AMN & 2 others v Attorney General & 5 others
Petition No 443 of 2014
High Court of Kenya at Nairobi
Justice Isaac Lenaola
February 13, 2015
Surrogate mothers shall be registered as the mother of a baby at its birth until legal parenthood is transferred to the commissioning parents, the High Court in Nairobi has ruled.
Justice Isaac Lenaola said legislation is needed in Kenya to regulate surrogate arrangements to protect the affected parties, especially the children.
To protect the identities of the parties, the petitioners shall be referred to as Ms X, Mr Y and Ms Z respectively.
Ms X was diagnosed with secondary infertility. A fertility doctor advised that a surrogate arrangement was the best option for her getting a child.
Ms Z agreed to be the surrogate host and a surrogacy agreement was signed. Ms Z consented to have three embryos transferred to her and to hand over the newborn baby to the genetic parents. Ms Z later gave birth to twins at a city hospital.
The Attorney General asked the hospital issue birth notification certificates indicating that Ms X and Mr Y were the parents of the twins
"The current arrangement is not contentious since the surrogate host woman has raised no objection to the indication of the names of the surrogate genetic couple’s names in the birth notifications of the twins born to the surrogate host woman. From the perspective of the Children’s Act of 1991, the Registration of Persons Act, as well as the Citizenship and Immigration Act No.12 of 2011, it is notable that once the names of the surrogate genetic couple are entered in the birth notification of the children born out of this arrangement, legal parentage is conferred for all purposes under law, and would obviate the need for adoptive procedures subsequently. It is significant that the surrogacy agreement in the instant case documents that the surrogate host woman, on compassionate grounds, will not have any physical or legal custody or any parental duties with respect to the child born out of the arrangement," the AG said.
The Department of National Registration issued the twins birth certificates and, a year later, passports.
Sometime after the birth, Ms X and Mr Y applied for British citizenship for the children to enable them travel to the United Kingdom.
However, the UK Passport Office declined, saying the details on the children's birth certificates "were not found to be true".
Ms X and Mr Y sought relief from the High Court.
The issues before the High Court were:
Whether there is a law in Kenya regulating surrogacy arrangements.
Whether the birth certificates issued to the twin children were properly issued under the Children's Act and whether such information was truthful, and, if not, what information should be contained.
Who the lawful mother of the twin children was.
Lenaola said a host woman is presumed in law to be the mother of a surrogate child until other legal processes were applied to transfer legal motherhood to the commissioning mother.
He said since the mother of the twins was the surrogate mother, it followed that the birth certificates were unlawfully issued contrary to section 22 of the Births and Deaths Registration Act, (Cap 149).
Lenaola said unlike the United Kingdom, Kenya did not have provisions for parental orders and that the only option available was that of adoption.
He said in coming to a decision, the court had to be guided by two main considerations: (i) the need to ensure that the unit of the family as intended in the surrogacy agreement was not ruined by unnecessary detail and technicality and (ii) that at all times the best interest of the surrogate child was paramount.
Lenaola sympathised with the couple. He said Ms X and Mr Y had struggled for years to attain the family they intended to have. However, after spending a lot of time, "an obvious huge amount of money", and other resources they continued to hit legal wall after legal wall.
He said the court had to take into account:
The need to provide the mother with security and recognition of her status;
The need to regulate the use the surrogate mother may choose to put of her parental responsibility in circumstances where, whilst there was no immediate reason to believe she would act inappropriately, she was a close personal friend of the mother and continued to see the child; and
To achieve (i) and (ii) without jeopardising the father’s role as legal father with parental responsibility.
Lenaola said the best option under the circumstances, and that the law provided for, was for Ms X to to adopt the children, since Mr Y was already a parent "in fact and in law".
He said although done in good faith, the birth certificates and the Kenyan passports were issued in error and in contravention of the law. Therefore, both documents should be amended to reflect Mr Y as biological father, and Ms Z as the biological mother, until the adoption process is complete.
Lenaola further held that the surrogate mother was the legal mother and the genetic father was the legal father until the law is changed to transfer legal parenthood to the mother.
He issued the following orders:
i. That pending a fast-tracked adoption process for the surrogate twins, their birth certificates and Kenyan passports had to be amended and/or altered to indicate that Z and not X was their biological mother.
ii. Fast-tracking of the adoption proceedings and an order directing the Deputy Registrar of the Family Division to fast-track the adoption proceedings in the interests of justice.
iii. An order directing the surrogate mother to be registered as the mother of a born child pending legal proceedings to transfer legal parenthood to the commissioning parents.
iv. The Attorney General was directed to fast-track the enactment of legislation to cater for surrogacy arrangements in Kenya.
Reported by Phoebe Ida Ayaya. Read the full judgement at http://kenyalaw.org/caselaw/cases/view/105803/