children in decisions affecting their own
destiny.92
In Belgium, to qualify for euthanasia, the child must be in unbearable pain and be assessed by
two doctors and a psychiatrist or psychologist as to mental soundness. Their legal representatives
88 See Re A(A Minor)(Wardship:Medical treatment)[1993] 1FLR 386
90 Session 5: International contribution to Kenyan Juvenile Justice Mr. Kei Someda and
Professor, Unafei pg. 167
91 Article 24 of the International Covenant on Civil and political rights 1966
92 Session 5: International contribution to Kenyan Juvenile Justice Mr. Kei Someda and
Professor, Unafei pg. 170

28
must also consent.93 Lastly the doctors must assess the child's capacity to ‘discern’ what the
procedure involves, a test defined in Belgium’s civil code.94
Belgium being the first country to remove any age limit on the practice of euthanasia has
stipulated a number of caveats on euthanasia including:
i. The patient must be conscious of their decision and understand the meaning of
euthanasia.
ii. The request must have been approved by the child's parents and medical team.
iii. The illness must be terminal.
iv. They must be in great pain, with no available treatment to alleviate the
distress.95
Of the highest importance is that the treatment must be carried out in the best interests of the
child.96 Based on the foregoing generalisation one may also consider whether it’s in the best
interests of the child to allow them the opportunity to decide on whether they should be victims
of euthanasia.
Most jurisdictions agree that children are regarded as coming under the category of those who
are legally incompetent, being unable at least in the early years of their life to decide on which
medical treatment they should have until they have reached the age of 16. The debate concerning
children’s right to euthanasia is mostly centred on when children develop the capacity to
93 Child euthanasia law in Belgium first to end age limits- http://www.bloomberg.com/news/2014-03-
26/child-euthanasia-law-in-belgium-first-to-end-age-limits.html accessed on 08/09/14
94 Belgium: Lawmakers vote for children’s ‘right to die’ euthanasia law by Laura Smith-
Spark and Diana Magnay CNN written on Feb 13, 2014.
95 BBC News Europe: Belgian Senate votes to extend euthanasia to children-
http://www.bbc.com/news/world-europe-25364745 accessed on 08/09/14
96 African Charter on Children’s Rights- Article 4 (1) - Best interests of the child- In all
actions concerning the child undertaken by any person or authority the best interests of the child
shall be the primary consideration.

29
understand the consequences of an irreversible act and to consent to it, and whether the
requirements in place are sufficient to protect against misuse.
By enabling minors the capacity to exercise the right to self-determination or at least to be
involved in the decision making through their consent, we are also enforcing the right to equality
and freedom from discrimination.97 A competent patient has the right to refuse life-prolonging
treatment and their refusal must be respected, even if it will result in their death.98 Even a
competent pregnant woman has the right to refuse treatment even if that refusal may result in
harm to her or her unborn child.99
2.7Conclusion.
A patients consent to a particular treatment may not be valid if it is given under pressure or
duress exerted by another person.100 This may stem from the fact that a parent or guardian may
cajole the minor into requesting for euthanasia but thanks to the caveats put in place by Belgium,
the decision is subject to the highest scrutiny, any cases of coercion will be quickly identified
and stopped. Only the most deserving minors will get the permission needed to conduct
euthanasia.
97 The Constitution of Kenya (2010) Article 27-Equality and freedom from discrimination.
98 Re B (Adult, refusal of medical treatment)[2002] 2 All ER 449
99 St George’s Healthcare NHS Trust v S; R v Collins and others, ex parte S [1998] 3 All
ER 673
100 Re T (Adult) [1992]4 All ER 649

30
Ordinarily, a minor is seen as lacking the capacity to consent to certain acts or omissions least of
all life.101 This is therefore contrasted by the fact that the law under review partially grants the
power over the minor’s life or death in the minor’s hands. In conclusion, it is the researchers’
recommendation that considering that a child's best interests are of paramount importance in
every matter concerning the child; killing them is not necessarily in their best interests.102
Children have the right to a full life; it is a basic human right and is expressly protected by the
constitution of Kenya, it should not be vitiated by any man-made intervention.103
It has prima facie been established that humans not only fear death but are endowed with
a strong will to live. We seek to preserve our lives. This is natural for all of us. The desire
to die is thus seen as unnatural and so wrong.104
A strong consideration is the fact that consent by a person to the causing of his own death or his
own maim does not affect the criminal responsibility of any person by whom the death or maim
is caused.105 Therefore voluntary active euthanasia via physician assisted suicide is a felony.
101 The law of contracts places restrictions on the contracts a minor can enter into by stating
that only contracts for necessaries are specifically enforceable. It further places certain rights and
obligations on the parent or guardian for the wellbeing of the minor and where they fail to
provide and care for the minor as required, the state will step in.
102 The Constitution of Kenya Article 53 (2) as read with Article 4(2) of the Children’s Act
CAP 141, Article 4 (1) of the African Charter on Children’s rights and Article 3 of the
Convention on the rights of the child.
103 United Nations Charter on the Rights of the Child Article 6- Children’s right to life.
104 Euthanasia - http://study.abingdon.org.uk/rs/euthanasia.htm ; Thomas Aquinas. Accessed
on Thursday 26-03-15.
105 The Penal Code CAP 63 Laws of Kenya-Section 214 - Consent.

