Commercial surrogacy banned as Bill heads to the Senate

Members of the National Assembly have banned commercial surrogacy in the country even as they pass the Assisted Reproductive Technology Bill 2022.

Commercial surrogacy is an arrangement where a woman is paid a fee for carrying a pregnancy and giving birth to the intended parents.

The Bill sponsored by Suba North MP Millie Odhiambo now goes to the Senate for consideration.

The Bill that gives infertile couples a chance to have a child was approved with amendments by Homa Bay Town MP Opondo Kaluma.

The Homa Bay MP disclosed that the proposed legislation, in its initial wording, was giving an avenue for homosexuals to create children through commercial surrogacy.

The products of such a process, he noted, expose children to dangers of pedophilia, organ harvesting and research on the human body.

“The Bill was amended to expressly prohibit commercial surrogacy,” Kaluma told the press at Parliament Buildings.

The Bill, however, allowed for altruistic surrogacy only for Kenyan heterosexual couples or women, whether divorced, widowed or single, who are certified by an assisted reproductive technology expert to be infertile or incapable of natural conception.

“The Bill allows altruistic surrogacy only for Kenyan citizens. No room has been allowed for foreigners to undertake surrogacy or assisted reproduction in Kenya and therefore, no room for fertility tourism in Kenya,” Kaluma said.

The Bill provides, amongst others a regulatory framework for fertility treatments such as in-vitro fertilisation (IVF), intrauterine insemination, gamete and embryo donation and surrogacy.

It ensures all Kenyans, regardless of gender or marital status, can access reproductive technology safely and ethically.

It also establishes an Assisted Reproductive Technology Committee under the Kenya Medical Practitioners and Dentists Council (KMPDC) to license clinics and experts, regulate practice and maintain a confidential national register of donors, embryos and children conceived through assisted methods.

The proposed law promotes 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.

Millie’s Bill further 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.

Speaker Moses Wetang’ula said the proposal balances scientific advancement with Kenya’s cultural and moral values, ensuring protection from foreign exploitation while upholding family dignity.

If approved, only Kenyan citizens aged 25–55 years may seek surrogacy, while surrogate mothers must be 25–45 years old, have borne 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.

Surrogates will be entitled to three months’ leave after birth, while intended mothers and fathers also get maternity and paternity leave.

The legislation also forbids abandonment or exploitation of surrogate mothers or children while recognising intended parents as the child’s legal guardians immediately after birth.

The passage of the Bills comes at a time when Israel has issued a red alert, citing Kenya among the dangerous countries in the world to visit for surrogacy procedures.

Israelis are among the foreigners coming to Kenya for surrogacy procedures.

A report by the Israeli Justice Ministry’s National Anti-Trafficking Unit (NATU), however, raises concerns of surrogacy procedures in Kenya, Albania and Northern Cyprus.

“The National Anti-Trafficking Unit in the Ministry of Justice wishes to bring to the attention of the public considering surrogacy procedures outside of Israel, relevant information and a warning against carrying out these procedures in the countries of Northern Cyprus, Albania and Kenya,” the NATU said in a report titled ‘Notice by NATU and information to the public regarding the procedures of surrogacy abroad in Northern Cyprus, Albania and Kenya’.

INSTANT ANALYSIS

Surrogacy is a process that involves the insemination of the male sperm into the uterus of the surrogate mother who then carries the embryo of a child till its birth for the intended parents.