Surrogacy in Kenya has become popular for couples and individuals worldwide, thanks to its affordability and welcoming environment.
But what are the legal requirements for surrogacy in Kenya? Is surrogacy allowed in Kenya?
Are there clear laws on surrogacy in Kenya, or is it a legal gray area? Let’s explore all these questions and every detail to help you understand the process, the rules, and what to expect.
What Is Surrogacy, and Why Kenya?
Surrogacy is when a woman, called a surrogate, agrees to carry and give birth to a child for another person or couple, known as the intended parents.
In Kenya, surrogacy is a growing option for people who can’t conceive naturally due to medical issues, same-sex couples, or single individuals looking to become parents.
The country has gained attention as a surrogacy destination because it’s more affordable than places like the US or UK, where costs can soar above $100,000.
In Kenya, surrogacy typically ranges from $33,000 to $52,000, making it accessible for many. Kenya’s fertility clinics boast high success rates, often between 70% and 80%, which adds to their appeal.
But here’s the big question: Is surrogacy legal in Kenya? The short answer is that surrogacy in Kenya is neither explicitly legal nor illegal.
There’s no specific Surrogacy Act of Kenya to regulate it, which creates a unique situation.
This lack of clear laws on surrogacy in Kenya makes it a flexible yet sometimes risky option.
Let’s break down the legal requirements step by step to understand how surrogacy in Kenya works and what you need to know.
Step 1: Understanding the Legal Landscape of Surrogacy in Kenya
Unlike countries with strict surrogacy laws, Kenya operates in a legal gray area. There’s no comprehensive Surrogacy Act of Kenya, meaning surrogacy in Kenya is unregulated.
This doesn’t mean it’s illegal but far from it. The Kenyan government recognizes surrogacy as a way to help childless couples, single parents, and same-sex couples build families.
However, without clear laws on surrogacy in Kenya, the process relies heavily on private agreements and court processes to ensure everything is above board.
The absence of a Surrogacy Act of Kenya means there are no specific legal requirements for who can pursue surrogacy.
Heterosexual couples, same-sex couples, and single individuals can all explore surrogacy in Kenya.
This openness makes Kenya a magnet for international intended parents, but it also raises concerns about potential exploitation, especially for surrogate mothers.
A proposed surrogacy bill in Kenya, known as the Assisted Reproductive Technology (ART) Bill of 2019, is under discussion to address this.
If passed, this bill would set rules for surrogacy in Kenya, limiting it to altruistic arrangements (where surrogates aren’t paid beyond reasonable expenses) and restricting it to married couples.
For now, though, the bill remains unratified, leaving surrogacy in Kenya largely unregulated.
Step 2: The Surrogacy Agreement in Kenya
The surrogacy agreement is one of the most critical legal requirements for surrogacy in Kenya.
This is a legal contract between the intended parents and the surrogate mother, outlining everyone’s rights and responsibilities.
The surrogacy agreement in Kenya is essential because it provides clarity and protects all parties involved.
Without a specific Surrogacy Act of Kenya, this contract is the primary legal document guiding the process.
So, what’s in a surrogacy agreement in Kenya?
The agreement typically states that the surrogate will carry the baby for nine months and hand over the child to the intended parents after birth without any issues.
It also covers the intended parents’ responsibilities, like paying for the surrogate’s medical care, food, clothing, and other expenses during pregnancy.
Both parties must sign the agreement before the surrogacy process begins, and a skilled lawyer usually drafts it to ensure it’s legally sound.
This contract is crucial because it helps avoid disputes. For example, it ensures the surrogate doesn’t claim parental rights after birth and that the intended parents take full responsibility for the child.
Without clear laws on surrogacy in Kenya, the surrogacy agreement becomes the backbone of the process, making it legally enforceable under the country’s general contract laws.
Step 3: The Role of the Courts in Surrogacy in Kenya
Once the baby is born, the legal process doesn’t end with the surrogacy agreement in Kenya. The intended parents must go to court to establish their legal rights as parents.
According to the current surrogacy rules in Kenya (or lack thereof), the surrogate mother is considered the legal mother at birth, even if she has no genetic connection to the child.
To change this, the intended parents must file a petition in court within three days of the baby’s birth to request a parental order.
This court process is a key legal requirement for surrogacy in Kenya. The court reviews the surrogacy agreement and ensures the child’s best interests are protected.
