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MOI UNIVERSITY
SCHOOL OF LAW
FLB 400- RESEARCH PAPER: DRAFT COPY
TOPIC: SURROGACY AGREEMENTS AND A CHILD’S RIGHT TO CERTAINTY OF
PARENTAGE: THE CASE OF KENYA
A Dissertation Submitted in Partial Fulfillment of the Requirements for the Degree of
Bachelor of Laws (LLB) of Moi University.
By
KIHENJO RUTH WACUKA
MOI UNIVERSITY
ELDORET
SEPTEMBER 2015
i
DECLARATION
The undersigned hereby solemnly declares that the material presented herein is the original work
of the author; both in substance and form, and that the same has never been, to the best of her
knowledge presented in any learning institution.
No part of this project may be reproduced in any form or by any means electronic, photocopying
or otherwise without the expressed authority from the author. Any unauthorized reproduction of
this work will constitute a copyright infringement and render the doer liable both in civil and
criminal law
AUTHOR SIGNATURE
KIHENJO RUTH WACUKA
(LLB/24/12) …………………..
SUPERVISOR SIGNATURE
Mr. MAURICE ODUOR
(LLM University of Pittsburgh) …………………..
ii
DEDICATION
To my parents, who have always stood up for and supported me to date.
To my siblings, for their constant encouragement and believing in me, even when I did not
believe in myself.
To my nephews and nieces who always look up to me.
iii
ACKNOWLEDGEMENTS
To a list of various kindly souls…
First and foremost thank the Almighty God for the chance of being alive and healthy so as to
carry out this research work. To God be the glory!
The Department of Legal Aid and Externship; for an opportunity to carry out this research. This
would have been impossible without your authorization.
Special thanks to Mr. Maurice Oduor, my supervisor, for each minute dedicated to go through
the draft, for his helpful comments and critique in every step of writing this research paper. I
salute you sir! God bless.
To mum and dad: for your constant prayers and financial support. What would I do without you?
Receive my gratitude from my heart.
All my esteemed friends; Irene Sikuku, Bancy Koros, Lorraine Cherono, Maureen Chebet,
Martin Korir, Mercy Netaya, Sabina Lenarum, Joe Njuguna…the list is endless ; for your
support and encouragement especially when the going got tough. I love you all.
Lastly but not least, to Peter Mungai, for your friendship, encouragement, criticism and
correction. God Bless.
To all those people, and to countless others whose contribution was impossible to mention,
receive my sincere gratitude.
iv
TABLE OF CONTENTS
DECLARATION ......................................................................................................................... i
DEDICATION ............................................................................................................................ ii
ACKNOWLEDGEMENTS ....................................................................................................... iii
TABLE OF STATUTES ............................................................................................................ vi
TABLE OF CASES .................................................................................................................. vii
LIST OF ABBREVIATIONS .................................................................................................. viii
CHAPTER ONE ............................................................................................................................. 1
1.0 Introduction ........................................................................................................................... 1
1.1 Background ........................................................................................................................... 2
1.2 Statement of the problem ...................................................................................................... 5
1.3 Objectives .............................................................................................................................. 6
1.4 Hypothesis ............................................................................................................................. 6
1.5 Significance of the study ....................................................................................................... 7
1.7 Methodology ......................................................................................................................... 8
1.8 Literature review ................................................................................................................... 9
CHAPTER TWO .......................................................................................................................... 16
2. An overview of the right to certainty of parentage and surrogacy agreements. .................... 16
2.1 An overview of surrogacy. .................................................................................................. 17
2.2 An overview of the right to certainty of parentage. ............................................................ 22
2.2.1 Introduction: who is a parent? ...................................................................................... 22
2.2.2 Historical development of the right to certainty of parentage. ..................................... 23
2.2.3 The scope of the right to certainty of parentage. .......................................................... 26
2.2.4 Enforcement of the right to certainty of parentage. ...................................................... 28
2.3 Justification for the right to certainty of parentage for children born out of surrogacy
agreements. ................................................................................................................................ 29
2.4 Conclusion ........................................................................................................................... 32
CHAPTER THREE ...................................................................................................................... 33
3. The legal framework governing the right to certainty of parentage in Kenya. ..................... 33
3.1 The Constitution of Kenya. ................................................................................................. 33
3.2 Statutory laws addressing the right to certainty of parentage in Kenya. ............................. 34
v
3.3.1 The Children‟s Act ....................................................................................................... 34
3.3.2 The Births and Deaths Registration Act ....................................................................... 35
3.3 International Treaties governing the right to certainty of parentage ................................... 38
3.3.1 African Charter on the Rights and Welfare of the Child .............................................. 38
3.3.2 International Covenant on Civil and Political Rights ................................................... 40
3.3.3 The Convention of the Rights of the Child. .................................................................. 41
3.4 Judicial interpretation of the right to certainty of parentage. .............................................. 42
3.5 Conclusion. .......................................................................................................................... 48
CHAPTER FOUR ......................................................................................................................... 50
4. Legal policy and challenges .................................................................................................. 50
4.1 Introduction ......................................................................................................................... 50
4.2 Challenges in the Kenyan legal framework ........................................................................ 50
4.3 Challenges in International legal policy .............................................................................. 53
4.3.1 United Nations Convention on the Rights of the child ................................................. 55
4.3.2 The African Charter on the rights and welfare of the child .................................... 58
4.3.3 International Covenant on Civil and Political Rights ................................................... 61
4.4 Conclusion ........................................................................................................................... 63
CHAPTER FIVE .......................................................................................................................... 65
5. Conclusion and Recommendations ....................................................................................... 65
5.1 Conclusion ........................................................................................................................... 65
5.2 Recommendations. .............................................................................................................. 71
BIBLIOGRAPHY ......................................................................................................................... 74
vi
TABLE OF STATUTES
The Births and Deaths Registration Act, Cap 149, Laws of Kenya.
The Children Act, Cap 141, Laws of Kenya.
The Children’s Act (2005, South Africa, it came into force in 2010.)
The Constitution of Kenya, 2010.
The Judicature Act, Cap 8, Laws of Kenya.
vii
TABLE OF CASES
C. v. Mary K., 224 Cal. Rptr. 530 (Ct. App. i986)
Davis v. Davis, 842 S.W.2d 588 (Tenn. I992)
Institute for Human Rights and Development in Africa (Banjul) and Open Society Justice
Initiative (New York) on (behalf of children with Nubian background in Kenya) v The
Government of Kenya, Communication No. Com/002/2009 (ACERWC)
JLN and 2 others v Director of Children Services & 4 others (2014) Petition No 78 of 2014, 20
June 2014 (unreported).
Johnson v Calvert, No. X 633190 (Cal. App. Dep't. Super. Ct. Oct. 22, 1990).
Gaskin v United Kingdom, 10454/83 [1989] ECHR 13.
Gordon v Gordon (1903).
Organization for National Empowerment v Principal Registrar of Persons and Others Nairobi
Petition No. 289 of 2012 [2013] eKLR
Re Baby M, 537 A.2d I227 (N.J. i988)
The Ampthill Peerage (1977) AC 457 at 577 HL.
WKN and two others v National Council for Children Services and another, Nairobi children‟s
case no. 205 0f 2014.
viii
LIST OF ABBREVIATIONS
ACRWC- African Charter on the Rights and Welfare of the Child
ACERWC- African Committee of Experts on the Rights and Welfare of the Child
CHR- Committee on Human Rights
CRC- Commission on the Rights of the Child
ECHR- European Convention on Human Rights
ECtHR- European Court of Human Rights
ICCPR- International Covenant on Civil and Political Rights
UNCRC- United Nations Convention on the Rights of the Child
1
CHAPTER ONE
1.0 Introduction
Surrogacy is defined as the practice whereby one woman carries a child for another with the
intention that the child should be handed over after birth.1 Surrogacy can be partial or full. Partial
surrogacy occurs where the surrogate mother provides the egg and the sperm from the intended
father is placed into the surrogate mother‟s reproductive tract, through artificial insemination to
achieve fertilization.2 Full surrogacy on the other hand is where the surrogate mother has no
genetic link with the child. The surrogate mother only gestates the embryo which is usually
created from the gametes of the intended parents.3Surrogacy agreements therefore relate to the
situation where the surrogate mother comes into an agreement with the commissioning parents to
carry a child for them and hand over the child once it is born.
The right to certainty of parentage which is also referred to as the right to know one‟s origin is
defined as the right to know one‟s parentage, that is, biological family and ascendance and one‟s
condition of birth.4 The right to know one‟s origin is considered to be ‛vital‟ to give rise to a
human right.5 All children therefore including children born out of surrogacy agreements have a
right to certainty of their parentage.
1 Stephen M. Cretney et al. Principles of Family law (7
th Ed, 2003).
2 Muthomi Thiankolu, Towards a legal framework on the Assisted Human Reproduction in Kenya; Some thoughts
on the law, technology and social change (2007) Nairobi Kenya. 3 Ibid.
4 Samantha Besson, ‛Enforcing the Child‟s Right to Know Her Origins: Contrasting the Approaches between the
Convention of the Rights of the Child and the European Convention on Human Rights‟ (2007) 2 International
Journal of Law, Policy and the Family 137. 5 See Katherine O‟Donovan, ‛A Right to Know one‟s Parentage?‟ (1988) 2 International Journal of Law, Policy and
the Family 29.
2
This research will be undertaken in the field of family law specifically on surrogacy. It will be
concerned with the right to certainty of parentage for children born out of surrogacy agreements.
It will explore the existing Kenyan laws on the right of a child to certainty of parentage. It will
seek to fill in the gap in Kenyan laws of a child‟s right to certainty of parentage especially in
relation to children born out of surrogacy agreements.
The main arguments for this research is that there exists a gap in Kenyan laws related to a child‟s
right to certainty of parentage especially in regard to children born out of surrogacy agreements.
The research proceeds on the presumption that children born out of surrogacy agreements, just
like other children, have the right to certainty of parentage. It is therefore discriminatory for the
Kenyan laws not to accord these children the right especially in relation to important aspects of
their lives such as registration of birth. It will therefore focus on the need for reform in Kenyan
law in regard to this right.
1.1 Background
Surrogacy agreements are on the rise in Kenya.‛ Surrogacy is not a hypothetical issue any more.
It is real and many Kenyans are resulting to surrogacy as an alternative to being parents
especially those who cannot for medical reason have their own children. ‟6 There exists therefore
a gap in relation to the rights of children born out of such agreements especially the right to
certainty of parentage.
The right to certainty of parentage is provided for by a number of statutes in Kenya. First is the
Constitution which provides that every child has the right to a name and nationality from
6 See justice Majanja‟s obiter in JLN and 2 others v Director of Children Services & 4 others (2014) Petition No 78
of 2014, 20 June 2014 (unreported) para.40.
3
birth.7This is replicated by the Children Act which provides that every child shall have a name
and nationality and where the child is deprived of his identity the government shall provide
appropriate assistance and protection, with a view to establishing identity.8In addition a child has
the right to a family, a right to access health services and the right not to suffer discrimination of
any form arising from their surrogate birth.9
The right to a name is acquired through the issuance of a birth certificate. This is done through
the Births and Deaths Registration Act10
. The Act provides that every person who gives
notification to a birth shall ‛to the best of his knowledge give the prescribed particulars of the
child.‟11
The contents of particulars to be included in the notice of birth relate to the name of the
child, date of birth, sex, type of birth( whether single or twins), nature of birth( alive or dead),
place of birth, name of father, name of mother and to whom the notification is issued.12
After the
notification of birth the registrar of births issues a birth certificate.
The right to certainty of parentage is also found in a number of international instruments. The
International Covenant on Civil and Political Rights13
provides for the right to certainty of
parentage.14
Under article 17 (1) of the Convention, it is provided that no one shall be subjected
to arbitrary or unlawful interference with his privacy , family, home or correspondence, nor to
unlawful attacks on his honour and reputation. Article 17 (2) goes on further to provide that
everyone has the right to the protection of the law against such interference or attacks. This
7The Constitution of Kenya, 2010, art 53.
8The Children Act, Cap 141, s 11.
9 Supra n 6, para.39.
10The Births and Deaths Registration Act, Cap 149.
11 Ibid, s 10.
12 Ibid, schedule.
13International Covenant on Civil and Political Rights, 16 December 1966 (entered into force 23 March 1976).
14 Supra n 5. This right is not expressly provided for but two articles in the convention should be mentioned. First is
in article 17 of the convenient which provides for the right to privacy. The right to certainty of parentage is said to
derive from the right to privacy. (see Detrick S. ‛A Commentary on the United Nation‟s Convention on the Rights of
a Child‟ The Hague.) Secondly article 24 of the convention is also important.
4
article is complemented by article 24 of the aforementioned convention which provides for the
right to birth registration.15
Under article 24 (2), every child shall be registered immediately after
birth and shall have a name. Under article 24 (3) every child has the right to acquire a nationality.
The right to certainty of parentage is also provided under The Convention on The Rights of the
Child.16
Under article 7 (1) of the convention, it is provided that the child shall be registered
immediately after birth and shall have the right from birth to a name, the right to acquire a
nationality and, as far as possible, the right to know and be cared for by his or her parents. 17
Under article 7 (2) of the convention, it is provided that States Parties shall ensure the
implementation of these rights in accordance with their national law and their obligations under
the relevant international instruments in this field, in particular where the child would otherwise
be stateless. The convention further provides for this right under article eight. Under article 8 (1),
States Parties shall undertake to respect the right of the child to preserve his or her identity,
including nationality, name and family relations as recognized by law without unlawful
interference. Under article 8 (2), Where a child is illegally deprived of some or all of the
elements of his or her identity, States Parties shall provide appropriate assistance and protection,
with a view to re-establishing speedily his or her identity.
However despite all these provisions in relation to the right of certainty of parentage the law is
silent on this right for children born out of surrogacy agreements. For instance under the Births
and Deaths Registration Act, the particulars to be registered require the name of the mother to be
15
Ibid. The right to be registered immediately after birth is crucial in many aspects as it allows the child to become
official and is hence a condition for receiving many public benefits. It also enables a child to find out about their
origins later on. Moreover, the right to a name and nationality are essential to the constitution and preservation of a
child‟s identity. 16
The Convention on the Rights of the Child, 20 November 1989 (entered into force 2 September 1990). 17
Supra n 5, this right to know and be cared for by one‟s parents should be interpreted broadly; the term ‛parents‟ is
said to include not only one‟s social or legal parents but also one‟s biological parents or genetic parents together
with one‟s birth parents.
5
registered. In cases of surrogacy there are two mothers; the surrogate mother and the
commissioning mother. The problem then arises as to whom of the two is to be registered in the
notification of birth. The Births and Registration Act defines as ‛ issuing forth of any child from
its mother after the expiration of the twenty-eighth week of pregnancy whether alive or dead.‟18
This therefore implies that the Act considers the mother to be the person who delivers the child.
