Kenya: Why Surrogacy in Kenya Is Shrouded in Secrecy

Fetus. embryo. pregnant, abortion. pregnancy.
31 October 2020

When Emily and Hillary Kiptui decided to use a surrogate it was not an easy decision. For 10 years the couple had battled miscarriages.

"They said I was too weak to hold a pregnancy to term," says Emily who is 38. The cost of treatment and the emotional trauma of losing multiple pregnancies weighed her down. "It was heartbreaking. I felt inadequate as a woman. But I was also afraid that I'd lose my life in pursuit of a baby," she says.

It was after their 9th loss, and a near-death experience on Emily, that they thought of going for another option.

Her husband fronted the idea of adoption. She refused. "I felt like I was being condemned. I'd rather have stayed childless," she says.

Opting for surrogacy

In 2016, during a clinic visit, her obstetrician-gynecologist floated the idea of surrogacy. "My doctor suggested that I could have my own baby through surrogacy."

She felt this would be a good option. But when Emily started scouting for a surrogate mother through her networks and online through agencies, she realised just how grueling the task is.

"The charges were too exorbitant. Some women asked for over Sh1 million. Others agreed to take between Sh300,000 and Sh500,000 then pulled out at the last minute citing legal fears and family condemnation," says Emily.

Getting the right person

She finally found a woman who was willing to carry her pregnancy in the Uthiru area, Nairobi. "She wanted a compensation fee of Sh600,000 deposited in an education fund." After convincing her husband, Emily engaged the surrogate mother and on September 20, 2017, their daughter Amari was born. Within three months, she had taken full legal custody of the child.

"Amari means a miracle of God. She is our three-year-old miracle from heaven," prides Emily.

Emily is one of the hundreds of women who turn to surrogacy to have their own biological children.

The numbers in Kenya

A spot check by the Saturday Magazine at the Nairobi IVF Centre reveals that before Covid-19, the fertility centre received five clients per month requiring the use of a gestational surrogate.

This number is now down to about two per month. "A large number of clients are foreigners mainly from neighbouring countries or abroad. In a year, we get about 30 clients requiring treatment for surrogacy.

Other IVF treatments average at 30 clients per month," said Ayieta Lumbasyo, an Advocate and Bio-Ethicist, and the current legal and ethical officer at the Nairobi IVF Centre.

Surrogacy is an arrangement where a woman agrees to carry and deliver a child for another woman. In the surrogacy procedure, the embryo is formed using the commissioning father's sperm and mother's eggs. Where only one party is interested, the embryo is formed using the commissioning parent's egg or sperm, and a donor's egg or sperm. Once created, this embryo is transferred to the surrogate mother.

Reasons for surrogacy

Infertility and the inability to carry a pregnancy to term are two of the most common reasons why women opt for surrogacy. Former Taita Taveta Woman Representative Joyce Lay is among the most prominent Kenyan women to take the surrogacy route.

Joyce was unable to have children after her uterus and fallopian tubes got damaged. "After my fallopian tubes were damaged and cut off, the doctors realised that my cervix was closed and I was in constant pain," she said in an interview a few months after the birth of her child through surrogate parenthood.

After her uterus was removed, Joyce felt an overwhelming emptiness. She wanted a child of her own. She considered adoption but set the idea aside because it would not fill the void and desire of having her own child. She then started considering surrogacy.

Friends as surrogate

Fortunately, one of her close friends volunteered to carry the pregnancy for her. "I felt moved by what she was going through. I wanted to bless her with the joy of motherhood," her surrogate said. Asked if she felt anything after giving birth and passing the child unto Joyce, the surrogate mother said that it never bothered her.

There are two types of surrogacy, a gestational carrier, and a traditional surrogate. With gestational carriers, pregnancy is usually achieved through in vitro fertilization (IVF). With a traditional surrogate, pregnancy is usually achieved through intrauterine insemination (IUI) using sperm from a donor or intended father. Lumbasyo cautions that traditional surrogacy where a surrogate is impregnated using her own eggs is not legally enforceable or perceived as surrogacy.

Scammers Alert

Surrogacy in Kenya is still shrouded in secrecy. Lack of proper legal regulation has allowed surrogacy to be a mining field for scammers. According to Murigi Kamande, an Advocate of the High Court, Kenya has no formal law that regulates surrogacy and assisted reproduction.

In March this year, Winnie Maina was charged at the Milimani Law Courts for allegedly defrauding Dion William Van Aardt Sh2.9 million. She had claimed that she could get Dion a woman to be his surrogate mother at the fee and received the money between January 12, 2018, and February 19, 2019.

Ironically, Ms. Maina claimed that she was a surrogate mother of four and the director of the Family Fertility and Surrogacy Agency in Nairobi.

The high fees

A spot check by the Saturday Magazine reveals that surrogacy agencies in Kenya mainly target foreign couples. The majority of them such as New Life Kenya, Growing Families, and Surrogacy Agency Kenya have not listed their local contacts, but claim they can solicit and hook up commissioning parents with Kenyan surrogates at a fee. This fee can be as high as Sh4 million per pregnancy. At Surrogacy Agency Kenya, the fee ranges between Sh800,000 and Sh3.6 million.

