AMN & 2 others v Attorney General & 5 others (Petition 443 of 2014) [2015] KEHC 6960 (KLR) (Constitutional and Human Rights) (13 February 2015) (Judgment)
A.M.N & 2 others v Attorney General & 5 others [2015] eKLR
Neutral citation:
[2015] KEHC 6960 (KLR)
Republic of Kenya
Petition 443 of 2014
I Lenaola, J
February 13, 2015
Between
AMN
1st Petitioner
BKN
2nd Petitioner
TMK
3rd Petitioner
and
The Attorney General
1st Respondent
The Department Of National Registration
2nd Respondent
The Kenyatta National Hospital
3rd Respondent
The Nairobi IVF Center Limited
4th Respondent
The Department Of Children's Services
5th Respondent
The Immigration Services Department
6th Respondent
A surrogate mother shall be registered as the mother of a born child pending legal proceedings to transfer legal parenthood to the commissioning parents
The petition concerned surrogacy agreements. The court held 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 court pointed out that Kenya requires a law to regulate surrogate arrangements in order to protect all involved and affected parties.
Family Law - surrogacy - surrogacy relationship - where the commissioning mother was registered as the mother in the birth certificate - whether it was legally proper to register the commissioning mother on the child’s birth certificate without going through the adoption process - whether, legally, a woman who gave birth under a surrogacy agreement would be recognized as the child’s mother as opposed to the commissioning mother - Births and Deaths Registration Act, section 22; Constitution of Kenya 2010, article 53(2).Family Law - adoption - adoption process - surrogacy relationship - whether the commissioning mother was required to adopt the children even where a surrogacy agreement was valid - whether it was legally proper to register the commissioning mother on the child’s birth certificate without going through the adoption process.
Brief facts
The case involved a surrogacy agreement and for the purpose of privacy of the parties, the petitioners shall be referred to as X, Y, and Z respectively. X was diagnosed with secondary infertility after losing one child at infancy and having had four miscarriages, each in the first trimester. She sought advise from the Nairobi IVF Center Ltd, the 4th respondent and the latter advised her to seek an egg donor IVF/ET as the most suitable fertility option and both X and her husband, Y, accepted the advice. The egg donor option was undertaken as advised and failed. X and Y sought further advise 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. Z consented to have three embryos transferred to her and to hand over the born baby to the genetic parents. Z underwent the embryo transfer which was successful to term and delivered twin female babies. After taking legal advise 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 Department of National Registration, the 2nd respondent issued their birth certificates.The application for British Citizenship for the children enabling them travel to the United Kingdom was unsuccessful because the procedure that was followed in obtaining birth certificates for the surrogate twins was found wanting in the United Kingdom. It was therefore submitted that there was need to harmonize the legal position regarding surrogacy arrangements between Kenya and the United Kingdom because while the latter had an elaborate legal framework to govern surrogacy arrangements, Kenya had none.
Issues
i. Whether birth certificates issued to children born out of a surrogacy agreement were properly issued in Kenya, without undertaking the adoption process.ii. Who between the surrogate mother and the commissioning mother was the lawful mother of children born under a surrogacy agreement?
Relevant provisions of the Law
Constitution of Kenya, 2010 Article 53 (2) A child's best interests are cfparamount importance in every matter concerning the child
Held
- The children were issued with birth certificates based on the advice given by the Attorney General on the basis of the consent between the surrogate mother and the intended parents. The same was also meant to save the parties’ concerned time and money that would otherwise need to be expended over an adoptive process under the Children Act. That short cut process was however faulted on the argument that the birth certificates were falsified since, in law, the intended mother could not, at the time of issuance, be deemed as the mother of the children.
- A host woman was legally presumed to be the mother of a surrogate child until other legal processes were applied to transfer legal motherhood to the commissioning woman. That remained the case until the child was subsequently adopted or parenthood transferred through a parental order.
- In the absence of a legislative framework in Kenya, the position taken by the United Kingdom’s courts had to prevail and so the surrogate mother was the mother of the twins until such a time as the necessary legal processes were undertaken or until the court issued orders in that regard. As a result, the birth certificates were unlawfully issued contrary to section 22 of the Births and Deaths Registration Act.
