Surrogacy: You Can Contract for a Pregnancy. Can You Contract for a Child?

The world is watching a surrogacy dispute in America that should terrify Kenyan family law practitioners and Parliament into action.

A California couple wrote into their surrogacy contract the right to demand an abortion if the fetus showed “Down syndrome or a fetal abnormality.” During the 20 weeks scan, the fetus was found to have hypoplastic left heart syndrome, a condition where the left side of the heart cannot pump enough blood to the body.

The couple exercised the clause. They demanded termination. The woman carrying the child, McKenna West, refused. She had felt him move. She had found stories of children with the same diagnosis living full lives. She crossed state lines to Texas, gave birth, and the commissioning parents sued her for at least one hundred thousand dollars, seeking punitive damages, for the offence of refusing to end the life of a child they had ordered. They had removed his ultrasound photographs from their refrigerator the day after the diagnosis. They opposed a court order requiring lifesaving care. He has had one surgery and requires two more.

That is the American case. Now consider Kenya. There is no surrogacy statute. There is no parental order mechanism. There is no provision in the Children Act, the Births and Deaths Registration Act, or any other written law that contemplates a scenario in which a commissioning couple decides the product is defective and the woman carrying it declines to comply with the return instructions.

What Kenya has instead is eleven years of judicial improvisation, a Bill still sitting in the Senate, and a collection of cases in which judges have been forced to make policy from the bench because Parliament has refused to make it from the chamber. The only thing separating a Kenyan surrogate from the fate of McKenna West is the goodwill of the people who hired her and the discretion of a judge who is applying adoption law to genetic parenthood.

The American case made me go back to the Kenyan decisions and read them properly, without the comfort of distance.

Kenya has spent eleven years telling itself a comfortable lie. In 2014, Justice Isaac Lenaola (as he then was) in JLN & 2 Others v Director of Children Services & 2 Others; Kenya National Human Rights Commission & Another (Interested Parties) (Petition 78 of 2014) [2014] KEHC 7491 (KLR) declared that surrogacy was “not a hypothetical issue any more” and directed the Attorney General to fast-track legislation. In 2015, in AMN & 2 Others v Attorney General & 5 Others (Petition 443 of 2014) [2015] KEHC 6960 (KLR), he said it again, more forcefully, observing that Kenya required “a law to regulate surrogate arrangements in order to protect all involved and affected parties including and most importantly, the children”.

Eleven years later, Kenyan women are still carrying children for strangers under contracts that no statute governs, and the only thing standing between them and the abyss is a judge’s willingness to stretch the Children Act into shapes it was never designed to hold.

The American case that has now reached the Supreme Court of the United States should terrify anyone who cares about what happens when reproduction becomes a transaction. A California couple wrote into their surrogacy agreement the right to demand an abortion if the fetus showed “Down syndrome or a fetal abnormality.” When the twenty-week scan revealed hypoplastic left heart syndrome, they exercised that clause. McKenna West, the woman carrying the child, refused. She traveled to Texas, gave birth, and the commissioning parents have since sued her for at least $100,000, seeking punitive damages for her refusal to abort a viable baby with a treatable condition. They initially opposed a court order requiring life-saving care for the child. This is not a fringe scenario.

This is what happens when the contract becomes the governing document and the human being becomes a party to be managed, reminded of her obligations, and sued when she deviates from the script.

The court in Kenya have been wrestling with their own versions of this nightmare for over a decade, and the results have been anything but clean. The cases reveal a legal system improvising at the edges of its competence, applying adoption law to genetic parenthood, inventing rules that Parliament has refused to write, and occasionally producing outcomes that satisfy nobody except the lawyers.

The Twins Who Had to Be Adopted by Their Own Mother

In AMN & 2 Others v Attorney General & 5 Others (Petition 443 of 2014) [2015] KEHC 6960 (KLR), a woman identified only as X had lost a child in infancy and suffered four miscarriages before turning to surrogacy. A friend, identified as Z, agreed to carry the pregnancy. Twin girls were born. The Attorney General, in his infinite wisdom, advised the hospital to register X and her husband Y as the parents on the birth notification. The hospital complied. Birth certificates were issued. Kenyan passports followed.

