Surrogacy process in Kenya :Legal and Ethical issues.

  • LSK WEBINAR on 16/6/2020(2-3.15pm)
  • By Christine Kipsang Advocate P105/4401/01.

 

THE KABU’S STORY


 

INTRODUCTION

  • Medical illness –Fibroids, Early menopause, Age related reproductive problems. Own Genetic Baby. Ips.
  • Fertility expert advice-egg donation pool. Many attempts.
  • Simple and safe procedure is gestational Surrogacy.
  • Success rate is 70-80 %
  • Traditional Surrogacy success rate is 55-60 %
  • Young women aged 25 years or younger have healthy eggs.
  • Fit and healthy,F4 or university level of education( Get Selected)
  • No miscarriages and for 9 months not breastfed.
  • IVF &ART Professionals.
  • Legal Practitioners.

WORLD FERTILITY RATES.

  • A UN report released in 2015 on world fertility patterns noted that common states where infertility rates were high from 1970-2015 included:
  • Germany Spain Portugal China, Macao SAR, Hong Kong SAR, Japan
  • Republic of Korea
  • Africa and Kenya infertility is low.
  • Consequently this translates to most couples from these states seeking to start families either through surrogacy or adoption both internally and externally. With success rates for both IUI and World Fertility Pattern 2015

SURROGACY

  • Surrogacy is the action or state of being a surrogate .The process of giving birth as a surrogate mother or arranging such a birth .Surrogacy contract involves an arrangement in which a woman carries a pregnancy “for” another couple. Due to infertility surrogacy comes as an alternative when the infertile woman or couple is not able to reproduce. In ideal situation, a surrogate mother bears & delivers a child for a couple/ person through assisted reproductive techniques (ART).
  • Gestational surrogacy denotes the process by which the egg is extracted from the IM of the child, and then inserted into the surrogate’s uterus.
  • The embryo, is fertilized by in vitro fertilization, is implanted into the uterus of the surrogate mother who carries and delivers the baby. using the eggs and sperm of the intended parents or donors.
  • The baby –biologically related to IPs & the surrogate simply a “carrier.”
  • Surrogate – the eggs and sperm of the IPs or donor are implanted on surrogate mother( gestational carrier), the embryo is created by IVF, then transferred to the surrogate.

 

GESTATIONAL SURROGACY

  • GS can also be referred to as “host surrogacy” or “full surrogacy.”
  • GS costs are inclusive of;
  • IVF processes –Full Cycle and medication
  • Payment to surrogate-Clothing ,food & accommodation
  • Legal costs, which entails advocates consultation fees/ drafting contracts
  • Fertility clinic and surrogacy agency fees
  • Health care for the gestational carrier.
  • Emotional and mental support-happy at home or surrogate homes.

 

TRADITIONAL SURROGACY

  • GS is more common than traditional surrogacy due to fewer legal complications.
  • TS is the SM is impregnated with the sperms of the IF artificially, thus making her both genetic and GM.
  • Surrogacy –may be commercial or altruistic, depending upon whether the surrogate receives financial reward for her pregnancy.
  • Commercial Jurisdictions- India Ukraine California allow commercial Surrogacy.
  • Altruistic Surrogacy Jurisdictions- UK USA Germany Sweden Norway and Italy.
  • Surrogate agencies-Agents and Middle-men.

TRADITIONAL SURROGACY.

  • This entails the process of artificial insemination whereby the ovule of the SM is fertilized with a sperm from the IF or donor.
  • The SM carries the baby during the gestational period and delivers the baby.
  • After delivery the SM being the baby’s biological mother is required to relinquish her parental rights and in so doing her responsibilities as well.
  • TS is also called partial surrogacy or genetic surrogacy due to the surrogate’s biological link to the baby.
  • Single men and women.
  • Same-sex couples.
  • IMs who cannot ovulate or cannot safely carry a pregnancy.

