Kenya’s fertility clinics carry out IVF-assisted surrogacy routinely, yet Kenyan law has no dedicated surrogacy statute. This gap creates a well-known but poorly understood problem: intended parents who are the child’s genetic parents can find themselves legal strangers to their own child at birth. Under Kenyan law, legal parenthood is strictly binary: a person acquires parental rights and responsibilities either naturally by biological birth or judicially through adoption. Kenya does not yet have an operational, dedicated statutory framework for Assisted Reproductive Technology (ART). Consequently, surrogacy agreements, even when entered into voluntarily prior to conception, are treated merely as private civil contracts under the Law of Contract Act (Cap 23).
Why is surrogacy in Kenya legally complicated when it is medically routine?
Because there is no statute dedicated to surrogacy or assisted reproductive technology. Parties rely entirely on a private surrogacy agreement, enforceable at most as an ordinary civil contract under the Law of Contract Act. The High Court has repeatedly lamented this gap, most notably in JLN & 2 Others v Director of Children Services & 2 Others, where it observed that:
“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. In such circumstances, it is the duty of the State to protect the children born out of such arrangements by providing a legal framework to govern such arrangements.”
Surrogacy arrangements in Kenya are undertaken through private agreements between the intended parents and the surrogate mother, usually alongside medical arrangements with an IVF clinic. However, a private surrogacy agreement cannot, by itself, determine legal parentage, transfer parental responsibility or compel the Registrar of Births to register the intended mother as the child’s mother.
What does the law currently say about who is registered as the child’s mother at birth?
Under Section 10 of the Births and Deaths Registration Act (Cap 149), the person who gives birth to the child is the person the hospital records and the Registrar of Births registers as “mother,” regardless of the genetic origin of the embryo she carried. The Act has no concept of an “intended parent,” a “genetic parent,” or a “commissioning parent.” It registers a biological event — who gave birth — not a genetic or intended relationship.
| Key point
No provision of Kenyan law currently allows a hospital or the Registrar of Births to enter an intended parent’s name as “mother” on the original birth notification or certificate, even where that parent supplied the egg and the pregnancy resulted from IVF. |
If the intended mother provided the egg, why does genetics not matter for the birth certificate?
Because Kenyan birth registration law defines motherhood by pregnancy and delivery, not genetic contribution. Until a court order says otherwise, the surrogate is the child’s legal mother, with full parental rights and responsibilities, even in a purely gestational surrogacy where she has no genetic link to the child at all.
How is motherhood transferred from the surrogate to the intended genetic parents?
Because the surrogate is recorded as the mother at birth, legal motherhood must be extinguished and re-vested. An adoption order made by the High Court under the Children Act,2022 is presently the only established statutory mechanism capable of permanently:
- Extinguishing the parental rights and responsibilities attached to the surrogate mother;
- Vesting parental rights and responsibilities in the intended parents;
- Recognising the intended parents as the child’s legal parents;
- Creating a legally recognized parent-child relationship;
- Supporting the correction or alteration of the child’s registration records;
- Giving the child inheritance rights through the adoptive parents; and
- Providing documentation capable of recognition by immigration, consular and foreign authorities.
Section 202 of the Children Act provides that, once an adoption order is made, the rights, duties, obligations and liabilities relating to the child vest in the adopter as though the child were born to the adopter. The corresponding rights and liabilities of the previous legal parents are extinguished.
Kenyan courts have confirmed, sometimes with visible discomfort, that intended parents must formally adopt their own biological child to become its legal parents — see In re Adoption of Baby NWM (Adoption Cause E074 of 2025) [2025] KEHC 8141 (KLR), where the court allowed the adoption of a child born through a surrogacy arrangement by the intended parents based on the ordinary adoption prerequisites in section 184(1) of the Children Act.
A custody, residence or guardianship order may confer authority to care for or represent a child, but it does not ordinarily produce the complete and permanent transformation of legal parentage achieved through adoption.
Could the parties instead rely on the surrogacy agreement, a deed, or an affidavit to transfer parenthood directly?
