{"id":967,"date":"2026-05-16T10:36:32","date_gmt":"2026-05-16T10:36:32","guid":{"rendered":"https:\/\/baadvocates.com\/?p=967"},"modified":"2026-05-21T09:16:09","modified_gmt":"2026-05-21T09:16:09","slug":"legal-alert-surrogacy-and-the-law-in-kenya","status":"publish","type":"post","link":"https:\/\/baadvocates.com\/index.php\/2026\/05\/16\/legal-alert-surrogacy-and-the-law-in-kenya\/","title":{"rendered":"SURROGACY AND THE LAW IN KENYA"},"content":{"rendered":"\n

Who Is the Real Parent? Surrogacy and the Law in Kenya<\/u><\/strong><\/strong><\/p>\n\n\n\n

Introduction: A Legal System Playing Catch-Up<\/u><\/strong><\/p>\n\n\n\n

Surrogacy refers to an arrangement where a woman (the surrogate mother) carries and delivers a child for another person or couple (the intended parents). While surrogacy has become increasingly common globally due to advances in assisted reproductive technology, Kenya still lacks a comprehensive legal framework regulating the practice.<\/p>\n\n\n\n

The Black\u2019s Law Dictionary categorizes surrogacy into two classes: \u201cgestational surrogacy\u201d and \u201ctraditional surrogacy.\u201d They are defined as follows:<\/p>\n\n\n\n

Gestational surrogacy \u2013 <\/strong>\u201cA pregnancy in which one woman (the genetic mother) provides the egg, which is fertilized and another woman (the surrogate mother) carries the fetus and gives birth to the child.\u201d<\/em><\/p>\n\n\n\n

Traditional surrogacy \u2013 <\/strong>\u201cA pregnancy in which a woman provides her own egg, which is fertilized by artificial insemination and carries the fetus and gives birth <\/em>to a child for another person.\u201d<\/strong><\/p>\n\n\n\n

This absence of legislation has created significant uncertainty, compounded by ethical, cultural and religious concerns surrounding surrogacy. Questions surrounding legal parenthood, registration of children, enforceability of surrogacy agreements and the rights of intended parents continue to challenge courts and practitioners alike.<\/p>\n\n\n\n

Although courts have increasingly been called upon to resolve disputes arising from surrogacy arrangements, the legal framework remains fragmented, relying largely on Article 53(2) of the Constitution<\/strong>, constitutional principles, contract law and judicial interpretation.<\/p>\n\n\n\n

Surrogacy in Kenya a Legal Grey Area<\/u><\/strong><\/p>\n\n\n\n

In Kenya, there is currently no comprehensive legislation governing surrogacy arrangements. As a result, many surrogacy agreements are structured under the general principles of contract law.<\/p>\n\n\n\n

Black\u2019s Law Dictionary defines a contract as:<\/p>\n\n\n\n

\u201cAn agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law.\u201d<\/em><\/p>\n\n\n\n

A surrogacy agreement therefore outlines the rights, obligations and expectations of the surrogate mother and the intended parents. Such agreements commonly address matters relating to medical procedures, financial obligations, relinquishment of the child upon birth and the parties\u2019 intentions regarding parenthood.<\/p>\n\n\n\n

However, despite the existence of such agreements, their legal enforceability particularly in relation to parental rights remains uncertain under Kenyan law. This is because the Children Act and related statutes primarily recognize parenthood through birth or adoption, leaving a significant legal vacuum in surrogacy arrangements. This often forces intended parents into the legally redundant and emotionally taxing process of adopting their own genetic children to secure parental rights.<\/p>\n\n\n\n

The uncertainty becomes particularly pronounced where disputes arise, for instance where a surrogate mother declines to relinquish the child or where intended parents seek recognition as the legal parents immediately upon birth.<\/p>\n\n\n\n

Legal Challenge: Parenthood, Registration and Identity<\/u><\/strong><\/p>\n\n\n\n

One of the greatest legal challenges in surrogacy arrangements in Kenya concerns the question of legal parenthood.<\/p>\n\n\n\n

