Surrogate Motherhood: Assessing the Adequacy of Laws Regulating the Rights of Surrogacy Arrangements in Kenya

By Caroline Kori

LL.B (Hons), CPM, PgDL 

CHAPTER ONE

INTRODUCTION

1.0 Background

It is naturally bestowed upon women the power to pro-create and pretty many women cherish the experience of motherhood. However it is unfortunate that some women due to certain physiological conditions are unable to give birth to their own offspring. The desire for motherhood has necessitated alternatives to achieve the same end. 

The birth of Louise Brown on the 25th day of July 1978 through in vitro fertilization, changed the tide in reproductive health, taking it to a whole new scientific level and bringing about new hope to couples suffering from infertility.[1] The emergence of the practice of surrogacy a few years later[2] made the situation even better since now women who were not in a position to carry pregnancies due to medical conditions were now hopeful if not assured of having children with their own genetic material.[3]

On June 30, a monumental judgment was delivered by Justice Majanja setting the precedent on how surrogacy arrangements and the conception of motherhood will be adjudicated in Kenya given that Parliament is yet to legislate or develop policy on this matter.[4]

In this case,[5] the petitioners WKN and CWW, the genetic parents entered into a surrogacy agreement with JLN who consented to be a surrogate mother by undergoing IVF. Following the delivery of the twins in MP Shah Hospital, a dispute arose as to whether the birth mother or the genetic mother should be registered in the Notification of Birth issued by the hospital because the law under the Births and Deaths Registration Act[6] defines birth as "the issuing forth of any child from its mother after the expiration of the twenty-eighth week of pregnancy, whether alive or dead’’ This implies that the birth mother has the immediate responsibility of custody and maintenance of the children. Given the complex situation, the hospital in need of guidance informed the director of Children Services of the circumstances surrounding the birth of the twins. The Director took the view that the children were in need of care and protection and as a result took them and placed them under the care of a children's home.[7] This was then held by the High Court to be erroneous. 

While artificial insemination has been successfully applied to treat human infertility since the19th century, until the 1970s no effort had been made to apply this technique in a way which would challenge the belief that a woman who gives birth to a child is also the legal mother. The first successful birth resulting from IVF took place in 1978, and it was during the late 1970s and early 1980s that the changing circumstances in the adoption market invited entrepreneurs to combine the available methods in new ways and introduce surrogate motherhood as a solution to the problem of infertility.[8] The growing interest in the new means of procreation resulted in a large number of bills proposing various ways of dealing with surrogacy.[9] Over time, some of the proposed bills turned into state legislation. By 1989 about ten states in the USA had introduced legislation specifically addressing the new phenomenon.[10]

Over the past century, scientific innovations in assisted reproductive technologies (ARTs) have made great strides in treating infertility and allowing individuals to achieve parenthood in ways unimaginable to previous generations. These technologies are ever-evolving, forcing a constant re-evaluation of the legal, social, and ethical implications of the interaction between science and one of the most deeply guarded aspects of the human experience: the creation of a child.[11]

ARTs have been referred to as a “revolution,”[12] and their purveyors have been accused of operating in the “‘Wild West’ of American medicine.”[13] These terms connote both a hope for a more promising future, and a deep underlying anxiety concerning what that future might hold. Indeed, the encroachment of science into a realm historically embedded in socio-religious notions of sanctity and divinity raises the age-old specter of playing god. 

Unsurprisingly, therefore, ARTs have been the subject of fierce social debate and legal analysis. This debate has touched on numerous topics such as ethics and the role of women in society.[14] In the backdrop of this debate is the fact that over the past several decades the traditional bio-normative family structure has undergone a dramatic transformation.[15] While in the past, the classic family was defined sociologically as a pair of heterosexual parents living together under one roof along with their children, different legal, technological, and sociological developments have led to a rapid and extreme change in the definitions of family and parenthood.[16] Indeed, traditional ARTs, such as sperm donation, ova donation, and gestational surrogacy, have enabled one, two, or even several individuals to contribute to the creation of a child.[17]

In addition to implicating complex ethical and social considerations, ARTs raise questions about the legal status of various participants in the creation and subsequent care of a child. In addressing these questions, scholars and the courts have viewed legal parenthood in the context of ARTs in terms of five paradigms—genetics, intent, gestation, the marital presumption, and functionalism.[18] Underlying these paradigms is the recognition that parenthood is not a monolithic concept. Genetic contributors, the woman who gestates an embryo to birth, individuals who provide shelter and physical nourishment, and various role models or educational figures who foster intellectual and emotional development can all constitute parental figures.[19]

Modern innovations in ARTs such as somatic cell nuclear transfer (“SCNT”) and artificial wombs, however, demand a different approach to how we view legal parenthood.[20] While academic articles have addressed these new technologies in terms of their social impact, ethical dimensions, and possible constitutional implications,[21] there has been little focus on the manner in which these technologies might interact with the existing paradigms of legal parenthood and the existing landscape of parentage law.

Surrogacy is a form of assisted reproduction through invitrofertilization. A woman, who is designated as a ‘surrogate’, bears a baby on behalf of a couple with the intention of relinquishing her rights as the legal mother of the child after birth.[22]

1.1 Statement of the Problem

Surrogate motherhood, an arrangement involving one woman gestating a baby to be raised by another, is still a relatively ‘new’ technology in Kenya seeing as the first surrogate birth in Kenya happened in August 2007. Being a new technology therefore, the practice is still stifled in uncertainty thereby raising a complex web of legal and ethical issues.[23] The fact that there is no legal and ethical framework to regulate surrogacy arrangements in Kenya exposes the practice to corruption and other exploitative activities. Lapses and lacuna in the legal framework makes it hard to standardize the practice of surrogacy in Kenya, leaving the consumers of the service (technology) at the mercy of personal interpretation of the service providers.[24] It is therefore essential that a legal and ethical framework is formulated to not only curb the rising incidences of exploitation but to also safeguard the interests of all parties involved.

It is under this background that I intend to normatively assess the adequacy of laws and practices regulating the rights of surrogate arrangements in Kenya and make recommendations based on best practices internationally to guide the development of a legal and ethical framework on surrogacy in Kenya.

1.2 Objectives of the Research

1.2.1 Main Objective

Surrogate motherhood being a relatively new development in Kenya, it is imperative that the legal regime and practices governing it be looked at in order to establish a formidable legislation that will adequately regulate it. Practices and legislations from advanced jurisdictions should be looked into as a bench mark in drafting and enacting these legislations. This research therefore intends to adequately look at the adequacy of laws and practices regulating the rights of surrogate arrangements in Kenya.

1.2.2 Specific Objectives 

The specific objectives of this study are:- 

1. To interrogate the current practices permeating in the Surrogate motherhood business. 

2. To establish whether there are sufficient legal control to regulate Surrogate practices in Kenya. 

3. To establish and interrogate the loopholes in Surrogate motherhood practices. 

4. To interrogate the best practices in other jurisdictions that can be borrowed, modified and applied to regulate Surrogate motherhood in practices in Kenya.

1.3 Scope of the Study 

This research is concerned mainly with Surrogate Motherhood contracts, practices and all other enabling provisions. The legal framework in other jurisdictions will be closely looked at to determine the jurisprudential development of this technology. Judicial interpretation, application and ruling on this practice will also be dealt with. Views of reputable scholars on this subject will constitute a greater part of this study. The study will hence utilize mostly secondary sources of information such as law reports academic journals.

1.4 Justification of the Study 

This study is premised on the justification that Surrogate Motherhood practices are a new phenomenon in the Kenyan medical fraternity. Even though the law governing this practice is entirely contract law, ethical conduct governing the practice of medicine and technological advancement, lack of adequate laws to safeguard rights and privileges accrued as a result of such agreements is worrying. This is further worsened by cartels who have invaded this noble medical practice to reap where they did not sow. Brokers will look for donors and Surrogate mothers at all costs. This sometimes results in an imbalanced contractual agreement. This research therefore aims at identifying the lacunae that exists and what areas that needs to be addressed. This will help both parties to such contracts to understand their rights and obligations.

1.5 Methodology

This study is premised on the availability of both secondary and primary sources of information. These will include statutes and the Invitrofertilization Bill, case law, law books, journals and commentaries by legal scholars among others. The internet will equally be useful in providing direct access to materials that are unavailable in the library as print material.

1.6 Literature Review 

This research does not present itself as a pioneer in the controversy and the issues involving the medical practice of Surrogate Motherhood and neither does it set to be the first to extensively study this practice. Indeed, there are numerous distinguished scholars and researchers who have written extensively on this subject.

Robai Ayieta Lumbasyo[25] explores the Kenyan legal and ethical framework on Surrogacy by looking at the current practices and situation and why there is need for a regulatory framework. He explores some moral theories that may have a bearing on Surrogacy in Kenya due to the fact that Kenya is a culturally rooted and religious country and as such people may feel the need to base reasons on why (or not) surrogacy should be practiced and if so, how it should be practiced.

Jennifer S. Hendricks[26] in her article titled Essentially a Mother, connects the constitutional jurisprudence of the family to debates over reproductive technology and surrogacy. She focuses on divided motherhood: usually surrogacy contracts, but also embryo mix-ups at fertility clinics. She proceeds to interrogate judicial decisions on surrogate motherhood and how it treats the whole debacle of surrogate contracts.

Bernard M. Dickens[27] addresses limits to conscientious objection to participation in reproductive health services, and conditions to which rights of objection may be subject. He argues that individuals have human rights to freedom of religious conscience, but institutions, as artificial legal persons, may not claim this right.

Bernard M. Dickens further in his article titled Legal Developments in Assisted Reproduction [28] postulates that courts have been quite consistent in allowing ex-partners in marriages or similar relationships, usually men, to veto the other partner's reproductive use of jointly-created IVF embryos. This supports the principle of voluntary parenthood. In contrast, child custody disputes following surrogate motherhood may favor the commissioning couple or the surrogate. Decisive are the best interests of the child, which a court may find favorable to the former or the latter, or custody shared between them. Pre-implantation genetic diagnosis (PGD) may be restricted by governmental licensing regulations, and raises concerns about diagnosis showing non-inheritance of a feared disorder, but not other conditions harming a subsequently born child. Travel abroad raises concerns of legality. Some countries explicitly allow nationals to go to other countries for services legally barred in their own, but others would bind nationals by their prohibitive laws if they were to receive, or counsel, services abroad that are lawful where delivered.

Aristides N. Hatzis[29] discusses how surrogate motherhood contracts are regulated in Greece. She critically analyses the regulation of surrogate motherhood in Greece and a further discussion on the way that a consensus reached in the legislative committee among liberal and conservative jurists on the matter of compensation of surrogate mothers was undermined by intra-party populism in the Greek parliament which banned it to avoid commoditization; inevitably the law fell into disuse leading to a new law which allowed government-defined compensation, not the one agreed by the parties; the regulation of surrogate motherhood in Greece is a typical example of the deleterious effects of the combination of legal formalism and legal moralism in contemporary Greece. This is important as it will give insights on how the practice can be regulated in other developing jurisdictions like Kenya.

