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The Legal Parentage in Surrogacy Arrangements in Kenya
Introduction
Background
In this day and age, we cannot disregard the fact that worldwide, a family unit comprises of many different forms and the fact that children are a very important part of the family. The children need not be biologically sired. Over the years, men and women who are unable to get a child because of infertility, sterility, genetic incompatibilities or physical handicaps could opt for adoption or surrogacy to fulfil their deep seated wish for a family. Given that everyone has the right to family life and this includes having children together or by any other means. However overtime adoption has become long, tedious and uncertain and have failed to offer satisfaction of a bloodline/biological linkage leaving surrogacy as the most viable option.
When you think about surrogacy and how long surrogacy has been around you might think it’s somewhat a new process. To some extent, you are right, surrogacy as we know it has been around for the last 30 years. Nevertheless, the notion of surrogacy has been around for much longer all the way back to Biblical times. This being the story of Abraham and Sarah who were married but could not conceive a child of their own, so they turned to their Hagar to the mother of their child. This was a case of traditional surrogacy. In recent times and perhaps the most famous case in surrogacy when surrogacy came into the public eye is the “Baby M” case involving traditional surrogacy. In this case Bill and Betsy stern hired Mary Beth Whitehead to be their surrogate in 1984. The surrogate has been artificially inseminated with Mr Stern’s sperm making the surrogate the biological mother and Mr Stern the biological father of the child. Upon giving birth the surrogate refused to hand over the child. This led to a long custody battle in 1986 as to whom the legal parents are an issue that is central to this paper. This landmark case marked a huge turning point in the history of surrogacy where many people shifted from traditional surrogacy to gestational surrogacy to avoid this legal entanglements. It was during this time that the world’s first “test tube” baby, Louise Brown made headlines worldwide through Intro Vitro Fertilisation (IVF). Even though this was technically not a surrogate mother situation, it did lay the foundation of what is now known as gestational surrogacy.

What is Surrogacy?
Surrogacy is a practice whereby a woman (Surrogate mother) agrees to carry a pregnancy for another person or persons (Intending/Commissioning parents), who will become the new-born child’s parent(s) after birth and is ordinarily as a result of an agreement (Surrogacy motherhood agreement) drafted prior to the conception of the child who should be handed over to them after birth.

Types of Surrogacy
There are two types of surrogacy. Traditional surrogacy and gestational surrogacy. For the former the surrogate mother is the biological mother to the child of the intending/commissioning parents and the latter the surrogate mother has no genetic relationship to the child. For the latter, this is possible through assisted reproductive technologies (ART) also referred to as Intro Vitro Fertilisation (IVF). IVF referring to the process of fertilization by manually combining an egg and sperm in a laboratory dish, and then transferring the embryo to the uterus. Gestational surrogacy is now more commonly practiced that traditional surrogacy given that traditional surrogacy has a greater potential for unfavourable outcomes given that it would be more difficult for the surrogate mother to relinquish the child. This paper will mostly focus on gestational surrogacy with very little reference to traditional surrogacy.

The issue of surrogacy is dealt with differently from one jurisdiction to another. In the United Kingdom, the courts based its decision on biological parenthood in the Baby M case where the surrogate and the commissioning father where recognised as the parents, when the surrogate refused to hand over the child to the commissioning parents. Whereas In the United States of America, the courts based its judgement on intentional parenthood in the case of Johnson v Calvert where the court explained that a couple who seeks out a surrogate’s services should be considered the baby’s parents because they affirmatively intended the birth of the child and too the steps to effect in vitro fertilization. The determination of the legal parenthood in surrogacy arrangements remains a complex issue to tackle in most jurisdictions including Kenya.

Understanding the surrogacy Situation in Kenya.

Assisted Reproductive Technologies (ART), have been around for quite some time with the first babies born in 8th May 2006 through IVF. Since then surrogacy has been generally embraced by Kenyan. Currently there are six IVF centres operating in Kenya, four in Nairobi, one in Mombasa and another in Eldoret. Furthermore, foreigners from all over the world come to Kenya looking to get a child through surrogacy because it is cheaper here than in their home countries. Today more than 2,000 babies have been born through this method. In spite of the fact that Kenya has failed to put in place laws that regulate the practice.

Statement of the Problem
A child born after a surrogacy agreement may have up to 4 persons claiming parent’s rights over the child: the genetic mother (egg donor/commissioning mother), the gestational mother (surrogate), the genetic father (sperm donor/commissioning father), and the husband of the gestational mother (presumption of paternity). The commissioning mother, is ideally the biological parent of the child in the surrogacy arrangement. However, the laws in Kenya (Section 2 of the Births and Deaths Registration Act,) recognises the gestational mother as the mother of a child born out of a surrogacy agreement. The definitions provided for by the Children’s Act are seen to be vague as they do not clarify whether a surrogate mother is accommodated in the definition of a parent. Furthermore in the AMN & 2 others v AG & 5 others where the respondents relied of section 2 of the Births and Deaths Registration act to argue that the gestational mother was the rightful mother to the child. A position Justice Lenaola supported in his judgement. With surrogacy now widely practised the premise that the woman who gives birth to a child’s mother, is refutable.

Kenya has no legislation expressly permitting or prohibiting surrogacy arrangements. This creates a lacuna in the law thus giving no direction as to who is the legal parent, who acquires parental responsibility under surrogacy arrangements and even the surrogacy arrangements in of themselves rendered unenforceable in a court of law due to no legal framework. This exposes all parties involved to exploitation. Where the surrogate wombs are viewed as rentals, the resulting children commodities and intending parents swindled by middlemen i.e. medical practitioners and lawyers.

The Constitution of Kenya 2010 stipulates the right to the highest attainable standards of health care services including reproductive health care to every individual. The constitution of Kenya further provides that, the state shall recognise the role of science and indigenous technologies in the development of the nation. Accordingly parliament is drafting legislation on assisted reproductions e.g. surrogacy. These include Reproductive Health Care Bill (2014), The In Vitro Fertilisation Bill (2014), The ART Bill (2016). The Reproductive Health Care Bill, fails to offer vital components like registration of children born out of surrogacy and issues of international surrogacy. The Bills in general do not address the issue of legal parentage and parental rights sufficiently. Besides the bills are for the most part adopted from British law and thus not indigenous to the people of Kenya. Since the Bills have not been enacted into law they hold no authority in the country.

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Article 45 of the Constitution of Kenya
2010 clearly spells out the aspects of a family. “The family is the natural and fundamental
unit of society and the necessary basis of social order, and shall enjoy the recognition
economic and social rights.3” Under the Constitution therefore a man and a woman on
mutual agreement are sufficient to constitute a family. Today, we cannot ignore the fact that
worldwide, a family unit comprises of many different forms

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