Kenya Enacts Landmark Law Banning Fertility Tourism, Permits Altruistic Surrogacy for Citizens

NAIROBI, Kenya - In a historic move, Kenya has overhauled its reproductive health landscape by outlawing commercial surrogacy and fertility tourism, a practice that had flourished in a legal vacuum for years. The National Assembly on Tuesday, November 5, 2025, passed the Assisted Reproductive Technology (ART) Bill, 2022, which now awaits presidential assent after concurrence by the Senate. The new legislation restricts surrogacy to altruistic arrangements between Kenyan citizens, effectively shutting down a lucrative industry for international clients while aiming to protect vulnerable women from exploitation.

The law's passage marks the culmination of a decade-long legislative effort, spearheaded by Suba North Member of Parliament Millie Odhiambo. An earlier version, the In-Vitro Fertilization Bill, was first introduced in 2014 but lapsed. The successful 2022 Bill, heavily amended and championed on the floor by Homa Bay Town MP Peter Kaluma, introduces a comprehensive legal framework for assisted reproduction, from IVF to gamete donation, for the first time in the nation's history.

This legislative shift is poised to have significant social and economic repercussions for Kenya, which had become a notable destination for medical tourism, including fertility treatments. While precise figures on the fertility tourism market are scarce, reports from individual clinics and medical tourism agencies indicated a growing influx of clients from Europe, the United States, and other African nations, attracted by lower costs compared to their home countries.

A Response to Exploitation in an Unregulated Market

The push for regulation was largely driven by widespread reports of exploitation of Kenyan women who, often due to economic desperation, entered into commercial surrogacy arrangements with few legal protections. Investigations by media outlets and civil society organizations have documented cases of coercion, inadequate compensation, and abandonment of surrogate mothers by commissioning parents.

Under the previous unregulated system, surrogacy agreements were governed by private contracts, which often left surrogates vulnerable. Homa Bay Town MP Peter Kaluma, during parliamentary debates, argued that the new law was essential to "protect children and the society from being abused through the process of surrogacy," citing risks of paedophilia, organ harvesting, and human research.

The new law explicitly prohibits any payment, reward, or other benefit to a surrogate mother beyond the reimbursement of reasonable expenses incurred during the pregnancy. Violations, including engaging in or advertising commercial surrogacy, carry steep penalties of up to KSh 10 million in fines or imprisonment for up to ten years, or both.

Key Provisions of the New Law

The Assisted Reproductive Technology Act, 2022, establishes a detailed regulatory framework intended to bring order and ethical standards to the field. Key among its provisions are:

• Altruistic Surrogacy Only: The Act permits only altruistic surrogacy, where the surrogate does not receive financial compensation. This service is exclusively available to Kenyan citizens.
• Eligibility Criteria: Intended parents must be Kenyan citizens between the ages of 25 and 55. Surrogate mothers must be between 25 and 45 years old, have at least one child of their own, and undergo rigorous medical and psychological assessments.
• Exclusion of Foreigners and Same-Sex Couples: The law explicitly bans foreigners from commissioning surrogacy in Kenya. Furthermore, the definition of a "couple" as a man and a woman in a marriage recognized under Kenyan law effectively excludes same-sex couples and single men from accessing surrogacy, a point of contention for human rights advocates.
• Establishment of a Regulatory Body: The Act mandates the creation of an Assisted Reproductive Technology Directorate under the Kenya Medical Practitioners and Dentists Council. This body will be responsible for licensing fertility clinics, accrediting practitioners, and maintaining a confidential national database of donors, surrogates, and children born through ART.
• Legal Parentage: The law clarifies that the commissioning parents are the legal parents of a child born through surrogacy from the moment of birth, and the surrogate mother has no parental rights or obligations.

The "So What for Kenya?" Analysis

The immediate impact of the law is the dismantling of the commercial surrogacy industry that catered to international clients. While this addresses critical ethical concerns about the exploitation of vulnerable women, it also raises economic questions. Women who served as surrogates, often from low-income backgrounds, could earn between KSh 400,000 and KSh 600,000 per pregnancy, a life-altering sum for many. The new law eliminates this source of income, and the government has not yet detailed any alternative economic empowerment programs for these women.

For Kenyan citizens struggling with infertility, the law is a double-edged sword. It provides a clear, legal pathway to parenthood through altruistic surrogacy and regulated IVF for the first time. This is a significant step forward for many who have faced social stigma and navigated a legal grey area. However, the high cost of fertility treatments, with a single IVF cycle costing between KSh 400,000 and KSh 700,000, remains a significant barrier for the majority of the population. The bill does obligate the national government to work towards ensuring ART services are covered by health insurance, but the timeline for this remains undefined.

The law's restrictive stance on eligibility, particularly the exclusion of LGBTQ+ individuals, has drawn criticism. Activists argue that it entrenches discrimination and denies a segment of the population the right to form families. The National Gay and Lesbian Human Rights Commission (NGLHRC) has previously highlighted how such legislative language sidelines the community from crucial family and reproductive health policies.

Regional Context and Global Significance

Kenya's move to an altruistic-only model mirrors recent legislative trends in the East Africa region. Uganda and Rwanda have also recently passed laws to regulate surrogacy, similarly prohibiting commercial arrangements. This regional shift suggests a growing consensus on the continent to prioritize the protection of surrogates over the economic benefits of a commercialized industry. The closure of Kenya as a destination for fertility tourism may redirect international demand to other countries with more permissive laws, though the options in Africa are narrowing.

Globally, the debate between commercial and altruistic surrogacy continues. Countries like the United States have states where commercial surrogacy is legal and highly regulated, while many European nations and Canada only permit altruistic arrangements. India and Thailand, once major international surrogacy hubs, have also banned the practice for foreigners due to concerns over exploitation. Kenya's new law aligns it with the growing number of nations taking a more restrictive, protectionist stance on reproductive technologies.

As Kenya prepares to implement this landmark legislation, the focus will shift to the newly formed Directorate and its capacity to effectively regulate the sector, ensure ethical practices in altruistic arrangements, and expand access to affordable fertility care for all eligible Kenyans. The long-term social and economic consequences of shutting down a complex and once-thriving informal industry remain to be seen.