Kenya Planning to Put Ban on LGBT Surrogacy via recently Proposed Bill

1. Kenya Planning to Put Ban on LGBT Surrogacy via recently Proposed Bill! In an unfortunate development, a bill that is currently before Kenyan lawmakers may prohibit gay surrogacy in Kenya. The proposed law — dubbed the Assisted Reproductive Technology Bill, 2019, passed last November by the National Assembly — seeks to assist individuals, including intersex people or couples unable to bear children due to infertility to procure surrogate mothers. What does the proposed bill say? To lock out gays and lesbians, the MPs amended the bill by replacing “husband and wife” to “couple” under Kenyan law, which refers to a male and a female who are in an association that may be recognized as a marriage.

2. “Of the many amendments that have been carried, this one is the best. This is so that we be specific that in Kenya, we do not recognize marriages between people of the same gender,” MP David Ole Sankok stated during the debate in the National Assembly. Any gay or lesbian found guilty of using a surrogate mother to have a child risks a fine not exceeding Sh5 million ($50,000) or a jail term of not more than five years or both. The bill would also require a qualified medical doctor to certify that an individual is infertile before proceeding to find a surrogate mother. This requirement is not only a big blow to thousands of gays and lesbians in Kenya but also hundreds of surrogate mothers like Mary and Rebecca in Nairobi who, through the best surrogacy agency in Kenya, carry pregnancies for all couples including heterosexuals, gays, lesbians, single women and single men who want to have children. The proposed law, which is the first of its kind in Kenya, also criminalizes engaging in ethical surrogacy in Kenya to make money. This means surrogate mothers will no longer carry pregnancies for any individual or couple whose infertility is not proved by a doctor.

3. What is the existing situation? Currently, there is no law regarding ethical surrogacy in Kenya. So, anyone can pursue gay surrogacy in Kenya or single parent surrogacy in Kenya as per their choice. Currently, the overall cost of surrogacy in Kenya is estimated at Sh4.5 million ($45,000). “A person who contravenes the provisions of this section commits an offense and shall, upon conviction, be liable to a fine not exceeding Sh5 million ($50,000) or to imprisonment for a term not exceeding five years, or to both,” reads Clause 23 of the bill. Moreover, a special directorate under the Health Ministry would oversee surrogacy activities in the country. The bill requires a surrogate mother to be over 21 years old with at least one child. The new law adds to other punitive laws against LGBTQ rights in the country. The Kenyan Penal Code under Sections 162 and 165 criminalize consensual same- sex sexual relations viewed as “acts of indecency or unnatural offenses.” The Penal Code also forbids gays and lesbians from adopting children.

4. Kenya and the LGBT rights! Kenya, just like most African countries, has refused to recognize the rights of the LGBTQ community despite pressure from the group and Western countries. For instance, in 2015 President Uhuru Kenyatta during a joint press conference with the then-U.S. President Obama at the State House in Nairobi flatly rejected his visitor’s demand for the protection and promotion of gay and lesbian rights in the country. Kenyatta insisted that though Kenya “shares a lot with the U.S., gay rights were not among them.” Homosexuality is considered both ungodly and against African culture on the continent. In July 2021, a coalition of 27 global companies like Microsoft, Google, Barclays, Standard Chartered, IBM, PricewaterhouseCoopers, American Express and Burberry demanded Kenya to fully recognize the rights of gays and lesbians for more billions of Kenyan shillings to be injected into the economy. The global firms in a report dubbed “The Economic Case for LGBT+ Inclusion in Kenya” warned that the country loses between $65 million and $143 million annually because its discriminative environment was keeping away some tourists. Still, Kenya remained unbowed to concerns related to Gay surrogacy in Kenya.

5. Human rights groups are still hopeful of a brighter future for LGBT people in Kenya Several rights groups like the National Gay and Lesbian Human Rights Coalition and UNAIDS has criticized the continued enactment of laws that discriminate against the LGBTQ community. The National Assembly’s Health Committee, the sponsor of the surrogacy law, collected views from numerous key stakeholders in the health sector like the Intersex Persons Society of Kenya which has a population of 1,524 in Kenya as per the 2019 Census. However, the Gay and Lesbian Coalition of Kenya, (GALCK), was notably sidelined in the committee’s public hearings. Despite of all this, several activists and surrogacy specialists have lent their voice against any such bill. So, we can certainly hope for only good things in future in regards to LGBT rights in Kenya.