However this is not the case in surrogacy. Such an issue arose in the petition number 78 of
2014.19
There being no legislation in Kenya the court had a responsibility to give direction on
how such issue is to be handled. This case therefore serves as an eye opener of the gap that exists
in Kenyan laws in relation to a child‟s right to certainty of parentage especially for children born
out of surrogacy agreements. There is therefore the need for reform in Kenyan laws regarding the
right to certainty of parentage so as to cater for children born out of surrogacy agreements.
1.2 Statement of the problem
The research problem has to do with the relationship between surrogacy agreements and a child‟s
right to certainty of parentage. Kenyan laws do not provide for the right to certainty of parentage
to children born out of surrogacy agreements. This therefore raises the need for reform of
Kenyan laws so as to cater for the rights of children born out of surrogacy agreements. In a
question form, this problem would be addressed in the following manner: “To what extent has
the Kenyan policy and legal framework addressed itself to the right to certainty of parentage for
children born out of surrogacy agreements?”
18
Supra n 10, s 2. 19
Supra n 4.The facts of the case were that the 2nd
and 3rd
petitioners entered into a surrogacy agreement with the 1st
petitioner. Following the delivery of the children, an issue arose as to whom between the surrogate mother and the
genetic mother was to be registered as the mother in the notification of birth. The hospital where the birth had taken
place was torn in between whom to register and consulted the director of children to services. The director took the
view that the children were in need of care and protection and as a result his officers took them and placed them in a
children‟s home. The petitioners filed a case in the Children‟s Court to prevent the children from being put up for
adoption.
6
1.3 Objectives
The objectives of this research are;
To identify the rights of a child born out of surrogacy arrangement in relation to the right
to certainty of parentage.
To evaluate current laws in Kenya on the rights of a child to certainty of parentage.
To study experiences and address the challenges faced by children born out of surrogacy
arrangements in relation to their right to certainty of parentage in Kenya.
To explore means or avenues in which Kenyan legal regime can effectively and
sufficiently address the right to certainty of parentage in relation to children born out of
surrogacy agreements.
1.4 Hypothesis
This research is based on the following presumptions.
That the children born out of surrogacy agreements, just like other children, have the
right to certainty of parentage.
That the Kenyan laws on the rights of a child to certainty of parentage do not address this
right in respect of children born out of surrogacy arrangements.
That the exclusion of children born out of surrogacy agreements from the scope of this
right adversely affects their enjoyment of other rights related to this right.
That the exclusion of children born out of surrogacy arrangements from this right
amounts to discrimination and poses a challenge to such children in relation to important
aspects of their lives such as birth registration.
7
1.5 Significance of the study
This study will be of significant use to various people both in Kenya and internationally. First,
parties to a surrogacy agreement will find this study to be of significant use to them. The
recommendations of this study will set clear the party to be registered between the
commissioning mother and the surrogate mother. This will therefore lead to the end of disputes
such as the one witnessed in petition number 78 of 2014, 20
as parties will be certain of whose
information is to be included in the notification of birth.
Secondly, medical practitioners in hospitals where surrogate births take place will also find this
study important. Medical practitioners, as seen above, may find themselves in a dilemma on
whom to register in the notification of birth in cases of surrogate births. The actions of these
practitioners may bring consequences especially due to lack of laws in the Kenyan regime
regulating the right to parentage of children born out of surrogacy agreements as was
experienced in the aforementioned petition. The findings of this study will be of use to them as
they will set clear the party to be registered hence such consequences will be avoided.
Thirdly, children born out of surrogacy agreements will find this study useful to them. The right
to certainty of parentage is a right that should be enjoyed by all children regardless of the way in
which they are born, as will be proven by this study. Children born out of surrogacy agreements
will be informed by this study that they are entitled to enjoy the right of certainty of parentage
like any other child. This knowledge will enable them to advocate for their right to certainty of
parentage in cases where they may find themselves being discriminated on the same.
20
Supra n 6.
8
Litigators will also find this study useful to them. They will be able to use the findings of this
study to build and advance their cases. They will be able to represent their clients effectively. In
addition to the litigators policy makers will also find this study to be important. From the
findings of this research they will be able to recognize the gap existing in the Kenyan laws in
relation to the right of a child to certainty of parentage. They will therefore come up with laws
that incorporate the right of children born out of surrogacy agreements in the current laws hence
filling the existing gap.
Lastly researchers, both local and international will also find this study to be of importance. This
study will spur their minds on the right to certainty of parentage for children born out of
surrogacy agreements. It will inform them of the need for laws to cover for such children. They
can also use the findings of this research for their referencing.
1.6 Scope
The subject matter for this research will be the right of certainty of parentage in relation to
children born out of surrogacy agreements. It will look at the gaps existing in relation to this
right in the Kenyan laws and suggest the reforms that need to be incorporated in the Kenyan
legal regime in relation to the same. The geographical area of this study will be unlimited. In
addition to the Kenyan legal regime, this research will look at other regimes that have
incorporated surrogacy laws in their legal regimes such as the United Kingdom and the United
States of America.
1.7 Methodology
This study will be a qualitative research. It will be a case study of the legal regime in Kenya and
will focus on the laws related to the right of a child to certainty of parentage especially for
9
children born out surrogacy agreements. Secondary methods of data collection will be used to
carry out this research. This is because the geographical area intended to be covered is vast hence
delimitations may occur if primary methods of data collection are undertaken in terms of
financial aspects and time.
1.8 Literature review
A lot has been written regarding surrogacy agreements and the need for legislative framework in
Kenya regulating such arrangements. This study will exploit various materials written on this
topic.
One of the materials that this research will rely on is a Kenyan article by Muthomi Thiankolu.21
In this article the writer looks at the legal framework on the Assisted Human Reproduction in
Kenya. He looks at surrogacy as one form of Assisted Human Reproduction. He concurs with the
hypothesis of this research that there are no laws regulating surrogacy agreements in Kenya. He
also states that there is no Kenyan law prohibiting surrogacy laws either. He recognizes the need
for the drafters of a legal framework in Kenya of Assisted human reproduction in Kenya to
address several issues in regard to surrogacy. For instance it is his view that these drafters should
define who the legal mother to the child is, whether the genetic mother or the surrogate mother.
He states that answering this question would be important as it touches on many aspects of
children law including parental rights and responsibilities. He is also of the view that Kenyan
legal drafters must address their minds to the question of enforceability of surrogacy agreements.
This is so as to prevent surrogacy from being commercially exploited particularly by wealthy
women who may wish to avoid the physical, social, psychological or other drawbacks of bearing
21
Supra n 2.
10
a child themselves. This research will concur with his findings especially on the need for Kenyan
law drafters to define who the legal mother is in order to help solve many issues relating to
aspects of children law including parental rights and responsibility. In addition to this, this
research will delve into the need for defining who the legal mother is so as to enable children
born out of surrogacy agreements to enjoy their right of certainty to parentage.
This research will also rely on an article by Marcelo de Alcantara.22
According to him it would
be a contradiction for countries that neither prohibit nor allow surrogacy laws to allow legal
maternity to be acquired through a subsequent process of adoption. He argues that in such
countries, courts should consider the best interests of the child and recognize the intended couple
as the legal parents of a child born out of surrogacy agreements. He reviews Japanese laws in
relation to surrogacy agreements and who should be registered as the legal parents. He puts in
focus a case that involved registration of children born out a surrogacy agreement in Japan.23
The
case involved a renowned Japanese journalist by the name Aki Mukai who was married to a
professional wrestler named Nobuhiko Takada. She could not give birth to her own child after
suffering from cervical cancer. She entered into a surrogacy agreement with a foreign surrogate
from the state of Nevada. The surrogate gave birth to twins and Mukai and Takada were
recognized as the legal parents by a court in Nevada. However on return to Japan and upon the
request for registration of birth certificates by Mukai of the twins the high court refused to grant
the same. The court stated that the twins could only obtain Japanese citizenship if the
commissioning mother submitted an application naming the American surrogate as the mother
22
Marcelo de Alcantara, Surrogacy in Japan: Legal Implications for Parentage and Citizenship, Family Court
Review,48 23
See, Decision concerning a judicial decision rendered by a foreign court acknowledging the establishment of a
natural parent-child relationship between persons who are not eligible for such relationship under the Civil Code,
and public policy as prescribed in Article 118, item 3 of the Code of Civil Procedure, available at
http://www.courts.go.jp/english/judgments/text/2007.03.23-2006.-Kyo-.No..47.html last accessed on 15th December
2014.
11
and Takada as the father. Mukai could only obtain legal maternity through adoption. The case
went all the way to the Supreme Court of Japan. The Supreme Court refused to grant Mukai‟s
wishes. It relied on the Japan Civil Code which is founded on natural reproduction in which the
woman who gives birth to a child is genetically related to the child. As such the court recognized
the mother who gave forth to the child as the legal mother. The court was however of the opinion
that a uniform way of establishing parent- child relationship should be preserved and it called for
uniform legislative measures stating that the problems involving surrogacy agreements would
likely increase in the future. This article brings the hypothesis of this research into view. The
writer argues that the court erred by refusing to grant Mukai the legal maternity and that it
contradicted itself by denying Mukai legal maternity while at the same time allowing her to
attain legal maternity by means of adoption. In addition the writer is also of the opinion that
prohibition of surrogacy will lead to the problem of ‛ ghost children‟ as was experienced in
France.24
This research will rely on this article in emphasizing the need for surrogacy laws in
Kenya especially laws on the right to certainty of parentage for children born out of such
agreements. The article will also be of important in stressing the effects that may arise out of
prohibition of surrogacy agreements such as the problem of ‛ ghost children‟ which is being
experienced in France. The same could arise in Kenya if the gap existing in the laws relating to
the right to certainty of parentage especially to children born out of surrogacy agreements is not
filled. As proven earlier surrogacy agreements are on the rise in Kenyan society and with them
raise the problem of registration of births of children born out of such agreements. As a result
24
See Charlotte Rotman, Gestation pour autrui: les enfants fantômes de la République, LIBÉRATION, May 20,
2009, available at http://www.liberation.fr/societe/0101568271-gestation-pour-autrui-les-enfants-fantomes-de-la-
republique . The problem of ‛ghost children‟ is currently a problem in France where many children born out of
surrogacy agreements abroad have no documentation or legal status, arising from the fact that France prohibits
surrogacy by law and the establishment of a child- mother relationship between the child and the French intended
parent is vehemently denied by the French courts.
12
many parents may refuse or ignore the need to register children born out of such agreements and
as such lead to the ‛ghost children‟ problem.
This research will also rely on an article by Samantha Besson.25
Though this article is more of the
contrast on the enforcement of a child‟s right to know her origins between the Convention on the
Rights of a Child and the European Convention on Human Rights, it delves on the right of a
child to certainty of parentage. This article incorporates this right not only for children born out
of natural reproduction, but also for children whose biological parentage has been split from their
social or even birth parentage. These children include abandoned or displaced children, adopted
children, children born out of surrogacy agreements, which she refers to as children ‛ conceived
by artificial insemination.‟ The writer emphasizes on the right of a child to know her origins as
paramount but insists that the right should be balanced with the right of other stakeholders such
as the mother‟s right to autonomy and privacy, the father‟s right to autonomy and privacy and
the rights of the adoptive parents or the rights of the gamete donors. The writer also brings into
focus the duty bearers of the right of a child to certainty of parentage. She places the state at the
center stage of duty bearers. According to her, the state is the main duty-bearer of the child‟s
right to know their origins and it should refrain from interfering with the child‟s right to know.
The state also has the duty to arrange for the registration of children at birth and the duty of the
collection and disclosure of relevant data pertaining to a person‟s identity. This research will find
this article to be of use to it especially in discussing a child‟s right to certainty of parentage and
more so for children born out of surrogacy agreements. It will also be of use in emphasizing the
duty of a state in ensuring that all children including children born out of surrogacy agreements
enjoy their right to certainty of parentage without any interference. This will therefore emphasize
25
Supra n 4.
13
the need for our lawmakers to fill in the gap that exists in our laws on the right to certainty of
parentage in relation to children born out of surrogacy agreements.
This research will also rely on an article by Anne Goodwin.26
The writer concurs with the
hypothesis of this research that surrogacy continues to be controversial and has shattered the
traditional meanings of the word ‛mother‟ and ‛father‟. This has therefore prompted the
discussion on the parental rights of parties to such arrangements. The article goes on further to
discuss reproductive techniques available to infertile couples; it also discusses the determination
of parentage and parental rights under common law and also examines and critiques the three
approaches to the determination of parental rights. The three approaches to determination of
parental rights according to the writer include; granting of parental rights to the genetic parents,
basing the parental rights on the parties‟ intentions when entering into noncoital arrangements
and granting the legal rights to the gestational mother. The writer concurs that under common
law, the woman who gives birth is presumed to be the mother and as such many states continue
to operate under the irrebuttable presumption in favour of the gestational mother. The writer goes
on further to discuss the different legislative measures adopted by different states in the
determination of maternal rights among them the state of Virginia and Hampshire. The writer is
however in favour of granting the parental rights to the gestational mother. She argues that
granting legal parentage based on genetic ties or based on the intention of the parties to the
surrogacy agreement, subtracts the pregnancy from consideration and mandates that the rights of
the genetic or intended mother outweigh those of the gestational mother. She goes on to argue
that once parentage laws strip the pregnancy of any legal significance in the determination of
maternity, the market will reduce the uniquely female capacity to gestate a fetus to a paid
26
Anne Goodwin, ‛ Determination of Legal Parentage in Egg Donation, Embryo Transplantation and Gestational
Surrogacy Arrangements‟ (1992) 26 Family Law Quarterly 275.
14
service. She is of the view that granting of the parental rights to the gestational mother would
empower women by granting them full control over their bodies and recognizing their right to
continue or terminate the social relationship with the fetus. This research will find this article of
use to it as it gives insight on the various approaches used in determination of parental rights in
cases of surrogacy agreements. It will inform our law makers on the best approach to use while
drafting laws to assist in the gap filling of our Kenyan laws in relation to the right to certainty of
parentage for children born out of surrogacy agreements. This research will however differ with
the writer‟s opinion in favour of granting parental rights to the gestational mother. This research
will tend to favour the granting of the parental rights based on the intentions of the intended
couples at the time of entering into the contract.
Finally, this research will also rely on an article by Marsha Garrison.27
The writer in this in
article proposes a new model for analyzing legal issues arising from technological conception
and uses it to develop rules to govern the legal parentage of technologically conceived children.
The writer shows that most writers on technological conception use a ‛top- down‟ methodology
which derives rules for specific cases from an abstract global principle such as reproductive
autonomy, freedom of contract or anti-commodification. The writer critiques these approaches
showing that they offer little concrete guidance in many cases. She proposes instead an
interpretive methodology which by relying heavily on current rules would assimilate
technological conception within the broader law of parental responsibility. The writer concurs
that the then laws in the United States of America offered little guidance on most of the issues
that arose from technological conception. She argues that the legal parentage of children born out
of artificial insemination or in vitro fertilization (methods used for fertilization in surrogacy
27
Marsha Garrison, ‛ Law Making for Baby Making: An Interpretive Approach to the Determination of Legal
Parentage‟ (2000) 113 Harvard Law Review 835.