Anita Stuhmcke[30] examines the Australian legal response to surrogate motherhood in light of a prevailing 1991 agreement by Australian Health and Social Welfare Ministers to support uniform legislation to control the practice of surrogacy. The author explores the practice and development of surrogate motherhood in Australia and concludes that today, three years after the Australian Health and Social Welfare Ministers' agreement, the legislative framework which exists to control surrogate motherhood remains far from uniform. The article also considers why surrogate motherhood has evoked a varied legislative response from Australian jurisdictions.

Elly Teman in The social construction of surrogacy research: An anthropological critique of the psychosocial scholarship on surrogate motherhood[31] presents a critical appraisal of the psychosocial empirical research on surrogate mothers, their motivations for entering into surrogacy agreements and the outcome of their participation. He applies a social constructionist approach toward analyzing the scholarship, arguing that the cultural assumption that ‘‘normal’’ women do not voluntarily become pregnant with the premeditated intention of relinquishing the child for money, together with the assumption that ‘‘normal’’ women ‘‘naturally’’ bond with the children they bear. He argues that this scholarship reveals how Western assumptions about motherhood and family impacts upon scientific research. In their attempt to research the anomalous phenomenon of surrogacy, these researchers respond to the cultural anxieties that the practice provokes by framing their research methodologies and questions in a manner that upholds essentialist gendered assumptions about the naturalness and normalness of motherhood and childbearing. This leads the researchers to overlook the intrinsic value of the women’s personal experiences and has implications for social policy.

Yehezkel Margalit[32] describes and traces the dramatic revolution that took place during the recent decades, as the surrogacy practice has drastically changed from one viewed as problematic and rejected to a socially widespread and accepted practice. He says that this recent shift demands increasing the legal recognition of the legality of surrogacy contracts and the moderate regulation of their enforcement. In doing so, his article explores the various intrinsic contractual problems of surrogacy contracts: the problem of unequal power of the contracting parties, the problem of a change of heart, and the problem of changed circumstances.

1.7 Organization of Study

Chapter one deals with the introduction and background information on surrogacy. Further, it gives an overview of the proposal including study objectives, justifications and the methodology. This is then followed by a chapter layout herein.

Chapter two goes to the crux of the research as it deals with the current ongoing practice of surrogacy in Kenya and why there is a need for a regulatory framework. The decision of the High Court with regard to Surrogate motherhoods in Kenya is hereby analyzed in detail as it is the only authority on Surrogate practices. A critical Appraisal of the In-VitroFertilization Bill 2014 is also dealt with in this chapter. Finally, the loopholes in the law or lack of a legal regime are tackled hereunder. 

Chapter three looks at what other jurisdictions have done with regard to regulating Surrogate agreements. This chapter deals with review of laws, policies and professional guidelines on surrogacy of two countries being the United Kingdom (UK) and the Republic of South Africa (RSA). These two countries have been chosen because of their relevance to Kenyan laws. The English laws serve as the common laws for Kenya. As for South Africa, Kenya has previously borrowed from South African laws before and with much success at that. An example at hand is the Constitution of Kenya 2010. Besides, South Africa resonates with Kenya as to cultural and economic development unlike the UK which is more technologically advanced. 

Chapter four begins with the conclusion of the whole research work after which it merges the best practices of reviewed laws, regulations and professional guidelines and comes up with recommendations on a regulatory framework for surrogacy in Kenya. It then offers opinion on why the practice of surrogacy should be regulated or not. 

CHAPTER TWO

REPRODUCTIVE PRACTICES IN KENYA 

2.0 Introduction

It is the heritage of contemporary society that guarantees freedom of reproductive rights, including the decision when and whether the child would be born and the period between the births of children in a family. The right to freely make decisions about birth in cases of infertility or decreased fertility is directly conditioned by the progress of medicine (bio-medically assisted reproduction).[33]

2.1 Reproductive Health Law in Kenya

Reproductive laws are everything but internationally coherent: Regulations range from a total ban to liberal approaches, whereas some countries do not rule on surrogacy at all. At the same time, there is a lot of movement in the field: Some of the rigid regulators currently consider allowing surrogacy at least in certain specified cases in order to cope with the factual problems of legal arbitrage, while some of the liberal countries try to ban foreigners from the market in order to prevent a systematic violation of women’s rights. This leads to intended parents travelling to the most favourable jurisdiction but still facing severe problems when returning home.[34]

There are a couple of countries with genuinely surrogacy-friendly laws attracting the majority of worldwide surrogacy to their territories. Amongst them are the US state of California, India, and the Ukraine. Here, surrogacy is deliberately tolerated by the legislator which has enhanced those countries’ reputation as reliable locations for the surrogacy business. Argentina is about to pass a bill which allows for gestational surrogacy even if it has to be preceded by a court judgment, but it must not be remunerated. Several European countries like Greece and the United Kingdom have also liberalized their family laws but have so far not acquired notable mandates from the international side.[35] The Netherlands has not banned surrogacy but forbidden agencies arranging surrogacies as well as public offers by or searches for surrogate mothers.[36]

Nowadays, a parent‘s surrender of a child for a fee, known as baby selling, is a crime all over the world. In addition, many countries have regulations limiting or prohibiting compensation of intermediaries related to the transfer of a child (Field, 1990). Although gestational surrogacy is (partially) legal in several countries around the globe, in most jurisdictions it is not.

2.1.1 The Constitution of Kenya 2010

In Kenya, there is not yet established any specific law to deal with surrogacy per se. The yard stick though is the Constitution of Kenya 2010. The Constitution guarantees all the right to form and be part of a family. It provides in particular 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.[37] The right to family goes hand in hand with the rights of children. This is because 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.

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. 

Equally, the Constitution provides in clear terms that the life of a person begins at conception.[38] Conception usually takes place naturally in the uterus. However, there are other methods such as in-vitro fertilisation (IVF). 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. This therefore led to the requirement to enact a law that will expand on the constitutional provision on reproductive health; the Invitro-Fertilization Bill, 2014 which is yet to be enacted into law.

2.1.2 The In-vitro-Fertilization Bill (Reproduction Health Care Bill) 2014: A Critical Appraisal

The bill having been mooted by the Hon. Millie Odhiambo Mabona, the member of Parliament for Mbita on 16th August, 2014, is preambled as an ‘Act’ of Parliament to for the regulation of In-vitro fertilization, to prohibit certain practices in connection with in-vitro fertilization, to establish an in-vitro fertilization Authority; to make provision in relation to children born of in-vitro fertilization process and for connected purposes, this 33 paged bill embodies various provisions that will seek to regulate surrogate practices in Kenya. It is important to note that the Hon. Member who is the originator of the bill is her self one of the victims of infertility

2.1.2.1 Definition and Interpretation of Terms

In its interpretation section, the bill begins by offering definition of various terminologies critical for the surrogate industry.[39] It defines a "donor" to mean a person who voluntarily gives his or her gametes for the purpose of fertilization in an in vitro fertilization process and the person need not be the spouse of the person she or he is donating the gametes to; "surrogate mother" to mean a woman who has agreed to carry a pregnancy to term another woman under a surrogacy agreement and lays no legal claim to the born child. Unfortunately, the Bill does not define what surrogate motherhood is.

2.1.2.2 Institutional Framework 

The bill then establishes the institutional framework to oversee the implementation of the provisions of the bill once it has been passed into law. This is the In-Vitro Fertilization Authority[40] which will be a body corporate and whose functions as established are[41] to develop standards, regulations and guidelines on in-vitro human fertilization; advice the Cabinet Secretary on matters relating to the treatment and care of persons undergoing In-vitro fertilization and to advise on the relative priorities to be given to the implementation of specific measures in regard to in-vitro fertilization; undertake research on the conduct, control and treatment of in-vitro fertilization; develop programs for awareness creation on the methods of in-vitro fertilization treatment; prescribe minimum requirements for the physical infrastructure for in-vitro fertilization clinics; grant, vary, suspend and revoke licenses; keep under review information about embryos and any subsequent development of embryos; provide advice and information to persons receiving in-vitro fertilization treatment including persons providing gametes or embryos under this Act: disseminate information to the public on reproductive health that may relate or affect In-vitro human fertilization; establish and maintain a national database on persons receiving in-vitro fertilization treatment services or providing gametes or embryos for use; perform such other functions as may be necessary for the better carrying out of the functions of the Authority under this Act.

2.1.2.3 Prohibited Activities

Part III of the bill provides for prohibited activities. One of the prohibited activities is creation, keeping or use of an embryo except as provided under the Act.[42] In allowing the use of any human reproductive material for the purpose of creating an embryo, the written consent of the donor shall be sought in accordance with the prescribed regulations.[43] The bill therefore allows the use of in-vitro fertilization only for procreation purposes.[44] The circumstances for undertaking In-vitro human fertilization as provided by the bill[45] are where it is certified by a medical doctor that-the person is due to factors related to age, having difficulties in conceiving naturally; and the person is due to factors related to lifestyle having difficulties in conceiving naturally or on any other medical, psychological or health grounds as may be determined by a medical doctor.

It precludes the use of in-vitro fertilization for any purpose other than creating a human being; experimental purposes aimed at modifying the human race; or purely speculative purposes.

The bill equally seeks to ensure that the rights of minors are not violated in the In-vitro human fertilization procedures. It particularly states that ‘no person shall obtain a sperm or ovum from a donor under eighteen years of age, or use any sperm or ovum obtained from a donor under eighteen years of age except for the purpose of preserving the sperm or ovum or for the purpose of creating a human being that the person reasonably believes will be raised by the donor.’[46]

Any person seeking to do the business of In-vitro human fertilization will have to take out a license and as such the In-Vitro Fertilization Authority shall not issue a license that allows the keeping or using of an embryo other than a human embryo; the keeping or using of an embryo after the appearance of the primitive streak; the placing of a embryo in any animal; the keeping or using of an embryo in circumstances prohibited under the Act or as prescribed by Regulations; the replacing of a nucleus of a cell of an embryo with a nucleus taken from a cell of any person, embryo or subsequent development of an embryo; or any form of human cloning.

