About a week ago, I saw a news piece on the BBC website about an Australian couple who were allegedly accused of leaving behind a surrogate baby called Gammy with the surrogate mother sadly because Gammy was diagnosed with down-syndrome. This triggered a thought process in my head and I decided to dig deeper in order to see the relationship between the law and surrogacy in Kenya.
Quite astonishing is the fact that the business of surrogacy is booming in Kenya to the point of potential surrogate mothers advertising on websites such as 'www.surrogatefinder.com' and the profits are being eaten by many fertility Clinics in Kenya this is particularly due to the fact that couples who have difficulty in getting children chose to take this path rather than the conventional methods such as adoption particularly due to the fact that the Children Act prescribes a lot of procedures before the adoption process is completed. What remains are the other methods of conceiving which have been advanced by science and medicine such as test-tube babies and indeed surrogacy although which attracts many ethical issues; but what is Surrogacy? ‘Surrogacy’ is where a woman becomes pregnant with the intention of handing over the child to someone else after giving birth. Generally, she carries the baby for a couple or parent who cannot conceive a child themselves - they are known as "intended parents".
There are two forms of surrogacy. In traditional surrogacy, the surrogate mother's egg is used, making her the genetic mother. In gestational surrogacy, the egg is provided by the intended mother or a donor. The egg is fertilised through in vitro fertilisation (IVF) and then placed inside the surrogate mother.
In the absence of clear regulation, the practice of surrogacy in Kenya is growing as an unsupervised industry with no law to fall back on if anything goes wrong during the treatment.
Surrogacy indeed raises many questions such as; Does the surrogate mother have any rights? What about the commissioning couple, the donors and the health facility that carries out the procedure? What about the rights of the unborn child, and its legal status? And what happens in an instance where a child born through surrogacy is afflicted with physical abnormalities? Is the commissioning couple obligated to take the child - what if they refuse to? What if twins are born and the contract only provides for one child? Does the surrogate hand over one child - since the contract specifies only one - and keep the second? Does either the parent donating the embryo or gamete gain parental responsibility as described under the Matrimonial Causes Act? what happens when a married woman agrees to be a surrogate and undergoes treatment without the husbands consent and the injustice that will be caused under the evidence Act in section 118 which presumes the husband to be the legitimate father of the child during a valid marriage and extends up to 180 days even after divorce unless the husband can prove that there was no sexual intimacy between them and thus conferring upon him parental responsibility.
So many questions and yet the law is still trying to play catch up with this issue which is facing our society today. What is important to note is the fact that the courts will ensure the interests of the Child are first upheld
Surrogacy arrangements are categorized as either commercial or altruistic. In commercial surrogacy, the surrogate is paid a fee plus any expenses incurred in her pregnancy. In altruistic surrogacy, only the expenses incurred, are paid, but the surrogate is not paid at all. In Jurisdictions, such as the United Kingdom, such agreements are said to be unenforceable by or against any of the persons making it. Meaning that, even though surrogacy is in fact legal, if a dispute were to arise out of the arrangement, the commissioning couple cannot sue the surrogate mother if she refuses to hand over the baby, and nor can she (the surrogate) sue the commissioning couple, if she does not receive any of the agreed payments, or if they refuse to take the baby.
The question that comes to mind is what happens if the surrogate mother refuses to hand over the baby to the intended parents? Do the parents have a right to enforce the surrogacy contract under law? In the Australian Case - Re Evelyn (1998) F.L.C 92-807, the Court recognized that it was to the benefit of the child to have knowledge of and contact with all parties to the surrogacy arrangement.
The brief facts of the case were that ‘Evelyn’ was born as a result of a surrogacy arrangement between two couples who had been close friends for many years. The arrangement was described as ‘entirely altruistically motivated’ and had been initiated by the woman who gestated the child and who was also biologically related to her. It was originally intended that close contact would be maintained between the two families, but frictions developed because the woman responsible for gestation became frustrated by what was perceived as inadequate communication. She was also struggling with her decision to relinquish the child. It was her decision to seek to have Evelyn returned to her.
The commissioning couple refused to give up Evelyn and a dispute over residence arose. At the time of the trial Evelyn was one-year-old and had been mainly residing with the commissioning couple. The Court decided that the child should be handed over to the gestational surrogate mother and her husband with visitation rights awarded to the commissioning couple. One may not agree with the finding of the court, but , is there not some profound wisdom in this decision which recognizes the complexity of the issues involved which might impact on the child’s future wellbeing both in the short and long-term?
It would be interesting to see how such a case would be decided in the Kenyan set up. Would reason prevail or half-hearted arguments based on morality carry the day?
Closer to home, South Africa adopts a liberal approach to surrogacy and as per the South Africa Children's Act of 2005 (which came fully into force in 2010) enables commissioning parents and the surrogate to have their agreement validated by the High Court even before fertilization. However, only those living in South Africa can benefit from the law, and the agreement must be altruistic rather than commercial in nature. In addition, the surrogate mother must have had at least one pregnancy and viable delivery, and have at least one living child. The South African statue also outlines the conditions of termination of pregnancy by the surrogate, and in that case, the implications on medical bills and reimbursements.
It remains to be seen how Kenya will be able to develop surrogacy laws while at the same time balancing the public interest and moral and ethical issues. Feminist will argue that criminalisation of commercial surrogacy will be an effort from men to stop women from gaining financial independence. You will even be surprised to find out that in Indonesia, some women are making a career out of surrogacy and are registered in agencies which handle surrogacy making it a big business for Fertility Clinics offering these services as well as Law firms who help in drafting of the surrogacy contract and the handling the registration of the baby. One important question which requires an answer is whether Kenya is ready to accept surrogacy into the society as it has been accepted in other states such as Indonesia and parts of the United States of America. Whatever the case, the pain of not being able to bear children is unbearable to some couples and the legislature should promptly address the issue of surrogacy in order to make it easy for such couples to experience the joy of surrogacy.
Alan Kigen, LL.B (Finalist) at the Catholic University of Eastern Africa