For decades, the path to parenthood for infertile couples and individuals in Kenya was a legal grey area. Surrogacy and assisted reproduction operated without specific regulation, often governed only by civil contracts. This lack of oversight left surrogates, commissioning parents, and the children themselves vulnerable to exploitation and legal disputes. The Assisted Reproductive Technology (ART) Bill, 2022, recently passed by the National Assembly in November 2025, aims to change this by creating a long-overdue legal framework. The Act gets several things right and is a step in the right direction, but it still leaves some critical issues unaddressed. This article will seek to highlight the hits and misses of the Act.
I.HIT: Introduction of Public Accountability
One of the most significant achievements of the ART Act is the establishment of a comprehensive oversight framework for fertility services in Kenya. Previously, assisted reproduction operated in a regulatory vacuum any qualified medical practitioner could offer procedures like IVF without specialized oversight or standardized facilities. This created considerable risks for patients, including exposure to unhygienic conditions, unqualified practitioners, and unethical practices.
The Act addresses this by introducing mandatory licensing for all assisted reproduction services. Under the new framework, no person or facility may carry out assisted reproduction without a valid license issued by the Directorate of Reproductive Health, acting in consultation with the Kenya Medical Practitioners and Dentists Council. This means every fertility clinic, IVF center, and gamete bank must undergo official inspection and approval before commencing operations. Section 41(1) specifically requires that premises be inspected and a report prepared before any license can be considered, ensuring that facilities meet minimum health and safety standards. For Kenyans seeking fertility treatment, this provides an essential layer of protection—the knowledge that their chosen clinic has been vetted by the authorities and is operating within the law.
The Act also establishes meaningful consequences for non-compliance. Section 39(2) provides that anyone operating without a license or violating these requirements commits an offence and is liable, upon conviction, to a fine not exceeding five million shillings, or imprisonment for a term not exceeding five years, or both. This penalty structure signals a firm legislative intent to end the era of unregulated reproductive medicine.
Beyond licensing, the Act creates a confidential national register to document donors, embryos, and children born through assisted reproduction. This is not an intrusion into private matters, but rather a mechanism for accountability and traceability. It ensures that procedures are conducted ethically and that a formal record exists, while still safeguarding the privacy of those involved. For the first time, Kenya has a centralized system overseeing this sensitive field, ensuring that scientific progress does not outpace the ethical and safety safeguards that patients deserve.
II.HIT: Consent and the Right to Withdraw — Putting Control in the Hands of the Parties
Another fundamental pillar of the ART Act is its firm grounding in the principle of informed consent. For too long, questions about what happens to eggs, sperm, or embryos in unforeseen circumstances were left to verbal agreements or assumptions, often leading to painful disputes. The Act closes this gap by mandating that prior informed and written consent must be obtained from all parties before any assisted reproduction services begin.
This requirement goes beyond a simple signature on a form. The Act specifically provides that assisted reproductive technology clinics and banks shall not cryo-preserve any human embryos or gametes without specific instructions and written consent from all parties regarding what should be done with the gametes or embryos in case of death or incapacity of any of the parties. The law recognizes that these are not mere biological materials but hold profound emotional and familial significance, and their disposition must be guided by clear directives.
Crucially, the Act also respects the right of parties to change their minds. The consent of any party may be withdrawn at any time prior to the process of implantation. This protection ensures that no one can be compelled to proceed with parenthood against their will, acknowledging that reproductive decisions are deeply personal and circumstances can change. It provides an essential safeguard for both the surrogate mother, who may reconsider her participation, and the intended parents, who may face unforeseen circumstances before implantation occurs.
The importance of consent is further reinforced through strict penalties. Using human reproductive material to create an embryo without the donor’s written consent is a serious offence, attracting a substantial fine or imprisonment. Similarly, the Act addresses the sensitive issue of posthumous use, prohibiting the removal of reproductive material from a deceased donor unless that donor gave written consent during their lifetime. This prevents the ethically fraught situation of a deceased person’s genetic material being used without their explicit permission.
III.HIT: Who Can Be a Parent? Defining Commissioning Parents
The ART Act provides long-overdue clarity on who may enter surrogacy arrangements, replacing guesswork and private contracts with clear legal eligibility criteria.
For intended parents, the Act limits surrogacy services to Kenyan citizens aged between 25 and 55. This restriction effectively shuts down “fertility tourism,” where foreigners would previously come to Kenya seeking surrogates, often in circumstances that raised concerns about exploitation of local women. By confining surrogacy to citizens, the law creates a closed system that prioritizes the protection of Kenyan surrogate mothers over the commercial interests of foreign intended parents.
Surrogate mothers themselves are also subject to clear requirements. A woman wishing to act as a surrogate must be aged between 25 and 45, must have given birth to at least one child of her own, and must undergo thorough medical and psychological assessments before she can enter any agreement. These requirements serve two important purposes. First, they recognize that a woman who has already experienced pregnancy and childbirth is better placed to understand the physical and emotional demands of surrogacy. Second, the assessments ensure that she is entering the arrangement freely, with full knowledge of what it entails, and is psychologically prepared for the journey ahead.
Perhaps most significantly, the Act expands the definition of who may be commissioning parents in ways that reflect Kenya’s evolving understanding of family. While the law restricts surrogacy to heterosexual couples—which aligns with the current legal position on marriage in Kenya—it explicitly includes two categories that might otherwise have been excluded. Single women who cannot bear children are now eligible to become parents through surrogacy, recognizing that infertility and the desire for parenthood are not limited to married couples. The Act also explicitly includes intersex persons, marking a progressive step toward recognizing diverse family structures and affirming the reproductive rights of intersex Kenyans.
