NAIROBI – Kenya is on the verge of enacting its first comprehensive law to regulate surrogacy and other assisted reproductive technologies after the National Assembly passed the highly anticipated Assisted Reproductive Technology (ART) Bill, 2022. The legislation, which now proceeds to the Senate for consideration, aims to end the legal vacuum that has long governed the practice, offering protections for all parties while criminalizing commercial surrogacy with severe penalties.

The bill, sponsored by Suba North Member of Parliament Millie Odhiambo, seeks to replace the current unregulated environment—often based on informal contracts—with a robust legal structure. For years, individuals and couples seeking to build families through surrogacy, as well as the women acting as surrogates, have operated in a grey area, leaving them vulnerable to exploitation and legal disputes. Homa Bay Town MP Peter Kaluma was also credited with significantly refining the bill to address cultural sensitivities and prevent abuse.

During the third reading on Tuesday, November 11, 2025, Speaker of the National Assembly Moses Wetang'ula praised the members for concluding a "long and protracted process" and creating a law that is both morally and culturally grounded for Kenya.

A New Legal Framework

If passed by the Senate and assented to by the President, the law will exclusively permit altruistic surrogacy, where a surrogate mother receives no payment beyond the reimbursement of medical and other directly related expenses. This move is designed to prevent the commercialization of reproduction and protect vulnerable women from exploitation.

The bill introduces strict eligibility criteria for those involved:

• Commissioning Parents: Must be Kenyan citizens aged between 25 and 55 years. The provisions cater to heterosexual couples as well as single, widowed, or divorced women certified as infertile or unable to conceive naturally.
• Surrogate Mothers: Must be between 25 and 45 years old, have at least one child of their own, and undergo comprehensive medical and psychological assessments.

A legally binding surrogacy agreement, approved by a relevant authority, will be mandatory before any medical procedures commence. This agreement will clarify the parental rights and responsibilities of the commissioning parents from the moment of birth. Furthermore, the bill prohibits foreigners from seeking surrogacy services in Kenya, a measure intended to curb "fertility tourism." This follows an alert from the Israeli government, which had previously warned its citizens about the risks of unregulated surrogacy in Kenya.

Hefty Penalties for Violations

To enforce the ban on commercialization, the bill proposes stringent penalties. Any person found engaging in or facilitating commercial surrogacy faces a fine of up to KSh 10 million, a jail term of up to 10 years, or both. Other prohibited practices that attract similar penalties include:

• The sale of human gametes (sperm or eggs) or embryos.
• Human cloning and sex selection for non-medical reasons.
• Operating a surrogacy agency for profit or advertising such services.

The legislation also establishes an Assisted Reproductive Technology Committee under the Kenya Medical Practitioners and Dentists Council (KMPDC). This body will be responsible for licensing fertility clinics, regulating practitioners, and maintaining a confidential national register of donors and children conceived through ART.

The Path Forward and National Impact

The bill's journey is not yet complete. It now moves to the Senate for debate, potential amendments, and a vote. If the Senate passes the bill, it will be forwarded to the President for assent into law. Should the Senate propose amendments, the bill may be referred to a mediation committee with members from both houses to find a consensus.

Supporters argue the legislation is a landmark achievement for reproductive health in Kenya, aligning with the constitutional right to the highest attainable standard of health. It provides hope and legal clarity for the many Kenyans struggling with infertility, estimated to affect one in six couples globally. The bill also includes progressive provisions such as entitlement to three months' leave for the surrogate mother after birth, as well as maternity and paternity leave for the intended parents.

By establishing this framework, Kenya joins a select group of African nations with clear laws on assisted reproduction, aiming to standardize clinical practices and ensure accountability in a rapidly advancing medical field.