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In the absence of clear regulation, the practice of surrogacy in Kenya is growing as an unsupervised industry with no law to fall back on if anything goes wrong during the treatment

Salima was only 18 when she met Mohammed and a short courting period later, the two were married. A year later they were blessed with their first child, a daughter. Mohammed's family came from all over to congratulate the young couple on the birth of their first child. It was Salima's first meet with Mohammed's siblings and members of his extended family who had not attended the wedding. (Names have been changed for privacy.)

During the visit, Salima interacted often with Mohammed's elder sister, Zeinab, who lived in India with her husband. Zeinab did not have children, and mixed with her joy at the arrival of a niece was a deep sadness because she was bereft of progeny.

During a quiet moment, a weeping Zeinab asked Mohammed and Salima whether they would consider giving their next child to her to raise. It was a difficult decision but Salima and Mohammed agreed it was the right thing to do. And a year later, when Salima delivered a healthy baby boy, Zeinab and her husband took him to India to raise as their own.

It was difficult but they believed their sacrifice was a blessed one.
Today, Salima and Mohammed have six children but are only raising three of them. Their fourth child they gave to a childless cousin of Mohammed's in the United States, and the fifth to a relative of Mohammed's mother.

Salima's story is not unique, and is becoming more common in a world where fertility rates are on the decline and many are choosing to marry at a later age. In tandem, more alternatives are emerging to offer succour to the plight of childless couples. Surrogacy, an arrangement in which a woman carries and delivers a child for a person or a couple that is unable to reproduce, is the most recent.

There are two types of surrogacy - the first, as in Salima's case, is where the surrogate is the child's genetic mother. The second is where a fertilised embryo with genetic material from either or both members of the childless couple is implanted into a woman. As Phoebe says in the television series Friends when she is the surrogate for her brother's babies, ‘I'm just the oven; it's totally their bun.’ In this latter instance, the reproductive technology of in vitro fertilisation (IVF) is used to facilitate conception.

This year, Kenya marks the seventh anniversary of its first test tube child, and the event has revived debate about what is a highly sensitive practice. Despite the best intentions of President Kibaki's government, which established a committee in 2006 to develop a policy to address reproductive technologies, reproductive technologies, including surrogacy, continue to lack a legal framework.

The Head of the Governmental Task Force, Prof Koigi Kamau, who is Chairman of the Obstetrics and Gynaecology department at the University of Nairobi’s School of Medicine, says the team’s efforts were thwarted by financial constraints.

‘This was a law that was meant to facilitate and improve the quality of life for many Kenyans who are unable to bear children on their own,’ Prof Koigi was quoted as saying in the Daily Nation.

Apparently a lack of resources, political will and jostling between the Ministries of Medical Services and Public Health and Sanitation crippled the work of the task force, even though by the time their work came to a halt, they had held public hearings in three districts in Kenya and visited South Africa and India to learn about their IVF guidelines and legal frameworks.

Mr Mark Obuya, Chairman of the Association of Kenya Insurers and CEO of Corporate Insurance Company, is a specialist in law, science and technology, and has followed the global growth in surrogacy and the lack of a Kenyan legal context with interest.

He refers to surrogacy as the practice of ‘hiring a womb’, since at its heart surrogacy is a commercially-driven activity, and in a paper which he prepared shortly before the seventh anniversary of Kenya's first IVF or test tube baby (and the world's 35th anniversary), he explores the various conundrums - legal and otherwise - that confound the situation. Aside from the moral, ethical, philosophical and religious issues which may be esoteric, there are tangible scientific, social and legal issues to be considered, he says.

For instance, in the absence of a legal framework to govern surrogacy, is a surrogacy contract valid and enforceable? Does the surrogate mother have any rights? What about the commissioning couple, the donors and the health facility that carries out the procedure?

What about the rights of the unborn child, and its legal status? And what happens in an instance where a child born through surrogacy is afflicted with physical abnormalities? Is the commissioning couple obligated to take the child - what if they refuse to? What if twins are born and the contract only provides for one child? Does the surrogate hand over one child - since the contract specifies only one - and keep the second?

Another disastrous result could be a couple of one ethnic group receiving a child that belongs to another race because of a mix-up in the laboratory during fertilisation.

In the absence of clear regulation, the practice of surrogacy in Kenya grows as an unchecked and unsupervised industry with no law to fall back on if anything goes wrong during the treatment.

‘There is an urgent need to front track the enactment of a “surrogacy code”,’ says Obuya, noting that the lack of legislation has not stunted the practice in Kenya.