- What the commissioning parents wanted, and what the child’s best interests demanded was an order permanently extinguishing all the legal rights and responsibilities of the surrogate parents and permanently vesting all such rights and responsibilities in the commissioning parents. There were only two ways that in principle, such an outcome could be achieved; an adoption order made in accordance with section 46 of the United Kingdom’s Adoption and Children Act (cap 141) or a parental order made in accordance with section 54 of the United Kingdom’s Human Fertilization and Embryology Act.
- Unlike the courts in the United Kingdom, Kenya did not have provision for parental orders and the only option that could have been available was adoption. Whatever decision the court made in that regard however, it had to be guided by two main considerations;
- The need to ensure that the unit of the family as intended in the surrogacy agreement was not ruined by unnecessary detail and technicality.
- That at all times the best interests of the surrogate children was paramount.
- The primary aim of section 54 of the United Kingdom’s Human Fertilization and Embryology Act, 2008 was to allow an order to be made, which had a transformative effect on the legal relationship between the child and the applicants. The effect of the order was that the child was treated as though born to the applicants.
- The court, in granting relief, had to take into account the fact that for the preceding three years, the commissioning parents had struggled to attain the family they intended to have, spent huge amounts of time, money and other resources, yet hitting legal walls. Whatever orders were to be made therefore had to be within the law, realistic, practical and effective.
- The principle that the best interests of the child, in any case involving a child, being paramount, had been universally accepted. The Constitution of Kenya, 2010 contained a provision to that effect in article 53(2).
- Although the surrogate mother was married, her husband only featured in the signing of the surrogacy agreement. Neither of them had any intention of claiming the children in the future and therefore to all practical intents and purposes, the commissioning parents were the ones raising the children as parents. Principally, in crafting an appropriate relief, there was need to confer upon the commissioning parents legal parenthood by the most expeditious and inexpensive lawful process.
- While it was agreed that an adoption order was the only appropriate relief, the efficacy of such an order was cast in doubt because the commissioning father was actually genetically the father of the twins and so could not adopt his own child. What mattered was how to confer parental status/parental responsibility upon the mother. The option that seemed agreeable to all parties and actually the only one visibly available within Kenya’s legal regime, was adoption by the commissioning mother since the commissioning father was already a parent in fact and in law.
- [Obiter] “In Kenya, there is now no doubt that we require a law to regulate surrogate arrangements in order to protect all involved and affected parties including and most importantly, the children.”
Petition allowed.
Orders
- Petition allowed pending a fast-tracked adoption process for the surrogate twins, their birth certificates and Kenyan passports be amended and/or altered to indicate that the surrogate mother and not the commissioning mother was their biological mother.
- The Deputy Registrar of the Family Division ordered to fast-track the adoption proceedings in the interests of justice.
- 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 to fast-track the enactment of legislation to cater for surrogacy arrangements in Kenya.
Citations
East Africa 1. AO v SAJ& another Civil Appeal No 188 of2009 - (Mentioned) 2. JLN & 2 others v Director of Children Petition No 78 of 2014 - (Mentioned) 3. NHOS v Little Angels Network Civil Appeal No 64 of 2012 - (Mentioned) 4. THJ v SMO Civil Appeal No 64 of 2014- (Mentioned) South Africa 1. Ex parte: WH and Others (29936/11) [2011] ZAGPPHC 185; 2011 (6) SA 514 (GNP); [2011] 4 All SA 630 (GNP) (27 September 2011) - (Explained) 2. Du Toit & another v Minister of Welfare & Population Development & others 2003(2) SA 198; [2002] ZACC20, 2002(10) BCLR 1006;(2) SA 198- (Followed) Belgium Marckx v Belgium (Application No 6833/74) - (Followed) United Kingdom 1. Re L (A Minor) [2010] EWHC 3146 (Fam) - (Explained) 2. Re G (Children) [2006] UKHL 43 - (Explained) 3. In Re X & Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam) - (Followed) 4. Re X (A Child) [2014] EWHC 3135 (Fam) - (Followed) 5. Re D (A Child) [2014] EWHC 2121 (Fam - (Distinguished) 6. JP & another v SP & CP [2014] EWHC 595 (Fam) - (Followed) Statutes East Africa 1. Constitution of Kenya, 2010 articles 43, 45, 53 - (Interpreted) 2. Births and Deaths Registration Act (cap149) sections 2, 22 - (Interpreted) 3. Children Act, 2001 (Act No 8 of 2001) sections 11 - (Interpreted) United Kingdom 1. Human Fertilisation and Embryology Act, 2008 section 54 [UK]- (Interpreted) 2. Surrogacy Arrangements Act, 1985 [UK] In general (Cited) International Instruments and Covenants 1. African Charter on the Rights and Welfare of the Child (ACRWC) (1990) 2. United Nations Convention on the Rights of the Child (1989)
Judgment
Factual Background
1.This petition raises the important issue as to how surrogacy agreements should be lawfully operationalized and related questions as to the registration of a child born out of a surrogacy arrangement.
