Case Metadata |
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Case Number: | Petition 443 of 2014 |
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Parties: | A.M.N, B.K.N & T.M.K v Attorney General, Department of National Registration, Kenyatta National Hospital, Nairobi Ivf Center Limited, Department of Childrens Services & Immigration Services Department |
Date Delivered: | 13 Feb 2015 |
Case Class: | Civil |
Court: | High Court at Nairobi (Milimani Law Courts) |
Case Action: | Judgment |
Judge(s): | Isaac Lenaola |
Citation: | A.M.N & 2 others v Attorney General & 5 others [2015] eKLR |
Advocates: | Mr. Mugola for Petitioner Mr. Okulo for 4th Respondent Mr. Mohamed holding brief for Mr. Kamunyu for 1st Respondent Mr. Muli holding brief for Mr. Tolo for 3rd Respondent |
Court Division: | Constitutional and Human Rights |
County: | Nairobi |
Advocates: | Mr. Mugola for Petitioner Mr. Okulo for 4th Respondent Mr. Mohamed holding brief for Mr. Kamunyu for 1st Respondent Mr. Muli holding brief for Mr. Tolo for 3rd Respondent |
Case Summary: |
The Urgent Need for Laws to Regulate Surrogate Arrangements in Kenya A.M.N.& 2 others V Attorney General & 5 others Petition No 443 of 2014 High Court of Kenya at Nairobi Isaac Lenaola, J February 13, 2015 Reported by Phoebe Ida Ayaya
Brief facts An important issue was raised 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. 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 advise. 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. On application for British Citizenship for the children, enabling them travel to the United Kingdom which was unsuccessful because the procedure that was followed in obtaining birth certificates for the surrogate twins was found wanting in the United Kingdom and thus the 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 under the current legal regime 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?
Family law –surrogacy- definition of a parent – 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 – Children’s Act; Births and Deaths Registration Act, section 22; Constitution of Kenya 2010, article 53(2) Family law -adoption – adoption process-whether the commissioning mother was required to adopt the children even after 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 - Children Act (cap 141) Constitution of Kenya, 2010 Article 53 (2); A child’s best interests are of paramount importance in every matter concerning the child
Held: 1. 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’s 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. 2. 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. The surrogate mother having carried a child following assisted reproduction and no other woman was the child’s legal mother – Section 33(1) of the United Kingdom’s Human Fertilization and Embryology Act, 2008. This remained the case unless the child was subsequently adopted or parenthood transferred through a parental order. Absent adoption or a parental order, she had and retained parental responsibility. 3. Absent 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. 4. 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 2008 Act. 5. 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, had to be guided by two main considerations; a. The need to ensure that the unit of the family as intended in the surrogacy agreement was not ruined by unnecessary detail and technicality. b. That at all times the best interests of the surrogate children was paramount. 6. In addressing the first issue in the context of a parental order, 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. 7. 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. 8. 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). 9. Although the surrogate mother was married, her husband only featured in the signing of the Surrogacy Agreement. It was also obvious that 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. 10. 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 out legal regime, was adoption by the commissioning mother since the commissioning father was already a parent in fact and in law. 11. (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.” Order issued that 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 is their biological mother. Order issued directing the Deputy Registrar of the Family Division 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 is directed to fast-track the enactment of legislation to cater for surrogacy arrangements in Kenya. Cases East Africa 1. AO v SAJ & another Civil Appeal No 188 of 2009 – (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 (CC); [2002] ZACC20, 2002(10) BCLR 1006 (CC);(2) SA 198(CC) – (Followed) Belgium 1. 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. In the matter of Re: D (A child) EWHCC 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) section 2, 22 - (Interpreted) 3. Children’s Act, 2001 (Act No 8 of 2001) section 11 – (Interpreted) United Kingdom 1. Human Fertilisation and Embryology Act, 1990 section 54 2. UK’s Surrogacy Arrangements Act, 1985 International Instruments 1. African Charter on the Rights and Welfare of the Child (ACRWC) (1990) 2. United Nations Convention on the Rights of the Child (1989) Advocates 1. Mr Mugola for Petitioner 2. Mr Okulo for 4th Respondent 3. Mr Mohamed h/ b for Mr Kamunyu for 1st Respondent 4. Mr Muli h/ b for Mr Tolo for 3rd Respondent
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History Advocates: | Both Parties Represented |
Disclaimer: | The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information |
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO.443 OF 2014
BETWEEN
A.M.N. ………………………………………….………………………………….1ST PETITIONER
B.K.N. ……………………………………………………………………....….…2ND PETITIONER
T.M.K. …………………………………….…………………………….…….....…3RD PETITONER
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 CHILDRENS SERVICES…..........................…………….5TH RESPONDENT
THE IMMIGRATION SERVICES DEPARTMENT………..............................……….6TH RESPONDENT
JUDGMENT
Factual Background
“In order to establish British citizenship for J and G there are two options available to you.