Under section 10 of the Births and Deaths Registration Act (Cap 149),<\/strong> the mother of a child is deemed to be the woman who gives birth to the child. This creates a statutory presumption in favour of the surrogate mother, even where she may have no genetic relationship with the child.<\/p>\n\n\n\n

This issue arose in JLN & 2 others v Director of Children Services & 2 others, Petition No. 78 of 2014<\/strong>, where the court acknowledged that, in the absence of specific surrogacy legislation, the birth mother is presumed to be the legal mother. The court further observed that parties in surrogacy arrangements may seek administrative guidance from the Director of Children Services or the Principal Registrar of Births and Deaths.<\/p>\n\n\n\n

Similarly, in AMN & 2 others v Attorney General & 5 others (Petition No. 443 of 2014<\/strong>), the court held that legal parentage in Kenya can only be acquired through birth or adoption. The court further found that documents purporting to transfer parental rights through surrogacy arrangements had been issued in error and required rectification.<\/p>\n\n\n\n

These decisions expose a major disconnect between biological parenthood, contractual intention and legal recognition. The lack of a “Parental Order” mechanism means that the Registrar of Births and Deaths currently lacks the administrative power to bypass the birth mother\u2019s name on the initial birth certificate.<\/p>\n\n\n\n

For intended parents, this creates uncertainty as to whether they will be legally recognized as parents despite genetic connection or prior surrogacy agreements. For surrogate mothers, it raises questions regarding the extent to which they can relinquish parental rights through contractual arrangements.<\/p>\n\n\n\n

Ethical and Social Considerations<\/u><\/strong><\/p>\n\n\n\n

Surrogacy raises complex ethical, religious and social concerns within Kenyan society.<\/p>\n\n\n\n

On one hand, surrogacy provides an opportunity for individuals and couples who are unable to conceive naturally to have children. Advances in reproductive technology have therefore expanded reproductive choices and created new pathways to parenthood.<\/p>\n\n\n\n

On the other hand, surrogacy raises concerns regarding the commodification of women\u2019s bodies, particularly in economically vulnerable settings. Critics argue that commercial surrogacy may expose women to exploitation where financial need becomes the primary motivation for participation.<\/p>\n\n\n\n

These concerns are reflected in the Assisted Reproductive Technology Bill, 2022. Under section 28(7) of the Bill:<\/strong><\/p>\n\n\n\n

\u201cThe 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.\u201d<\/em><\/p>\n\n\n\n

The Bill adopts a restrictive approach by prohibiting commercial surrogacy. Crucially, Section 28 of the ART Bill proposes a shift toward “Parental Orders,” which would allow the court to direct that the intended parents be recognized as the legal parents from birth, effectively bypassing the restrictive presumptions of the Births and Deaths Registration Act.<\/p>\n\n\n\n

Socially, surrogacy also challenges traditional notions of family, motherhood and parenthood. In many instances, surrogate mothers, intended parents and children born through surrogacy may face stigma arising from cultural and religious perceptions surrounding assisted reproduction.<\/p>\n\n\n\n

Comparative Perspective: International Surrogacy<\/u><\/strong><\/p>\n\n\n\n

Globally, jurisdictions regulate surrogacy differently.<\/p>\n\n\n\n

Some countries permit commercial surrogacy, while others prohibit it entirely. Jurisdictions such as certain states in the United States, Ukraine and Georgia allow regulated forms of commercial surrogacy. Conversely, countries such as the United Kingdom, Canada and several European states prohibit commercial surrogacy and only permit altruistic arrangements.<\/p>\n\n\n\n

Different legal systems also approach parenthood differently. In some jurisdictions, intended parents are recognized as legal parents immediately upon birth. In others, the surrogate mother remains the legal parent until a formal legal transfer or adoption process is completed.<\/p>\n\n\n\n

These differences create significant complications in international surrogacy arrangements, particularly in matters involving citizenship, travel documentation and recognition of parentage across borders.<\/p>\n\n\n\n

A Turning Point: AM v CAO [2026] KEHC 5142 (KLR)<\/u><\/strong><\/p>\n\n\n\n

The decision in AM v CAO [2026] KEHC 5142 (KLR)<\/strong> marks a significant development in Kenyan jurisprudence on surrogacy and custody.<\/p>\n\n\n\n

