To put it simply both higher and lower courts in Kenya always have kept in mind the best interests of the child whilst granting sole custody to either the single father or the intended parents who have commissioned surrogacy. It is also fair to say that surrogacy laws in Kenya have not been drafted in all fairness however most of the Kenyan surrogacy laws are based on contract law and therefore are enforceable under Kenyan law.
Under the surrogacy contract that the surrogate mother signs with the commissioning parent, she also agrees to grant full custody of the child along with giving up her entire rights over the baby born as a result of surrogacy.
There are no legal enactments with regard to surrogacy and the parliament in Kenya has not enacted any laws with regard to the process of the surrogacy agreement. In Kenya, a regulatory framework that governs surrogacy arrangements makes it very clear that “any woman can become a surrogate mother as long as she is not undertaking this under any external influence and is entering into a contract out of her own free will on terms and conditions listed on the surrogacy agreement’.
However, in JLN & 2 Others vs Director of children  eKLR The Court observed that the issues it was asked to adjudicate arose because there was no legislative regime on surrogacy in Kenya. The Court was of the opinion that it was the duty of the state to enact legislation to regulate surrogacy. This duty stemmed from the right to health and health care services, including reproductive health guaranteed under Article 43(1)(a) of the Constitution, but also the right to recognition and protection of the family under Article 45(1).
It followed the decision of the High Court of Kenya in Organisation for National Empowerment v. Principal Registrar of Persons and Other (Petition No. 289 of 2012  eKLR) and decided that the details of the genetic parents be registered rather than those of the surrogate mother because the child is entitled to the identity of its genetic parents.
Therefore there is no enacted law on surrogacy but the rights of the biological father are now protected with this precedent should any legal issue arise when the child is born.
Can the law of Kenya prevent the biological father from full custody of the babies?
The Kenyan law cannot prevent biological fathers if he is the genetic father. In whereby, addition, the surrogate mother usually has signed a waiver of parental rights in favor of the biological father. ( a legal document is recognized under Kenyan law).
The Kenyan law holds the best interest and welfare of any Kenyan child paramount above any other issue. Therefore, in this particular issue, the biological father will always be considered to be the most suitable father for the child in this particular case.
To support the same MAA vs. ABS  eKLR and it was contended that Article 53(2) of the Constitution specifically provides that a child’s best interests are of paramount importance in every matter concerning the child. This principle is echoed in Section 4(2) and (3) (b) of the Children Act which provides for the paramountcy of the welfare of the child and binds Courts to safeguard and promote it. Based on MJC vs. LAC & Another  eKLR, it was submitted that what constitutes the best interest of the child depends on the circumstances of each case.
Check out our detailed article about, “Surrogacy laws in Kenya”.
Whether it would be legal, as per the law prevailing in Kenya, for the French authorities to issue a passport and allow the babies to be taken to France infringing any laws of Kenya?
The law does not prohibit any sovereign country or password issuing authority to issue a passport and allow the babies to be taken to the home country of the biological father, as the babies are the children of foreigners (in this case, a Kenyan surrogate a French father) they cannot claim Kenyan nationality despite being born in Kenya.
Whether the newborn will obtain a Kenyan birth certificate with the genetic father’s name, even if he is not married to the surrogate?
Yes, the new both will obtain a Kenyan birth certificate from the hospital with the genetic father’s & Surrogate Mother’s names.
From 31/3/14 the consular department in Kenya declared that till the health ministry of Kenya will issue guidelines on Kenya about surrogacy and birth certificate will not be authenticated for the surrogate children.
What is the typical cost of undertaking surrogacy in Kenya?
Anywhere in the world where surrogacy is practiced, two main ingredients are the key factors when it comes to determining the cost of surrogacy.
- Compensation for the surrogate mother
- Cost of IVF and egg donor
fortunately, Kenya offers a very competitive price advantage when it comes to surrogacy for both single parents and married couples. Typically the cost of compensation for the surrogate mother ranges from $ 8000-$ 10,000 excluding the cost of food and accommodation.
We as an agency ensure that a fair payment is made to the surrogate mother for undertaking surrogacy along with her medical and legal acceptance as well as counseling initially before she starts the program with us and agrees to become a surrogate mother.
Another expenditure for the couple posts their delivery is the cost of paperwork and mainly the legal part of the exit process. In here again, Kenya offers very competitive pricing coupled with the very reasonably priced cost of living and service apartments when the couple is completing the paperwork for the exit process.
Whilst there are various factors involved in determining the cost of surrogacy is a package but typically speaking, assuming that the couple opts for herself cycle meaning the wife will be the egg donor and the couple will undertake IVF and surrogacy in Kenya along with delivery and the legal documentation, this would cost anything from $ 33,000-$ 35,000.
Whilst surrogacy is being considered by the couple, they must look at all these factors which have a huge impact on the overall cost of surrogacy:
- Cost of the stimulation medication and blood tests
- If the donor sperm is frozen or is fresh or is flown in
- whether IVF or ICSI procedure is to be used
- cost of the surrogate mother’s blood tests and screening cost along with scans and transportation cost
- post your transfer medication and antenatal costs
- The delivery cost of the surrogate mother along with any emergency cost associated with pregnancy and birth of kids thereafter
- is the use of an egg donor required
- what is legal documentation needed both from a Kenyan and the perspective of the country from where the passport has to be obtained
As an agency, our job is to put together the entire package together in a convenient package that a sprocket friendly and also payable in stages. Do talk to us about the various packages and options available in order to make your surrogacy journey both enjoyable and satisfactory.