This inclusivity is noteworthy. In a region where reproductive laws often lag behind social realities, the ART Act acknowledges that families come in different forms and that the law should facilitate, not frustrate, the legitimate desire of citizens to become parents.
IV. HIT: Automatic Legal Parenthood — Securing the Child’s Status from Birth
Perhaps the most crucial reform in the ART Act is how it resolves the question of parentage. Under the previous legal vacuum, intended parents who entered surrogacy arrangements faced a confusing and often painful paradox: despite being the ones who planned for and desired the child, they were not automatically recognized as the legal parents. The surrogate mother’s name would typically appear on the birth certificate, forcing the intended parents to go through a lengthy and expensive adoption process to secure their parental rights. This created a period of legal ambiguity during which the child’s status was uncertain and the family’s future hung in balance.
The Act rectifies this by granting automatic legal parenthood to the commissioning parents from the moment of birth. This means that when a child is born through a valid surrogacy arrangement, the intended parents are immediately recognized as the mother and father in the eyes of the law. There is no need for adoption proceedings, no requirement to prove what has already been agreed, and no gap during which the child’s place in the family is legally uncertain.
In resolving the question of parentage so clearly, the ART Act does more than simplify paperwork, it affirms the dignity of the family formed through surrogacy and the rights of the child at the center of it all.
V. MISS: The Compensation Question :- When Altruism Falls Short
While the Act establishes a clear and much-needed framework for surrogacy, one area of significant debate is the question of what a surrogate mother receives for her role. The law explicitly bans commercial surrogacy, permitting only altruistic arrangements. This means a surrogate mother cannot be paid a fee for her service. She is only entitled to reimbursement for “reasonable expenses” incurred during the process, such as medical costs, lost income, and related expenditures.
This is where the Act falls short for many advocates and observers. The law provides no clear minimum or maximum for what constitutes “reasonable expenses,” leaving surrogates financially vulnerable. Pregnancy and childbirth carry real health risks, demand significant time commitments, and involve opportunity costs;- time away from work, from family, from earning a living. Without a defined framework for compensation, the vague standard of “reasonable expenses” is open to wide interpretation, potentially leading to several problems.
First is the risk of underpayment and exploitation. Low-income women, who may enter surrogacy agreements out of genuine financial need, could find themselves severely undercompensated for the physical burden they carry. While the Act bans commercial surrogacy in principle, it does little in practice to prevent the very exploitation it aims to stop if payments can be arbitrarily low. A surrogate who has given nine months of her life, undergone medical procedures, and faced the risks of childbirth deserves more than whatever the intended parents deem “reasonable.”
Second is the potential for disputes and ambiguity. The lack of a clear compensation floor or ceiling creates fertile ground for disagreement. What one party considers reasonable, another may view as excessive. This uncertainty defeats the very purpose of having a clear, legally binding agreement and may well lead to the kind of disputes the Act was designed to prevent.
Third are the broader ethical concerns. By leaving compensation vague, the Act risks creating a two-tiered system where some surrogates are fairly supported while others are not. This undermines the ethical safeguards the law seeks to establish. A surrogate represented by skilled negotiators may secure meaningful compensation, while another with fewer resources may receive barely enough to cover her hospital bills. The law should protect all women equally, not leave their wellbeing to the vagaries of bargaining power.
A more balanced approach, seen in other jurisdictions that have grappled with these same questions, would be to define a minimum and a reasonable ceiling for compensation. This would preserve the altruistic intent of the law preventing the commodification of children and the treatment of women’s bodies as commercial vessels while ensuring surrogates are fairly treated for their physical and emotional labour. It would recognize their contribution not as a commercial transaction, but as a profound act deserving of tangible, dignified support. Until such clarity is provided, the compensation question will remain a significant gap in an otherwise progressive law.
VI. CONCLUSION: A Solid Foundation with Room to Grow
Kenya’s ART Act is an undeniably monumental step forward. It brings clarity, accountability, and protection to a field long shrouded in legal uncertainty. For the first time, surrogates, intended parents, and children born through assisted reproduction have a legal framework that recognizes their rights and obligations. By empowering single women, recognizing intersex persons, and securing the legal status of children born through surrogacy, the law reflects modern and inclusive values that acknowledge the diverse ways families are formed.
However, the gaps in the Act are real and cannot be ignored. The compensation question leaves surrogates in a vulnerable position, their wellbeing dependent on interpretations of “reasonable expenses” rather than clear statutory protection. The ban on foreign parents, while understandable as a protective measure against exploitation, may also be revisited as Kenya gains experience in regulating this field and can distinguish between genuine cases and commercial abuse.
These are not fatal flaws, but they are areas where the law will need to be progressively refined. No legislation is perfect at birth, and the ART Act provides a strong foundation upon which improvements can be built. Its success will depend on ongoing evaluation, the ethical vigilance of the regulatory bodies tasked with implementation, and future amendments that ensure the women at the heart of surrogacy are treated with the fairness and dignity they deserve. The Act opens a new chapter for reproductive rights in Kenya one that future parliaments and policymakers must continue to write with care.
BY PATRICIA WANJIRU KAHURA,
ADVOCATE OF THE HIGH COURT OF KENYA.
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