• There is no substantive law to guide surrogacy in Kenya.
• The bill sponsored by Suba North MP Millie Odhiambo is due for second reading following its approval by the Health committee.
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Intersex persons could soon be in a position to get children through surrogacy as MPs move to open legal avenues.
MPs have sought to include provisions for the special group of persons to get such services in further amendments to the Assisted Reproductive Technology Bill, 2019.
The Bill sponsored by Suba North MP Millie Odhiambo is due for Second Reading following its approval by the Health committee.
In its report, the committee chaired by Murang'a Woman MP Sabina Chege has introduced requirement for the national and county governments to put in place measures to ensure intersex persons have access to surrogacy services.
Persons with no definite sex have had challenges of childbearing, largely arising from the late identification of their dominant sex, and stigma.
Jedidah Waruhiu, a minority rights advocate, said the proposed law will be a game-changer for intersex persons saying challenges of child bearing are pervasive.
She said the trouble with intersex is the identification status, citing cases where children who turn as intersex are recorded as both male and female.
“We can’t go for surrogacy if I am not recorded properly. Record me as intersex at birth so that you don’t mess my reproductive rights.
“We have messed up because of wrong recording. If we start with correct registration at birth, then we will know how to progress,” Waruhiu said.
There is no substantive law to guide surrogacy in Kenya today, a situation which the minority rights advocate says will be dealt with by the proposed law.
Surrogacy agreements will have to be in writing, entered into within Kenya, and includes provision for contact, care, upbringing and general welfare of the child that is born.
The law provides that reproductive technology experts ensure confidentiality; screening of donor for all diseases and conditions that may endanger health of parents, surrogate, or child.
In the law, MPs have proposed a Sh5 million fine or five years in jail for medical personnel and reproductive technology experts in breach of the provisions.
Assisted reproductive technology experts are thus barred from creating, keeping or using an embryo except as defined in the law.
Fines and jail terms will apply to persons who create an embryo without the written consent of the donor of the material.
Experts have also been barred from removing material from a donor for use in surrogacy after the death of the donor, unless they gave written consent for such removal.
Couples will have no room to walk in for surrogacy unless an expert certifies that someone needs the services on medical or health grounds.
Only a woman of 25 years or more – who has given birth to at least one child – can consent to the process.
“The surrogate mother shall carry the child on behalf of the parties to a marriage or couple and shall relinquish all parent rights over the child at birth,” the proposed law reads.
The law requires that parties to intending to enter into a surrogacy agreement with any woman shall reach a deal before the process begins.
Position of the child in the event of death of commissioning parent, death of parent before the birth, and separation or divorce of parents will have to be defined.
Commissioning parents will also have to agree to meet the prenatal and birth expenses of the surrogate mother and shall not terminate the agreement once the embryo is implanted.
Surrogacy agreements, however, may be terminated where the pregnancy is lost; before implantation; or dispute between the commissioning parents.
“The commissioning parent or parents will be the legal parent of the child and not discriminate against them,” the bill reads. This includes incidents of multiple pregnancies.
Surrogacy agreements will have to be signed by two witnesses from each of the parties as well as advocates whom will be paid legal fees by the commissioning parents.
The use of technology is prohibited for purposes other than procreation; experimental, speculative and commercial purposes.
Assisted reproductive technology experts are also barred from obtaining sperm or ovum from minors – except for future human procreation by the minor.
No licenses will be provided for use of embryos other than that of humans; placing embryo in any animal; and human cloning.
Medical personnel are also barred from using the sperm of any man without his consent in the course of providing surrogacy.
The Sh5 million fine would apply to those who use the egg of another woman without her consent; mix human and animal gametes; or place sperms and eggs in a woman illegally.
A man will also not be treated as a father of a child where a sperm was used after the death of the man.
In further adjustments, the Chege-led committee has recommended that experts obtain consent on what to do upon death or incapacity of parties in a surrogacy arrangement.
Donors will have to provide a passport size photo; information on physical characteristics; ethnic origin; family history; medical history; interests and hobbies; and professional qualifications and skills.
“The information shall be held by the licensed facility and shall not be disclosed in any way that may identify the donor or receiver,” the bill reads.
A surrogate child will have same legal rights under the Constitution or any written law as that of a child born through sexual intercourse and will acquire the citizenship of the commissioning parents.
Surrogate mothers may claim compensation from the parents relating to the process of in-vitro fertilisation, pregnancy, ante-natal, birth, post-natal care, and post-delivery complications.
Commissioning parents may also compensate for loss of earnings by the surrogate mother and insurance to cover the same for any acts that may lead to death or disability.
The surrogate mother is equally barred from terminating the pregnancy; shall hand over the child to the parent immediately upon the birth; and will have no rights or obligation regarding the child.
Surrogate mothers are also barred from contacting the child, whether directly or by proxy, unless provided for in the agreement.