Kenya’s National Assembly passes bill outlawing commercial surrogacy

Kenya’s National Assembly has passed the Assisted Reproductive Technology (ART) Bill 2022, setting up a legal framework to govern fertility treatments and surrogacy in the country. The bill will outlaw commercial surrogacy and unethical practices such as human cloning and sex selection, but most are hailing it as a victory for "reproductive rights."

Key Takeaways:

• Under the new bill, unpaid (altruistic) surrogacy is permitted, while commercial surrogacy is forbidden.

• Those who violate the law could face up to 10 years in prison.

• Surrogacy, regardless of whether it is done for money, is inherently exploitative and commodifies women and children.

The Details:

Per the new bill, Kenya will only allow non-commercial (unpaid) surrogacy, with the bill explicitly forbidding commercial surrogacy and permitting only altruistic surrogacy for Kenyan citizens who are divorced, widowed, or single. An ART specialist must first certify those citizens as unable to conceive children naturally.

The new bill will pave the way for the creation of an Assisted Reproductive Technology Committee under the Kenya Medical Practitioners and Dentists Council (KMPDC) to license clinics and experts, regulate practice, and keep a confidential national register of donors, embryos, and children conceived through assisted methods. The Reproductive Health Network Kenya, which portrays the bill as "rights-based," noted on X:

By establishing a clear legal framework for ART and surrogacy, the Bill helps protect the rights of individuals and families seeking these services, reduces exploitation and ambiguity, and promotes access to regulated, high-quality reproductive health options. It also signals growing national recognition of diverse fertility needs and the importance of ensuring that every person has the right to make informed choices about their reproductive journey.

But do these choices uphold the rights that children have to their biological mothers and fathers?

Under the new law, individuals involved in commercial surrogacy will be penalized with a fine of up to 10 million Kenyan shillings [over $77,000 USD] or jail for up to a decade. 

Those who breach the law by participating in commercial (paid) surrogacy, or getting involved in practices such as human cloning, the sale of gametes (sperm and ova) or of embryos, along with sex selection, will also be penalized. 

Only Kenyans aged between 25–55 years are allowed to pursue altruistic surrogacy. Surrogate mothers are required to be aged between 25 and 45 years old, and must also undergo and pass medical and psychological assessments before they can qualify as surrogates.

To deter commercial surrogacy, the law will mandate that everyone seeking surrogacy offer written consent. It will also prohibit the use of reproductive material after a person’s death if past approval has not been granted. 

Concurrently, the legislation allows gamete donations (reproductive cell donations — sperm and ova) to 10 per person. Counseling for both intended parents and surrogate mothers would be compulsory to ensure that all parties involved comprehend the entire surrogacy process.

Why It Matters:

The fertility industry is rife with widespread abuses, including surrogacy, for which even a senior United Nations official has called to end. Surrogate mothers often live in poverty, choosing to become surrogates for wealthy buyers so they can better their families.

Surrogate mothers are also at a higher risk for numerous complications, including gestational diabetes, hypertension related to pregnancy, and post-birth bleeding complications.

The children born from surrogacy are also at risk, as IVF in and of itself is associated with higher risks for children, including low birth weight and prematurity. Separating babies from their birth mothers, biologically related or not, is also known to cause trauma, and can even be known to permanently alter adult brain function.

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The Bottom Line:

Surrogacy in all its forms is inherently exploitative and harms women and children alike.