What is Human Surrogacy
Human surrogacy is a type of assisted reproductive technology (ART) in which a woman, known as the surrogate mother, agrees to carry a pregnancy to term and give birth to a child for another person or couple, known as the intended parents. For human gestation surrogacy, the surrogate mother is not genetically related to the child, and the intended parents will become the legal parents of the child after birth.
Traditional Surrogacy versus Gestational surrogacy
The main difference between traditional surrogacy and gestational surrogacy is the biological connection between the surrogate mother and the child.
In traditional surrogacy, the surrogate mother is inseminated with the sperm of the intended father. Now you are wondering who is the biological mother. YES!, you are right, the surrogate mother is the biological mother of the child in this case.
In gestational surrogacy, the surrogate mother is implanted with an embryo that has been created using the sperm and egg of the intended parents, or using donor sperm and egg. This means that the surrogate mother is NOT the biological mother of the child.
Which type of surrogacy is right for you?
By now you might be wondering which is the best option for surrogacy and particularly in our African set of life.
Based on my observation and research, I will advise that the best type of surrogacy for you will depend on your individual circumstances and preferences. If you are looking for a more affordable option, traditional surrogacy may be a better choice. However, it is important to be aware of the legal and ethical challenges associated with traditional surrogacy.
On the other hand, if you are looking for a more straightforward legal process and a less ethically controversial option, gestational surrogacy may be a better choice. However, it is important to note that gestational surrogacy is typically more expensive than traditional surrogacy.
Remember that, It is important to discuss your options with a fertility specialist or surrogacy agency or legal adviser to determine which type of surrogacy is right for you.
Surrogacy in Kenya
Surrogacy is a complex and controversial issue in Kenya. There is no specific law on surrogacy, but the Kenyan constitution through Article 45(1) guarantees the right to form and be part of a family. My wakili friend will term this as a ‘legislative lacuna’.
This loophole has led to a growing number of people seeking surrogacy services in Kenya, both from within the country and from abroad. Yes, it is the true state of affairs; foreigners would travel all the way from their surrogacy-restrained countries to our legally open state for the convenience to start an ideal family. Thanks to the loophole.
Implications of surrogacy in Kenya:
Ethical concerns: Surrogacy raises a number of ethical concerns, such as the potential for exploitation of surrogate mothers, the commercialization of the human body, and the impact on children born through surrogacy.
Legal issues: The lack of a legal framework for surrogacy in Kenya creates a number of legal challenges, such as determining parental rights and responsibilities.
Social impact: Surrogacy is a relatively new phenomenon in Kenya, and its social impact is still being debated. Some people argue that it is a threat to traditional family values, while others argue that it is a positive development that expands the possibilities for family formation.
Specific examples of the implications of surrogacy in Kenya
Petition case 78 of 2014 (Kenya Law JL N & 2 others v. Director of Children Services & 4 others [2014] eKLR); DCS had seized two children born out of a surrogacy arrangement between a Kenyan couple (the Petitioners) and a surrogate mother. The DCS had argued that the surrogacy agreement was illegal and that the children were at risk of being exploited. This case was a big landmark of surrogacy in Kenya as the High Court of Kenya held that the Director of Children's Services (DCS) has no power to seize children born out of surrogacy agreements.
Petition 443 of 2014 (AMN & 2 others v. Attorney General & 5 others eKLR, BKN, TMK) In 2014, a Kenyan couple who had twins through surrogacy were unable to obtain birth certificates for their children because the Kenyan government did not recognize the surrogacy arrangement. The ruling in this Petition was another significant victory for surrogacy in Kenya. It established that surrogacy is legal in Kenya and that children born through surrogacy have the same rights as children born through natural conception. The ruling also required the government to take steps to implement the court's rulings, including developing a national policy on surrogacy and amending the relevant laws and regulations.
In 2018, a group of people were arrested in Kenya on charges of child trafficking for their involvement in a surrogacy arrangement.
There have been reports of surrogate mothers in Kenya being exploited by surrogacy agencies, who may offer them inadequate compensation or fail to provide them with adequate medical care.Despite the challenges, surrogacy is a growing phenomenon in Kenya. It is important to have a public conversation about the ethical, legal, and social implications of surrogacy in order to develop a regulatory framework that protects the rights of all parties involved.
The Awakening Path
The awakening journey cannot be described without mention of various individuals who made a mark in the acknowledgement of Surrogacy.