But figures from the Nairobi IVF fertility centre shows that the actual costs of IVF are significantly lower. Treatment cost varies from Sh462,000 and Sh492,000. Basic IVF - where gametes (egg and sperm) from the commissioning parties are used - costs Sh462,000. IVF with an oocyte (egg) donor costs Sh492,000 while IVF with a sperm donor costs Sh482,000.

"These costs exclude compensation for the surrogate. The cost of hiring a surrogate varies from one surrogate to the other, but commonly ranges from Sh500,000," said Lumbasyo.

Surrogacy as a business

The high prices charged as compensation for surrogate mothers have lured poor, biologically fit mothers into trading their wombs. "I can agree if you pay me well. I would do it for Sh1 million," Mercy Mbinya who lives in Kawangware says.

Others like Ruth Wairimu made their first million from trading their wombs. Ruth, 36, says that she earned her first million through surrogacy. "I am a two-time surrogate mother. I was recruited by a friend into the trade. In my first experience, the agency paid me Sh400,000. In my second experience, I got Sh600,000 and delivered twins," she says.

There are women who have carried pregnancies for much less. "Most of us do it out of economic desperation. Not out of compassion or need. Some of us take as little as Sh200,000," says Ruth. While the majority of surrogate mothers charge to carry pregnancies, there are some like Joyce Lay's surrogate who do it out of compassion.

Surrogacy for compassion

One of these women is Liza Karegi. She told the Saturday Magazine that she wouldn't mind carrying a child for a woman who may be unable to carry a child of her own. "I wouldn't charge to be a surrogate, but I'd love to connect with a woman who has really struggled with infertility and be a blessing to them," Liz, who is currently expectant, said.

One of the common fears among women is that the surrogate mother might influence the child's behaviours. But this claim is not true. "There is nothing that is transferable to the foetus from the surrogate. The surrogate only offers foetus oxygen and nutrition. This means that the genetic composition of the baby is wholly made up from the commissioning parents," said Lumbasyo.

What the law caters for

Lumbasyo says that in absence of a law on surrogacy, the surrogate is considered as the mother. The birth notification slip is issued in her name. "There has to be a legal process which terminates the surrogate's parental responsibility and confers the same to the commissioning parents," she says.

Previously, the transfer of responsibility from a surrogate to the commissioning parent was done through the family adoption method. "The courts have now adopted the Parental Responsibility Order which is used to get a birth certificate in the commissioning parents' names," says Lumbasyo. This order is issued after a DNA test to establish a genetic connection between the baby and the commissioning parents.

Infertility numbers

Data from the Kenya Fertility Society indicates that two in every 10 couples suffer from infertility. The data also estimates that at least 4.2 million Kenyans require medical assistance to conceive. "The overall burden of infertility and subfertility is significant, even though more likely to be underestimated, and has not displayed any decrease over the last 20 years," says WHO.

How to do surrogacy right

According to Ayieta Lumbasyo, there are certain pointers you should bear in mind when considering surrogacy. These include:

- Pre-surrogacy counseling for both parties: This will help prepare you for any eventualities.

- A reputable surrogacy agency: Ask your fertility doctor to recommend a reputable source for a gestational surrogate. With a reputable surrogate, chances that the money and baby transfer process will be smooth are high.

- Gestational surrogacy agreement: Your surrogacy arrangement should at least be put in writing before the process starts. This agreement should be conducted with the help of an advocate.

- Parental order: Once the child has been born, use the services of the advocate to obtain a parental order to transfer the names from those of the birth mother (surrogate) to the genetic/intended parents.

- Don't cut corners: When cutting corners, there will be high chances that you may end up getting stuck in a child-trafficking web.

The Reproductive Healthcare Bill 2019

A bill is currently in Senate seeking to address among others surrogacy. The bill has been sponsored by Nakuru County Senator Susan Kihika. It states that:

1. The commissioning parents or parents must be at least age 25 and not more than age 55.

2. The surrogate mother must be at least age 21.

3. The surrogate and the commissioning parents must sign a written agreement in Kenya.

4. The commissioning parents must meet the expenses of the surrogate mother with regard to the prenatal care regimen necessary for the care of the surrogate mother and child during the pregnancy.

5. The bill allows for the termination of a surrogate parenthood agreement following the termination of a pregnancy, before the implantation of a fertilised embryo in the surrogate mother's womb, and where a dispute arises between the commissioning parents before implantation is done.

5 celebrity women who've had children via surrogacy

- Tyra Banks: Used a surrogate after multiple failed attempts to get pregnant.

- Gabrielle Union: Used a surrogate after multiple miscarriages and failed IVF.

- Kim Kardashian: Used a surrogate after two complicated pregnancies.

- Lucy Liu: Used a surrogate to balance parenthood and career.

- Nicole Kidman: Used a surrogate to expand her family.


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