 

SURROGACY ARRANGEMENTS

  • IPs identify a surrogate willing to contract with them in the surrogacy arrangement. Agents or a chart with life history of surrogates.
  • Draft and sign legal contracts- the IPs and surrogate mother- as pointed out TS is legally complex due to the fact that the surrogate is the biological mother. Include a clause Surrogate will hand over child after birth.
  • The IPs would be required to complete and file documentation in order to have parental rights over the child after birth.
  • The SM is inseminated through Intra uterine insemination (IUI). This process is considered to be less expensive and exertive than IVF.
  • The surrogate carries the foetus until delivery.

 

TRADITIONAL SURROGACY

  • Traditional surrogacy costs include:
  • Surrogate’s medical expenses, inclusive of costs for the IUI,Tests for AIDS, Hepatitis STDS.
  • Advocates and agency fees
  • Counseling fees
  • Surrogates monthly allowances
  • Surrogate’s compensation
  • Estimated cost for traditional surrogacy ranges and this is exclusive of other expenses like allowances and compensation.

 

ATTRIBUTES OF TRADITIONAL SURROGACY

  • Less expensive than GS. The procedure utilizes IUI the IMs do not need to undergo medical procedures because their eggs will not be harvested to create the embryo.
  • A traditional surrogate is the biological mother of her child, meaning she has parental rights and the power to change her mind and keep the baby. The IPs would then need to go to court to gain custody of the child. Adoption or parental order.
  • Complicated & extensive legal requirements-Ips to complete a step-parent adoption to both be recognized as the child’s legal parents.
  • Many surrogacy professionals do not offer TS programs, and many surrogates are more comfortable with GS than TS.
  • Intended mothers are never biologically related to their children in traditional surrogacy.
  • This type of surrogacy – the couple/individuals opt to have a child partially of their genetic makeup.
  • Is banned in many countries.

 

SURROGATES

  • The select couple or individual contract with surrogate mother with the hope of having a child through surrogacy. Charts or other options.
  • Young above 18 and older than 25 years of age.
  • Have had one life birth of their own.
  • Not Pregnant.
  • Not breast feeding for last 9 months.
  • Single or married.
  • Skin colour, height, Eye Colour, Healthy.
  • Education level –Form Leaver or University Graduate.
  • Register with Surrogacy agencies/agents/middlemen

 

Surrogates help would -be parents.  In times of need as the remedy to the unforeseen/unintended inabilities faced by the commissioning parent. To any human being it is desirable/gratifying to have a child of one’s own.

Upon implantation, moment of ecstasy follow & a lot is overlooked, the surrogate is human with humanly needs as well.  More often than not a surrogate will be appreciated mostly for the value she possesses to the IPs & likely to result in indignation. The array of issues faced by surrogates-Sleep, nutrition, upkeep, own the child, exploitation, psychological issues.

 

COMMISSIONING PARENTS(Ips).

  • Heterosexual couples- the female partner has reproductive complications,
  • Same-sex couples or
  • Single intending parents.
  • Driven by the natural desire to raise a biological child despite reproductive health issues . Desire to have genetically derived children, couples & individuals search of suitable surrogates, surrogacy laws protect their interests, the standards medical care available for the surrogate mother.
  • Steady raise in surrogacy arrangements across the countries to afford surrogacy opportunities and enforce the contracts by the parents and the agencies.
  • Open laws, high fertility rates, availability of surrogates, cost of surrogacy processes and agency fees and other factors.
  • Face a lot of uncertainty. Online Searches for donors surrogates,clinics Success rates of both IVF and IUI mean that no guarantee of having children through surrogacy.
  • Breach of contracts- fail to honor their obligations as per the contract leads to unnecessary litigation. E.g the Baby M case in the USA.
  • Undesired effects- the child born with complications or genetic disorders.
  • the IPs may be forced to incur perpetual and unforeseen costs of bring up the child eg the case of Gammy, a baby with Down’s syndrome  born to a Thai surrogate mother & left behind by the intended Australian parents.