Adoption under Article 23 of the 1993 Hague Convention on the Protection of children and Co-operation in Respect of the Inter-Country Adoption – certificates issued under The Hague Convention Article 23 are acceptable for passport services.
Registration as a British citizen – it is open to you to contract 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”
“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 have raised concerns that the details given on the birth certificate were found not to be true…”
(1) That currently there is no law in Kenya regulating surrogacy arrangements and it is because of lack of a legal regime that the Petitioners found themselves in this situation.
(2) That even where there is no legal regime the Constitution elaborates on the need to deal with the issue on the basis of the best interests of the child. Further, in the event of a dispute, the Children’s Court or the High Court may be called upon to give the necessary direction by applying the principles of the Constitution.
(3) That the Petitioners’ application for UK Passports was denied on grounds that surrogacy is not recognized in Kenya and as a result the documents supplied by the Petitioners for their children’s application were not acceptable.
(4) That the only acceptable alternative by the UK passport office is an adoption order.
(5) That pursuant to the surrogacy arrangement the 1st and 2nd Petitioners can no longer satisfy the requirements for an adoption order as the children are actually their own.
(6) That in the face of this conflict of laws and from the unfolding immigration predicament, the Petitioners apprehend that the best interests of the children may not be achieved thus killing the dicta and spirit of the Constitution by discrimination arising from non-recognition of their registration of birth Certificates issued by the Department of National Registration and the birth notification issued by the Kenyatta National Hospital.
(7) That in the forgoing, the Petitioners have suffered loss and hardship from the inability to promptly acquire internationally recognized documents of identity for their children and it is only fair and just, that the Court grants the orders as prayed.
(8) That the honourable Court has jurisdiction to grant the orders sought.
“(1) That this application be certified as urgent and service of the same be dispensed with in the first instance.
(2) That pending the hearing and final determination of this application this honourable Court be pleased to issue Orders to allow the Petitioner to amend the Birth Certificate and Kenyan passports of the Petitioners surrogate children to facilitate the adoption process.(sic)
(3) That pending the hearing and final determination of this application this honourable Court be pleased to offer guidance as to the parental status of Surrogate children in consideration of the conflict of laws between Kenya and the United Kingdom.(sic)
(4) That this honorable Court be pleased to issue a declaration order on the procedures to be used in the adoption of surrogate children with specific reference to harmonising United Kingdom rules.
(5) That the cost of this application be provided for.”
Petitioners’ Case
“The current arrangement is not contentious since the surrogate host woman has raised no objection to the indication of the names of the surrogate genetic couple’s names in the birth notifications of the twins born to the surrogate host woman. From the perspective of the Children’s Act of 1991, the Registration of Persons Act, as well as the Citizenship and Immigration Act No.12 of 2011, it is notable that once the names of the surrogate genetic couple are entered in the birth notification of the children born out of this arrangement, legal parentage is conferred for all purposes under law, and would obviate the need for adoptive procedures subsequently. It is significant that the surrogacy agreement in the instant case documents that the surrogate host woman, on compassionate grounds, will not have any physical or legal custody or any parental duties with respect to the child born out of the arrangement.”
