Kenyatta Rejects Maternity Leave for Mothers Adopting Children

(file photo).
10 February 2021

President Uhuru Kenyatta has rejected a Bill that would have compelled employers to give leave to parents of adopted children or those born through surrogacy.

Mr Kenyatta returned the Bill to Parliament with a memorandum citing the absence of a substantive legal and regulatory framework governing surrogacy in Kenya.

The Employment (Amendment) Bill, 2019 sponsored by Gilgil MP Martha Wangari sought to provide two months leave to mothers of a child born as a result of surrogacy and two weeks paternity leave to the father.

"Amongst the reasons for his reservations ... the President notes that amending the law in the manner proposed in the Bill will lead to surrogacy agreements operating in a vacuum in terms of absence of a substantive legal and regulatory framework governing surrogacy in Kenya," National Assembly Speaker Justin Muturi said while alerting MPs of the President's memorandum rejecting the Bill.

"The President also objects to the proposal on grounds that the provisions relating to surrogate motherhood agreements are of a substantive nature hence necessitating the formulation of a comprehensive policy arrived at after broad public participation and stakeholder engagements that will inform legislative positions."

Kenya lacks a law on surrogacy, a method of assisted child birth where parents commission a woman to give birth on their behalf.

Under the current law, a child born through a surrogacy still needs to be adopted through a court process.

Mr Kenyatta said while surrogacy is a novel reproductive science, it touches on children, reproductive rights and the concept of family and therefore there is need to first put in place a rigorous substantive legal and regulatory framework to protect all parties within the surrogacy agreement.

The pre-adoptive leave targeted to benefit parents who commission other women to carry babies on their behalf, bringing them in the same bracket with those who nurse their own pregnancies.

"Where a child is born as a result of a surrogate motherhood agreement, an employee who is a commissioning parent shall be entitled to two consecutive months parental leave with full pay from the date the child is born in the case of a female employee and two weeks paternal leave with full pay, in the case of a male employee who is married," the Bill states.

Ms Wangari while moving debate on the Bill said the two months would provide adequate time for the mother to bond with her child.

Mr Muturi has directed the Labour and Social Welfare Committee to consider the President's memorandum and file a report within 21 days.

The House will require a two-thirds majority-- or 233 lawmakers--to overturn the President's memorandum on the amendments.

Kenya's law currently allows a fully paid, three-month maternity leave and a two-week paternity break for fathers. Many companies frown upon these breaks, viewing them as an additional labour cost that sometimes forces them to hire temporary workers.

MPs four years ago unsuccessfully tried to amend the law to provide for an option to extend maternity leave by another three months without pay.

Proponents of the longer maternity policy reckons it will help in the recruitment and retention of women at the workplace.

The International Labour Organisation Maternity Protection Convention recommends maternity leave for at least 18 weeks or four and a half months.

The United States is among a few countries that do not have a paid-leave law.

This means in the US mothers and fathers go back to work much sooner after birth of a baby than they would like because they can't afford unpaid time off.

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