Surrogacy in Kenya
Following the Footsteps of European Parliaments
Surrogacy in Kenya is still unregulated, but widely tolerated as a fertility treatment. The Kenyan constitution guarantees the right to form and be part of a family — going so far as to describe the family as the natural and fundamental unit of society and the necessary basis of social order. So it is not surprising that IVF and surrogacy in Kenya is widely accepted, while at the same time viewed skeptically by religious leaders.
There are pending regulations in the form of the In-Vitro Fertilization Act of 2014. The Bill (recently renamed the Assisted Reproductive Technology Bill) gives heterosexual couples the right to gestational surrogacy in Kenyan clinics. But as of 2016, the Bill was still not ratified.
According to the Bill, a woman (at least 25 years old) may have an embryo of another couple placed or artificially inseminated in her for purposes of surrogate motherhood. The Intended Parents must be a heterosexual couple in a stable relationship. The surrogate mother carries the child on behalf of the couples and then relinquishes all parental rights over the child unless a contrary intention is proved.
Same Sex Couples and Surrogacy in Kenya
Kenya is one of the most anti-homosexuality cultures worldwide. A 2007 Pew Global Attitudes Project shwoed that 96% of Kenyan residents believe that homosexuality should not be accepted, this was the fifth-highest rate of non-acceptance in the 45 countries surveyed.
Homosexuality is largely considered repugnant and the state punishes same-sex sexual acts as crimes. For this reasons same-sex couples should think carefully about choosing Kenya as a destination for surrogacy.
Those couples traveling in Kenya should exercise strict discretion. For same sex couples, it is important that they do not represent themselves as a same-sex couple while in the country. Surrogacy agreements should be only between one partner and the surrogate mother, with no mention of the Intended Father’s sexual orientation or relationship status.
Discretion should not be limited only to public spaces. The government of Kenya in itself has warned that health care providers also often display prejudice. Homosexual couples often suffer stigma perpetuated by health care providers who breach their privacy and confidentiality by exposing their sexual orientation to other colleagues at the facilities. The health care providers are not friendly and couples pursing surrogacy in Kenya should not assume that their clinic or hospital will be more tolerant than the general public.
Is Surrogacy in Kenya Legal?
The Act limits surrogacy in Kenya to altruistic agreements only, meaning that no money or other benefits other than for reasonable expenses can been given or received by the couple or the surrogate. In essence, the 2014 law follows the template used to enable surrogacy in the UK, Australia and other European countries. The law also provides for a Parental Order process identical to the process now in place to regulate parental rights following surrogacy in the UK.
Note that, like in the UK, the surrogacy agreement itself will not guarantee the parental rights of the Intended Parents. The surrogate remains the legal mother, and any parent who gets a child under a surrogacy arrangement must take one more step to complete the legal journey. This is the Parental Order process. This Court Order amends birth certificate to reflect the intentions of the Surrogacy Agreement.