The surrogate mother only gestates the embryo, which is usually created from the eggs and sperm of the commissioning parents.[1] Even though this practice may sound foreign or an invention of modern science, surrogacy can be traced back to ancient times. For instance, in Babylonian Law the practice was allowed as a means to prevent divorce. Additionally, in the Bible, Sarah could not bear Abraham a child and therefore asked her servant, Hagar, to conceive with Abraham, which she did, and the couple could now raise a child of their own: Ishmael.[2]
There are other such instances listed in the Bible and we can therefore assume that the same was a common practice in such times where a woman was unable to conceive or was infertile. This type of surrogacy is referred to as traditional surrogacy and was practiced as a means to an end in those times since assisted reproductive technology was yet to grace the face of human civilization. The above inferences seek not to derive a religious, political and or theological justification but only serve as a historical and factual demonstration of instances when and where this was carried out. Traditional surrogacy entails the combination of the mother`s egg with that of the father`s sperm biologically inside the womb through sexual intercourse.
With modern inventions and development in the medical field, however, this form of surrogacy has been modified where the gametes mix outside the womb through a process known as in-vitro fertilization. The embryo(s) created from the oocytes and spermatozoa of the commissioning parents (or donors) are transferred to the uterus of the surrogate.[3] Simply put, the surrogate does not use her own egg but that of the commissioning mother and therefore has no genetic relation with the child that she is carrying. This type of surrogacy is what is referred to as gestational surrogacy and in this case the one carrying the embryo/child is referred to as a gestational surrogate.
This form of surrogacy has proven an almost auspicious alternative as compared to traditional surrogacy. This is because it strikes a balance of probable legal and emotional implications in that: there are limited chances of a surrogate claiming ownership of the child because she is not genetically affiliated to the child and the commissioning parents are engaged and equally responsible for the well-being of the child and surrogate and in meeting the medical bills.[4]
There are two main forms of gestational surrogacy: commercial and altruistic. Commercial surrogacy (sometimes also referred to as compensated) is where the surrogate mother is remunerated for her services. Altruistic surrogacy (also known as uncompensated) on the other hand is when the surrogate mother offers her services for no financial gain whatsoever. She may only have her medical expenses and other expenses reasonably incurred in the course of the pregnancy catered for. [5]
Background Information
Surrogacy in Kenya is widely resorted to as a way of treating infertility. As the High Court stated in J L N & 2 others v Director of Children Services & 4 others,[6] it is no longer a hypothetical issue as more people are resorting to it, especially those who cannot have their own children owing to medical reasons.
Notwithstanding this, it remains unregulated. The result of its lack of proper recognition and regulation, therefore, is that surrogacy is surrounded with mysticism hence receives apparent opposition. Moreover, there are very few fertility clinics in Kenya and a lower quality of such medical care – a sharp contrast to what is envisaged by Article 43 of the Constitution, which stipulates that every person has the right to the highest attainable standard of healthcare services, including the right to reproductive healthcare.
In the Kenyan context, there remains a conflict between surrogacy agreements and the existing legal provisions as to whether the parental rights should be accorded to the surrogate mother or the commissioning parents. Even when surrogacy agreements grant the rights to the commissioning parents, the legal provisions grant the rights to the birth mother, who is the surrogate mother.
Is there an urgency for the enactment of laws to regulate surrogacy in Kenya? By analyzing jurisprudence in Kenya and comparing it with legal provisions of other jurisdictions, the paper shall give an idea of what direction Kenya can take towards the regulation of surrogacy. It also offers recommendations on how the issue of parental rights can be dispensed with, pending the realization of a legal framework on surrogacy.
Current legal status of surrogacy in Kenya
The Kenyan Constitution defines family as the natural and fundamental unit of society and the necessary basis of social order, and adds onto it by stating that it shall enjoy the recognition and the protection of the State.[7] Whether the goal of recognition and protection has been met remains questionable and debatable.
