🧬 Fertility treatment and surrogacy: a Kenyan guide to local and overseas rules

Terms and local boundaries

• Medically assisted reproduction includes treatments such as assisted insemination and IVF; a specialist should explain which options are clinically appropriate.
• Kenya's Assisted Reproductive Technology Bill must not be treated as enacted law on the basis of a bill or parliamentary digest. Obtain confirmation of the current legal position before proceeding.
• For donor sperm, eggs or embryos, ask separately about clinical availability, consent, records and the current legal position; do not assume a blanket prohibition or unrestricted access.
• Surrogacy involves someone carrying a pregnancy for intended parents. A 2015 Kenyan judgment addressed registration involving the birth mother followed by a legal process; it does not guarantee automatic recognition of intended parents or establish a blanket prohibition.
• Commercial and altruistic describe payment arrangements, not guaranteed legality or recognition.
• Legal parentage, birth registration, citizenship and travel documentation are separate issues.

Plan carefully before committing

1. 1. Start with an individual fertility assessment

   Consult a registered fertility specialist about both partners' relevant health, investigations, options, risks and likely costs. Share appointments and decisions without placing blame on either person.

2. 2. Confirm Kenyan access and the current legal position

   Ask the clinic about its treatment criteria, professional guidance, donor arrangements, consent and documentation. Have an independent Kenyan lawyer distinguish current law, court decisions, clinic policy and proposed ART legislation. A bill is not evidence that its proposed rules are in force.

3. 3. Get confidential advice for your family

   Single people and same-sex partners should not assume access based on an overseas marriage or automatic legal parentage. Kenya's Constitution recognises marriage between persons of the opposite sex, and criminal law creates risks concerning certain same-sex conduct. Seek independent, confidential Kenyan legal advice; do not make public disclosure part of the plan. Parenting and custody require separate advice, and no blanket assumption about adoption should replace a case-specific assessment.

4. 4. Investigate overseas proposals independently

   Before paying an agency or clinic, obtain advice from qualified lawyers in Kenya and the destination. Check current eligibility, consent, donor rules, surrogacy policy and law, costs and what happens if treatment or an arrangement changes.

5. 5. Plan the child's legal position

   Ask about parentage recognition, birth registration, citizenship, passports and return travel before treatment. Consult Civil Registration Services and the relevant consular authorities alongside your lawyer. The 2015 Kenyan surrogacy case illustrates that recording the birth mother and completing a subsequent legal process may be involved; intended parents must not assume automatic recognition. A foreign birth certificate does not settle every issue.

6. 6. Protect wellbeing and informed consent

   Discuss medical risks, counselling, privacy, records and follow-up care. Any proposal involving a donor or person carrying a pregnancy needs careful attention to autonomy and exploitation risks as well as independent legal review.

Classic mistakes

• ❌ Treating an agency's promise as legal advice An agency may have a financial interest in proceeding. Obtain independent advice about legality, parentage and nationality before signing or transferring money.
• ❌ Confusing a bill, policy, law and recognition Proposed legislation and a clinic's policy are not the same as enacted law. A judgment concerning one family is not an automatic route for every arrangement. Something permitted abroad is not automatically recognised in Kenya.
• ❌ Assuming registration grants citizenship These are distinct questions. Get case-specific advice about the child's status and documentation.

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