15
arrangements) is often unclear and the law regulating their use is nonexistent. She sites various
advantages of her interpretive approach over the top- down approach. These advantages include
necessity whereby without an interpretive methodology there is no obvious basis for choosing
among competing global principles and determining what roles each should play in designing
regulations. Another advantage of the interpretive approach is that it is consistent with the widely
held view that the expression of contemporary beliefs is one of family law‟s most important
functions and in addition its use promotes coherent rules reliant on consistent rather than
discordant values. Another advantage of the interpretive approach is that of the
comprehensiveness in that it can be applied to the full range of legal issues associated with
technological conception as compared to other approaches which can only be applied to small
number of cases. The interpretive approach also enhances the possibility of meaningful public
debate and the development of legislative consensus. This article will be of use to this research
as it will give insight on the various approaches adopted when determining parental rights. This
will be of use to our law makers when coming up with laws to assist in the gap filling in Kenyan
laws in relation to a child‟s right to certainty of parentage for children born out of surrogacy
agreements. In addition to the article this research will extend the geographical scope as it will
look at the Kenyan case as compared to the article which focused on the case of the United States
of America.
16
CHAPTER TWO
2. An overview of the right to certainty of parentage and surrogacy agreements.
‛The birth of a child through surrogacy can bring great joy as well as complicated issues, many
of which are considered uncharted territory, maybe even a mine field. Global concerns
surrounding surrogacy may include but not limited to psychosocial, physical, economic and legal
situations. ‟28
This is indeed true and it further emphasizes the need to have regulation governing surrogacy
and redefining the rights of children born thereof. As the cases of surrogacy agreements increase
on a daily basis many of the legal situations remain unsolved. This could be mainly because the
society is yet to recognize surrogacy as a moral issue. There are also many issues tied up with
surrogacy which still remain unanswered. These issues revolve around who should be considered
the parents of the child, the human commoditization issue and the balance between the rights of
the child born from surrogacy with the rights of the parties involved such as the commissioning
parents, donors, surrogate mother and so on.
Despite all these, the fact is that surrogacy is being practiced even in countries where it is
outlawed. This therefore amounts to the reasoning that simply ignoring the surrogacy issues will
lead to more problems as compared to benefits. It is therefore prudent for countries, especially
Kenya which is our case study, to come up with a legal framework governing surrogacy. More
importantly it is prudent for the country to have in mind the rights of children being born out of
surrogacy especially on the right to certainty of parentage, which lies at the heart of surrogacy, so
that these children do not end up being discriminated.
28
T. M Erickson, Fertility law. (2007). P 56.
17
This chapter will focus on surrogacy agreements, their origin and regulation. It will look at the
various issues revolving around surrogacy. It will further look at what entails the right to
certainty of parentage. It will try to construe the origin of this right, its composition and the
importance of these rights not only to children but even to adults. Most importantly it will
evaluate this right in relation to children born out of surrogacy agreements and then address
challenges that are being faced in the implementation of this right for children born out of
surrogacy agreements. The chapter will end with a justification for this right especially in
relation to children born out of surrogacy agreements.
2.1 An overview of surrogacy.
Surrogacy is the practice whereby one woman carries a child for another with the intention that
the child should be handed over after birth.29
Surrogacy enables those women who are unable to
carry a child, or those unable to carry a pregnancy to full term, to overcome childlessness. 30
Surrogacy may be either partial surrogacy, where the surrogate mother provides the egg and the
sperm of the father is placed in the reproductive tract of the surrogate mother, through artificial
insemination to achieve fertilization. 31
Surrogacy may also be full, where the surrogate mother
has no genetic link with the child; she only gestates the embryo which is created from the
gametes of the intended parents.32
29
Dewar J R. , Fathers in law? The case of AID, in Birth Rights, Law and Ethics at the Beginning of Life. Lee and
D. Morgan (eds) London (1989). 30
See ‛ Considering Surrogacy‟ available at http://www.bma.org.uk/ap.nsf/Content/Consideringsurrogacy last
accessed on 10th March2015. 31
Muthomi Thiankolu, Towards a legal framework on the Assisted Human Reproduction in Kenya; Some thoughts
on the law, technology and social change (2007) Nairobi Kenya. 32
Ibid.
18
It is unclear to what extent surrogacy has been practiced in the past. However it is undisputable
that the practice is common among the Asian Communities.33
In the United States, commercial
surrogacy agencies started to operate in the 1980s.34
In Europe the agencies looked as if they
would develop in the mid-1980s. This led to the establishment of the Warnock committee in
1982 in Britain. The committee was to examine the social, ethical and legal implications of the
development of in the field of assisted reproduction. One of the things that the committee was to
look into included surrogacy.35
There exists a variation of rules and regulation governing surrogacy around the world. Some
countries prefer favorable laws towards the reproductive technologies enabling surrogacy while
some are highly restrictive or unclear. 36
In the United Kingdom, the regulation does not allow for
financial payment or commercial surrogacy. The only form of surrogacy that is allowed to be
practiced in the United Kingdom is altruistic surrogacy.37
Other countries that have adopted
altruistic surrogacy include Israel and Mexico. Altruistic surrogacy has been criticized in that it
leaves it leaves many individuals and couples without options in regard to their intentions to
become parents and have a family, causing them to look elsewhere. This therefore creates the
foundation among women to offer and provide surrogacy for those intended parents seeking a
surrogate outside their state or even outside their country borders. 38
Other countries such as
Germany and Italy have completely banned surrogacy whereas other countries such as the
33
See Judith Masson et al, Principles of Family Law, (8th
ed, 2008) p. 884. 34
D. Morgan, ‛ Surrogacy- giving it an understood name‟ (1985). J. S. W. L 216 P. 227. 35
See, Report of the Committee of Inquiry into Human Fertilization and Embryology (Warnock Report) (1984). 36
Surrogacy in America. Cambridge, MA: Council for Reproductive Genetics 37
Supra n 28. 38
Ali, L., and Kelley, R. ‛The curious lives of surrogates.‟ Newsweek, 2008, April 7 , 45–51
19
United States, Ukraine and India have very few restrictions on surrogacy, and they have also
accepted commercial surrogacy.39
The varied regulations in relation to surrogacy arise due to arguments for and against surrogacy.
According to the Warnock Report, 40
the arguments for surrogacy included, first, surrogacy
enabled infertile couples to get their own children. It was stated thus,
If infertility is a condition which should, where possible, be remedied it is argued that
surrogacy must not be ruled out, since it offers to some couples their only chance of
having a child genetically related to one of them or both of them. In particular, it may
well be the only way that the husband of an infertile woman can have a child. Moreover,
the bearing of a child for another can be seen, not as an undertaking that trivializes or
commercializes pregnancy, but, on the contrary, as a deliberate and thoughtful act of
generosity on the part of one woman to another. If there are risks attached to the
pregnancy then the generosity is all the greater.41
Another reason advanced in the report for surrogacy was that where agreements between the
surrogate mother and the commissioning parents are voluntary, then, there can be no question of
exploitation, nor does the fact that surrogates will be paid for their pregnancy of itself entail
exploitation of either party to the agreement. It was therefore argued that there was no reason to
suppose that the surrogate mother would enter into the agreement lightly. The report stated that
the surrogate mother had a right to enter into such agreements if they so wished, just as they have
a right to use their bodies in other ways according to their own decision. 42
The report advanced another reason for surrogacy by arguing that those who felt that surrogacy
led to the intrusion into marriage needed not to seek the treatment, but they should not seek to
prevent others from having access to it. The report also argued that on the question of bonding,
39
Gamble, N. ‛Crossing the line: The legal and ethical problems of foreign surrogacy.‟ (2009). Reproductive Bio
Medicine online, 19(2), 151–15. 40
Supra n 35. 41
Ibid Para 8. 13. 42
Ibid, Para. 8. 14.
20
very little was actually known about the extent to which bonding occurs when the child is in the
uterus and therefore as such no great claims should be made in that respect. In any case the
breaking of such bond, even if less than ideal, is not held to be an overriding argument in cases
where a child is placed for adoption.43
The same report also came up with arguments against surrogacy. One of the reasons advanced
against surrogacy was that the introduction of a third party into the process of procreation which
should be confined to the loving partnership between two people is an attack on the value of the
marital relationship. It was further argued that the intrusion was worse than in the case of
artificial insemination since in surrogacy, the contribution of the surrogate mother is greater,
more intimate and personal, than the contribution of a semen donor. It was also argued that the
practice was inconsistent with human dignity, that a woman should use her uterus for financial
profit and treat it as an incubator for someone else‟s child. That the objection was even more
strengthened where the woman entered into an agreement to conceive a child, with the sole
purpose of handing the child over to the commissioning couple after birth. 44
Another reason that was advanced in the report against surrogacy was that it distorted the
relationship between the mother and the child. The reason behind this was that in a surrogacy
arrangement, a woman deliberately allows herself to become pregnant with the intention of
giving up the child she will give birth to, and that that was a wrong way to approach pregnancy.
It was also argued that surrogacy was potentially damaging to the child, whose bonds with the
surrogate mother, regardless of genetic connections, are held to be strong, and whose welfare
must be considered to be of paramount importance. It was further argued that a surrogacy
43
Ibid, paras. 8. 15 and 8. 16. 44
Ibid, Para. 8. 10.
21
agreement was degrading to the child who was to be the outcome of it, since for all practical
purposes; the child would have been bought for money. 45
Another argument against surrogacy was that since there are some risks attached to pregnancy
then no woman ought to be asked to undertake pregnancy for another in order to earn money. It
was also argued in addition that no woman should be forced by illegal sanctions to part with a
child to whom she has recently given birth, against her will.46
Despite all these views for and against surrogacy the bottom line is that surrogacy is on the rise
around the world, even in countries where it is prohibited. In the United States, for instance, it is
estimated that approximately 1000 surrogates give birth annually, although statistical data do not
specifically denote whether the births are gestational or traditional surrogate births.47
Also
according to another report, there was an 8. 2 percent increase of in vitro fertilization cycles and
patients, a 10. 2 per cent increase in surrogacy births and a 10. 3 per cent increase in surrogacy
babies around the world. 48
In Kenya also, surrogacy agreements are on the rise as was confirmed
by Justice Majanja in the ground breaking case of JLN and two others v the director of children
services.49
This therefore means that many children are being born out of surrogacy agreements
and this therefore enhances the need to address the rights of such children such as their right to
certainty of parentage.
45
Ibid Para 8. 11. 46
Ibid Para 8. 12. 47
See, Nosheen, H., and Schellmann, H. ‛The most wanted surrogates in the world.‟ (2010) Glamour, 226–236 48
See, Human Fertilization and Embryology Authority (HFEA). (2008). London. Available at
http://www.hfea.gov.uk/104.html. Last accessed on 11th March 2015. 49
JLN and 2 others v Director of Children Services & 4 others (2014) Petition No 78 of 2014, 20 June 2014
(unreported) para.40.
22
2.2 An overview of the right to certainty of parentage.
2.2.1 Introduction: who is a parent?
As Rebecca Probert 50
puts it, words describing family relationships such as ‛ aunt‟ or ‛brother‟
are usually used in different senses by different people. Such words are usually used to connote a
social reality rather than a biological fact. Even in our society today it is common for someone to
look up at their guardians as ‛mother‟ or ‛father.‟ Children often refer to their mothers‟ partners
as ‛dad‟ and their fathers‟ partners as ‛mom‟. This is despite the fact that these partners have no
biological linkage to the children. For a long time the law has not concerned itself with these
ambiguities and differences of linguistic usage. For instance under common law parentage
concerned genetics, that is the man or woman who provided the genetic material that resulted in
conception and birth were the child‟s parents. This was due to the fact that at the time, there
were no reliable methods to identify the child‟s genetic parents. Motherhood for instance would
be proved demonstrably by parturition, whereby there had to be somebody who had seen the
mother giving birth. 51
Paternity on the other hand was difficult to prove and the only way out was to rely on
presumptions. Some of these presumptions included; that the husband of a married woman was
the father of any child born to her during the marriage. This presumption could only be rebutted
where there was evidence beyond reasonable doubt that the husband could not have been the
father. 52
Another presumption was that the man named on the birth certificate was the father.
These presumptions are however irrelevant in today‟s era as developments in blood testing and
50
Rebecca Probert, Cretney’s Family Law (6th Ed, 2006). P. 203. 51
See The Ampthill Peerage (1977) AC 457 at 577 HL. 52
See, Gordon v Gordon (1903).P.141 at 142.
23
DNA sampling has made parenthood as something that can be established positively on the
provision of necessary tissue samples.
The common law perception that the mother of a child is the one who gives birth is outdated.
This is also as a result in the development of reproductive technology which has enabled women
to carry pregnancies in which the child has no genetic relation to them at all. The question that
remains in such cases then is who is to be regarded as the mother of the child? The law has to
therefore address itself with this issue so as to avoid conflicts as was experienced in the JLN
Case.53
2.2.2 Historical development of the right to certainty of parentage.
The right to certainty of parentage also referred to as the right to know one‟s origin entails the
right to know ones biological family and ascendance, and ones conditions of birth. It protects
each individual‟s right to identify where they come from.54
This interest to know ones origin is
considered to be vital or sufficiently fundamental to give rise to a human right. 55
The right is
thus deemed to be an important element in one‟s psychological balance and as Katherine
O‟Donovan puts it ‛everyone has a right to truth and hence to truth about one‟s origins.‟56
The
need to know ones origin may also be tied up with other interests such as inheritance and the
need to establish one‟s health status. 57
Denying this right therefore to children born out of
53
Supra n 49. 54
Samantha Besson, ‛Enforcing the Child‟s Right to Know Her Origins: Contrasting the Approaches between the
Convention of the Rights of the Child and the European Convention on Human Rights‟ (2007) 2 International
Journal of Law, Policy and the Family 137 55
Freeman , M. „ The new birth right?: Identity and the child of the reproductive revolution ‟ , ( 1996 )
4 International Journal of Children’s Rights, 3, 273 – 97. 56
O‟Donovan, K. „A right to know one‟s genetic parentage? ‟ , ( 1988 ) International Journal of Law
Policy and the Family, 2 , 27 – 45 57
Ibid.
24
surrogacy arrangements amounts to discrimination as compared to children whose social and
genetic parents match.
