The case illustrates the legal uncertainty surrounding surrogacy in Kenya.
An American citizen came to Kenya in 2024 with the intention of having a child.
He entered into a gestational surrogacy arrangement with a Kenyan woman, and on May 30, 2024, they signed an agreement for her to carry the pregnancy to term.
Under the agreement, the woman — referred to in court documents as C.A.O — undertook to relinquish her parental rights upon birth and grant America-based A.M sole legal custody of the child.
The child was born on January 28, 2025. A.M then moved to court seeking legal recognition of his parental rights and custody of the child to facilitate his return to the US.
In support of his application, he attached his travel documents, the surrogacy agreement, the birth notification and C.A.O’s written consent relinquishing parental rights. He also produced DNA test results confirming that he was the biological father and that C.A.O had no genetic link to the child.
Lower court: Baby stays
The American man entered into a gestational surrogacy arrangement with C.A.O, a Kenyan woman.
Despite this, the court declined to grant him custody. Why?
The court relied on the principle of the best interests of the child, as provided under Article 53 of the Constitution and Section 8 of the Children Act, which requires that the child’s welfare be the paramount consideration in all decisions affecting them.
In the court’s view, given the child’s tender age, the surrogate mother was better suited to provide care. The court held that it was in the minor’s best interests to be in the care of a “mother,” and directed A.M to hand over the child to C.A.O. It further ordered that should C.A.O decline, a suitable alternative placement be identified for the child.
The court also pointed out a glaring legal gap, noting that Parliament had yet to enact legislation governing surrogacy, despite a 2014 decision calling for a proper legal framework.
For A.M, this outcome reflected a broader challenge that many men face in custody disputes, particularly involving young children. Courts often lean toward traditional assumptions that prioritise maternal care, sometimes even where there is no biological or legal basis for doing so.
In surrogacy cases, fathers may encounter additional scrutiny, having to prove not only biological connection but also their caregiving capacity in a system that may unconsciously treat them as secondary parents.
High Court appeal
The case illustrates the legal uncertainty surrounding surrogacy in Kenya.
A.M appealed the decision.
The High Court overturned the ruling and granted him custody of the child. The judge noted the absence of a legislative framework on surrogacy and emphasised the court’s duty in such circumstances:
“Until then, the responsibility will rest with the courts to ensure that no person (male or female), (married or single) who desires to be a parent will be denied that right which technology has expanded,” said the court.
The judge further observed that there was no evidence suggesting that A.M posed any risk to the child.
“In fact, the report of the Directorate of Children Services recommended that he be awarded legal custody. I am persuaded that it is in the best interests of the child the appeal herein is allowed,” said the court.
In his appeal, A.M had strongly criticised the lower court’s decision, stating that it was “draconian, indifferent and not in the interest of the minor”.
He argued that the trial court had improperly applied the tender year’s doctrine, relying on traditional gender roles without fully considering the specific circumstances of the case.
He maintained that the court failed to appreciate that it could, in fact, be in the best interests of the child to be raised by her biological father rather than risk placement in an institution or with a surrogate who had already relinquished her parental role.
The court granted A.M the sole parental authority and legal custody the minor and directed the Registrar of Persons to issue the child with a birth certificate that reflects the American as the father of the child
The case illustrates not only the legal uncertainty surrounding surrogacy in Kenya but also the structural and societal challenges men may face when asserting parental rights.
Even where evidence clearly establishes paternity and preparedness to parent, fathers, especially in unconventional arrangements, may still have to overcome deeply rooted assumptions about caregiving and gender roles before being recognized as equal custodians.
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