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February 21, 2019

Who are the legal parents of a surrogate baby?

Since the promulgation of the Constitution in 2010, there are several gains that advance the rights of children and the welfare of the family. The judges of the High court have propelled the legal system through uncharted waters to ensure the rights of children born under assisted reproductive mechanisms enjoy the protection they deserve.

This is the only way to ensure that everyone enjoys the right to family under Article 45 alongside their reproductive health rights under Article 43 of the Constitution. The judiciary must be commended for rising to the occasion in ensuring that the rights of the children are protected, promoted and fulfilled at all times. This ensures that our dreams and aspirations as Kenyans, as enshrined in the preamble, are achieved.

The courts have in the recent past had trouble dealing with unique children rights challenges, in a manner that strikes the balance between the family and the best interests of the child.

Many a times the judges have found themselves with scenarios where the law is quiet, offensive, outdated and/or overlapping while they determine cases around the thorny children issues.

A good example is the emerging medical legal issue of surrogacy. The issue has taken centre stage in two recent interesting cases in the Constitutional and Human Rights Division of the High Court sitting in Nairobi.

The first one was in Pt. 78 of 2014, JLN and others-Versus- the attorney general & others. A surrogacy agreement was entered into between a couple and a surrogate mother where the surrogate mother agreed to carry the pregnancy to term. It was also agreed that the twins would be handed over to the commissioning parents.

There was no dispute until when the hospital decided that there was a need to seek the directions of the director of children services on the way forward given that there is no law in Kenya touching on the issue of surrogacy.The director ordered that the children should be kept in a children home. The couple would not take any of that. They moved to court for appropriate orders. The court had to determine amongst many issues, the question of who is the mother of a child born of a surrogacy arrangement in Kenya. Is it the surrogate or the commissioning mother?

Justice Majanja returned a finding that all children are equal before the law even if they are born under a surrogacy under Article 27 and 53 of the constitution. He released the children to the commissioning mother.

Even before the ink dried on the first judgment, another couple was facing a similar challenge. This time, adoption questions and the international law on migration was involved. This was Pt .433 of 2014 between AMN and the AG.

In this case, twins who were born of a surrogacy arrangement were issued with birth certificates by the registrar of births. They were thereafter issued with Kenyan passports. The entries in the two key documents showed that the mother of the twins was the commissioning parent.

However, these legal documents were rejected when they went to seek papers to enable them travel to the UK. The UK immigration office pointed out that the person entered as the mother in the birth certificates was not the biological mother of the twins. They decided to look to the court as their last port of call.

Justice Lenaola, who heard and determined the matter, in his judgement pointed out as follows: I have held that the birth certificates and the Kenyan passports were issued in error and in contravention of the law (albeit in good faith) and both therefore ought to be amended to reflect the fact that while Y remains the biological father, Z should be recorded as the biological mother pending the finalisation of the adoption process.

The judge went on to state that, 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.

Referring to a letter by the AG in his judgement, he stated: “In that regard, I note that the Attorney General recognised this lacunae in his letter of 11th April 2013, wherein he stated thus, ‘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 some, 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.’”

He then directed: “It is hereby determined that in cases of surrogacy, the surrogate mother shall be registered as the mother of a born child pending legal proceedings to transfer legal parenthood to the commissioning parents.” We shall continue with the next series of judgments around the emerging children rights next week.

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