No. Parental rights and responsibilities are a legal status that only the law, in practice, a court, can confer or remove; they cannot be assigned by private contract. A surrogacy agreement remains useful and enforceable for what it can lawfully govern (expenses, conduct, cooperation, consent to adoption), but it cannot change legal parentage. Equally, any attempt to have a hospital record the intended parents directly as the child’s parents at birth is not a shortcut; it risks a false registration and exposure under child trafficking and child protection law. Our earlier article, Introduction to Surrogacy in Kenya, sets out the contractual dimension of a surrogacy arrangement in more detail.
What are the legal prerequisites for adoption that intended parents must meet?
The Children Act, 2022 (sections 183–204) and the Children (Adoption Proceedings) Rules, 2023 set out the framework, applied by the High Court’s Family Division. In outline:
- The child must have attained six weeks of age before an adoption application may be filed.
- A registered adoption society must assess the child and the prospective (intended) parents and issue a report recommending adoption, including, in a surrogacy case, a declaration of freedom for adoption supported by the surrogate’s informed written consent.
- A supervised bonding or probation period with the intended parents normally precedes filing.
- The petition is filed in the High Court under section 183/184, supported by the society’s report, proof of the bonding period, the child’s existing birth certificate, medical reports, and consent documentation.
- The court appoints a guardian ad litem, an independent advocate who investigates and reports on the child’s best interests.
- The matter is heard in chambers to protect the identities of the parties before the court decides whether to grant the adoption order.
For the full step-by-step process, prerequisites, and required documents, see our earlier guide, A Comprehensive Legal Guide to the Adoption Process in Kenya.
What does the law say about foreign nationals adopting in Kenya, and what conditions apply where one or both intended parents are non-citizens?
This is the area requiring the most caution. In September 2019, the Cabinet imposed an indefinite moratorium on inter-country and foreign-national adoptions, following an earlier 2014 moratorium, both driven by child trafficking concerns; that restriction was later adopted by Section 186 (6) of the Children Act 2022, in providing that a court shall not make any adoption order in favor of a foreign a applicant except where the applicant is a biological relative of the child. However, in In re LMG (Child) (Adoption Cause E184 of 2022) [2023] KEHC 18227 (KLR), the High Court declared the 2014 moratorium and section 17 of the Seventh Schedule unconstitutional as an unjustifiable infringement of the child’s best interests, and authorized a Kenyan Spanish couple to jointly adopt, on the basis that their marriage “localised” the adoption under Kenyan law.
| Practical caution
LMG was decided on its own facts: a marriage between a Kenyan citizen and a foreign national. It is not a general repeal of the restriction on adoption by foreign nationals with no Kenyan connection, and administrative practice at the Department of Children’s Services remains cautious. Each foreign-parent case must be assessed on its specific facts, and current departmental and adoption-society practice should be confirmed before advising a client to proceed; this is decisive for clients where both intended parents are foreign nationals. |
What is the current status of the Assisted Reproductive Technology Bill, 2022?
The Bill, sponsored by Hon. Millie Odhiambo Mabona, was passed by the National Assembly on 11 November 2025 and is currently before the Senate. It is not yet law, and until it completes the Senate process, receives presidential assent, and is brought into force, it has no legal effect. It distinguishes altruistic surrogacy (covering only reasonable medical and pregnancy-related expenses) from commercial surrogacy, which it prohibits outright. It would establish an Assisted Reproductive Technology Directorate to license and regulate clinics and agencies. Read our articles on Analyzing the Kenyan Assisted Reproductive Technology Bill 2022 and Assisted Reproductive Technology Bill Approved Paving Legal Path to Parenthood
How would the ART Bill change the transfer of parental rights, once enacted?
The Bill would introduce a statutory mechanism for transferring legal parentage from the surrogate to the intended parents, replacing the current reliance on adoption or court-ordered parental declarations. The Bill resolves the parentage transfer in the following ways:
- Statutory Extinguishment of the “Birth Mother” Presumption: It formally decouples legal parentage from physical gestation in valid surrogacy agreements.
