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. 

By Dr DANIEL GITI

The Cabinet Secretary for the National Treasury has rightfully acknowledged the shrinking of the traditional ways of budget financing and as such, the public sector alone cannot fund Kenya’s economic transformation. It is important to put things into perspective from a global to local point of view. 

The United Nations Sustainable Development Goals (UN SDGs) Report 2025, which provided the tenth annual stocktaking of global progress toward the 2030 Agenda for Sustainable Development delivered a stark assessment: the Sustainable Development Goals have improved millions of lives, but the current pace of change is insufficient to fully achieve all the goals by 2030. 

UN SDGs, adopted by the United Nations in 2015, is a set of universal agenda of 17 goals aims at ending poverty, reducing inequalities and promoting inclusive and environmentally sustainable growth by 2030. Achieving these goals requires massive investments, estimated in trillions of dollars annually, which many governments cannot mobilize on their own because of a myriad of issues and challenges, including financial crises, which have increased since the first recorded financial crisis in 33 BC in the Roman empire.

The Kenya Vision 2030, which was launched in June 2008, is the long-term development blueprint for the country, whose aim is to create “a globally competitive and prosperous country with a high quality of life by 2030”. It seeks to transform Kenya into “a newly-industrializing, upper middle-income country providing a high quality of life to all its citizens in a clean and secure environment".

Kenya Vision 2030 is implemented through 5 year successive Medium-Term Plans (MTPs) and since the introduction of Counties, the MTPs are also supported by the County Integrated Development Plans (CIDPs). MTP I 2008-2012, MTP II 2013-2017, which was supported by CIDP I; MTP III 2018-2022 and CIDP II; MTP IV 2023-2027 and the CIDP III, which is also linked to the BETA and last of the Vision MTPs before transition to next vision.

To finance the 17 UN SDGs, end extreme poverty, provide safe space for all to live, enough to eat and sense of security, the world needs to address financing gap of $ 4.3 trillion every year. This need is a drop compared to the global wealth estimated at $ 450 trillion. The Kenya Vision 2030 development blueprint requires KSh. 60 trillion or $ 470 trillion to be fully implemented of which MTP IV requires KSh. 15.3 trillion. 

A typical CIDP funding in a county would require 90 to 200 billion over five years in a county, which would translate to 5 to 8 trillion shillings in the whole country (47) counties in five years. Many counties cannot fund their CIDPs internally hence may require external and leveraging of Public Private Partnerships (PPPs) because they would face a 30 to 70 percent shortfalls in financing their CIDPs.

The design of the Kenya Vision 2030 is that 70% should be financed by the private parties and 30% by the GoK.  Financing the UN SDGs, the Kenya Vision 2030 and CIDPs aspirations is not a question of availability of capital but that of aligning these aspirations with countries/counties sustainable development targets and priorities.  

A 2022 report of the SDGs implementation showed that private players contributed less than 20% of the financing despite massive requirements from this sector, and the same is true for Kenya Vision 2030. The challenge for UN SDGs, Kenya Vision 2030 and CIDPs implementation is devising win-win paradigm shifts between public and private players and PPPs/partnerships/collaboration becomes the only viable option.

There is consensus that public and private entities are no longer competitors, but strategic partners in development. This is evidenced by their long tradition of collaboration in funding many ventures both locally and globally. The private sector success and growth depends on a stable and predictable business environment; access to finance; robust infrastructure; and a focus on innovation and competition. 

A thriving private sector is crucial for achieving the Kenya Vision 2030's objectives and fostering sustainable wealth creation because of six major reasons. First, the private sector is a major driver of the much desired and sought after economic growth, with a significant portion of Kenya's Gross Domestic Product (GDP) originating from private sector activities. This is the reason there is need for increased access to credit for private sector businesses which is necessary to fuel real GDP expansion by enabling them to innovate, expand, and compete effectively. Secondly, the private sector is a primary source of employment in Kenya, creating numerous job opportunities and contributing to the overall labor market.

Thirdly, the private sector's investments in various industries, from agriculture to manufacturing and finance, drive innovation and technological advancements, which in turn lead to increased productivity and economic growth. 

The private sector is key to the realization of the Kenya Vision 2030 development blueprint and the CIDPs, which is heavily reliant on the private sector's ability to generate wealth and create employment opportunities. Fourthly, a healthy private sector contributes significantly to the government's revenue collection through taxes and other economic activities at a time when government faces a limited and constrained tax expansion base and options. Fostering a supportive environment for private sector growth is crucial for increasing tax revenue and other growth aspects, including financing of projects as noted by the World Bank in 1993 in the “enabling markets to work” strategy that calls for greater divestiture of government from some projects. 

Fifth, private sector plays a vital role in developing local markets by investing in distribution networks, market research, and product adaptation and through understanding and catering to the needs of local consumers, they can create sustainable demand for goods and services, driving economic expansion. 

Sixth, the government and the private sector can collaborate on various projects, such as infrastructure development, to leverage the private sector's expertise and resources. Public-Private Partnerships (PPPs) can help address infrastructure challenges and promote economic growth. Kenya has a robust PPP framework, including the PPP Act, 2021 and the PPP Directorate based at the National Treasury hence the country should leverage on the concept to accelerate development. 

Dr Giti is an urban management, public - private partnerships (PPP) and environment specialist.

 @danielgiti