 

SURROGACY IN KENYA

  • No legal framework . COK ,Children Act, Convention on the Rights of a child.
  • Not Prohibited not Regulated, it is taking place everyday.1VF Bill,ART Bill.
  • Taken as fertility treatment so IVF and surrogacy widely accepted by those affected.
  • Religious leaders oppose it. Others prefer Adoption process or fostercare.
  • 6Million children are in institutional homes waiting for adoption.
  • Others view it as a form of human trafficking like a case I handled in Mombasa. Police arrested and charged the IP, SM and the medical doctorand child was taken to an orphanage.
  • Unregulated surrogacy programs. Surrogacy agencies /Middlemen exploits.
  • Low quality medicare .Risks of violence on Same Sex Couples.
  • Right to form and be part of a family- the natural and fundamental unit of society and the necessary basis of social order.Rights of dignity for all children.
  • The In-vitro Fertilization Bill, 2014
  • Since most Ips are from other countries so read the Statutes in UK Australia USA and European countries.
  • Some have Parental Order to regulate parental rights while others adoption process.
  • There is a Bill known as Assisted Reproductive Technology Bill which gives heterosexual couples the right to gestational surrogacy in Kenyan clinics. It limits to altruistic agreements only (reasonable expenses).Transfer of parenthood needs to be included in the Bill.
  • Surrogate Agreement only is not guarantee to parental rights to Intended Parents.
  • The surrogate remains the legal mother.
  • Under a surrogacy arrangement must take one more step to complete the legal journey.
  • File OS include medical evidence, Ips documents, SM and Children Dept.
  • This is the Parental court Order process to transfer parenthood.
  • Birth certificate to reflect the intentions of the Surrogacy Agreement.
  • Same Sex Couples warned of using Kenya as a Surrogacy option since homosexuality is outlawed in Kenya- one partner(OIP) to sign surrogacy agreement with surrogate Mother (SM)only.

 

