By AMOS MUOKI
When a Kenyan couple turns to In Vitro Fertilisation, IVF or surrogacy to finally hold a child of their own, they rarely realise that the law has not quite caught up with the science. While private fertility clinics in Nairobi have made assisted reproductive technology (ART) increasingly accessible, the legal framework remains silent on critical questions: who is the legal mother when another woman carries the baby? What happens to frozen embryos if the couple separates? And can a child born through donor sperm be left without a recognised father? As more Kenyan families are built through these methods, the absence of clear rules threatens to turn the joy of parenthood into a courtroom battle over parentage, consent, and the very definition of a parent.
When the Body Won’t Cooperate
Infertility is not merely a medical diagnosis. It is a thief. It steals the quiet joy of imagining a child’s face, the easy laughter at family weddings and the pride of watching a graduation procession. As Okoth’s lecture notes put it, infertile couples are constantly reminded of their perceived failures — at school events, during the birth of a niece or nephew, even at the simple sight of a neighbour pushing a pram.
But here is the strange truth: for someone who never wanted children, infertility can feel like a blessing — no more awkward conversations about contraception, no sleepless nights worrying about parenthood. The lecture acknowledged this too, refusing to paint everyone with the same brush.
How Science Steps In
The techniques sound like something from a futuristic novel. In Vitro Fertilisation, IVF begins with a woman undergoing hormonal treatment to produce multiple eggs. Those eggs are retrieved, fertilised with sperm in a laboratory dish, and the tiny embryo is either returned to her womb or frozen for another day. Then there is cryopreservation, where sperm, eggs, or embryos are stored in liquid nitrogen, waiting.
There is egg donation, where a woman with no healthy eggs of her own receives a gift from another. And there is GIFT gamete intra-fallopian transfer where eggs and sperm are mixed and placed directly into the fallopian tube, allowing nature to take over from there.Each of these procedures has brought a baby into eager arms. But each also carries a shadow.
The Uncomfortable Questions
What happens to the embryos that are never implanted? For those who believe life begins at conception, discarding an embryo is no different from ending a life. And what of the child created with a donor’s sperm? The lecture raised a delicate point: the separation of biological fatherhood from social fatherhood. A child may grow up knowing that the man who reads bedtime stories is not the man whose DNA they carry.
Then there is the charge of “unnaturalness”. Some critics argue that ART turns children into commodities to be ordered, frozen, and chosen like items from a catalogue. Why, they ask, do we not first embrace adoption, offering a home to the thousands of Kenyan children already alive and waiting?
The Law’s Slow Walk
In Kenya, ART is currently treated as a medical procedure, governed mainly by the Health Act’s rules on consent. Before treatment, a patient must be told the benefits, the risks, the costs, and the alternatives. That is all.
But what happens when a couple disagrees? Consider the famous British case of Evans v Amicus Healthcare. A woman named Natalie Evans had frozen embryos with her partner. When they separated, he withdrew his consent. She wanted to use the embryos to have a child; he refused. The court sided with him. Her chance at motherhood — using those specific embryos was gone.
Kenya has no such clear ruling yet. And without clarity, the lecturer warned, families built through science can find themselves in heartbreaking legal limbo.
Who Is Mom and Dad?
Under the Children Act, parental responsibility means providing food, shelter, medical care, education, and dignity. But when a child is born through egg donation, sperm donation, or surrogacy, who holds that responsibility? The UK’s Human Fertilisation and Embryology Act carefully defines motherhood and paternity in such cases. Kenya may need to follow suit.
Two local cases have already tested the waters. In JLN & 2 Others v Director of Children Services, the High Court grappled with the rights of commissioning parents versus the welfare of a child born through surrogacy. And in the poignant Matter of Baby TDL, an adoption case in Milimani, the court helped clear a path for legal parentage after surrogacy. But these are individual decisions, not a comprehensive law.
Surrogacy: The Woman in the Middle
Perhaps the most emotionally charged terrain is surrogacy. Here, one woman, the gestational mother carries a child for another, with the understanding that she will hand the baby over, often within a day of birth. In partial surrogacy, her own egg is used. In full surrogacy, the embryo comes from the commissioning parents or donors.
Should money change hands? The UK’s Surrogacy Arrangements Act says no to commercialisation, though reasonable expenses are allowed. Kenya has not yet taken a firm stand. What is clear is that parentage in surrogacy is often resolved through adoption — a process that can be long, expensive, and emotionally draining for parents who have already waited years.
Guarding the Gates
There should be warning against darker possibilities. Preimplantation genetic screening could be used to select for traits beyond medical necessity. Sex selection remains a real danger in a society where sons are still prized over daughters. And then there is human cloning the asexual creation of a human organism genetically virtually identical to an existing or past person. By inserting a donor’s DNA into an egg whose own nucleus has been removed, a scientist could, in theory, produce a copy. Most countries have banned it outright. The lecturer urged Kenya to remain vigilant.
The miracle of assisted reproduction has given thousands of Kenyan families what nature denied them: a child to love, to raise, to call their own. But a miracle without a legal framework is a fragile gift. Until Parliament addresses the glaring gaps in our law; who is a mother, who is a father, what happens to frozen embryos, and how surrogacy is regulated, every child born through ART carries an invisible burden. Their parents may have signed consent forms at a fertility clinic, but in the eyes of the law, they could be strangers.
The silence of our statutes is not neutral; it is a risk. It leaves families vulnerable to disputes, children exposed to uncertain parentage, and doctors practising without clear rules. Kenya has an opportunity to lead the region by enacting comprehensive ART legislation laws that respect the dignity of the child, the autonomy of the parents, and the ethical limits of science. The science has already arrived. It is time for the law to catch up, so that every child, no matter how conceived, grows up with the one thing every human being deserves: a legally recognized family.
The writer is legal commentator on constitutional and human rights issues, the article is intended for public education and does not constitute legal advice.
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