2.1.2.4 Rights of Parents, Donors and Children

This is provided for under Part IV. The section begins with definition of key terminologies which are always critical in determining parentage in a surrogate arrangement. These are the definitions of who a mother is to means a woman who is carrying or has carried a child as a result of placing in her an embryo or sperm and eggs or artificial insemination of the woman under a process of assisted reproduction as provided under this Act and shall not include a woman carrying a child under a surrogate motherhood agreement; a father to mean a person who, in the case of a child who is being carried or has been carried by a woman as a result of placing in the woman an embryo or sperm and eggs or the artificial insemination of the woman, if the person donated his sperms for the process of in-vitro fertilization ; and at the time of placing in the woman the embryo or the sperm and eggs or artificial insemination of the woman, the woman was party to a marriage with the person; at the time of placing in the woman of the embryo or the sperm and eggs or artificial insemination of the woman, the woman was not party to a marriage with the person but has subsequently married the person; or at the time of placing in the woman the embryo or the sperm and the eggs or of the woman, the woman was not party to a marriage with the person and has not subsequently married the person, but the person has, with approval of the mother, written a parental agreement acquiring the rights of fatherhood to the child.[47]

In protecting the rights of a child born out of In-vitro fertilization under the Act, the bill provides that such a child shall have the same legal rights under the Constitution or any other written law as that of a child born through sexual intercourse.[48]

Section 32 goes to the crux of this research as it provides for who can enter into a surrogate motherhood arrangement. It provides that a woman of not less than eighteen years may, at the request of any two persons, male and female have an embryo or sperm and eggs of the two persons, male and female placed or artificially inseminated in her for purposes of surrogate motherhood.

The surrogate mother shall carry the child on behalf of the two persons and shall relinquish all parental rights over the child unless a contrary intention is proved.[49]

2.1.2.5 Access to Information

The In-vitro Fertilization Authority shall keep and maintain a register containing particulars on the in-vitro fertilization treatment services provided to persons; the keeping or use of gametes of persons or of an embryo taken from any particular woman, or persons who undergo in-vitro fertilization; donors of embryos and gametes; and persons conceived in consequence of in-vitro fertilization treatment services.[50]

Access to In-vitro Fertilization information is open to any person who has attained the age of eighteen upon application. 

A person who has attained the age of eighteen may by notice to the Authority require the Authority to provide information stating whether or not the information contained in the register shows that a person other than a parent of the applicant may be a parent of the applicant; avail information on whether the applicant was conceived by means of in-vitro fertilization; and state whether or not the information contained in the register shows that the applicant, and a person specified in the request as a person whom the applicant proposes to marry would or might be relatives.[51]

However, the Authority shall comply with the request made by the applicant if the information contained in the register shows that the person was, or may have been, born in consequence of in- vitro fertilization treatment services, and the .person has been given an opportunity to receive counseling in regard to the implications of compliance with the request.[52]

Most critically and with regard to confidentiality requirements, the Authority shall not give information regarding the identity of a person whose gametes have been used or from whom an embryo has been taken if a person to whom a license applied was provided with the information at a time when the Authority was not required to give the information.[53]

2.1.2.6 Licensing

This is provided for under Part VI of the bill.

The Authority shall, in accordance with this Act issue, vary, revoke or renew a licence in relation to activities under this Act.[54] No person shall carry out in-vitro fertilization unless the person is issued with a valid license under this Act.[55]

With these excellent provisions, the Bill is yet to be debated in parliament in order to receive presidential consent and therefore having the force of law. 

2.1.2.7 Critique on the Reproductive Health Care Bill 2014

The Kenyan definition of the surrogate mother is further extended to require that a surrogate mother must have a documented history of at least one pregnancy and viable delivery; and has a living child of her own.[56]

2.2 Emerging Jurisprudence from the Courts on the issue of Surrogacy

The authority of J L N & 2 others v Director of Children Services & 4 others[57] as has been alluded to in chapter one, was and still is the leading and the only authority addressing the subject of surrogacy in Kenya especially now that the In-vitro Fertilization bill has not yet been passed into law. 

The 1st petitioner was the surrogate mother of twin children born at the MP Shah Hospital in Nairobi. The 2nd and 3rd petitioners were the genetic parents of the children. In the

Amended Petition dated 7th April 2014, the petitioners sought the following orders from the court; An order compelling the Respondents to release the minor children to the Petitioners and not interfere with any surrogacy agreement/legal process entered into by the Petitioners; A declaration that the Respondents' actions contravened the rights of the Petitioners and the children and are void; A declaration that the 3rd Respondent's actions to disclose the Petitioners' medical information contravened their constitutional rights to privacy and their consumer rights as provided for in the Constitution; An order that the Petitioners are entitled to damages against the Respondents jointly and severally and the court to quantify such damages as appropriate and just; Writs of prohibition stopping the Respondents from interfering with the Petitioners' rights of having custody of the children A & B and naming them as they will elect; Writs of mandamus compelling the Registrar of Births and Deaths to register the children A & B in such manner as will be proposed by the Petitioners and specifically directing the 3rd Respondent to issue the Notifications of Birth with the 2nd and 3rd Petitioners as father and mother respectively; A declaration that the Director of Children's services has no powers to seize children borne out of surrogacy agreements; A declaration that the seizing of children from the 1st Petitioner contravenes the 1st Petitioner's and the children constitutional rights and is therefore void and of no legal effect; Any other, further orders, directions, declarations and remedies as the honourable court may deem fit and just to grant in the circumstances.

The court held that the Hospital was not liable for the breach of the petitioners’ privacy rights. However, the Director violated the children’s rights by removing them from the custody of JLN.

2.3 The Need for a regulatory Framework

Surrogacy was first introduced in Kenya in 2006 and with infertility rates at an estimated 12 per cent among married couples, according to the public health ministry, it is becoming more popular as a way to start a family. It is estimated that there are over 200 couples with various fertility problems visiting surrogate agencies each month in Kenya. But not just in Kenya. In fact in Africa, with its growing middle class and greater purchasing power, a handful of other countries too are testing surrogacy arrangements for couples who can afford it.[58]

One clinic in Ivory Coast advertises its services on the website of the Egg Donation and Surrogacy Professional Association based in the United States. The advert reads: ‘ Affordable surrogacy in Ivory Coast, West Africa with beautiful women and good favourable arrangements’ But it is a complicated process, open to exploitation, which brings with it a number of financial, legal and social challenges.[59]

South Africa has made the most headway with a law that permits surrogacy agreements which offer protection for all parties involved. It is considered amongst the most advanced statutes in the world; here even same-sex couples can enter into such agreements and it is a legal requirement for all parties to be psychologically assessed. In addition, commercial surrogacy agreements- where the surrogate mother is compensated over and above pregnancy related expenses-are not enforceable. In other words agreements do not allow for the surrogate mother to be paid a fee though she will be covered for expenses related to the property.[60]

This is not the case in Kenya where potential surrogates can be paid anything from $4,000 to as much as $ 12, 000 depending on the terms of the agreement. Most will want to be paid an advance fee, usually half of the agreed sum, before they are willing to proceed. On top of that couples must pay gynecological costs of around $ 10,000.[61]

Given the sums involved it comes as little surprise that brokers are springing up to secure deals; most surrogates go to agencies to look for egg donors. In Africa, in particular, this brings with it a range of other complications. Faced with high unemployment levels ((40 per cent in Kenya), it is unsurprising that young, fertile women are considering carrying a baby for another woman as a viable way to earn a living. But in societies with deep socio-economic disparities and a prevalence of poverty, the possibility of abuse of underprivileged women is a real threat and involvement of profiteering agencies is something that needs to be closely scrutinized-even regulated. Despite the potential for abuse, in Africa the demand for such services is growing.

Like Kenya, some States have no statute dealing with surrogacy but have court decisions addressing the parentage of children born to a surrogate.[62] A few states have attorney general rulings questioning the use of surrogacy arrangements as they affect the legal parenthood claims of the non-birth mother. Surprisingly, a good number of states have no decisional or statutory law controlling determination of the parentage of a child born to a surrogate.[63]

The ethical debate revolving around health, religion and morality with regard to surrogacy should only be addressed by the law. Recent reports and research data indicate that surrogacy continues to take place despite attempts to prohibit or regulate it. Surrogacy appears to used as a last resort by commissioning couples who cannot achieve or sustain pregnancy because of female infertility. For the most part, these arrangements appear to go with the development of new birth technologies.[64]

When surrogacy using birth technologies first entered the public consciousness in the 1980s, it aroused intense international controversy for the significant ethical and moral issues it was said to raise. These early concerns predominantly related to concepts of ‘baby buying’, and the notion that surrogacy had the potential to exploit less economically and occupationally advantaged women by those who did not want to go through the inconvenience of pregnancy.[65]

There is no evidence that surrogacy is being used by some women simply to avoid pregnancy. Research does indicate, however, that surrogate mothers are usually from lower socio-economic groups than the commissioning parents.[66]

The Brazier Committee’s review of surrogacy in the United Kingdom reported in 1997/98 that the perceived public consensus was that surrogacy was now viewed as a legitimate last report option for infertile couples, but that there remained fundamental concerns about the child’s welfare and the protection of surrogate mothers interests. The Committee rejected claims that surrogate mothers should be paid for their services (as opposed to payment of expenses only) and recommended that the term ‘expenses’ should be strictly defined. This was on the basis that payments may amount to ‘baby selling’ and encourage vulnerable women into acting as surrogates against their better interests. However, the report’s conclusions have been criticized and have not been implemented in the United Kingdom.[67]

It is therefore imperative that the Kenyan legislature enacts a law to regulate surrogate practices in the country, in order to tap on the massive revenue available as a result of surrogate contracts and also to enforce order and ethics in this new but delicate practice. 

2.4 Conclusion

It has been established that reproductive health practices are slowly but steadily gaining root in Kenya. It is a costly practice that is only affordable to the elite Kenyans of middle class social status who have problems in getting children. However, despite this reprieve to the childless mothers, there have emerged unscrupulous practices that tend to take advantage of the women whose wombs are ‘rented’, thanks to the absence of a legal framework to regulate the same. The unethical behavior is even mostly encouraged by the fact that there are citizens from other continents who troop into Kenya to take advantage of the lacunae in the law on regulation in order to get children through this method. There is therefore the need to create a strong legal framework to regulate the same. 

CHAPTER THREE

COMPARATIVE ANALYSIS OF SURROGATE PRACTICES IN OTHER JURISDICTIONS

3.0 Introduction

This chapter looks at what other jurisdictions have done with regard to regulating Surrogate agreements. It deals with review of laws, policies and professional guidelines on surrogacy of two countries being the United Kingdom (UK) and the Republic of South Africa (RSA). These two countries have been chosen because of their relevance to Kenyan laws. The English laws serve as the common laws for Kenya. As for South Africa, Kenya has previously borrowed from South African laws before and with much success at that. An example at hand is the Constitution of Kenya 2010. Besides, South Africa resonates with Kenya as to cultural and economic development unlike the UK which is more technologically advanced. 

