Kenya could soon outlaw commercial surrogacy if a new Bill before Parliament is passed, marking a major step toward regulating the country’s unmonitored fertility industry.
The Assisted Reproductive Technology Bill (2022) proposes a total ban on the exchange of money or benefits for surrogacy services and introduces strict penalties for anyone caught selling embryos, eggs, or sperm.
The proposed legislation, which seeks to close the legal gap surrounding assisted reproduction, was at the centre of Wednesday’s National Assembly debate. It aims to establish clear laws on fertility treatments and prevent the exploitation of women under unregulated surrogacy arrangements.
Under the Bill, anyone found engaging in paid surrogacy or trading in human embryos could face a fine of up to Sh10 million or a jail term of up to ten years, or both. The law also bars medical professionals from facilitating such transactions, warning that doctors and embryologists who violate the law will face the same punishment.
Lawmakers who supported the Bill said it would protect vulnerable women and restore order in a sector that has been operating without proper oversight. Nominated MP Dorothy Ikiara said many women struggling with infertility have suffered in silence, and the law would bring structure and fairness to the system.
“This will raise the spirit of many women who have been crying silently out there and don’t know whom to turn to,” Ikiara told the House.
However, sharp disagreements arose over an amendment requiring court approval before a surrogate can surrender her parental rights. Millie Odhiambo, the Suba North MP who sponsored the Bill, opposed the clause, arguing that it was unnecessary and would only complicate matters for intended parents.
“We don’t go to court for one to confirm that the children they are raising are theirs. Let us drop this amendment,” Odhiambo said.
Despite her objection, Endebess MP Robert Pukose confirmed that the Health Committee’s amendment had been adopted. The clause provides that where the surrogate and intended parents have no biological connection to the child, the surrogate must, through a court order, transfer parental rights to the intended parents immediately after birth.
Committee chair James Nyikal defended the provision, saying it was a safeguard against misuse and ensured that parentage was legally clear.
“Where the couple or intended parent is not genetically connected to the child, the couple or intended parent shall only be the parents of the child and shall be listed as the parents in the birth notification and in the birth certificate following a court order,” the Bill states.
Beyond banning commercial surrogacy, the legislation introduces detailed rules for both surrogate mothers and intended parents.
A woman offering to carry a child must be aged between 25 and 45 years, have given birth at least once before, and pass both physical and mental health evaluations. She can act as a surrogate a maximum of three times, with a mandatory two-year gap between each birth.
Intended parents must be between 25 and 55 years old and will only cover the surrogate’s medical costs. The Bill also prohibits agencies from advertising or arranging surrogacy deals and bars the importation of genetic material for commercial use.
If enacted, the new law will bring Kenya in line with other countries that have outlawed paid surrogacy, creating a clear and enforceable framework for assisted reproductive technology.