There have been a number of proposed bills regarding surrogate motherhood, the recent one being The Assisted Reproductive Technology Bill of 2022. Section 27 proposes that the surrogate mother should be no less than 25 years and have given birth to one child before. The surrogate mother is also to relinquish all parental rights at birth. In addition, it also creates emphasis on the formation and signing of a surrogacy agreement before the process is initiated. This section also looks into two famous cases on surrogacy that have been dispensed by Kenyan Courts.
A.M.N & 2 Others v. AG & 5 others [2015] eKLR.
X lost one child and had had four miscarriages. She was diagnosed with secondary infertility and advised to pursue surrogacy as the next best option. She got a surrogate mother who signed an agreement and consented to have three embryos transferred to her and to hand over the baby to the genetic parents upon a successful process.
She underwent the process and delivered twin girls. After seeking advice from the Attorney General, the hospital issued a notification indicating the commissioning parents as the parents. Consequently, the Department of National Registration issued them with a birth certificate. Trouble set in when they applied for UK citizenship for their daughters on the basis that one of the parents was a UK citizen.
Their application was rejected. It is unclear from the facts of the case why this is so, but a response from the UK passport office reproduced verbatim reads, “From the information we were given in the application, your daughters’ claim would be based on the fact that they had a British parent named on their birth certificate. Information provided in support of your daughters claim have [sic] raised concerns that the details given on the birth certificate were found not to be true…”
The issues to be determined were: whether the birth certificates were properly issued, who is the legal mother of the surrogate children and what reliefs were available to the petitioners.
On the first issue, the Court held that the certificates were unlawfully issued. On the second issue, the learned judge recognized that there exists no legal framework for surrogacy. He made much reference to the UK position, stating that in English law, the host woman is presumed to be the surrogate mother until other legal processes are applied to transfer motherhood to the commissioning mother.[8]
The judge noted that there are jurisdictions where a child born out of a surrogacy agreement belongs to the commissioning mother and the surrogate mother has no parental rights over the child. He, however, preferred the UK position, stating that“…absent a legislative framework in Kenya, [sic] the position taken by the UK Courts and noting specifically the issues before me, ought to prevail here and so I will find that the surrogate mother is the mother of the twins until such a time as the necessary legal processes are undertaken…”
The learned judge noted that Kenya has no provision for parental orders so the only available remedy was doing an adoption. In his concluding remarks, the learned judge emphasized the point that the surrogate mother is the legal mother and the genetic father is the legal father until a legal process is invoked to transfer legal parenthood to the mother. “This position will remain until a statutory framework is created perhaps along the lines of the law in the U.K. because of our historical ties including in our laws”[9], he stated.
J L N & 2 others v Director of Children Services & 4 others [2014] eKLR
Two persons entered into a surrogacy agreement in which JLN agreed to be a surrogate mother. She delivered twins. After delivery, issue arose as to whether the commissioning mother should be registered as the children’s mother as opposed to the surrogate mother, who was the birth mother.
Faced by this quandary, the hospital sought guidance from the Director of Children Services. The Director, in his wisdom [or the lack of it thereof] took the view that the children were in need of care and protection and directed his officers to put them in a children’s home. This is despite the fact that the children were born prematurely and were receiving care in hospital.
The children were later released to the surrogate mother and the birth notification was issued in her name. This is despite the fact that the surrogate mother wanted the names of the commissioning mother and the father to be written on the notification.[10]
In this case, the children’s court directed the surrogate parents be registered as the parents of the children. It gave effect to the surrogacy agreement as there was no dispute between the parties. It further stated that a child is entitled to the identity of their genetic parent and in principle, the registration of the genetic parents as opposed to the surrogate mother as a parent must be permitted.[11]
Comparative analysis with other jurisdictions
UK legal position
In the United Kingdom, legal parentage vests with the surrogate mother. If the surrogate is married or in a civil partnership, their spouse or civil partner will be the child’s second parent at birth, if the spouse/partner granted their permission for the agreement to be entered. Legal parenthood can be transferred by parental order or adoption after the child is born.[12]
Netherlands
Surrogacy in the Netherlands is allowed where one can make a private arrangement with someone they know. It, however, cannot be announced publicly or done for commercial reasons.[13] Upon birth, the legal custody of the child vests with the surrogate mother and her husband if she is married, and will only transfer to the commissioning parents through adoption.[14]
India
Surrogacy in India is allowed strictly for altruistic purposes, and must be done within clinics that are licensed and regulated by the government.[15] A surrogate mother must also be strictly a close relative of the commissioning parents.[16] Upon the birth of the child, the parentage vests with the commissioning parents.[17]
There is a duty on the State to protect children born out of surrogacy agreements. Surrogacy is not hypothetical in our context anymore.