Currently, Kenya has no laws, policies, regulations and professional guidelines to regulate the practice of surrogacy. However, as it has been discussed in chapter two above, a bill[68] has been drafted and presented before a parliamentary committee to incorporate the same. However, the bill as it is, does not give a comprehensive guideline to the regulation of surrogacy. Being a member of various international bodies, Kenya is under the guidance of various international statutes by dint of art 2(5) and (6) of the Constitution and one such statute is the Universal Declaration on Bioethics and Human Rights (2005)[69], which, though it provides a general view on bioethics, the ethics on the practice of surrogacy can be inferred from it.[70]

Kenya being a commonwealth country it derives its common laws from the United Kingdom (UK). At the moment, the definition and practice of surrogacy as stipulated in the Human Fertilization and Embryology Act 1990, (amended in 2008),[71] guide the practice of surrogacy in Kenya. This is supplemented with relevant provisions in the Surrogacy Arrangements Act,[72] the British Nationality Act (1981)[73] and the British Nationality (Proof of Paternity) Regulations 2006[74] where relevant. These provisions act merely as guidelines as the laws are not enforceable in the Kenyan courts. Besides, seeing as there are wide differences in the two countries legal structure,[75] system, beliefs, cultural practices and most importantly technological state of advancement, it is important to establish a middle ground.[76]

This middle ground, in this case, is the South African statutes, regulations and professional guidelines related to surrogacy. This is due to the fact that being a fellow African country, with relatively similar beliefs and practices, it would appear reasonable to adopt the relevant regulatory framework from South Africa. After all, one may say, Kenya has heavily borrowed, with success on other South African laws including the Constitution 2010, The Children’s Act[77] and the National Health Act[78]. The South Africa Health Act provides for the regulation of Assisted Reproductive Technology, through its regulations relating to artificial fertilization of persons which surrogacy is but one piece to it. The Children’s Act provides for the registration and care of children born out of a surrogacy arrangement, and there are ethical guidelines that guide the professionals in their practice. However, be as it may, the progressive laws from the United Kingdom may also be relevant seeing as Kenya is progressively adopting new technologies as they come. This is why this research looks at the regulatory frameworks from both countries before making any recommendations, which shall be based on the best practices of the two countries (UK and SA). 

3.1 Regulatory Framework on Surrogacy in the United Kingdom (UK)

3.1.1 Human Fertilization and Embryology Act 2008 

The Human Fertilization and Embryology Act (HFEA) 1990 (amended in 2008) is an Act of parliament of the United Kingdom whose purpose among others is to ‘establish a regulatory authority, make provisions for who in certain circumstances is to be treated in law as the parents of a child; and to amend the Surrogacy Arrangements Act 1985’ (HFEA) The Act of 1990 was amended in 2008 to include making provisions for ‘connected purposes’ 

The HFEA is the main regulatory framework for cases of assisted reproduction in the United Kingdom and its provisions provide for the following;

3.1.1.1 Parental orders 

One of the key reasons for the enactment of the Act was to ‘make provision about the persons who in certain circumstances are to be treated in law as the parents of a child’[79]. This is an important section of the Act as it provides for the registration and recognition of parentage for children born out of arrangements such as surrogacy and same sex partnerships.[80] The Act provides:- 

On application made by two people (‘the applicants’)/ the court may make an order providing for a child to be treated in law as the child of the applicants if – 

(a) The child has been carried by a woman who is not one of the applicants, as a result of the placing in her of an embryo or sperm and eggs or her artificial insemination 

(b) The gametes of at least one of the applicants were used to bring about the creation of the embryo, and 

(c) The conditions in subsections (2) to (8) are satisfied[81]

The conditions to be satisfied under Section 54 (2-8) are;

(i) Applicants should be husband and wife or civil partners of each other. 

(ii) At least one of the applicants must be genetically related to the child. 

(iii)Both applicants must be 18 years and above. 

(iv) The surrogate and her partner/husband (if applicable) must have freely and without any undue influence, consented to the making of the parental order. 

(v) The application is made within six (6) months after the birth of the child. 

(vi) The child should be living with the applicant(s) at the time of application and either one or both of the applicants should be domiciled in the United Kingdom, the Channel Islands or the Isle of Man. 

(vii) No money other than reasonably incurred expenses has been paid in respect of the surrogacy arrangement, unless that payment has been authorized by the court. 

If and when all the conditions of this section are met, then the court is able to order that commissioning parents/couple of a child born out of a surrogate arrangement are to be treated as the parents of the child without having to go through an adoption process. A report from a social worker may be required by the court before making a parental order.[82] A parental order transfers all parental rights to whoever it is given to and confers on the commissioning couple all duties and responsibilities of a parent whilst in the same breath putting an end to any such rights of the surrogate mother/parents.[83]

3.1.1.2 Amendment of the Surrogacy Arrangements Act 1985 

Part of the reasons for enactment of the HFE Act of 1990 and subsequently 2008, was to ‘amend the Surrogacy Arrangement Act 1985’.[84]The provisions amended in the Surrogacy Arrangement Act 1985 (c.49) fall under section 36 of the HFE Act 1990 (c.37) and Section 59 of the HFE Act 2008 (c.22). 

Section 36 (1) of the HFE Act 1990 provides for non-enforceability of surrogate arrangement by inserting Sec. 1A in the Surrogacy Arrangement Act as follows; 

After section 1 of the Surrogacy Arrangements Act 1985 there is inserted- [85]

1A) No surrogacy arrangement is enforceable by or against any of the persons making it. 

This provision basically means that the surrogate mother cannot be compelled by court or the commissioning parents to hand over the child, neither can the commissioning couple be compelled to pay any monies to the surrogate or recover monies paid to her. The agreement also cannot require either of the parties to take up or relinquish any parental responsibilities.[86] This can only be done through a parental order. A surrogacy arrangement therefore, is akin to a “gentleman’s agreement.”[87]

Sec. 59 of the HFE Act 2008 (c.22) amends the provisions of chapters 2 and 3 of the Surrogacy Arrangement Act 1985 (c.49) to allow a nonprofit making body (agency) charge facilitation fees for surrogacy arrangements.[88] The agency may also compile necessary information as regards their services and this shall not be penalized.[89] Lastly, under this amendment, the agency is allowed to advertise their services and charge for them.[90]

3.1.1.3 Establishing a Regulatory Authority 

The HFEA provides for the establishment of the Human Fertilization and Embryology Authority which is a body corporate, a legal entity with powers to sue and be sued - and reports to the secretary of the state.[91] The membership of the authority includes a chairman, deputy chairman and other members as the secretary of the state shall deem fit and who have the necessary qualifications required to hold such post (s). The Act further provides for their appointment, tenure, responsibilities and remuneration.

The authority is charged with the following functions among others; 

3.1.1.3.1 Issuance of Licenses

The authority is charged with issuing of licenses for fertility clinics in the United Kingdom.[92] The HEA Authority not only issues licenses to facilities wishing to provide fertility treatment in the country but also monitors the medical facilities to ensure that the provisions of the license are followed. If not, the HFE Authority has the powers to suspend, revoke or withdraw the license of a facility and recommend appropriate punishment for the offending party. This is done through licensing committees that are set up by the Authority. Licenses to conduct appropriate research are also issued by the Authority.

3.1.1.3.2 Management duties 

The authority is also charged with general management functions that include; keeping proper accounts of the body corporate, preparing annual reports of activities undertaken and developing professional codes of conduct for its members.[93]

3.1.1.3.3 General functions 

Other functions of the Authority include; reviewing of information about embryos and other services as stipulated by the Act, making public services provided to the public by the Authority and providing appropriate information and advice to the public as need arises.[94]

3.1.2 The Surrogacy Arrangements Act 1985[95]

The Surrogacy Arrangement Act Chapter 49 of 1985 of the United Kingdom[96] was enacted to regulate the practice of Surrogacy in the United Kingdom. It is a very short statute with only 5 sections.

Section 1 of the Act gives the definition of key terms like surrogate mother, surrogacy arrangement and payment. Under the Act, a surrogate mother means a woman who enters into an arrangement to carry such a child with the intention of handing the child over to another person(s) who shall then exercise parental rights over the child. The agreement to do so must be made before the woman begins to carry the child.

The Act criminalizes commercial surrogacy and forbids payment to third parties for aiding in negotiating of any surrogacy arrangements. However the HFE Act 2008 allows under section 59 (4) for non-profit making agencies to make a note for profit charge for facilitating surrogacy arrangements.[97]

The Act criminalizes any sort of advertisement and distribution of such adverts in any public media like newspapers, television and internet.[98] This was however repealed by section 59 subsection (7) of the HFE Act 2008 which allows such adverts to be made and distributed but only by or on behalf of a non-profit making body and as long as it shall not be an advert calling for commercial surrogacy.

Finally, the Act deals with offences prescribing sentences and fines to be meted out to persons who go against the provisions of the Act.[99]

3.1.3 The British Nationality Act 1981[100]

The British Nationality Act Chapter 61 of 1981 of the United Kingdom was enacted ‘to make provision about citizenship and nationality...as regards the right of abode in the United Kingdom’. 

Surrogacy arrangements, especially those conducted outside the United Kingdom, may raise issues about the nationality of the child.[101] The Act recognizes that a child born outside the UK shall automatically acquire British nationality if either of the parents is a British citizen.[102] There has to be solid proof however of the parentage before nationality is conferred.[103]

Section 50 of the Act read in conjunction with the British Nationality (Proof of Paternity) Regulations 2006) defines who is a parent for children born after 1st July 2006 as follows. A parent is;

i) The mother is the woman who gives birth to the child (this applies to a surrogate as well), 

ii) The father is either 1) the husband of the mother, 2) a person treated as a father under HFE Act 2008 or 3) any other person who meets certain requirements to proof paternity. 

The requirements under (ii) above include; provision of a birth certificate issued by the relevant authority identifying him as the father of the child (certificate should have been issued within 12 months of the birth of the child. Any other evidence that may certify the Secretary of the state like DNA test report.

3.2 Regulatory Framework on Surrogacy in the Republic of South African 

3.2.1 The Children’s Act of 2005[104]

The Children’s Act of 2005 was assented to on 8th day of June 2006 but became fully operation from the 1st day of April 2010.

This Act among other purposes was enacted to provide for surrogate motherhood and other matters connected therewith. The Act gives definition of key terms related to the practice of surrogacy which terms include, artificial fertilization, commissioning parent, gamete, parental responsibilities, surrogate mother and surrogate motherhood agreement.[105]

The Act regulates Surrogacy under the following terms:-

3.2.1.1 Surrogacy motherhood agreement 

The Children’s Act provides for a surrogacy motherhood agreement and lays down the conditions of its validity, confirmation by court, termination and its effect on the status of the child. No artificial fertilization on the surrogate mother can take place before a surrogacy motherhood agreement has been confirmed by the court. The fertilization has to take place within 18 months of the court’s confirmation.[106]

3.2.1.2 Conditions of surrogacy 

The Act provides that the following conditions must be fulfilled before parties enter into a surrogacy motherhood agreement; 

(a) Consent of the husband, wife or partner (if applicable) of both the commissioning parent and the surrogate mother to be, must be sought and given. However court may waive this provision in respect of surrogate mother,[107]

(b) At least one of the commissioning parties must be genetically / biologically related to the child,[108]

(c) A valid agreement must be entered into and confirmed by the court before fertilization of the surrogate mother. 

