Kenya: Judge Makes Groundbreaking Ruling On Surrogacy

Who is your mother? Is she the woman who gave birth to you -- the woman who is genetically related to you -- or the woman who intends for you to be born and plans to take up parental responsibility as outlined in the Children's Act?

Under section 23, parental responsibility means all the duties, rights, powers, responsibilities and authority which by law a parent has in relation to the child. This includes the duty to maintain the child and to provide him with an adequate diet, shelter, clothing, medical care, education and guidance and protect the child from neglect, discrimination and abuse.

Hospitals have to indicate the mother's particulars and name on the notification of birth slip and the registrar of births and deaths has to issue a birth certificate when a child is born. However, there is a dilemma when it comes to registering surrogate children and the recognition of surrogacy agreements.

Whereas the status of motherhood used to be "self-evident" by the pregnancy and birth of a child, new reproductive techniques (discussed in last week's article) have evolved in recent years ahead of jurisprudence, thereby complicating and overwhelming the issue of maternal and reproductive health rights.This means that there is a gap in the Kenyan laws since the laws do not directly address these emerging forms of parenthood.

In surrogacy arrangements, there are potentially three different players with different maternal rights: the donor who supplied the ovum, the woman who gestated and gave birth to the child, and the woman for whom the child was intended. The genetic rule is based on the view that a woman's genetic contribution to a child is the most determinative factor while the gestational maternity rule is primarily based on the emotional and physical connection developed during pregnancy. The intent based maternity rule is based on the fact that at the beginning of every surrogacy arrangement, the commissioning mother has the preconception intent to raise the child and the surrogate mother has the intent to surrender the child. We must not lose sight of the fact that under the constitution at Article 26, life begins at inception.

On June 30, a monumental judgment was delivered by Justice Majanja setting the precedent on how surrogacy arrangements and the conception of motherhood will be adjudicated in Kenya given that Parliament has yet to legislate or develop policy on this matter.

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