- Direct Recognition of Commissioning Parents: The Bill provides that commissioning parents who enter into a compliant, registered surrogacy agreement assume full parental rights and responsibilities over the child immediately upon birth, without needing to undergo an adoption process.
- Direct Civil Registration: It empowers the Registrar of Births and Deaths to issue the initial birth certificate naming the commissioning parents as the child’s parents, provided an authorized ART clinic certifies the IVF procedure and agreement.
- Strict Ban on Commercial Surrogacy: The Bill permits only altruistic surrogacy (reimbursement of reasonable medical, nutritional, and legal expenses) and criminalizes commercial transactions or broker agencies with fines up to KES 5,000,000 and/or prison sentences up to 5 years.
What other critical matters must intended parents keep in mind?
- Enforceability of Surrogacy Contracts: Until the ART Bill is enacted, agreements are governed by general contract law. Courts will enforce provisions related to child welfare, but agreements containing commercial remuneration or penalty clauses may be struck down as contrary to public policy. Therefore, the arrangement should be altruistic in substance (expenses only), not payment for the child, to avoid exposure under child trafficking law.
- The child’s citizenship: because the child is registered at birth with a Kenyan surrogate as mother, Kenyan citizenship typically attaches immediately, which can complicate travel or exit for foreign intended parents before the adoption is finalized.
- Immigration and Passports for Cross-Border Couples: Foreign embassies in Kenya (such as the UK, US, and Schengen missions) require stringent proof of legal parentage before granting visas or passports to babies born through surrogacy. If the local birth certificate initially lists the surrogate, consular authorities will demand a fast-tracked adoption order or high-court parental declaration.
- Independent Legal Representation: To prevent claims of undue influence or lack of informed consent, the surrogate and commissioning parents must have independent legal counsel before executing the surrogacy agreement.
- Timeline: The process, from birth to a final adoption order and amended birth certificate, realistically takes several months and can run longer if any stage is contested.
- Interim custody: Intended parents may need an interim custody or guardianship order to bridge the period between hospital discharge and the final adoption order.
Frequently Asked Questions About Surrogacy and Adoption in Kenya
Q: Is surrogacy illegal in Kenya?
A: Surrogacy is not expressly prohibited, but it is not comprehensively regulated. Parties presently rely on private agreements, existing children and registration laws, and judicial guidance.
Q: Is a surrogacy agreement legally enforceable?
A: It may be relevant as a private contract, but provisions affecting parenthood, custody and the child’s welfare remain subject to the Constitution, the Children Act and the Court’s jurisdiction.
Q: Can the genetic mother be entered as the mother immediately after birth?
A: Under the current legal framework, no. The woman who gives birth should be registered as the mother pending the legal transfer of parenthood.
Q: Can DNA evidence replace adoption?
A: No. DNA evidence establishes genetic connection but does not itself transfer legal motherhood or parental responsibility.
Q: Must the surrogate consent to adoption?
A: Ordinarily, yes. Her consent should be informed, independently witnessed, and given only after the child has attained the legally prescribed age. A court may dispense with consent only on recognized statutory grounds.
How can Njaga & Co. Advocates LLP assist?
At Njaga & Co. Advocates LLP’s Family Law Department, we advise intended parents, surrogate mothers, fertility clinics and families on the legal implications of IVF, surrogacy, adoption and international parentage. We advise intended parents and surrogates at every stage of a surrogacy arrangement in Kenya, from drafting and negotiating the surrogacy agreement, through coordination with a registered adoption society, to prosecuting the adoption petition before the High Court Family Division and amending the child’s birth certificate once the adoption order is granted. We also advise foreign intended parents on the citizenship, immigration, and cross-border documentation issues that arise along the way.
Disclaimer: This article provides general information and does not substitute legal advice on specific circumstances of any individual or organization. While the information is accurate as of the date published, we cannot guarantee it remains accurate at the time you read it or that it will stay current. Before acting on any of this information, please seek professional legal advice tailored to your situation.