31
For the purposes of this project the researcher submits that the minors consent will mainly be
important in stopping euthanasia however if they do request it, at least their opinion can be
considered. This stems from the understanding that there is no age limit to suffering, one should
look at the maturity of people and if they are completely able to make a choice, not their age.

32
Chapter 3:Comparative analysis of the law in Kenya as againstthat of Belgium with
specific reference to child euthanasia.
3.0 Introduction.
This chapter seeks to establish similarities and differences in approaches to dealing with the right
to consent to euthanasia for children in Kenya and in Belgium. This chapter thus explores the
Belgian policy on children euthanasia with the aim of making a comparative analysis between
Kenya and Belgium so as to determine whether Kenyan laws could potentially facilitate the
localisation of the Belgian laws on children’s euthanasia.
3.1Definition ofaChild.
A child is defined as a person below the age of majority.106 Historically, at common law, a child
is a person who has not reached the age of 14.107 The common law position has since become out
of date. Currently, the position in Kenya is that a child means an individual who has not attained
the age of eighteen years.108 Internationally, a child is defined as a person below the age 18,
unless the laws of a particular country set the legal age for adulthood younger.109 Belgium has
not set the age of a child lower; however, they are signatory to international instruments which
state that ‘a child means every human being below the age of eighteen years unless under the law
applicable to the child, majority is attained earlier’110 hence one can conclude that both Kenya
106 Black’s Law Dictionary Standard Ninth edition, definition of child at page 271.
107 Ibid. (1)
108 The Constitution of Kenya Article 260- Interpretation of the word child. As read with the
Children Act CAP 141 and The African Charter on Children Articles Article 2.
109 Convention on the Rights of The Child Article 1 – Definition of child.
110 Convention on the Rights of the Child Article 1 – Definition of child.

33
and Belgium regard a child as an individual below the age of 18 years; in compliance with
International standards.
3.2Children’s Right to life in Kenya.
In Kenya it has been held that life begins at conception.111 From which point the right to life is
viewed as the strongest and most important right; everyone has the right to life.112 The right to
life deserves the highest protection; it shall not be limited except to the extent authorised by the
constitution or other written law.113 Particular emphasis has however been given to children’s
right to life, it shall be the responsibility of the Government and the family to protect this
right.114
3.3Children’s Right to life in Belgium.
European judges have recently decided that the point at which life begins was a matter that
should be left to the state’s discretion.115 In Belgium, the right to life has not been expressly
111 The Constitution of Kenya Article 26(2).
112 The Constitution of Kenya Article 26(1) - The right to life. As read with Article 3 of the
Universal Declaration of Human Rights. See also the Children Act CAP 141 Section 4(1) - Every
child shall have the inherent right to life…
113 The Constitution of Kenya Article 26(3) - The right to life
114 The Children’s Act Section 4(1) - Survival and best interests of the child. As read with
United Nations Convention on the Rights of the Child Article 6 – Survival and Development.
115 ECtHR, 8 July 2004, Vo v. France, No. 53924/00, not published.

34
legislated upon, but provisions of their constitution protect the right to life.116 The Right to life
has been recognized as a basic value and is essential for the full recognition of the inherent
dignity in a human being.117
Belgium is signatory to the European convention on Human Rights which stipulates the
protection offered on the right to life. Everyone’s right to life shall be protected by law.118
States must not only refrain from taking life “intentionally” but also take appropriate steps to
safeguard life.119 No one shall be deprived of his life intentionally save in the execution of a
sentence of a court following his conviction of a crime for which the penalty is provided by
the law.120 Deprivation of life shall not be regarded as inflicted in contravention of Article 2
of the European Convention on Human Rights, when it results from the use of force which is
no more than absolutely necessary:
i. In defence of any person from unlawful violence;
ii. In order to effect a lawful arrest or to prevent in the escape of a person lawfully
detained;
116 The Constitution of Belgium Article 14bis – abolishment of capital punishment, as read
with Article 18 – civil death may not be introduced.
117 European Convention for the Protection of Human Rights and Fundamental Freedoms;
Protocol No. 13.
118 European Convention on Human Rights Article 2-Right to life.
119 ECmHR, 10 Oct, 1986, Naddaf v. the Federal Republic of Germany, DE 50/259.
120 European Convention for the Protection of Human Rights and Fundamental Freedoms
Section 1; Rights and Freedoms, Article 2(1) on Right to life.

