Four years ago, Kenya first confronted the issue of surrogacy and the legal gaps that surround a science that has been around for ages. It came in the form of a landmark case that began in hospital.
After giving birth at a private hospital in Nairobi, a surrogate mother declined to put her name on the birth notification, saying that the intended parents for whom she had carried the pregnancy would sign it.
Sensing an anomaly, hospital staff called in officials from the Department of Children’s Services, who took away the newborns (twins) and placed them in a children’s home, and then at the Kenyatta National Referral Hospital.
The surrogate mother and the intended parents sued the Department of Children’s Services, and the court ruled in their favour, finding that given that there was no dispute, their rights had been violated. They were awarded damages for the various violations.
That landmark case saw the advent of efforts to set up a legal and ethical framework to govern surrogacy, perhaps as an answer to High Court Judge David Majanja’s ruling that:
“Surrogacy is not a hypothetical issue any more. It is real and many Kenyans are resulting to surrogacy as an alternative to being parents, especially those who cannot, for medical reasons, have their own children.”
Surrogacy is an arrangement in which a woman (the surrogate mother) agrees to carry a pregnancy for another woman or couple (intended parents) and surrenders the baby to them at birth.
Some couples are not able to have children because of decreased sperm count or sperm motility in the case of the man, or ovulation disorders or problems with the fallopian tubes in the case of the woman.
For both men and women, the cause of infertility may be due to genetic disorders or even unexplained.
In full surrogacy, the surrogate mother just carries the pregnancy created from the eggs and sperm of the intended parents through in vitro fertilisation, while in partial surrogacy, someone, including the surrogate mother, can donate the egg to be fused with the sperm of the intended father.
Traditionally, surrogacy worked without hitches governed by cultural norms that allowed friends to help their friends who were struggling with infertility get babies. There were no formalities, just mutual understanding.
But in modern Kenya, mutual understanding, even if you throw in a legal agreement, might still find you fighting for answers in a court of law, as happened in 2014.
More recently, a curious case in Mombasa hit the headlines. According to police reports, when Josephine Muthoni, 27, gave birth on July 18 at a Mombasa hospital, she instructed hospital staff to give the baby to Chinese nationals Mahesh Chudasama and Neo Kian Fu, immediately after birth.
In her statement to the police, she said she had made an agreement before a lawyer that she would rent her womb, and be paid for the duration of the pregnancy and paid a final sum after the child was documented and released to the intended parents through a court procedure.
Two lawyers produced a copy of an agreement between the mother and the Chinese nationals.
According to the Directorate of Criminal Investigations, they also produced a copy of a letter from the Kenya Medical Practitioners and Dentists Board dated November 11, 2016, authorising the doctor to offer assisted reproductive technology service in Mombasa.
Also tabled was the allegation that a practising advocate processed the papers to facilitate granting of parental rights at the children’s court. The baby was taken away to a children’s home, pending an application for protection and care at the children’s court in Mombasa and the parties were charged with child trafficking.
Such are the legal and ethical gaps that advocate and former senator Judith Sijeny sought to address when she sponsored the Assisted Reproductive Technologies Bill 2014, that addresses surrogacy.
However, the Bill was never passed, so Kenya still doesn’t have a law to govern surrogacy arrangements.
For instance, as was the case that Justice David Majanja ruled on in 2014, there is the question of who should be registered as the child’s mother in the acknowledgment of birth notification as required by the Births and Deaths Registration Act.
Without a law, there are fears by officers charged with child protection that surrogacy arrangements which are not regulated by any law, might expose babies born out of the arrangement to harm.
For this reason, the Department of Children’s Services will take it that such babies are in need of care and protection and place them in a children’s home to safeguard their wellbeing, as happened in the 2014 case.
The only way out for the parents for now, according to Ms Sijeny, is for the prospective parents to apply to adopt the children who were delivered by the surrogate mother. Otherwise they risk being charged with child trafficking.
The Counter-trafficking in Persons Act prohibits giving payments or benefits to obtain the consent of the victim of trafficking in persons.
It also prohibits the adoption or offering a child for adoption for the purpose of trafficking.
Any person found guilty of offences under the law is liable to be jailed for a term of not less than 30 years or a fine of not less than Sh20 million or both.
In one of the cases Ms Sijeny handled involving a foreign couple and a Kenyan surrogate mother who bore their twins locally, the couple had to wait more than a year before the surrogacy arrangement was approved and the children declared Americans born abroad.
“There was the legal issue of whether the babies were Kenyan or American and before that the hospital had refused to release the children, saying they did not know whose name to put on the birth notification. The prospective parents went through a hassle and only got custody of the children when they were a year old,” says Ms Sijeny.
She says that the wisdom behind the Bill, which still lies on the shelf, was not just to establish legislation to govern surrogacy, but also to make it affordable and accessible to any Kenyan anywhere in the country.