The right to certainty of parentage can be traced back to the early 1950s. This was through the
incorporation of the right into the European Convention of Human Rights. Although the
convention does not recognize this right expressly one article in the convention seems to cover
this right albeit indirectly. Article 8 of the convention,58
provides that every person has the right
to respect for his private and family life, his home and his correspondence. The article further
provides in sub- article 2 that there shall be no interference by a public authority with this right
except as is in accordance with the law and is necessary in a democratic society in the interests of
national security, public safety or the economic wellbeing of the country, for the prevention of
disorder or crime, for the protection of health or morals, or for the protection of the rights and
freedoms of others. These provisions have been interpreted by the European Court of Human
Rights to encapsulate the right to know ones origins. 59
This right was also later recognized through the International Covenant on Civil and Political
rights, (ICCPR) of 1966. Just like in the preceding covenant this right was also not recognized
directly but it was recognized indirectly through the provisions of article 17 and 24 of the
covenant.60
The right to know one‟s origin is said to deprive from the right to privacy under
article 17.61
Article 17 of the Convention provides that no one shall be subjected to arbitrary or
unlawful interference with his privacy, family, home or correspondence, or to unlawful attacks
on his honour and reputation. The article further provides that everyone has the right to the
58
The European Convention on Human Rights, (1950). Art. 8. 59
Gaskin v United Kingdom, 10454/83 [1989] ECHR 13. In that case it was held that the right provided for under
article 8 of the ECHR, protected the right of an adult who had as a child been placed under care and who had
remained under care until adulthood to consult his personal life. 60
See, International Covenant on Civil and Political Rights, (1966), art 17 and 24. 61
Supra n 54.
25
protection of the law against such interference or attacks. Article 24 of the covenant provides for
the right to registration after birth. It provides that, every child shall be registered immediately
after birth and shall have a name. Subsection three of the article provides further that every child
has the right to acquire a nationality. According to Nowak,62
the right to registration immediately
after birth is crucial in many aspects as it allows the child to become official and is hence a
condition for receiving many benefits. It also enables a child to find about her origins later on.
The right to a name and nationality is also essential to the constitution and preservation of a
child‟s identity.
The right to certainty of parentage has however been recently identified explicitly in the
Convention of the Rights of the Child. It grants the right to both adults and children. The Act
provides that the child shall be registered immediately after birth and shall have the right from
birth to a name, the right to acquire a nationality and, as far as possible the right to know and be
cared for by his or her parents. The Act further provides that, state parties shall ensure the
implementation of these rights in accordance with their national law and their obligation under
the relevant international instruments in this field, in particular, where the child would otherwise
be stateless. 63
These provisions restate the previous rights in the previous covenants, that is, the
rights to a name and nationality. However, in addition to these rights this article contains
explicitly the right to know and be cared for by one‟s parents. Article 8 of the covenant64
provides for the right to preserve one‟s identity. It states that, state parties to undertake to respect
the right of the child to preserve his or her identity, including nationality, name and family
relation as recognized by law without unlawful interference. It further provides that where a
62
Nowak , M. ( 2005 ) UN Covenant on Civil and Political Rights: CCPR Commentary, 2nd ed
Kehl/Strasbourg/Arlington : N.P. Engel 63
See, The Convention on the Rights of the Child, (1989). Art 7. 64
Ibid. art. 8
26
child is illegally deprived of some or all of the elements of his or her identity, state parties shall
provide appropriate assistance and protection, with a view to re-establishing speedily his or her
identity.
In the Kenyan context this right has not been provided for explicitly either. This right, as will be
discussed in detail in chapter three, is found in a number of Kenyan laws. First the right to
certainty of parentage in the Kenyan context is provided for under the constitution65
. Article 45
of the Constitution provides that the family is the natural and fundamental unit of society and the
necessary basis for social order, and shall enjoy the recognition and protection of the state. In
cases of surrogacy therefore the state is under an obligation to ensure that a child born out of
such an arrangement belongs to a family. The right is also protected under article 57 of the
Constitution which provides that matters concerning children are to be decided in accordance
with the best interest of the child. The constitution also provides under article 58 which provides
that every child has a right to a nationality and a name. The right is also recognized indirectly in
a number of statutes which include the Children‟s Act and the Registration of Births and Deaths
Act.
2.2.3 The scope of the right to certainty of parentage.
The right to certainty of parentage as seen earlier, is accorded to both children and adults. In the
case of Gaskin v United Kingdom66
it was held that the right to know one‟s origins also extended
to the protection of an adult who had been placed as a child under care and who remained under
that care until adulthood to consult his personal life. My concern however in respect to this right
focuses on the right in respect to children born out of surrogacy agreements. The primary
65
The Constitution of Kenya. (2010). 66
Supra n 59.
27
question here is when or at what age should a child be accorded the right to know? In European
countries this right is accorded to children once they attain the age of eighteen years, while in
other states immediate access to this right is provided. 67
In respect to this research, this right
should be accorded to a child at the earliest time possible so as to avoid situations as experienced
in the JLN case.68
The main duty bearer of this right is the state. This is because, according to Samantha Besson,
69the state is the one which has the means and hence the duty to arrange for registration at birth
and for the collection and disclosure of all relevant data pertaining to a person‟s identity. The
state also has the obligation to impose legal duties under its national laws on individuals like the
mother to identify the father or to provide her own identification. The state is thus required to
primarily refrain from interfering with the right of the child to know. The right to certainty of
parentage can therefore be termed as a negative right in that the state refrains from interfering
with these rights. The right may also incorporate a positive right in that the state is required to
ensure the registration of a child after birth. 70
In the Kenyan context the scope of the right is in relation to children. The various provisions in
the Constitution are in relation to children.71
The statutes which also provide for this right in the
Kenyan context are in relation to children. For instance the Children‟s Act relates to children.
The Births and Deaths Registration Act may apply for both children and adults but the birth
registration is usually done in respect to children who are born. The duty bearers of this right in
the Kenyan context include the State but other stakeholders may also be responsible in enforcing
67
Van Bueren, G. The International Law on the Rights of the Child, (1998) Dordrecht: M. Nijhoff. 68
Supra n 49. 69
Supra n 54. 70
Supra n 63. 71
Supra n 65 arts. 45,53 and 57.
28
the right. For instance under the Births and Deaths Registration Act, the hospitals where the
births take place are mandated with the obligation of issuing a birth notification which is a
prerequisite for being issued with a birth certificate.72
Individuals may also be duty bearers of
this in the Kenyan context. For instance in the Births and Deaths Registration Act the mother is
supposed to furnish the hospital in which she gives birth with her details and those of the father
of the child.
2.2.4 Enforcement of the right to certainty of parentage.
The enforcement of the right to certainty of parentage raises more issues in respect to the right.
Enforcement of the right for instance gives rise to conflict of interest between the rights of the
individuals involved. For instance, in the case of surrogacy, there arises a conflict of interest
between the rights of the child, those of the surrogate mother and those of the commissioning
parents. This should not however serve as an exception to the enforcement of the right to
certainty of parentage. It is for this reason that Samantha proposes a concrete balancing of
interests so as to resolve those various conflicts of interests and rights.73
Internationally, there are bodies charged with the obligation to ensure that the right to certainty
of parentage is enforced. However, enforcement of this right is more of a national obligation as
state parties are the ones responsible for ensuring the provisions of the conventions are met.
Some of the international bodies charged with the obligation to enforce this right include the
United Nations Committee on the Rights of the Child, which is responsible for monitoring the
enforcement of the Convention on the Rights of the Child and the United Nation Committee on
72
See, The Births and Deaths Registration Act, Cap 149. 73
Supra n 54.
29
Human Rights which is responsible for monitoring the enforcement of the International
Convention on Civil and Political rights.
2.3 Justification for the right to certainty of parentage for children born out of surrogacy
agreements.
‛…. A child born out of surrogacy agreements is no different from any other child… likewise,
the child, (who was born out of a surrogacy agreement) is entitled to the identity of his or her
genetic parent and in principle, and the registration of the genetic parents as opposed to the
surrogate mother must be permitted.‟74
It is indeed true that a child born out of surrogacy agreement is no different from any other child.
As such the child should be accorded equal rights as accorded any other child. Exclusion of this
right for children born out of surrogacy agreement amount to discrimination and should therefore
not be allowed. The wording of the statutes providing this right is explicit in inclusion of all
children. For instance under the Convention on the Rights of the Child the wording used is
‛child‟. It does not specify the manner in which the child is brought forth. This right should
therefore be accorded to all children whether they were born normally, through artificial
insemination, adoption or through surrogacy agreements. The wording of the Births and Deaths
Registration Act in defining a mother as the woman who issues forth a child after the expiration
of twenty eight weeks limits the right of registration of birth to children born by surrogate
mothers especially in cases where they have no genetic relations at all with the surrogate
mothers.
74
Supra n 49, As per Justice Majanja.
30
The other reason for the justification of this right for children born out surrogacy agreements is
the fact that babies born out of such agreements is on the rise. This is the case even where there
are no regulation for surrogacy and even where surrogacy is not allowed. As seen earlier there is
a 10. 2 percent increase in the number of babies born out of surrogacy around the world.75
Refusal of granting this right to such children will lead to more problems than solutions. Such
challenges are already being experienced in countries such as France where there has been an
influx in the number of ‛ ghost children.‟76
The problem arises where surrogacy is prohibited and
as such women, who cannot get children of their own move to countries where the same is
allowed, get children through surrogacy and return to their countries. As seen earlier, such
women will prefer not to register such children due to the hurdles faced in making them the legal
parents77
This in turn denies such children important aspects of their lives. For instance, it denies
these children the right to be issued with a birth certificate which could in return affect crucial
aspects of their lives such as education, where such documents are necessary.
Another reason why this right should be accorded to children born out of surrogacy agreements
is that this would be in the best interests of the child. According to Rebecca Bennett, surrogacy
should be allowed because, unless the child‟s condition is likely to be so bad that he or she
would not have a worthwhile life, a life worth living, then it will always be in that child‟s
interests to be brought into being, and we should enable the creation of this life. [. . .] It is, after
75
Supra n 48. 76
See Charlotte Rotman, Gestation pour autrui: les enfants fantômes de la République, LIBÉRATION, May 20,
2009, available at http://www.liberation.fr/societe/0101568271-gestation-pour-autrui-les-enfants-fantomes-de-la-
republique . The problem of ‛ghost children‟ is currently a problem in France where many children born out of
surrogacy agreements abroad have no documentation or legal status, arising from the fact that France prohibits
surrogacy by law and the establishment of a child- mother relationship between the child and the French intended
parent is vehemently denied by the French courts. 77
Ibid.
31
all, that child‟s only chance of existence.‟78
This right has been denied to children born out
surrogacy agreements since surrogacy still remains prohibited in most countries. This prohibition
however does not prevent the arrangements from taking place. As such countries, including
Kenya should recognize this and come up with a framework governing surrogacy especially in
relation to this right. Giving the child to the surrogate mother would also work against the best
interests of the child as the surrogate, in entering in the surrogacy agreement always knows that
she will give up the child once it is born. The child once given to the surrogate mother may
suffer as the surrogate may mistreat the child since she did not intend to raise the child herself.
Another justification why this right should be accorded especially in regard to the
commissioning parents, who in most cases are the genetic parents as their gametes are used, is
that the commissioning parents usually have the intention of making the baby. As such, the legal
maternity should be given to the genetic mother as opposed to the surrogate, who in most cases
has no genetic relation to the child. This was held in an American case of Johnson v Calvert,79
Where the court decided , under the California Parentage Act, that Anna Johnson, the gestational
mother was not the natural mother and that under constitutional law, she did not have a liberty
interest in a relationship with the child to whom she gave birth. Panelli J commented that it was
the commissioning parents ‛who affirmatively intended the birth of the child, and took the
necessary steps necessary to effect in vitro fertilization. But for their acted-on intention the child
would not exist and the commissioning mother who intended to procreate the child- that is she
who intended to bring about the birth of a child that she intended to raise as her own- is the
78
See, R. Bennett. ‛Human Reproduction: Irrational But in Most Cases Morally Defensible‟ (2004.)Journal of
Medical Ethics; 30 p. 379 79
See, Johnson v Calvert, No. X 633190 (Cal. App. Dep't. Super. Ct. Oct. 22, 1990). In that case, in pursuance of a
surrogacy agreement, one of the commissioning mothers eggs was fertilized in vitro with her husband‟s sperm and
transferred to the surrogate, who successfully carried it to term. During the pregnancy the surrogate and the
commissioning couple feel out and each sought a declaration of parentage of the child.
32
natural mother under California law. As such it is justified for the commissioning parents to be
granted the legal parentage of the child as they are the ones who intended its formation.
2.4 Conclusion
Surrogacy has come as a solution to couples who are not able to procreate a child of their own.
Unlike adoption, surrogacy has given effect to the desire to have a child that is related to the
commissioning couple, as they can contribute to the procreation of the child through provision of
genetic materials. Parents who therefore cannot get a child of their own will do anything to
ensure that they have a child of their own. Most couples would therefore result to surrogacy as
compared to adoption. This can be best explained by the rising numbers of children born out of
surrogacy agreements. This is the case even where surrogacy is yet to be recognized in law. As
such, countries would be lying to themselves by outlawing surrogacy. The best way forward is to
accept its existence and come up with laws regulating the same, before the situation gets out of
hand.
Once surrogacy is accepted and regulated, then countries have to think of the children born out
of surrogacy agreements. First of all states should be appreciate the fact that through surrogacy,
such children have been given a chance to be born and live. It would thus be unfair to subject
such children to different treatment from that of other children. A child is a child. As such the
rights accruing to other children should also accrue to children born out of surrogacy agreements.
Core to these rights is the right to certainty of parentage. A right for these children to know their
origins, a right for these children to know their identity, a right for these children to know that
they were intended to be , by their parents who were not in the position of procreating them, and
above all a right to belong.
33
CHAPTER THREE
3. The legal framework governing the right to certainty of parentage in Kenya.
In a bid to appreciate the right to certainty of parentage, a revisit of the sources of law in Kenya
will be of paramount importance. The sources of law in Kenya are provided for under the
Judicature Act80
to include; first is the constitution which is the grundnorm, secondly we have all
other written laws including the Acts of parliament and lastly subject to and in so far as those
written laws do not extend or apply, the substance of the common law, the doctrines of equity
and the statutes of general application.81
In addition to the sources are general principles of
international law as is provided for in the Constitution.82
In as far as the right to certainty of parentage is concerned; the same will be construed against the
sources of law in Kenya. Having understood what entails the right to certainty of parentage in the
previous chapter, this chapter therefore seeks to explore the Kenyan legal framework in relation
to the right to certainty of parentage. It will look at the various statutes and international treaties
that outline this right and the enforcement of the right.
3.1 The Constitution of Kenya.
The Constitution of Kenya is the supreme law of the Republic.83
As such no person may claim or
exercise state power except as the constitution authorizes. 84
The new Constitution came into
force on 27th
August 2010. The constitution provides for the right to certainty of parentage in a
number of provisions. The constitution provides that every child has the right to a name and
80
The Judicature Act, Cap 8, Laws of Kenya, s 3. 81
Ibid, at s 3 (1). 82
See, The Constitution of Kenya (2010) art. 2 (5). 83
Ibid, art 2. 84
Ibid at art 2 (2).