35
iii. In action lawfully taken for the purpose of quelling a riot or insurrection.121
The right to life is guaranteed by Article 2 of the European convention on Human rights and
forms the supreme value in the hierarchy of human rights at the International level.122 The right
to life is therefore of considerable value; for this reason that states must not only refrain from
taking life “intentionally” but also take appropriate measures to safeguard life.123 The law
provides that every child is entitled to have its moral, physical, mental and sexual integrity
respected.124 Therefore, euthanasia with respect to children’s euthanasia forms the exception to
the rule.
3.4Law oneuthanasia in Kenya.
Belgium has since legislated on the definition of the term euthanasia as being the intentional
terminating of life by someone other than the person concerned, at the latter’s request.125
The Kenyan position is that every person has the right to life.126 A person shall not be deprived
of life intentionally, except to the extent authorised by the constitution of Kenya 2010 or any
other written law.127 Any person who by an unlawful act or omission causes the death of another
121 European Convention for the Protection of Human Rights and Fundamental Freedoms,
Section 1; Rights and Freedoms, Article 2(2) on Right to life.
122 ECtHR, 22 March 2001, Streletz, Kressler and Krenz v. Germany, Reports 2001-II.
123 ECmHR, 10 Oct. 1986, Naddaf v. the Federal Republic of Germany, DR 50/259.
124 The Constitution of Belgium Article 22bis.
125 The Belgian Act on Euthanasia of May, 28th 2002, Chapter 1 Section 2.
126 The Constitution of Kenya 2010 article 26 (1) - Right to life.
127 The Constitution of Kenya 2010 article 26 (3) – Right to life.

36
person is guilty of the felony termed manslaughter.128 Conversely, any person who of malice
aforethought causes the death of another person by an unlawful act or omission is guilty of
murder.129 Any person convicted of murder shall be sentenced to death.130 While any person
convicted of manslaughter is liable to imprisonment for life.131 The laws further provide that any
person who attempts to kill himself is guilty of a misdemeanour.132 And where a person escapes
the clutches of the preceding provision, the law provides that ‘any person who, being charged
with the duty of providing for another the necessaries of life, without lawful excuse fails to do
so, whereby the life of that other person is likely to be endangered or his health is likely to be
permanently injured, is guilty of a felony and is liable to imprisonment for three years.’133
The intentional deprivation of life authorised by the constitution of Kenya 2010 or any other
written law does not encapsulate euthanasia; it only covers abortion.134 Therefore, no person can
proceed to perform euthanasia without serious consequences and depending on the intention135
128 Penal Code CAP 63, Section 202 (1) – definition of manslaughter.
129 Penal Code CAP 63, Section 203 – definition of murder.
130 Penal Code CAP 63, Section 204 – Punishment of murder.
131 Penal Code CAP 63, Section 205 – Punishment of manslaughter.
132 Penal Code CAP 63, Section 226 – Attempting suicide.
133 Penal Code CAP 63 Section 239.
134 The Constitution Of Kenya 2010 Article 26 (4) – Abortion is not permitted unless, 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 written law.
135 R v Moloney [1985] AC 905 – Lord Bridge stated that a person who kills a loved one
dying from a terminal illness, in order to relieve pain and suffering, may well act out of good
motives. Nevertheless, this does not prevent them having the necessary intention to kill; see R v
Inglis [2011] 1 WLR 1110.

37
and actus rea 136it may be classified as murder or manslaughter.137 Where a health practitioner
assists a patient to perform euthanasia either passively or actively, they may also be charged
under the crime of aiding suicide which is a felony and attracts imprisonment for life.138
It has been stated that determining the end of the right to life is equally delicate: it raises
the question of the right to die in dignity, and laws in Europe adopt differing approaches
to euthanasia. In the Courts opinion, Article 2 of the European Convention on Human
Rights does not therefore guarantee the right to choose whether to continue or to cease to
live: the right does not imply, conversely a right to die.139
3.5Law onEuthanasia in Belgium.
3.5.1 History of minor’s euthanasia in Belgium.140
The history of minor’s euthanasia in Belgium is characterized by the putting forward of three
private members bills to widen the scope of application of euthanasia with respect to patients
who are minors:
136 The term actus reus in criminal law consists of all elements of a crime other than the
state of mind of the defendant, I particular, actus reus may consist of: conduct, result, a state of
affairs or an omission – Actus reus in criminal law- http://e-lawresources.co.uk/Actus-reus.php
accessed on Saturday 25/04/15. See also Duck v Peacock [1949] 1 All ER 318, R v Larsonneur
[1933] 24 Cr App R 74, R v Pittwood [1902] TLR 37, R v Miller [1983] 2 AC 161, R v Stone and
Dobinson [1977] 1 QB 354, R v Dytham [1979] QB 722 and Fagan v MPC [1969] 1QB 439.
137 R v Cox [1992] 12 BMLR 38; the act of euthanasia amounts to assisted suicide and many
health practitioners who practiced the same were prosecuted.
138 Penal Code CAP 63 Section 225; Aiding suicide.
139 ECmHR, 10 July 1984, Stewart v. the United Kingdom, DR 39/162.
140 Dossier of the European Institute of Bioethics, Euthanasia in Belgium: 10 years on, April
2012.