This would mean equipping and staffing county hospitals to offer reproductive health services, including surrogacy and in vitro fertilisation so that all Kenyans can access quality care within reach.
“We do need a proper legal framework to handle the issue, because there might also be instances where the surrogate mother takes a U-turn after delivery and disappears with the baby, violating the agreement. This needs to be regulated. Other countries have laws on surrogacy and Kenya should not be the exception where others have succeeded,” she says, adding that the gap between a science that is already in application and the law to govern that science needs to be closed with the enactment of the law.
In his 2015 ruling on a surrogacy case, Justice Isaac Lenaola noted that while there was a growing international trend to provide an adequate legislative basis to deal with surrogacy, informal surrogacy has been in existence for a long time.
He added that private and familial relationships might not always provide answers to parents who seek to have a child of their own, resulting in both the recognition in some jurisdictions of formal surrogacy and the need to regulate it.
“In Kenya, there is now no doubt that we require a law to regulate surrogate arrangements in order to protect all involved and affected parties, including — and most importantly — the children,” Justice Lenaola said.
One in six couples are afflicted by infertility, having had unprotected intercourse for at least a year, trying to conceive unsuccessfully.
They might turn to assisted reproductive technologies to help them achieve their dream of becoming parents, but in the absence of concrete regulations, the question of whether that baby is really theirs persists.
What proposed law says:
The Assisted Reproductive Technology Bill seeks to regulate all processes of facilitated human fertilisation that happen outside the human body, whether or not the process is completed outside the human body.
It defines mother as a woman who is carrying or has carried a child as a result of placing in her an embryo or sperms and eggs or artificial insemination of the woman under a process of assisted reproduction. However, this does not include woman carrying a child under a surrogate motherhood agreement.
A surrogate mother is a woman who has agreed to carry a pregnancy to term for another woman under a surrogacy agreement and lays no legal claim to the born child.
Parties to a marriage intending to enter into a surrogacy agreement with any woman shall sign a surrogacy agreement in a prescribed form before the process is undertaken.
The surrogate mother shall carry the child on behalf of the parties to a marriage and shall relinquish all parental rights at birth over the child, unless a contrary intention is approved.
The establishment of the Assisted Reproductive Technology Authority to develop standards, regulations and guidelines on assisted reproductive technology.
Drafting of regulations governing assisted reproduction including licensing of service providers, eligibility of parties, settling disputes arising from assisted reproduction, maintenance of records on assisted reproduction, rights and duties of patients, donors surrogates and children, and counselling services among other regulations.
The form shall indicate the names of the parents of the child to be born through assisted reproductive process. The entry in the form shall be conclusive proof of parentage of the child and shall be used for purposes of registration of birth and any other legal processes.
Where there is a dispute as to the parentage of a child born out of assisted reproductive process, the aggrieved party may apply to Court within sixty days of the birth of the child for determination of the parentage of the child.
The parties to a marriage shall not give any monetary or other benefits to the surrogate mother other than for expenses reasonably incurred in the process of surrogacy.
The proposed law proposes a fine not exceeding Sh500,000 shillings or a term not exceeding five years or both, for anyone committing an offence against it. It also proposes a fine of not more than Sh100,000 or a jail term of not more than two years or both, for anyone convicted of an offence under the law if passed.
Who is the lawful parent?
The question of who the lawful mother of a surrogate child is has dodged the courts in the past, and the effect has been painful to the affected parties. This is because the children were considered stateless and parentless while the applicants could neither remain in the country where the surrogacy took place nor take the children to their prospective parents’ home country.
In the absence of any law, the surrogate mother is presumed to be the mother of a child until the legal motherhood is transferred.
In countries such as United Kingdom, Australia and the United States, where the law recognises surrogacy arrangements, the surrogate mother and her husband (where applicable) are considered the legal parents of any infants in a surrogacy arrangement until they transfer their legal rights to the intended parents.
In those countries, two main legal instruments are employed in the transfer of legal parentage: Parental orders and adoption order.
Kenya’s Attorney General, in 2013, stated that, “Noting advances in medical health and the likelihood that surrogacy arrangements are likely to be witnessed on a more frequent basis in the years to come, there is merit in government initiating a deliberate process of public policy formulation on the question of surrogacy.”
“It is therefore strongly recommended that a formal inter-agency and multi-stakeholder process be initiated by the Ministry of Health to consider the need for a formal policy, and possibly law, on surrogacy in Kenya.”
Among the key issues the AG wanted considered were the need for a policy or legislation on surrogacy; transfer of legal parentage under surrogacy arrangements; definition of key terminology in surrogacy transactions; and implications of a legal recognition of surrogacy in Kenya. Others were constitutional implications arising from recognition of surrogacy, particularly in the case of same-sex couples; advertising for surrogacy arrangements and involvement of third parties; the question of commercial versus altruistic surrogacy; and implications of surrogacy on medical ethics.
However, the laws and policies are yet to be developed to put to rest the controversies relating to surrogacy.