Eyes on Senate after MPs approve proposed tough law to regulate surrogacy

Commercial surrogacy will be prohibited if a proposed law is passed.

The National Assembly yesterday passed the Assisted Reproductive Technology Bill, 2022, which seeks to regulate fertility treatment and surrogacy.

This comes against the backdrop of reports of Kenya being listed as a dangerous country for surrogacy operations, a situation which borders on human rights violations.

Speaker of the National Assembly, Moses Wetang’ula, hailed the MPs for passing the Bill, describing the move as “a long and protracted process,” even as he welcomed the need to craft a morally grounded and culturally sensitive law.

The Bill establishes a legal framework for assisted reproductive services, safeguards the rights of parents, surrogates and children, and outlaws exploitative commercial surrogacy.

The Suba North MP Millie Odhiambo's Bill will be transmitted to the Senate for concurrence and subsequent assent should it also be approved.

The Bill permits altruistic surrogacy only for Kenyan couples or women whether divorced, widowed or single but have been certified by an assisted reproductive technology expert to be infertile or incapable of natural conception.

“No room has been allowed for foreigners to undertake surrogacy or assisted reproduction in Kenya. No room for fertility tourism in Kenya. The Bill permits altruistic surrogacy only for heterosexual Kenyans. The room that Bill in the original draft was creating for homosexuals to create children through surrogacy in Kenya has been shut,” said Homa Bay Town MP Peter Kaluma, who brought in several amendments to the original draft.

In cases where the intended parent is not genetically linked to the child, the Bill requires that they apply to the High Court for parentage rights and responsibilities.

The Bill affirms that human life begins at conception and institutes deserved legal protection to children born through assisted reproduction technology.

“The Senate should expedite its consideration of the Bill and secure the pillars and columns we have instituted in the National Assembly to prohibit commercial surrogacy and protect the children born through assisted reproductive technology in Kenya from the dangers of organ harvesting and pedophilia and other abuses are not shaken,” said Kaluma.

The Bill provides a regulatory framework for fertility treatments such as in vitro fertilisation (IVF), intrauterine insemination, gamete and embryo donation, and surrogacy. It ensures that all Kenyans, regardless of gender or marital status, can access reproductive technology safely and ethically.

At the same time, it establishes an Assisted Reproductive Technology Committee under the Kenya Medical Practitioners and Dentists Council to license clinics and experts, regulate practice, and maintain a confidential national register of donors, embryos, and children conceived through assisted methods.

Similarly, the law seeks to promote access to affordable and quality fertility care in line with Article 43(1)(a) of the Constitution, which guarantees the right to the highest attainable standard of health. 

It imposes stiff penalties for unethical practices such as human cloning, the sale of gametes or embryos, and sex selection, with fines of up to Sh10 million or imprisonment of up to 10 years.

Under the new framework, only Kenyan citizens aged 25 to 55 may seek surrogacy, while surrogate mothers must be aged between 25 and 45, have at least one child and pass medical and psychological assessments. 

All procedures require written consent, and posthumous use of reproductive material is prohibited without prior authorisation.

The Bill provides that surrogates be entitled to three-month leave after delivering while intended mothers and fathers receive maternity and paternity leave.

The proposed law prohibits abandoning and exploitation of surrogate mothers or children, recognising intended parents as the child’s legal guardians immediately after birth.

With infertility affecting one in six couples globally, Kenya will be among the few African countries with a clear framework for assisted reproduction and will not only expand access to fertility care, standardise clinical practices but also promote accountability within the sector.

with Homa Bay Town MP, Peter Kaluma also proposing amendments and expanding the scope and having been passed by the National Assembly, it

Yesterday, Kaluma said that the Bill had 50 out of 52 clauses re-written following some of the proposals he made, and improved to 82 clauses, after 30 new clauses were added to the Bill to protect the process of surrogacy from abuse.

“I sought recommittal of the Bill before passage by the National Assembly to clean up some clauses following approved amendments and to provide for Rules of Procedure for the said High on Wednesday.

“The Bill was amended to expressly prohibit commercial surrogacy… Children born out commercial surrogacy, because they do not have parental and legally are normally the victims of organ harvesting, child pornography and pedophilia and other forms of abuses. It is for this reason that all religions advocate universal ban on commercial surrogacy,” Kaluma said.

Meanwhile, Wetang’ula has lauded Millie Odhiambo-Mabona and Kaluma for collaborating to refine the legislation and championing the Bill, a situation that has given human face to an issue shrouded in stigma.

“Honourable Millie, you should also thank your colleague, Kaluma, for his tremendous industry in making your Bill have a moral color and make it applicable to our country, without giving a window to foreigners to come in and do things that are unacceptable to us. Very few people own up their situation and do what you have done. The majority live in denial,” he said.