Possible Violations, Exploitation, and Abuse of Surrogates in Kenya: Need for a Legislative Framework

A couple has a right to self-determination, and available technologies can be used to assist such couples who may be unable to conceive for various reasons. The principle of justice in the promotion of health ought to be considered to help the ill or disabled address their unique needs. For this to happen, it is important to have a policy and regulatory environment that is supportive of deploying relevant technologies. Assisted reproductive technologies (ART) have been used to remedy the problem of an infertile couple wishing to have a child. Depending on the cause of infertility, embryo adoption and surrogate motherhood are some of the considerations couples can make in their efforts to have a child. The absence of a legal instrument to regulate ART and surrogacy in Kenya exposes this practice to the possibility of unethical practices. Yet, the Constitution of Kenya can be seen as a tool that champions surrogacy by making it a right to form a family, a right to reproductive health, and the best interest of a child. The legislature is expected to unpack such constitutional requirements by enacting laws for purposes of regulating reproductive rights. Failure by Kenya to come up with such laws that confront the realities and complexities of sexual reproduction has exposed her vulnerable population to exploitation and abuse. This is exacerbated by systemic corruption, poverty, and other forms of deprivation among a majority of Kenyans, making surrogacy for poor women an available option for income generation and exposing them to reproductive exploitation. The objective of this chapter is to highlight some of the possible violations, exploitations, and abuse that Kenyans may experience due to the lack of a legislative tool to regulate surrogacy in the country. Some of the highlights considered include economic servitude, violations related to human dignity, the right to health, exploitation, and the possibility of supply of women and children to trafficking syndicates. The Kenyan courts have continually urged the legislature to develop a legal framework on surrogacy to avoid conflicts and exploitative tendencies which are currently common and to ensure children born out of surrogacy arrangements have their rights protected and respected.