Legislation

LAW GOVERNING GESTATIONAL SURROGACY IN KENYA

6. In this part, the term “partner” means a stable person of the opposite sex in a relationship.
(Meaning of Partner)

7. (1) Every person has a right to gestational surrogacy.
(Right to Gestational Surrogacy)
(2) The Cabinet Secretary shall make regulations to regulate the right to gestational surrogacy.

8. A surrogate parenthood agreement is valid if –
(a) it is in writing and is signed by all the parties thereto;
(b) it is entered into in Kenya; and
(c) the surrogate mother and her husband or partner, if any, are at the time of entering into the agreement domiciled in Kenya.

9. (1) Where a commissioning parent is married or involved in a permanent relationship, the agreement shall not be valid unless the husband, wife or partner of the commissioning parent has given his or her written consent to the agreement and has become a party to the agreement.
(Consent of husband, wife or partner)
(2) Where the surrogate mother is married or involved in a permanent relationship, the agreement shall not be valid unless her husband or partner has given his written consent to the agreement and has become a party to the agreement.
(3) Where a husband or partner of a surrogate mother who is not the genetic parent of the child unreasonably withholds his consent, the parties shall proceed to sign the agreement and it shall be valid.

10. No surrogate parenthood agreement is valid unless the conception of the child contemplated in the agreement is to be effected by the use of the gametes of both commissioning parents or, if that is not possible due to biological, medical or other valid reasons, the gamete of at least one of the commissioning parents or, where the commissioning parent is a single person, the gamete of that person.
(Genetic origin of child)

11. A party may enter into a surrogate parenthood agreement only if –
(Requirements of a Surrogate parenthood agreement)
(a) the commissioning parent or parents are not able to give birth to a child and that the condition is permanent and irreversible;
(b) the commissioning parent or parents –
(i) are in terms of this Act competent to enter into the agreement;
(ii) are in all respects suitable persons to accept the parenthood of the child that is to be conceived; and
(iii) understand and accept the legal consequences of the agreement and this Act and their rights and obligations thereof:
(c) the surrogate mother –
(i) is in terms of this Act competent to enter into the agreement;
(ii) is in all respects a suitable person to act as a surrogate mother;
(iii) understands and accepts the legal consequences of the agreement and this Act and her rights and obligations thereof;
(iv) is not using gestational surrogacy as a source of income;
(v) has a documented history of at least one pregnancy and viable delivery; and
(vi) has a living child of her own;

(d) the agreement includes adequate provisions for the contact, care, upbringing and general welfare of the child that is to be born in a stable home environment, including the child’s position in the event of the death of the commissioning parents or one of them, or their divorce or separation before the birth of the child; and
(e) in general, having regard to the personal circumstances and family situations of all the parties concerned, but above all the interests of the child that is to be born, the agreement should be confirmed.

12. No artificial fertilization of the surrogate mother may take place; before the surrogate parenthood agreement is duly signed and the provisions of section 10 satisfied.
(Artificial fertilization of surrogate mother)

13. A surrogate parenthood agreement is terminated by a termination of pregnancy that may be carried out in terms of the provisions of this Act.
(Termination of parenthood agreement)

14. (1) Subject to subsections (2) and (3), a person may not in connection with a surrogate parenthood agreement give or promise to give to any person, or receive from any person, a reward or compensation in cash or in kind.
(Payment in respect of surrogacy prohibited)
(2) A promise or agreement for the payment of any compensation to a surrogate mother or any other person in connection with a surrogate parenthood agreement or the execution of such an agreement is not enforceable, except a claim for –
(a) Compensation for expenses that relate directly to the artificial fertilization and pregnancy of the surrogate mother, the birth of the child and the confirmation of the surrogate parenthood agreement;
(b) loss of earnings suffered by the surrogate mother as a result of the surrogate parenthood agreement; or
(c) insurance to cover the surrogate mother for anything that may lead to death or disability brought about by the pregnancy.
(3) any person who renders a bona fide professional legal or medical service with a view to the confirmation of a surrogate parenthood agreement in terms of section 11 or in the execution of such an agreement, is entitled to reasonable compensation therefor.

15. (1) A person may not artificially fertilize a woman in the execution of a surrogate parenthood agreement.
(Prohibition of certain acts)
(2)A person may not in any way for or with a view to compensation, make known that any person is or might possibly be willing to enter into a surrogate parenthood agreement.

PART V – TERMINATION OF PREGNANCY

19. (1) A pregnancy may be terminated if a trained health professional, after consultation with the pregnant woman, is of the opinion that –
(Termination of pregnancy)
(a) the continued pregnancy would endanger the health of the mother; or
(b) as a result of the pregnancy the life or health of the mother is in danger.
(2) Trained health professionals shall offer non-mandatory and no-directive counseling, before and after the termination of a pregnancy.

20. Subject to section 19(1), termination of pregnancy may take place –
(Consent)
(a) only with the consent of the pregnant woman;
(b) in the case of a pregnant minor, after consultation with the minor’s parents, guardian or such other persons with parental responsibility over the said minor, provided that the best interest of the minor shall prevail; or
(c) in the case of a mentally unstable person, after consultation with the parents, guardian or such other persons with parental responsibility over the said person.

21. A person who violates section 20 commits an offence and is liable on conviction to a fine not exceeding two hundred thousand shillings or to imprisonment for a term not exceeding three years.
(Offences and penalty)