Surrogacy is an arrangement where a woman (“the surrogate”) carriers and gives birth to a child for another person (“the intended parent”). It is a practice where a woman agrees to conceive and carry a pregnancy for another person with the understanding and intention of handing over the child upon birth.
Modern-day surrogacy consists of alternatives between various medical procedures. Most people opt for either In-Vitro Fertilization (“IVF”) or Artificial Reproductive Technology (“ART”).
The Current State of Surrogacy in Kenya
Currently there is no law in Kenya regulating surrogacy arrangements. Most parties who opt for surrogacy arrangements operate under the Law of Contract Act. A surrogacy contract defines the roles, responsibilities and expectations of all parties involved and helps to prevent legal disputes.
The practice of surrogacy is happening in Kenya and most centres that offer this service opt to have their internal own procedures and guidelines. Through these guidelines, they inform their clients of their rights and obligations arising from the surrogacy agreement.
One of the key issues in surrogate arrangements is who between the surrogate mother and the intended mother is the legally recognized parent. The Children Act, Cap 141, states that one can only become a child’s parent either through birth or adoption.
In AMN & 2 others v Attorney General & 5 others (Petition 443 of 2014) [2015] eKLR, the case involved a surrogacy agreement between X, Y and Z. X was diagnosed with secondary infertility and sought advise from the Nairobi IVF Center Ltd who advised her to seek an egg donor IVF as the most suitable option. X and her husband, Y, accepted the agreement and Z agreed to be the surrogate host. Z accepted to carry the pregnancy and hand over the born baby to the genetic parents. Z underwent the embryo transfer and delivered twin female babies. After legal advice from the Attorney General, Kenyatta National Hospital issued a Birth Notification Certificate indicating that X and Y were the parents of the twins and the Department of National Registration issued birth certificates. The application for British Citizenship for the twins failed because the procedure that was followed in obtaining the Kenyan birth certificates was not in tandem with the procedures in the United Kingdom. The Court held that in cases of surrogacy, the surrogate mother shall be registered as the mother of a born child pending legal proceedings to transfer legal parenthood to the commissioning parents. The Court stated that Kenya requires a law to regulate surrogate arrangements to protect all parties involved.
The current position in Kenya regarding surrogacy agreements is that the surrogate is legally presumed to be the mother of the surrogate child until the intended parents go through the adoptive process and get an adoption order under the Children Act, Cap 141.
The Journey Towards a Legal Framework
The journey towards the realization of a legal framework on surrogacy in Kenya is ongoing. The Kenyan Constitution defines family as the natural and fundamental unit of society and the necessary basis of social order and adds onto it by stating that it shall enjoy the recognition and the protection of the State. However, whether the goal of recognition and protection has been met remains questionable and debatable.
There have been several proposed bills regarding surrogate agreements in Kenya. For example, in 2014, the In-Vitro Fertilization Bill was introduced to the National Assembly which was later renamed to the Assisted Reproductive Technology Bill. This bill was not passed.
The Assisted Reproductive Technology Bill (2022) was reintroduced in the National Assembly by Hon. Millie Odhiambo Mabona who is the Member of Parliament, Suba North Constituency. The objective of the Bill is to provide for the regulation of assisted reproductive technology, to prohibit certain practices in connection with assisted reproductive technology, to establish an Assisted Reproductive Technology Directorate and to make provision in relation to children born of assisted reproductive technology processes. Section 28 of the proposed Assisted Reproductive Technology Bill (2022) outlines the key provisions that should form part of a surrogacy contract. They include: the capacity of the parties, consent, rights and obligations of the parties, it should be in writing and signed by the parties.
The Bill is a significant step towards the recognition and legalization of surrogacy arrangements in Kenya.
Conclusion
The legal landscape of surrogacy in Kenya is evolving, spurred by changing social attitudes, advancements in reproductive technology, and a growing awareness of the diverse needs of aspiring parents.
However, the absence of a sound surrogacy legal and policy framework makes the issue of surrogacy an unregulated and complex matter where parties are uncertain of the legal legitimacy of their entered-into surrogacy contracts. It is very promising that there are concerted efforts from both the legislature and the court’s decisions to fast track the enactment of a surrogacy framework. The proposed Assisted Reproductive Technology Bill (2022) is a critical step toward a more regulated surrogacy framework, reflecting societal values and emerging trends. As the legal and ethical considerations surrounding surrogacy continue to evolve, Kenya must rise to the occasion and enact sound legal frameworks to protect the children born out of such surrogacy arrangements by providing a legal framework to govern such arrangements.
B M Musau & Co., Advocates LLP is a top-tier legal services provider on emerging legal trends like surrogacy in the Kenya jurisdiction and beyond. While this is a general commentary aimed at providing information, if you require any specific assistance on this or any other emerging area of law, please reach out to us via email on info@bmmusau.co.ke
I am a Kenyan Advocate and the Managing Partner of B M Musau & Co., Advocates, a position I have held since 1999. My work encompasses regulatory reforms, reduction of administrative burdens, the structure of business entities, joint ventures, acquisitions, banking, foreign investment and other general corporate areas
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