In this case, the appellant, an American citizen, entered into a gestational surrogacy agreement with a Kenyan woman. The agreement provided that upon the birth of the child, the surrogate would relinquish her parental rights. The appellant, who was the biological father, sought sole custody to enable him to return to the United States with the child.<\/p>\n\n\n\n

Despite the surrogate mother consenting to relinquish her rights, the trial court declined the application, relying on the tender years doctrine and directing that the child remain with the surrogate mother.<\/p>\n\n\n\n

On appeal, the High Court overturned this decision. The court emphasized that the tender years doctrine is not an inflexible rule and must be subordinated to the best interests of the child under Article 53 (2) of the Constitution. It held that both parents have equal rights and that custody decisions must be based on the child\u2019s welfare rather than gender-based assumptions.<\/p>\n\n\n\n

The court further noted that there was no evidence suggesting that the father posed any risk to the child. In fact, the Directorate of Children Services had recommended that he be granted custody. Accordingly, the court awarded the appellant sole parental authority and legal custody of the child.<\/p>\n\n\n\n

This judgment is ground breaking as it effectively recognizes “Gestational Intent” and biological connection as superior to the traditional gender-based assumptions of custody.<\/p>\n\n\n\n

Conclusion: The Urgent Need for Legal Reform<\/u><\/strong><\/p>\n\n\n\n

The decision in AM v CAO [2026] KEHC 5142 (KLR)<\/strong> underscores the growing role of courts in addressing the legal vacuum surrounding surrogacy in Kenya. While the judiciary has stepped in to protect the best interests of children, this approach is not a substitute for clear legislative guidance.<\/p>\n\n\n\n

The current framework relying on constitutional principles, contract law and judicial discretion creates uncertainty for all parties involved. Issues of parenthood, registration and rights remain unresolved, often requiring costly and time-consuming litigation.<\/p>\n\n\n\n

There is an urgent need for the enactment of a comprehensive framework, such as the ART Bill, to formalize the use of “Parental Orders.” This would provide a streamlined process for the registration of children and provide legal certainty to all parties from the moment of conception.<\/p>\n\n\n\n

Until then, Kenyan courts will continue to navigate this complex terrain, guided by one overriding principle: The best interests of the child<\/em>.<\/p>\n\n\n\n

Disclaimer:<\/em><\/strong> The information provided in this article is for general informational purposes only and does not constitute legal advice. The author\/website is not responsible for any errors or omissions and a party desiring legal advise should get in touch with the authors<\/em><\/p>\n\n\n\n

<\/p>\n","protected":false},"excerpt":{"rendered":"

Who Is the Real Parent? Surrogacy and the Law in Kenya Introduction: A Legal System Playing Catch-Up Surrogacy refers to an arrangement where a woman (the surrogate mother) carries and delivers a child for another person or couple (the intended parents). While surrogacy has become increasingly common globally due to advances in assisted reproductive technology, […]<\/p>\n","protected":false},"author":1,"featured_media":970,"comment_status":"open","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[17],"tags":[],"class_list":["post-967","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-surrogacy"],"_links":{"self":[{"href":"https:\/\/baadvocates.com\/index.php\/wp-json\/wp\/v2\/posts\/967","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/baadvocates.com\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/baadvocates.com\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/baadvocates.com\/index.php\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/baadvocates.com\/index.php\/wp-json\/wp\/v2\/comments?post=967"}],"version-history":[{"count":4,"href":"https:\/\/baadvocates.com\/index.php\/wp-json\/wp\/v2\/posts\/967\/revisions"}],"predecessor-version":[{"id":991,"href":"https:\/\/baadvocates.com\/index.php\/wp-json\/wp\/v2\/posts\/967\/revisions\/991"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/baadvocates.com\/index.php\/wp-json\/wp\/v2\/media\/970"}],"wp:attachment":[{"href":"https:\/\/baadvocates.com\/index.php\/wp-json\/wp\/v2\/media?parent=967"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/baadvocates.com\/index.php\/wp-json\/wp\/v2\/categories?post=967"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/baadvocates.com\/index.php\/wp-json\/wp\/v2\/tags?post=967"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}