When a woman — whom we shall refer to as Christina to protect her privacy — checked into a Nairobi hospital in January, she was all set to give birth and hand over the twins to their parents, whom we shall refer to as John and Winnie.

Christina had entered into a surrogacy agreement with the couple that she — the surrogate mother — would carry the babies to term and, as soon as she gave birth, hand them over to John and Winnie. But it was not to be for the three found themselves in court, having taken the hospital there to have the children returned to them as per their earlier agreement.

What happened was that, when it came to registering the birth and the surrogate mother informed the hospital that another woman would be coming to register the children, the hospital called the Director of Children’s Services, whose officers took the twins away, to a children’s home and then to the Kenyatta National and Referral Hospital.

What followed was a long and gruesome court struggle for the couple to get their children back. And with the case, a topic emerged that has hitherto not been discussed as much as it ought to: Surrogacy and test-tube babies.

At the end of the court case, the presiding judge, Justice David Majanja, ruled that the babies be released to the couple and the surrogate mother be allowed unlimited access to the twins for breastfeeding.

“I don’t think the Director acted in the best interests of the children as there was no dispute between the surrogate mother and genetic mother,” the judge ruled.

Further, the judge ruled that the couple’s names would be listed as the legal parents in the birth notification and certificate. The couple and the surrogate mother were each awarded Ksh500,000 ($5,680) — a total of Ksh1.5 million ($17,045) — as compensation for the embarrassment they were put through and violation of their rights.

In the landmark ruling, Justice Majanja pointed out a glaring truth: That surrogacy is no longer a hypothetical issue as many Kenyans are resorting to it on medical grounds, meaning that the state should protect surrogacy agreements.

No law on surrogacy

There is currently no law in Kenya that regulates these surrogacy arrangements; more reason, perhaps, why Justice Majanja urged that the state protect the children born out of such arrangements and provide a foolproof legal framework.

Doctors estimate that about 20 per cent of couples will require general assistance in conception with 10 per cent requiring serious assistance. Little wonder then that assisted reproductive technology such as in vitro fertilisation (IVF), with a success rate of between 40 and 45 per cent, is gaining momentum in Kenya.

READ: IVF: Cost, procedure and who is qualified

Infertile couples can thus revive their hopes of parenthood through this process, where an egg is fertilised by a sperm outside the body – in a test-tube – after which the embryo is transferred to the woman’s womb.

But even as hundreds of test-tube babies are born every year in the country, IVF in Kenya has been happening largely without clear-cut guidelines and rules.

IVF gets more complicated where the mother cannot carry the embryo and, therefore, has to use a surrogate mother or the mother does not have enough eggs and is required to use donated eggs. Several legal loopholes have emerged in such cases, for example, what happens to the surrogate mother? Does the egg or sperm donor have follow-up rights?

These are some of the questions that the Taskforce on Regulatory Framework for Assisted Reproductive Technology sought to answer.

“We wanted to determine the standard procedure in egg and sperm (gamete) donation and look into accountability and traceability of all cells used,” said Prof Koigi Kamau, University of Nairobi lecturer and consultant gynaecologist at Nairobi Hospital, who led the taskforce.

Although the taskforce never completed its work due to lack of funding, several issues stood out that Prof Koigi feels need to be addressed in streamlining this service.

Surrogacy — where a surrogate, a woman who becomes pregnant, carries and delivers a child on behalf of another couple (intended or commissioning parents) — has been a thorn in the IVF flesh.

“The surrogate mother is just a carrier. Even the genes will show that she is not the mother. A mother should be the owner of the embryo,” says Prof Koigi. According to Prof Koigi, there should be a law that clearly defines who is the mother of the baby and in what circumstance to prevent unnecessary tussles between the surrogate mother and the real mother.

In other countries, there is a provision for pre-conception adoption that makes it very clear from the beginning that the surrogate is only the embryo carrier. Sometimes the surrogate mother may turn against the real parents and refuse to hand over the baby.

For example, at the Nairobi IVF Centre, a surrogate mother who had delivered twins refused to hand them over, saying the agreement was for one child! “The two parties had to go back to the drawing board and sign another legal agreement that allowed the commissioning parents to take their two children,” said Dr Joy Noreh of Nairobi IVF Centre.

“If there is a proper framework, the law supersedes everything and this is why there must be a very clear pre-conception agreement that the surrogate mother is only being paid for the service to help another couple who cannot carry the baby,” Prof Koigi said.

