Surrogacy Legislation and Kenya's ART Bill 2019: Reproductive Uhuru (Freedom) A Myth or a Reality for Infertile Citizens?

Abstract

In 2014, Kenyan parliamentarian Odhiambo Millie MP tabled the Assisted Reproductive Technology (ART) Bill [2019] to regulate assisted reproduction. The Bill restricts surrogacy to married couples only, prohibits payment to surrogates and makes no provision for surrogacy services or its oversight. It is modelled on the United Kingdom's surrogacy laws, although this article confirms the UK's surrogacy laws were intended to discourage surrogacy in the first place, and a Law Commission review shall be published in 2022. In 2007, Thiankolu Muthomi called for Kenyan-designed ART legislation. Kenya's customary woman-to-woman marriage is examined as a taking-off point for technologising Kenya's surrogacy services. The woman-to-woman marriage was constitutionally protected in 2010 and embedded by the enactment of the Protection of Traditional Knowledge and Cultural Expressions Act No. 33 [2016] that promotes the right to cultural expression. This cultural reality should provide the launching pad for a more permissive and auditable surrogacy legislation in Kenya and transferability to sub-Saharan Africa burdened, with the exception of South Africa, by unregulated ART practice.