LEGAL & ETHICAL ISSUES

  • Language barrier in foreign country.
  • Long legal battles to get the child/disown child or child live in orphanage.
  • Waiting period of 2-3 months for formalities after birth citizenship nationality motherhood parentage and rights of a child.
  • Poor, illiterate women, rural background.
  • persuasion by spouse or middlemen to earn easy money.
  • No right on decision regarding their own body and life.
  • No provision of psychological screening or legal counseling.
  • Recruitment by commercial agencies.
  • Shifted into hostels for the whole duration of pregnancy on the pretext of taking antenatal care.
  • Real motive is to guard them and to avoid any social stigma of society.
  • Spend the whole tenure of pregnancy affecting about their household and children. Allowed to go out only for antenatal visits and are allowed to meet their family only on Sundays.
  • In case of unfavorable outcome of pregnancy, are unlikely to be paid,
  • no provision of insurance or post-pregnancy medical and psychiatric support for them.
  • Rich career women who do not want to take the trouble of carrying their own pregnancy are resorting to hiring surrogate mothers(SM).
  • Surrogacy, which has become more of a commercial racket, and there is an urgent need for framing and implementation of laws for the parents and the surrogate mother.
  • Scope of surrogacy agreements and their legal enforceability to contain all issues
  • Registration and regulate the IVF and ART centres.
  • Forum to file complaints for grievances against clinics and ART centres.
  • Age of surrogates.
  • Number of deliveries before being a surrogate.
  • Number of times of Embyro transfers per Surrogates.
  • Consent of her spouse for a married woman to act as surrogate to prevent legal and marital dispute.
  • Consents for injections & screening for STD communicable diseases and no blood transfusion for last 6 months to avoid adverse outcomes.
  • Spend the whole tenure of pregnancy affecting about their household and children.
  • Allowed to go out only for antenatal visits and are allowed to meet their family only on Sundays.
  • In case of unfavorable outcome of pregnancy, are unlikely to be paid.
  • Lack of privacy for Surrogates.
  • No provision of insurance or post-pregnancy medical and psychiatric support for them.
  • Rich career women who do not want to take the trouble of carrying their own pregnancy are resorting to hiring surrogate mothers(SM).
  • Surrogacy, which has become more of a commercial racket, and there is an urgent need for framing and implementation of laws for the parents and the surrogate mother.
  • All the expenses, insurance of surrogate medical bill, other reasonable expenses related to pregnancy, childbirth by intended parents.
  • A surrogacy contract to include life insurance cover for surrogate mother.
  • The surrogate mother to receive monetary compensation from the couple or individual as the case may be for agreeing to act as such surrogate.
  • Save poor surrogate mothers from exploitation, banks should directly deal with surrogate mother,
  • Minimal remuneration to be paid to the surrogate mother should be fixed by law.
  • Surrogacy arrangement ought to provide for financial support for the surrogate child in case the IPs die before delivery of the child.
  • Divorce between the IPs and subsequent willingness of none to take delivery of the child so as to avoid injustice to the child.
  • A surrogate mother should not have any parental rights over the child.
  • Birth certificate of the baby should bear the names of Ips as parents in order to avoid any legal complications.
  • Legitimacy of the child born by ART shall presumed  the legitimate child of the married/unmarried couple/single parent with all the attendant rights of parentage, support, and inheritance.
  • The ART clinics should not be allowed to advertise for surrogacy for its clients.
  • Couples should directly seek facilities of ART Bank.
  • Ips should be legally bound to accept the custody of the child/children irrespective of any abnormality in the child/children.
  • Confidentially should always be maintained
  • The right to privacy of the donor as well as surrogate mother should be protected.
  • If a foreigner is seeking surrogacy, they should enter an agreement with written guarantee of citizenship for the child from their government
  • , Appoint a local guardian who would be legally responsible for taking care of the surrogate during and after the pregnancy till the child is delivered to the foreigner couple
  • Sex-selective surrogacy should be prohibited, and abortions should not be allowed
  • No termination of pregnancies.
  • Distress on the part of the surrogate especially when the time for giving up the child arises.
  • Human beings especially women who have had to carry pregnancy to term there is usually an inexplicable prenatal bond created.
  • The ultimate detachment can result in depression to the surrogates.
  • Prenatal detachment between the surrogate and the yet to be born child.
  • SM has full knowledge that upon the birth of the child she will not have parental rights over the child hence tries to mitigate the ultimate outcome.
  • Harmful to both the surrogate and the child.
  • most surrogacy arrangements are carried out for purposes of subsistence.
  • Surrogates do inadvertently push themselves to the limit thereof.
  • Surrogate moms face increased pregnancy risks that come with carrying multiple embryos, which are often used to ensure success.
  • Multiple births come with an increased risk of Caesarian sections and longer hospital stays, gestational diabetes.
  • Fetal growth restriction.
  • Eclampsia,
  • Premature birth.
  • The drug, Lupron, which is used to transfer embryos, has also been documented to put surrogate women at risk for increased intracranial pressure.
  • Commercial surrogacy is prohibited in many jurisdictions,it does take place nonetheless.
  • Surrogates do normally get paid on the basis of loss of income for the period that they on pregnancy.
  • Surrogates belong to the poorest strata of the society, surrogacy exploit women from a more economically disadvantaged background financial hardship without being fully aware of the potential risks.
  • Rising trend does indicate the growing rise of commercial surrogacy as opposed to altruistic involving women without the financial capacity to cater for themselves.
  • This has particularly been the case in India was so prevalent that as of 2015, 25,000 children had been born vide surrogacy.

 

WAY FORWARD

  • Surrogacy in Kenya is being conducted largely unregulated and there is commodification of women’s bodies we need the current Bill enacted into  law to govern surrogacy arrangement to cover all medical legal issues.
  • Nature abhors a vacuum.
  • You can speak with your Member of Parliament.

CASELAW

  • Case of AMN & 2 OTHERS VS AG.
  • XY-Ips and SM -Z
  • KNH AG HIGH COURT/UK CITIZENSHIP – ISSUE was NOTIFICATION
  • Adoption for lawful parenthood