A Legal, Ethical, and Practical Guide
In many cultures and societies, the desire to have children is deeply rooted and often linked to fulfilling personal, familial, and societal expectations. Children are seen as the continuation of lineage, the carriers of legacy, and a source of joy and fulfillment. However, the journey to parenthood is not straightforward for everyone. For various reasons, including medical, social, or personal challenges, some individuals and couples find themselves unable to conceive or carry a pregnancy to term. This is where surrogacy becomes a beacon of hope for many aspiring parents.
Surrogacy, an arrangement where a woman (surrogate) carries and delivers a child for another person or couple (intended parents), has emerged as a significant option for those facing infertility issues or other barriers to traditional childbearing. The reasons for choosing surrogacy are as diverse as the individuals involved. From medical conditions that make pregnancy impossible or risky to same-sex couples wanting to have a biological connection with their child and single individuals opting for parenthood, surrogacy opens doors that were once closed.
In Kenya, surrogacy is not a hypothetical issue anymore. It is real, and many Kenyans are resorting to surrogacy as an alternative to being parents, especially those who cannot, for medical reasons, have their own children. Subsequently, the conversation around surrogacy is evolving, spurred by changing social attitudes, advancements in reproductive technology, and a growing awareness of the diverse needs of aspiring parents. However, this evolution is not without its challenges. For a start, in Kenya, we do not have specific legal frameworks regulating surrogacy arrangements. The absence of a legal framework is further worsened by ethical, societal, and religious dilemmas surrounding surrogacy.
This article seeks to explore the somewhat uncharted world of surrogacy in Kenya, exploring the legal, ethical, and practical dimensions of this reproductive option. It aims to provide a comprehensive understanding of the surrogacy landscape, highlighting the legal precedents, the surrogacy agreements, the implications of the proposed Assisted Reproductive Technology Bill (2022), and the broader societal perspectives that shape surrogacy in Kenya today.
Legal Framework for Surrogacy in Kenya
In Kenya, we are in a state of evolution regarding the surrogacy legal framework. We do not have a specific and clear legal framework. In the absence of specific surrogacy laws, Kenya’s surrogacy practices have been operating under the umbrella Law of the Contract Act. The regulation of surrogacy as a commercial engagement where surrogacy contracts are executed has resulted in a grey area, particularly in parental rights recognition; who between the surrogate mother and the intended mother is the mother of the child? It is noteworthy that under the Children Act, one can only become a child’s parent either through birth or through adoption. This situation has resulted in some surrogate mothers declining to hand over the child to their intended mother and also the challenge of the registration of the child. Every child has the right to be registered in the Register of Births immediately after birth in accordance with the Births and Deaths Registration Act (Cap. 149). In the case of JLN & 2 others v Director of Children Services & 2 others, Petition 78 of 2014, WKN and CWW entered into a surrogacy agreement with JLN, who consented to be a surrogate mother by undergoing in vitro fertilization. Following the delivery of the children, the issue arose as to whether CWW should be registered as the mother of the children in the Acknowledgement of Birth Notification (“the Notification”) required under the Births and Deaths Registration Act (Chapter 149 of the Laws of Kenya) rather than JLN, the birth mother. Section 10 of the Births and Deaths Registration Act imposes a duty to the hospital to register the child to the person giving birth to it, that is, the birth mother. With that law, the Hospital sought guidance from the Director of Children’s Services pursuant to section 38(1) of the Children Act. The Court held such sought of guidance from either the Director of Children Services or the Principal Registrar of Births and Deaths was permissible in the absence of surrogacy laws. From this, it is undeniable that the Kenyan laws seem to hold that a host woman (surrogate mother) is presumed to be the mother of a surrogate child until other legal processes, e.g., adoption or transfer of the parental rights, are applied to transfer legal motherhood to the intended woman.
It is critical to note that despite the lack of a legal regime surrounding the surrogacy issue, the court or any persons dealing with the issues must, in accordance with Article 57 of the Constitution, decide the issue on the basis of the best interests of the child. The principle of the paramount nature of the best interests of the child/ren is reinforced in section 4(2) of the Children Act, which states,
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
A child born out of a surrogacy arrangement is no different from any other child. It is in acknowledgment of the unregulated surrogacy scope in Kenya and the need to protect the children born out of surrogacy arrangements that the Hon. Millie Odhiambo Mabona, Member of Parliament, Suba North Constituency, introduced the Assisted Reproductive Technology Bill (2022),
A Bill of Parliament 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; to make provision in relation to children born of assisted reproductive technology processes and for connected purposes, in the National Assembly.
