Surrogacy is a formal agreement where a woman agrees to conceive, carry, and deliver a child for another person or couple. In Kenya, surrogacy usually involves:
- In-Vitro Fertilization (IVF): Embryos created from the intended parents’ or donor gametes are implanted into the surrogate’s uterus.
- Assisted Reproductive Technology (ART): Any fertility treatment involving handling human eggs or embryos.
Is Surrogacy Legal in Kenya in 2025?
As of 2025, Kenya has no specific law regulating surrogacy. Surrogacy agreements are treated as private contracts under the Law of Contract Act. However, parenthood is determined under the Children Act (Cap 141) and the Births and Deaths Registration Act (Cap 149).
Are Surrogacy Contracts Enforceable in Kenya?
Yes, but with limitations:
- They are valid under contract law but do not override parenthood laws.
- The surrogate mother is the legal mother at birth.
- Intended parents must complete adoption to be legally recognized.
Who Is the Legal Parent in Surrogacy?
Under Kenyan law, the surrogate mother is the legal mother. If she is married, her husband is presumed the father. Intended parents only gain legal recognition through adoption.
Key Case: AMN & 2 Others v Attorney General (2015)
- The surrogate is the legal mother at birth.
- Parenthood transfers only through adoption.
- The case highlighted the urgent need for surrogacy legislation in Kenya.
How Can Intended Parents Become Legal Parents?
- File an adoption petition in court.
- Obtain the surrogate’s written consent.
- Attend a hearing.
- Secure an adoption order.
- Amend the child’s birth certificate through the Registrar of Births.
Birth Registration Rules
- The surrogate’s name must appear on the initial birth certificate.
- Intended parents’ names are added only after adoption.
- Hospitals are legally obligated to comply with this process.
Can Foreigners Do Surrogacy in Kenya?
Yes, but with challenges:
- Kenya banned inter-country adoptions in 2019.
- Foreigners must consider alternatives like custody or parental orders.
- Exit permits and travel documents may face delays.
- Some embassies do not recognize Kenyan birth certificates in surrogacy cases.
Tip: Always seek legal and immigration advice before starting surrogacy in Kenya.
Legislative Update: Assisted Reproductive Technology Bill (2022)
The ART Bill (2022), if passed, would regulate fertility services in Kenya. Key provisions:
- Creation of an ART Directorate
- Recognition of surrogacy contracts with strict safeguards
- Standardized medical and legal procedures
Why Kenya Needs a Surrogacy Law
- To clearly recognize intended parents
- To protect surrogate mothers’ rights
- To safeguard children’s welfare and identity
Conclusion
Surrogacy in Kenya remains legally complex. Until clear legislation is passed, intended parents must rely on adoption to secure parenthood. The ART Bill (2022) offers hope for the first structured framework.
How We Help Intended Parents
At Kazi Legal, we provide end-to-end surrogacy legal services:
- Drafting and reviewing surrogacy contracts
- Adoption and parental recognition processes
- Representation of foreign parents in Kenyan courts
- Correcting legal documents and liaising with government offices
Contact us today for expert legal guidance.
Frequently Asked Questions on Surrogacy in Kenya
Is surrogacy legal in Kenya in 2025?
No. Kenya has no specific surrogacy law. Contracts are valid under contract law, but legal parenthood requires adoption.
Who is the legal mother in surrogacy?
The surrogate mother is the legal mother at birth under Kenyan law.
Can foreigners do surrogacy in Kenya?
Yes, but inter-country adoptions are banned. Foreigners face immigration and documentation hurdles.
How can intended parents be recognized legally?
Through adoption under the Children Act, followed by amending the birth certificate.
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