38
• Private Members bill 5‐21/1 came before the Senate on August 16, 2010.141 It envisaged
providing the possibility of requesting euthanasia for all minors, regardless of age, on condition
that he/she is deemed to be of sound mind and capable of reason. Previously, the decision for
minors below the age of 16 had to be made with parental approval.
• Private members bill 5‐7‐179/1 came before the Senate on September 23, 2010.142 It aimed to
make euthanasia available to minors aged 15 years and who are expected to die very shortly, on
condition that they are conscious and are capable of reason. Their parents would have to be
informed but would not be able to be involved in any decision regarding euthanasia.
• Private members bill 53 0496/001 was submitted to the Chamber of Representatives on
October 28, 2010.143 It aimed to offer the possibility of euthanasia to minors, regardless of age. If
the child is “capable of reason”, it would be able to formulate the request itself; if this is not the
case, its parents would be allowed to do so on its behalf. The decision would be taken by a
medical team in conjunction with the child and its parents. A decision regarding euthanasia could
also be taken in the event of premature infants or those suffering from serious complications.
Despite International pressure for the protection of the right to life, Belgium passed an act
legalizing euthanasia for competent adults and emancipated minors on May, 28, 2002, which
subsequently went into effect on September 3, 2002. On February 13th 2014, Belgium further
141 The fifth report (2010‐2011) to the legislative chambers dawn up by the Federal
Commission for Control and Assessment of Euthanasia.
142 “Private members bill modifying the law of May 28, 2002 on euthanasia with regard to
minors over the age of 15 Years.”
143 “Private members bill completing the law of May 28, 2002 on euthanasia with regard to
minors.”

39
secured and promoted the rights of terminally ill patients to euthanasia by removing any age
limit.144
3.5.2 The Belgian current position on euthanasia.
The Belgian law provides for two specific instances on euthanasia:
i. Patients who are conscious.
ii. Patients who are not conscious
a) Conscious patients:145
In the case of a patient in the final stages of his/her illness, euthanasia may take place if:
i. the patient is an adult or a minor who has been granted adult legal status and is
deemed to be in his/ her right mind and therefore able to express his/her wishes;
ii. the request has been made on a voluntary, thoughtful and repeated basis and does
not arise from being pressured into it; the request has to be made in writing;
iii. the medical situation does not allow for a positive outlook and causes constant and
unbearable physical or psychological suffering which cannot be alleviated and is
caused by a life‐threatening and in‐curable accidental or pathological illness;
iv. the medical practitioner has talked to his/her patient on various occasions about
his/her state of health, his/her life expectancy, his/her request for euthanasia; the
medical practitioner must discuss the possible options available to his/her patient
regarding both therapeutic treatment of the illness and the palliative care available
and the consequences thereof;
v. the medical practitioner has consulted another independent and competent medical
practitioner who has drawn up a report setting out his/her findings;
vi. the medical practitioner has discussed his/her patient’s request with the medical team
treating the patient and with the patient’s close family, if the patient so requests;
vii. after euthanasia, the medical practitioner fills out both pages of the form designed to
ascertain the legality of the afore‐mentioned act.
If the patient is not in the final stages of his/her illness, two further conditions apply, as set
out below:
144 BBC News - Belgium’s parliament votes through child euthanasia -
http://www.bbc.co.uk/news/world-europe-26181615 accessed on Wednesday 22/04/2015.
145 Dossier of the European Institute of Bioethics, Euthanasia in Belgium: 10 years on, April
2012.