Hon. Majanja, an high court judge was very instrumental through his guidance and ruling of surrogacy and parenting petitions brought before him. In 2014, he ruled that ''Surrogacy is not a hypothetical issue any more. It is real and many Kenyans are resulting to surrogacy as an alternative to being parents especially those who cannot for medical reasons have their own children''
The late Prof. Magoha, and then chairperson of Kenya Medical and Dentists Board (KMDB), was a strong advocate for Assisted Reproductive Technology (ART) and surrogacy in Kenya. In 2018, he authorized the expansion of ART services in Mombasa, which was a significant step towards making ART more accessible to Kenyans.
In 2018, Prof Marion Mutugi and Justice Isaac Lenaola co-authored the book Bioethics of Medical Advances and Genetic Manipulation: Legal, Philosophical and Moral Perspectives. I have had time to peruse this book and can agree that this is an important work that contributes to the understanding of the ethical, legal, and philosophical implications of surrogacy and other genetic manipulation in Kenya and beyond.
In 2014, a tough speaking female parliamentarian, Hon. Millie Othiambo tabled the Assisted Reproductive Technology(ART) Bill that opened the start of legal guidance on surrogacy.
Evolution of Surrogacy in Kenyan History
Before Assisted Reproductive Technology (ART), surrogacy practices in Kenya were largely informal and unregulated. There were no clear legal guidelines or regulations governing surrogacy arrangements, and surrogate mothers and intended parents were often left to negotiate their own agreements.
One common practice was for surrogate mothers to be recruited from within the extended family or community of the intended parents. This was often seen as a way to build trust and ensure that the surrogate mother was known and respected by the intended parents.
Another common practice was for surrogate mothers to be paid in cash or in kind for their services. The amount of compensation paid varied depending on the circumstances of the arrangement, but it was typically lower than the amount paid to surrogate mothers in developed countries.
There were also some cases of commercial surrogacy in Kenya before ART. However, this practice was less common, as it was not widely accepted by society.
In general, surrogacy practices in Kenya before ART were less sophisticated and less regulated than they are today. Surrogate mothers and intended parents often faced legal and social challenges, and there was a lack of support for surrogacy arrangements.
I did some report digging and here are some specific examples of surrogacy practices in Kenya before ART:
In 1989, a Kenyan woman became the first known surrogate mother in the country. She was paid 100,000 Kenyan shillings (approximately $1,000 at the time) to carry a child for a British couple.
In 1994, a Kenyan woman gave birth to twins through surrogacy for a Kenyan couple. The arrangement was negotiated between the two couples without any legal contract or third-party involvement.
In 1997, a Kenyan woman gave birth to a child through surrogacy for a Japanese couple. The arrangement was facilitated by a commercial surrogacy agency, and the surrogate mother was paid 500,000 Kenyan shillings (approximately $5,000 at the time).
The development of ART in Kenya has made surrogacy more accessible and affordable for intended parents. However, there is still a need for clear legal guidelines and regulations to protect the rights of surrogate mothers and intended parents. Let us understand more about the ART bill, 2014 on surrogacy.
Kenya Reproductive Health Care Bill, 2014 on surrogacy:
The Kenya Reproductive Health Care Bill, 2014 (the Bill) is a proposed law that would regulate assisted reproductive technology (ART) in Kenya, including surrogacy. The Bill was introduced in Parliament in 2014, but it has not yet been passed into law.
The Bill defines surrogacy as "an arrangement in which a woman agrees to carry a pregnancy to term and give birth to a child for another person or persons." It sets out a number of requirements for surrogacy arrangements, including that:
The commissioning parent(s) and the surrogate mother must all be of legal age and capacity to consent to the arrangement.
The surrogate mother must be medically fit to carry a pregnancy.
All parties to the arrangement must have received genetic counseling.
The arrangement must be in writing and signed by all parties.
The surrogate mother must be paid reasonable compensation for her services.
Take note that the Bill also prohibits certain practices related to surrogacy, such as:
Commercial surrogacy, where the surrogate mother is paid more than reasonable compensation for her services.
Altruistic surrogacy, where the surrogate mother is not paid any compensation for her services.
Surrogacy for single people or same-sex couples.
The Bill has been praised by some for its attempt to regulate surrogacy and protect the rights of all parties involved. However, others have criticized the Bill for being too restrictive and for failing to adequately address the needs of infertile couples, same-sex couples(gay couples), and single people.