34
nationality from birth and the right to parental care and protection , which includes equal
responsibility between the mother and the father to provide for the child whether they are
married or not.85
The constitution further provides that the child‟s best interests are of paramount
importance in every matter concerning the child.86
3.2 Statutory laws addressing the right to certainty of parentage in Kenya.
3.3.1 The Children’s Act.87
The Children‟s Act came into force on 1st March 2002. It is an Act of parliament to make
provision for parental responsibility, fostering, adoption, custody, maintenance guardianship,
care and protection of children; to make provision for the administration of children‟s
institutions; to give effect to the principles of the Convention on the Rights of the Child and the
African Charter on the welfare and rights of the child.88
The Act defines a child as any human
being below eighteen years. 89
The Act provides for the right to certainty of parentage in various
provisions. Firstly, the Act provides that a child shall have the right to parental care which
includes the right to live with and be cared for by his parents. 90
The Act further provides that
where the Director or the court determines that it is in the best interests of the child to be
separated from his parents, the best alternative care shall be provided for the child. Where a child
is separated from his family without the leave of court, the Government shall provide assistance
for reunification of the child with his family. 91
85
Ibid at art 53 (1) (a) and (e). 86
Ibid art 53 (2). 87
The Children’s Act, Cap 141, Laws of Kenya. 88
Ibid, preamble. 89
Ibid, s 2. 90
Ibid, s 6. 91
Ibid, s 6 (2) and (3).
35
Secondly, the Act also provides for the right to a name and nationality. It states that every child
shall have the right to a name and nationality and where a child is deprived of his identity the
government shall provide appropriate assistance and protection, with a view to establishing his
identity. The Act also provides for parental responsibility, which includes the right to determine
the name of the child.92
The Act provides for the inherent right to life, which gives rise to the
right to certainty of parentage, and it shall be the responsibility of the government and the family
to ensure the survival and the development of the child. The Act further provides that in all
actions concerning children whether it shall be undertaken by public or private social welfare
institutions, courts of law, administrative authorities 93
or legislative bodies, the best interests of
the child shall be a primary consideration.
3.3.2 The Births and Deaths Registration Act.94
This Act came into force on 9th
June 1928. It is an Act of Parliament to provide for the
notification and the registration of births and deaths and other matters incidental to. Registration
of births is an important aspect of the right to certainty of parentage as it keeps information that
would enable one to have the knowledge of their origin. It defines birth to mean the issuing forth
of any child from its mother after the expiration of the twenty- eighth week of pregnancy,
whether alive or dead. 95
Prescribed particulars in relation to any birth includes; the name, sex,
date and place of birth, and the names, residence, occupations and nationality of the parents. 96
A
principal registrar is defined to mean the principal registrar of births and deaths appointed under
section 3 of the Act whereas a registrar is defined to mean a registrar appointed to register the
92
Ibid s 23 93
Ibid, s 4 (1) and (2). 94
The Births and Deaths Registration Act, Cap 149, Laws of Kenya. 95
Ibid, s 2. 96
Ibid.
36
births and deaths in any area or to register births and deaths occurring outside Kenya and
includes a deputy registrar. 97
The Act provides for registration of births. It states that it shall be the duty of every registrar to
keep a register of births and deaths and to enter therein, respectively, the prescribed particulars of
every birth and death notified to him.98
The registrar appointed to register births and deaths
occurring outside Kenya shall keep a register of births and a register of deaths which occur
outside Kenya. A registrar is not to register a birth or death after the expiration of six months
from the date of such birth or death, except upon receiving the written authority of the principal
registrar, issued in accordance with the rules and upon payment of the prescribed fees.99
The Act
also provides for compulsory registration of births whereby the minister may, by notice in the
gazette, declare that from a certain date to be named in the notice the registration of births of all
persons in Kenya of any particular race, class, tribe or group, or of all or some of the inhabitants
of any particular town, district or town shall be compulsory. 100
The mode of registration of births and deaths requires that every person notifying the birth of a
child shall, to the best of his knowledge and ability, give the prescribed particulars, which shall
be entered forthwith by the registrar in the register, and the person notifying the births shall
certify to the correctness of the particulars by signing, or if he is illiterate, by fixing his mark to
the register. 101
In case of births or deaths that occur abroad, a person notifying the birth outside
Kenya of a child who is a citizen of Kenya shall produce to the registrar the following evidence
of the birth; firstly, either a certificate of birth issued by the appropriate authority in the country
97
Ibid. 98
Ibid, at s 7. 9999
Ibid ss 7 (2) and 8. 100
Ibid, s 9 (2). 101
Ibid, s 10.
37
abroad with the English translation if it was not in English or where certificates of births are not
issued in the country abroad, a certificate of birth given by the doctor, midwife or other person
who attended the birth. Secondly, either, where there is a Kenyan mission in the country abroad,
a certificate of the member of the mission that he is satisfied, from evidence produced to him and
inquiries which he has made, that the particulars of the birth given in the birth certificate are
correct or if there is no Kenyan mission in the country abroad, such other evidence as the
registrar may require. The person notifying such birth is to certify it in writing to the registrar
the correctness and authenticity of the evidence which he produces. The registrar is then required
to enter the prescribed particulars of the birth in the register of births occurring outside Kenya.
102
In cases where registration of births is compulsory, it shall be the duty of the father and mother
of the child, and in default of the mother and father, the occupier of the house in which to the
best of his knowledge a child is born, and of every person present during the birth, and of the
person having the charge of the child, to give notice of the birth. This shall be done within the
time that is from time to time prescribed to the register of the registration area in which the birth
occurs. In case of births that take place in prisons, hospitals, orphanages, barracks or quarantine
stations, it is the duty of the officer in charge of the establishment in which the birth took place to
give such notice. 103
A person can only be entered in the register as the father of the child either at the joint request of
the father and mother or upon the production to the registrar of any evidence that he might
require showing that the mother and father were married according to law, or in accordance with
102
Ibid, s 10 A. 103
Ibid s 11.
38
some recognized custom.104
There also exists the duty to notify the finding of an exposed new
born child by any person who finds that child or any person in whose charge such child may be
placed, to give to the registrar of the registration area in which such child is found, within seven
days of which the child is found, such information of the particulars required to be registered
concerning the birth of such child as the informant may possess. 105
Where the birth of a child has
been registered before it is given a name, or where the name by which it was registered has been
altered, the parent or the guardian of the child may within two years of registration, on the
payment of the prescribed fee, and on providing such evidence as the registrar may think
necessary, register the name that has been given to the child.106
3.3 International Treaties governing the right to certainty of parentage
International laws serve as a source of law in respect of the Constitution of Kenya which
provides that; the general rules of international law shall form part of the law of Kenya. 107
Having this in mind therefore, this part shall embark on having regard to international treaties
providing for the right to certainty of parentage. These treaties include the following:
3.3.1 African Charter on the Rights and Welfare of the Child.108
The African Charter on the rights and Welfare of the Child came into force on 29th
November
1999. Kenya ratified this Charter on 25th
July 2000. The right to certainty of parentage in this
Charter is provided for explicitly. The Charter provides for the right to certainty of parentage
under article six. It states that every child has the right from his birth to a name, every child shall
104
Ibid s 12. 105
Ibid s 13. 106
Ibid s 14. 107
Supra n 82. 108
The African Charter on the Rights and Welfare of the Child, ( entered into force on 29th
November 1999).
39
be registered immediately after birth and that every child has the right to acquire a nationality.109
The Charter requires the state parties to ensure that their Constitutional Legislation recognizes
the principles according to which a child shall acquire the nationality of the state in the territory
of which he has been born if, at the time of the child‟s birth, he is not accorded nationality by any
other state in accordance with its laws.110
The right to certainty of parentage as discussed earlier
arises from the right to privacy. The African Charter on the Rights and Welfare of the child
therefore derives the right to certainty of parentage through its provisions on the right to privacy.
The Charter provides that no child shall be subject to arbitrary or unlawful interference with his
privacy, family home or correspondence, or to the attacks upon his honour or reputation,
provided that the parents or legal guardians shall have the right to exercise reasonable
supervision over the conduct of their children. The child has the right to be protected from
against such interference or attacks.111
The Charter also provides for other rights which can be directly tied to the right to certainty of
parentage. One such right is the right to parental care and protection. It provides that every child
shall be entitled to parental care and protection, and shall, whenever possible, have the right to
reside with his or her parents. No child shall be separated from their parents against their will,
except whenever a judicial authority determines in accordance with the appropriate law that such
separation is in the best interest of the child. 112
For a child to enjoy the right to parental care and
protection they must have enjoyed the right to know their origin so as to identify with their
parents. In addition to the provision of the right to certainty of parentage the Charter recognizes
that everyone is entitled to all the rights and freedoms recognized and guaranteed without
109
Ibid, art. 6 (1), (2) and (3) respectively. 110
Ibid, art. 6 (4). 111
Ibid, art. 10. 112
Ibid art. 20.
40
distinction of any kind such as race, ethnic group, colour, sex, language religion, political or any
other opinion, national and social origin, fortune, birth or other status. 113
The Charter also
recognizes that in all actions concerning the child undertaken by any person or authority, the best
interests of the child shall be of primary consideration. 114
3.3.2 International Covenant on Civil and Political Rights. 115
The covenant came into force on 23rd
March 1976. Kenya acceded on the covenant on the same
date having signed the covenant on 1st May 1972. The covenant does not provide for the right to
certainty of parentage explicitly. It however derives from two articles in the convention that is
article 17 and article 24. The right to certainty of parentage is said to derive implicitly from the
right to privacy.116
Article 17 of the Covenant provides that no one shall be subjected to arbitrary
or unlawful interference with his privacy, family, home or correspondence, or to unlawful attacks
on his honour or reputation. It further provides that everyone has the right to the protection of
the law against such interference or attacks.
The other right under the covenant that alludes to the right to certainty of parentage is the right to
registration of birth. The Covenant provides that every child shall be registered immediately after
birth and shall have a name. It further provides that every child has the right to acquire a
nationality.117
The Covenant also provides that no child is to be discriminated on the basis of
race, sex, colour, language, religion, national or social origin, property or birth when it comes to
his protection as a minor either by the family, society or state.
113
Ibid. preamble. 114
Ibid, art. 4. 115
International Covenant on Civil and Political Rights, (entered into force on 23rd
March 1976.) 116
See, Detrick, S. ‛A Commentary on the United Nations Convention on the Rights of the Child‟, (1999) The
Hague: M. Nijhoff. 117
Supra n 115, art 24 (2) and (3).
41
3.3.3 The Convention of the Rights of the Child.
The Convention of the Rights of the Child came into force on 2nd
September 1990.118
Kenya
ratified the convention on 30th
July 1990. The Convention grants explicitly the right to know
one‟s origins not only to children but also to adults. It provides that, the child shall be registered
immediately after birth and shall have the right from birth to a name, the right to acquire a
nationality, and as far as possible, the right to know and be cared for by his parents. State parties
are thus required to ensure the implementation of these rights in accordance with their national
law and their obligations under the relevant international instruments in this field, in particular
where the child would otherwise be stateless. 119
The Covenant provides further for the right to
preserve one‟s identity which goes hand in hand with right to certainty of parentage. It states
that, state parties are to undertake to respect the right of the child to respect his or her identity,
including nationality, name and family relations as recognized by law without unlawful
interference. It goes on to provide that where a child is illegally deprived of some or all of the
elements of his or her identity, state parties shall provide appropriate assistance and protection
with a view to re-establishing speedily his or her identity. 120
118
The Convention on the Rights of the Child, (entered into force on 2nd
September 1990.) this was in accordance
with article 49 of the convention which provides that the convention was to enter into force on the thirtieth day
following the date of deposit with the secretary general of the United Nations of the twentieth instrument of
ratification. States ratifying the convention after the deposit of the twentieth instrument of ratification or accession,
the convention shall enter into force on the thirtieth day after the deposit by such state of its instrument of
ratification or accession. 119
Ibid art. 7. 120
Ibid, art. 8.
42
3.4 Judicial interpretation of the right to certainty of parentage.
A lot of cases have been decided in relation to the right to certainty of parentage or the right to
know one‟s origin.121
However not many cases have been decided with regard to this right
especially for children born out of surrogacy arrangements. Most of the cases decided concern
adopted children who seek to know their origin or children born through assisted human
reproduction such as where a gamete was donated to their parents to enable them conceive the
child. As cases of surrogacy continue to increase by the day, cases of such children been torn
between parents involved are on the rise too. As such there are emerging cases for the right to
certainty of parentage in regard to such children, especially to the question as to who should be
considered the parents of the child.
Different courts have decided differently especially due to the different forms of surrogacy. For
instance in gestational surrogacy, also known as full surrogacy, the commissioning parents are
genetically related to the child born. In such a case therefore the courts might award the
maternity to the commissioning parents as shall be seen in a case below122
. In partial surrogacy
the child is genetically related to the commissioning father while the mother does not have any
genetic relation to the child. In such cases the courts have held the surrogate mother to be the
mother and the commissioning mother can only obtain legal motherhood through adoption. One
such case is the famous American case of Re Baby M.123
in this case the court restored the
surrogate mother as the natural mother to the child. The surrogacy contract was however
121
See for example, C. v. Mary K., 224 Cal. Rptr. 530 (Ct. App. i986) (determining the legal parentage of a child
born through AID to a single woman when the AID statute was not followed); In re Baby M, 537 A.2d I227 (N.J.
i988) (analyzing the legality of surrogate mothering agreements and the parentage of a child born as a result of such
an agreement); Davis v. Davis, 842 S.W.2d 588 (Tenn. I992) (determining a divorcing couple's rights to frozen pre
embryos created for use in IVF). 122
Infra n 131. 123
Re Baby M, (1988) 109 N. J 396.
43
invalidated by the court as it involved the payment of a sum of money amounting to ten thousand
dollars. The payment of money in the surrogacy contract was held by the court to be in conflict
with the law and policy of the state of New Jersey where the case had been filed.
The facts of the case were that in February 1985, William Stern and Mary Whitehead entered
into a surrogacy contract. The contract stated that Stern‟s wife was infertile and they wanted a
child. Mrs. Whitehead was willing to provide the child with Mr. Stern as the father. Mrs.
Whitehead conceived through artificial insemination with the gametes of Mr. Stern. The terms
were of the contract were that Mrs. Whitehead was to carry the child to term, and after its birth
she was to hand it over to Mr. Stern and his wife. Mrs. Whitehead was therefore to be separated
forever with the child.
The child was born on 27th
March 1986. Mrs. Whitehead realized from the moment she gave
birth that she could not part with the child. She claimed to have felt a bond with the child during
pregnancy. She therefore relinquished her efforts of giving the child to the Sterns. Mr. Stern filed
a suit seeking the enforcement of the surrogacy contract. The trial court awarded custody to Mr.
