DREAMS AND DILEMMAS: WALKING THE TIGHTROPE OF SURROGACY IN KENYA’S LEGAL SHADOWS

Introduction

Surrogacy, much like a revolving number of nuanced concepts like Artificial Intelligence, cryptocurrency, social justice, and cybercrime, is slowly finding its way into Kenya. In a world where science and societal norms steadily intersect, surrogacy stands as a poignant and discrepant frontier. What began as a lifeline and last defence for those facing infertility has evolved into a complex spectacle encompassing everything from altruistic acts of compassion to commercialized contracts, and the reasons for choosing surrogacy continue to expand. Yet despite its growing prevalence, surrogacy continues to present itself as an apparent grey area often existing in a murky legal zone leaving both surrogates and intended parents vulnerable to exploitation and uncertainty. In this article, Esther Omulele and Sheilla Kamau seek to illuminate the shadows of surrogacy which demands stricter scrutiny and a bold response to it through thoughtful regulation.

While a stranger to the corridors of conventional legislation, informal surrogacy has been around for years. According to the Kenya IVF Fertility and Research Centre, which is a fertility and assisted reproductive treatment clinic in Nairobi, surrogacy is defined as the process whereby a woman, termed the surrogate, agrees to carry and deliver a baby on behalf of the intended mother. It has been an option available to parents whose only recourse to have a child is by way of surrogacy. This may be necessitated by underlying medical conditions, infertility, or any other vitiating circumstances that make childbearing difficult and life-threatening for either the mother or child. There are two types of surrogacy arrangements:

1. Gestational surrogacy- the surrogate will only play the role of being a host. The couple desirous of being parents will provide the gametes which are then implanted into the surrogate’s womb after fertilization through IVF (In Vitro Fertilization).  The child’s genetic make-up matches that of the parents and the surrogate has no biological ties with the child. Further to this, the egg/sperm may be obtained from donors, and thus may not strictly be provided by the couple.
2. Traditional surrogacy-the surrogate mother plays the twin role of being a host and the biological parent of the child. Her egg will be fertilized by the intended father or a donor’s sperm. This type of surrogacy has more legal hurdles as it often raises complex concerns regarding parental rights and the surrogate’s role.

In 2013, Attorney General Githu Muigai made the following observation about surrogacy “…noting advances in medical health and the likelihood that surrogacy arrangements are likely to be witnessed on a more frequent basis in the years to come, there is merit in the government initiating a deliberate process of public policy formulation on the question of surrogacy. The stakeholders (Ministry of Health) may need to consider the following key issues among others during that process:

1. The need for a policy or legislation 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 on surrogacy transactions;
4. The question of commercial versus altruistic surrogacy; and
5. Implications of surrogacy on medical ethics.”

Confronting the complexities of surrogacy in Kenya

In the absence of an explicit regime of law to delimit, surrogacy can hardly be classified as legal. On the other hand, it would be challenging to turn around and argue that surrogacy is illegal. The former holds true because surrogacy arrangements are surrounded by legal grey areas owing to the lack of a comprehensive legal framework governing the same, therefore, the legality, rights and enforceability of such commercial agreements are thrown into question. The latter is equally weighty because even though the country has been slow in passing legislation to deal with surrogacy, such can be valid, justified, and enforced as private contracts worthy of operation under the Law of Contract Act. In the face of this glaring contradiction, what happens when disputes arise and the state is called upon to recognize and provide remedies to the parties?

From the onset, it is perhaps pivotal to state that despite what the commercial agreement/contract says with regard to parenthood, the “surrogate is the legal mother and the genetic father is the legal father until a legal process is invoked to transfer legal parenthood”. This was the holding by Judge Ibrahim Lenaola (as he then was) in Petition 443 of 2014 AMN & 2 Others v Attorney General and 5 Others (2015) eKLR. The brief facts of the case were that the Petitioners entered into a surrogacy arrangement after the intended mother was diagnosed with secondary infertility. However, after IVF failed, the couple resorted to traditional surrogacy (refer to the definition above). The pregnancy was successful and the surrogate gave birth to twins whom she handed over to the parents. Subsequently, the Department of National Registration issued two birth certificates.

The parents thereafter sought to travel to the United Kingdom but the application to have the twins granted British citizenship hit a brick wall when the UK Passport Office declined to grant citizenship, stating that the details given on the birth certificates were untrue. While the UK has a legal regime for surrogacy, Kenya does not. In the UK, parental status of surrogate children can only be conferred upon intended parents as a result of an adoption order or a parental order (this is an alternative to the adoption process and secures parenthood in the case of surrogacy, but only if applied for within 6 months after the child is born). The two orders have the effect of transferring legal parenthood from the surrogate to the intended parents. The Court in the instant case recognized the amount of time and resources spent by the intended parents to attain a family unit with the twins. It also noted the fact that legal parentage is a matter of law which in the case of surrogacy, there existed and still exists a lacuna. The Judge therefore ordered that adoption proceedings commence to register the commissioning mother in place of the surrogate as the mother of the twins.

