Daisy Kubasu

If the progression of substantive content in Bills relating to Surrogacy as a form of Assisted Reproduction is any indication, though Surrogacy still remains a shadowed but highly controversial issue although, there exists attempts at pushing for its legal recognition. Three bills so far have been tabled before the National Assembly and the Senate, spearheaded by three women- perhaps as proof of how inability to have children weighs heavily on the African woman as opposed to men. The Bills; In-Vitro Fertilization (IVF) Bill 2014, the Assisted Reproductive Technology Bill 2016, and, the Reproductive Health Care Bill 2019, have similar views and objectives in their proposed provisions regarding Surrogacy.

 Clauses 31 and 34 of the IVF Bill are more or less the same as Clauses 30 and 33 of the Assisted Reproductive Technology Bill regarding record keeping and rights to subsequently accrue in relation to children born out of surrogacy agreements. However, while Clause 32(1) of the 2014 Bill allowed women of 18 years and above to be surrogates, the 2016 and 2019 Bills preferred women of 25 years and above instead. Whereas Clause 33 of the 2014 Bill preferred issuance of Parental Orders after the child is born, Clause 19 of the 2019 Bill pushes for the Commissioning parents to be recognized as the legal parents of the child.

The 2019 Bill is an improvement of both the 2014 and 2016 Bills. It requires both the Commissioning parents and the Surrogate to each have an advocate representing them, and also brings in an aspect of Succession, where it proposes that because the Surrogate relinquishes her parental rights over to the Commissioning parents after birth, the child will not be considered a beneficiary of the Surrogate or her spouse.

Kenya, as a third-world developing country, translates to it having a majority of its citizens living below the poverty line. So, avenues such as Surrogacy agreements are a welcome solution for the poor to get some money. However, due to non-regulation, Surrogacy has also been used as a means to an end for the exploitation of vulnerable women and vulnerable couples who are desperate for children they can call their own.

Surrogates become vulnerable women who are coerced and intimidated into carrying children for couples. Their poverty, illiteracy and ignorance places them at a greater risk of exploitation because they are not aware of their rights and cannot therefore negotiate for reasonable compensation. They are forced to abort in the event a couple changes their mind last minute about having children. This has serious psychological implications since they are rarely subjected to in-depth counselling before, during and after the pregnancy.

Their mental health is not prioritized. Should they stubbornly refuse and prefer keeping the pregnancy, they place on themselves the burden of parental responsibility- a cruel twist of fate since they can hardly maintain themselves prior to agreeing to Surrogacy. Sometimes surrogates want out of the arrangement after a contract has been made, but they are forced to keep their end of the bargain when they are threatened that legal action will be instituted against them as they have already signed the contract. Here, they are made to think that the contract they signed is law, while their own rights, which are sidetracked, are in actuality above any contract.

Non-regulation forces Commissioning parents undertaking all legal requirements to navigate through a maze of bureaucratic bribery in order to obtain the necessary documentation for their genetic children. They have resorted to using general laws surrounding Surrogacy such as Contract Law to facilitate their agreements, statutes such as; the Birth and Deaths Registration Act to obtain birth certificates, and the Children Act to ease their application to Courts for legal custody, adoption and parental orders.

++In Kenya, they have to adopt their own children, apply for legal custody and Parental Orders, not withstanding as of 2019 there exists a ban on International Adoption. They risk losing a lot of money, their children, or both. Their children can end up being in the custody of the State, who might intervene by taking them away, or they can lose them to surrogates who might later decide they want to keep the child. The law favors the surrogate as it recognizes the birth mother to be the legal mother. To put it aptly, Surrogates are legally recognized as mothers, not as surrogates.

There are also resultant negative effects on the child born out of this arrangement. Irregularities in the child’s legal status at their infancy could make them miss out on certain rights as citizens of their adopted countries.

Surrogacy Agencies mostly look for States with weak child protection and legal enforcement regimes regarding surrogacy for the sole purpose of exploiting and manipulating the parties to a surrogacy agreement, so that they stand to gain from it. This puts the parties to a surrogacy agreement in a position where they have to break the law. When agencies are looked at more closely, it will lead to the realization that they are owned by foreign nationals, and facilitated by Kenyan middlemen who are tasked with procuring surrogates, facilitating undocumented underground human trafficking of birth mothers and children, and, identity forgery and fraud. Essentially, non-regulation is the proverbial gold mine where poor and vulnerable women’s wombs are marketed to international clients.

It is therefore safe to point out, from the above discussion, that Kenyan parliamentarians have let the gap or void of fundamental human rights violations spanning from assisted reproduction, to fester. Non-regulation has violated article 45 of the Constitution of Kenya 2010.

Despite Surrogacy being a sensitive topic, what with its opposers claiming it is an unnatural reproductive technique and would most likely promote proliferation of homosexual relationships which are still shunned in Kenya, refusing to consider legalizing it will not stop further violation of rights.  It will, in fact, encourage it.

My name is Daisy Kubasu and I am a writer, a recent law graduate from Egerton University and currently, a student at the Kenya School of Law. I love legal research and writing, though I mostly focus on issues that may or may not be recent, but personally speak to me and get me thinking, wondering, analyzing or empathizing

Do you think Surrogacy should be legalized and legislated ?

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