ON AN ETHICAL FOUNDATION? THE CASE FOR REGULATION OF SURROGACY IN KENYA

Abstract

Kenya lacks a specific regulatory framework on surrogacy despite its Constitution providing for the right to reproductive healthcare. This could be attributed to the complex and contested ethical and legal issues surrounding surrogacy arrangements. This article proposes an ethical framework for the regulation of surrogacy that is based on the ethical principles of autonomy, beneficence, non-maleficence and justice. This article reviews relevant laws, court cases and proposed bills to demonstrate the gaps and make the case for a specific regulatory framework on surrogacy in Kenya. A comparative analysis of the United Kingdom’s, India’s and South Africa’s legal frameworks on surrogacy was undertaken to determine whether they reflect the four ethical principles, and to draw lessons for Kenya’s legislative reform. The results showed that the ethical principles of autonomy, beneficence, non-maleficence, and justice are reflected to varying degrees in the three jurisdictions. Kenya’s current legislative proposals could draw from this patchwork to achieve a balanced approach in protecting the diverse rights and interests of the parties to a surrogacy arrangement.