Then the family applied for British citizenship for the twins and the entire house of cards collapsed. The UK Passport Office refused, stating that the details on the birth certificates “were not found to be true”. The genetic mother was not the legal mother. The woman who gave birth was. The Attorney General’s shortcut, designed to save the parties “time and money that would otherwise need to be expended over an adoptive process under the Children Act,” was unlawful.

Justice Lenaola was left to clean up the mess. He held that the surrogate mother is the legal mother until legal processes transfer that status. He found that the birth certificates had been issued contrary to section 22 of the Births and Deaths Registration Act. He ordered that the certificates and passports be amended to reflect Z as the biological mother. And he told X that if she wanted to be her children’s legal parent, she would have to adopt them.

Read that again. A woman who supplied her own eggs, whose husband supplied the sperm, whose children were genetically hers in every way that matters, was told she had to adopt her own twins because a friend carried them to term. The law had no other mechanism. Kenya had no parental order, no statutory framework, nothing except the Children Act and its adoption provisions. The genetic mother became a legal stranger to her own offspring, and the only path back to parenthood ran through a courtroom.

The Baby Who Was Someone Else’s Child

The adoption workaround, as courts have discovered, works only when everyone agrees on the facts. In In re Baby JLW (Minor) (Adoption Cause E089 of 2025) [2025] KEHC 5378 (KLR), a single American woman, CRW, sought to adopt a child she had created through gestational surrogacy using her own ova and sperm from a bank. The surrogate, a Kenyan woman, had signed an agreement, attended court, and confirmed her decision to relinquish all parental rights. The reports from the Directorate of Children Services and the adoption agency were positive. The child had bonded with CRW. Justice Kendagor allowed the adoption, noting that denying the application “due to a lack of legislative framework” would harm the child’s best interests.

This is the system working as well as it can under the circumstances. But the circumstances are absurd. A woman with a genetic and biological connection to a child must go through the same legal process as a stranger adopting an abandoned infant. The child’s birth certificate must be rewritten. The surrogate’s name must be erased. The fiction that this is an adoption rather than a recognition of genetic reality is maintained because Parliament has refused to create a parental order mechanism.

The alternative, as AM v CAO (Family Appeal E034 of 2025) [2026] KEHC 5142 (KLR) demonstrates, is chaos. A single American man entered into a gestational surrogacy agreement with a Kenyan woman. The child was born. DNA confirmed he was the biological father and the surrogate had no genetic link. The surrogate voluntarily relinquished her rights. The Director of Children Services recommended he be granted custody.

The trial court, applying the “tender years” principle, ordered that the child be handed to the surrogate mother instead. The reasoning was that a child of tender years belongs with its mother. The fact that the surrogate had already relinquished her rights and had no genetic connection to the child was apparently irrelevant. The fact that the biological father was the only parent the child had was also irrelevant. The court’s decision would have placed the child in an institution if the surrogate declined to take him.

Justice Nyaundi, on appeal, reversed. She held that the tender years principle must be subject to the best interests of the child, that the father posed no risk, and that it was in the child’s interest to be with his biological parent. The Registrar of Persons was directed to issue a birth certificate reflecting the appellant as the father.

But the fact that a High Court judge had to correct such a basic error reveals how unsettled this area of law remains. The trial court had before it a surrogacy agreement, DNA evidence, a consent to relinquish parental rights, and a recommendation from the Director of Children Services. It ignored all of it in favour of a common law presumption that mothers belong with their children. This is what happens when judges are forced to make policy in a vacuum.

The Baby Who Was Not the Baby

And then there is the case that should make every Kenyan who has considered surrogacy pause. In 2025, a couple of Canadian origin approached a Nairobi fertility clinic, Myra IVF Clinic, seeking a child through surrogacy. The husband provided sperm. The clinic sourced an anonymous egg donor of Indian descent. An embryo was created, transferred to a Kenyan surrogate, and a baby boy was born in June 2025. Shortly after the birth, the intended mother raised concerns about the baby’s skin tone. It appeared darker than expected given the genetic father and the selected egg donor. The couple commissioned independent DNA tests. The results, they claim, showed the child had no genetic relationship to either of them.

