Test-tube Babies according to Kenyan Law

Mweni and John are a young couple from Kileleshwa, Nairobi, who had been unable to conceive for nine years. Mweni had blocked fallopian tubes. Having gone from doctor to doctor for help to no avail, she was referred to the Nairobi In Vitro Fertilization (IVF) centre and six months later, Mweni is now expectant. ‘It’s a miracle!’ was all Mweni kept saying.

The first test tube baby was born on July 25,1978. Louise Joy Brown, the world’s first successful test-tube baby, was born in Great Britain. The technology was generally praised. The term test tube baby is often used to refer to children conceived in Vitro Fertilization (IVF), which is a process by which egg cells are fertilised by sperm outside the womb then implanted back to the female reproductive system.

At the Kenyatta National Hospital’s (KNH) sperm bank, Paul, an unmarried service man from the Kenya Army who is proceeding on a United Nations’ peacekeeping duty in Congo, strides in. When all his tests and paper work are done, a nurse hands him a jar and ushers him into a comfortable room where he will masturbate and secure his genes for a growing clientele in need of sperm donors in Nairobi.

It is a growing clientele that the head of the project, Prof Christine Kigondu, describes as ‘many clients on the waiting list who need a brigade of top quality donors.’ Ours is a small world with technological inventions and scientific breakthroughs that have overtaken our legal systems. It would have been beyond imagination 40 years ago that a couple that had been declared barren would conceive a child biologically related to them without the Lord’s arm or a visit from an angel.

Today, surrogacy, human artificial insemination and stem cell research have brought about scientific miracles and hope for grief struck childless women and men. But not without giving the law a fit. Presently in Kenya, there is not a single law to regulate human artificial insemination, surrogacy or stem cell research. Without any legal framework, we are guided by medical ethics, best international practices and perhaps exhortations from the Pope.

Every year, millions of couples try to conceive a child. Unfortunately, many find that they cannot. The process to find out how and why they  have infertility issues can be long and arduous. Before science came along with its glad tidings, such infertile couples had no hope of bearing their own biological children. But good old science has now changed that. Yet, in spite of the absence of a legal regime for their regulation, Kenyans continue to enter into arrangements involving modern reproductive technologies.

One of the options available to infertile couples today is gamete and embryo donation. The donated gamete may be an egg or sperm.

This can be done in reproductive clinics such as the KNH Sperm Bank, Kenya Medical Research Institute or the Nairobi IVF centre. Male clients donate their sperms at the KNH sperm bank after they are medically declared suitable candidates.

Besides many routine medical checks for hereditary and other transmittable diseases, the potential donors’ mental aptitude, talents, fitness and body ethics are also considered. This is because most female clientele who purchase these sperms have a shopping list of what kind of genes they want inserted into their fallopian tubes.

The sperm donors are anonymous for legal reasons. Unless the gamete donation is on conditions of anonymity, then the genetic parent (gamete donor) may be sued for maintenance of the child—or for the performance of other duties incidental to parental responsibility. Sperm donors undertake not to lay claims on children sired from their sperms. The recipients will remain unidentified while sperms from one individual can only be used to produce not more than 10 children.

For couples where the man is producing the so-called lazy sperms, deformed or abnormally shaped sperms, they have reduced chances of making their spouses pregnant. According to Prof. Kigondu of the KNH, ‘Such men who produce fewer numbers of sperms can benefit by donating their own sperms to be concentrated, cleansed and then given to their wives without relying on other males.’ Further, people with certain diseases like cancer can donate their sperms for storage before undergoing radiotherapy and chemotherapy to reduce the chances of destroying their reproductive health seeds. The eggs and sperms are frozen in liquid nitrogen tanks for years until required by the donors’ partners. This is of course at a fee.