2.For purposes of privacy of the parties, the petitioners shall be referred as X, Y and Z respectively, in all reproductions of this Judgment.
3.In the petition dated September 8, 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 advise on July 13, 2011 from the 4th respondent and the latter advised her to seek an egg donor IVF/ET as the most suitable fertility option and both X and her husband, Y, accepted the advise. 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.
4.X and Y sought further advise 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 June 6, 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 June 7, 2012, Z underwent the embryo transfer at the 4th respondent’s facility and on February 5, 2013, she delivered twin babies of the female gender at the Kenyatta National Hospital, the 3rd respondent.
5.Thereafter and after taking legal advise 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 June 12, 2013 with those particulars recorded. The twins also received Kenyan Passports on June 19, 2014.
6.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 August 4, 2014 was inter-alia as follows;
7.X and Y applied for a review of the said decision and in response, the UK Passport Office stated as follows, by letter dated August 23, 2014;
8.Having sought legal advise on their predicament, the petitioners thereafter came to this court seeking relief on the following grounds;
9.The orders that they now seek for the above reasons are the following;
10.It is obvious that because of inelegance in the drafting of the petition, prayer (1) is misplaced while prayers (2) and (3) are improperly worded. I will however, in line with the provisions of article 159 of the Constitution, determine the twin issues based on their substance and not the inelegance of language and the words used.
Petitioners’ Case
11.Mr Mungola presented the petitioners’ case and relying on the supporting affidavit of X sworn on September 8, 2014 together with its annextures as well as Submissions filed on October 14, 2014, he submitted firstly, that there is need to harmonise the legal position regarding surrogacy arrangements between Kenya and the United Kingdom because while the letter has an elaborate legal framework to govern surrogacy arrangements, Kenya has none. He made reference in that regard to the UK’s Surrogacy Arrangements Act, 1985 and the Human Fertilisation and Embryology Act, 1990.
12.Secondly, that in the present case, although the Attorney General advised X and Y on the procedure to follow in obtaining birth certificates for the surrogate twins, the said procedure has been found wanting in the United Kingdom leading to frustration by X to take the children to the United Kingdom as she had intended to. For avoidance of doubt, the Attorney General in his opinion dated April 11, 2013 addressed to the Chief Executive Officer of the Kenyatta National Hospital stated partly as follows;
13.Thirdly, that based on the provisions of articles 43 and 53 of the Constitution, section 11 of the Children Act, 2001, the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child, children have the right to the highest attainable standards of health, certainty of parentage issuance of a birth certificate and the right not to suffer any form of discrimination. Further, that under article 45 of the Constitution, the family is the natural and fundamental unit of society and the necessary basis for social order and shall enJ the recognition and protection of the State.
14.In addition, that the best interest principle would necessitate that a child’s social and emotional needs would need to be fully met at all times. In that regard, reliance was placed on the decisions in AO v SAJ & anor (2011) eKLR, NHN & OS v Little Angels Network (2014) eKLR, and THJ v SMO (2014) eKLR, In Re A (a child)
15.In applying the best interests of the child principle, the petitioners therefore submitted that in the unique circumstances of this case, the best interests of the twin children would be served if an adoption order was issued in favour of X and Y.