The couple reported the matter to the police. The Directorate of Criminal Investigations summoned the doctor who ran the clinic. Investigators demanded extensive medical, embryology, and administrative records. The doctor, Dr Sukhija Sarita, ran to the High Court to block the investigation, arguing that her rights to privacy and fair administrative action were being violated.

The High Court halted the criminal investigation and referred the dispute to the Kenya Medical Practitioners and Dentists Council. The Court of Appeal declined to suspend that ruling, finding that the criminal investigation could be revived if the appeal succeeded. The intended parents’ fears that their biological child might be “in the custody of unknown persons” and that evidence might be destroyed before the professional regulatory body concludes its inquiry were deemed insufficient to justify immediate intervention.

This case exposes a gaping hole in Kenya’s surrogacy landscape. If the clinic mixed up embryos, if the wrong sperm was used, if the child handed to the intended parents was not the child they commissioned, what legal framework exists to address that? The Births and Deaths Registration Act says the woman who gives birth is the mother. The Children Act says the best interests of the child are paramount. But what are the best interests of a child whose genetic parentage is disputed, whose commissioning parents may not be his parents at all, and whose birth mother relinquished rights to a child she may not have understood she was carrying for the wrong people?

There is no answer in Kenyan law. The courts are making it up as they go along, case by case, while Parliament watches.

The Bill That Might Fix Everything, or Nothing

The Assisted Reproductive Technology Bill, National Assembly Bills No. 61 of 2022, was passed by the National Assembly in November 2025 and is now before the Senate. It was sponsored by Suba North MP Millie Odhiambo and co-sponsored by Nominated Senator Catherine Mumma. It is the most significant attempt to regulate surrogacy in Kenya’s history, and what it values tells us something about who we are as a country.

The Bill allows only altruistic surrogacy. Surrogates may receive no payment beyond expenses reasonably incurred. The sale of gametes or embryos is prohibited. Commercial surrogacy, the kind that turns poor women into gestational workers for wealthy foreigners, is banned outright. Homa Bay Town MP Peter Kaluma, who shepherded the Bill through the National Assembly with fifty of its fifty-two clauses rewritten and thirty new clauses added, declared that “no room has been allowed for foreigners to undertake surrogacy or assisted reproduction in Kenya” and that there would be “no room for fertility tourism”.

The Bill restricts surrogacy to Kenyan citizens aged 25 to 55. Surrogate mothers must be between 25 and 45, have given birth at least once, and pass medical and psychological assessments. All procedures require written consent. Posthumous use of reproductive material is prohibited. Gamete donations are capped at ten instances per person. Surrogates are entitled to three months’ leave after birth and intended parents to maternity and paternity leave.

The penalties for violations are severe. Human cloning, sale of gametes or embryos, and sex selection carry fines of up to Sh10 million or imprisonment of up to ten years.

What the Bill values, in other words, is protection. Protection of surrogate mothers from exploitation. Protection of children from being treated as commodities. Protection of Kenya from becoming a destination for reproductive tourism. These are values that anyone who has watched the American case unfold should applaud.

But the Bill leaves critical questions unanswered. It says surrogates may receive “expenses reasonably incurred.” Who determines what is reasonable? And how? What happens when a commissioning couple refuses to pay medical bills after a difficult pregnancy? What recourse does the surrogate have when the child is born with a disability and the commissioning parents walk away? The Bill does not say.

It says only Kenyan citizens may commission surrogacy. But what happens when a Kenyan citizen living abroad wants to use a Kenyan surrogate? What happens when a Kenyan couple’s embryo is created abroad and transferred to a Kenyan surrogate? The Bill does not say.

It says procedures require written consent. But it does not create a parental order mechanism. It does not say how legal parenthood is transferred from the surrogate to the commissioning parents. It does not resolve the fundamental problem that has plagued every Kenyan surrogacy case: the law says the woman who gives birth is the mother, and there is no statutory mechanism to change that without an adoption.

