The Legal And Regulatory Framework Of Surrogacy In Kenya: Theory And Practice

Abstract

Despite the growing acceptance of surrogacy practice in Kenya for the last decade, there is little development in the legislative, institutional and policy framework on the practice. The study investigates the impact of this legal position on the recognition and realization of the constitutional right to reproduction health, right to form a family, and the right to privacy and human dignity. It is premised on the hypothesis that the Kenyan legal framework on surrogacy hinders the recognition and enjoyment of these constitutional rights. The study utilizes a combination of the doctrinal and comparative research methodologies to conduct an in-depth desk review on the regulation of surrogacy arrangements in Kenya, and to investigate the best lessons, which Kenya can learn from UK and South African surrogacy regimes, respectively. The study reveals that although the surrogacy practice has a constitutional basis, there is no substantive legislative and policy frameworks which materialize the enjoyment of the constitutional rights. Instead, the practice has so far survived at the mercy of social engineering by the courts coupled by a self-regulation model designed by key stakeholders. However, the jurisprudence emanating from the courts is amorphous, and the self-regulation model has failed to address and curb the rampant emergence of ‘illegal surrogacies.’ The study reveals that Kenya has much to learn from the South African and the UK’s experience on surrogacy regulation. Under both jurisdictions, their surrogacy regimes are backed by a concrete legislative, institutional and policy framework, which offers maximum protection of the rights of the parties to the surrogacy arrangement irrespective of their sexual orientation. Nonetheless, South Africa offers more lessons; it makes a distinction between full and partial surrogacy by granting more rights to a genetic surrogate mother, courts act as screening devices on approval of surrogacy arrangements, it has professionalized the practice and it offers optimal certainty on the transfer of legal parenthood from the surrogate mother to the commissioning parents.