Assisted Reproduction, Surrogacy and Parental Rights in Kenya: the ART Bill and 2026 Changes Explained

Kenya’s legal framework for assisted reproduction law is undergoing its most significant transformation in decades. The Assisted Reproductive Technology Bill, 2022, which advanced through parliamentary committee stages in late 2025 and received detailed scrutiny from the Health Committee in May 2026, proposes for the first time a comprehensive statutory regime governing IVF, surrogacy, donor conception and clinic licensing. Meanwhile, the High Court’s January 16, 2026 decision in In re B has clarified critical parentage questions that the existing common-law framework left uncertain. This guide explains the current legal position as of July 2026, walks prospective parents and fertility clinics through the practical changes ahead, and provides actionable checklists designed to reduce legal risk during this transitional period.

What Is the ART Bill and Where Is Kenya Now?

The Assisted Reproductive Technology Bill, 2022 is a private member’s Bill that was published in the Kenya Gazette and formally introduced in Parliament in early 2023. It represents Kenya’s first attempt at dedicated ART legislation. Before the Bill, assisted reproduction operated in a regulatory vacuum: no statute specifically addressed IVF, gamete donation, embryo storage or surrogacy. Fertility clinics followed professional medical standards and guidelines from the Ministry of Health’s National Reproductive Health Policy 2022–2032, but there was no bespoke licensing regime, no statutory register of ART procedures and no legislative definition of legal parentage in ART contexts.

The Bill defines assisted reproductive technology broadly, covering in-vitro fertilisation, gamete intra-fallopian transfer, intrauterine insemination, surrogacy and related procedures. Critically, the Bill distinguishes altruistic surrogacy, where the surrogate receives no payment beyond reasonable medical and pregnancy-related expenses, from commercial surrogacy, which it prohibits outright. The Kenya National Commission on Human Rights (KNCHR) issued an Advisory on the ART Bill in 2024 reinforcing the need for safeguards against commercialisation, child trafficking and discrimination.

Key Provisions That Change Practice

Several provisions in the ART Bill Kenya framework will, once enacted, transform daily practice for clinics and intended parents alike:

• Licensing requirement. All facilities offering ART services must obtain a licence from a newly created Assisted Reproductive Technology Council. Operating without a licence becomes a criminal offence.
• ART register. The Council must maintain a national register of all ART procedures performed, including donor details (subject to confidentiality rules), surrogate arrangements and outcomes.
• Prohibition on commercial surrogacy. Only altruistic surrogacy arrangements between qualifying parties are permitted; commercial surrogacy attracts criminal penalties.
• Parentage provisions. The Bill introduces a statutory mechanism for transferring legal parentage from a surrogate to the intended parents, replacing the current reliance on adoption or court-ordered parental declarations.
• Prohibited practices. Sex selection for non-medical reasons, human cloning and transfer of animal embryos to human beings are expressly banned.

Timeline of Legislative Steps and Latest Parliamentary Actions

Current Legal Status of Surrogacy and IVF in Kenya

As of July 2026, Kenya has no enacted statute specifically governing assisted reproduction or surrogacy. IVF and related fertility treatments are lawful, they are not prohibited by any existing legislation, but they operate under general medical regulations and the broad ethical guidelines set out in the National Reproductive Health Policy 2022–2032. This means that IVF is legal in Kenya, though clinics must comply with the general regulatory framework for healthcare facilities.

Surrogacy in Kenya occupies a similar legal space: it is neither expressly permitted nor prohibited by statute. In practice, surrogacy arrangements have been structured as private contractual agreements between intended parents and surrogates, often with the involvement of fertility clinics acting as intermediaries. The enforceability of these agreements, however, has been uncertain. Courts have generally treated surrogacy contracts as valid expressions of intent but not as automatically conferring parental rights on the intended parents. The KNCHR’s Advisory on the ART Bill underscored this gap, warning that the absence of regulation creates risks of exploitation, commodification and inadequate protection for children born through these arrangements.

