A.M.N & 2 others v Attorney General & 5 others [2015]
CASE NUMBER: Petition No. 443 of 2014
REGION: Nairobi
COURT: High Court
DATE OF DECISION: 13 February 2015
RELEVANT LAW: Constitution, Articles 43, 53, 159
Births and Deaths Registration Act, Cap.149
Laws of Kenya, UK’s Surrogacy Arrangements Act, 1985
DECISION: The mother of surrogate children is the surrogate mother.

SUMMARY

Facts
In the petition dated 8 September 2014, the petitioners aver that X was diagnosed with secondary infertility after losing one child at infancy and having had four miscarriages, each in the first trimester. She then sought advice on 13 July 2011 from the 4th respondent and the latter advised her to seek an egg donor IVF/ET treatment as the most suitable fertility option and both X and her husband, Y, accepted the advice. The egg donor option was undertaken when
an anonymous donor’s eggs were identified, but the procedure failed as X had no endocervical canal and so access to her cervix was impossible.

X and Y sought further advice from the 4th respondent and it was agreed that a surrogate arrangement was the next best option and Z agreed to be the surrogate host. Her husband was also agreeable to the arrangement and a surrogacy agreement was subsequently signed on 6 June 2012. By that agreement, Z inter-alia consented to have three embryos transferred to her
and to hand over the born baby to the genetic parents. On 7th June 2012, Z underwent the embryo transfer at the 4th respondent’s facility and on 5th February 2013, she delivered twin babies of the female gender at the Kenyatta National Hospital, the 3rd respondent.

Thereafter and after taking legal advice from the Attorney General, Kenyatta National Hospital issued a birth notification certificate indicating that X and Y were the parents of the twins and the 2nd respondent issued their birth certificates on 12 June 2013 with those particulars recorded. The twins also received Kenyan passports on 19 June 2014.

What triggered the filing of the petition was the fact that X and Y, sometime after June 2014, applied for British citizenship for the children and to enable them travel to the United Kingdom but the application was unsuccessful and the response from the UK passport office dated 4 August 2014 was inter-alia as follows:

“In order to establish British citizenship for J and G there are two options available to you.

1-Adoption under Article 23 of the 1993 Hague Convention on the Protection of Children and The Trends and Prospects of Public Interest Litigation in Kenya – Compendium 33 Co-operation in Respect of the Inter-Country Adoption – certificates issued under The Hague Convention Article 23 are acceptable for passport services.

2-Registration as a British citizen – it is open to you to contact the United Kingdom Visa & Immigration service (UKV&I) with a view to registering the children as British citizens. You should contact UKV&I via the website www.gov.uk”

X and Y applied for a review of the said decision and in response, the UK passport office stated as follows, by letter dated 23 August 2014:

“From the information we were given in the application, your daughters’ claim would be based on the fact that they had a British parent named on their birth certificate. Information provided in support of your daughters claim has raised concerns that the details given on the birth certificate were found not to be true…”

Decision

The surrogate mother is the legal mother and the genetic father is the legal father until a legal process is invoked to transfer legal parenthood to the mother. An order was issued that, pending a fast-tracked adoption process for the surrogate twins herein, their birth certificates and Kenyan passports shall be amended and/or altered to indicate that Z and not X is their biological mother.

The adoption proceedings contemplated in (a) above shall be fast-tracked and an order was issued directing the Deputy Registrar of the Family Division to fast-track the adoption proceedings in the interests of justice.

It was determined that in cases of surrogacy, the surrogate mother shall be registered as the mother of a born child pending legal proceedings to transfer legal parenthood to the commissioning parents.

The Attorney General was directed to fast track the enactment of legislation to cater for surrogacy arrangements in Kenya.

Click here to download compendium report

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