South Africa
In South Africa, surrogacy is legal and is regulated by Chapter 19 of the Children’s Act.[18] The requirement that both parties reach a formal agreement with one another before beginning the surrogacy procedure is a crucial part of complying with the Children’s Act legally. Before the surrogate is inseminated, the High Court must approve this agreement and make it an Order of Court. The agreement stipulates that the surrogate mother be artificially fertilized for bearing the child for the commissioning parents. The surrogate mother is then required to hand over the child to the commissioning parents upon its birth.
Israel
Surrogacy in Israel is legal, remunerated and government supervised. Israel remains one of the first countries in the world to have come up with a fully-fledged regulatory regime on surrogate motherhood agreements. One of the major catalysts that led the Israeli legislature to speedily enact laws on such regulation was the landmark case of Nahmani v Nahmani. In this case, a couple could not conceive naturally and applied for a petition to carry out intro-vitro fertilization in Israel and continue with surrogacy in USA. This the Court allowed. Before they could complete the procedure however, the husband left the wife. The wife then applied to the Israeli hospital to release the fertilized ova to which the husband opposed. The Israeli Supreme Court held through a majority opinion of 7-4 that the right of the woman to be a mother outweighed the estranged husband’s objections to fatherhood.
Israel’s Surrogacy Law consists of two parts. The first one outlines the approval of the surrogate mother agreement through a national statutory ‘approvals committee’. Such intervention by the State into surrogate motherhood agreements is justifiable in that the State protects the interests of the involved parties that is the surrogate mother, the unborn child, the commissioning parents and the overall public.[19] In this stage, there is no judicial involvement. The other part then deals with status of the child and the determination of parenthood in his or her respect, the legal parenthood being established through an order of the family court. The Surrogacy Law sets a default rule that the intended parents shall be the child’s legal parents.
Recommendations
Handling of surrogacy cases while strictly following the UK system is inimical to the rights of parties involved for various reasons.
First, it forces the surrogate mother to have legal rights over child when she does not intend to. From the cases analysed, it is in no doubt that there was a surrogacy agreement and the surrogate mother was willing to hand over the children to the commissioning mother and the father at birth. Which begs the question, why should we force surrogate mothers to be the ones caring for the children? In some cases, surrogate mothers do not have the means to maintain this child/ren. So, should we then blatantly disregard their wishes because Parliament is dragging its feet in coming up with a law regulating surrogacy?
Secondly, the process of adopting children born out of surrogacy causes parties to unnecessarily incur huge costs. In the analysed cases, the parties were urged to pursue adoption as the way to acquire legal custody of the children considering there is not a legal framework for surrogacy. Surrogacy in itself is an expensive process. Going through adoption then brings in further costs in addition to what was already incurred.
Moreover, it is important to depart from the thinking that we must have our laws aligned to those of the United Kingdom due to our colonial ties. In the A.M.N case, much reference was made to UK law. The case involved parents who wanted their children to get UK citizenship, so, it is not clear whether this is why much reference was made to UK law.
However, in the concluding remarks (para. 46), the Court stated that the surrogate mother should be the legal mother and the genetic father the legal father until a legal process is invoked to transfer legal parenthood to the mother. “This position will remain until a statutory framework is created perhaps along the lines of the law in the U.K. because of our historical ties including in our laws.” It is sixty years post-independence. Our legal system is firm enough to stand on its own and end the neo-colonialist dependence on the UK.
The Assisted Reproductive Technology Bill (2022) is in the right direction. As aforementioned, Section 27 (2) of the Bill provides for parental rights being relinquished to the commissioning mother at birth.
