Surrogacy May be Good for Parantage, But is it Equally Good for the Child in Question?

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Surrogacy is legal in Kenya, but it is not widely practiced due to cultural and religious beliefs that often discourage it. However, there are a few surrogacy agencies and clinics in Kenya that offer surrogacy services, and some Kenyan women have acted as surrogates for couples from other countries. For example, there have been a few high-profile cases in Kenya that have involved surrogacy.

One such case involved a Kenyan woman who acted as a surrogate for an Australian couple in 2018. The woman gave birth to twins, and the Australian couple was able to take the children home after obtaining the necessary legal approvals.

According to an Oct 2^nd, 2022 article in The Standard newspaper, surrogacy is a relatively new concept in Kenya, and there are only a few clinics and agencies that offer surrogacy services. The article estimates that there are fewer than 100 surrogate births in Kenya each year. It also lists two clinics which include Lifebridge Fertility Clinic and Creation Fertility Centre which offered surrogacy services.

In Kenya, surrogacy is governed by the Assisted Reproductive Technology (ART) Act, which was passed in 2015. The law provides guidelines for surrogacy agreements and specifies that surrogacy should only be used as a last resort for couples who cannot conceive naturally or through other fertility treatments. 

Under the ART Act, surrogacy agreements must be in writing, and they must specify the rights and obligations of the surrogate mother, the intended parents, and any donors involved in the process. The agreement must be approved by a court, and the surrogate mother must be at least 25 years old, have given birth to at least one child of her own, and be medically and psychologically fit to carry a pregnancy to term.

Protection and safety of children in the surrogacy arrangement

According to a UNICEF brief on Children born through surrogacy, such children are at risk of multiple human rights violations –particularly, their right to an identity, including name, nationality, family relations, and access to origins; the right to the enjoyment of the highest attainable standard of health; and the right to not be sold [the latter also stated in the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (OPSC)]. The brief further raises concern about the predominantly commercial nature of many surrogacy arrangements, citing that, children born through surrogacy are at risk of being sold and/or exploited. Specific concerns are raised in this regard in surrogacy situations in which parentage is established solely on the basis of private arrangements.

Challenges faced by surrogate children

While surrogacy is legal in Kenya, there are some concerns about exploitation and the potential for abuse, particularly with regard to the compensation of surrogate mothers. Some critics argue that surrogacy arrangements can be exploitative and may lead to the commodification of women's bodies.

There are several potential disadvantages of surrogacy to children that have been identified by researchers and experts.

Identity issues: Children born through surrogacy may have difficulties with identity formation, particularly if the surrogate mother is genetically related to the child. They may struggle with questions about their origins and have a sense of loss or confusion about their biological roots.

Stigma and discrimination: Children born through surrogacy may face social stigma or discrimination due to their unconventional family structure. This could potentially impact their self-esteem, mental health, and relationships with others.

Lack of emotional attachment: Some children born through surrogacy may struggle to form emotional attachments to their biological parents, surrogate mother, or other family members. This could be due to the complex nature of their family structure or a lack of physical bonding during the early stages of development.

Legal issues: Depending on the laws in their cou or state, children born through surrogacy may face legal challenges related to their parentage or inheritance rights. This could potentially cause stress and uncertainty for the child and their family.

The dark side of surrogacy

An investigative journalist, with The Elephant and Africa Uncensored published an article in May 2021 of an attempt to uncover worrying allegations about how the surrogacy industry operate in Kenya. The journalist busted two international agencies (African Fertility Agency Ltd, and New Life-Marshall Islands), that recruit women to be surrogates parents for international clients. The article unearthed how the agencies are run through coercion, exploitation, and intimidation of surrogates, which amounts to apparent human trafficking of birth mothers and children, forced abortions, and identity forgery and fraud.

The journalist also gathered from some of the surrogate mothers are forced into pre-term abortion when contracting parents have changed their minds, and further shed light on a shadowy and highly controversial sector in which overseas agencies act as middlemen, recruiting poor and vulnerable women in Kenya and then marketing their wombs to international clients, sometimes specifically to members of the gay and lesbian communities in the West.

The contributing factor, the article concludes is, unlike other countries where surrogacy laws are clear and dutifully followed, the industry in Kenya operates in a legal and regulatory void. Because Kenyan legislators have for years failed to pass a law that would protect surrogate babies as well as the mothers commissioned to carry them.

As a result of inadequate regulations, the business owners and the recruiters control and wield the surrogates using financial muscle and good connections with the police. There is therefore a high possibility of abuse of surrogacy by greedy individuals who risk the lives of surrogate women and children.

Is there adequate support in Kenya for surrogate parents and children?

Some of the organizations supporting surrogacy include Surrogacy Support Kenya (SSK) group, which was formed in 2016 to provide information and support to intended parents, surrogates, and donors in Kenya. The group advocates for the rights of surrogates and aims to ensure that the surrogacy process is fair and transparent.

Another one is the Fertility and IVF Center of Kenya, which is a private clinic that offers a range of fertility treatments, including surrogacy. The clinic works with both Kenyan and international clients, and it has a team of medical professionals and counselors who support surrogates and intended parents throughout the process.

However, there are no known support services for surrogate children which raise the question of whose interest is the surrogacy.

While there are some advocates for surrogacy in Kenya, it is important to note that the practice is still not widely accepted in the country and that there are concerns about exploitation and abuse. It is essential that surrogacy arrangements are conducted ethically and transparently, with the rights and well-being of all parties involved being respected and protected.

In conclusion, surrogacy is legal in Kenya, but it is not widely practiced due to cultural and religious beliefs. It is important for prospective parents to carefully consider the potential risks and challenges before pursuing surrogacy as an option.