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.
The Court affirmed that the BDRA requires a birth notification is provided upon the birth of the child(ren). It also requires that the persons giving the notification receive details about the child, including: name of the child, date of birth, sex, type of birth (single or twins), nature of birth (alive or dead), place of birth, name of father, name of mother, and the person to whom the notification is issued.
On the issue of privacy, the Court examined Article 31 of the Constitution, and highlighted proviso (c) which protects the right to privacy of every person not to have information about their family or private affairs “unnecessarily required or revealed.” The Court was persuaded by Petitioners’ arguments that under certain conditions, the right to privacy may be limited, as was stated by Lord Justice Bingham in the English Court of Appeal decision of W v. Edgell. Indeed, the Hospital’s argument that the disclosure was necessary under the circumstances.
The Court found that the Hospital had a statutory duty to record the details of the children in the Notification under Section 10 of the BDRA. However, the challenge was whose details should be included: the surrogate mother’s or the genetic parents. The Court held that the mother referred to in the BDRA was the birth mother, and by Section 2 of the Children’s Act, the surrogate mother had the immediate responsibility to maintain the children and was entitled to their custody. The Court therefore found that the Hospital had made the right decision to give mother’s details to the Director. However, since there was no law on surrogacy, nothing prevented the Hospital from registering the names of the genetic parents in the notification.
The Court was ultimately persuaded by the Hospital, which argued that in the absence of a law on surrogacy it was justified to seek the Director’s guidance. The Court held that this was a justifiable limitation on the right to privacy of Petitioners. Further, the Court cited Section 38(1) of the Children’s Act which mandated the Director to safeguard the welfare of children.
The Court also considered whether the Director had acted in the best interests of the children. The Court found that the children were not in need of care and protection so as to be placed in a children’s home. The Court pointed out that the Director was called upon to guide the Hospital on what to do about the registration and to decide on to whom the children would be released. The Court noted that there was no issue about the mother rejecting them, nor was there any dispute between the surrogate mother and the genetic parents. The Court therefore found that the decision of the Director to seize the children and place them in a children’s home was not in the best interests of the children in respect of Article 53(2) of the Constitution and Section 4(2) of the Children’s Act. It held that the actions of the Director to seize the children contravened the right to dignity of Petitioners, and caused them embarrassment and distress.
The Court observed that the issues it was asked to adjudicate arose because there was no legislative regime on surrogacy in Kenya. The Court stated that it was the duty of the state to enact legislation to regulate surrogacy. This duty stemmed from the right to health and health care services, including reproductive health guaranteed under Article 43(1)(a) of the Constitution, but also the right to recognition and protection of the family under Article 45(1). The Court followed the decision of the High Court of Kenya in Organization for National Empowerment v. Principal Registrar of Persons and Other (Petition No. 289 of 2012 [2013] eKLR), and decided that the details of the genetic parents be registered rather than those of the surrogate mother because the child is entitled to the identity of its genetic parents.
The Court held that the hospital did not violate the petitioners’ right to privacy when it divulged information about the surrogacy agreement while seeking the advice of the Director on what to do about the circumstances involving the petitioners and the Hospital. Furthermore the Court held that the Director violated the rights and fundamental freedoms of the petitioners, including their right to dignity, when seizing the children and placing them in a children’s home.
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.