A surrogate mother (“1st Petitioner”) entered into a surrogacy agreement with the genetic parents (“2nd and 3rd Petitioners”) (collectively, “Petitioners”), and gave birth to twins at MP Shah Hospital (“Hospital”). Following delivery, the question arose as to whose name, the surrogate’s or the genetic mother’s, should be entered in the Acknowledgement of Birth Notification (the “Notification”), as required under the Births and Deaths Registration Act, Cap 149 of the Laws of Kenya (BDRA). (There was no dispute between the surrogate mother and the genetic parents. There is no legislation regulating surrogacy in Kenya.) The Hospital sought the advice of the Director of Child Services (Director) who decided that the children needed care and protection. The children were therefore placed under the care of a children’s home. The children were later released to the 1st Petitioner, and Hospital issued the Notification in her name. 

Petitioners filed a suit against the Director and others in the Children’s Court (“Respondents”) to prevent the children from being put up for adoption. Pending the hearing and determination of the main suit, the Children’s Court ordered that the children be released into the custody of 2nd and 3rd Petitioners, and that 1st Petitioner be allowed unlimited access for purposes of breastfeeding the children. The Children’s Court also ordered that the names of the 2nd and 3rd Petitioners be entered the birth notifications as well as the birth certificates. 

Petitioners sought orders to compel Respondents to release the children into their custody and not interfere with the surrogacy agreement, and an order for damages. They also sought declarations that the Hospital’s disclosure of Petitioners’ medical information to the Director contravened Petitioners’ constitutional rights to privacy, and that the Director’s decision to seize the children from 1st Petitioner into the care of a children’s home violated both her rights and the constitutional rights of the children. 

A cursory review of countries that have some legislation on surrogacy on the African continent only brings up South Africa as having a law on surrogacy. Surrogacy is not very visible on the African continent, but it may be happening clandestinely. 

Surrogacy raises complex ethical, moral, and legal questions, with many interrelated perspectives from which surrogacy can be viewed, including the reproductive rights of the parties in the surrogacy arrangement, the children’s rights perspective, parental rights, and the rights of women, as the ones who must carry the pregnancy and who often predominately shoulder responsibility for childrearing. These various perspectives interact with each other and are not necessarily independent of each other. 

The Court primarily focused on the issue of parental rights and the rights of the child. The Court reasoned that parental rights be accorded to the genetic parents. It held that taking away the child from the surrogate and genetic parents was an infringement of their rights as parents.  

Regarding the rights of the child, the Court emphasized that the rights of a child born out of a surrogacy arrangement were no different from the rights of any child recognized under national and international law.