40
i. the medical practitioner must consult a second independent medical practitioner,
psychiatrist or a medical practitioner specialized in the relevant pathology;
ii. the period of reflection required between the patient’s written request and the act of
euthanasia has to be at least one month.146
b) Unconscious patients.147
Euthanasia can take place if:
i. the person is an adult or a minor who has been granted adult legal status;
ii. the person is not conscious and the situation is irreversible according to current
medical knowledge;
iii. the person is suffering from a life‐threatening and incurable accidental or pathological
illness;
iv. the person has drawn up and signed a declaration in advance requesting euthanasia;
this declaration is valid for a period of 5 years and may appoint one or several reliable
individuals who have been entrusted with voicing the patient’s wishes;
v. the medical practitioner has consulted another independent doctor;
vi. the medical practitioner has discussed the declaration, which was drawn up and
signed by the patient in advance, with the patient’s medical team and any close family
members;
vii. After euthanasia, the medical practitioner fills out both pages of the form designed to
ascertain the legality of the afore‐mentioned act.148
In all events, the law also includes a “conscience clause”, which states that no medical
practitioner is obliged to carry out euthanasia and that no other person is obliged to be a party
thereto.149
In Belgium, to qualify for euthanasia, the child must be in unbearable pain and be
assessed by two doctors and a psychiatrist or psychologist as to mental soundness. Their
146 Ibid.
147 Ibid 145.
148 Ibid 145.
149 (Article 14) See in this respect the brochure “Conscience clauses for health
professionals”, drawn up by the European Institute on Bioethics, Brussels 2011.

41
legal representatives must also consent.150 Lastly the doctors must assess the child's
capacity to ‘discern’ what the procedure involves, a test defined in Belgium’s civil
code.151
Belgium is the first country to remove any age limit on the practice of euthanasia and has
stipulated a number of caveats on euthanasia including:
i. The patient must be conscious of their decision and understand the meaning of
euthanasia.
ii. The request must have been approved by the child's parents and medical team.
iii. The illness must be terminal.
iv. They must be in great pain, with no available treatment to alleviate the distress.152
3.6Scope ofChildren’s consent in Kenya.
In Kenya, the scope of children’s consent to medical procedures has not expressly been
legislated upon, it can generally be said that children have the right to consent to medical
procedures but it may not be binding; the child never the less must be afforded the opportunity to
express his or her opinion. The law states that;
In any matters of procedure affecting a child, the child shall be accorded an opportunity
to express his opinion, and that opinion shall be taken into account as may be appropriate
taking into account the child’s age and the degree of maturity.153
150 Child euthanasia law in Belgium first to end age limits- http://www.bloomberg.com/news/2014-03-
26/child-euthanasia-law-in-belgium-first-to-end-age-limits.html accessed on 08/09/14
151 Belgium: Lawmakers vote for children’s ‘right to die’ euthanasia law by Laura Smith-
Spark and Diana Magnay CNN written on Feb 13, 2014.
152 BBC News Europe: Belgian Senate votes to extend euthanasia to children-
http://www.bbc.com/news/world-europe-25364745 accessed on 08/09/14
153 Children’s Act CAP 141 Section (4).

42
Generally, all doctors should involve children and young people as much as possible in decisions
about their care, even when they are not able to make decisions on their own.154 When treating
children and young people, doctors must also consider parents and others close to them; but their
patients must be their first concern.155
To strengthen this point, one should note that; children and young people are individuals with
rights that should be respected. This means listening to them and taking into account what they
have to say about things that affect them. It also means respecting their decisions and
confidentiality.156
Kenya’s position when it comes to children’s right to consent to medical procedures let alone
euthanasia, is quite rigid and in need of an update. Children's rights are usually placed in their
parents and/or guardian, the patients right to consent is generally not considered; hospitals with
good customer service may ask the child for their consent but this is only a façade, the actual
decision has already been made by the parents or guardians and the child is powerless to stop it.
Kenya disregards the fact that the capacity to consent depends more on young people’s ability to
understand and weigh up options than on age.157 The law is yet to take the modern approach that
dictates that it is important that the doctor assess the maturity and understanding on an individual
basis and with regard to the complexity and importance of the decision to be made.158 Suffice it
154 General Medical Council 0-18 years, guidance for all doctors rule 23.

43
to say that euthanasia is quite a complex and hard decision to take, it cannot be done on a whim,
or without due diligence and understanding of the repercussions. The doctor must remember that
a young person who has the capacity to consent to straightforward, relatively risk free treatment
may not necessarily have the capacity to consent to complex treatment involving serious
consequences.
3.7Scope ofChildren’s consent in Belgium.
The position of the law in Belgium is that euthanasia for minors is legal and the decision would
be taken by a medical team in conjunction with the child and its parents.159 This is despite the
fact that the International laws they are bound by provide that “Everyone’s right to life shall be
protected by law. No-one shall be deprived of his life intentionally…” 160 The legislation grants
children the right to request euthanasia if they have a terminal illness, they are in constant and
unbearable physical or mental pain and there is currently no available treatment according to
cure the suffering.161
3.8Conclusion.
Typically, children in Belgium are more autonomous thanks to enjoyment of the right to consent
to euthanasia unlike in Kenya where such right is lacking. One may argue that children in
Belgium are treated as being wise beyond their years or on the other hand that children in Kenya
perpetually remain children with an un-developing capacity to handle serious issues up until they
159 Euthanasia in Belgium: 10 years on, Euthanasia of minors’ pg. 4.
160 European Convention on Human Rights Article 2. See also Pretty v Director of Public
Prosecutions [2002] 1 AC 800.
161 Belgium: Lawmakers vote for children’s ‘right to die’ euthanasia law, By Laura Smith-
Spark and Diana Magnay, CNN; http://edition.cnn.com/2014/02/13/world/europe/belgium-
euthanasia-law-children/ accessed on Saturday 25/04/15.