In yet another case, Petition78 of 2014 JLN & 2 Others v Director of Children Services & 2 Others; Kenya National Human Rights Commission & Another (Interested parties) (2014) eKLR, the Court lamented when it was again faced with a surrogacy arrangement for which there was no regulating law. Surrogacy is no longer a hypothetical issue and many Kenyans are resorting to it as an alternative for parents whose only option to have a child is by way of surrogacy. Quoting Article 45 and 53 of the Constitution and provisions of the Children Act, it was held that the overriding consideration when deciding such cases is the best interest of the child. This brings into sharp focus the need to move toward a system that protects the rights and welfare of surrogates and children alike. Strikingly similar sentiments were expressed in Re the Matter of Baby TDL (2014) eKLR and Re MMCH (Child) (Adoption Cause 105 of 2021) (2022) eKLR by Judge William Musyoka (as he then was) and Judge Maureen Odero respectively.

“A child born out of a surrogacy arrangement is no different from any other child, and has the right not to suffer discrimination of any form arising from their surrogate birth.”  The state is therefore called upon to protect such children and any orders made by a Court must be realistic, practical and within the law, seeing as to how delicate and pressing surrogacy is.

Towards a clearer future

Albeit relatively new in Kenya, surrogacy agreements in the country are formalized through private contracts but this is hardly enough. In light of the novelty presented by surrogacy, the state must not shy away from facing the issues that arise therefrom. Notably, in 2023, Parliament was heralded by the Kenya National Commission on Human Rights for tabling The Assisted Reproductive Technology Bill of 2022 terming it as a “very comprehensive bill that attempts to include various issues of concern such as IVF and surrogacy”. The objects and purposes of the bill are to provide a framework for the protection and advancement of assisted reproductive technology services for every person, create an enabling environment for the reduction of infertility and sub-fertility in Kenya, and ensure access to quality and comprehensive assisted reproductive technology services. The bill was introduced on the floor of the National Assembly by Honourable Millie Odhiambo for the first reading on the 5th of May 2023 and has had four subsequent second readings. The motion to have the Bill proceed to the Committee Stage is yet to be passed. If the bill completes the full cycle of the legislative process and is assented into law, it will be the one single piece of legislation regulating surrogacy agreements in Kenya.

The pursuit of surrogacy has legal as well as ethical considerations. The surrogacy industry much like many other controversial and passively abrasive topics that countries have shied away from regulating, has both supporters and opponents. On the one hand, proponents of surrogacy argue that it offers hope and access to parenthood to individuals and couples unable to conceive. It is also a financial opportunity for women who need the compensation attached to becoming a surrogate. Additionally, we cannot ignore cases of altruistic surrogacy where the surrogate’s motivation is often driven by a desire to help others and not necessarily for financial gain. On the other hand, critics have argued that surrogacy reduces a woman’s body and reproductive capabilities to a transactional service and that the practice will never fully eliminate the potential exploitation tied to the commercialization of wombs. Not to mention the psychological, emotional, and health complications that come with pregnancy. With compelling arguments on both sides, it is a deeply polarizing issue with the two divides raising radical concerns. This duality underscores the urgent need for robust government regulation.

In the words of AJ Skweyiya, in one of his cases as a Judge of the Constitutional Court of South Africa “…The institutions of marriage and family are important social pillars that provide security, support, and companionship between members of our society and play a pivotal role in rearing children. However, we must approach the issues in the present matter on the basis that family life as contemplated by the Constitution can be provided in different ways and that legal conceptions of the family and what constitutes family life should change as social practices and traditions change.” In the present day, some women are choosing to consider surrogacy as a family-building option for personal convenience or professional reasons reflecting a shift in societal attitudes towards reproduction and parenthood. As society evolves, so too must our laws. By embracing clarity through enacted laws in the legal landscape, Kenya can foster a supportive environment that honours the profound journey of parenthood, ensuring ethical and equitable practices in surrogacy arrangements while acknowledging that surrogacy is increasingly offering a solution to medical necessity and at the same time, is a reflection of societal change.

Get regular updates on our LinkedIn page

https://www.linkedin.com/pulse/dreams-dilemmas-walking-tightrope-surrogacy-2x8nf