Surrogacy: re-evaluating the existing presumptions of motherhood
Despite the nuances that have emerged as a result of surrogacy arrangements, it would seem that this has been a common practice in many different parts of the world. Indeed, infertility has been considered an issue since the beginning of time thus, it is no shock that mankind worked towards developing means to remedy this problem. With the development of human assisted reproductive technologies, methods such as artificial insemination, IVF and surrogacy have become popular over the years. Many jurisdictions have been left to play catch-up to the developments in the medical field with some succeeding and others falling short. Surrogacy is on the increase in Kenya therefore discussions are underway to pass laws and policies that would sufficiently regulate the practice. This paper seeks to identify different legal regulations that have since emerged in various jurisdiction to answer questions specifically: a) Who should rightfully be recognised as the mother of a child born out of a surrogacy arrangement where the surrogate has no genetic link to the child she carries? b) What rights and responsibilities accrue to both the surrogate and intended parties? c) What legal process may be employed to recognise the intended parents as the legal parents of a child born out of this agreement? Chapter 1 seeks to identify the research problem and hypotheses, chapter 2 will outline the responses of various jurisdictions with the emergence of questions before the courts, chapter 3 will embark on a comparative analysis of the laws in the UK, USA and Israel, chapter 4 will outline the Kenyan situation as it is and the shortcomings in the Assisted Reproductive Technologies Bill and finally chapter 5 will give recommendations and wind up the study.