If everything checks out, the court orders the Department of Vital Statistics to issue a new birth certificate listing the intended parents as the legal parents.
This step is vital because it ensures the child’s legal status and prevents future parentage disputes.
Step 4: Who Can Be a Surrogate in Kenya?
Another critical aspect of surrogacy in Kenya is who can serve as a surrogate. While there are no strict legal requirements due to Kenya’s lack of a Surrogacy Act, most surrogacy agencies have their own criteria.
Typically, surrogates in Kenya are women aged 23 to 40, preferably married with children of their own.
Why? Because surrogacy is emotionally and physically demanding, agencies believe married women with kids are better equipped to handle the process.
Surrogates must also undergo medical and psychological screenings to ensure they’re healthy and understand the implications of surrogacy.
These screenings check for infectious diseases like HIV or hepatitis to protect the baby.
While the proposed surrogacy bill in Kenya suggests limiting surrogates to women over 25, this isn’t yet the law, so agencies set their standards.
Step 5: Types of Surrogacy in Kenya
When exploring surrogacy in Kenya, you’ll come across two main types:
Traditional and Gestational Surrogacy.
Traditional surrogacy
In Traditional Surrogacy, the surrogate’s eggs are used, making her the biological mother.
Gestational surrogacy
In gestational surrogacy, the embryo is created using the intended parents’ or donors’ eggs and sperm, so the surrogate has no genetic link to the child. Gestational surrogacy is more common in Kenya because it simplifies legal issues around parentage.
Both types are practiced in Kenya, and the choice depends on the intended parents’ needs and preferences. The surrogacy agreement in Kenya will specify which type is used to avoid confusion later.
Step 6: Costs and Ethical Concerns in Surrogacy in Kenya
One reason surrogacy in Kenya is so popular is its affordability. The total cost, including medical procedures, legal fees, and surrogate compensation, ranges from $33,000 to $52,000.
This is a fraction of what you’d pay in developed countries. However, the lack of clear surrogacy rules in Kenya raises ethical concerns.
Some worry that the absence of regulation could lead to exploitation of surrogate mothers, especially in a country where poverty affects over a third of the population.
Commercial surrogacy, where surrogates are paid beyond reasonable expenses, is allowed in Kenya for now.
However, the proposed surrogacy bill in Kenya aims to ban this, allowing only altruistic surrogacy.
This change could protect surrogates from being pressured into the process for financial reasons, but might also limit access to surrogacy in Kenya for some.
Step 7: Challenges and Risks of Surrogacy in Kenya
While surrogacy in Kenya offers many benefits, it’s not without challenges. Kenya’s lack of a Surrogacy Act creates uncertainty, especially for international intended parents.
Issues like obtaining citizenship or travel documents for the child can be tricky, and some countries may not recognize surrogacy agreements made in Kenya.
Same-sex couples also face risks due to cultural attitudes, as homosexuality is stigmatized in Kenya, even though surrogacy itself is open to them.
Surrogacy cases in Kenya, like the 2014 case mentioned earlier, show that disputes can arise without clear laws. Parents must work with reputable agencies and experienced lawyers to navigate these challenges. Researching the surrogacy agency and understanding the legal process is crucial to avoid complications.
Step 8: The Future of Surrogacy in Kenya
The future of surrogacy in Kenya depends on whether the proposed bill becomes law. If passed, it would introduce stricter surrogacy rules in Kenya, limiting who can pursue surrogacy and how surrogates are compensated.
This could make the process safer but less accessible. For now, surrogacy in Kenya remains a viable option for many, but it requires careful planning and legal guidance.
Conclusion
So, is surrogacy illegal in Kenya? No, it’s not, it’s allowed and widely practiced, but it’s unregulated, which means you must proceed cautiously.
Surrogacy in Kenya offers an affordable, high-success-rate option for building a family. Still, the lack of a Surrogacy Act of Kenya means you must rely on a solid surrogacy agreement in Kenya and court processes to secure your rights.
By understanding the legal requirements, working with trusted professionals, and researching thoroughly, you can navigate surrogacy in Kenya successfully.
Whether you’re a couple, a single parent, or part of the LGBT community, surrogacy in Kenya could be your path to parenthood.
Do your homework, choose a reputable agency, and get legal advice to ensure a smooth journey. With the proper steps, surrogacy in Kenya can turn your dream of starting a family into reality.
