Surrogacy agreements in Kenya

Surrogacy agreements in Kenya

What Is Surrogacy?

Surrogacy is an arrangement where a woman (known as the surrogate mother) agrees to carry and give birth to a child on behalf of another person or couple the intended parents. It provides hope and a pathway to parenthood for individuals or couples who, for medical or personal reasons, cannot conceive or carry a pregnancy themselves.

There are two main types of surrogacy:

• Gestational surrogacy: The surrogate carries an embryo that is not genetically related to her. The embryo is created using the egg and sperm of the intended parents or donors.

• Traditional surrogacy: The surrogate’s own egg is used, making her the biological mother. This type is rare due to emotional and legal complexities.

2. The Law on Surrogacy in Kenya

Kenya does not yet have a specific law that governs surrogacy. However, the courts have developed clear principles based on fairness, consent, and the best interests of the child.

Two landmark cases have shaped surrogacy practice in Kenya:

1. JLN & 2 Others v. Director of Children Services (2014):
   The High Court ruled that, by law, the woman who gives birth must initially be listed as the mother on the birth notification. However, the intended parents can later apply to be recognized as the legal parents through court orders.

2. AMN & 2 Others v. Attorney General (2015):
   The Court emphasized that Kenya urgently needs a legal framework to regulate surrogacy. It also confirmed that intended parents can gain legal recognition through the courts—usually via adoption.

Because there is no dedicated law, surrogacy arrangements in Kenya currently operate under:

• The Constitution of Kenya (Article 53), which upholds the best interests of the child.

• The Children Act, 2022, which guides how parental responsibility and adoption are handled.

• Contract law, since the surrogacy agreement is treated as a private contract between the parties. The basis of surrogacy in Kenya is the Surrogacy Agreement which must be signed before a Notary Public in Kenya.

• Case Law

3. How Surrogacy Works in Practice

Since there’s no single statute that outlines the procedure, surrogacy in Kenya follows a practical, step-by-step process that blends legal, medical, and ethical steps.

Step 1: Find the Right Partner

The journey starts when the intended parents and a willing surrogate come together. This can happen through fertility clinics or personal networks. Both parties should go through:

• Medical screening

• Psychological counselling

• Legal briefings

Each party should have independent legal advice to ensure the agreement is fair and transparent.

Step 2: Drafting the Surrogacy Agreement

This is the foundation of the entire process. The agreement should clearly define:

• The identities and consent of the surrogate and the intended parents.

• The medical procedures and clinic to be used.

• Financial arrangements (covering reasonable medical and pregnancy-related expenses).

• Confidentiality and privacy clauses.

• What happens at delivery and after birth.

• The steps for legally transferring parental rights.

• Guardianship of the minor if the Intended Parents were to die before the birth of the child.

Importantly, the agreement must never be seen as “buying a child.” Kenyan courts are clear that surrogacy should only cover genuine medical and related costs.

Step 3: Medical and Pregnancy Phase

The embryo transfer takes place under medical supervision. The surrogate attends all prenatal checkups and continues regular communication with the intended parents. During this period, emotional and logistical support are crucial for both sides.

Step 4: Delivery and Birth Registration

When the baby is born, Kenyan law currently requires that the surrogate’s name appears on the birth notification. However, this is only temporary. A lawyer will then guide the intended parents through a court process, typically an adoption or parental declaration order to transfer full parental rights.

Step 5: Legal Transfer of Parental Rights

The court process involves:

• Filing an application supported by the surrogacy agreement.

• Obtaining written consent from the surrogate (and her spouse, if married).

• Social worker or adoption agency assessment reports.

• DNA tests if required.
  Once the court is satisfied that everything was done lawfully and ethically, it issues an order naming the intended parents as the legal parents of the child. The Registrar of Births will then issue a new birth certificate bearing their names

4. Cross-Border Surrogacy

Kenya has become a preferred destination for some international intended parents due to its advanced fertility clinics. However, cross-border surrogacy adds layers of complexity:

• Foreign embassies often require court orders before issuing travel documents.

• Citizenship of the child must be clarified early.

• The process should comply with both Kenyan law and the laws of the intended parents’ country.

Proper legal advice is therefore essential from the very beginning.

5. Ethical and Emotional Considerations

Surrogacy is as much an emotional journey as it is a legal one. Trust, transparency, and empathy between the surrogate and intended parents are vital. Each party must:

• Fully understand their rights and responsibilities.

• Receive proper counselling and independent legal advice.

• Be guided by what is best for the child—the golden rule in Kenyan family law.

6. Common Questions About Surrogacy in Kenya

Is surrogacy legal in Kenya?
Yes, surrogacy is practiced in Kenya, but there is no specific law. Courts recognize surrogacy agreements and typically finalize parentage through adoption or a court declaration.

Whose name goes on the birth certificate?
Initially, the surrogate’s name appears on the birth record, but after a court process, a new birth certificate is issued with the intended parents’ names.

Can foreigners enter surrogacy arrangements in Kenya?
Yes, but they must comply with Kenyan law and ensure the process is transparent, ethical, and legally recognized in their home country.