1st , 2nd, 5th and 6th Respondents’ Case
4th Respondent’s Case
Determination
Issuance of Birth Certificates
Who is the mother of the surrogate children?
“(a) The surrogate mother having carried a child following assisted reproduction ‘and no other woman’, is the child’s legal mother-Section 33(1)HFEA 2008. This remains the case unless the child is subsequently adopted or parenthood transferred through a parental order. Absent adoption or a parental order, she has and she has and retains parental responsibility.”
In addition, the learned Judge stated that;
The surrogate mother was not married …Section 35 HFEA 2008 and was neither treated in a UK Licensed clinic, she was not in the category of relationship which would satisfy the so called ‘Fathership’ conditions’ (Section 37 HFEA 2008) which relationships could otherwise have the effect of making the husband/partner of the surrogate mother the legal father in place of the genetic father.
“In California, the position is that single men, single women, heterosexual couples and GLBT (gay, lesbian, bisexual and transexual) couples are able to successfully obtain parental rights. In order to list the intended parents on the birth certificate an order of the Superior Court is required wherein the surrogacy agreement is acknowledged and the position of the intended parents is confirmed. In Florida, the intended parents must petition the Court within three days of the child’s birth for an expedited affirmation of parental status ‘at which point the Court shall schedule a hearing of the matter.’ If the Court is satisfied that the intended parents have entered a valid surrogacy contract and that at least one of them is the child’s genetic parent, the court shall enter an order finding the intended parents to be the legal parent of the child.”
What reliefs are available to the Petitioner?
“… What the commissioning parents want, and what on the face of it X’s best interests plainly demand, is 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 are only two ways in which, in principle, such an outcome can be achieved; an adoption order made in accordance with Section 46 of the Adoption and Children Act 2002 or a parental order made in accordance with Section 54 of the 2008 Act. Adoption is not an attractive solution given the commissioning father’s existing biological relationship with X. As X’s guardian put it, a parental order presents the optimum legal and psychological solution for X and its preferable to an adoption order because it confirms the important legal, practical and psychological reality of X’s identity; the commissioning father is his biological father and all parties intended from the outset that the commissioning parents should be his legal parents…”
“First, they draw on that part of the case-law which identifies the fundamental principles and policy underlying Section 54, directing my attention to three decisions of Theis J. The first is A v P (surrogacy): Parental Order: Death of Applicant) [2011] EWHC 1738 (Fam), [2012] 2 FLR 145, paras 24-26:
The primary aim of Section 54 of the HFEA 2008 is to allow an order to be made which has a transformative effect on the legal relationship between the child and the applicants. The effect of the order is that the child is treated as though born to the applicants. It has clear implications as regards the right to respect for family life under Article 8 of the European Convention. Family life exists in this case as the child has lived with both Mr. and Mrs. A. The child is biologically related to Mr. A and perhaps Mrs. A. The effect of not making an order will be an interference with that family life in that the factual relationship will not be recognized by law. The Court’s responsibility to ‘guarantee not rights that are theoretical and illusory but rights that are practical and effective’ Marckx v Belgium (1979-) 2 EHRR 330, at para 31.”
“A further relevant consideration is that family life is not only a matter of fact and degree but also the significance of legal relationships. In this case if an order is not made there is no legal connection between the child and his deceased biological father. Protection of the right to family life pre-supposes the factual existence of family life (Pini and Bertani; Manera and Atripalidi vs Romania (2005) 40 EHRR 13, [2005] 2 FLR 596, at para 143). Once that is established (and it is in this case) the state must facilitate and protect that right.”
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;
(ii) The child is denied the social and emotional benefits of recognition of that relationship;
“(1) …
(2) A child’s best interests are of paramount importance in every matter concerning the child.”
