Stalemate over parentage as court orders enactment of surrogacy laws

Kenya: The High Court has directed the Attorney General Githu Muigai to fast-track enactment of surrogacy law to protect those who opt for this birth option.

When a child is born by a surrogate mother, who does the child belong to – the woman who has sired the child or the commissioning parent?

The High Court was left to solve this stalemate and it declared that in case of surrogacy, the surrogate mother shall be registered as the mother of the new born pending legal proceedings to transfer legal parenthood to the commissioning parents.

High Court Judge Isaac Lenaola, in his ruling, said the issue of surrogacy had been left out of legislation in the country leaving both parties involved in the process between a hard place and a rock as one cannot adopt their biological children and, on the other hand, leaving many questions on the issue of motherhood.

“There is now no doubt that we require a law to regulate surrogate arrangements in order to protect all involved and affected parties including, and most importantly, the children,” Justice Lenaola noted.

Sometime in 2013, a couple bore twin girls from a surrogate mother after failing to sire a child by themselves.

The process that delivered their bundle of joy started in July 13, 2011, after the woman sought advice from an In-Vitro Fertilisation (IVF) centre in Nairobi which recommended that the couple should seek for an egg donor which they agreed.

However, the egg donor option did not work as the woman did not have a canal to her cervix and so access was impossible.

The couple tried a second option – a surrogate arrangement. They found a willing person who could sire a child on their behalf and a deal was sealed on June 7, 2012, and an embryo transfer was done.

On February 5, 2013, two baby girls were born at Kenyatta National Hospital and were registered under the couple’s name after legal advice from the AG’s office.

BRITISH CITIZENSHIP

What triggered the case before the High Court was that the couple had in June, last year, applied for British citizenship for the two girls but the application was unsuccessful. The response from the UK passport office was that the couple would have to adopt the children first. They applied for a review of the decision but they got a disheartening answer this time.

The response to the couple read thus: “From the information we were given in the application, your daughters’ claim would be based on the fact that they had a British parent named on their birth certificate. Information provided in support of your daughters claim have raised concerns that the details given on the birth certificate were found not to be true.’’

 

The two then sued the AG, Kenyatta National Hospital, Department of National Registration, Department of Children Services, Immigration Services Department and the IVF centre on grounds that the children failed to be considered for UK passports since surrogacy was not recognised in Kenya.

In the case, the court heard that there was no law in Kenya regulating surrogacy arrangements.

The State agreed that there were no surrogacy procedures and the next option was to have the couple adopt the children.

However, another twist to the whole story was that one of the couple was a biological parent of the two girls, ruling out the adoption option as questions were raised if one can adopt her own child.

In the submissions by the IVF centre, the court was asked to define the term mother arguing that the woman who bore them was entitled to motherhood and the children ought to be registered under her name after which the adoption process would take cause.

Justice Lenaola ruled thus:” I will find that the surrogate mother is the mother of the twins until such a time as the necessary legal processes are undertaken or until this or any other court has issued requisite orders in that regard.”

He, however, declined to make a finding on the issue of the father saying that the same had not been raised in the case.

Justice Lenaola noted that there was a need to ensure that the unit of the family as intended in the surrogacy agreement is not ruined by unnecessary detail and technicalities adding that the children born in this set-up ought to be given the first priority.

The judge ordered the Deputy Registrar of the Family Court division to fast-track adoption process of the two girls.