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Legal Questions to Note Before Embarking on Surrogacy

by Nessa Shera
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Happy African baby boy standing in crib, Cape Town, South Africa

                                                                               Image Credit

Ten years ago, Kenya was at shock when its first test tube babies were born. Controversy reigned concerning whether the same was moral, while issues concerning its legal validity were questioned.  Yet to this day, laws pertaining to surrogacy are still lacking, with most judges using other statutes, such as the Children’s Act and the Kenyan Constitution to interpret issues that arise in court.  IVF is the process of fertilization by manually combining an egg and sperm in a laboratory dish, and then transferring the embryo to the uterus. Surrogacy includes inserting the same into a third party, known as the surrogate.

If you’re a woman who is incapable of conceiving or carrying a pregnancy on her own. You would then request a third party to carry a pregnancy on your behalf, on condition that when the child is born, that it is handed over to you. But what happens then?

Due to the lack of legal regime, there are a lot of gaps in particular procedures. For instance, who does the child belong to? Will it be in the name of the surrogate mother or to the commissioning parent? In the Childrens Act, the person who gives birth has the rights over the child, thus in this case, it would be the surrogate who would be registered as the mother of the infant.

How do you then transfer these rights to the commissioning parents on whose behalf the child was carried? A parent who gets a child under a surrogacy arrangement must adopt the surrogate child. This is because a surrogate agreement cannot change the status of a biological parent. Only through legal process can the custody of the child, be changed. The adoption order will create the change in the legal status taking away the biological parental responsibility from the surrogate parent and donating the rights and powers over the child to the surrogate parent.

However, if there is a dispute between the surrogate and the commissioning parents, the Children’s Court or the High Court may be called upon to give the necessary direction as who is to be registered as the parent by applying the principles of the best interests of the child, to the effect that the child may be placed in under the care and protection of a Children’s home.

Surrogacy leaves great opportunities for those who have trouble conceiving children, but the lack of legal provisions provide an obstacle to achieving parenthood. It’s recommended that parties attempting the same try avoid as much dispute as possible by having a firm agreement and understanding with the surrogate party. This is an element that assisted two commissioning parents in a landmark court case-where they headed to the Constitutional and Human Rights Court seeking orders to compel the Director of Children’s Services and MP Shah Hospital to release their children under the surrogacy agreement-win the same with costs of up to Ksh1.5 million as compensation for the embarrassment they were put through and violation of their rights.

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