For this agreement to be valid, it must meet the following conditions as enshrined under section 292 of the Act. That is; 

i. It must be in writing and signed by all the parties, 

ii. At least one of the commissioning parents must be residing in the country, 

iii. The surrogate mother and her partner (if any) must be residing in the country. The court may dispose of this condition if it chooses to, 

iv. It must be entered into in the Republic of South Africa and 

v. It must be confirmed by the relevant authority where the commissioning parents reside 

(d) The commissioning parent(s) must be in a state of permanent and irreversible infertility[109] and, 

(e) All the parties involved must be adults of sound mind and capable of entering into an agreement by law. 

(f) The surrogate would be mother must fulfill the following additional conditions 

i. Has a documented history of at least one pregnancy and viable delivery, 

ii. Has a living child of her own and 

iii. Is not using the surrogacy as a source of income. 

(g) A surrogacy arrangement may not be terminated after artificial fertilization of surrogate mother has taken place. 

3.2.1.3 Prohibition of commercial surrogacy 

The Act prohibits commercial surrogacy and forbids the surrogate mother from using the surrogacy as a source of income.[110]

3.2.1.4 Effect of Surrogacy Agreement 

The Act provides that; 

‘Any child born of a surrogate mother and in accordance with the agreement is for all purposes the child of the commissioning parent or parents from the moment of the birth of the child concerned.’[111]

The agreement therefore confers parental responsibilities to the commissioning parents and as such infers or rather provides that; 

(a) The surrogate mother is obligated to hand over the child to the commissioning parents after its birth. 

(b) The surrogate mother has no parental rights to the child, either by herself or through her partner and/or relatives. 

(c) Surrogate motherhood may not be terminated after artificial fertilization has occurred. 

(d) The child has no claims either of maintenance or inheritance towards the surrogate mother, her husband/partner of relatives. 

Children born out of a surrogacy arrangement whose surrogacy agreement does not conform to the provisions in the Act are deemed to be the child of the surrogate mother for all purposes.[112]

3.2.1.5 Termination of the surrogate motherhood agreement 

A surrogacy motherhood agreement may only be terminated;[113]

(a) By the genetic mother of the child concerned as long as it is within sixty (60) days after the birth of the child as long as; 

i. The termination has to be in writing and notice filed with the court, 

ii. A court must be satisfied that the termination has been done voluntarily and that the genetic mother understands the effects of the termination of the agreement, 

iii. The termination is done in the best interest of the child and 

iv. Surrogate mother shall not incur liability to the commissioning parents for the termination of the agreement. 

(b) Termination of a surrogate motherhood agreement has the effect of terminating any parental rights that may have already been invested in the commission parents and vests them in the surrogate parents. It also terminates any and all claims that the child may have to the commissioning parents or their relatives.[114]

(c) Termination of pregnancy as prescribed under terms of the Choice on Termination of Pregnancy Act,[115] brings the surrogate motherhood agreement to an end. 

Termination of surrogacy agreement does not necessarily mean that the surrogate mother terminates the pregnancy. She may carry it to term and take parental responsibilities over the born child(ren).[116]

3.2.1.6 Payments in respect to surrogacy 

The Children’s Act expressly outlaws commercial surrogacy and criminalizes any form of material payment that is made either as a reward or as compensation. However the following payments are allowed;[117]

(a) Payments related directly to; 

i. Artificial fertilization, 

ii. Direct pregnancy expenses, 

iii. Payments related to the birth (delivery) of the child and 

iv. Payments made for the purposes (process) of confirmation of the surrogate motherhood agreement. 

Payments made towards insurance of the surrogate mother and loss of earnings occasioned by the surrogacy is acceptable. 

The Act prohibits publishing of names of the parties and advertisement of surrogacy services.[118]

3.2.2 National Health Act[119]

The National Health provides for rules and processes for artificial fertilization of persons under the regulations relating to artificial fertilization of persons.[120] Even though the regulations do not touch on surrogacy directly, the fact that surrogacy is mainly achieved through artificial fertilization and more specifically IVF, makes the regulations relevant.[121]

The regulations provide definitions of key relevant terms like artificial fertilization, embryo transfer, gamete donor, in vitro fertilization, oocyte and surrogate.[122]

Under the regulations, artificial fertilization includes in vitro fertilization and embryo intra-fallopian transfer, procedures that are used when undertaking gestational surrogacy. 

Provisions that touch on artificial fertilization and in extension surrogacy under the regulations include the following; 

(a) The full informed consent from parties involved before any procedure of artificial fertilization is undertaken.[123]

(b) Establishment of a central data bank where all information on gamete and embryo donation is stored. Information should be properly kept and updated and should be protected from the public.[124]

(c) Only competent and licensed person may effect artificial insemination including embryo transfer and that may only be effected at an authorized institution.[125]

(d) Ownership of a zygote or embryo after fertilization is vested in the recipient. The regulations define a recipient to include ‘a female person in whose uterus/womb a zygote or embryo is to be placed for the purpose of human reproduction’ and a surrogate as ‘a voluntary recipient of an embryo who will carry such embryo to birth for contractual parents.’[126]

(e) All births delivered as a result of artificial fertilization should be recorded by person in-charge of the facility and thereafter into central data bank within 3 months of such birth.[127]

(f) Disclosing of facts resulting from artificial fertilization is prohibited except where law provides otherwise or where court so orders.[128]

(g) Persons going against any provision in the regulations are liable to a fine or imprisonment not exceeding 10 years or both.[129]

3.2.2.1 Professional guidelines 

The Health Professions Council of South Africa (HPCSA) is the main regulatory authority which deals with general matters concerning medical practitioners in South Africa. It has a list of guidelines that relate to different health related areas among them ethical guidelines for reproductive health among health care practitioners in South Africa.[130] These guidelines provide that surrogacy should only be applied in very limited cases[131] and under strict medical supervision.[132] The autonomy of the surrogate mother has to be respected[133] and she should at all costs be protected from exploitation, considering she is most likely from a lower socio-economic background from that of the commissioning parents.[134] The guidelines prohibit the practice of commercial surrogacy[135] and all cases of artificial fertilization should only be effected by competent, qualified and licensed practitioners.

3.3 Conclusion 

The UK laws allow for surrogacy as long as one of the commissioning parents is genetically/biologically related to the resulting child, all parties are adults of sound mind and have entered into the arrangement with their full informed consent, the practice is not for commercial purposes and commissioning parties should either be husband and wife or legal partners at the time of the arrangement. The commissioning parties have to obtain a parental order within three months of the birth of the child to transfer any or all parental rights from the surrogate mother to themselves. The UK laws also recognize that not for profit organization may act as surrogacy agencies.

With regard to South Africa, it is apparent that South Africa does allow for the practice of surrogacy as long as the arrangement is entered into by adults of sound mind under a valid surrogate motherhood agreement, the agreement is registered and confirmed by the court before artificial fertilization is done, it is not for commercial purposes, surrogate mother/host meets certain laid out conditions, the commissioning parents suffer from permanent and irreversible infertility and the resultant child is genetically/biologically related to at least one of the commissioning parents. The resultant child is considered for all intent and purposes as the child of the commissioning parents. 

CHAPTER FOUR

CONCLUSION AND RECOMMENDATIONS 

4.0 Introduction

The evolution of medical technology has presented with it diagnostic and prognostic techniques advancing faster than the law thereby presenting serious ethical and legal issues. These raise the need to contemplate some form of regulation. Even as such, the law is said to mirror what a society looks like and when technological innovations like surrogacy come into the society, there is need for the law to come in to sanitize that innovation. That is the intention of the fertility bill.

4.1 Conclusion

The society is anchored on the core unit of the family. The right to freely make decisions about birth in cases of infertility or decreased fertility is directly conditioned by the progress of medicine (bio-medically assisted reproduction). Couples can now, out of their choice, decide to have children through surrogate practices. This practice is costly in Kenya. Despite the foregoing, the industry still lags behind in terms of regulation and legislation. 

Lack of a well founded and reasoned legislation has seen Kenya become the breeding ground for unethical and illegal surrogate practices. This is despite the existence of a robust and progressive Constitution which guarantees all the right to form and be part of a family. It provides in particular 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. However, there isn’t a specific statute that deals with surrogate practices save for a bill which is still in Parliament. This gap in legislation has seen an exploitation of surrogates and the practice is highly commercialized. This poses serious challenges as to ethics. 

However, all is not lost. The government has a lot of world best practices to emulate from. South Africa is one such example due to its similar cultural and economic demography as Kenya’s. Another good example of a country to emulate from is Britain especially due to the fact that Kenya and its former colonial master share a lot in terms of legislation.

To put into perspective the borrowing of jurisprudence of best practices from other countries namely Britain and South Africa, the research went ahead to analyze and critic various legislations regulating surrogate practices. In the UK, the Human Fertilization and Embryology Act 2008 which establishes a regulatory authority, makes provisions for who in certain circumstances is to be treated in law as the parents of a child and to amends the Surrogacy Arrangements Act 1985 was looked at. The Surrogacy Arrangements Act of 1985 which was enacted to regulate the practice of Surrogacy in the United Kingdom, The British Nationality Act 1981which was enacted to make provision about citizenship and nationality...as regards the right of abode in the United Kingdom was also interrogated to provide an in-depth analysis of how surrogate arrangements are done in the UK.

In South Africa, The Children’s Act of 2005 was looked at. It has provisions on surrogacy motherhood agreement, conditions of surrogacy, prohibition of commercial surrogacy, effects of surrogacy agreement, termination of the surrogate motherhood agreement, payments in respect to surrogacy among other pertinent provisions. Similarly, South Africa has the National Health Act which provides for rules and processes for artificial fertilization of persons under the regulations. 

4.2 Recommendations

Surrogate practices are fast growing and widely accepted by persons who cannot naturally have children. There is massive revenue to the government especially where the practice is carefully regulated. 