Six IVF centres currently operate in Kenya: four in Nairobi, one in Eldoret, and one in Mombasa. The number includes Nairobi IVF Centre, which has delivered more than 900 IVF babies in the past six years. Prof Kamau of Nairobi Hospital says that his clinic alone performs an average of two IVF procedures for surrogate arrangements every month, and last year was involved in 24.

The reasonable cost of IVF in Kenya has also attracted foreign couples who prefer spending an average of Sh300,000 per IVF cycle and incurring travel and accommodation costs by coming to Kenya instead of a waiting list in their home countries and paying double the cost for the service.

In the past three years alone, the Nairobi IVF Centre has served over 270 clients from Africa, according to the Daily Nation. While the local sector draws on guidelines from countries with established IVF practice and combines international best practice with the local medical code of conduct and regulations, the lack of homegrown regulation complicates matters. For instance, at the time of birth, in accordance with the Births and Deaths Registration Act, Kenyan hospitals enter the birth mothers' name on the birth certificate, necessitating commissioning parents to undergo an expensive and time-consuming adoption process to have their names officially registered on the birth certificate.


22 countries have spoken on surrogacy and developed laws that either allow it or prohibit it. Many continue to disallow it for a myriad of ethical reasons, while others specify that only altruistic surrogacy is permitted.

South Africa is the only country on the continent to have done so. It adopts a liberal approach to surrogacy and as per the South Africa Children's Act of 2005 (which came fully into force in 2010) enables commissioning parents and the surrogate to have their agreement validated by the High Court even before fertilization. However, only those living in South Africa can benefit from the law, and the agreement must be altruistic rather than commercial in nature. In addition, the surrogate mother must have had at least one pregnancy and viable delivery, and have at least one living child. The South African statue also outlines the conditions of termination of pregnancy by the surrogate, and in that case, the implications on medical bills and reimbursements.

In India, commercial surrogacy has been legal since 2002, and as a result the country is emerging as a leader in international surrogacy and a destination for surrogacy-related fertility tourism. The experience of childless couples who have resorted to surrogacy is discussed openly in the country's national media, and cities like Pune and Mumbai and states like Gujarat have even spawned professional surrogate mothers who make a career of the activity.

A recent article in Times of India explains how initially in India only related women would come forward as a surrogate and that no financial transactions were involved. Gradually, however, the stigma has reduced and the practice is being collectively embraced. It goes on to detail how a surrogate mother was paid IR3 lakhs (Sh430,000) by commissioning parents, and that the entire process is closely monitored either by infertility experts or in metropolitan areas by a chosen agency. Indian law firms and health care centres have also tapped into the lucrative business and are now specialising in the field.

The practice of hiring wombs has therefore become a business, and it continues to grow in India despite the lack of formal legislation governing surrogacy agreements. India's Surrogacy Bill is currently before parliament and expected to be enacted later this year.

India has therefore become a haven for childless couples bolstered in part by the availability of medical infrastructure and potential surrogates. According to Time magazine, every year 25,000 foreign couples visit India for surrogacy services, resulting in more than 2,000 births. Countries like Australia - which recognise altruistic surrogacy - have even developed guidelines for children born through surrogacy in India. India's Home Ministry has however stipulated that gay couples, single men and women, non-married couples and couples from countries where surrogacy is illegal are prohibited from hiring a commercial surrogate in India.

While many of the threads that permeate altruistic and commercial surrogacy are different, it doesn't lessen the inherent complications of the practice. And so the plight of women like Salima or those who have placed personal adverts on sites such as remain the same. And as global debate on the issue gathers speed, Kenya's approach of burying its head in the sand will no longer do. Policy makers will need to take a stand on the baby-making and -selling trade.

Legislation should address
• Interests of the surrogate mother and commissioning parents
• Ethical and moral aspects
• Legal enforceability of surrogacy
• Age of the surrogate mother
• Age of the commissioning parents
• The consent of both spouses
• Expenses for the surrogate
• Minimum payments for surrogacy
• Financial support for the child if the commissioning parents die, divorce or refuse to take parental responsibility
• Creation of a body to regulate and register IVF and ART centres, and standardise training
• A forum to register complaints
• A dispute settlement mechanism
• Amendments to the Registration of Births and Deaths Act
• Rights of a foreigner seeking surrogacy
• Genetic engineering designed to determine sex of the child
• Medical termination of a surrogate pregnancy
• More lenient adoption laws
• Registration of surrogacy agencies and medical clinics
• Citizenship issues
Source: The Case for a Surrogacy Act by Mark Obuya, May 2013

* Aamera Jiwaji is a Kenyan writer