The Bill, which is in its introductory stages, is a significant step towards formalizing surrogacy, addressing these issues, and setting standards for surrogacy agreements.
Types of Surrogacies
In Kenya, as in many other parts of the world, surrogacy is generally categorized into two main types:
- Traditional Surrogacy: In traditional surrogacy, the surrogate mother is also the biological mother of the child. This means that her egg is used, and she is impregnated typically through a process called intrauterine insemination (IUI). The sperm used for fertilization may come from the intended father or a sperm donor. In this scenario, since the surrogate mother is the egg donor, she has a genetic link to the child.
- Gestational Surrogacy/Full surrogacy: Gestational surrogacy is where the surrogate mother has no genetic link to the child she carries. In this type of surrogacy, an embryo created through in vitro fertilization (IVF) is implanted in the surrogate. The embryo could be created using the egg and sperm of the intended parents, a donated egg fertilized with the intended father’s sperm, or an embryo created using donor eggs and sperm. The surrogate mother only gestates the embryo, which is usually created from the eggs and sperm of the intended parents.
Surrogacy Contracts
The Black’s Law Dictionary defines a contract as follows: –
An agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law.
It follows that a surrogacy contract is a legal agreement entered between the surrogate mother and the intended parents outlining their scope of engagement. A surrogacy contract is crucial in surrogacy arrangements as it clearly defines the roles, responsibilities, and expectations of all parties involved and helps to prevent misunderstandings and legal disputes. Section 28 of the proposed Assisted Reproductive Technology Bill (2022) outlines the key aspects of what a surrogacy contract entails, e.g., the capacity of the parties, consent, rights, and obligations of the parties, be in writing, and be executed by the parties, among other provisions.
From the reading of section 28 (7) of the Bill, which provides that;
“The parties to a marriage shall not give any monetary or other benefits to the surrogate mother other than for expenses reasonably incurred in the process of surrogacy.”
Kenya seems to prohibit surrogacy for its commercial and speculative nature.
Parental Rights and Responsibilities
As seen from the array of emerging court case laws, the legal determination of parenthood in surrogacy cases in Kenya has been evolving. Kenyan courts prioritize the child’s best interests while balancing the rights of intended parents and surrogates. The child’s best interest principle, as seen above, provides that in any matter dealing with the child, their interests must be given paramount consideration beyond everything else.
However, with regards to Section 10 of the Births and Deaths Registration Act, which provides the mother of the child as the one who gave birth to the child rather than the genetic parents, seems to deny the child the right to genetic identity and accordingly calls for inclusion of the genetic parents in the birth notification. The regard of the birth mother as the mother of the child despite there being a valid surrogacy contract between the parties further complicates the parental rights and responsibilities. As it stands, the surrogate mother seems to have more rights and responsibilities as the child mother as opposed to the surrogate parents.
Importantly, Kenyan law holds that a person can only acquire a child’s parental rights and responsibilities through either birth or adoption or guardianship orders, thus further complicating the matter. The lack of a clear legal framework has occasionally led to conflicts, underscoring the necessity for specific surrogacy laws.
Ethical and Social Considerations
Surrogacy in Kenya raises a myriad of ethical and social considerations. On one hand, surrogacy provides an opportunity for individuals who cannot conceive naturally to have children. This can bring immense joy and fulfillment to aspiring parents. However, it also raises questions about the commodification of women’s bodies, particularly in a country where poverty rates are high, and women may feel compelled to become surrogates out of financial necessity. The Bill in sections 15, 28 & 32 seeks to address the issue of commercial surrogacy by providing that surrogacy is only for procreation purposes and prohibits surrogacy for speculative and commercial purposes. It also restricts the sale of human gametes, zygotes, and embryos and prohibits commercial artificial reproduction. There are also concerns about the rights of surrogate mothers and whether they are adequately protected under Kenyan law. Socially, surrogacy challenges traditional notions of parenthood and family, which can lead to stigmatization and discrimination against both the surrogate mothers and the children born through surrogacy. Therefore, while surrogacy offers potential benefits, it also necessitates careful ethical and social consideration.
International Surrogacy and Cross-border Legal Issues
International surrogacy involves complex legal challenges due to the lack of harmonized laws across jurisdictions. Some jurisdictions have very comprehensive surrogacy laws. For instance, in jurisdictions such as France, Iceland, and Italy, the surrogate mother has no parental rights over the child, and the child born is legally the child of the prospective parents. Accordingly, international surrogacy arrangements present a complex web of legal issues that span across borders. The core legal issues can be categorized into three broad areas:
- recognition of a legal parent-child relationship established through surrogacy abroad;
- removal of the child from the intending parents and;
- travel restrictions on children born through cross-border surrogacy.
