A couple has offered me surrogacy, but I'm wary of its legal risks

Dear Vivian,

A couple struggling with infertility recently approached me and asked me to consider becoming a surrogate mother for them through the IVF process. They have assured me that they will cover all expenses related to the pregnancy and have offered a token of appreciation for my assistance. While they seem like a decent and genuine couple, I am hesitant and would like to understand the legal implications of surrogacy in Kenya before making a decision.

Linet Aseko,

Westlands, Nairobi

Dear Linet,

It’s crucial to acknowledge that surrogacy (a legal arrangement whereby a woman agrees to carry a pregnancy to term, on behalf of a couple who will be the child's parents after birth) in Kenya remains largely unregulated. Despite being a widely resorted-to method for treating infertility, the absence of clear legal frameworks has led to ambiguity and challenges in addressing the rights and responsibilities of all parties involved. In most circumstances, the surrogate who gave birth to the child remains the legal mother until steps are taken to legally transfer her parental rights to someone else.

As per the Kenyan Constitution, the family unit enjoys recognition and protection by the State. However, the lack of specific legislation pertaining to surrogacy leaves room for interpretation and inconsistency in how parental rights are determined. This has been evident in recent court cases, such as A.M.N & 2 Others v. AG & 5 others and J L N & 2 others v Director of Children Services & 4 others, where the courts grappled with defining parental rights in surrogacy arrangements.

In the absence of comprehensive legislation, judicial decisions have varied, with courts sometimes recognising the surrogate mother as the legal parent until legal processes are invoked to transfer parenthood to the commissioning parents. This underscores the urgent need for clear legal guidelines to protect the rights of all parties involved in surrogacy agreements.

Proposed bills, such as the Assisted Reproductive Technology Bill of 2022, aim to address some of these lacunae by outlining eligibility criteria for surrogate mothers, emphasising the importance of surrogacy agreements and clarifying parental rights and responsibilities. However, until such legislation is enacted, surrogacy agreements remain vulnerable to legal uncertainties and disputes.

Furthermore, the distinction between commercial and altruistic surrogacy is crucial in understanding the ethical and legal considerations involved. While commercial surrogacy involves financial compensation for the surrogate mother, altruistic surrogacy is based on voluntary assistance without monetary gain. Both forms raise questions regarding exploitation, consent and the commodification of reproductive services, underscoring the need for ethical guidelines alongside legal regulations.

Your inquiry reflects a prudent approach to a complex and evolving legal issue. As you consider whether to proceed with the arrangement, I urge you to seek legal counsel to ensure your rights and interests are safeguarded. While surrogacy offers hope to couples struggling with infertility, navigating the legal terrain requires careful consideration and adherence to ethical principles.

Vivian.

The writer is an Advocate of the High Court of Kenya and award-winning Civil Society lawyer. [email protected]