In late 2014, bouncing twins were born in MP Shah Hospital. The parents were elated, having struggled for years to have children. But their jubilation was cut short when the Director of Children’s Services seized the babies and took them to a children’s home due to what the agency considered problematic and contentious legal status of the parentage of the babies.

You see, the woman had a condition that prevented her from bearing children. After unsuccessfully attempting to carry babies to term, the couple resorted to technology to help them finally achieve their dream of having children. The twins were carried to term by a surrogate mother; however, they were products of the sperm and egg of the couple.

This case highlighted the legal gap in Kenya regarding in-vitro fertilisation and surrogacy; and, specifically the rights of parents and children born out of surrogacy agreements.

Surrogacy can be described as the practice by which a woman, called a surrogate mother, becomes pregnant and gives birth to a baby to give it to a person or couple that cannot have children for one reason or another. It involves legal and medical processes that involve getting into intricate legal agreements on the one hand, and several medical procedures, such as fertility treatment and in-vitro fertilisation - whereby a fertility specialist will collect eggs and sperm from the intended parents or from a donor in other circumstances, fertilise the egg in a test tube or culture dish, and then implant this embryo into the surrogate’s uterus.

The newborn twins were taken away when the nurses were informed by the surrogate mother that the twins should be registered under the name of the intended mother, whom she described as the genetic mother of the twins. At the centre of this quagmire was whether the surrogate mother should be listed as the mother of the children in the Acknowledgement of Birth Notification under the Births and Deaths Registration Act rather than the intended mother. It is noteworthy that the notification is the primary document confirming the birth of a child, which allows for the issuance of a birth certificate.

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The couple and the surrogate mother moved to the Constitutional Court which, apart from granting the couple their parental rights, found that the director had violated the rights of the parents and the children.

Justice Isaac Lenaola succinctly stated: “Surrogacy is not a hypothetical issue anymore. It is real and many Kenyans are resorting to surrogacy as an alternative to being parents especially those who cannot, for medical reasons, have children. In such circumstances, it is the duty of the State to protect the children born out of such arrangements by providing a legal framework to govern such arrangements.”

The lack of legal regulation is likely to result in discrimination of parents and children born out of surrogacy agreements. Often, intended parents must wait until the child is born, and then institute adoption proceedings to get full parental rights.

Since 2014, there have been attempts to have policy changes that recognise this role of new technology and surrogacy in assisting persons and couples to have children. The In-Vitro Fertilisation Bill of 2014, which was later renamed the Assisted Reproductive Technology Bill, is yet to be passed.

Among its novel provisions is to pronounce the right to gestational surrogacy in Kenyan clinics. Other provisions include the requirement that intended parents must be a heterosexual couple in a stable relationship. It creates procedure on how surrogate mothers carry children on behalf of the couples and then relinquish all parental rights over the child unless a contrary intention is proved.

The rights underpinning surrogacy are the rights to life, healthcare, including the right to reproductive health, the right to marry and the right to start a family. Still, the legal regulation of this area must balance the rights of all involved, including surrogate mothers who are often poorer and more vulnerable, intending parents, gamete donors and children who are born as a result of surrogacy arrangements.

Be that as it may, policy frameworks on surrogacy go a long way towards protecting the parties from exploitation and breaches of agreements. For instance, what happens when the intended parents refuse to take the child because of apparent birth defects or when the surrogate mother becomes attached to the child and refuses to hand it over?

Mr Kiprono is a constitutional and human rights lawyer. [email protected]