One can write a will specifying how the donated/stored sperms can be used or destroyed much later in case he/she passes on. The gamete and embryo donation—an unregulated environment in Kenya, poses unexpected outcomes and challenges to the people involved and the children conceived from such donation. Kenya is in need of a law that will address the anonymity of gamete donors and related matters, such as the right of children born as a result of assisted reproduction to trace their genetic parents.

According to Muthomi Thiankolu, a legal expert in this area, the benefits of such a law, which also creates a donors’ database, are innumerable.

Intending couples, for instance, would be able to establish whether they are within the prohibited degrees of blood relationships. Further, children born as a result of donated sperm, eggs or embryos would be able, preferably upon reaching the age of majority (18), to trace their genetic parents. See ‘Towards a Legal Framework on Assisted Human Reproduction in Kenya; Some Thoughts on the Law, Technology and Social Change.’ Muthomi Thiankolu, 2007, in the absence of a legal framework, a gamete or embryo donor in Kenya acquires parental responsibility for any children conceived through their egg/sperm. There have however been no disputes so far, but the Children’s Act, 2001 defines ‘parent’ as the mother or father of a child.

It must be noted that words ‘mother or father of a child’ can convey severe disputes where the child has been born through gamete or embryo donation, or other forms of assisted human reproduction.

The natural meaning of‘mother or father of a child’ means the genetic father or mother. In the case of sperm donation, the married couple may run into legal woes over child maintenance.

The first would be the question of legitimacy of the child, particularly where the woman undergoes artificial insemination without her husband’s consent.

The Kenyan law would likely presume the husband to be the child’s father, whether or not he had consented to the insemination of the wife with the donor’s sperm. This is because Section 118 of the Evidence Act (Chapter 80 of the Laws of Kenya) provides that the fact that a person is born during a valid marriage or within 180 days of its dissolution, (the mother remaining unmarried) shall be conclusive proof that he is the legitimate child of that man. However, the husband can disprove this presumption of paternity by showing that there was no sexual contact between him and the wife at any time when the child might have been conceived. This would be through a paternity test which the husband who is contesting the legitimacy would have to pay for.

The second would be where, though the couple had both assented to use another man’s sperm besides the husband’s, the sperm donor (if not anonymous) appears later claiming parental rights over the child born from the sperm he donated to the couple.

The law would arguable recognise his paternal rights. Unregulated gamete and embryo donation have also brought about new challenges to marriage and its termination. Suppose a married woman underwent artificial insemination without the consent of her husband, would this be a ground of divorce under the Kenyan law on divorce? Would the husband rely on the ground of adultery in his divorce petition?

These are questions that the law needs to answer but arguably, he would. On matters of inheritance of the estates of the donors, would a child conceived through gamete/embryo donation qualify as the genetic parent’s dependant and child within the meaning of sections 26 and 29 of the Law of Succession Act for purposes of inheriting the donor’s estate? The matter might not have come to the Kenyan courts yet but the answer would most obviously be in the affirmative—if such a dispute were to be litigated under the current Kenyan laws. It is highly advisable to seek legal counsel before consenting to donate your sperm/egg and before artificial insemination, especially for married couples where the wife, without the husband’s consent, wishes to have another man’s sperm injected in her.

While it is noble to donate gametes for present and future generations, wealthy donors must be wary and heed sound legal counsel before proceeding. The mother of such a child can sue the donor who is the biological father seeking child maintenance—sunless the donation was anonymous of course. For infertile women seeking pregnancy through IVF, anonymity of donors protects you from child custody/ maintenance battles. Unless you have a willing donor you have identified in such circumstances, it is advisable to sign parental responsibility transfer/release agreements with your donor unless you wish to share custody/maintenance.

Enjoy the miracles of science in making dreams come true but tread with sound legal caution.

Eric Gitari, the author, specifically acknowledges the immense input from Muthomi Thiankolu’s “Towards a Legal Framework on Assisted Human Reproduction in Kenya; Some Thoughts on the Law, Technology and Social Change” Published in the Kenya Law Reports in 2007.

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