What is the legal position in Kenya regarding surrogacy, specifically on the registration of the mother on a birth certificate? Should the name recorded be that of the surrogate (birth giver) or the gamete donor? Additionally, what legal remedies are available when registration disputes arise in surrogacy arrangements?
Surrogacy in Kenya is increasingly becoming a pathway through which individuals and families experience parenthood, yet it operates within a significant legal vacuum. The country has no dedicated statute governing surrogacy or assisted reproduction, and Parliament has not enacted a substantive law to regulate these arrangements.
As a result, surrogacy is managed through a patchwork of constitutional principles, judicial decisions, and administrative practices under the Births and Deaths Registration Act. This absence of clear legislation creates uncertainty, and without timely intervention by family courts, families using or intending to use surrogacy may face emotional, legal, and practical complications.
A central question in surrogacy concerns who is recognised and registered as the mother of the newborn. Under current administrative practice, the mother is presumed to be the woman who carries the pregnancy and delivers the child. This default position does not consider the commissioning mother or the donor of the reproductive material.
The Births and Deaths Registration Act predate modern reproductive technologies and therefore never contemplated surrogacy, gamete donation, or intended parenthood. Without a clear surrogacy agreement, this default can become a source of conflict between the surrogate (birth giver) and the commissioning parents, especially where expectations and obligations are not well defined.
Constitutionally, the best interests of the child become central from the moment of conception. Article 53(2), read together with Articles 26 and 45, anticipates protection of the unborn child, given that abortion is only permissible in life threatening circumstances for the mother.
These provisions, combined with rights to equality, dignity, and non discrimination, ensure that the child’s welfare is paramount. Courts have consistently held that disagreements between adults, whether arising from conception, surrogacy, or parental arrangements, must never compromise the wellbeing of the child. The child must remain insulated from disputes surrounding the surrogacy agreement.
The landmark case of JLN & 2 Others v Director of Civil Registration (2014) remains the most authoritative judicial pronouncement on surrogacy in Kenya. The High Court affirmed that surrogacy is lawful and that intended parents should be recognised as the legal parents where there is a valid surrogacy agreement and clear evidence of intention.
The court emphasised that every child has a right to certainty of parentage, a right to family, a right to a name through a birth certificate, access to health services, and protection from discrimination arising from the circumstances of their birth. It further held that the State has a duty to create a legal framework to govern surrogacy arrangements.
In the absence of legislation, the court relied on Article 53 of the Constitution: the paramountcy principle to guide its decision. It held that forcing a surrogate to be registered as the mother when she never intended to parent the child violates constitutional rights, including dignity, equality, reproductive autonomy, and the best interests of the child. Consequently, the court directed the Director of Civil Registration to enter the commissioning parents’ names on the birth certificate.
The JLN decision also clarified the position of gamete donors. Whether egg or sperm donors, they are not recognised as legal parents unless expressly stated in the surrogacy agreement. Their anonymity remains protected, and they do not acquire parental rights or obligations. This means that the legal question is not whether to register the donor or the surrogate, but whether to register the surrogate (default) or the intended mother (with a court order).
When errors or disputes arise in birth registration such as listing the surrogate instead of the intended mother, Kenyan law provides several remedies. The most common is applying to the High Court for a parental order or a declaration of parentage. Such orders formally recognise the intended parents and direct the Registrar to amend the birth certificate.
Judicial review is available where the Registrar refuses to register the intended parents despite a valid surrogacy agreement. Constitutional petitions may also be filed where refusal violates rights under Articles 22 and 23. Once a court order is issued, the Registrar can correct the birth record under the Births and Deaths Registration Act.
In summary, Kenya recognises surrogacy through case law rather than statute. The default position is that the birth giver is registered as the mother, but courts have established that intended parents may be registered when supported by a surrogacy agreement and a court order. Gamete donors are never registered as parents.
Remedies exist through parental orders, judicial review, constitutional petitions, and administrative corrections. The Constitution strongly supports intended parenthood where it aligns with the best interests of the child, ensuring that families formed through surrogacy can be legally recognised and protected.