Once the ART Bill is enacted, the landscape will shift materially. Commercial surrogacy will be prohibited, and only altruistic arrangements meeting strict statutory criteria, including court pre-approval in some proposals under the Health Committee’s recommendations, will be lawful. Fertility clinic regulation in Kenya will move from general medical licensing to a specialised regime overseen by the ART Council.

What Judicial Decisions Say About Parentage

Two High Court decisions frame the current understanding of parental rights in assisted reproduction cases. In AMN v Attorney General (February 13, 2015), the court addressed a surrogacy arrangement and confirmed that under existing Kenyan law, the woman who gives birth, the surrogate, is recorded as the child’s mother on the birth certificate. The intended parents must then seek a court order, typically through adoption proceedings or a declaration of parentage, to be recognised as legal parents.

The January 16, 2026 decision in In re B revisited these principles. The court reaffirmed that the birth-mother presumption applies in the absence of specific ART legislation but went further in clarifying the procedural steps required for intended parents to obtain a parentage declaration. Industry observers expect this decision to serve as the practical template for parentage applications until the ART Bill introduces a statutory mechanism.

Who Is the Legal Parent? Parentage, Registration and the Practical Effect for Children Born by ART

The question of IVF parentage in Kenya is one of the most urgent issues for families using assisted reproduction. Under current law, the Births and Deaths Registration Act governs all birth registrations. The Act does not contemplate ART-specific scenarios, which means the standard rules apply: the woman who delivers the child is registered as the mother, and the husband (if married) is presumed to be the father. For unmarried intended parents or same-sex couples (noting that Kenya does not recognise same-sex relationships), the position is even more complex.

The ART Bill proposes to resolve this by creating a dedicated parentage registration pathway. Under the Bill’s framework, intended parents who enter into a qualifying surrogacy arrangement and comply with the prescribed requirements would be entitled to a parentage order that directs the Registrar of Births to record them, not the surrogate, as the child’s legal parents. This is a fundamental shift from the current post-birth adoption or declaration model.

Genetic, Gestational and Social Parentage

Kenyan law currently recognises parentage primarily through gestational and biological connections. The ART Bill introduces a more nuanced framework that acknowledges three dimensions of parentage relevant to assisted reproduction. Genetic parentage refers to the individuals whose gametes were used. Gestational parentage refers to the woman who carries and delivers the child. Social parentage, the intended parents who will raise the child, is the category that the ART Bill elevates through its parentage-order mechanism. Early indications suggest that once implementing regulations are published, the Council will require evidence of all three dimensions before issuing a parentage certificate.

Registering Parentage: Step by Step

Until the ART Bill is enacted, the process to register parentage for a child born through surrogacy or donor conception in Kenya follows these general steps:

1. Birth registration. The surrogate (birth mother) is initially registered as the mother under the Births and Deaths Registration Act.
2. Court application. The intended parents file a petition in the High Court for a declaration of parentage or, alternatively, commence adoption proceedings under the Children Act.
3. Supporting evidence. The court typically requires the surrogacy agreement, medical records confirming the ART procedure, genetic testing results (where applicable), consent of the surrogate and a welfare report.
4. Court order. If satisfied, the court issues a declaration of parentage or an adoption order.
5. Re-registration. The intended parents present the court order to the Registrar of Births to amend the birth certificate.

For a detailed walkthrough of this process, including the forms and evidence requirements, see our guide on how to register parentage for IVF and surrogacy children in Kenya.

Practical Steps for Intended Parents and Clinics Under Assisted Reproduction Law in Kenya

The transitional period between the current common-law framework and full enactment of the ART Bill creates heightened legal risk. Both intended parents and fertility clinics should take proactive steps now to protect their interests and ensure compliance with the emerging regulatory environment.