This research therefore recommends that the government and key players take note of the following recommendations:-

4.2.1 Legal Framework

The Kenyan the In-vitro-Fertilization Bill (Reproduction Health Care Bill) 2014 is not in itself adequate to regulate surrogate practices. This research recommends that the bill be written afresh to borrow heavily from the UK and South African laws. In particular, I recommend that the bill enshrines the following recommendations:-

4.2.1.1 Commissioning parents 

For parties to be considered commissioning parents, they should meet the following requirements. 

a) Capacity:- The commissioning parents should be adults of above 18 years of age at the time of the arrangement. They should also be legally and mentally competent as per the law.

b) Medical condition:- Surrogacy practices should only be limited and offered to couples where the woman is incapable of carrying a pregnancy. Surrogacy for “vanity” purposes like avoidance to gain weight and other cosmetic and/or inconvenience purposes should be prohibited and even penalized.[136] Proof of infertility should be required from a qualified medical practitioner before parties can enter into a surrogacy arrangement agreement. Use of surrogacy for other reasons other than to treat infertility amounts to violating the principle of non-maleficence.[137]

c) Domicile: - Both or at least one of the commissioning parents should be domiciled in Kenya at the time of the arrangement. The relevant authority may however choose to waive this requirement so as to cater for patients from foreign countries as long as their country has no objection to this.[138]

d) Marital status: - The commissioning parents should be married (either legally or traditionally) or be in a civil union, or be together in such a way that people around them consider them married before entering into a surrogacy arrangement.[139] Same sex marriages are currently not recognized in Kenya but the same should be reviewed in future. This provision also applies to single parent(s).

e) Genetic relation: - At least one of the commissioning parents should be genetically/biologically related to the child. Surrogacy arrangements for persons who are not genetically related to the resulting child should be banned and even penalized.[140] Proof of relation may be done by carrying out DNA testing at least six weeks after the birth of the child which is paid for by the commissioning parents. This testing should be done in a registered and licensed laboratory.

4.2.1.2 Requirements of surrogate mother/host 

For a woman to be considered as a surrogate host, she should fulfill the following requirements; 

a) Capacity: - A surrogate mother/host to be, should be 21 years and above at the time of the surrogacy arrangement.[141] However a lower age of 18 years may be considered depending on the maturity of the surrogate mother/host. The surrogate mother/host to be should be mentally competent at the time of entering the surrogacy agreement. A psychological analysis should be undertaken by a qualified practitioner to determine the mental and psychological capacity of the surrogate mother/host before a surrogacy arrangement can be entered into.

b) Proof of fertility: - The surrogate mother/host to be should have a documented history of at least one pregnancy which resulted to a viable birth. This in addition to medical records is evidence enough that she is capable of carrying a pregnancy to term. 

c) Living child: - The surrogate mother/host to be should have a living child of her own at the time of the surrogacy arrangement agreement. This is because there is psychological attachment to bearing a child and the surrogate mother should have gone through that to understand what she is getting herself into.[142]

d) Consent: - The surrogate/host mother should enter into the arrangement freely, without any coercion, duress or undue influence.[143] The consent given should be informed, that is it is given voluntarily, with full understanding of material facts which include risks, explained in a language that the surrogate understands. If the surrogate mother/host has a husband or partner, their consent should be sought as well. However, that can be done away with in certain special circumstances.

e) Domicile: - The surrogate mother/host should be domiciled in the Republic of Kenya at the time of the arrangement. This provision would serve to avoid medical tourists who are in search of “cheaper treatment” while at the same time not using “direct services” from the locals. 

f) Purpose: - A surrogate mother should not enter into a surrogacy arrangement for commercial purposes. She should not be in it for the money. However, reasonable compensation for loss of earnings while she is pregnant should be allowed and given.[144] Monies for direct expenses towards the artificial fertilization, birth of the baby, medical cover and immediate care for the child after birth should be provided for.

4.2.1.3 Provisions of surrogacy agreement 

Before artificial fertilization and transfer of embryos into the surrogate mother’s uterus is done, the parties must enter into a surrogacy arrangement and sign a surrogacy agreement beforehand. The surrogacy agreement should have the following provisions; 

a) Execution: - The surrogacy agreement should be in writing and should be signed by both parties. Verbal arrangements and / or agreements should not be allowed. The writing should be in either of the two national languages of Kenya being English or Kiswahili.[145]

b) Jurisdiction: - The agreement should be entered into in the Republic of Kenya under the relevant law.[146] The said agreement should be notarized or commissioned by a notary public or a commissioner of oaths as the case may be.[147]Agreements entered into in other jurisdictions should first be approved by the Kenyan courts and addendums made to that effect before artificial fertilization can be done.[148] All such agreements should be drawn by qualified persons and notarized and / or commissioned before the parties to the agreement.[149]

c) Commencement clause: - There should be a commencement clause in the agreement will start taking effect only after it has been approved by the court or whichever comes first. No artificial fertilization of the surrogate woman may happen before the agreement is in effect. Such fertilization will be considered as breach of law.

d) Compensation limits: - There should be a specified, directly and clearly written compensation limit to loss of earnings for the surrogate mother.[150] A birth should be treated as birth irrespective if it results into multiple babies or one child. No haggling or negotiations should be tolerated once artificial fertilization has occurred.

e) Provision for welfare of the child: - The agreement should provide for the contact, care, upbringing and general welfare of the child to be born. It should also provide for the child’s position in the event of the death of one or both of the commissioning parents or their divorce/separation before the birth of the child. A guardian to the child should be named in the agreement in writing before artificial fertilization takes place.[151] This is to ensure that the surrogate mother is not left with the parental responsibilities should death or disappearance of both commissioning parents occurs.

f) Validity dates: - The artificial fertilization of the surrogate must take place within six months from the execution of the agreement.[152] In case pregnancy does not occur within the six months then a new agreement should be entered into. If there is a change of surrogate mother /host, a new agreement should be drawn.

g) Termination of agreement after fertilization: - The arrangement and agreement shall not be terminated after artificial fertilization has occurred unless under special circumstances which includes termination of pregnancy under advice from the medical doctor.

4.2.1.4 Effects of surrogacy arrangement 

The surrogacy agreement and arrangement should have the following effect; 

a) Status of the child: - A child born of surrogacy shall be considered for all intent and purposes as the child of the commissioning parents and shall be registered as such under the births and deaths registration in the department of registration of persons.[153] This is only applicable if there was a valid surrogacy agreement entered and filed before artificial fertilization of the surrogate occurred. 

b) Parental responsibilities: - All parental responsibilities are and should be vested in the commissioning parents. A child born of surrogacy shall have no claims for succession, maintenance or related child responsibilities claims towards the surrogate mother and her husband/civil partner and their relatives.

4.2.1.5 Termination of surrogacy agreement 

The following are the provisions that are to be adhered to in termination of surrogacy arrangements agreements:-

a) Termination of surrogacy agreement: - No surrogacy may be terminated after artificial fertilization has occurred. However, a surrogate mother who is also the genetic mother of the child may terminate a surrogacy agreement within sixty days after the child has been born.[154] This should be done in writing and the notice filed in court. 

b) Liability on termination of surrogacy agreement: - A surrogate mother should not incur any liability in exercising her right to terminate the surrogacy agreement except payments made as direct expenses towards the artificial fertilization of the surrogate mother, birth, immediate care of the child, medical cover and related incidentals thereto.[155]

c) Effects of termination of agreement: - Termination of the surrogacy agreement should also serve to terminate all parental responsibilities that may have been given to the commissioning parents. The same responsibilities are now vested in the surrogate mother and the child may make no claims as to maintenance or succession on the commissioning parents.

4.2.1.6 Payments for surrogacy 

Commercial surrogacy should be strictly forbidden and payment for surrogacy arrangements should be criminalized except payments for the following:-[156]

(a) Compensations related directly to the artificial fertilization and pregnancy of the surrogate, 

(b) Expenses related directly to the birth of the child and immediate after care, 

(c) Expenses related to confirmation of surrogate motherhood agreement, 

(d) Insurance cover for surrogate mother to cater for medical costs and other incidentals and 

(e) Bona fide professional services rendered like legal and medical services from qualified and licensed professionals. 

4.2.1.7 Professional and institutional guidelines and policies 

a) Competence of practitioner: - Artificial fertilization should only be done by qualified and licensed practitioners.[157] A register of such qualified and licensed practitioners should be kept by the relevant professional body and be updated as need arises. 

b) Licensed institution: -The artificial fertilization of a woman should only be conducted at a licensed institution which institution should be inspected frequently by relevant authorities. Certain standards for such institutions should be laid out and relevant authorities should ensure that they are met.

c) Continuous education: - Qualified professional practitioners should be required to attend continuous educational programs to update their skills and keep up with changing trends.[158]

d) Self-regulation / professional code: - The practitioners in this field should be allowed to come up with self-regulatory rules and professional standard codes that govern their practice and provide for penalties for breach of the same.

e) Creation of regulatory authority: - Further to the recommendation above, a professional body / authority should be created to regulate and register IVF and other ART centers. This authority should also prescribe mechanisms for dispute resolutions in cases of disputes in ART.[159]

4.2.2 Other recommendations 

Other recommendations for general provisions include the following;- 

a) Databank: - A databank should be maintained by relevant body / authority of all pregnancies and births that have resulted by virtue of surrogacy.[160] This database should be updated frequently and a trend analysis done every year to determine the way forward. This may require the setting up of a regulatory authority / body to take care of these elements. 

b) Surrogacy frequency: - A limit on how many times a surrogate can be a surrogate mother should be set. This is to not only avoid cases of turning surrogacy into a money making full time job but also safeguarding the health of the surrogate mother as many pregnancies within a specified period may be detrimental to the health of the surrogate.[161]

c) Counseling services: - Pre and post surrogacy counseling should be offered free of charge before parties enter into a surrogacy arrangement.[162] Surrogate mothers can form support groups, if they so desire, where they get to share their surrogacy process. 

d) Miscarriage clause: - There should be a provision for miscarriages such that if the surrogate miscarries through a fault not of her own, then she should be entitled to a percentage of the loss of earnings justifiable with the number of months she has successfully carried the pregnancy.

e) Surrogacy agency: - A not for profit surrogacy agency may be set up to help connect the potential surrogates with potential commissioning parents.[163] These agencies may charge a little fee for that and may advertise their services, however running an agency for profit making should be prohibited. The institution / fertility center performing the artificial fertilization should not be the one to provide and / or recommend a surrogate mother / host.[164]

f) Penalties: - Penalties for breach of provisions should be provided and should be severe enough to deter persons from breaching the provisions. 

g) Surrogacy for same sex couples and single persons: - The current Kenyan law does not recognize same sex unions and as such ART treatment is not available to such couples. I recommend that this treatment be availed to the same sex couples[165] and singles as long as they meet the other requirements.

It is my hope that the foregoing recommendations shall be taken into account when reviewing the new bill.

BIBLIOGRAPHY

Books

Aristides N. Hatzis, From Soft to Hard Paternalism and Back: The Regulation of Surrogate Motherhood In Greece (2005)

Gena Corea, The Mother Machine: Reproductive Technologies From Artificial Insemination To Artificial Wombs (1985) 

Gillon, R., Consent. Philosophical medical ethics (2007)

Karen Wright, Human in the Age of Mechanical Reproduction (1998) 

Michelle Stanworth (ed.) Reproductive Technologies: Gender, Motherhood and Medicine (1987) 

Pavel Kucha, The Birth of Surrogate Motherhood Law: An Economic Analysis of Institutional Reform (1997) 

Peter Singer & Deane Wells, The Reproduction Revolution: New Ways of Making Babies (1984)

Journal Articles

Andrews, L. B.‘The Aftermath of Baby M: Proposed State Laws on Surrogate Motherhood’ (1987) 5 The Hastings Center Report 17. 

