Judicial oversight of surrogacy: perspectives on assisted reproductive technologies in Kenya and South Africa

Abstract

This study is a doctrinal examination of judicial oversight of surrogacy arrangements in Kenya and South Africa. It analyses how, and why, the courts in these two jurisdictions have adopted different approaches when dealing with surrogacy cases. The analysis reveals that in Kenya, there are no specific surrogacy laws and that the judiciary operates in a legal vacuum. In the absence of specific guiding legislation, Kenyan courts consistently apply the constitutional principle of the best interests of the child. They also rely on the Children Act, which mandates commissioning parents to obtain legal recognition through formal post birth adoption processes, and principles of contract law to resolve individual disputes. The Kenyan judiciary has therefore urged the legislature to enact comprehensive surrogacy laws. Conversely, South African courts operate within a detailed statutory framework governing surrogacy under Chapter 19 of the Children’s Act. Judicial oversight of surrogacy arrangements in South Africa is proactive and occurs before artificial fertilisation commences. The Children’s Act requires the High Court to approve surrogacy arrangements to ensure validity. Although Kenyan courts fill a legislative void while South African courts interpret and enforce established statutes, the study finds that the judiciaries in both jurisdictions share the common objective of upholding the best interests and welfare of children born through surrogacy arrangements.