For Intended Parents

• Engage qualified legal counsel early. Do not proceed with any surrogacy arrangement without a family lawyer experienced in ART matters. Legal advice should be obtained before the surrogacy agreement is signed, not after the child is born.
• Execute a comprehensive surrogacy agreement. The agreement should address medical decision-making authority, expenses, consent to relinquishment, contingency scenarios (multiple pregnancies, disability, relationship breakdown) and dispute resolution. See our guide on drafting enforceable surrogacy agreements in Kenya for recommended clauses.
• Verify clinic credentials. Confirm that the fertility clinic holds valid medical facility licences and employs qualified reproductive specialists. Once the ART Bill is enacted, using an unlicensed facility may invalidate your parentage claim.
• Secure donor consents. If using donor gametes, obtain written, witnessed consent from the donor that includes explicit relinquishment of parental rights and obligations.
• Plan for parentage registration. Budget time and legal costs for a court application. Under current law, this process can take several months. Gather all supporting documents before the birth.
• Consider interim court orders. In complex or cross-border cases, seek pre-birth declaratory orders where the court’s jurisdiction permits.

For Clinics

• Audit current licensing and compliance. Review all existing medical facility licences and prepare for the transition to the ART Council licensing regime.
• Implement robust consent protocols. Ensure that every patient, donor and surrogate signs comprehensive informed consent forms that meet both current medical ethics requirements and the anticipated ART Bill standards.
• Establish recordkeeping systems. The ART Bill will require detailed procedural records. Begin maintaining a register of all ART procedures, donor information, surrogate arrangements and outcomes now.
• Train staff on prohibited practices. Ensure all clinical and administrative staff understand the practices that the ART Bill prohibits, particularly commercial surrogacy, sex selection for non-medical purposes and cloning.
• Appoint a compliance officer. Designate a senior staff member responsible for regulatory compliance and liaison with the future ART Council.

Surrogacy Agreements and Enforceability in Kenya

A surrogacy agreement in Kenya is currently treated as a private contract. There is no statutory framework that governs its form, content or enforceability. Courts have recognised surrogacy agreements as evidence of the parties’ intentions, particularly relevant when determining parentage, but no Kenyan court has held that a surrogacy agreement is specifically enforceable in the sense that it can compel the surrogate to relinquish the child.

The ART Bill proposes to formalise the requirements for a valid surrogacy agreement. Industry observers expect that the enacted legislation will require surrogacy agreements to be in writing, witnessed, and potentially pre-approved by the ART Council or a court. Agreements involving commercial payments beyond reasonable expenses will be void and unenforceable. This distinction between altruistic and commercial surrogacy is central to the Bill’s framework and aligns with the KNCHR’s advisory recommendations on preventing exploitation.

Regardless of the Bill’s ultimate form, intended parents should ensure their agreements are as robust as possible under existing contract law principles.

Sample Clause Checklist (Non-Binding)

The following clauses are recommended for inclusion in any surrogacy agreement Kenya parties enter into. This checklist is non-binding guidance, not legal advice:

• Identification of all parties, intended parents, surrogate, spouse of surrogate (if applicable) and any gamete donors
• Medical decision-making authority, who decides on prenatal care, delivery method and emergency interventions
• Consent to relinquishment, surrogate’s express consent to surrender the child to the intended parents after birth
• Expenses and payments, itemised list of allowable expenses (medical, transport, nutritional) with caps; explicit statement that no commercial payment is made
• Contingency provisions, multiple pregnancy, foetal abnormality, surrogate’s withdrawal, intended parents’ death or divorce
• Confidentiality and privacy, protection of all parties’ personal and medical information
• Governing law and dispute resolution, choice of Kenyan law and agreed dispute resolution mechanism (mediation before litigation)
• Independent legal advice, confirmation that each party received separate legal advice before signing

Cross-Border Surrogacy: Recognition, Risks and Steps for Kenyan Parents

Cross-border surrogacy Kenya arrangements, where the child is born abroad under a foreign surrogacy agreement, or where foreign intended parents commission surrogacy in Kenya, raise distinct legal challenges. Kenya does not have a bilateral treaty or multilateral convention specifically addressing cross-border surrogacy or the recognition of foreign parentage orders arising from ART.

Foreign birth certificates are generally accepted for identification purposes in Kenya, but they do not automatically confer legal parentage under Kenyan law. A foreign court order declaring intended parents as legal parents must typically be recognised through a separate application in the Kenyan High Court, which has discretion to refuse recognition if the order conflicts with Kenyan public policy. The likely practical effect of the ART Bill’s prohibition on commercial surrogacy is that Kenyan courts may decline to recognise foreign orders arising from commercial arrangements.