The Bill, if passed in its current form, will regulate the fertility clinics. It will punish commercial surrogacy. It will require counselling and consent forms and medical assessments. But it will not answer the question that Justice Lenaola asked in 2014 and that every Kenyan surrogacy case since has had to improvise around: who is the parent?

The Wombs That Kenya Does Not See

There is a deeper problem that the Bill, for all its good intentions, does not address. The women who become surrogates in Kenya are overwhelmingly poor. The Standard reported in January 2026 that surrogate mothers in Kenya are paid between Sh200,000 and Sh1 million per pregnancy, compared to approximately Sh10 million in the United States. The same editorial described an abandoned Kenyan woman who was “tricked into a Sh35,000 monthly payment as a surrogate mother”.

When the law says “expenses reasonably incurred,” it is speaking a language that poor women cannot afford to litigate. When the law bans commercial surrogacy, it assumes that altruism will fill the gap. But altruism is a luxury of the comfortable. The woman who agrees to carry a stranger’s child for nine months is not doing so because she has read the Bill and believes in its values. She is doing so because the money will feed her children, pay her rent, or settle a debt.

The Bill’s altruism model does not eliminate the economic pressure that drives surrogacy. It simply makes that pressure invisible. It drives the transaction underground, where the surrogate has even less protection, where the contract is unenforceable, and where the only guarantee is that the wealthy party will get what they paid for.

India learned this lesson. Commercial surrogacy was banned in 2016 after widespread reports of exploitation, but the ban did not eliminate demand. It simply pushed the practice into a shadow economy where women had no legal recourse when things went wrong. Kenya, with its high poverty rates and limited enforcement capacity, is unlikely to do better.

What the [Product] Children Will Inherit

The American case that has now reached the Supreme Court is not really about jurisdiction. It is about what happens when the law allows adults to make decisions about children before those children can consent to anything. The child at the centre of that case, born with a severe heart defect, was wanted by nobody except the woman who carried him. His commissioning parents took his ultrasound photos off their refrigerator the day after they learned of his condition. They demanded his abortion. They opposed the order requiring his life-saving care. They are suing the woman who saved his life.

Surrogacy cases in Kenya have not yet produced a child whose existence was contested before birth in this way. The surrogates in the Kenyan cases have been cooperative. The commissioning parents have been committed. The courts have been sympathetic. But this is luck, not law.

The absence of a statutory framework means that the outcome of every surrogacy arrangement depends on the goodwill of the parties and the discretion of a judge. When the goodwill runs out, as it did in the Myra IVF Clinic case, the law offers nothing except improvisation.

The Assisted Reproductive Technology Bill, if passed, will move Kenya closer to a framework than it has ever been. But regulation alone does not guarantee justice. The question is not whether surrogacy will be legal or illegal. The question is whose interests the law serves when the contract is signed, the money changes hands, and the child is born.

The American case should serve as a warning. A contract clause that allows a commissioning couple to demand an abortion is not an anomaly. It is the logical endpoint of treating surrogacy as a transaction between parties with unequal power. The woman who carries the child has the least power and the most to lose. The law’s job is to protect her, not to facilitate her exploitation.

Kenya’s Bill, in its current form, tries to do both. It bans commercial surrogacy while allowing “expenses.” It restricts access to Kenyan citizens while creating no mechanism for transferring legal parenthood. It protects children from being trafficked while leaving their parentage unresolved. These are contradictions that will have to be litigated, case by case, in the same courts that have spent eleven years telling Parliament to act.

The women who rent their wombs to strangers are people making desperate calculations in conditions that the law refuses to see. The children they carry are not products of a process. They are people who will inherit the decisions that adults made about them before they could speak. The law that governs these arrangements should be written with them in mind, not with an eye on the balance sheet or the ballot box.

Authored by Benson Odiwuor; Advocate of the High Court of Kenya.

This article is a publication of the Public Law & Regulation Series, featured in The BOLD Newsletter. For questions, clarifications, or suggestions on this or related subjects, contact the author directly: insights@bensonodiwuor.com /info@bensonodiwuor.com