A Senate committee has proposed sweeping changes to Kenya’s Assisted Reproductive Technology law, setting the stage for tighter rules on surrogacy, expanded access to fertility services, and new limits on how far assisted conception can go under the law.
The Senate Committee on Health is recommending that the minimum age for a surrogate mother be lowered to 18 years, while at the same time insisting that surrogacy should only be allowed where there is a biological connection between the child and at least one of the intended parents.
The proposals, contained in a report tabled during the short recess, also seek to widen access to Assisted Reproductive Technology (ART) and surrogacy services to include lawful residents in Kenya and Kenyans living outside the country, though under strict controls on embryo management.
Currently, the Bill sets the minimum age for surrogate mothers at 25 years, but the Committee says this threshold is too high and unfair in law and practice.
The Bill itself is meant to address a long-standing gap in Kenya’s legal system, where fertility treatments such as IVF, sperm donation, and surrogacy have been taking place without a clear legal framework, often leading to disputes that remain unresolved.
These disputes include questions on who becomes the legal parent in surrogacy arrangements, how separation of intended parents should be handled, whether surrogates can receive payment, which authority should regulate fertility clinics, and how to protect children born through ART.
“The minimum age for access to ART services should be reduced to 18 years, in line with the age of legal adulthood in Kenya,” the Committee states in its report tabled in the House by Senator Miriam Omar, the Vice Chairperson.
The Committee argues that lowering the age must go hand in hand with safeguards, including compulsory counselling on the medical, ethical and social consequences of ART, as well as informed written consent before any procedure.
It further says that fertility challenges can affect people at a younger age, especially those who suffer early medical conditions such as cancer treatment, premature ovarian failure, or congenital disorders, where reproductive material may only be available early in life.
“Restricting access to ART services to only persons above 25 years could effectively deny these patients the opportunity for genetically related parenthood. In any case, the age of legal adulthood in Kenya is 18 years and, as such, the restrictions would be discriminatory,” the report states.
On surrogacy arrangements, the Committee has proposed the deletion of Clause 34(3)(b), which currently allows surrogacy even where there is no genetic connection between the intended parents and the child.
It argues that allowing arrangements without a biological link increases risks linked to trafficking, child neglect, commercial exploitation, and confusion over legal parentage, inheritance rights, and citizenship status.
Instead, the Committee says adoption should remain the legal option where intended parents do not have a biological connection with the child.
The report also proposes removal of Clause 21, which provides for posthumous conception, saying it goes against the best interests of the child.
According to the Committee, allowing conception after the death of a parent would create a situation where a child is legally born into single parenthood, denying them the presence and care of both parents from the start.
The Committee further wants surrogacy restricted to married couples, while reinforcing the requirement that at least one of the intended parents must have a genetic link to the child.
Under Clause 30(4), surrogacy agreements must clearly state the intended parents and include strict requirements such as medical evaluations, genetic testing before embryo transfer, counselling, and legal advice before signing any contract.
At the same time, the Committee has raised concern over Clause 30(5), which requires pre-approval by the Kenya Medical Practitioners and Dentists Council, saying it could slow down procedures due to unclear standards and subjective decision-making.
It instead proposes a system built on licensing, professional standards, and contractual safeguards rather than prior approval at each stage.
“These objectives can instead be achieved through licensing, professional standards and contractual safeguards,” the report states, adding that the amendment should remove the requirement for pre-approval checks by the Council while retaining mandatory insurance coverage for the surrogate.
Another proposed change limits legal challenges on surrogacy agreements only to the parties involved in the arrangement.
“This ensures that only proper parties approach the court. Further, the proposed amendment will ensure that even the surrogate can initiate court action to compel the performance of obligations under the agreement, particularly with regard to payment of medical expenses and provision of medical cover,” the report states.
The Committee also supports the creation of a regulatory system to oversee fertility clinics, including licensing, monitoring donor records, investigating malpractice, and enforcing ethical conduct across the sector.
It further proposes that no fertility clinic should proceed with surrogacy procedures unless there is valid insurance coverage for the surrogate, which must take effect before the first medical step and remain valid for up to five years after birth.