Author: Susan Kimani
Susan Kimani is an advocate of the High Court of Kenya and an LL.M candidate at the University of Cape Town. She is attached to the Department of Commercial Law specializing in International Trade Law.
The case of AMN & 2 others v Attorney General & 5 others raised pertinent issues regarding surrogacy arrangements which still stand unregulated under Kenyan law. The parties X, Y and Z entered into a surrogacy agreement after X was diagnosed with infertility. X and Y, a couple, used an egg donor and Y’s sperm to generate three embryos which were placed in Z as the surrogate host. Upon delivery of female twins at Kenyatta Hospital, the parties sought the advice of the Attorney General as to whose name should be entered in the Birth Notification Certificate as the mother of the children.
Under the Kenya Births and Deaths Notification Act a birth notification must be given upon the delivery of a child which includes the name of the child’s mother. It was therefore necessary to decide which name would be entered in the certificate i.e. that of the surrogate mother Z or the commissioning mother X. After taking legal advice from the Attorney General, the hospital issued a Birth Notification Certificate indicating that X and Y were the parents of the twins.
Subsequently, X and Y, now the legal parents of the children tried to obtain british citizenship for the children to travel to the United Kingdom (UK), but the UK passport office declined the application since the details given on the birth certificate were found not to be true. The UK office gave them an option of adopting the children from the surrogate mother as there was no other way under Kenyan law through which they could obtain lawful parenthood. X and Y therefore petitioned the High Court, seeking orders that:
the issued birth certificates be cancelled: and
that the court allows them to adopt the children.
For the Court to rule on these prayers, it had to answer several questions which are still being grappled with under the Kenyan system, and which form the object of this review.
Review of issues arising
In whose name should a birth certificate be issued?
Under the Births and Deaths Registration Act, the definition of birth, implied that mother of the child is the person who delivers the child. In AMN the Attorney General advised that the birth certificate be issued in the name of X and Y to confer them with legal parentage and obviate the need for adoptive procedures subsequently.
Had the matter ended there, this case would not have arisen. However, this procedure, which was not pegged on any law, could not be recognized by the UK jurisdiction when the parents sought citizenship for the children.
It was without contention that the birth certificate should be issued in the names of the legal parents of the children. This led the court to a second and more important question: who is the legal mother of a surrogate child?
Who is the lawful mother of the children?
Globally, under most laws, the surrogate mother is presumed to be the legal mother of the surrogate child, until other legal processes are applied to transfer legal motherhood to the commissioning woman. For instance, under UK law and as stated in Re X (A child) these legal processes could either be adoption or grant of a parental order transferring the parenthood.
The courts finding in the AMN case reflected this global position: that the surrogate mother is the legal mother of the twins, and the birth certificate should therefore have been issued in her name. Further, since Kenyan law does not provide for parental orders, the only viable option was adoption. The birth certificates were therefore cancelled and issued in the name of the surrogate mother Z. X and Y would thereafter undertake a process of expedited adopted as governed by the Children’s Act.
The finding of this case is diametrically opposed to that of WKN & 2 Others v National Council for Children Services & Others which later led to JLN & 2 Others v Director of Children’s Services & 4 Others. In the former case the High Court ordered that the names of the commissioning parents as opposed to the surrogate mother, be entered in the birth notification certificate. The AMN case however seems to have established the standard procedure in surrogacy arrangements.
Best interests of the child
The prime consideration in every case involving a child under Kenyan law and international law is the best interest of the child. At the time of birth, the best interest of the child is that they have a parent, and that they are given the best post-natal care. Afterwards, the best interest of the child necessitates that their physical, social and emotional needs be met at all times.
Case for adoption or parental order
One of the controversies arising in the AMN case was whether genetic parents should have to adopt their own children. As stated in Re X, adoption is not an attractive solution given the genetic links of the child to the parents or either one of the parents. A parental order has been deemed preferable because it confirms important legal, practical and psychological reality of the child’s identity. It is also usually the intent of the commissioning parents from the onset to become the biological as opposed to adoptive parents.
Currently, since there is no provision for parental orders under Kenyan law, adoption is the only available option that can legally meet the best interests of the child. The current practice is that one or both commissioning parents undergo DNA testing to prove a genetic relationship to the child, before the adoption is complete.
Comparatively, the UK has in place elaborate legal frameworks on surrogacy under the Surrogacy Arrangements Act, and the Human Fertilisation and Embryology Act. There are similar frameworks, albeit substantially different, in the United States and in South Africa as well. Since this practice is increasing in Kenya, it is time for law to be enacted to regulate it.
Thiankolu (2007) making similar calls for regulation of surrogacy in Kenya observed that Kenyan law had failed to keep abreast with the social-economic developments of the society. Since surrogacy is neither prohibited nor regulated in Kenya, he posed the question whether the courts would subsequently enforce surrogacy agreements. Ayieta (2015) also calls for the development of a surrogacy legal framework, stating that the legal gaps expose the process to corruption and other malaise.
At the time of this review, the Kenya Reproductive Health Care Bill was still under consideration. The bill addresses issues surrounding the validity of surrogacy agreements, but it does not address the contentious issue of transfer of parenthood.
Thus far, none of the surrogacy cases reported in Kenya has been on a breach of surrogacy contract, or one in which parties to the arrangement were in contention. Should such a case arise, it would I dare say, be quite interesting to observe how the courts resolve its potentially detrimental consequences. Kenya should not wait for when such a case arises before enacting a law.
WKN, CWW & JLN v National Council for Children Services, Director of Children’s Services and another (Case Number 205 of 2014)
Constitution of Kenya 2010, Article 53 and section 4 of the Children’s Act
Ayieta, Robai Towards a Kenyan Legal and Ethical Framework on Surrogacy (unpublished LLM Thesis, University of Witwatersrand, 2015)
Thiankolu, Muthomi ‘Towards a Legal Framework on Assisted Human Reproduction in Kenya: Some Thoughts on the Law, Technology and Social Change (2007) Nairobi, Kenya.