Kenya

Surrogacy is a method of assisted reproduction where a woman agrees to carry and deliver a child for another person or couple, known as the intended parents. Kenya has emerged as a notable destination for surrogacy, particularly for international intended parents, due to its relatively affordable medical services and emerging legal framework. This blog explores the surrogacy laws in Kenya, the legal processes involved, and key considerations for prospective parents.

Legal Framework

Kenya does not have specific legislation governing surrogacy. As a result, surrogacy agreements operate under general legal principles and are primarily treated as private arrangements between the intended parents and the surrogate mother. However, there are ongoing discussions and efforts to establish clear legal guidelines to regulate surrogacy practices in the country.

1. Lack of Specific Legislation:
   • Currently, there are no explicit laws that address surrogacy in Kenya. This legal vacuum means that surrogacy arrangements are based on contractual agreements and the general principles of contract and family law.
2. Judicial Precedents:
   • In the absence of specific legislation, surrogacy cases are often handled based on judicial precedents and interpretations of existing laws. Courts have occasionally ruled on surrogacy-related disputes, providing some legal clarity on parentage and custody issues.

Eligibility Criteria

For Intended Parents:

• Marital Status: Both married and unmarried heterosexual couples can pursue surrogacy in Kenya. Single individuals may also engage in surrogacy arrangements, although this is less common.
• Citizenship: There are no specific citizenship requirements, making Kenya an option for both domestic and international intended parents.

For Surrogate Mothers:

• Age and Health: Surrogate mothers must be of legal age (typically between 21 and 35 years old) and in good health. They must undergo thorough medical and psychological evaluations to ensure their suitability for carrying a pregnancy.
• Voluntary Participation: Surrogates must provide informed consent and enter into the surrogacy agreement voluntarily, without any form of coercion.

Surrogacy Process in Kenya

1. Selecting a Surrogacy Agency or Clinic:
   • Intended parents usually begin by selecting a reputable surrogacy agency or fertility clinic in Kenya. These agencies facilitate the process, from matching with a surrogate to handling legal and medical procedures.
2. Medical and Psychological Screening:
   • Both the intended parents and the surrogate mother undergo comprehensive medical and psychological assessments to ensure their readiness and suitability for the surrogacy process.
3. Legal Agreement:
   • A detailed surrogacy agreement is drafted and signed by both parties, outlining the rights, responsibilities, and compensation for the surrogate mother. This contract must comply with the general principles of Kenyan contract law.
4. Embryo Transfer:
   • The IVF process begins, with embryos created using the intended parents’ (or donors’) gametes being transferred to the surrogate mother’s uterus.
5. Pregnancy and Birth:
   • The surrogate mother carries the pregnancy to term, receiving medical care and support throughout. The intended parents are usually involved in the pregnancy journey and present at the birth.
6. Legal Parentage:
   • After the birth, the intended parents must take legal steps to establish their parental rights. This typically involves obtaining a court order to transfer legal parentage from the surrogate mother to the intended parents.

Rights and Protections

Intended Parents:

• Kenyan law recognizes the intended parents as the legal parents of the child once the necessary legal steps are completed. They assume full parental rights and responsibilities from the moment of birth.

Surrogate Mothers:

• Surrogate mothers are protected under general Kenyan law to ensure they receive fair compensation and medical care as agreed in the surrogacy contract. They retain the right to informed consent and can withdraw from the agreement before the embryo transfer.

Children:

• Children born through surrogacy in Kenya have the same legal rights as any other child, with their intended parents being their legal guardians.

Challenges and Considerations

While Kenya offers a favorable environment for surrogacy, there are some challenges and considerations to keep in mind:

1. Legal Ambiguities:
   • The absence of specific surrogacy legislation means that intended parents must navigate the process carefully, ensuring all contracts and legal steps are meticulously followed to avoid disputes.
2. Ethical Concerns:
   • As with surrogacy in any country, ethical considerations regarding the potential exploitation of surrogate mothers and the commercialization of surrogacy must be taken into account.
3. International Recognition:
   • Intended parents, particularly those from other countries, must ensure that their home country recognizes the surrogacy agreement and the legal parentage established in Kenya.
4. Judicial Discretion:
   • The reliance on judicial precedents means that outcomes can vary based on individual court interpretations, potentially leading to inconsistencies in the application of surrogacy-related decisions.

Conclusion

Kenya provides a relatively flexible and emerging legal environment for surrogacy, making it an attractive option for many intended parents. The combination of affordable medical facilities and the absence of specific residency requirements allows for a smooth surrogacy journey. However, it is crucial for prospective parents to work with reputable agencies and legal experts to navigate the process effectively and ensure compliance with all legal requirements. With the right support, surrogacy in Kenya can be a viable and fulfilling path to building a family.