Legal Clinic: What does the law say about surrogacy?

Dear Eric,
I am curious to know what the law says about surrogacy in Kenya. Does the mother who carried the child have any rights? Does the mother who wants the child then adopt the child? 

Dear Reader,

Surrogacy, in its most basic definition,  is the process of accepting, carrying, and delivering a child or children on behalf of another person. Scientifically, it is assisted reproduction where intended parents or parent agree with a surrogate mother to carry and care for the baby or babies until birth. It could be seen as an exercise of nine-month womb renting. It is a concept riddled with controversies, just as sperm banking. The fairness of juxtaposing these two practices is derived from the need to demonstrate the impact of such scientific milestones on traditional societies’ understanding, packaging, and unpacking of conceptualisation, marriage, parenting and attendant laws if any.

As a country, we seem terrified with these concepts that scientifically expand opportunities for couples or individuals hitherto unable to have children to enjoy the possibilities of having and raising their own, notwithstanding our diverse religious, racial, sexual and gender orientations. In it, we address issues of law, practice, and human rights severally and jointly.

Even without the law, as is the case of Kenya, your question raises fundamental relationship issues that must be addressed legally. First, there is the relationship between the commissioning parent(s) and the surrogate mother. The former, for various reasons or choice, is unable to have a child but intends to raise one. The latter is the vehicle through which the former realises their desire of becoming a parent.

The surrogate mother then gets us to draw the difference between gestational surrogacy and traditional surrogacy. Gestational surrogacy entails a pregnancy in which one woman (genetic mother) provides the egg, which is fertilised, and another woman carries the foetus and gives birth to the child. In such a case, the surrogate has no genetic tie to the child.

In traditional surrogacy, a woman provides her egg which is fertilised by artificial insemination and carries the foetus and gives birth to the child for another person. In both regards, the parties in the transaction operate on what would qualify as a contract for service, otherwise known as a surrogacy agreement. Such contracts are as private, as many, and as difficult to govern in the mainstream of law.

Second is the relationship between the anticipated child and the two sets of parents: the landlady (the one who rents out the womb), and the tenant (whose baby occupies the womb). Since there is no substantive law, we will employ the wisdom of courts on such matters in Kenya. In making decisions, courts have been guided by Article 53 (2) of the Constitution, which provides for the principle of the best interest of the child. 

Whether born in gestational or traditional surrogacy, besides the ideal mother-father loins relationship, there is a presumption in law that the mother who carries the foetus to successful birthing suffices as the actual and legal mother of the child. 

This was canvassed in the matter of A.M.N. & 2 Others vs  Attorney General & 5 Others, Petition No. 443 of 2015, where the court directed that such status shall remain, not unless legal adoption process is applied successfully to dispossess and transfer legal motherhood to the commissioning parent. Similarly, the court established a genetic father to be the legal father until such a legal process is invoked to transfer legal parenthood to the mother. 

Controversies

Following, are some of the controversies that are wired in the multiplicity of morality, religion, cultural and gender beliefs, alongside the consequential urgency for legal discourse. If the right of a child to identity is to be strictly promoted as provided for in Article 53 (1-a) of the Constitution, notwithstanding anticipated challenges, then the questions of confidentiality between and across the genetic and non-genetic sets of parents involved beginning to bite people’s conscience.

If the right of the actual mother to relate with their child, in whichever form the pregnancy was arrived at is invoked, then relationships between those parents get tested. If the lacuna in law persists, and adoption processes remain controversial, especially when children seek to know their real biological parents, then an opportunity for legal innovations continues to expand. This, therefore, justifies the urgency to have a comprehensive law in place to govern this emerging practice. 

To address some of the controversies including stemming bad relational practices like exploitative medical tourism and disenfranchisement of children from such processes, the National Assembly has debated and passed the In-Vitro Fertilization Bill 2014 and on April 20 ,2016 forwarded it to Senate for consideration. The bill intended to regulate in-vitro fertilisation, prohibit certain practices as aforementioned in connection with in-vitro fertilisation, establish an in-vitro fertilisation authority and make provision concerning children born of in-vitro fertilisation process and for connected purposes.

Other related attempts have been made through the Reproductive Healthcare Bill, 2019 No 23 of 2019 at the Senate and the Assisted Reproductive Technology Bill No 34 of 2019 at the National Assembly. We hope that discussions on this subject will lead to the realisation of a comprehensive legal and policy framework in the not-so-distant future. 
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Mr Mukoya is a lawyer with over 17 years of experience. He's the Executive Director, Legal Resources Foundation. Legal query? E-mail [email protected]