16.Fourthly, and in furtherance of the above submission, a distinction was made as between adoption orders and parental orders with the conclusion made that in the present case, an application in the UK for a parental order would not succeed because under section 54 of the Human Fertilisation and Embryology Act, 2008 one of the conditions for grant of a parental order is that the application thereof must be made within six months of birth. That following the decision In Re: L (a minor) [2010] EWHC 3146 (Fam), the said time limit cannot be extended and so the petitioners have been shut out of that process leaving an adoption order in Kenya as the only remedy available to them.
17.Lastly, that courts should be flexible and liberal in applying the law to individual circumstances and not setciting the South African case of the High Court in North Gauteng (South Africa), Case No29936/1, in the Ex-parte matter between WH & Others."
18.For the above reasons, the petitioners seek the orders elsewhere set out above.
1st, 2nd, 5th and 6th Respondents’ Case
19.The above respondents in response to the petition filed a replying affidavit sworn on October 24, 2014 sworn by Ahmed Hussein, the Director of Children Services in the Ministry of Labour, Social Security and Services. Mr Opondo, learned Litigation counsel also made oral submissions at the hearing of the petition. Their case is straightforward; that since there is no law on surrogacy, the court should decide the petition on the basis of the best interest of the twin children. in addition, that since one of the petitioners is actually a biological parent of the child, adoption cannot be best the relief to be granted because how can one adopt his own children” He offered no alternative relief and left the matter entirely to the court.
4th Respondent’s Case
20.The 4th respondent, the Nairobi IVF Centre Ltd, filed a replying affidavit sworn on an unclear date by Dr Noreh Joshua, an obstetrician gynaecologist and clinical embryologist. Mr Okulo, learned counsel also filed submissions on October 27, 2014. It supports the petition and in submissions added that this court ought to find that looking at the legal definition of “mother”, Z is the mother of the twin children while X is not.
21.That the said fact is borne out by the definition of “birth” in section 2 of the Births and Deaths Registration Act, cap149 Laws of Kenya and reliance was also placed on Re G (children) [2006]UKHL 43 where Baroness Hale Richmond differentiated between genetic parenthood, gestational parenthood and psychological parenthood and that in the instant case, Z is the childrens’ mother by fact of gestational parenthood. As a consequence, it was urged that it was an error to record X as the children’s mother while Z was the one who actually carried and conceived them.
22.It was the 4th respondent’s further submission therefore that the proper relief available to the petitioners is a rectification of the childrens’ birth certificates to indicate Z as the mother and thereafter X can properly adopt the children and thereby meet both the expectations of the law in Kenya and the UK.
Determination
23.Having reproduced the submissions by all parties to this petition, it is obvious that the facts obtaining are wholly uncontested and the factual background above reflects the genesis of and the issues that triggered the petition. It is also a point of agreement that had X and Y not applied for British Citizenship for the twin children and the same denied, this petition would never have been filed.
24.What then are the issues arising for determination” In my view they are the following;
Issuance of Birth Certificates
25.It is admitted that the twins were issued with birth certificates based on the advise given by the Attorney General vide his letter of April 11, 2013. In that letter the Attorney General made that advise on the basis of the consent between the petitioners and to “save all the parties concerned time and money that would otherwise need to be expended over an adoptive process under the Children Act.”
26.The 4th respondent has however faulted that short cut process arguing that the two birth certificates were falsified as X in law cannot be the mother of the children. That issue requires initial resolution, before I return to the issue of birth certificates.
Who is the mother of the surrogate children?
27.This issue has dogged other courts in the past and the effect has been painful for affected parties. In Re: X & Y (Foreign surrogacy) [2008] EWHC 3030 (Fam) for example, reference was made to the diversity of approaches taken by different Countries and in that case, at one point during the proceedings, the effect of the conflict in the applicable UK and Ukrainian laws meant that:
28.This pain is what X has expressed in this case. She has raised the issue of the fact that as she pursued entry into the UK for the children while in Kenya, she lost her employment in the UK and has become almost destitute and yet the matter is far from resolved.
29.In any event, from what authorities I have come across, it would seem that a host woman is presumed in law to be the mother of a surrogate child until other legal processes are applied to transfer legal motherhood to the commissioning woman. I say so based on the following decisions;
30.I am also aware that in some jurisdictions such as France, Iceland and Italy, the surrogate mother has no parental rights over the child and the child born is legally the child of the prospective parents”- See In the ex-parte matter between WH & others at para 46. But having so said it would seem to me that absent a legislative framework in Keya, the position taken by the UK courts and noting specifically the issues before me, ought to prevail here and so I will find that the surrogate mother is the mother of the twins until such a time as the necessary legal processes are undertaken or until this or any other court has issued requisite orders in that regard. I will return to that subject later in the Judgment.
