A Critical analysis of the legal, ethical and international perspectives to altruistic gestational surrogate motherhood in Kenya: whose baby is it?

Abstract

In 2014, the Reproductive Health Care Bill was introduced in Parliament. The Bill affords a chapter for the regulation of altruistic gestational surrogacy arrangements, a non-commercial agreement between two parties, in which one party agrees to bear a child of which the party is not genetically related to and upon the birth of the child relinquish all parental rights over the child to the other party. The determination of legal parentage of the child born from such an arrangement has been a legal tussle for courts in Kenya to contend with since neither the current laws nor the proposed Reproductive Health Care Bill provide direction as to whom parental rights are entitled upon the birth of the baby. The objective of this research paper is to determine which party is entitled to these parental rights. On the one hand, these rights may be entitled to the surrogate since she carried and gave birth to the child while the rights may also be entitled to the intending parents who contracted the surrogate and initiated the whole process. Either way, the lack of legal direction on the issue has led to uncertainty and controversies. Therefore, this paper conducted a qualitative study which comprised of a literature review of the determination of legal parentage in gestational surrogacy arrangements. First, this paper explored the theoretic framework underpinning altruistic gestational surrogacy arrangements. Second it addressed the state’s and the societal interest in the determination of legal parentage in these arrangements and third, it undertook a comparative review of the legal framework in the United Kingdom and South Africa which offer guidance for the determination of legal parentage in an altruistic gestational surrogacy agreement in Kenya. Consequently, this paper finds the law of contract is sufficient to ensure the validity of the terms of an altruistic gestational surrogacy arrangement. Thus, the intending parents should have primary parental rights upon the birth of the child. Furthermore, this paper also asserts that the inevitable role played by the state in implementing a legal framework that recognises the intending parents as the legal parents of the child born from an altruistic gestational surrogacy arrangement in Kenya.