44
gain the age of majority and magically acquire all their previously denied rights. The largest
hindrance to the recommended law being legislated is the moral, religious and philosophical
arguments against it which in the researchers view the legislators are not ready to indulge in
since the issue is not an immediate and pertinent issue requiring prompt attention.

45
Chapter 4– Observations, Conclusions and Recommendations.
4.1Introduction.
The preceding chapters have at length dealt with the analysis of the law allowing children in
Belgium to consent to their own euthanasia and whether the same laws can and should be
localized to Kenya. The analysis has taken the form of first and foremost laying out the current
laws in Kenya and setting down what the position in Kenya is with regard euthanasia;
specifically physician assisted euthanasia for children, and also what is the scope of children’s
consent to such medical procedures. The specific laws that oppose the introduction of euthanasia
have all been highlighted and the specific sanctions and punishments have also been given.
The comparative analysis took the form of giving almost neutral supportive and opposing views
as to the topic of the research while swaying towards supporting the adoption of the Belgian laws
on children’s euthanasia. The crux of the matter will now be dealt with in this chapter. The
researcher aims to give their views on the foregoing analysis so as to generally sum up all the
facts and make a conclusive finding.
The concluding arguments will be tackled under the following headings:
4.2Children’s right to life.
The right to life is sacred and sacrosanct as evidenced by various statutes both locally and
internationally; this is the case both in Belgium and in Kenya.162 The only diversion comes about
when one can lawfully take life under the given jurisdictions. In Kenya, there is no exception,
the intentional taking of another’s life is a felony; murder163, and upon conviction one is liable to
162 The constitution of Kenya 2010 Article 26(1); The right to life.
163 Penal Code CAP 63 Section 203 – Murder.

46
be sentenced to death.164 Even the unintentional taking of another’s life is a felony and one can
be imprisoned for life under manslaughter.165 Therefore the taking of another’s life whether
intentional or unintentional is an offence with an adjacent punishment. Likewise, euthanasia be it
passive or active is a capital offence.
Belgium’s position however, is that a doctor or a qualified medical personnel can take the life of
a patient under certain strict conditions.166 It is no secret that life is the most important, sacred
and universal right that every individual is owed regardless of their status.167 It follows that all
laws and legislation must protect it to the furthest extent possible.168 However, the author is of
the view that life cannot simply be weighed on a simple scale, more consideration has to be
placed on the fact that life is not a tangible object which simple consideration of circumstances
will always justify a reason to live or die, humans are thinking, feeling beings and life to us is
just as much an experience as it is a right.169 It is under this kind of thinking that we have now
began to also consider whether a person is living in the full sense of the word and whether their
life is one worth living170. Life is a gift to be enjoyed, religion itself commands us to live life
164 Penal Code CAP 63 Section 204 – Punishment of Murder
165 Penal Code CAP 63 Section 202 – Manslaughter, as read with Section 205; Punishment
of manslaughter.
166 Belgium Euthanasia Act 2008 Chapter 2; General provisions Section 3.
167 Universal Declaration on Human Rights Article 3; right to life, as read with Article 1 on
freedom and equality.
168 The constitution of Kenya Article 26(1) and (3); right to life.
169 Disability Studies Quarterly; the first journal in the field of disability studies; http://dsq-
sds.org/article/view/512/689 accessed on 5/15/2015.
170 ‘And in the end it’s not the years in your life that count. It’s the life in your
years.’Abraham Lincoln

47
loving God and loving our neighbours.171 Are we loving the children and adolescents of this
world by forcing them to live a life of pain with no prospect of recovery? Are we forcing them to
remain alive because we are too scared to let them go?172 Too scared to deal with the fact that we
played a hand in relieving them of their pain albeit permanently? Are we keeping them alive for
theirs or more for our own sake? Do we love if we are complicit to their suffering? It has been
scientifically proven that children with terminal illness exhibit wisdom well beyond their
years173, are we so scared of that realization that we would rather ignore that fact and continue to
let them suffer? Doesn’t the right to life also necessarily guarantee one with the right to live a life
where they can at least aspire to be better and greater…to be different, to grow…or is it a right to
which we are powerless to control?174
171 NIV Bible, Mathew Chapter 22 verses 37-40.
172 Parents plead to be able to help terminally ill children die; Baby Ella-Louise suffering
from a rare and terminal genetic mutation that damages the nervous system died in 2013 through
denial of food or fluid because the parents had no recourse to any better form of euthanasia.
CNN http://edition.cnn.com/2013/11/27/world/europe/belgium-euthanasia-for-children-debate/
accessed on 5/18/2015.
173 Assisted suicide not for adults only; Patient Rights Council;
http://www.patientsrightscouncil.org/site/not-for-adults-only/ accessed on Saturday 5/16/15.
174 Lord Justice Tuckey, in the house of lords judgment stated ‘In our view the right to
human dignity which is enshrined in Article 3(of the Human Rights Act) is not the right to die
with dignity, but the right to live with as much dignity as can possibly be afforded until that life
reaches its natural end.’ (High Court of Justice, 18 October 2001); “” I feel terrible…who will
help me? I don’t want to live like a larva!” Elisa – 13 years, muscular dystrophy; Palliative care
for Infants, Children and Young people, The Facts; page 27.

