Surrogacy Insights

In Kenya, there are currently no laws explicitly prohibiting or permitting surrogacy.  However, lawmakers introduced bills aiming to regulate surrogacy in 2014 and 2016, but they have yet to approve them.

AMN & 2 others v Attorney General, et al

Regarding surrogacy arrangements, a significant legal ruling occurred in 2015 when the High Court of Nairobi addressed a petition (Milimani Law Courts –  Petition 442 of 2014).  The court ruled that, in surrogacy cases, the surrogate mother must be registered as the legal mother of the child until legal proceedings transfer parenthood to the intended parents.

In that case, Z was a surrogate and delivered twins for X and Y.  The hospital initially registered X and Y as the parents based on legal advice from the Attorney General.  However, complications arose when UK immigration officials refused to accept the birth certificate stating it contained inaccurate information.  X and Y could not be recognized as legal parents due to Kenya’s absence of surrogacy laws permitting this action.   The intended parents petitioned the High Court of Nairobi for relief.   

Court Ruling

The court agreed that the birth certificate should be issued in the name of the surrogate and intended father.  Considering the child’s best interests, along with the years of infertility treatments and significant financial investments made by the applicants, the court ordered the adoption process to be fast-tracked for the intended mother.

Furthermore, the court ordered the Attorney General to expedite the enactment of legislation to address surrogacy arrangements in Kenya.

Gay Surrogacy in Kenya

Surrogacy in Kenya is currently restricted to heterosexual intended parents.  Since 2010, the Kenyan Constitution has banned same-sex marriage, and the state does not recognize any relationships between persons of the same sex.

While the surrogacy industry in Kenya is still relatively small, it is gradually expanding.