Anita Stuhmcke ‘Surrogate Motherhood: The Legal Position in Australia’ (1994) 2 Journal of Law and Medicine.

Bernard M. Dickens, ‘Legal Developments In Assisted Reproduction’ (2008) 101 International Journal of Gynecology and Obstetrics.

Bernard M. Dickens, ‘Reproductive Health Services and the Law and Ethics Of Conscientious Objection’ (2001) 20 Journal of Medicine & Law.

Dara E. Purvis, ‘Intended Parents and the Problem of Perspective’ (2012) 24 Yale Journal of Law and Feminism 210.

David Orentichler, ‘Beyond Cloning: Expanding Reproductive Options for Same-Sex Couples’ (2001) 66 Brooklyn Law Review.

Deborah H. Wald, ‘The Parentage Puzzle: The Interplay Between Genetics, Procreative Intent, and Parental Conduct in Determining Legal Parentage’ (2007) 1 American University Journal of Gender, Social Policy & the Law 379.

Developments in the Law, ‘Changing Realities of Parenthood: The Law’s Response to the Evolving American Family and Emerging Reproductive Technologies’ (2003) 116 Harvard Law Review 2052. 

Developments in the Law, ‘Changing Realities of Parenthood: The Law’s Response to the Evolving American Family and Emerging Reproductive Technologies’ (2003)116 Harvard Law Review 2052

Elly Teman, ‘The Social Construction Of Surrogacy Research: An Anthropological Critique of The Psychosocial Scholarship On Surrogate Motherhood’ (2008) 67 Journal Of Social Science and Medicine.

Erez Aloni, ‘Cloning and the LGBTI Family: Cautious Optimism’ (2011) 35 New York University Review of Law & Social Change.

Gordana Kovacek Stanic ‘State Regulation of Surrogate Motherhood: Liberal or Restrictive Approach’ (2003) International Journal of the Jurisprudence of the Family.

Ilana Hurwitz, ‘Collaborative Reproduction: Finding the Child in the Maze of Legal Motherhood’ (2000) 33 Connecticut Law Review.

Jason M. Merrill, ‘Two Steps Behind: The Law’s Struggle to Keep Pace with the Changing Dynamics of the American Family’, (2009)11 Journal of Law & Family Studies. 

Jennifer S. Hendricks, ‘Essentially a Mother’, (2010) The University of Tennessee Legal Studies Research Paper Series.

Katharine K. Baker, ‘Bionormativity and the Construction of Parenthood’ (2008) 42 Georgia Law Review 649. 

Kimani, V & Olenja J, ‘Infertility: Cultural dimensions and impact on women in selected communities in Kenya’ (2001) 8The African Anthropologist 2.

Marsha Garrison, ‘Regulating Reproduction’ (2008) 76 George Washington Law Review.

Runzheimer, J & Larsen, J., ‘When Science supersedes sex: reproductive technology and surrogacy’ (2011) Medical ethics for dummies.

Yehezkel Margalit ‘In Defense of Surrogacy Agreements: A Modern Contract Law Perspective’ (2014) 20 William & Mary Journal of Women And The Law 423

Yehezkel Margalit, et al ‘The New Frontier Of Advanced Reproductive Technology: Re-Evaluating Modern Legal Parenthood’ (2005) 37 Harvard Journal of Law & Gender.

Thesis

Robai Ayieta Lumbasyo, Towards A Kenyan Legal And Ethical Framework On Surrogacy; A research report submitted to the Faculty of Health Sciences, University of the Witwatersrand, in partial fulfillment of the requirements for the degree Master of Science in Medicine Bioethics and Health Law May 2015 Johannesburg.

Reports and Conventions

Universal Declaration of Bioethics and Human Rights of 2005 http://unesdoc.unesco.org/images/0014/001461/146180e.pdf

Newspaper Articles and Electronic Media

Dr. George Luchiri Wajackoyah, ‘Conception of Children through Surrogacy’ The Platform for Law, Justice & Society No. 16 March 2016.

John Chigiti, ‘Kenya: Judge Makes Groundbreaking Ruling On Surrogacy’ The Star, 9 July, 2014, 25.

[1] Gillon, R., Consent. Philosophical medical ethics Chichester John Wiley 113 – 118 

[2] The first known case of a successful gestational surrogate birth was recorded in 1985. 

[3] Robai Ayieta Lumbasyo, Towards A Kenyan Legal And Ethical Framework On Surrogacy; A research report submitted to the Faculty of Health Sciences, University of the Witwatersrand, in partial fulfillment of the requirements for the degree Master of Science in Medicine Bioethics and Health Law May 2015 Johannesburg 

[4]John Chigiti, ‘Kenya: Judge Makes Groundbreaking Ruling On Surrogacy’ The Star, 9 July, 2014,25. 

[5] JLN & 2 Others -vs- Director of Children Services & 4 Others [2014] eKLR. 

[6] Registration ( Births and Deaths) Act. 

[7] Ibid. 

[8] Pavel Kucha, The Birth of Surrogate Motherhood Law: An Economic Analysis of Institutional Reform (1997) pg 3. 

[9] Andrews, L. B.‘The Aftermath of Baby M: Proposed State Laws on Surrogate Motherhood’ (1987) 5 The Hastings Center Report 17. 31–40. 

[10] Ibid. pg 4. 

[11] Yehezkel Margalit, et al ‘The New Frontier Of Advanced Reproductive Technology: Re-Evaluating Modern Legal Parenthood’ (2005) 37 Harvard Journal of Law & Gender. 

[12] Peter Singer & Deane Wells, The Reproduction Revolution: New Ways of Making Babies (1984). 

[13] Marsha Garrison, ‘Regulating Reproduction’ (2008) 76 George Washington Law Review1623 (quoting Karen Wright, Human in the Age of Mechanical Reproduction, DISCOVER, May 1998, at 74, 76). 

[14] Gena Corea, The Mother Machine: Reproductive Technologies From Artificial Insemination To Artificial Wombs (1985) 1-9 (arguing that ARTs have been created in the interests of the patriarchy and serve to exploit women); Michelle Stanworth (ed.) Reproductive Technologies: Gender, Motherhood And Medicine (1987) (discussing the impacts of ARTs on women’s lives). 

[15] Jason M. Merrill, ‘Two Steps Behind: The Law’s Struggle to Keep Pace with the Changing Dynamics of the American Family’, (2009)11 Journal of Law & Family Studies 509, 510–12. For a discussion of the bionormative parental framework, see generally; Katharine K. Baker, ‘Bionormativity and The Construction of Parenthood’ (2008) 42 Georgia Law Review 649. 

[16] Developments in the Law, ‘Changing Realities of Parenthood: The Law’s Response to the Evolving American Family and Emerging Reproductive Technologies’ (2003) 116 Harvard Law Review 2052 (“The law has long rooted its conception of parenthood in the nuclear family: a child is raised by a married man and woman who share exclusive parental rights in the child.”) [hereinafter Changing Realities of Parenthood]; Deborah H. Wald, ‘The Parentage Puzzle: The Interplay Between Genetics, Procreative Intent, and Parental Conduct in Determining Legal Parentage’ (2007) 1 American University Journal of Gender, Social Policy & the Law 379, 383. 

[17] We use the term “traditional ARTs” to refer to those ARTs which are commonly in use today, such as in vitro fertilization, and which do not require somatic cell nuclear transfer, stem cell technology, or other advanced techniques. Somatic cell nuclear transfer and stem cell technology will be explained in greater detail in Part II infra. 

[18] See Dara E. Purvis, ‘Intended Parents and the Problem of Perspective’ (2012) 24 Yale Journal of Law and Feminism 210, 223–30 (discussing existing parental paradigms); Ilana Hurwitz, ‘Collaborative Reproduction: Finding the Child in the Maze of Legal Motherhood’ (2000) 33 Connecticut Law Review 127, 130 (stating that courts consider genetics, intent and gestation in making parentage determinations). 

[19] Developments in the Law, ‘Changing Realities of Parenthood: The Law’s Response to the Evolving American Family and Emerging Reproductive Technologies’ (2003)116 Harvard Law Review 2052, at 2059. 

[20] Supra n 13. 

[20] Supra n 14. Pg 111. 

[21] Erez Aloni, ‘Cloning and the LGBTI Family: Cautious Optimism’ (2011) 35 New York University Review of Law & Social Change 1, 3–7; David Orentichler, ‘Beyond Cloning: Expanding Reproductive Options for Same-Sex Couples’ (2001) 66 Brooklyn Law Review 651, 653. 

[22] Hatzis, Aristides N., 'Just the Oven': A Law & Economics Approach to Gestational Surrogacy Contracts (2003). Perspectives for The Unification or Harmonization of Family Law In Europe, pp. 412-433, Available at SSRN: http://ssrn.com/abstract=381621 or http://dx.doi.org/10.2139/ssrn.381621 

[23] Supra n 4. 

[24] Ibid. 

[25] Ibid. 

[26] Jennifer S. Hendricks, ‘Essentially a Mother’, (2010) The University of Tennessee Legal Studies Research Paper Series. 

[27] Bernard M. Dickens, ‘Reproductive Health Services and The Law and Ethics Of Conscientious Objection’ (2001) 20 Journal of Medicine & Law (2001) 283-293. 

[28] Bernard M. Dickens, ‘Legal Developments In Assisted Reproduction’ (2008) 101 International Journal of Gynecology and Obstetrics, 211—215. 

[29] Aristides N. Hatzis , From Soft To Hard Paternalism And Back: The Regulation of Surrogate Motherhood In Greece (2005). 

[30] Anita Stuhmcke ‘Surrogate Motherhood: The Legal Position in Australia’ (1994) 2 Journal of Law And Medicine. 

[31] Elly Teman, ‘The Social Construction Of Surrogacy Research: An Anthropological Critique of The Psychosocial Scholarship On Surrogate Motherhood’ (2008) 67 Journal Of Social Science and Medicine 1104–1112. 

[32] Yehezkel Margalit ‘In Defense Of Surrogacy Agreements: A Modern Contract Law Perspective’ (2014) 20 William & Mary Journal of Women And The Law 423 

[33]Gordana Kovacek Stanic ‘State Regulation of Surrogate Motherhood: Liberal or Restrictive Approach’(2003) International Journal of the Jurisprudence of the Family. 

[34] Martin Engel., ‘Cross-Border Surrogacy: Time For A Convention?’ 

[35] Both jurisdictions demand that intended parents have at least a temporary inland domicile, which apparently discourages prospective parents; see Section 54 (4) (b) of the British Human Fertilisation and Embryology Act 2008 and Art. 8 of the Greek Law No. 3089/2002. 

[36] Trimmings/Beaumont, in: Trimmings/Beaumont (eds.), International Surrogacy Arrangements, 

pp. 483 et seq. (2013), summing up the four institutions participating in their study.pg 273. 