Stern, the natural father, based on the same based on the same kind of evidence analysis as might
be expected had no surrogacy contract existed. The trial court concluded that the various statutes
governing the matter, including those of concerning adoption, termination of parental rights and
payment of money in connection with adoptions do not apply to surrogacy contracts. The court
reasoned that because the legislature did not have surrogacy in mind when it passed those laws,
they were therefore irrelevant. The Court analyzed the interests involved and the power of the
court to accommodate them. It therefore held that surrogacy agreements were valid and should
therefore be enforced and furthermore that Mr. Stern‟s rights under the surrogacy contract were
44
constitutionally protected. Mrs. Whitefield appealed leading to the decision by the appellate
court.
In the Kenyan context one case has been decided in regard to the right to certainty of parentage,
in relation to births arising out of surrogacy agreements. This was in the land mark case of JLN
and two others v Director of Children services.124
The facts of the case were that WKN and
CWW entered into a surrogacy agreement with JLN who consented to be a surrogate mother by
undergoing in vitro fertilization. Following the delivery of the children, twins, the issue arose as
to whether CWW should be registered as the mother in acknowledgement of the birth
notification, required under the Births and Deaths Registration Act,125
rather than JLN who was
the birth mother to the children. The hospital, finding itself in this dilemma, informed the
Director of Children Services of the circumstances concerning the birth of the twins. The director
took the view that the children were in need of care and protection, and as a result, his officers
took them and placed them under the care of a children‟s home. The children were later released
to JLN and the hospital issued the notification in the name of JLN.
The petitioner filed a case awaiting the determination of the main suit.126
They sought the prayers
that ; the unnamed twins born on 25th
January 2014 at M P Shah Hospital and delivered to the
Director of Children services be released in the custody of the 1st and 2
nd applicants, that the 3
rd
applicant be allowed to have unlimited and unrestricted access to the unnamed twins born on 25th
January 2014so that they can be breastfed well and regularly as required and that the names of
124
JLN and two others v Director of Children Services and four others (2014) eKLR 125
Cap 149, Laws of Kenya. The notification is the preliminary document confirming the birth of a child and is
necessary for the issuance of a birth certificate. 126
WKN and two others v National Council for Children Services and another, Nairobi children‟s case no. 205 0f
2014.
45
the first and second applicants be entered into the birth notification as well as the certificate of
the unnamed twins. The prayers were granted.
On the issue as to whether the birth certificates were to be issued in the name of the second and
third petitioners the court confirmed that indeed there were no laws in Kenya regulating
surrogacy arrangements. The court stated that it was because of the lack of a legal regime that the
parties found themselves in that situation. The court was of the opinion that even though there
were no laws regulating surrogacy in Kenya, they had to decide the case based on the best
interest of the child as is provided for in the constitution. 127
The court agreed with the
submissions of the counsel of the second applicant that a child born out of surrogacy agreement
was no different from any other child. 128
The court affirmed the position that surrogacy is no
longer a hypothetical issue and the fact that many Kenyans are resulting to surrogacy as an
alternative to being parents especially for those who cannot for medical reasons have their own
children. The court was thus of the opinion that it is the duty of the state to protect children who
are born out of surrogacy arrangements and it should provide a legal framework to govern the
arrangements. 129
The court referred to a case130
where it was decided that adopted children were entitled to a birth
certificate as compared to an adoption certificate. The court was thus of the opinion that
likewise, the child born out of a surrogacy arrangement is entitled to the identity of his or her
genetic parent and in principle, the registration of the genetic parents as opposed to the surrogate
mother as a parent must be permitted. The court thus directed that the commissioning parents be
127
Supra n 82 art. 57. 128
Supra n 124 Para 39. 129
Ibid, Para 40. 130
Organization for National Empowerment v Principal Registrar of Persons and Other
Nairobi Petition No. 289 of 2012 [2013]eKLR
46
registered as the parents of the children. It gave effect to the surrogacy agreement as there was no
dispute between the parties.
Surrogacy being a new and unregulated area in Kenya only the preceding case has been
determined in relation to the same. This therefore prompts the reliance on internationally decided
cases. One such case is the case of Johnson v Calvert.131
In that case, in pursuance of a surrogacy
agreement, one of the commissioning mother‟s eggs was fertilized in vitro with her husband‟s
sperm and transferred to the surrogate, who successfully carried it to term. During the pregnancy
the surrogate and the commissioning couple fell out and each sought a declaration of parentage
of the child. The court decided that, under the California Parentage Act, that Anna Johnson, the
gestational mother was not the natural mother and that under constitutional law; she did not have
a liberty interest in a relationship with the child to whom she gave birth. Panelli J commented
that it was the commissioning parents, who affirmatively intended the birth of the child, and took
the necessary steps necessary to effect in vitro fertilization. But for their acted-on intention the
child would not exist and the commissioning mother who intended to procreate the child- that is
she who intended to bring about the birth of a child that she intended to raise as her own- is the
natural mother under California law. The court held that the commissioning parents, Crispina
and Mark Calvert were the genetic, biological and natural parents of the child based on the
medical evidence that the tests showed a 99.999 per cent probability of Calverts as genetic
parents. The court analyzed the relationship between that of the surrogate and the child and
described it to be equal to that of a foster parent and an adopted child. The Court dismissed the
notion that emotional bonding occurs between the surrogate mother and the unborn child as
131
Johnson v Calvert, No. X 633190 (Cal. App. Dep't. Super. Ct. Oct. 22, 1990).
47
unsubstantiated since the surrogate knows from the beginning that she will give up the child to
the commissioning parents and as such the physiological bonding decreases.132
The court was of the opinion that a surrogate mother carrying a child that is genetically related to
the intended parent does not acquire parental rights, and even if she did, she relinquished her
rights under the contract.133
The court was of further opinion in dicta that that the right to
procreate belongs to the mother and not to the surrogate mother. The court emphasized that the
parties entered into a contract providing for relinquishment prior to implantation of the embryo
and designated specific performance, which was turning over the child to the genetic parents as
the appropriate remedy. The court refused to split the child emotionally between the two mothers
and held that the best interests of the child required handing over of the child to the genetic
parents. 134
The court, in reaching this decision used the statutory provisions governing paternity and proof
of paternity by use of blood tests to determine whether a mother child relationship existed
between the surrogate and the child. The court stated that, ‛ it must resolve the question of the
surrogates claim to the child as it would resolve a man‟s claim to paternity when blood tests
positively exclude him as a candidate. The court therefore held that the surrogate was not the
natural mother as the blood tests showed that she lacked genetic ties to the child. As such
therefore, denying legal parentage to the commissioning parents, where they are the genetic
parent of the child, would amount to a violation of the child‟s right to certainty of parentage.
132
Ibid, Para. 12. 133
Ibid, Para 7 and 10. 134
Ibid Para. 14.
48
3.5 Conclusion.
A scrutiny through the Kenyan legal framework shows that the right to certainty of parentage is
guaranteed. The inclusion of the right into the constitution, the grundnorm, shows that the right
lies at the heart of Kenyan laws. It is one of the rights and fundamental freedoms that are
guaranteed under the bill of rights. However, the Kenyan laws are noticeably silent of this right
when it comes to children born out of surrogacy agreement. It could be due to the fact that the
practice of surrogacy has not been appreciated in the Kenyan society. Most Kenyans view it as
an intrusion into the family unit as it involves inclusion of third parties not considered part of the
family. As such most people who enter into these agreements do so in secret and in fact were it
not for conflicts to arise between the parties to the agreement, or their agreement is discovered
unintentionally as in the JLN case135
then, surrogacy arrangement would still remain a secret
practice.
It is therefore imperative to conclude that surrogacy arrangements, though unregulated, do occur
in the Kenyan context, and as a result children are being born out of surrogacy arrangements.
Such children, just like any other children, should thus be accorded the rights due to them. It is
therefore important that the scope of the right to certainty of parentage, which is indeed
recognized in the Kenyan legal framework, to be extended so as to cover these children. Specific
provisions should be included in the Kenyan legal framework outlining the right to certainty of
parentage for these children.
Judicial interpretation in regard to the right to certainty of parentage for children born out of
surrogacy has set the path likely to be followed in the incorporation of the right into the legal
135
Supra n 124.
49
policy. The law making arm of government should thus follow suit to ensure that the legal
framework does not discriminate against these children. By doing so they will have achieved our
national principles, among them the right not to discriminate someone on any ground, more so
on the ground of their origin or identity.
50
CHAPTER FOUR
4. Legal policy and challenges
4.1 Introduction
The right to certainty of parentage has been recognized in a number of Kenyan statutes and
international treaties as can be seen in the preceding chapter. However, despite the recognition of
the right to know, a lot of challenges are being experienced in regard to this right. In fact, the
recognition of this right has been faced with numerous challenges such that, as Van Bueren puts
it, the recognition of the right can be equated to opening a Pandora‟s Box. 136
This chapter will
venture into the various statutes and treaties as discussed in the previous chapter with the aim of
pointing out various challenges that are being faced due to the recognition of the right. The
chapter will also point out the gaps that are present in these statutes and treaties in relation to
recognition of the right to certainty of parentage for children born out of surrogacy agreements.
4.2 Challenges in the Kenyan legal framework
The Kenyan legal framework constituting the right to certainty of parentage includes the Kenyan
Constitution, the Births and Deaths Registration Act and the Children‟s Act.137
The main
challenge with these Laws is that though they provide for the right to certainty of parentage, they
are silent on whether the same is applicable to children born out of surrogacy agreements. The
Constitution for instance provides for this right explicitly where it provides that every child has
the right to a name and nationality from birth which includes the right to parental care and
protection, which includes equal responsibility between the mother and the father to provide for
136
Van Bueren, G. (1995) „Children‟s access to adoption records: State discretion or an enforceable international
right‟, Modern Law Review, 58, 37 – 53. 137
The Constitution of Kenya 2010, the Births and Deaths Registration Act Cap 149 Laws of Kenya and the
Children’s Act Cap 141 Laws of Kenya Respectively.
51
the child whether they are married or not.138
The Constitution does not however expound on the
fact whether the right applies to children born out of surrogacy agreements. The Constitution
defines the term „child‟ to mean ‛an individual who has not attained the age of eighteen years.‟139
This therefore means that a child born out of surrogacy agreement fits into this definition,
however, having put in mind that there is no law regulating surrogacy agreements in Kenya, then
the challenge arises on how to include such children within the ambit of this definition.
The Births and Deaths Registration Act,140
seems to be the most convenient vehicle for ferrying
the right to certainty of parentage to children born out of surrogacy agreements since the
registration of births is at the core of implementing this right. However, this statute simply gives
the right with one hand and takes it with the other. The Act provides for the right explicitly
where it provides that it is the duty of every registrar of births and deaths to keep a register of
births and deaths and to enter therein the prescribed particulars of every birth or death notified to
him.141
The prescribed particulars in relation to any birth includes the name, sex date and place
of birth and the names, residence, occupations and nationality of the parents.142
From these
provisions it is evident that every birth of a child must be registered. Since registration of birth is
a key element in the provision of the right to certainty of parentage, this therefore means that this
Act provides for this right for every child that is born.
The flip side of the provision of the right by the Act arises in the prescribed particulars to be
registered by the registrar of births and deaths in relation to every birth. One of the particulars
includes the name, residence, occupations and nationality of the parents, one of them being the
138
The Constitution of Kenya (2010), art 53 (1) (a) and (e). 139
Ibid, art 260. 140
Cap 149 Laws of Kenya. 141
Ibid, s 7. 142
Ibid, s 2.
52
mother to the child. The Act further defines the term birth as the issuing forth of any child from
its mother after the expiration of the twenty- eighth week of pregnancy, whether alive or dead.143
This can therefore be understood to mean that the mother of the child is the one who delivers the
child. However it is well understood that in gestational surrogacy, the person who delivers the
child is not in effect the mother of the child. In fact, in gestational surrogacy, she has no genetic
relation to the child at all and has no connection with the child as the aim of the surrogacy
agreement is to give away the child to the commissioning parents. The Births and Deaths
Registration Act therefore locks out children born out of surrogacy agreements from the
enjoyment of the right to certainty of parentage by insisting that the person to be registered as the
mother is the person who actually gives birth to the child.
The right to certainty of parentage is also contained in the Children‟s Act.144
The Act provides
for this right where it states that every child shall have the right to a name and nationality and
where a child is deprived of his identity the government shall provide appropriate assistance and
protection, with a view to establishing his identity.145
The Act then defines a child to mean ‛ any
human being below eighteen years.‟146
This can therefore be interpreted to mean that the scope
of the definition of a child incorporates children born out of surrogacy agreements. However as it
is with the Constitution, there being no law that neither permits nor regulates surrogacy
agreements in Kenya, then the ambiguity arises on whether children born out of surrogacy
agreements fit into the ambit of this definition. The other challenge is that this Act provides for
the right to certainty of parentage through the right to a name and nationality. The name given to
143
Ibid, s 2. 144
Cap 141 Laws of Kenya. 145
Ibid, s 23. 146
Ibid s 2.
53
a child will have to be registered in the notifications of birth which will thus take us back to the
challenges in the Registration of Births and Deaths Act mentioned above.
It is indeed true that the right to certainty of parentage is provided for in the Kenyan legal
Framework. However the same seems to be absent when it comes to children who are born out of
surrogacy agreements. This is partly due to the fact that the Kenyan Legal framework lacks a law
that permits surrogacy or one that prohibits it. This therefore makes it harder to even incorporate
such children into the ambit of the few statutes that provide for this right. The other challenge is
that even for statutes which seem to be the convenient ones for offering this right to such
children, the same offer the right with one hand while taking it away with the other hand as can
be seen with the Births and Deaths Registration Act. These challenges further emphasize the
need for the Kenyan Legal drafters to come up with a law that will recognize surrogacy as a
solution to parents who cannot have their own children and regulate the practice instead of
shunning away from it altogether. This will in turn help in the implementation of the right to
certainty of parentage especially for children born out of surrogacy agreements.
4.3 Challenges in International legal policy
One of the main challenges in the International legal policy is the lack of an international
instrument governing surrogacy. This in turn poses a lot of challenges as surrogacy is now
considered an international affair. This reality was in fact reported in the 2011 Hague
Conference whereby it was stated that „ international surrogacy had become a ‟ booming , global
business” with multiple challenges which had not yet been fully brought to the attention of the
international community including those surrounding the legal status of children born as a result
54
of such arrangements. ‟147
The international aspect of surrogacy has been mainly contributed to
by the fact that surrogacy remains unregulated in most of the countries , Kenya being one of
them, and as such many people resort to travel to countries where it is regulated so as to get it.
