The Law of surrogacy: who should the legal parents of the baby be?
Kithinji, Joy Nkatha
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Surrogacy is increasingly becoming more accepted in the state as an alternative method of beginning families. However, the practice is not protected by legislation. There has been tabled a Bill, the Reproductive Health Care Bill, that has made some provision for this practice. It too however, has not made provision for the specific issue that is the legal parentage of a child born via surrogacy. Judicial decisions on the matter have been inconsistent due to the lack of a relevant and specific piece of legislation. This study sought to investigate the cogency of the right to surrogacy, that is, examine whether such a right exists and consequently determine, on that basis, which party should be represented as the legal parent of the child. The study was conducted through a literature review of material on the right to surrogacy and the legal parentage of the resulting child. It established that the right to surrogacy that can only be defended as a contractual right, and not a reproductive right. This conclusion was arrived at after an examination of the reproductive right to surrogacy found that such a right would not be enforceable. The contractual right to surrogacy however, that finds its basis in the doctrine of freedom of contract, can be defended because of the underlying element of intention. This paper argues that the intention to parent should be the primary consideration in determining parenthood; and neither genetics nor gestation should play a primary role. Through comparative case studies of different jurisdictions, the study finally recommends that a system that confers parenthood, at the first instance, on the commissioning parents, is the most suitable for a jurisdiction that seeks to avoid legal battles. This should be effected through a reframing of the Reproductive Health Care Bill, in order to make it comprehensive.