What is the typical Success Rate for your surrogacy cases in Kenya?
The overall figure for our success rate for surrogacy cases is above 80% in the case of donor egg and surrogate mother.
Similarly, the success rate is also determined by the number of attempts at both IVF and FET.
We as an ethical surrogacy agency in Kenya have designed most of our packages with multiple attempts program and therefore we believe in the theory that IVF is a numbers game, therefore more embryos mean more the number of attempts at embryo transfer.
Therefore by the law of averages, even if the worst-case scenario of IVF success rate is taken at 40%, therefore we assume that you would not need more than three attempts to become pregnant.
In very rare cases we do have to attempt three embryo transfers is, but typically our average 1.25 attempts for a successful pregnancy and implant.
Overall the quality of the doctors in Kenya is compatible with the best IVF doctors and specialists across the world ( most of the doctors that we work with our trained in India and in European countries), therefore it is very safe to say that the success rate for our IVF and surrogacy cases in Kenya is at par with perhaps any Western country in the world.
Frequently asked questions
Is it possible to ship embryos to Kenya?
Yes, it is definitely possible to ship embryos, oocytes, as well as sperm samples into Kenya with due permission and export, permits from the relevant authorities both from the originating clinic as well as the receiving clinic in Kenya.
As an agency, we will organize logistics and obtain all the legal paperwork, permissions, and permits in order for you to seamlessly transfer your precious embryos/oocytes/ sperm samples into Kenya.
What is the range of donors that are available to donate in Kenya
As you can imagine egg donors are very integral part of any surrogacy journey and therefore the selection of a very healthy and suitable egg donor from across the world is a key and important factor when it comes to surrogacy and success rate subsequently,
We as an agency unable to organize donors from across the world create Indian, Kenyan, Caucasian, Asian as well as Hispanic donors that will suit your requirement.
We are proud to say that we have an extensive database of approximately 350+ donors from across the globe from which you can select. Obviously, the price difference varies from donor to donor.
Please talk to us about your specific requirement and we will ensure that we not only advise you would also find a donor that would fulfill your specific requirement to complete your family.
As a single mother for a single father, am I allowed to pursue surrogacy in Kenya?
The short answer is yes, as a single mother and a single father would definitely allow pursuing surrogacy in Kenya. However, there are various legal aspects involved right from the selection of the surrogate mother to the exit process following the delivery that we have to be wary of.
Therefore the selection of a good surrogacy agency in Kenya and subsequently working with a good lawyer to draft the contracts in order to ensure that post-delivery there are no hiccups and the baby is able to obtain the relevant passport and travel back to their home country.
The legal and medical process of both single-parent surrogacy is very similar to that undertaken by married couples however there are a few points that should be taken care of while beginning the process. As an agency, we will be guiding you on these aspects before you start your program with us.
Is it possible for Chinese parents to undertake Surrogacy in Kenya?
There are no particular surrogacy laws in Kenya that prevent Chinese parents from not undertaking surrogacy in Kenya.
However one must be careful because the Chinese embassy has an extensive requirement of paperwork which can take anywhere up to five weeks to complete the paperwork in order to obtain Chinese travel documents.
Our agency offers a wide selection of donors, therefore, Chinese parents are able to work with cross-border surrogacy programs, for instance, they can create the embryos in Georgia or in India and then ship them across to Kenya for implant into a surrogate mother.
We have also flown egg donors from Thailand and Taiwan into Kenya for our Chinese clients, which you would gladly arrange should the need arise.
Is Kenya the very cost-effective destination for single-parent surrogacy?
Again the short answer is definitely yes, Kenya perhaps offers the cheapest and the most cost-effective surrogacy for single-parent surrogacy anywhere in the world at the moment and sound.
As an example, the next best destination for surrogacy for singles would be in Mexico which would cost upwards of $55,000 -$ 60,000, whereas, Typically the cost of surrogacy in Kenya with an egg donor and three attempts would be around $ 38,000 using an Indian egg donor. Which I would consider a very good deal indeed.
Apart from this, the next best example for single-parent surrogacy would be in countries such as Guatemala and Argentina also offers surrogacy for single parents but the cost in these countries would start from $ 60,000 and upwards. Therefore in conclusion Kenya offers the best cost and option for single parents surrogacy anywhere in the world at the moment.
Could you please comment on the exit process in Kenya after the completion of surrogacy?
Every country has a different set of requirements when it comes to the exit process. But typically all the countries and indices required the intended parents to submit the following documentation before any case is considered.
- A birth certificate bearing the name of the parent
- A valid and signed surrogacy agreement
- Undertaking by the surrogate mother
- the legal opinion which is presented by the lawyer and addressed to the embassy of that parental country
- A DNA test to prove a genetic link with one of the parent or parents
- Some countries require sole custody to be granted to the single parent by the local Kenyan court
Please discuss with us your specific requirement and we shall be happy to guide you through this process. Apart from this we also have a team of specialist immigration consultants who would be happy to help you out with this process both in Kenya and overseas.
We also have arrangements with lawyers and solicitors in Europe, India, and the US who would be glad to assist you with this program and the paperwork that is required in order to exit the country.