31.I see no reason to go and further and determine the issue of fatherhood because that matter was never contested before me and later, when determining the appropriate relief to the petitioners that issue will resolve itself in the context of Kenyan law as opposed to the law in the UK.
32.Turning back to the issue of the birth certificates, once I have determined that the mother of the twins is the surrogate mother, it follows that the 4th respondent’s contention that the birth certificates were unlawfully issued contrary to section 22 of the Births and Deaths Registration Act, cap149 is the correct legal position in Kenya. In saying so, it is obvious that the petitioners cannot be held to blame for their actions as both the 3rd respondent and themselves acted on the advise of the Attorney General given in good faith in order to assist and alleviate a delicate and pressing situation. Having addressed the first two issues, the only other issue to determine is the appropriate reliefs to be granted in this case.
What Reliefs are available to the Petitioner?
33.From what I have stated above, in Re X (A child) (supra), Sir James Munby in answer to a question similar to the one I am addressing stated as follows;
34.The challenges that the court expressed above are the same challenges that this court is now facing. Sadly, unlike the UK courts, we do not have provision for parental orders and the only option that may be available is that of adoption. Whatever decision this court makes in that regard must be guided by two main considerations;
35.In addressing issue No (i) in the context of a parental order, (and which principle is also applicable in the case of an adoption order), Sir Munby, in Re X (A child) stated thus;As to the effect of not making any appropriate order, he stated thus; “The consequences of not making an order in this case are as follows;
36.In applying the above holding to this case, this court in granting relief must take into account the fact that since 2012, X and Y have struggled to attain the family they intended to have and three years down the line, to attain the family they intended with the twin children to have and three years down the line, with an obvious huge amount of money, other resources and time spent, they have hit legal walls, one after another. I need not repeat the obvious physical and psychological pain that they are undergoing while practically raising the twin children as their own (as they are). Whatever orders are to be made therefore must be both within the law and also realistic and practical. In the words of the court in Marckx v Belgium (supra), they must also be effective.
37.On issue No (ii), the principle that the best interests of the child, in any case involving a child, must be paramount, has been universally accepted. Our Constitution in article 53(2) provides as follows;
38.I have in addition to the above, having been pointed out to the decision in AOG & SAJ (supra) by the Court of Appeal (O’kubasu, Waki and Aganyanya, JJ), NHOS v Little Angels Network (Odero, J) THJ v SMO [2014} eKLR where the said principle was firmly applied.
39.In invoking the said principle, Moylan J In the Matter of Re: D (A child) EWHCC 2121 (Fam) addressed also the issue of fatherhood which was peripherally raised in the present case. Although Z is married, her husband only featured in the signing of the Surrogacy Agreement and it is obvious that neither he nor Z have any intention of claiming the twin children in the future and therefore to all practical intents and purposes, X and Y are the ones raising the children as parents (though their legal parenthood is still to be secured). Moylan J in that regard stated thus;There can be no doubt that both the applicant and the 1st respondent are the social and psychological parents of the child, which is why in the rest of this judgment I will refer to them as the mother and the father. However, this does not make them at law the parents of the child. The father is also a genetic parent but that too, in the circumstances of this case, does not necessarily make him at law a parent or the father of the child. The mother is not the legal parent of the child.The legal parental status of the mother and the father is not affected by the fact that both of them are registered as the child’s parents on the birth certificate provided by the State of Georgia.”He went on to state that;Further, that;‘If -Then, subject to section 38(2) to (4), the other party to the marriage is to be treated as the father of the child unless it is shown that he did not consent to the placing in her of the embryo or the sperm and eggs or to her artificial insemination (as the case may be).Section 35(2) provides;‘This section applies whether W was in the United Kingdom or elsewhere at the time mentioned in subsection (1)(a).’Section 48 of the HFEA 2008 provides that where, by virtue of the Act, a person is to be treated as the mother, father or parent of a child,‘that person is to be treated in law as the mother, father or parent (as the case may be) of the child for all purposes.’Section 48(2) provides the converse, namely that where, by virtue of the HFEA 2008, a person is not to be treated as a parent of the child,‘that person is to treated in law as not being a parent of the child for any purpose’.”