[37] Constitution of Kenya 2010, art 45(1). 

[38] Ibid, art 26 (2). 

[39] The In-Vitro Fertilization Bill, 2014, s 2. 

[40] Ibid, s 4. 

[41] Ibid, s 5. 

[42] Ibid, s18(1). 

[43] Ibid, s19. 

[44] Ibid, s21 (1). 

[45] Ibid, s22(1). 

[46] Ibid, s25. 

[47] Ibid, s28. 

[48] Ibid, s31. 

[49] Ibid, s32(2). 

[50] Ibid, s34(1). 

[51] Ibid, s35(1). 

[52] Ibid, s35(2). 

[53] Ibid, s35(6). 

[54] Ibid, s39(1). 

[55] Ibid, s40. 

[56] Dr. George Luchiri Wajackoyah, ‘Conception of Children through Surrogacy’ The Platform for Law, Justice & Society No. 16 March 2016. 

[57] J L N & 2 others v Director of Children Services & 4 others [2014] eKLR. 

[58] John Chigiti, ‘Kenya: Judge Makes Groundbreaking Ruling On Surrogacy’ The Star, 9 July, 2014, 25. 

[59] Ibid. 

[60] Ibid. 

[61] Ibid. 

[62] Calvert v. Johnson, 851 P.2d 776 (Cal. 1993), certificate denied, 510 U.S. 938 (1993) (intended mother of child prevailed over parentage claim of gestational surrogate); Culliton v. Beth Israel Deaconess Med. Ctr., 756 N.E.2d 1133 (Mass. 2001) (uncontested pre-birth order of parentage requested by intended parents and gestational surrogate); Belsito v. Clark, 644 N.E.2d 760 (Ohio Misc. 1994) (genetic parents declared parents in uncontested case when surrogate was the sister of the intended mother); J.F. v. D.B., 848 N.E.2d 873 (Ohio App. 2006) (surrogacy contract did not violate public policy). 

[63] Alabama, Alaska, Colorado, Connecticut, Delaware, Georgia, Hawaii, Idaho, Iowa, Kansas, Maine, Maryland, Minnesota, Mississippi, Missouri, Montana, New Mexico, North Carolina, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Vermont, Wisconsin, Wyoming. New Jersey has no statute governing surrogacy, but the Supreme Court ruled that when the surrogate is the genetic mother, the agreement is unenforceable. Matter of Baby M., 537 A.2d 1227 (N.J. 1988). A non-compensated gestational surrogacy may be allowed in New Jersey, but a court refused a prebirth order to place the intended parents' name on the birth certificate. A.H.W. v. G.H.B., 772 A.2d 948 (N.J. Super. Ct. Ch. Div. 2000). 

[64] Supra n 24.66. 

[65] Ibid. 

[66] Ibid. 

[67] Ibid. 

[68] The Reproductive Health Care Bill 2014 deals mainly with other aspects of reproductive health and devotes a very small and therefore non-comprehensive paragraph on surrogate motherhood. 

[69] Universal Declaration of Bioethics and Human Rights of 2005 http://unesdoc.unesco.org/images/0014/001461/146180e.pdf

[70] Robai Ayieta Lumbasyo, Towards A Kenyan Legal And Ethical Framework On Surrogacy; A research report submitted to the Faculty of Health Sciences, University of the Witwatersrand, in partial fulfillment of the requirements for the degree Master of Science in Medicine Bioethics and Health Law May 2015 Johannesburg pg43. 

[71] Human Fertilization & Embryology Act of 2008. c.22 http://www.legislation.gov.uk/ukpga/2008/22/contents

[72] Surrogacy Arrangements Act of 1985 (revised 1990). c.49 http://www.legislation.gov.uk/ukpga/1985/49

[73] British Nationality Act of 1985. c.61 http://www.legislation.gov.uk/ukpga/1981/61

[74] British Nationality (Proof of Paternity) Regulations 2006. SI 2006/1496. London; 2006 http://www.legislation.gov.uk/uksi/2006/1496/made?view=plain

[75] The Kenyan courts are known to be slow, expensive and complicated. 

[76] Robai Ayieta Lumbasyo, ‘Towards A Kenyan Legal And Ethical Framework On Surrogacy’ A research report submitted to the Faculty of Health Sciences, University of the Witwatersrand, in partial fulfillment of the requirements for the degree Master of Science in Medicine Bioethics and Health Law May 2015 Johannesburg.pg 

[77] The Children’s Act No. 8 of 2001 Chapter 141 of the laws of the Republic of Kenya 

[78] The National Health Act No 61 of 2003 

[79] This is an important provision since the person who brings forth a child is legally considered as the mother of the child. (Children’s Act of RSA) 

[80] Unlike in Kenya, the UK allows for same sex unions. 

[81] Supra n 4, S54(1) 

[82] A visit by a social worker may be conducted to determine the suitability of the couple. 

[83] Supra n 9. Pg 46. 

[84] Chapter 22 and 37 of the HFE Act amends the Surrogacy Arrangement Act of 1985 

[85] S36(1) 

[86] Supra n 16,pg 47. 

[87] A gentleman’s agreement is one which you entrust someone to keep his word – it is akin to saying ‘my word is my honor”. 

[88]Supra n 14, S59 (4) and (5). 

[89] Ibid,59(4). 

[90] Ibid,59 (7). 

[91] Ibid, s5. 

[92] The fertility clinics have to conform to some basic laid down standards before they can be licenced. 

[93]Supra n 23, s6. 

[94] Ibid, s8. 

[95] The Surrogacy Arrangements Act 1985 Cap 49 of the laws of the United Kingdom. 

[96] This is the main Act that provides for surrogacy arrangements in the United Kingdom. 

[97] Supra n 27, s2. 

[98] Ibid, s3. 

[99] Punishment includes imprisonment, payment of fine or both. 

[100] The British Nationality Act 1981Cap 61 of the Laws of the United Kingdom. 

[101] Kenya has seen an influx of patients from Europe including the UK. This is because it is cheaper in Kenya than in UK and services are faster since there are no waiting periods to be observed. Ligami, A 2014 ‘Medical tourism growing as more travel to Kenya’ The East African 9 October Available at http://www.theeastafrican.co.ke/news/More-travel-to-Kenya-for-medical-treatment/-/2558/2476872/-/item/3/-/gfsrwx/-/index.html (accessed: 8 May 2015) 

[102] Supra n 32,S2. 

[103]British Nationality Act provides that in some cases, DNA testing may be done to ascertain and/or proof parentage. 

[104] The Children’s Act No. 38 of 2005 of RSA 

[105]Ibid, s1. 

[106] Ibid,s296. 

[107] Ibid,293. 

[108] Ibid,294. 

[109] Ibid,295 (a). 

[110] Ibid, s295 (c) (iv-v). 

[111] Ibid, s297 (1). 

[112] Ibid, s297 (2). 

[113] Ibid, s298,299. 

[114] Ibid,299. 

[115] Choice on Termination of Pregnancy Act No. 92 of 1996. 

[116] Supra n 19, pg 56. 

[117] Supra n 47, s301. 

[118] Ibid,s302 and 303 respectively. 

[119] National Health Act 61 of 2003 

[120] The National Health Act provides for making of such regulations as may be necessary to regulate areas / provisions under its mandate. 

[121] Supra n 49, pg 57. 

[122] Schedule 1 of the regulations. 

[123] Schedule 7 (e) and 11 (b) 

[124] Schedule 5 

[125] Schedule 3 and 15(1-6) 

[126] Schedule 18 (1&2) 

[127] Schedule 16 

[128] Schedule 19 

[129] Schedule 21 

[130] Also known as HPCSA Booklet 13 (General Ethical guidelines for Reproductive Health) 

[131] Guideline 8.1 

[132] Guideline 8.4 

[133] Guideline 8.3 

[134] Guideline 8.2 

[135] Guideline 8.3 

[136] Women have been known to want a surrogate so as not to interfere with their job responsibilities and social life. 

[137] Runzheimer, J & Larsen, J. L 2011 ‘When Science supersedes sex: reproductive technology and surrogacy in Medical ethics for dummies Indiana Wiley Publishing, Inc. 

[138] This is to discourage commercialized medical tourism. 

[139] This includes traditional African weddings / marriages that are conducted according to various traditional cultures in Kenya; Kimani, V & Olenja J, ‘Infertility: Cultural dimensions and impact on women in selected communities in Kenya’ (2001) 8The African Anthropologist 2 pg 200 – 214 

[140] This ensures that the welfare of the resultant child is protected at all times, as they have genetic links to either of the parent. 

[141] I have considered age 21 instead of the usual age of majority of 18 years since pregnancy comes with a lot of responsibilities and requires a more mature mind and body. 

[142] For medical reasons, the living child should be at least two years and above at the time of entering into the surrogacy arrangement. 

[143] Undue influence is usually seen and / or inferred from surrogacy between family members especially if the surrogate host is indebted to the commissioning parent(s) in one way or another. 

[144] This provision should be clear in the agreement and amount stipulated should be constant regardless of whether it is a single or multiple birth. 

[145] Agreements written in other languages should have official translations attached thereto before execution. 

[146] The Law on Contracts Cap 23. 

[147] Commissioning is done for Kenyan Nationals while notarizing is done is cases where one or more of the parties are foreigners (Advocates Act 1989 of the Laws of Kenya) 

[148] A note from the respective embassy may be needed to prove credibility of the agreement. 

[149] Only Advocates of the High Court of Kenya can draw such agreements (Advocates Act 1989 of the Laws of Kenya) 

[150] Perhaps a loss of income schedule should be drawn up. 

[151] The proposed guardian should sign by his/her name to signify knowledge and acceptance of the appointment. 

[152] Extension may be granted by court if there is difficulty in retrieval, fertilization or implantation. But such extension should not exceed three months. 

[153] The department charged with registering of persons in Kenya (both births and deaths) (Births and Deaths Registration Act) 

[154] This type of surrogacy, which is traditional surrogacy should not be encouraged as it is hard to regulate. 

[155] This provision is to avoid exploitation through punitive compensation for terminating surrogacy. 

[156] Adopted from both the UK and SA regulatory frameworks. 

[157] Qualified in the sense of both education and skill / practice. 

[158] There should be a point system where practitioners are given points annually for attending various refresher skills. This should count towards renewal of their annual practicing license. 

[159] These ADR should be enforceable in a court of law. 

[160] A databank would come in handy in case a follow up is ever needed. 

[161] I recommend that a woman should not be a surrogate more than three times if she has only one child of her own and not more than twice if she has two or more children of her own. 

[162] This may be done though a surrogacy agency to avoid biasness and / or conflict of interest. 

[163] This will really reduce incidences of exploitation. 

[164] To avoid cases of conflict of interest. 

[165] This may require changing and / or enacting other laws to provide for recognition of same sex couples.