Ethical and Legal Issues on Embryo Adoption, Donation, and Surrogate Motherhood: A Kenyan Perspective

Most countries, including Kenya, have not yet developed a legal or policy framework to govern assisted reproductive technologies since its inception in 1981. Even though surrogacy, in which a woman carries a pregnancy for another or infertile woman and accepts donated embryos from another couple to conceive and give birth to an adopted child, could be beneficial in addressing infertility in couples, this technology has no law to regulate it. However, assisted reproductive technologies; surrogacy, embryo adoption or donation, ethically accepted means to treat infertility, these technologies have multitude of ethical and legal issues appealing for an address. This study was therefore aimed at identifying the main ethical and legal issues arising from embryo donation and surrogacy motherhood in treating infertility from a Kenyan perspective. A qualitative interdisciplinary nonsystematic literature review on ethical and legal analysis of existing and pending policy, laws, and ethical issues related to donated gametes, adopted embryos, and surrogacy motherhood was conducted. Mendeley, Google Scholar, and PubMed databases were searched in the English language for the themes “Ethical and legal issues in assisted reproductive technology AND Kenya,” “Ethical and legal issues of embryo donation AND Kenya,” and “Ethical and legal issues of surrogacy, AND Kenya.” Using the above themes or phrases, a total of 82 articles were retrieved with only 4 being those that dealt specifically with subject matter analyzed. Literature reviews on ethical and legal reviews were analyzed and core ethical and legal issues were identified. The study revealed that the practice of surrogacy donated embryos or adoption in Kenya operates under the Law of Contract Act and there is no law or policy to regulate the practice. Commercial surrogacy, the treatment of children as commodities, and exploitation of women are issues that rose. Other pertinent legal issues included parental rights and the effects of manipulating embryos. However, some of the ethical issues raised by this technology include the lack of informed permission, human embryo tampering, physical and psychological trauma, threats to the traditional nuclear family’s structure, and identity crises experienced by the children born out of this marriage. This study demonstrates that the use of ART is an alternative for treating female infertility. Accessibility to this service has resulted into abuse and exploitation of women who might otherwise be at risk of not having access to it for infertility management. Therefore, in order to protect the rights of those affected and to solve the stated ethical issues, the 2022 assisted reproductive technology bill and policy must be expedited as quickly as possible.