The Determination of legal parenthood following surrogacy arrangements in Kenya

Abstract

Surrogacy can be defined as the practice where a woman carries a child for another person and the person’s partner and is usually as a result of an agreement drafted prior to the conception of the child who should be handed over to them after birth. There are two types of surrogacy, traditional surrogacy and gestational surrogacy that are outlined. For traditional surrogacy, the surrogate mother is the biological mother to the child she intends to carry for the intending parents whereas for gestational surrogacy the surrogate mother had no genetic relationship to the child she will carry for the intended parents.1 This paper will focus its research on gestational surrogacy with a few references to traditional surrogacy need it be. Surrogacy first entered the public eye in the mid-1980s through the Baby M case in the United Kingdom. In this case, a Mrs. Mary Beth Whitehead, the surrogate mother had been inseminated with Mr. Stern’s sperm. The surrogate mother upon birth was unwilling to give the baby to Mr. Stern and his wife. Upon seeking the court’s guidance, the court of New Jersey made void the surrogacy agreement as being contrary to public policy and Mr. Stern and Mrs. Whitehead were awarded equal claim to the child. The courts however, further had to determine which home was better suited for the child to which custody was awarded to Mr. Stern.2 The treatment of surrogacy, however, differs from one state jurisdiction to the other. Seeing how the courts responded to the Baby M case in the United Kingdom basing it on claims related to the biological parenthood, a Californian court in the United States of America in the case of Johnson v Calvert, based its judgment on intentional parenthood. In this case, Mrs. Johnson had the Calvert’s’ embryo implanted in her who after gestation bore the child. The courts established that when determining parenthood and legal motherhood to be specific, the process of birth as well as genetic consanguinity where factors to be considered. Custody was therefore awarded to the commissioning parents, the Calverts.