MPs move to outlaw commercial surrogacy

Lawmakers are considering a Bill which, if enacted, would impose a ban on commercial surrogacy—that is, where couples with conception problems pay a woman to carry their child to full term.

It also involves the selling or buying of a human embryo or trading in the same. Surrogate mothers can be hired by way of giving payment, reward, benefit or fees, or other monetary incentives.

The proposed law, billed as Africa’s most comprehensive assisted reproductive technology law, seeks to establish a strict regulatory framework for the otherwise unchecked sector.

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The Assisted Reproductive Technology Bill (2022) seeks to seal the lacunae which has seen fertility treatments operate in a gray area.

The Bill was the primary focus of the National Assembly’s Wednesday morning sitting, with members of Parliament giving their views on the proposed legislation.

“This will raise the spirit of many women who have been crying silently out there and don’t know whom to turn to,” nominated MP Dorothy Ikiara said yesterday.

Even so, there was a huge debate on whether there is a need for a court order for the surrogate mother to relinquish all parental rights and responsibilities.

“We don’t go to court for one to confirm that the children they are raising are theirs. Let us drop this amendment,” Suba North MP Millie Odhiambo, the mover of the Bill, said.

Endebess MP Robert Pukose said the amendment, as presented by the health committee, which considered the Bill, was carried.

“Where the surrogate mother or intended parents have no genetic connection with the child, the surrogate mother shall, subject to a court order, relinquish all parental rights and responsibilities at birth over the child to the intended parents,” the amendment reads.

National Assembly Health committee chairman James Nyikal (Seme) argued that the strict adoption procedure would be a cure for the commercialisation bit that the Bill addresses.

“Where the couple or intended parent is not genetically connected to the child, the couple or intended parent shall only be the parents of the child and shall be listed as the parents in the birth notification and in the birth certificate following a court order,” the bill reads.

The proposed legislation further criminalises a wide range of activities, including advertising surrogacy services, selling human embryos or gametes (sperm and eggs) and importing genetic material for surrogacy.

It also outlaws operating agencies that broker such deals and imposes severe penalties for violating the provisions.

Individuals or organisations found guilty of engaging in commercial surrogacy face fines of up to Sh10 million or imprisonment for a term not exceeding ten years, or both.

Medical professionals, including doctors and embryologists working at fertility clinics who contravene the law, would also be subject to the same stringent penalties.

While commercial surrogacy is outlawed, the Bill provides for a woman to carry a child for intended parents without any financial benefit beyond having her medical costs covered.

Besides the adoption procedure, the proposed law imposes strict eligibility criteria, providing that a surrogate must be between 25 and 45 years of age.

The individual must have previously given birth to at least one child and must undergo comprehensive mental and physical health assessments.

Furthermore, a woman cannot act as a surrogate more than three times in her lifetime and must wait two years between each birth.

Intended parents are also subject to conditions. The intended parent must be between 25 and 55 years of age.

They must be Kenyans, with the intended mother or couple being certified by an expert as infertile or having a medical condition preventing natural conception.

The Bill grants a surrogate mother three months of lochia leave, with the intended mother and father set for three months of maternity leave and two weeks for the father respectively.

The Kenya Medical Practitioners and Dentists Council would be required to establish a dedicated assisted reproductive technology committee to oversee the sector.

The proposed law further provides for written informed consent for all procedures involving the use of gametes and embryos.

It also places a strong emphasis on the best interests of the child, stating “the right of a child born through ART to parental care and protection”.

The law also states that a deceased person’s gametes can only be used if the deceased person gave prior written consent.

The number of times an individual can donate gametes is capped at 10, with storage of gametes and embryos limited to a maximum of 10 years.

A decision would be made on the Bill in a future sitting, as it was impossible to put a question on the same in yesterday’s sitting.

INSTANT ANALYSIS

The proposed Assisted Reproductive Technology Bill marks a key moment for Kenya, aiming to bring clarity, ethics and much-needed protection to the sensitive field of reproductive medicine. Once passed, clinics and gamete banks will have a six-month transition period to apply for licences from the medical council or cease operations. Collated data from various sources indicates that an average of 52,000 ART procedures are conducted in Kenya annually.