48
The right to life is indeed an absolute and most important right which every person is owed as of
right175. In the authors view, the right to life also encompasses in certain distinct and strict
conditions the right to terminate this very right. The fact that a person may be a child should not
limit them from giving up their right especially if they have a terminal illness with no hope of
recovery, it only means that more stringent measures should be put in place to guide and help the
child in making the choice to ask for euthanasia and that that request is at least considered even
though it will be under the highest scrutiny, this way only the most deserving children will
actually be euthanized.
Most people in the society fear that by giving children the capacity to request euthanasia, we are
placing a heavy burden on them and that children will be killed left, right and centre. I would like
to nip this in the bud, Belgium’s laws on children euthanasia had envisaged this scenario and as
such have mechanisms to prevent wanton death, a child’s decision to be euthanized cannot be
acted on solely, two or more doctors and a psychiatrist must evaluate the situation and concur,
also the parents must be notified in order to give their consent and only minors suffering a
terminal illness and under great pain can be eligible for the decision176.
Under the child’s right to health and medical care, this should also include the right to assisted
euthanasia via physician assisted euthanasia. Putting a child through a life of no hope should
175 The Constitution of Kenya Article 26(1)- The right to life; African Charter on Children
Articles-Article 5(1), Children’s Act CAP 141 Article 4(1), Convention on the rights of the child
Article 6 (1).
176 Assisted suicide not for adults only; Patient Rights Council;
http://www.patientsrightscouncil.org/site/not-for-adults-only/ accessed on Saturday 5/16/15.

49
amount to torture within the definition put down in the UDHR177, which is a crime. After all life
isn’t about the number of breaths we take, but the moments that take our breath away.
The right to euthanasia is a strong and emotive issue but it is a right which is urgently needed in
the furtherance of securing human rights and as such, in line with the governments duty to
ensure, secure and provide for the protection of human rights178 and in conjunction with their
election promises to secure human rights, the government should work towards making this right
available to children. It may not be readily acceptable right now but at least research can be done
into providing a form of the law that will go towards fulfilling the various promises the
government has promised to fulfil in their manifesto and international instruments that the
country is party to such as the UDHR179; it can be an aspiration to which public approval can be
sought in the long term as part of the vision 2030 aspirations.
Considering that science is yet to alleviate all forms of pain and cure all terminal diseases, it is
unfair to force parents to watch their children slowly wither and die in pain. Death may be a
natural and unavoidable part of life but death through suffering is not, it weakens the heart, soul
and mind of both the victim and their loved ones. The last image parents have of their children
should not be that of a gruesome and most horrific death but that of the child when they are still
177 Universal Declaration on Human Rights Article 5. As read with The Constitution of
Kenya Article 29(d) and Article 25(a).
178 Jubilee Governments Second Medium Term Plan 2013-2017.
179 The Constitution of Kenya Article 2 (5) and (6).

50
able to exude happiness, euthanasia will therefore be done as part of the celebration of the life
that child has lived. Parents themselves are up for the idea.180
4.3Children’s Capacity to consent.
Belgium has formally accepted and recognized the proven scientific fact that children’s capacity
to consent to euthanasia is not so much a matter of age as it an all-round affair centered more
with their capacity to consent.181 The capacity to consent may be affected by their physical and
emotional development and by changes in their health and treatment.182 The number one myth
that euthanasia in children is wrong because children cannot have meaningful autonomy in
medical care has been proven to be defunct and will soon find its way to be obsolete and part of
old wives tales.183
Those in favour of children euthanasia should not be viewed as child haters.184 The debate has
been strongly publicized as being between the rights to autonomy of the individual versus their
right to life.185 No one is saying that they consider children to be unimportant or they value their
180 Life Site: Family that starved baby to death pushing Texas to legalize euthanasia.
https://www.lifesitenews.com/news/family-that-starved-baby-to-death-pushing-texas-to-legalize-
euthanasia accessed on 5/18/2015.
181 General Medical Council 0-18 years: guidance for all doctors rule 25.
182 General Medical Council 0-18 years: guidance for all doctors rule 25(b).
183 Medscape Multispecialty; Euthanasia 10 Myths; by Richard DW Hain;
http://www.medscape.com/viewarticle/831575 accessed on Wed 13 May 2015.
184 Medscape Multispecialty; Euthanasia 10 Myths; by Richard DW Hain;
http://www.medscape.com/viewarticle/831575 accessed on Wed 13 May 2015.
185 A life hardly worth living! Euthanasia and physician assisted suicide in the Netherlands;
http://noeuthanasia.org.au/blog/2209-a-life-hardly-worth-living-euthanasia-and-physician-
assisted-suicide-in-the-netherlands.html accessed on Saturday 5/15/2015.

