Man wins custody of surrogate infant after appeal

The High Court in Nairobi has overturned a magistrate’s decision that denied a man custody of his biological child born through a surrogate. The appellant, an American citizen identified as AM, entered into a gestational surrogacy agreement with a Kenyan woman, CAO, on May 30, 2024.

The contract stipulated that upon birth, the surrogate would relinquish all parental rights and that the appellant would receive sole legal custody. After the child's birth on January 28, 2025, AM sought sole parental rights and legal custody to take the child to the United States.

The child is named ANM. When AM approached the lower court seeking legal recognition of his relationship with the infant—essential to secure travel documents—the magistrate dismissed the suit. The trial court cited the "tender years principle"—a doctrine suggesting infants should remain with their mother.

The magistrate ruled that a newborn belonged in the care of a mother and directed that the child be handed to the surrogate. The court even suggested the child be committed to an institution if the surrogate mother declined placement, as Kenya lacks a formal legislative framework for surrogacy.

AM appealed, arguing that the trial court's decision was “draconian, indifferent, and not in the interests of the minor.” The appellant argued that the magistrate had confined herself to traditional gender roles and discriminated against him as a single man.

The surrogate, who had testified under oath that she was voluntarily giving up her rights and had no objection to the application, did not participate in the subsequent appeal.

“The respondent had earlier indicated that she had relinquished her parental rights; the consequence of the dismissal of the appellant’s prayer, therefore, was that the child would be committed to an institution,” court documents show.

Delivering her judgment on April 24, High Court judge Patricia Nyaundi set aside the lower court’s decision. She held that the tender years doctrine, though persuasive historically, can no longer operate as an unbending rule.

“The judicial rule that a child of tender years belongs with the mother is merely an application of the principle in appropriate cases," Justice Nyaundi said.

“The modern rule begins with the principle that the mother and father of a child both have an equal right to the custody of the child.” The judge noted that evaluating a child's best interests requires considering the potential negative consequences of denying an application due to a lack of a legislative framework for surrogacy.

“It is unfortunate that Kenya is yet to put in place the legislative framework that would govern surrogacy arrangements. Until then the responsibility will rest with the courts to ensure that no person (male or female), (married or single) who desires to be a parent will be denied that right which technology has expanded.”

Justice Nyaundi noted that both the Directorate of Children Services and a DNA analysis had recommended the father as the suitable custodian, confirming he posed no risk to the child.

“I am persuaded that it is in the best interests of the child that the appeal herein is allowed,” the judge ruled.

“The appellant is granted sole parental authority and legal custody in respect of the minor. The Registrar of Persons is directed to issue the child with a birth certificate that reflects the appellant as the father of the child.”

No order for costs was made as the surrogate did not contest the appeal.