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January 16, 2019

Kenyan law plays catch-up with surrogacy issues

The constitution guarantees all the right to form and be part of a family. Article 45 (1) provides that the family is the natural and fundamental unit of society and the necessary basis of social order, and shall enjoy the recognition and protection of the State.

The right to family goes hand in hand with the rights of children. Many will tell you that children are the dream of most families. Many couples try from day one to bear children. No doubt these rights are enjoyed and safeguarded by a legal system and a structure that has a divine and constitutional framework. Article 43 (1) (a) provides that every person has the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care.

Article 26 (2) tells us in clear terms that the life of a person begins at conception. Conception usually takes place naturally in the uterus. However, there are other methods such as in-vitro fertilisation (IVF), a process by which an egg is fertilised by sperm outside the body. IVF techniques are also employed in gestational surrogacy, in which case the fertilised egg is implanted into a surrogate’s uterus, and the resulting child is genetically unrelated to the surrogate. In some situations, donated eggs or sperms may be used.

The constitution does not define what reproductive health rights are. However, Article 43 uses the word ‘including’. This means the provision is open to expansion to accommodate other possibilities other than the rights as referred to in the article.

Many people who cannot get children of their own owing to health-related challenges are opting for alternatives that will help them achieve and enjoy their right to family. Many are adopting children. This has given them children that are not biologically theirs. The process of adoption is done through the court by way of a petition which culminates in an adoption order. The adoptive parents have no direct blood link to the adopted child. The process is governed by the Children’s Act and it is a preserve of the judges of the High Court.

There is no express or implied provision prohibiting or allowing surrogacy in any of the laws in Kenya. Science as usual has gone ahead and overtaken the statutes and written law. Some countries have laws that regulate surrogacy.

This concept is known as surrogacy. For example, under this intimate and delicate arrangement, a lady who is incapable of conceiving or carrying pregnancy to term talks to a third party and requests them to carry a pregnancy for and on their behalf on condition when the child is born it is handed over to the commissioning parent.

In some cases, the parent goes to a sperm bank where a donor’s egg is inserted into their uterus.

This space is not without controversy. A lot of legal challenges bedevil the innovation. For instance, who does the child belong to? To the surrogate mother or to the commissioning parent? The Children’s Act provides that a mother is the one who gives birth to a child. The same Act provides that parental responsibility belongs to the parents. The person who gives birth has the rights over the child. How do you then transfer these rights to the commissioning parents on whose behalf the child was carried. Is handing over the child to the intended parent enough to donate or confer parental responsibilities or rights to the intended parent? Who names the child? What is the responsibility of the hospital? What approach is the registrar of persons supposed to go? What is the documentation to look like? What entries are posted in the birth certificate of the child? Are the entries legitimate?

The mother who allows another woman to carry a child for her does not automatically become the legal parent. Even if the authorities issue the commissioning mother with a notification of birth and a birth certificate showing that she is the mother, the legal status remains that she is not the parent in the eyes of the law. The surrogate mother remains as such. Who will tackle this conflict of interest? What if there is a disagreement between the surrogate and the commissioning mother over the rights of the child once the child is born. Who among the two have superior rights over the other? What is the best interest of such a child? In a country like Kenya where there is no legislation to regulate this emerging medical legal space, a lot of caution is called for. Surrogacy contracts can be difficult to enforce. The law of contract cannot be introduced in the surrogacy arena without limitations. Where and how do you enforce the contract, for example, where the surrogate mother leaves the country around the time of delivery and the child is born in another country where the child acquires citizenship on birth of that new country?

Then of course there are the million and one questions around the divine and ethical standards. Is surrogacy tantamount to playing God the creator through science?

Maybe we need a law to regulate and forestall all these emerging possibilities.

A parent who gets a child under a surrogacy arrangement must take one more step so as to complete the legal journey. If in this kind of situation, the birth certificate has to be amended through a court order. She has to adopt the surrogate child. This is because a surrogate arrangement or agreement cannot change the status of a biological parent. The surrogate parent remains as such and there is no way the rights conferred upon her by the law can be taken away except through the operation of the law. The adoption order will create the change in the legal status taking away the biological parental responsibility from the surrogate parent and donating the rights and powers over the child to the surrogate parent.

In conclusion, while surrogacy can make dreams of parenthood come true, it can be fraught with legal implications and or challenges.

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