Surrogacy is the process of giving birth as a surrogate mother or the process of arranging such a birth.
A surrogate mother is a woman who agrees to carry a pregnancy to term for another woman. If done legally through a surrogacy agreement, the surrogate mother lays no claim to the child.
Surrogacy exists informally in Kenya because there is no legislation.
Parties can enter into agreements but these may not stand in court because of the lack of a law. The courts cannot, for example, compel the birth mother to give up a child should they refuse to do so. At birth, the notification bears the name of the surrogate mother and the biological father of the child. The family that commissioned the surrogacy can then adopt the child formally.
In 2014, Parliament attempted to pass laws on surrogacy through the In-Vitro Fertilisation Act of 2014 (renamed the Assisted Reproductive Technology Bill). It gave heterosexual couples the right to gestational surrogacy in local clinics. The Bill was never passed.
However, some of its provisions have come back through the Reproductive Healthcare Bill, 2019 sponsored by Nakuru Senator Susan Kihika.
The Bill provides for the right to reproductive health care; to set the standards of reproductive health and the right to make decisions regarding reproductive health. Below are some of the provisions of that Bill.
Terms for surrogacy are outlined in Part 3 of the Bill, which is titled “Assisted reproduction”.
This part of the Bill gives every person a right to assisted reproduction through a certified reproductive healthcare provider.
It mandates the national and county governments to collaborate in offering the assisted healthcare services.
The assisted reproductive healthcare provider has a duty to get consent from, inform parties of their options, possible complications and other contingent matters as laid out in the law.
Surrogacy agreement
In the Bill, parties can enter into surrogacy by signing a surrogate parenthood agreement.
Both parties must be represented by a separate advocate.
Surrogate parenthood is only allowed for parents who are not able to give birth to a child by any means.
The commissioning parent(s) should be at least 25 and no more than 50 years of age; be suitable to accept the parenthood of the child that is to be conceived; and understand and accepts the legal consequences of entering into a surrogacy agreement.
The proposed surrogate mother must be at least 21 years old; meet the prescribed conditions for acting as a surrogate mother; and understand and accepts the legal consequences of entering into the agreement
The commissioning parent(s) shall pay any legal fees payable by a surrogate mother.
Termination of surrogacy agreement
A surrogate parenthood agreement may be terminated automatically following the termination of pregnancy; before the implantation of a fertilised embryo in the surrogate mother’s womb; or where a dispute arises between commissioning parents and before the fertilised embryo is implanted in the surrogate mother.
The commissioning parents can, however, request for a DNA test if they suspect the child is not theirs. If their fears are confirmed, the deal will cease automatically.
The Bill forbids the surrogate mother from terminating the pregnancy. At birth, she must hand the child over to the commissioning parent(s) as soon as is reasonably possible. She also relinquishes any right to care and contact with the child.
Citizenship of the child
The commissioning parents will be named as the parents of the child in the notification of birth. This is a break from the current practice where, as mentioned previously, the surrogate mother is named as the parent in the notification of birth. Consequently, the child shall acquire the citizenship of the commissioning parent(s).
Compensation
The Bill forbids compensation of any kind under a surrogate parenthood agreement.
However, the commissioning parents can pay for expenses such as in-vitro insemination and pregnancy, the birth of the child, post-natal care and post-delivery complications. They will also cover for the loss of earnings suffered by the surrogate mother and insurance to cover her for any acts that may lead to death or disability.