40.I have quoted Moylan J to reiterate the matters I raised elsewhere above and to note that the learned Judge was addressing the case before him in the context of the HFEA 2008 which is not applicable to the case before me but which I only cite as persuasive to my mind. Even then, the principle of law raised in it is that in crafting an appropriate relief, there is need to confer upon X and Y legal parenthood by the most expeditious and inexpensive lawful process. Elsewhere above, while all the petitioners and the 4th respondent have agreed that an adoption order is the only appropriate relief, the 1st, 2nd 5th and 6th have raised doubts about the efficacy of such an order because Y is actually genetically the father of the twins and so how can he adopt his own child” To my mind, that issue is not important because what matters as stated by Mrs Justice Eleanor King in JP & another v SP & CP [2014] EWHC 595 (Fam) at paragraphs 24 - 43 is how to confer “parental status/parental responsibility upon the mother.” In that case, she toyed with a number of lawful options including;
41.The above considerations also apply to the case before me and I note that in his letter of April 11, 2013, the Attorney General stated as follows;Noting the absence of contention in this case, therefore, Kenyatta National Hospital may consider the surrogacy agreement, together with the surrogate host woman’s no objection, as consent to enter the names of the intended genetic couple in the birth notification of twins born out of this arrangement, and subsequently in the birth certificate of the said twins. This would save all parties concerned time and money that would otherwise need to be expended over an adoptive process under the Children Act.”
42.In his opinion therefore and contrary to submissions made before me, the Attorney General did not rule out adoption as an option open to the commissioning parents ie X and Y. Similarly, in the letter dated August 4, 2014, the UK Passport Office stated that the options available to X and Y are;
43.It would seem from the above therefore that the common option that seems agreeable to all parties and is actually the only one that I can see is available within out Legal regime, is adoption by X since Y is already a parent in fact and in law. I say so also in view of what Munby J stated in Re X (A child) elsewhere above.
44.Since adoption is therefore the only relief that meets both the expectations of the law in Kenya and the UK, I should now return to the prayers in the petition before i dispose of the matter.
Whether the petitioners should be allowed to amend the Birth Certificates and Kenyan Passports of the surrogate children
45.I have held that the birth certificates and the Kenyan Passports were issued in error and in contravention of the law (albeit in good faith) and both therefore ought to be amended to reflect the fact that while Y remains the biological father, Z should be recorded as the biological mother pending the finalization of the adoption process.
What guidance should the court offer as to the parental status of surrogate children in consideration of the laws between Kenya and the United Kingdom”
46.I have held that 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. This position will remain until a statutory framework is created perhaps along the lines of the law in the UK because of our historical ties including in our laws.
47.In that regard, I note that the Attorney General recognized this lacunae in his letter of April 11, 2013 wherein he stated thus;
48.I note the above initiative and would only add that the matter requires urgent attention to save prospective parents the agony that X and Y have undergone.
49.The above finding would also address prayer 4 in the petition. I say so because the only available procedure in Kenya today is adoption under the Children Act. Such a procedure would also meet the expectations of the law in the UK and I have shown why.
Conclusion
50.In Dm Toit & another v Minister of We fare and Population Development & others 2003(2) SA 198 (CC), Skweyiya J stated as follows;
51.Further, in the ex-parte matter between WH & others (supra), Tomlay and Kollapen Jihad this to say;However there is also growing recognition that private and familiar relationships may not always provide the answer to parents who seek to have a child of their own resulting in both the recognition in some jurisdictions of formal surrogacy and the need to regulate it.”
52.I adopt all the above findings and would add that in Kenya, there is now no doubt that we require a law to regulate surrogate arrangements in order to protect all involved and affected parties including and most importantly, the children - See also JLN & others v Director of Children [2014] eKLR per Majanja, J.
53.The matter is at an end and the final orders to be made are that;The petition dated is allowed in the following terms;
54.Orders accordingly.
DATED AND DELIVERED ON FEBRUARY 13, 2015I. LENAOLAJUDGE