The intended parents may face legal problems before returning to their countries of origin or when trying to have their children legally recognized in their countries. In the landmark case of AMN & 2 others v Attorney General & 5 others (Petition 443 of 2014, which was triggered by an unsuccessful application for the petitioners’ surrogates’ children for British Citizenship. This is despite the Kenyan authority agreeing to register the children in the names of their intended parents’ details. The UK Passport Office was of the view that Kenya does not have any surrogacy laws. Accordingly, any purported documents giving the applicants parental rights from a surrogacy arrangement were considered untrue and unacceptable on the grounds that surrogacy is not recognized in Kenya. As a result, the documents supplied by the Petitioners for their children’s application were not acceptable. They advised that for the children to acquire British Citizenship, the most appropriate approach would have been adoption or registration as British Citizens. The Kenyan court, while holding that the only viable option available for the parents was through adoption, observed that:
“Legal parentage is a matter of law, and on surrogacy arrangements, the Kenyan law is silent. Accordingly, one can only be a parent through either birth or through the adoption process. Accordingly, the birth certificates and the Kenyan Passports were issued in error and contravention of the law (albeit in good faith), and both, therefore, ought to be amended to reflect the fact that while Y remains the biological father, Z (the surrogate mother) should be recorded as the biological mother in place of X (the genetic mother) pending the finalization of the adoption process.”
The lack of international regulation on international surrogacy arrangements has left it to the judges to solve the consequent issues, either before national jurisdictions or international ones. Further, the conflicts of jurisdictional laws on matters of surrogacy have had painful experiences for the involved parties, resulting in stateless and parentless children. There is an urgent need for a potential legislative framework for an international instrument that could regulate cross-border surrogacy arrangements. This would aim not to standardize but to provide common legal solutions to those people traveling abroad to have a child through surrogacy.
Commercial Surrogacy: Legal and Economic Aspects
Commercial surrogacy is the process of the practice of paying a woman to carry and deliver a child for another person or couple. There is no universal consensus on how to regulate commercial surrogacy, and different countries have adopted different approaches, ranging from prohibition to legalization. Jurisdictions such as the United States, Ukraine, Georgia, Russia, Colombia, etc., have allowed commercial surrogacy. However, despite the legalization, there are still issues on whether foreigners can engage in commercial surrogacy due to human trafficking concerns. Countries such as Australia, Britain, Canada, and European Union member states prohibit commercial surrogacy. Kenya, through its proposed Assisted Reproductive Technology Bill (2022), seems to have adopted a prohibitory stance on commercial surrogacy.
Dispute Resolution in Surrogacy Agreements
Like any other contractual arrangements entered into by human beings, disputes are bound to arise. The possible disputes relating to surrogacy agreements include the legal parentage and nationality of the child, the rights and obligations of the surrogate mother, the compensation and expenses of the surrogacy arrangement, and the custody and access to the child. These disputes may have serious legal and emotional consequences for the parties and the child and may require judicial intervention to resolve them. The Kenyan courts have had an opportunity to ventilate on these disputes, majorly touching on the legal parentage. While observing that the country needs to have an urgent policy and legal framework on surrogacy, courts have been holding that in the absence of such framework, legal parentage is only bestowed through birth and adoption, thus leaving the commissioning/intended parents in a precarious position. Therefore, there is a need for comprehensive and clear legislation that would provide for the regulation of surrogacy agreements, the recognition of the legal status of the child, and the establishment of effective and accessible dispute-resolution mechanisms for surrogacy-related conflicts.
Conclusion and Future of Surrogacy in Kenya
From the foregoing, it is evident that surrogacy in Kenya is no longer a hypothetical issue anymore. It is real, and many Kenyans, more so those who are medically and biologically incapable of having their own children, are resulting in surrogacy as an alternative to being parents. However, a sound surrogacy legal and policy framework is absent, making the issue of surrogacy an unregulated and complex matter where parties are uncertain of the legal legitimacy of their entered-into surrogacy contracts. In such circumstances, the State 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. It is very promising that there are multiple concerted efforts from both the legislature and the court’s decisions to fast-track the enactment of a surrogacy framework. Assisted Reproductive Technology Bill (2022 is a critical step toward a more regulated surrogacy framework, reflecting societal values and emerging trends.