Sperm and egg (gamete) donation remains a grey area as far as IVF in Kenya is concerned. If, for example, you donate your egg or sperm, can you follow up years later? The answer is no.

“There should be no relationship with the donor. What is important is to understand the profile of the person you would like as your donor and it ends there,” said Prof Koigi.

Currently, few countries have a clear framework to manage IVF. Only organisations such as the European Society of Human Reproduction and Embryology (ESHRE) have guidelines and laws on assisted reproductive technology. According to ESHRE guidelines, the woman who gestates (surrogate) is not expected to have parental rights or responsibility over the child she delivers.

But even as childless couples continue to grope in the dark, there is hope for IVF and surrogacy in Kenya, thanks to the In Vitro Fertilisation Bill 2014, sponsored by Mbita Member of Parliament Millie Odhiambo.

This Bill seeks to protect the rights of test-tube babies. If the Bill is passed into law, such children shall enjoy the same rights as those born through sexual intercourse. The Bill also provides for the children born through IVF to know their origin, if need be.

The Bill will also be in line with international standards and best practice that make it clear that a surrogate mother shall automatically give up the parental rights of the test-tube baby, unless the parties decide otherwise.

According to the Bill, the Kenyan authorities should note details of the egg or sperm donor so that any adult who wishes to know if he or she was born through IVF can confirm with them.

“Among other things, this will reduce the chances of involuntary incest in cases where a man donates sperm several times to different women, but his biological offspring grow to adulthood and meet later in life, unaware that they are related,” says the Bill.

Although IVF has been going on in Kenya, there is no register of beneficiaries. The proposed law is expected to seal a legal loophole that led to the biological parents of a child who was born by a surrogate being forced to surrender the baby to the surrogate mother who bore the child.

The Bill says that a surrogate will automatically cede parental rights to the child upon birth, unless there is a contrary agreement. According to Ms Odhiambo, there is no legal framework to guide IVF and the procedure has been going on “in legal nudity.”

“A person may not be infertile, but due to lifestyle dynamics or complications arising from conditions such as fibroids, they may not be able to bear children. This Bill aims at helping such women raise their own children,” she said.

According to Dr Noreh, before an embryo is implanted into the surrogate womb, the surrogate must be counselled thoroughly to understand the whole process and the consequences if any are involved. “A psychologist has to establish if she has a sound mind and ready for the process before she can sign the legal agreement,” she said.

To reinforce the legal framework of surrogacy in the country, nominated Senator Judith Sijeny has proposed through Reproductive Health Care Bill (2014) the prohibition of commercialisation of surrogacy in a bid to protect poor women from being exploited in what she terms “surrogacy farms.”

Ms Sijeny’s Bill entitles everyone to gestational surrogacy and in future, parties involved in surrogacy arrangements will be required to put it in writing. The surrogate mother, according to this Bill, will be required to understand and accept the legal consequences of the surrogacy agreement and must not use gestational surrogacy as a source of income.

While the two Bills, if passed, will provide a much needed legal framework, there are still many grey areas that have been left uncovered. The IVF Bill, for example, is silent on the number of times a woman can undergo the procedure, and also how many times a man can donate his sperm for use in IVF. Neither does it provide guidelines on the possibility of using the procedure in bearing twins.

IVF laws in other countries

Many countries have strict rules on who is allowed to get fertility treatment. In Africa only South Africa, Morocco and Egypt have laws on IVF treatment. However, in South Africa, foreigners are not allowed to have a surrogate unless they have citizenship.

France and Italy forbid single women and lesbian couples from using artificial insemination and IVF to conceive. Austria and Italy have banned all egg and sperm donations for IVF. Germany and Norway ban donating eggs, but not sperm.

Sweden requires couples to have a stable relationship for at least a year to qualify for fertility treatment. Switzerland, among others, requires couples to be married. And nearly everywhere in Europe except Ukraine, couples are banned from hiring a woman to carry a pregnancy for them.

Austria, Germany and Italy are particularly restrictive, limiting treatment to diagnosed infertility, while France, the Netherlands, Portugal and Sweden also permit the use of IVF to avoid the transmission of serious diseases, such as HIV or genetic disorders. Of countries that insist on a medical indication, all but two (the Netherlands and Sweden) also require treatment seekers to be heterosexual couples.

By Njoki Chege and Christabel Ligami