The future of the Bill cannot be spoken to with certainty. While we hope it will come into law, one question that lingers is, what happens in the interim? We quoted the JLN case where the court stated that surrogacy is not a hypothetical issue. Even as we work towards a law, persons resorting to surrogacy might still be caught up in the legal conundrum of parental rights.
Courts have been reluctant to make the process smoother, perhaps, in the interest of separation of powers, by leaving Parliament’s law-making role to them. As that happens, the proverbial “nyasi” is the one hurting as the “fahalis” are at a stalemate.
In the AMN case, the children were born at Kenyatta National Hospital, which granted a birth notification in the names of the commissioning parents, on advice from the Attorney General. The AG in consultation with the Director of Children Services should make this direct transfer of parental rights at birth possible, as we await having a legal framework on surrogacy.
It is hard enough to go through the struggle of trying to have a child without much success. The legal process should not make it more difficult. Law was made for people, not people for law.
[1] Muthomi Thiankolu, “Towards a Legal Framework on Assisted Human Reproduction in Kenya: Some thoughts on the law, technology and social change,” (2007).
[2] Genesis 16:1-16
[3] Karin Hammarberg, Martyn Stafford-Bell and Sam Everingham, ‘Intended Parents’ Motivations and Information and Support Needs When Seeking Extraterritorial Compensated Surrogacy’ (2015) 31 Reproductive BioMedicine Online, 689.
[4] ConceiveAbilities, ‘Learn about the Different Kinds of Surrogacy’ (ConceiveAbilities) <https://www.conceiveabilities.com/about/blog/the-different-types-of-surrogacy#:~:text=There%20are%20two%20types%20of>..
[5][5] Family Source Consultants, ‘What’s the Difference between Altruistic Surrogacy and “Commercial” Surrogacy?’ (Family Source Surrogacy & Egg Donation Agency12 May 2022) <https://www.familysourceconsultants.com/whats-the-difference-between-altruistic-surrogacy-and-commercial-surrogacy/#:~:text=Compensation%20vs.&text=The%20surrogate%20mother%20receives%20payment> accessed 15 April 2023.
[6] J L N & 2 others v Director of Children Services & 4 others [2014] eKLR, para 40.
[7] Article 45(1) Constitution of Kenya, 2010
[8] [29].
[9] [46].
[10] [18].
[11] [42].
[12] UK Government, ‘Surrogacy: Legal Rights of Parents and Surrogates’ (GOV.UK) <https://www.gov.uk/legal-rights-when-using-surrogates-and-donors> accessed 9 February 2023.
[13] Ministerie van Justitie en Veiligheid, ‘Legal and Illegal Aspects of Surrogacy – Surrogate Mothers – Government.nl’ (www.government.nl3 July 2015) <https://www.government.nl/topics/surrogate-mothers/surrogacy-legal-aspects> accessed 9 February 2023.
[14] Leiden University, ‘New Legislation on Surrogacy Desperately Needed’ (Leiden University17 January 2020) <https://www.universiteitleiden.nl/en/news/2020/01/new-legislation-on-surrogacy-desperately-needed> accessed 7 April 2023.
[15] Astha Srivastava, ‘The Surrogacy Regulation (2019) Bill of India: A Critique the Surrogacy Regulation (2019) Bill of India: A Critique’ (2021) <https://vc.bridgew.edu/cgi/viewcontent.cgi?article=2364&context=jiws#:~:text=The%20Surrogacy%20%28Regulation%29%20Bill%202019%20is%20the%20successor> accessed 7 April 2023.
[16] S. 4 (iii) (b) (II), Surrogacy (Regulation) Act of India, (2019).
[17] S. 4 (iii) (a) (II), Surrogacy (Regulation) Act of India, (2019).
[18] Children’s Act( No. 38 of 2005)
[19] Schuz, Rhona. “Surrogacy in Israel: an analysis of the law in practice.” Surrogate motherhood: international perspectives. Portland: Oxford (2003): 35-54.
