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Double tragedy for working mothers in miscarriage, neonatal loss

By Harriet James
Wednesday, September 8th, 2021 00:00 | 5 mins read
Miscarriage, neonatal loss.

When Wanjiru Kihusa, discovered she was expecting a baby in July 2013, she was ecstatic.

However, six weeks into the pregnancy, she had a threatened miscarriage and after an ultrasound, the doctor told her that she was still fine.

A threatened miscarriage is a condition that suggest that a woman is at an increased risk of a miscarriage.

Wanjiru was, however, placed on medication and bed rest. During this time, she was working as a client’s service manager at an IT firm.

“I remember sharing the news that I was pregnant with my line manager and she was supportive, same as the human resource manager.

Whenever I needed to go to the clinic, she understood,” she narrates. 

But, Wanjiru felt that since she was taking a lot of sick days, her colleagues were getting tired of her missing work.

This, especially put a strain in the relationship between her and her general manager. 

“There were days when I was on bed rest, but would still work using my laptop at home since I was required to work,” she recalls.  

Things got worse when she was 16 weeks pregnant. Wanjiru had an infection, which the doctors couldn’t quite figure out.

Thanks to her health insurance, which was part of her work benefit, she would visit her doctor as many times as she needed. Sadly at 20 weeks, she lost her pregnancy.

“I received a lot of support from my colleagues. Some came to hospital, some sent encouraging messages. I had although given my notice to resign,” she says.  

“The reasons I gave for resigning were not pregnancy related per se, - I had issues at work, but were just made worse by the fact that I was expectant and was not active in the office.

I realised that if I came back, the issues would still be there. Additionally, there was my mental well-being, after losing my baby and the workplace would give me memories of how my colleagues would ask me a lot of questions.

I don’t think I would have handled those memories well,” explains Wanjiru, founder, Still a Mum organisation. 

Wanjiru shares how the young small and medium enterprise company’s work policy regarding maternity and pregnancy loss was not solid.

Listening to other mums who have lost their babies through miscarriage, still birth and infant deaths, she realised there is a gap. 

“Some companies that have existed for a long time have solid policies. For instance, my husband, who works at an international company got paternity leave even after we lost the baby.

I have come across diverse stories on women and work policies after they lost their babies and definitely something needs to change,” she observes. 

Struggle to prove a case

It is such issues that made Julia Diffu, an advocate of the High Court to write a research article and make recommendations on amendments that need to be made on the Employment Act, which does not have any provision for leave for parents who have lost their children. 

According to her, article 22 (1) of the Constitution gives any person the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed or is threatened.

The High Court also has the jurisdiction under article 23(1) of the Constitution to hear and determine applications for redress of a denial, violation or infringement of a right.

“So in a case where a woman has experienced neonatal death and has no support from work, she can move to court stating how her right to health has been infringed.

If it is a matter of discrimination, she must bring out the elements of discrimination. Was there differential treatment? If so, in what way,” she explains. 

Diffu advises that one, however, must be keen not to just rush to court as courts nowadays encourage alternative dispute resolutions. 

“That is why we have labour unions. If a person’s work place has a union. Did they try involving them?

Other alternative dispute resolutions include, having mediation or arbitration.

The reason I would recommend one to exhaust alternative dispute resolution mechanism is because, court processes are lengthy, sometimes costly and time consuming.

Other than that, they have a tendency to break relationships.  Sometimes you might find a client who just wants their rights recognised, but not necessarily quit their job.

Once you take your employer to court, of course one of the most possible result is that the employer-employee relationship is broken,” she says. 

Relevant provisions not clear

Under Article 43 of the constitution of Kenya, a mother who has experienced neonatal deaths has a right to highest attainable standard of health and under article 41, they have a right to fair labour practices and in article 41(b) they have a right to reasonable working conditions.

“Under article 27(1) working mothers have a right to equal protection and equal benefit of the law.

Under Article 27(4) and (5) they have a right not be discriminated either directly or indirectly based on any ground, in our case the ground is health status.

Under Article 28 they have a right to have their dignity respected and protected,” explains Diffu. 

Wanjiru observes that in comparison to other countries, the law in Kenya hasn’t been active in protecting parents who have lost children. 

“The Kenyan law has been vague. The law always leads the way as companies work policies borrow heavily from the law,” she says. 

Wanjiru adds that when it’s a miscarriage, a pregnancy loss from about five to around 12 weeks, there isn’t much of a physical procedure done in the hospital and the mother is told to take a bed rest of about three to five days.

“Most employers will honour the doctor’s report, but there are no policies on this. Nothing also is done on the mental well-being of the mother,” she says. 

Mental health is key

A late miscarriage happens after 12 weeks and before 24 weeks. Here a mother might be required to go to the theater and get a procedure done to have a foeturs removed.

“The doctor might tell you to go home and rest depending on how intense the procedure was.

Again, here the employer will just honour the doctor’s report and nothing too will be done to ensure the mental well-being of the mother.

In my case at 20 weeks, was still not categorised as a still birth, but a late miscarriage.

Maybe the law will be taken seriously if we defined these things correctly because in some countries, a still birth is from 20 weeks.

In my case there was a delivery and a baby was pushed and born it’s just that it was not alive.

At that point, employer ask whether they should give a full maternity leave or a month of rest,” explains Wanjiru. 

Wanjiru shares that, many employers consider the physical, not mental status of the employee.

“It’s important to ensure the mental well-being is checked because a lot of employees will come back physically healed, but mentally not fine,” she notes. 

Wanjiru shares how parents require financial support too, and when they are given leave, they should be able to go without worrying about their job or salary. 

“However, companies should just work alongside the bereaved parents and ask them what they would desire.

Maybe some just want to work and forget rather than stay at home thinking about the baby,” she says in conclusion.

Harriet James

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