Surrogacy in Kenya: Navigating Law, Rights & Best Practices
- Muhoro & Gitonga Associates
- 3 days ago
- 6 min read
Updated: 13 minutes ago
Table of Contents
Introduction: Why Surrogacy in Kenya?
The Legal Status: Grey but Evolving
Types of Surrogacy
Key Court Cases & Judicial Precedents
Applicable Laws on Surrogacy in Kenya
The ART Bill 2022/24: What’s Changing?
Step‑by‑Step Surrogacy Process in Kenya
Costs & Financial Considerations
Rights & Responsibilities of the Surrogate
Commissioning Parents: Legal Tips
Risks, Pitfalls & How to Avoid Them
International & Comparative Context
Conclusion
FAQ
1. Introduction: Why Surrogacy in Kenya?
Kenya is quickly emerging as a key destination for surrogacy in Africa. With its modern IVF clinics, comparatively affordable costs, and increasingly flexible reproductive healthcare, it’s no surprise that both local and international intended parents are considering Kenya as a surrogacy option.
However, the legal framework is still developing, which makes expert legal guidance absolutely critical.
2. The Legal Status: Grey but Evolving
At present, Kenya does not have a specific statute that governs surrogacy. It is not illegal, but it is also not expressly regulated. Surrogacy arrangements are treated as civil contracts—under the Law of Contract Act, enforceable but without codified protections. Legal parentage often still requires adoption or a court-issued parental order.
Birth registration currently defaults to listing the surrogate as the mother, regardless of genetics, until legal transfer of parental rights is completed. This ambiguity has triggered judicial intervention and is the driving force behind proposed surrogacy legislation.
3. Types of Surrogacy
a. Traditional Surrogacy
In traditional surrogacy, the surrogate is artificially inseminated with the intended father’s sperm or donor sperm, making her the biological mother of the child. This type of surrogacy is less common due to emotional and legal complexities, as the surrogate has a genetic connection to the child.
b. Gestational Surrogacy
Gestational surrogacy is more prevalent in Kenya. Here, the surrogate carries a child conceived through in vitro fertilization (IVF) using the egg and sperm of the intended parents or donors. The surrogate has no genetic link to the child, which simplifies legal and emotional considerations.
c. Altruistic vs. Commercial Surrogacy
Altruistic Surrogacy: The surrogate receives no financial compensation beyond reasonable expenses (e.g., medical costs, legal fees). This model is often preferred in Kenya due to ethical concerns about commodifying reproduction.
Commercial Surrogacy: The surrogate is paid a fee for her services. While practiced in Kenya, commercial surrogacy raises ethical and legal concerns due to the lack of regulation, potentially leading to exploitation.
4. Key Court Cases & Judicial Precedents
This was the first major Kenyan case involving a gestational surrogacy arrangement. The intended parents (a heterosexual couple) challenged the state for listing the surrogate as the legal mother on the birth certificate, despite the fact that the child was biologically theirs.
Key highlights:
The High Court acknowledged the legitimacy of surrogacy agreements in Kenya.
It held that until the law is enacted, courts must guide surrogacy arrangements through constitutional interpretation.
The judgment emphasized that legal parenthood must be established via court order or adoption.
The court called upon Parliament to enact a legal framework for assisted reproductive technologies, including surrogacy.
This earlier case dealt with the registration of children born through surrogacy and the challenges around birth certificates. The intended parents, although the biological parents, faced obstacles in being recognized as the legal parents.
Key highlights:
The court recognized the commissioning parents as the genetic parents.
However, due to the lack of express legal provisions, the surrogate was listed as the mother on official records.
The court ordered that adoption be used as the route for legal transfer of parentage.
Legal Takeaway
These rulings established that while surrogacy is legally recognized, intended parents must undergo a court-supervised process to be listed as legal parents. Courts have encouraged Parliament to enact legislation to avoid repeated judicial interpretation.
5. Applicable Laws on Surrogacy in Kenya
Until the ART Bill becomes law, surrogacy in Kenya is influenced by various existing statutes:
Article 45: Recognizes the family as the natural and fundamental unit of society.
Article 53: Guarantees every child the right to a name, nationality, parental care, and protection.
Governs adoption, guardianship, and parental responsibility.
Requires court processes for legal parentage transfer.
Focuses on the best interests of the child as a guiding principle.
Provides procedures for registering births.
The name of the birth mother (the surrogate) is entered by default unless a court orders otherwise.
Legal parent changes must be supported by documentation such as adoption orders or court rulings.
Designed to establish legal guidelines for IVF, surrogacy, and gamete donation.
Proposes the automatic listing of commissioning parents on birth certificates.
Seeks to regulate commercial surrogacy and protect surrogate rights.
6. The ART Bill 2022/24: What’s Changing?
The Assisted Reproductive Technology Bill is Kenya’s first attempt to comprehensively legislate reproductive technologies.
