Why Kenya needs clear surrogacy laws for women’s safety and family rights
Surrogacy in Kenya has existed quietly for years, growing alongside advances in reproductive medicine and the rising number of people seeking alternative ways to have children. Yet for a long time, the law did not move with the science or the social reality.
This left women carrying pregnancies without clear protection, families unsure of their rights, and children exposed to legal uncertainty. Strong surrogacy laws are therefore not about promoting the practice, but about protecting people in a space that already exists.
A legal vacuum that enabled abuse
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Before the introduction of the Assisted Reproductive Technology law, surrogacy in Kenya operated in a legal vacuum. There were no specific rules on how arrangements should be made, who should oversee them, or how disputes should be resolved. Surrogacy agreements were treated as private contracts, even though pregnancy involves health risks, emotional labour, and long-term consequences.
In law, the woman who gave birth remained the legal mother, regardless of prior agreements, creating confusion and risk for everyone involved.
This lack of regulation created fertile ground for exploitation. Where there are no rules, informal systems fill the gap. Agents, brokers, and unregulated clinics stepped in, often setting the terms, controlling information, and profiting the most. Women, especially those in financial distress, were left with little bargaining power and even less legal protection. The absence of oversight meant there were no clear standards for healthcare, consent, compensation, or postnatal support.
Economic hardship and the pull of surrogacy
Many women who turn to surrogacy do so because of economic hardship, not because it is an easy choice. High unemployment, rising living costs, and limited income opportunities prompt women to seek ways to survive and support their families. For some, surrogacy appears as a rare chance to earn money that could pay rent, school fees, or medical bills.
Research shows that women from low-income backgrounds are more likely to enter such arrangements, often with limited information and few alternatives.
Recent expose briefly brought these realities into public view. The investigation showed how women are sometimes recruited when they are financially desperate, promised support, but left exposed once the pregnancy begins.
It highlighted cases where intermediaries benefited more than the women carrying the pregnancies, and where healthcare, compensation, and follow-up support were unclear or inadequate. While the expose did not create the problem, it made visible what had long been happening quietly.
Research backs up these concerns. Studies on unregulated surrogacy consistently show that exploitation thrives where laws are absent. Financial exploitation happens when women receive compensation that does not match the physical and emotional cost of pregnancy.
Medical exploitation occurs when prenatal and postnatal care is poorly monitored or entirely neglected. Legal exploitation arises when women sign agreements they do not fully understand and have no clear legal remedy if things go wrong.
In such conditions, consent becomes complicated. A woman may agree to be a surrogate, but her choice is shaped by poverty, lack of options, and unequal power between her and the people arranging the process.
Without legal safeguards, the line between choice and coercion becomes thin. This is why regulation matters. It does not remove agency; it strengthens it by setting minimum standards that protect health, dignity, and rights.
Amend the existing law
Kenya’s Assisted Reproductive Technology law marks an important shift away from this uncertainty if stakeholders regroup to revise it. It should introduce oversight, set conditions for surrogacy arrangements, and place responsibility on licensed medical professionals rather than informal brokers.
By limiting unethical practices and defining clear roles and responsibilities, the law aims to reduce exploitation and bring accountability into a space that previously relied on silence and trust.
Strong surrogacy laws also protect children. Legal clarity ensures that children born through assisted reproduction have clear parentage, full recognition, and equal rights. It prevents situations where children become stuck between agreements, disputes, or legal loopholes created by adults. In this sense, regulation is not only about women and intended parents, but about the long-term welfare of the child.
Surrogacy will always raise complex moral and social questions. But complexity is not an excuse for inaction.
When the law is absent, the most vulnerable carry the heaviest burden. Clear, enforceable surrogacy laws help ensure that women are not reduced to economic tools, that families have certainty, and that children are protected from birth. In the end, regulation is not about closing doors. It is about setting boundaries and ensuring that a child’s hope is never built on someone else’s silence or suffering.
