Surrogacy in Kenya: burden or heaven?
The desire to have a family is an emotion experienced by a majority of adults globally. Bowen’s Family Systems Theory on human behavior view the family as an emotional unit and further describes the complex interactions in the unity.
While a majority of the adults with this desire opt to fulfil it biologically, some explore other options like surrogacy.
Surrogacy is a method of assisted reproduction supported by a legal agreement where the intended parent(s) work with a gestational surrogate who will carry their babies until birth. Indeed, there are reports of adults who are unable to biologically sire and carry pregnancies to term or those who are capable to fulfil the desire but simply opt for surrogacy.
As a concept, surrogacy in Kenya is not properly explored and the discussions around it are not widespread. This may lead to misconceptions, misinformation and assumptions. With no existing legal framework, a majority of Kenyans tend to shun away from the idea.
Unlike adoption, where the Children Act No. 8 of 2001 Laws of Kenya gives the entire procedure for adoption, surrogacy is still a speculation.
The general concern, which is also a reality, is that surrogacy is expensive with the estimates price range is between Kshs. 400,000 –Kshs. 500,000.
The former Taita Taveta Women Representative Joyce Lay openly talked about her experience with surrogacy, even though there still were no existing governing laws. A greater concern is the registration of the child under the Births and Registration Act. Contracting parties are still uncertain as to whether the Commissioning parent(s) name should appear on the Birth Certificate or that the of the surrogate mother.
But there is hope.
The Reproductive Healthcare Bill, 2019, which is sponsored by Honourable Susan Kihika, seeks to address various reproductive health issues including surrogacy. If the Bill is assented into law, then Kenyans will be set to continue enjoying surrogacy under the following conditions: -
The Commissioning parent(s) must be at be at least 25 years of age and not more than 55 years of age;
Accept the parenthood of the child that is to be conceived;
The surrogate mother to be at least 21 years of age;
Meets the prescribed conditions of acting as a surrogate mother; and
Understands and accepts the legal consequences of entering into such agreement.
The Bill further states that a surrogate parenthood agreement is valid if Parties to a Surrogate parenthood agreement.
(a) it is in writing and is signed by all the parties;
(b) it is entered into in Kenya;
(c) it is in the prescribed form;
(d) it includes adequate provisions for the contact, care, upbringing and general welfare of the child that is to be born, including the child's position in the event of the: -
death of the commissioning parent, or if married, the death of one or both of the commissioning parents before the birth of the child; or
separation or divorce of commissioning parents who are married before
the birth of the child;
It is important to note that in the event that the Bill is passed into law, surrogacy agreements are to be prepared by an Advocate of Kenya and that any legal fees to be paid by the surrogate mother is to be paid by the Commissioning parent(s).
To avoid disputes as to whom should appear in the child’s birth certificate, the Bill recommends that it is the commissioning parent that will be named as the parent, pursuant to the Births and Death Registration Act. Under the Law of Succession Act Cap 160 Laws of Kenya, children are viewed as beneficiaries of the subject estate. The Reproductive Healthcare Bill introduces a new phenomenon; that for the purposes of succession, a child born through surrogacy cannot be deemed as a beneficiary of the surrogate mother.
The norm is that after a child is born, the biological mother is entitled to three months of maternity leave. What about commissioning parents in a surrogacy agreement? The Gilgil Member of Parliament Martha Wangari sponsored the Employment (Amendment) Bill, 2019 which sought to give commissioning mothers of surrogacy two months of maternity leave. The Bill was however returned to parliament for more deliberations which was later rejected on grounds of lack of proper legal framework governing surrogacy in Kenya.
It is important for persons willing to explore surrogacy to observe various salient components pending the approval and assenting of the Reproductive Health Bill to avoid litigation disputes. This includes the age of the parties, the need to have a written agreement between the parties and the importance of consent between the parties.
The Reproductive Healthcare Bill, 2019 stands a chance to ease the burden encountered when planning surrogacy and to answer the questions and misconceptions surrounding surrogacy.