Key provisions include:
Mandatory written, notarized surrogacy contracts.
Commissioning parents automatically recognized as legal parents.
Surrogates restricted to a maximum of three pregnancies with two-year intervals.
Compensation to cover medical, psychological, and economic impact.
No sex selection except for medical reasons.
Establishment of a central regulatory body to license and monitor fertility clinics and practitioners.
Criminal sanctions for violations (e.g., falsifying parentage or unauthorized clinics).
7. Step‑by‑Step Surrogacy Process in Kenya
Despite the evolving legal framework, the typical surrogacy process in Kenya involves the following steps:
Surrogacy Agreement: Both parties sign a contract before the procedure begins, outlining responsibilities, compensation, and the surrogate’s commitment to hand over the child after birth.
Medical Procedures: IVF and related fertility treatments (such as ICSI, donor gametes, embryo freezing) are performed at fertility clinics.
Pregnancy and Birth: The surrogate carries the baby for nine months.
Legal Parentage Petition: Intended parents file a petition in court, usually within three days of birth, seeking legal recognition as the child’s parents.
Birth Registration: Upon court approval, the Registrar of Births issues a birth certificate naming the intended parents as legal parents.
Post-Birth Support: Surrogates receive agreed compensation and emotional support from families and agencies.
8. Costs & Financial Considerations
Total cost: KES 4–7 million (USD 30,000–55,000)
Includes:
Medical procedures (IVF, prenatal care).
Legal and agency fees.
Surrogate compensation and stipends.
Insurance and maternity care.
Post-delivery support.
9. Rights & Responsibilities of the Surrogate
Right to receive full compensation and healthcare.
Limited to three surrogacies with two-year gaps between each.
Must relinquish parental rights upon delivery.
May not contact the child unless agreed upon in contract.
Must follow all medical and legal conditions in the surrogacy agreement.
10. Commissioning Parents: Legal Tips
Always work with qualified family law lawyers.
Draft clear, enforceable contracts covering every stage.
Confirm the surrogate’s informed consent and mental wellness.
Begin adoption or court order process early to avoid legal delays.
If foreign, liaise with embassies early for citizenship arrangements.
11. Risks, Pitfalls & How to Avoid Them
Risk | How to Avoid It |
Surrogate reneges on agreement | Strong legal contracts + court parental order |
Medical or pregnancy complications | Insurance and medical coverage |
Legal delays in parent registration | File for adoption or court order early |
Citizenship issues | Coordinate with embassies ahead of birth |
Surrogate exploitation | Use ethical clinics and ensure fair compensation |
12. International & Comparative Context
Kenya permits surrogacy for single individuals and heterosexual couples. Unlike India or Thailand, Kenya has not banned commercial surrogacy (yet).
Kenyan surrogacy is more affordable than U.S. or European options—by up to 40-60%. Growing global interest in Kenya has increased demand for regulation and legal certainty.
13. Conclusion
Surrogacy in Kenya: Navigating Law, Rights & Best Practices. Surrogacy in Kenya offers incredible possibilities for building families, but the absence of clear legislation means all parties must proceed with caution.
Existing court rulings and statutory frameworks offer guidance, and the proposed ART Bill promises clarity. Until then, success in surrogacy depends on detailed contracts, legal oversight, ethical clinics, and a child-centered approach.
14. FAQ: Surrogacy in Kenya: Navigating Law, Rights & Best Practices
Q1: Is surrogacy legal in Kenya?
Yes. It's not prohibited, but it's not explicitly regulated. Legal recognition of parentage requires adoption or court orders.
Q2: What are the types of surrogacy allowed?
Traditional and gestational surrogacy are both practiced, with gestational being more common and legally preferable
.
Q3: Can foreign nationals pursue surrogacy in Kenya?
Yes. However, foreign intended parents must comply with Kenyan and home country laws for parentage and citizenship.
Q4: What laws apply to surrogacy in Kenya?
The Constitution, Children Act, Births and Deaths Registration Act, and judicial rulings all influence surrogacy arrangements.
Q5: What is the ART Bill and why is it important?
The ART Bill will regulate IVF, surrogacy, and fertility services. It proposes enforceable contracts and protections for surrogates and parents.
Q6: Can same-sex couples pursue surrogacy in Kenya?
Currently, same-sex partnerships are not legally recognized in Kenya, which may prevent full legal parentage transfers.
Q7: What is the cost of surrogacy in Kenya?
KES 4–7 million (USD 30,000–55,000), including medical, legal, and surrogate-related expenses.
Q8: How do you register the birth of a surrogate-born child?
Initially under the surrogate’s name. Legal parentage is changed after court or adoption procedures.
Q9: What rights do surrogates have?
They are entitled to compensation, health coverage, and may not be contacted by the child unless agreed in writing.
Q10: What happens if there is a dispute?
Kenyan courts will enforce surrogacy contracts and prioritize the best interests of the child.
