Judicial Pronouncement on Surrogacy Practices in Kenya: Insights & Impact

Surrogacy refers to an arrangement where a woman carries a pregnancy and hands over the child to a contracted party/commissioning parents upon birth. The surrogate mother has no genetic link with the child, the surrogate mother only gestates the embryo which is usually created from the eggs and sperm of the commissioning parents. 

The emergence of surrogacy practices has provided hope, if not assurance, for women who are unable to carry pregnancy due to medical conditions, enabling them to have children with their own genetic material. 

Surrogacy has been widely accepted and practiced in various jurisdictions across the globe. In Africa, for instance in the Republic of South Africa, legislation governing surrogacy is contained in Chapter 19 of the Children’s Act No. 38 of 2005, which outline the criteria that must be met before the High Court can confirm Surrogate Motherhood Agreement.

The practice is fast gaining roots in the Kenyan society, with a number of families opting for surrogacy despite the absence of laws, policies, regulations and professional guidelines regulating the practice. 

Interestingly, Kenyan courts have appreciated the new challenge and are well in touch with the felt necessities of the contemporary Kenyan society. They have expressed their willingness to adjudicate surrogacy cases despite the absence of specific laws, policies and guidelines. Case in point, in JLN & 2 others v Director of Children Services & 2 Others [Petition No. 78 of 2014], the court was of the view that surrogacy is not a hypothetical issue anymore. It is real and many Kenyans are resulting to surrogacy as an alternative to being parents especially for those who cannot for medical reasons have their own children. A child born out of a surrogacy arrangement is no different from any other child and thus entitled to constitutional protection provided under Article 57 of the Constitution. 

In addition, the court affirmed the decision in Organization of National Empowerment v Principal Registrar of Persons and Others Nairobi Petition No. 289 of 2012 [2013] eKLR where it was held that adopted children were entitled to a birth certificate as opposed to an adoption certificate. Likewise, a child born out of a surrogacy arrangement is entitled to the identity of his or her genetic parents and in principle, the registration of the genetic parents as opposed to the surrogate mother as a parent must be permitted. In the event of a dispute, the Children’s Court or the High Court may be called upon to give the necessary direction as who is to be registered as the parent by applying the principles of the best interests of the child in the absence of legislative framework. 

Conversely, in AMN & 2 Others v Attorney General & 5 Others [Petition No. 443 of 2015], the court took a contrary opinion stating that a surrogate mother is the legal mother until a legal process is invoked to transfer legal parenthood to the mother. The commissioning father is the genetic and social father, however, if the surrogate mother is married, the partner of the surrogate mother becomes the legal father of the surrogate child in place of the genetic father. The genetic mother, absent legal intervention, has no status other than the emotional and social status of being the surrogate child’s psychological mother. This remains the case unless the child is subsequently adopted by the commissioning parents or parenthood transferred through a parental order. 

In summary, Kenya lacks conclusive legislative and institutional policy framework for surrogacy. The Kenyan Courts have appreciated this new challenge and are well in touch with a felt necessities of contemporary society. However, they have developed unstructured and intermittent jurisprudence on the recognition and enforcement of surrogacy agreement. 

While some have held that commissioning parents must be entered in the birth notification as well as birth certificate, others are of the view that such issuance of birth certificate is unlawful. The back and forth movement of the Kenyan Courts on their treatment and approach to surrogacy has occasioned uncertainty in the legal practice. 

In light of the foregoing, the government should develop clear legislations and policy guidelines to regulate surrogacy and ensure the protection of children born out of such arrangements. Some notable recommendations include: 

1. The need for a policy on surrogacy in Kenya; 
2. The advisability of the tool of parental orders in the transfer of legal parentage under surrogacy arrangements; 
3. Definition of key terminology in surrogacy transactions; 
4. Implications of a legal recognition of surrogacy in Kenya on all related laws and regulations; 
5. Constitutional implications arising from recognition of surrogacy particularly in the case of same sex couples in Kenya; 
6. Issues of advertising for surrogacy arrangements and involvement of third parties; 
7. The question of commercial versus altruistic surrogacy; and 
8. Implications of surrogacy on medical ethics.