For Kenyan parents pursuing surrogacy abroad, the following steps are critical:

• Obtain authenticated copies of all foreign court orders, translated into English where necessary and apostilled or certified by the relevant Kenyan embassy
• Secure citizenship documentation for the child, including passport issuance, before leaving the foreign jurisdiction
• Apply for recognition of the foreign order in the Kenyan High Court promptly upon return
• Engage dual-jurisdiction counsel, retain a family law specialist in both the country of birth and Kenya to coordinate the legal process

Penalties, Enforcement and Ethical Limits for Clinics and Intermediaries

The ART Bill introduces a tiered penalty framework designed to deter prohibited practices and ensure compliance with the new regulatory regime. While exact penalty amounts remain subject to final parliamentary approval, the Bill as published provides for both criminal sanctions (fines and imprisonment) and administrative penalties (licence suspension or revocation).

Prohibited practices under the Bill include:

• Commercial surrogacy, facilitating, arranging or participating in surrogacy for commercial gain
• Sex selection, using ART to select the sex of an embryo for non-medical reasons
• Human cloning, creating a genetically identical copy of a human being
• Animal-human hybrids, transferring animal embryos to human beings or vice versa
• Operating without a licence, providing ART services without a valid licence from the ART Council

Medical practitioners found in breach may also face disciplinary proceedings before the Kenya Medical Practitioners and Dentists Council, including suspension or removal from the medical register. The KNCHR has further recommended that enforcement mechanisms include mandatory reporting channels and whistleblower protections.

What to Do Now, Immediate Checklist and Decision Flowchart

Whether you are a prospective parent considering assisted reproduction or a clinic providing fertility services, the current transitional period demands immediate action. The following decision framework reflects the assisted reproduction law Kenya landscape as of July 2026:

If you are planning a surrogacy arrangement:

1. Consult a qualified family lawyer in Kenya before entering any agreement
2. Confirm that the arrangement is structured as altruistic, no commercial payments beyond documented expenses
3. Execute a written, witnessed surrogacy agreement covering all recommended clauses
4. Verify the fertility clinic’s licensing status and compliance readiness
5. Gather all parentage documentation before the expected birth date
6. File a court application for a parentage declaration or adoption order promptly after birth

If you are a fertility clinic:

1. Conduct an internal compliance audit against the ART Bill’s anticipated requirements
2. Upgrade consent forms to cover all ART-specific scenarios
3. Implement a comprehensive ART procedure register
4. Train all staff on prohibited practices and reporting obligations
5. Designate a compliance officer and establish a direct liaison channel with the Ministry of Health
6. Monitor parliamentary proceedings for final enactment dates and transitional provisions

Resources, Forms and Where to Get Legal Help

Navigating the evolving regulatory landscape requires access to primary legal sources and qualified professional advice. The following resources are essential reference points:

• ART Bill text, available from the Parliament of Kenya website
• Health Committee Report on the ART Bill (May 2026), published by Parliament with detailed implementation recommendations
• Court judgments, AMN v Attorney General (2015) and In re B (2026) are available on the Kenya Law website
• KNCHR Advisory, the Kenya National Commission on Human Rights advisory on the ART Bill provides human rights safeguard recommendations
• National Reproductive Health Policy 2022–2032, available from the Ministry of Health for clinical standards and policy context
• WHO policy database, global comparative data on ART regulation and best practice

For personalised legal advice, consult a qualified family law practitioner through the Global Law Experts family practice directory or the Kenya lawyer directory.

Sources

1. Parliament of Kenya, Assisted Reproductive Technology Bill, 2022
2. Parliament of Kenya, Health Committee Report on ART Bill (May 2026)
3. Kenya Law, AMN v Attorney General (2015)
4. Kenya Law, In re B (2026)
5. KNCHR, Advisory on the ART Bill 2022
6. Ministry of Health, National Reproductive Health Policy 2022–2032
7. WHO, Global Policies on Assisted Reproductive Technology