In re KMM (Minor) (Children's Case E239 of 2024) [2024] KEMC 80 (KLR)
The bottom line
#A Kenyan Children's Court granted parental rights to parents of a child born through surrogacy, despite Kenya having no surrogacy law.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Children's Court over surrogacy matters
The preliminary objection on jurisdiction failed; the Children's Court has jurisdiction to grant orders concerning children born through surrogacy arrangements.
The court applied the Owners of the Motor Vessel 'Lillian S' locus classicus that jurisdiction is everything, and relied on Odero J's decision in Director of Civil Registration v SAB & IMWB, where the High Court saw no basis for a government department to suffer irreparable harm from orders granted by a Children's Court. The notice of preliminary objection on jurisdiction failed.
Acquisition of parental rights through surrogacy in the absence of a legal framework
Although there is no law in Kenya regulating surrogacy, the court may confer parental rights on commissioning parents guided by Article 53 of the Constitution (the paramountcy principle) and the child's best interests.
The court noted that there is currently no law in Kenya supporting or regulating surrogacy and adopted the reasoning in JLN & 2 others v Director of Children Services, where the High Court held that even without a legal regime, courts must decide surrogacy issues on the basis of the best interests of the child. A child born of surrogacy is no different from any other child, entitled to certainty of parentage, a family, a name and non-discrimination.
Best interests of the child as the guiding principle
The best interests of the child are paramount in every matter concerning a child, per Article 53(2) of the Constitution and section 8(1) of the Children Act, 2022.
The court framed its guiding principle from Article 53(2) of the Constitution, which provides that a child's best interests are of paramount importance in every matter concerning the child, and section 8(1) of the Children Act 2022, which requires all actions concerning children to treat the best interests of the child as the primary consideration. This principle anchored the court's determination to vest parental rights and custody in the commissioning parents.
Legal principles established
#- In the absence of legislation on surrogacy, courts must determine matters concerning children born of surrogacy arrangements on the basis of the best interests of the child under Article 53 of the Constitution.
- Jurisdiction must be established before a court proceeds to judgment.
Court orders
#- 1.Parental rights, legal and actual custody granted to the commissioning parents
- 2.Liberty granted to the commissioning parents to leave the jurisdiction with the minor
- 3.No order as to costs (children's matter)
- Jurisdiction invoked
- Article 53 of the Constitution of Kenya, 2010 and the Children Act, 2022 (children's court jurisdiction over surrogacy-related matters upheld notwithstanding absence of a surrogacy statute)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In re KMM (Minor) (Children's Case E239 of 2024) [2024] KEMC 80 (KLR)", Case Analysis (2024). Originating Summons dated September 5, 2024 (court file number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/80/eng@2024-09-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.