The law also bans the commercialisation of wombs, saying surrogate mothers cannot be paid.
Kenya is the latest country to pass a law governing assisted
reproduction, but how does it compare to global best practices?
The newly passed Assisted Reproductive Technology (ART) Bill
seeks to regulate fertility treatments such as In Vitro Fertilisation (IVF),
gamete donation, and surrogacy in Kenya for the first time.
Gametes refer to sperm in men and eggs in women.
The law establishes a
regulatory body under the Kenya Medical Practitioners and Dentists Council
(KMPDC) to licence clinics, inspect labs, and keep confidential national
registers of donors, embryos, and children born via Assisted Reproductive
Technology.
The National Assembly
said the regulatory vacuum surrounding surrogacy processes and technologically
assisted reproduction in Kenya had allowed unprofessional practices to thrive.
“During debate both in the Second and Third Reading stages,
it emerged that the void had resulted in a proliferation of legal disputes
on the legitimacy of commissioning parents or individuals who enter
into contracts with surrogates for the purpose of bearing a child on their
behalf,” according to the memorandum accompanying the bill.
On paper, the law promises better access and more
protection. However, compared to global examples in countries such as South Africa,
India, and the UK, its balance of ambition and restraint raises both hope and
concern for Kenyan women and men.
It states that “every person” has the right to access
reproductive technology services. The bill explicitly mandates that intersex
persons should not be denied access. Civil society and lawmakers hailed this
inclusion as progressive.
“The Bill helps protect the rights of individuals and
families seeking these services, reduces exploitation and ambiguity, and
promotes access to regulated, high-quality reproductive health options,” said
Nelly Munyasia, the Executive Director
of the Reproductive Health Network Kenya.
Foreign couples are barred from renting wombs in Kenya, a
practice also banned in most other countries with such a law. Homa Bay MP Peter
Kaluma said, “We have shut that possibility. The Bill allows for altruistic
surrogacy only for Kenyan citizens. No room has been allowed for foreigners, no
room for fertility tourism in Kenya.”
The law also bans the commercialisation of wombs, saying surrogate
mothers cannot be paid.
“The parties to a marriage shall not give any monetary or
other benefits to the surrogate mother other than for expenses reasonably
incurred in the process of surrogacy,” clause 28 (7) says.
Clause 32 of the law also prohibits the sale of sperm, eggs,
zygotes (the first single cell after fertilisation), or embryos.
“A person shall not sell, transfer or use gametes, zygotes
and embryos for commercial purposes,” it says.
All this is driven by ethical concerns about exploiting poor
people, legal disputes over the ownership of embryos, fears of a thriving black
market in reproductive materials, and worries about child identity and
long-term genetic risks.
While most countries with such a law outrightly ban the sale of
gametes, many allow sperm and egg donors, and surrogate mothers, to be
compensated for expenses rather than commercial profit. In France and Germany,
egg donation is either completely prohibited or made extremely difficult under
strict regulations.
Engaging in paid surrogacy or other prohibited practices,
such as human cloning or the sale of sperm, eggs or embryos, carries fines of
up to Sh10 million or up to 10 years in prison.
This model of altruistic surrogacy echoes that of many
countries, such as South Africa, which requires all surrogacy to be altruistic.
But Kenya’s ban may raise unintended risks.
In India, after commercial surrogacy was outlawed, there
were debates about under-the-table payments and exploitation, because poverty
remained a powerful force. Without careful protections, Kenyan surrogates could
still be exploited or worse, driven underground.
The Kenyan law also sets age and marital requirements. Only
Kenyans aged 25–55 may seek surrogacy, and surrogate mothers must be 25-45,
have had at least one child, and pass medical and psychological tests.
In India, the surrogacy law restricts ART services to
married heterosexual couples and bans foreign nationals. Paid surrogacy was
entirely banned in 2016.
South Africa’s law is more inclusive because single persons
and same-sex couples are legally recognised for surrogacy.
The Kenyan law does try to protect surrogate mothers. It
demands a written, witnessed surrogacy contract that spells out care,
upbringing, and parental responsibility. Surrogates are entitled to three
months’ leave after birth, and intended parents get maternity and paternity
leave.
Clinics must also obtain prior informed and written consent
from all parties, explicitly covering what should happen to gametes or embryos
if someone dies or becomes incapacitated.
“An assisted reproductive technology expert shall obtain
prior informed and written consent from the parties before providing any
assisted reproductive technology service under the Act or any other law,” the
law says.
Kenya will also create a national register for donors,
embryos, and ART children. But unlike in the UK, where the Human Fertilisation
and Embryology Authority (HFEA) publishes data including clinic success rates
and performance, Kenyan law sharply restricts who can access the ART register.
Only someone born by ART, and only at age 21, may request non-identifying
information about their origin, subject to counselling.
“A person who has attained the age of 21 may by notice to
the Directorate require the Directorate to avail information on whether the
applicant was conceived by means of assisted reproduction; and state whether or
not the information contained in the register shows that the applicant, and a
person specified in the request as a person whom the applicant proposes to
marry would or might be relatives,” section 34 (1) of the proposed law says.
It firmly protects the rights of children conceived via
assisted reproduction. Clause 26 guarantees that a child born through ART
“shall have the same legal rights as that of a child born through sexual
intercourse.” Commissioning parents are named on the birth certificate; Kenya
affirms that such a child is a citizen if the parents are Kenyan.
In South Africa, intended parents automatically become legal
parents at birth. In the UK, a parental order is often required, but the
child’s legal status is clear and protected.
However, Kenya stays more cautious with donor identity.
Since gamete donation must be anonymous, a donor-conceived person cannot later
track or know the donor’s identity.
“The Directorate shall not give information regarding the
identity of a person whose gametes have been used or from whom an embryo has
been taken if a person to whom a license applied was provided with the
information at a time when the Directorate was not required to give the
information,” Clause 34(3) says.
That is a more restrictive model than in the UK, where
donor-conceived individuals born after 2005 can apply to know who their donor
was when they turn 18. This matters to many because emerging research shows
the importance to children of knowing their genetic history.
Assisted reproductive services include IVF, Intrauterine
Insemination (placing sperm directly into the uterus), gamete or embryo
donation, altruistic surrogacy, and cryopreservation of eggs, sperm, or
embryos.