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Will key ruling on surrogacy shed more light?


Two weeks ago, Justice David Majanja made a landmark ruling on a matter involving Kenya’s Directorate of Children Services, a couple, a surrogate mother and just a few months-old twins.

In the case, a couple sought surrogacy services from a woman. However, after delivery at one of Nairobi’s top private hospitals, the carefully laid out plans by the couple and the woman got undone.

The babies’ mother refused to sign the birth notification since legally, she was not to be the real parent of the twins. She explained to hospital staff that someone else would fill the forms. The staff, thinking that all was not right, called the Department of Children Services (DCS).

Officers from the directorate rushed to the hospital, ferried the twins to a children’s home and then later to the Kenyatta National Hospital effectively denying the couple access to the babies, a subject that later turned into a court case. The couple and the surrogate sued the DCS.

The judge found the DCS - and not the hospital which had been enjoined in the suit - had violated rights of the couple since there was no dispute.

Violated the trio’s rights

Parliament last week approved some changes to the Assisted Reproductive Technology Bill, previously known as the In-Vitro Fertilisation Bill.

Among the key changes, was the increase of the age of a surrogate mother from 18 years to 25. The move was lauded by movers of the motion and some IVF specialists as a step towards the right direction.

However, even with the approval of this new law, there are grey areas.

In his ruling, Justice Majanja argued: “The best solution was to have the children retained at the hospital instead of being transferred to a children’s home and to another hospital; and the DCS violated the trio’s rights and caused them distress and embarrassment by taking away the babies.”

The distraught couple and their twins’ surrogate mother were awarded Sh1.5 million as compensation for rights violation, which included forcing them to publicly declare their medical status and forcibly taking away the twins soon after birth.

“These are some of the things we hope subsequent legislation will address,” Infertility expert Kaigi Kamau of the University of Nairobi said. “Legislators and lobbyists should take this new laws as a stepping stone to agitate for further legislation regarding to matters of not only surrogacy but of tissue exchange too,” said Prof Kamau.

Surrogacy involves retrieval of eggs from the donor woman, their fertilisation using her man’s sperms in a laboratory and transfer of the resulting embryo into the surrogate mother’s womb.

Once the child is delivered, the surrogate host hands it over to the commissioning couple guided by the terms of a contract signed between the two parties.

Surrogacy motherhood, an arrangement involving one woman gestating a baby to be raised by another, is still a relatively new technology in Kenya seeing as the first surrogate birth in Kenya happened in August 2007.

“Being a new technology therefore, the practice is still stifled in uncertainty thereby raising a complex web of legal and ethical issues. The fact that there is no legal and ethical framework to regulate surrogacy arrangements in Kenya exposes the practice to corruption and other exploitative activities,” said Robai Lumbasyo, the Legal and Ethical Officer at the Nairobi IVF Centre.

She said lapses in the legal framework make it hard to standardise the practice of surrogacy in Kenya, leaving consumers of the service at the mercy of personal interpretation of the service providers.

“It is therefore essential that a legal and ethical framework is formulated to not only curb the rising incidences of exploitation but to also safeguard the interests of all parties involved,” she said.

Surrogacy is just one method of treating infertility. Other methods include gamete intra-fallopian Transfer (GIFT), Zygote Intra-fallopian transfer (ZIFT), Intra-cytoplasmic sperm injection (ICSI) as well as Intrauterine insemination (IUI).

Surrogacy is mainly used for treatment of infertility in cases where the woman whose womb cannot, for some medical reason such as hysterectomy, carry a baby.

Ideally, surrogacy is a byproduct of IVF, meaning it stems from or is occasioned by IVF. In simple terms, surrogacy is whereby a woman agrees to carry a pregnancy for another with the intention of handing over the child once it is born.

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