The National Assembly has passed the Assisted Reproductive Technology (ART) Bill, 2022, establishing a robust legal framework to regulate fertility treatments, surrogacy, and reproductive health services in Kenya.
This legislation positions Kenya as a regional leader in ethical assisted reproduction, safeguarding the rights of parents, surrogates, and children.
What the ART Act Covers
The Act regulates a wide range of assisted reproductive services, including:
- In-vitro fertilisation (IVF)
- Intrauterine insemination (IUI)
- Gamete and embryo donation
- Cryopreservation
- Genetic screening and diagnosis
- Altruistic surrogacy
It guarantees safe, inclusive, and ethical access to reproductive technology for all Kenyans—regardless of gender or marital status.
Oversight and Regulation
The law establishes an Assisted Reproductive Technology Directorate under the Ministry of Health to:
- License and regulate ART clinics and experts
- Maintain a confidential national register of donors, embryos, and children born via ART
- Promote public awareness and professional standards
- Ensure compliance with ethical and medical guidelines
Rights and Protections
- Children born through ART are granted full legal rights equal to those conceived naturally.
- Surrogacy is strictly altruistic surrogates may only receive reimbursement for medical expenses.
- Intended parents are recognised as legal guardians from birth.
- Surrogates receive three months’ postnatal leave; intended mothers and fathers get maternity and paternity leave.
- Gamete donations are capped at ten per donor to prevent misuse.
- Written consent is mandatory for all procedures, including directives in case of death or incapacity.
- Posthumous use of reproductive material is prohibited without prior authorisation.
- Abandonment or exploitation of surrogate mothers or children is a punishable offence.
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Penalties for Violations
The law imposes strict penalties for unethical practices, such as:
- Commercial surrogacy
- Sale of gametes (sperm or ova) or embryos
- Human cloning
- Sex selection
Offenders face fines of up to KSh 10 million or imprisonment of up to 10 years.
No Room for Fertility Tourism
According to Homa Bay Town MP Peter Kaluma, the Bill underwent heavy redrafting to protect children and society from potential abuse through surrogacy. He emphasised:
“We have shut that possibility. The Bill allows for altruistic surrogacy only for Kenyan citizens. No room has been allowed for foreigners to undertake surrogacy or assisted reproduction in Kenya and therefore, no room for fertility tourism.”
Kaluma also clarified that surrogacy is permitted only for heterosexual Kenyan couples in marriage, or women who are divorced, widowed, or single and medically certified as infertile. He added:
“If you are a man, you must be in a marriage. You may be firing blanks but in a marriage.”
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Eligibility Criteria
- Only Kenyans aged 25–55 years may seek surrogacy.
- Surrogate mothers must be 25–45 years old, have at least one child, and pass medical and psychological assessments.
- All parties must undergo mandatory counselling to understand their rights and responsibilities.
Legislative Journey and Applause
The Bill was originally introduced in the 11th Parliament as the In-Vitro Fertilisation Bill, 2014, but lapsed. It was republished in 2022 as the Assisted Reproductive Technology Bill, sponsored and refined by Suba North MP Millie Odhiambo and Homa Bay Town MP Peter Kaluma.
During the Third Reading, Speaker Moses Wetang’ula lauded MPs for concluding what he described as “a protracted process,” commending Odhiambo and Kaluma for their collaboration:
“Thank you, Honorable Members, for finally bringing to an end this long, protracted process,” he said. “Honourable Millie, you should also thank your colleagues, for tremendous industry in making your Bill have a moral color and make it applicable to our country, without giving a window to foreigners to come in and do things that are unacceptable to us.”
He added:
“Very few people own up their situation and do what you have done. The majority live in denial,” quoting Roy “Gramps” Morgan: “Heaven has a place for people like you.”
Why This Matters
With infertility affecting 1 in 6 couples globally, Kenya now joins a select group of African nations with a clear, rights-based framework for assisted reproduction. The law is expected to:
- Expand access to fertility care
- Standardise clinical practices
- Promote transparency and accountability in the sector
What’s Next?
The Assisted Reproductive Technology Act, 2022, now moves to the Senate for concurrence before being presented to the President for assent.