51
life insufficiently highly. Far from it, they are just arguing that children are not sufficiently
autonomous nor protected adequately enough. They deserve the right to be protected from pain
and torture.186
Most people who support this law are very compassionate and genuinely believe that it is the
right way to treat a patients suffering where there is no prospect of a cure. Too many children are
suffering from unnecessary pain.187
4.4Observations from the Belgianmodel.
The various concerns against this law include:
1. It may be too ambiguous and contains loopholes.
2. Junior doctors may make the wrong decision when the senior doctor is unavailable.
3. Euthanasia decisions made without the formal process consultations or proper
information.
Since it is almost impossible to get a case by case examiner e.g. a prosecutor
4. There may be cases of coercion on children by their physicians, doctors or even parents
to seek euthanasia.
186 Consider the case of 18 year old Tayef; he had a huge accident in Lebanon, Beirut in
September 2007 and nded up in a coma in the American University Hospital in Beirut, till now
attached to plugs and no sign of him apart from his brains.
187 Too many children are suffering unnecessary pain, say experts; Thursday March 4, 2010
– National Pain Summit.

52
4.5Solutions to the above mentioned concerns;
The first and foremost solution is to rely on our lawmakers to come up with a form of the much
needed law that is free from all ponderable loopholes and to make sure that every event is
protected against. This law should be almost air-tight, the onus on the medical personnel to prove
that their decision to euthanize was responsible should be very high and evidence must be
adduced to the same effect. Doctors too must be entrusted to uphold their Hippocratic Oath to
always perform their duties in the best interests of the patient by doing everything in their power
to help the patient make the most favourable decision through counselling and education.
Legislation should also be passed that the practice may only be done in certain designated
hospitals where the hospital has facilities and doctors of a certain calibre. Only senior doctors
who are well trained in Child care or psychology and whom have practiced medicine for a
certain number of years, say 10 years may be allowed to euthanize children.
To ease the burden on the state prosecutor to investigate each and every euthanasia case, a panel
of doctors at the hospital itself should be consulted on the decision to euthanize the child or even
the medical practitioners and dentists’ board could be consulted. Therefore to avoid a case by
case examination, it will fall on the child’s guardians, parents, family and friends to report any
case of illegal euthanasia that needs to be investigated. Where the case is proven that the
euthanasia was illegal, legislation should be put in place to allow the prosecution of the doctor in
charge under murder and the prosecution of anyone else who was involved under conspiracy to
commit murder. The doctor license should also be terminated with no possibility of renewal.

53
Furthermore, to ensure that there are no cases of coercion, at all times, the child should be
provided with a mandatory counsellor and or mentor to help them weigh their options and to
evaluate the child’s mental acuity. The parents on the other hand ca be provided with an advisor
or counsellor should they ask for one.
4.6Conclusion.
To a large extent, children with terminal illness get neglected. Kenyan children in acute and
chronic pain suffer needlessly due to government policies that restrict access to inexpensive pain
medicines, a lack of investments in palliative care services and inadequately trained health
workers.188 Children with terminal illnesses deserve special attention. ‘Much more can be done
for children experiencing other kinds of pain. To improve the current situation, children’s
hospitals and palliative care services need interdisciplinary teams with access to special
expertise, including palliative medicine and pain medicine specialists.’189
The right to consent does not mean that the minor has been placed with the sole power over their
life, rather, it means that the processes, mechanisms and protocols put in place to guarantee that
they do not undergo unrelenting pain with no hope of recovery can be put in place and practiced
with their opinion and consent taken into consideration. Thanks to the stringent regulations on
when child euthanasia can be lawfully done in Belgium, were we to follow the same model or an
188 The People, Pg.14 Wed 11 Apr 2012 This paper is aimed at positively influencing the
current state of affairs.
189 Professor Cousins speaking at the National Pain summit on Thursday March 4, 2010.
See also Palliative care for infants, children and young people, the facts; Fondazione Maruzza
Lefebvre D’Ovidio Onlus, prepared by the EAPC Taskforce for Palliative Care in Children.

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