“The issue I have to decide in this judgment is whether the surrogate mother was married at the relevant time. This is necessary for the purposes of deciding whether, as a matter of English law, the father is the child’s legal father. As Baroness Hale said in Re G (children) [2006] 2 FLR 629, parenthood can be defined in a number of different ways: genetic parenthood, gestational parenthood and social and psychological parenthood. There is, of course, in addition, legal parenthood.
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;
“The relevant statutory provisions are contained in part 2 of the Human Fertilisation and Embryology Act 2008 (‘the HFEA 2008’). Pursuant to Section 33, D’s legal mother is the surrogate mother. This Section provides that the woman who is carrying or has carried a child through surrogacy is to be treated as the mother of the child. This applies whether the woman was in the United Kingdom or elsewhere at the time the surrogacy was effected.”
Further, that;
“By virtue of Section 35 of the HFEA 2008 the answer to the question, ‘Who is the legal father?’, depends on whether the surrogate mother was married at the relevant time. Section 35(1) provides;
‘If – (a) at the time of the placing in her of the embryo or of the sperm and eggs or of her artificial insemination, W was a party to a marriage, and;
(b) the creation of the embryo carried by her was not brought about with the sperm of the other party to the marriage, and;
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’.”
In making her decision she was guided by the following considerations;
“Legal parentage is a matter of law, and in questions of surrogacy, Kenyan law is silent. Consequently, this is an area for future development of public policy and law. In foreign jurisdictions where law recognizes surrogacy arrangements – and we reviewed the United Kingdom, Australia and the United States – the surrogate mother/host woman and her husband (where applicable) are considered the legal parents of any infants born to a surrogacy arrangement, until they transfer their legal rights to the intended parents/surrogate genetic couple. In those foreign jurisdictions, two main legal instruments are employed in the transfer of legal parentage: (i) parental orders or (ii) and adoption order. We note that the Kenyan legal system does not recognize the instrumentality of parental orders that would have been the tool most proximate in reflecting the reality in this case. In the event of a tussle, there is no specific direction for the present case under existing law.
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’s Act.”
“Adoption under Article 23 of the 1993 Hague Convention on the Protection of children and Co-operation in Respect of the Inter-Country Adoption – certificates issued under The Hague Convention Article 23 are acceptable for passport services.
Registration as a British citizen – it is open to you to contract 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”
Whether the Petitioners should be allowed to amend the Birth Certificates and Kenyan Passports of the Surrogate Children
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?
“Noting advances in medical health, and the likelihood that surrogacy arrangements are likely to be witnessed on a more frequent basis in the years to some, there is merit in government initiating a deliberate process of public policy formulation on the question of surrogacy. It is therefore strongly recommended that a formal inter-agency and multi-stakeholder process be initiated by the Ministry of Health to consider the need for a formal policy, and possibly law, on surrogacy in Kenya. The stakeholders may need to consider the following key issues among others during that process;
Conclusion
“The institutions of marriage and family are important social pillars that provide for security, support and companionship between members of our society and play a pivotal role in the rearing of children. However, we must approach the issues in the present matter on the basis that family life as contemplated by the Constitution can be provided in different ways and means and that legal conceptions of what constitutes family life should change as social practices and traditions change.”
“While there appears to be a growing international trend to provide an adequate legislative basis to deal with surrogacy, informal surrogacy has been in existence for a long time. Practiced as far back as the biblical era it is invariable shaped by the cultural, traditional and social norms of a given society. Family members of friends motivated by altruism would become surrogate mothers without any formalities being entered into and this practice probably continues without the oversight or the intervention of the State.
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.”
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 13TH DAY OF FEBRUARY, 2015
ISAAC LENAOLA
JUDGE
In the presence of:
Kariuki – Court clerk
Mr. Mugola for Petitioner
Mr. Okulo for 4th Respondent
Mr. Mohamed holding brief for Mr. Kamunyu for 1st Respondent
Mr. Muli holding brief for Mr. Tolo for 3rd Respondent
Order
Judgment duly delivered.
ISAAC LENAOLA
JUDGE