This in turn poses various problems as was identified in a report carried out by the Hague
Conference on Private International law.148
Another factor leading to the increase of international
surrogacy is in relation to the continuing increase in the international mobility of persons
resulting from globalization. 149
According to the report, some of the problems identified included; firstly, the legal status of
children and intending parents. 150
It was reported that, due to the fact that people who resorted to
undertaking surrogacy in other countries for the reason that the same was unregulated in their
countries, resulted in children frequently being left with „limping‟ legal parentage, that is,
different legal parentage established as a result of the laws of different states. This may in turn
lead to such children being cared for by persons not recognized as their parents in the countries
in which they live.151
Another possibility in the same scenario would be that children are left
stateless, trapped in the state of birth, unable to leave and in some instances with no permission
to stay.152
147
See “Private international law issues surrounding the status of children, including issues arising from
international surrogacy arrangements”, Prel. Doc. No 11 of March 2011 for the attention of the Council of April
2011 on General Affairs and Policy of the Conference available at <www.hcch.net>. 148
See, „ A study of legal parentage and the issues arising from international surrogacy arrangements‟ Preliminary
Document No 3 C of March 2014 for the attention of the Council of April 2014 on General Affairs and Policy of the
Conference. 149
See, „ the desirability and feasibility of further work on the parentage / surrogacy project‟
Preliminary Document No 3 B of March 2014 for the attention of the Council of April 2014 on General Affairs and
Policy of the Conference, p. 10. 150
Ibid, p 64. 151
Ibid. 152
Ibid.
55
Another problem arising from the same case scenario is in regard to the child‟s right to know
their origin as has been the discussion throughout this research paper. There exists a wide range
of variation in state laws and practices in regard to issues of donor and surrogate anonymity and
the preservation of and access to information in the future for such kids. 153
Some countries for
instance France still advocate for anonymity of mothers while some don‟t. Therefore, in the case
that a Kenyan citizen enters into a surrogacy agreement with a French national, and in future the
child born as a result of the agreement want to know their origin, a lot of challenges will occur as
the law in Kenya could differ with that of France.
In addition to the challenges discussed above, the specific international instruments specifically
referred to in the preceding chapter that is, The African Charter on the Welfare of the Child, the
United Nations Convention on the Right of the Child and the International Covenant on Civil
and Political Rights, are also marred with various challenges. Some of these challenges concern
the enforcement of the instruments and the lack of specific incorporation of the right to certainty
of parentage. This part will venture into the specific instruments with the aim of pointing out
these challenges.
4.3.1 United Nations Convention on the Rights of the child.154
This Convention, as discussed in the previous chapter, provides explicitly for the right to
certainty of parentage. It was the first Human Rights Convention to grant explicitly not only the
Adult‟s right to know, but also the child‟s right to know her origins.155
The Convention provides
153
Ibid. 154
Supra n 118 155
Samantha Besson, ‛Enforcing the Child‟s Right to Know Her Origins: Contrasting the Approaches between the
Convention of the Rights of the Child and the European Convention on Human Rights‟ (2007) 2 International
Journal of Law, Policy and the Family 137
56
for this right by stating that the child shall be registered immediately after birth and shall have
the right from birth to a name, the right to acquire a nationality and, as far as possible, the right
to know and be cared for by his parents.156
The Convention further mandates the state parties to
the Convention to ensure the implementation of this right in accordance with their national law
and their relevant obligations under the relevant international instruments in this field, in
particular where the child would otherwise be stateless.157
The Convention further provides for
the right to preserve ones identity where it states that state parties are to undertake to respect the
right of the child to preserve his or her identity, including nationality, name and family relations
as recognized by law. It also provides that where a child is deprived of some or all of the
elements of his or her identity, state parties shall provide appropriate assistance and protection,
with a view to re- establishing his or her identity.158
This Convention however, despite its explicit provision of the right to certainty of parentage, is
marred with various challenges especially in respect to the implementation of the right to
children born out of surrogacy agreements. One of the challenges being faced under the
convention is that the Convention is silent on whether the term „child‟ incorporates children born
out of surrogacy agreements. The Convention defines a child as every human being below the
age of eighteen years unless under the law applicable to the Child, majority is attained earlier.
159Many people would argue that this definition is broad and would automatically include
children born out of surrogacy agreements. Article 7 for instance has been interpreted broadly so
that the term „parents‟ includes not only social and legal parents, but also biological and
156
The Convention on the Rights of the Child, (entered into force on 2nd
September 1990.), art 7 (1). 157
Ibid, art 7 (2). 158
Ibid, art 8 (1) and (2). 159
Supra n 118, art 1.
57
gestational parents. 160
The Committee on the Rights of the Child also appears to interpret the
Convention as bestowing a clear right to donor- conceived children as well as children born out
of surrogacy agreements to knowledge of their genetic identity.161
However, no convincing
research has been made to indicate that the benefits of the enforcement of the right to children
born out of surrogacy agreements. This therefore leaves a lot of uncertainty on whether the
definition of the term child under the Convention would incorporate children born out of
surrogacy agreements.
The other challenge being faced by this Convention is in regard to the enforcement of the right.
Though the Convention on the Rights of the Child explicitly provides for the right to know ones
origin, it does not contain provisions on how this is to be done. The Convention charges the
United Nations Committee on the Rights of the Child with the mandate of monitoring the
enforcement of the Convention. The Convention however does not provide the Committee with
enforcement powers.162
The Committee for instance has, in fulfillment of this mandate,
consistently criticized nations that do not allow for this right or one that allows mothers to give
birth anonymously for instance France. 163
The Committee has also made recommendations to
contracting state parties regarding incomplete national enforcement of a child‟s right to know his
or her origins.164
However this is as far as the mandate of the Committee can go since state parties
have a degree of discretion provided they do not give higher priority to parental rights than
160
Supra n 147, p 143. 161
supra n 118. 162
Supra n 147, p 150. 163
Ibid pp 153-154. 164
See for instance U.N. Comm. on the Rights of the Child, Concluding Observations of the Committee on the
Rights of the Child: Norway, U.N. Doc. CRC/C/15/Add.23 (Apr. 25, 1994) and U.N. Comm. on the Rights of the
Child, Concluding Observations of the Committee on the Rights of the Child: Denmark, U.N. Doc.
CRC/C/15/Add.33 (Feb. 15, 1995).
58
children‟s right and that they do not diverge in their interpretation s of the scope and the degree
of the duties imposed by the Convention.165
The other challenge is in relation as to the extent that the right to know is to be implemented. The
Convention provides that the right to know can only be implemented „as far as possible.‟166
This
provision has been interpreted differently. According to some, it means that the right should be
implemented as far as possible as a matter of fact, which implies that the right is absolute and
cannot be conditioned on respect of any other legal duty or right.167
Others, on the other hand
interpret it to mean that the right is to be granted only as far as the granting of the right is
possible within the limits of the legal order and that illegal restrictions to the right are
prohibited.168
This therefore means that other International human rights obligations may conflict
with the child‟s right to know, for Instance the obligations also requiring the state to uphold the
rights of the mother and of third parties under other national or international instruments.169
This
would as a result hinder the implementation of the right and it is therefore prudent that such
occurrence of conflict should be resolved when enforcing the right to certainty of parentage. This
can be done through the qualification of the extent to which the right should be applied.
4.3.2 The African Charter on the rights and welfare of the child.170
The African Charter on the welfare of the child or the Children‟s Charter was formed with the
aim of supplementing the United Nations Convention on the Rights of the Child. This was
because the member states of the African Union believed that the Convention on the Rights of
165
Supra n 147 . 166
Supra n 118. 167
Supra n 147. 168
Ibid. 169
Ibid. 170
Supra n 108.
59
the Child missed important social-cultural and economic realities in Africa. 171
The Charter thus
emphasized the need to include African cultural values and dealings when dealing with the rights
of the child such as ; challenging traditional African views which often conflicted with the
children‟s rights such as early marriages,172
armed conflicts173
among others.
The Charter specifically provides for the right to certainty of parentage through its provisions on
name and nationality, 174
protection of privacy,175
protection of the family, 176
parental care and
protection177
and parental responsibility.178
However despite this wide recognition of the right by
the Charter the Charter is marred with various challenges which would prove to be a hindrance to
the enjoyment of this right especially by children born out of surrogacy agreements.
Firstly, though the Charter provides that every child shall be entitled to the enjoyment of the
rights and freedoms recognized and guaranteed in the Charter irrespective of the child‟s, his or
her parents‟ or his or her legal guardians‟ race, ethnic group, colour, sex, language religion,
political or other opinion, national or social origin, fortune, birth or other status179
, it is unclear
whether the same would be applicable in relation to children born out of surrogacy agreements.
This is particularly so because there is no specific provision in the Charter addressing the issue of
surrogacy and the needs of children born out of such agreements. Secondly, as has been
discussed throughout this research paper, surrogacy is a budding phenomenon in Africa which is
171
See, The African Charter on the Welfare of the Child, ( entered into force on 29th
November 1999), preamble,
which provides thus; Noting with concern that the situation of most African children,
remains critical due to the unique factors of their socio-economic, cultural, traditional and developmental
circumstances, natural disasters, armed conflicts, exploitation and hunger, and on account of the child's physical and
mental immaturity he/she needs special safeguards and care. 172
Ibid, art 21. 173
Ibid article 22. 174
Ibid, article 6. 175
Ibid art 10. 176
Ibid, art 18. 177
Ibid, art 19. 178
Ibid. art 20. 179
Ibid, art 3.
60
being faced with a mixed reaction and which proves to be generally not appreciated in the
continent. In fact only South Africa has regulated surrogacy in the continent.180
The second challenge in regard to the Children‟s Charter is that of enforcement of the Charter.
Just like the Convention on the Rights of the Child, the Charter has mandated state parties to
recognise the rights, freedoms and duties enshrined in the Charter and to undertake the necessary
steps, in accordance with their Constitutional processes and with the provisions of the Charter, to
adopt such legislative measures as may be necessary to give effect to the provisions of the
Charter.181
This therefore means that though the Charter provides for specific rights in regard to
the African child, the discretion on how far to implement the same is left with the state parties. In
other words the Charter lacks an enforcement mechanism and as a result the implementation of
the rights provided therein is hard.
The other challenge is in regard to the African Committee of experts on the Rights and Welfare
of the Child. This is the body responsible for the monitoring the implementation and ensuring the
protection of the rights laid out in the Children‟s Charter. However the Committee has been
facing various challenges in fulfilling its mandate. 182
These challenges include; the lack of
180
See, South Africa‟s Children’s Act (2005), chapter 19, (it came into force in 2010.) The Act enabled the
commissioning parents and the surrogates to have their surrogacy agreements validated by the High Court even
before fertilization (s. 292).This allows the commissioning parent to be recognised as the legal parents from the
outset of the process and helps prevent uncertainty. However in cases where the surrogate mother is the genetic
mother, she has up to sixty days after the birth of the child to change her mind (s. 298). The Act also permits single
parents and gay couples to be commissioning parents. Only those domiciled in South Africa can benefit from the
law, and the surrogacy agreement must be altruistic rather than commercial in nature ( s. 295). If there is only one
commissioning parent, s/he must be genetically related to the child. If there are two, they must both be genetically
related to the child unless that is physically impossible due to infertility or sex (as in the case of a same sex couple).
The Commissioning parent or parents must be physically unable to give birth to a child independently (s. 294). The
surrogate mother must have had at least one pregnancy and viable delivery and have at least one living child (s.
295). The surrogate mother has the right to unilaterally terminate the pregnancy, but she must consult with and
inform the commissioning parents, and if she is terminating for a non-medical reason, may be obliged to refund any
medical reimbursements she had received (s. 300). 181
Supra n 108, art 1. 182
See, „advancing children‟s rights‟ a guide for Civil Society Organisations on how to engage with the African
Committee of Experts on the Rights and Welfare of the Child, 2nd
Ed, and P 43.
61
personnel employed to support in terms of providing administration and legal advice, lack of
funds and resources and lack of commitment by the committee‟s members. These constraints
have had a serious impact on the work of the committee and prevented progress in implementing
its action plans. For instance its website has been out of date since 2007 and dissemination of its
documents is poor183
. These challenges therefore hinder the implementation of the rights
provided for in the Charter, among them the right to certainty of parentage especially for children
born out of surrogacy agreements.
4.3.3 International Covenant on Civil and Political Rights184
The Covenant provides for the right to certainty of parentage through its article 17 and 24.
Article 17 of the covenant provides for the right to privacy from which the right to certainty of
parentage evolves.185
The covenant also provides for the right to registration of birth which
forms the core to the right to certainty of parentage.186
However despite the provision of the
right to certainty of parentage by the Convention, there are challenges being experienced.
First of all there are issues in regard to the enforcement of the convention. This is especially so
since the implementation of international human rights lies primarily in the hands of the state
parties to the convention. In regard to the Convention, the body charged with the mandate of
enforcing the right to certainty of parentage and other rights provided therein is the United
Nations Committee on Human rights. 187
In order to enforce the Convention state parties are
required to report on measures they have adopted in order to give effect to the rights provided for
183
Ibid. 184
Supra n 115. 185
Supra n 54 . 186
Supra n 115, art 24. 187
Ibid art 28.
62
under the Covenant and on the progress made in the enjoyment of those rights .188
This however
may not be very effective since the mechanism relies on the member states to implement
standards by way of incorporation of ICCPR principles into their municipal law. This therefore
means that where the implementing of ICCPR principles into municipal law may conflict with an
existing legal policy in that state, then a state may be reluctant in enforcing such a law. The state
reporting itself has faced challenges with regard to non- compliance and late reporting.
The other enforcement mechanism adopted by the Convention is one for inter- state complaints.
189This is the provision which enables one state party to charge another with the violation to the
treaty. However, despite this provision, no inter- state reporting had yet been submitted from
1966 up to 2009. 190
The other issue with the provision is that a state which is submitting a report
that another state party is not fulfilling its obligations under the Covenant has to submit a
declaration to the effect that it recognizes the competence of the committee to receive and
consider communications in regard to the complaint.191
It is also under the discretion of the
committee to either accept or reject the complaint. This therefore means that there is no recourse
to some extent for instance where a country constantly violates the rights provided under the
Covenant. As such children born out of surrogacy agreements whose right to certainty of
parentage is being violated by their state may be left without recourse under the Covenant
despite the same providing for the right therein.
The Convention, just like other Conventions discussed above, though it provides for the right to
certainty of parentage, it is unclear whether the same is to apply in regard to children born out of
surrogacy agreements. The Convention has no particular provisions addressing surrogacy and
188
Ibid, art 40. 189
Ibid art 41. 190
See, Thomas Buergenthal et al. International human rights in a nutshell (4th ed., 2009). P. 61 191
Supra n 115, art 41 (1).
63
the rights in respect of the people involved in surrogacy agreement such as commissioning
parents, surrogate mother, donors and children born out of surrogacy agreements. This therefore
creates uncertainty when it comes to the implementation of the right to certainty of parentage
provided therein in regard to children born out of surrogacy agreements.
4.4 Conclusion
The right to certainty of parentage is a right which has now been recognized and justified
internationally. However, for those of us who know who our parents are tend to take the right for
granted. This may not be the case for those children who do not know either one or both of their
biological parents and research has proved that there exists a vital interest for these children to
know. Some of the children who may find themselves in this situation include children born out
of surrogacy agreements. In Kenya, the legal policy has recognized the right to know in various
statutes such as the Births and Deaths Registration Act and the Children‟s Act.
