Kenyan National Assembly passes Bill regulating IVF and surrogacy

Kenya's National Assembly has passed the Assisted Reproductive Technology Bill, marking the country's first step toward a legal framework regulating assisted reproduction.

The Assisted Reproductive Technology (ART) Bill, 2022, would provide Kenya's first legal framework for fertility services including IVF, intrauterine insemination (IUI), gamete and embryo donation, and surrogacy. In line with Article 43 (1)(a) of the Constitution, which guarantees the right to the 'highest attainable standard of health', the Bill encourages access to safe, ethical, and affordable fertility care for all Kenyans, irrespective of gender and marital status.

'Thank you, Honourable Members, for finally bringing to an end this long, protracted process,' said speaker of the National Assembly, Moses Wetang'ula. He added that the Bill will make a 'real difference' to the lives of people experiencing infertility.

The Bill includes plans to establish an Assisted Reproductive Technology Committee within the Kenya Medical Practitioners and Dentists Council. The Committee would license and regulate fertility clinics, and keep a national register of children born through assisted reproduction and donors. Gamete donors would also be limited to a maximum of ten donations.

Written consent would be required for all fertility treatments, and posthumous use of gametes or embryos only permitted if prior consent is given. The Bill also includes measures to prohibit certain practices including human cloning, sex-selection and sale of gametes, and introduce penalties of up to ten million Kenyan Shillings (approximately £60k) or ten years' imprisonment.

The Bill also includes a framework for surrogacy in Kenya. Only altruistic surrogacy would be permitted, allowing surrogates to receive compensation for medical expenses, but prohibiting additional payments. Intended parents and surrogates would be required to undergo counselling, and surrogates would be eligible for three months' leave after giving birth, while intended parents would qualify for maternity or paternity leave.

Under the Bill, only Kenyan citizens aged between 25 and 55 would be eligible for surrogacy, and surrogates must be aged between 25 and 45, have given birth to at least one biological child, and have passed medical and psychological assessments. Intended parents would also be recognised as the child's legal guardians from birth, addressing concerns about abandonment of surrogates and children. Previously, some foreign intended parents have faced difficulties returning to their home countries with their children born via surrogacy in Kenya (see BioNews 982 and 1165).

Wetang'ula thanked MPs who worked on the Bill 'for tremendous industry in making your Bill have a moral colour and make it applicable to our country, without giving a window to foreigners to come in and do things that are unacceptable to us.'

The Bill was approved by MPs in the National Assembly but must receive approval in the Senate before it can become law.