Kihika Bill solves citizenship puzzle for children born of surrogate parents

The Reproductive Healthcare Bill 2019 or the so-called Susan Kihika Bill currently before the Senate has elicited a lot of debate especially on issues to do with abortion and teenage access to family planning methods.

However, focus should also be on assisted reproduction and surrogacy that the Bill seeks to address.

Surrogacy is the process of carrying and delivering a child for another person. There are mainly two types of surrogacy. Gestational surrogacy is where a woman, the genetic mother, provides an egg to be fertilised and another woman, surrogate mother, carries the foetus and gives birth to the child.

Traditional surrogacy is where a woman provides her own egg, which is fertilised via artificial insemination and she carries the pregnancy and gives birth to a child for another person.

The issue of citizenship for children born from transnational surrogacy arrangements has been a challenge in many jurisdictions. In 2014, the Hague Conference Permanent Bureau identified the question of citizenship for children born from these arrangements as a pressing one that requires urgent attention at the international level.

This is because unlike in the traditional modes of establishing citizenship by jus soli and jus sanguinis (place of birth and decent) surrogacy challenges this by redefining what parentage is. Legal citizenship has been the bone of contention in many surrogacy-related cases.

Kenyan citizenship has traditionally been determined either by birth or by registration. Where a child is born to a Kenyan parent or to a foreign national who then registers to become a Kenyan, the citizenship of such a child has been easy to establish as Kenyan laws on birth and citizenship, have solely focused on citizenship by birth or by registration.

However, surrogacy challenges this traditional approach to citizenship establishment especially in gestational surrogacy where the surrogate mother is Kenyan but the commissioning parents are foreign nationals. Even though Parliament enacted citizenship and nationality laws in 2011 and 2012 after the promulgation of the Constitution in 2010, the issues of citizenship for children born in Kenya out of international gestational surrogacy arrangements remain a big challenge because none of these laws has specific provisions on how to treat citizenship of such children.

The jurisprudence from the courts is based on the Constitution, Kenya Citizenship and Immigration Act and Registration of Births and Deaths Act and is to the effect that the birth mother is the surrogate —effectively conferring Kenyan citizenship by birth to a child that has no genetic relationship to the Kenyan mother as anticipated in the Constitution. This therefore raises the legitimacy of such citizenship.

The current jurisprudence from the Kenyan courts in three cases namely AMN or petition 442 of 2014, JLN or case number 78 of 2014 and WKN or case number 205 of 2014, all on issues around children born of surrogacy arrangement, is to the effect that the birth mother of a child born out of gestational surrogacy is the woman that walks into the hospital heavy with a child and delivers a baby either naturally or through Caesarian-section.

This is based on the correct interpretation of Section 2 of the Births and Deaths Registration Act of 1972.

In the AMN case, Justice Isaac Lenaola instructed that the Attorney-General cause there to be a law regulating the issues of surrogacy to avoid disputes.

As Justice David Majanja had opined in the LJN case, ‘surrogacy is not a hypothetical issue any more. It is real, and many Kenyans are resorting to surrogacy as an alternative to being parents especially those who cannot, for medical reasons, have their own children’.

As the debate rages on the Kihika Bill, my interest in the Bill in particular, is part three that addresses assisted reproduction. In this part, various aspects of assisted reproduction and surrogacy are well articulated.

In Section 21, the Bill resolves the conundrum created by the current legal regime and the jurisprudence on the same where only the woman that walks into hospital heavy with a child is considered the birth mother.

The Bill recognises surrogacy arrangement and in Section 21(a), the commissioning parents are recognised as the legal parents and thus entered in the register of birth as the birth parents and thus provided with a birth notification bearing their names.

This effectively helps them to acquire birth certificates and travel documents for their child. Section 21 (b) addresses the issue of citizenship of the child and confirms that the child will take the citizenship of the commissioning parents and not the surrogate mother as is currently the case.

In as far as the issue of surrogacy and citizenship of the child born out of these arrangements is concerned, the Kihika Bill is a very timely one because it addresses a very fundamental issue that borders on state sovereignty. As it is, we could be conferring citizenship by birth to foreigners and sadly, this cannot be rectified because Kenyan citizenship by birth cannot be lost once conferred as provided for in Article 16 of the Constitution.

The reality of advancement in science and technology is here with us and laws must be dynamic enough to address these matters.

The48-year-old Kenyan law on registration of birth and deaths cannot be expected to address the realities of modern times and therefore must be overhauled to address these emerging issues. The hope is that either Parliament passes the Kihika Bill or enact another law that can sufficiently address these issues.

Mucee is an Immigration consultant and a law student at the University of Nairobi.