The establishment of this right however, especially in relation to children born out of surrogacy
agreements has been faced with a lot of challenges. Primarily among them is the lack of a law
regulating surrogacy in the country. This has therefore led to the limitation in the enjoyment of
the right to certainty of parentage to children born out of surrogacy agreements. Due to this lack
of a law regulating surrogacy also, the various statutes providing for the right to certainty of
parentage have not incorporated into their ambit children born out of surrogacy agreements. This
has resulted in the discrimination of such children in the enjoyment of the right.
In the absence of a domestic law outlining the enjoyment of the right to certainty of parentage
recourse should be had to international treaties providing for the same, as they form part of the
64
sources of law in the country.192
However, the international treaties providing for this right are
also marred with challenges ranging from lack of incorporation of children born out of surrogacy
agreements into their ambit, enforcement challenges and so on. There is also no specific
international law dealing with surrogacy issues despite the fact that the same has become an
international issue. In fact the closest we can get to having an international law is through the
Hague Convention on Surrogacy which is still in the process of being designed.193
These
challenges therefore leaves the Kenyan children being born out of surrogacy agreements in a spot
where they cannot enjoy their rights as compared to other children.
This therefore leads us into the desirability of having a law that regulates surrogacy especially in
the Kenyan case. This will be the only way to overcome the challenges outlined in this chapter as
such a law will incorporate the rights to be enjoyed by children born out of surrogacy
agreements. This will in turn bring an end to uncertainty in regard to the application of the right
to certainty of parentage in regard to these children.
192
The Constitution of Kenya 2010, Art 2 (5). 193
See the project on „The private international law issues surrounding the status of children, including issues arising
from international surrogacy arrangements,‟ available at
http://www.hcch.net/index_en.php?act=text.display&tid=178 last accessed on 8th June 2015.
65
CHAPTER FIVE
5. Conclusion and Recommendations
5.1 Conclusion
It is patently clear that the Kenyan legal policy addressing the right to certainty of parentage does
not extend this right to children born out of surrogacy agreements. This research paper has
clearly demonstrated that as a result of the limitation of this right, children born out of surrogacy
agreements have been discriminated upon and have gone through numerous challenges as a
result of the same.
Surrogacy, being the practice whereby one woman carries a child for another woman with the
intention that the child be handed over after birth, is indeed in no indefinite terms on the
increase. Many people have argued for surrogacy citing various reasons among them being; that
surrogacy enabled infertile couples to get their own children194
and that where surrogacy is a
voluntary agreement between the surrogate mother and the commissioning parents there cannot
be a question of exploitation, and as such that those who felt that surrogacy led to the intrusion
of marriage need not seek the treatment but should not seek to prevent others from having access
to it.195
Others on the other hand have argued against surrogacy, and they too site various reasons such
as; that the introduction of a third party into the process of procreation which should be confined
194
See, supra n 41, where it was argued thus: If infertility is a condition which should, where possible, be remedied
it is argued that surrogacy must not be ruled out, since it offers to some couples their only chance of having a child
genetically related to one of them or both of them. In particular, it may well be the only way that the husband of an
infertile woman can have a child. Moreover, the bearing of a child for another can be seen, not as an undertaking
that trivializes or commercializes pregnancy, but, on the contrary, as a deliberate and thoughtful act of generosity on
the part of one woman to another. If there are risks attached to the pregnancy then the generosity is all the greater. 195
Ibid.
66
to the loving partnership between two people is an attack on the value of marital relationship,
that surrogacy distorted the relationship between the mother and the child and that surrogacy
would be exploited for a financial purpose.196
However, despite all the arguments for and against surrogacy, bottom line is that it is still being
practiced even in countries where it is outlawed or in those that have no regulations either
permitting or prohibiting the same. In fact, it has been reported that there has been an 8.2%
increase invitro fertilization, a 10. 2 % increase in surrogacy agreements and a 10.3 % increase in
surrogacy babies.197
Kenya has also not been left out in this statistics as surrogacy is seemingly
being practiced in the country despite there being no regulation allowing or prohibiting the same
as was exposed in the JLN case.198
This in turn prompts us to reconsider the rights accruing to
children being born out of surrogacy agreements among them being the right to certainty of
parentage.
The right to certainty of parentage or the right to know ones origin, being the right to know ones
biological family and ascendance and ones condition of birth, is a right that those of us who
know our parents take for granted. As discussed in this research paper, the social connotations of
who a parent is has greatly changed due to the development in science and technology, from the
common law perception of a parent to a whole myriad of possible persons who could fit into the
ambit of a parent. This includes; biological parents, egg donors, commissioning parents,
surrogate mothers, foster parents among others. For instance, the common law connotation of a
mother is the woman who issues forth the baby after the expiration of the pregnancy period. This
may however not be the case in surrogacy, where two or more women may be involved in the
196
Ibid. 197
Supra n 48. 198
Supra n 49.
67
procreation, gestation and delivery of a child. In such a situation then the guidance of the law is
sought to determine the legal maternity of the various women in relation to the child. In case of
lack of such a law then a violation to the right to certainty of parentage becomes inevitable.
The right to certainty of parentage for children born out of surrogacy and other children born
through modern reproduction technologies, that is, children who do not know one or both of their
biological parents has been proved to be of „ vital‟ interest to them. In addition, the right to
certainty of parentage is associated with a lot of advantages such as protecting each individual‟s
right to identify where they come from.199
The right is also a relevant element in achieving ones
psychological balance. The right is also important when it comes to maters of determining ones
inheritance and health status. It is for these reasons therefore that the right to certainty of
parentage has been considered to be vital or sufficiently fundamental as to give rise to a human
right. It would thus be unfair and discriminatory to exclude children born out of surrogacy
agreements from the enjoyment of this right.
In the Kenyan context, the right to certainty of parentage as discussed earlier has been provided
in various statutes including the grundnorm which is the Constitution. The right is also
incorporated in the Children‟s Act and the Births and Deaths Registration Act. However, despite
the recognition of the right to certainty of parentage in the Kenyan legal policy, the rolling out of
the right to children born out of surrogacy is marred with various challenges. At the core of these
problems is the fact that the Kenyan legal policy lacks a law dealing with surrogacy. As such it
remains uncertain whether the ambit of the right to certainty of parentage, as provided for in the
aforementioned statutes, includes children born out of surrogacy agreements. Secondly, some of
these statutes outlining the right to certainty of parentage in focus being the Births and Deaths
199
Supra n 54.
68
Registration Act tend to give this right with one hand while taking it with the other. This Act for
instance explicitly provides for the right to birth registration which is at the core of the
achievement of the right to certainty of parentage. The Act‟s definition of mother as the woman
who brings forth a child after the expiration of the period of pregnancy out rightly wipes out
children born out of surrogacy agreement from the enjoyment of the right.
On the lack of a national law regulating surrogacy in the Kenyan legal policy, resort should be
had to international treaties and conventions providing for the right to certainty of parentage as
international law forms part of the laws of Kenya.200
Some of the International conventions
providing for the right to certainty of parentage as outlined in this research include; the African
Charter on the Rights and Welfare of the Child, the United Nations Convention on the Rights of
the Child and the International Covenant on the Civil and Political Rights. It must be noted that
at the present there is no international convention dealing with surrogacy and the above
mentioned conventions only provide for the right to certainty of parentage. However, these
conventions too, just like the Kenyan legal policy are also marred with various challenges. Some
of these challenges include the enforcement of the conventions.
Enforcement of International instruments is wholly dependent on the implementation of the
rights by the member states to the instruments. This should be done through the incorporation of
these rights into the individual member states‟ national policy. This is however left to the
discretion of the member states and the sanctions imposed, if any, on the member states on lack
of implementation of the rights are minimal or lacking all together. This then makes it harder to
implement the right to certainty of parentage especially in relation to children born out of
surrogacy agreements. Kenya for instance has been reported to not have fully implemented the
200
See, the Constitution of Kenya (2010), art 2 (5).
69
key principles of the CRC and the ACRWC.201
In relation to the child‟s right not to be
discriminated, though Kenya had come up with legislative and Constitutional guarantees
providing for the same, the Commission on the Rights of the Child (hereby the CRC) was still
concerned with the continued violation of the right in Kenya. The CRC thus urged the Kenyan
government to; continue revising all its legislations in order to bring into full compliance with
article 2 of the UNCRC to ensure full implementation of all legal provisions, to combat
discrimination by ensuring access to education, health care facilities and poverty- alleviation and
to carry out comprehensive public- education campaigns to prevent and combat all forms of
discrimination.202
However, despite these recommendations by the CRC, Kenya has not effected
on implementation of non- discrimination in respect of children born out of surrogacy
agreements as is evidenced in its 3rd
, 4th
and 5th
reports to the CRC.203
Kenya was also found not to adhere to the principle of non- discrimination by the African
Committee of Experts on the Rights and Welfare of the child (hereby ACERWC) in the Nubian
Case.204
The Court held that „the current facts in relation to children of Nubian descent in Kenya
indicated a prima facie case of discrimination and violation of article 3 of the Children‟s Charter.
The same situation applies to children born out of surrogacy agreements in relation to their right
to certainty of parentage where the name of the mother who delivers the baby is mandatorily
201
See, Prof Mohammed S Hussain and Dr Clement J Mashamba, Child rights and the law in East Africa, pp 91-
116. 202
Ibid, p 101. 203
See, Republic of Kenya „3rd, 4th
and 5th
State Party Report to the UNCRC Committee- Geneva 2005-2011‟, para
95. 204
See, Institute for Human Rights and Development in Africa (Banjul) and Open Society Justice Initiative (New
York) on (behalf of children with Nubian background in Kenya) v The Government of Kenya, Communication No.
Com/002/2009 (ACERWC). The complainants alleged that children of Nubian descent in Kenya are treated
differently from other children in Kenya, for which there is no „legitimate justification, amounting to unlawful
discrimination and a violation to article 3 of the African Children‟s Charter‟. This was due to the fact that children of
Nubian descent are expected to go through a lengthy and arduous process of vetting (including requiring them to
demonstrate the nationality of their grandparents, as well as the need to seek and gain the approval of Nubian elders
and government officials), is discriminatory and deprived them of any legitimate expectation of nationality and
leaving them effectively stateless.
70
registered as compared to the commissioning mother who has the intention of procreating the
child.
In relation to the child‟s right to a name and nationality which, as has been the argument
throughout this research paper, forms the core of the enjoyment of the right to certainty of
parentage, Kenya has been reported to be behind the required level of success envisaged under
article 7 of the CRC and article 6 of the ACRWC. This is more so in relation to the registration
of births.205
The Kenyan Government has in fact acknowledged that the requirement for free birth
registration to be undertaken within 6 months after the registration of births, „has not always
been adhered to due to ignorance on the part of the parents, and especially for women who
deliver outside the health facilities.‟206
The CRC was concerned with this state of affairs that it
made the concluding observation that Kenya should implement an efficient birth- registration
system that fully covers its territory and children including through: among others, reviewing
existing discriminatory legislation on birth registration, including registration that prohibits the
registration of children born to foreign fathers and those born through surrogacy agreements
(emphasis mine). The discrimination on children born out of surrogacy agreements in this respect
is however yet to be wiped out. In fact it has been reported that, „in practice, however, there is
sheer discrimination in the registration process against certain classes of children in Kenya. This
is true in respect of birth registration of certain categories of children who have no access to
registration including children born of foreign fathers, children born from certain minority
205
Supra n 201, p 152. 206
Supra n 203.
71
communities such as the Nubians and the Somalis and children born out of surrogacy agreements
(again emphasis mine).207
In relation to the foregoing therefore, it is indeed evident that there exists a gap in the Kenyan
legal policy regulating the enjoyment of the right to certainty of parentage. It is clear that
children born out of surrogacy agreements have been cut out from the ambit of the enjoyment of
this right. This is due to the lack of a law regulating surrogacy in the country. As a result,
children born out of surrogacy agreements have undergone numerous challenges such as being
left in a position where they might become stateless, failing to benefit from protections and
constitutional guarantees granted by the state among them difficulty to travel freely and
difficulty in accessing justice procedures when necessary . The lack of birth registration for such
children may also affect the realization of the social- economic rights for them such as access to
health care and access to education. As such it will be prudent for the Kenyan legal policy
makers to come up with a law that regulates surrogacy so as to ensure the enjoyment of civil,
political and social- economic rights for children born out of surrogacy arrangements, among
them the right to certainty of parentage.
5.2 Recommendations.
This research paper has come to the conclusion that there exists a gap in the Kenyan legal policy
in relation to the rights of children born out of surrogacy agreements. In lieu of the above,
therefore, it is my recommendations that;
The Kenyan legal policy makers come up with a law that regulates surrogacy agreements in
Kenya. This law should permit surrogacy especially gestational surrogacy so as to avoid the
207
See, African Child Policy Forum, Harmonisation of Children Laws in Eastern and Southern Africa: Country
Breifs, p 69.
72
challenges experienced with partial surrogacy when it comes to the determination of legal
parentage. The law should incorporate the rights of children born out of such agreements among
them the right to certainty of parentage.
In relation to the surrogacy agreements, the same should be in writing, entered into Kenya, and
the surrogate mother and her partner should be domiciled in Kenya. This is so as to provide proof
of an existing agreement incase disputes are to arise later between the commissioning parents
and the surrogate. The agreement should be entered into Kenya and the surrogate mother should
be resided in Kenya so that the Kenyan courts will have jurisdiction of listening to a surrogacy
matter in case disagreements arise between the parties to the agreement.
In order to ease the ascertainment of legal parentage of children born out of surrogacy
agreements, the same should not be valid unless the conception of the child intended in the
agreement is to be effected by the use of gametes of both commissioning parents. In case this is
impossible, for instance due to medical or biological reasons, then at least one of the gametes
should be obtained from one of the commissioning parents.
In regard to the concern that surrogacy may be abused for commercial purposes, the same should
be entered into where there is medical proof that the commissioning parent or parents is unable
to give birth to a child and that the same is permanent and cannot be reversed. All payments in
regard to surrogacy should be prohibited. Surrogacy should not be entered into by minors or
persons who are normally beyond the child- bearing age as this would lead to conflict with the
society‟s morality.
There should be a provision in the law providing for a surrogate parenthood agreement which
should include adequate provisions for the contact, care, upbringing and general welfare of the
73
child that is to be born in a stable home environment, including the child position in the event of
the death of one or both of the commissioning parents or their divorce or separation before the
child is born. This will in turn promote the right to certainty of parentage and the right to self-
identity for the child incase they want to find out their origin.
In making of the surrogacy agreements and in the determination of the legal parentage of a child
born out of such an agreement, the best interests of the child are to be treated in accordance with
the best interests of the child. The other laws that provide for the right to certainty of children
such as the Constitution, the Births and Deaths Registration Act and the Children‟s Act should be
configured so as to include, in no uncertain terms, into their ambits, this right for children born
out of surrogacy agreements.
74
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