A Landmark Decision on Modern Parenthood in Kenya

The decision in AM v CAO marks a significant development in Kenya’s evolving jurisprudence on reproductive technology, parental rights, and the constitutional protection of the family unit. In a judgment delivered by Justice P.M. Nyaundi, the High Court affirmed that the absence of express legislation governing surrogacy arrangements cannot, in itself, operate to deny deserving parties their parental rights or undermine the welfare of a child born through such arrangements.  At the heart of the dispute was a gestational surrogacy agreement entered into between the Appellant, an American male citizen, and the Respondent. Under the agreement, the Respondent agreed to carry and deliver a child for the Appellant and subsequently relinquish all parental rights upon the child’s birth, thereby granting the Appellant sole custody and parental responsibility.

The trial court had declined to give effect to the agreement on the basis that Kenya presently lacks a comprehensive statutory framework regulating surrogacy arrangements. The trial court's decision relied on a 2014 judgment in JLN v Director of Children Services, where the court had urged Parliament to enact legislation governing surrogacy in Kenya. More than a decade later, Parliament is yet to fulfil that legislative obligation.

On appeal, however, the High Court took a markedly different and more progressive approach. Justice Nyaundi held that a legislative gap should not be used against parties who have acted lawfully, transparently, and in good faith. The Court therefore gave effect to the agreement, granting custody of the child to the Appellant.

Constitutional Protection of Parenthood and the Best Interests of the Child

In arriving at its determination, the Court placed considerable reliance on Article 53 of the Constitution of Kenya 2010, particularly the constitutional principle that the best interests of the child are of paramount importance in every matter concerning children.

The Court further drew persuasive guidance from SMM v ANK, where Justice Ngugi observed that modern constitutional jurisprudence no longer treats fathers as secondary custodians. Rather, both parents possess equal rights and responsibilities concerning the upbringing, custody, and welfare of a child. This reasoning became especially relevant given that the child in the present matter was only one year and three months old and the Appellant was the biological father. The Court also relied on Re Baby JLW, where it was held that courts would be inclined to uphold adoption arrangements entered into voluntarily, in good faith, and without any evidence that the child’s welfare would be endangered. The guiding consideration, according to the Court, is whether the arrangement promotes the welfare and dignity of the child concerned.

The Judiciary’s Expanding Role in Reproductive Rights Jurisprudence

Perhaps the most significant aspect of the judgment lies in the Court’s acknowledgment that the judiciary cannot remain passive in the face of legislative inaction. While recognizing the need for Parliament to enact a comprehensive legal framework regulating surrogacy arrangements, the Court held that judicial intervention remains necessary to prevent injustice and protect constitutional rights. This reasoning reinforces the judiciary’s constitutional mandate as the ultimate guardian of rights and freedoms. The judgment affirmed that courts retain jurisdiction to analyse and enforce such arrangements notwithstanding the absence of specific legislation. In effect, the judgment acknowledges that family structures and methods of parenthood are evolving and that the law must remain responsive to scientific and social developments.

Emerging Legal Principles on Surrogacy in Kenya

Although Kenya still lacks codified surrogacy legislation, the decision in AM v CAO provides important guidance on the principles likely to influence future judicial determinations concerning surrogacy arrangements. From the Court’s reasoning, several emerging legal standards may be identified:

1. Existence of a Valid Surrogacy Agreement - Courts are likely to examine whether there existed a clear, voluntary, and enforceable agreement between the intended parent(s) and the surrogate.

2. Good Faith and Voluntary Participation - The agreement must be entered into freely and in good faith, without coercion, exploitation, fraud, or undue influence.

3. Protection of the Child’s Welfare - The paramount consideration remains the welfare and best interests of the child, consistent with Article 53 of the Constitution.

4. Verification by Relevant State Agencies - Recommendations or assessments by the Directorate of Children Services and other child protection agencies remain highly persuasive in validating such arrangements.

5. Absence of Harmful or Prejudicial Circumstances - Courts will assess whether the surrogacy arrangement exposes the child to any risks capable of jeopardizing their welfare or dignity.

Implications for Family Law Practice and Prospective Parents

The decision provides reassurance to parties engaged in assisted reproductive arrangements that Kenyan courts are increasingly prepared to recognize and protect parental rights arising from modern reproductive technologies.

For legal practitioners, the judgment underscores the importance of carefully drafted surrogacy agreements that clearly outline parental intentions, custody arrangements, medical obligations, and the rights of all parties involved. It also highlights the necessity of involving child welfare authorities at an early stage to safeguard the enforceability of such arrangements.

Equally important, the case places renewed pressure on Parliament to enact comprehensive legislation governing surrogacy and assisted reproductive technologies. Without statutory regulation, courts will continue to fill the legislative vacuum on a case-by-case basis, a process that may sometimes result in uncertainty and inconsistent outcomes.

Conclusion

The High Court’s decision represents a progressive affirmation of constitutionalism, parental equality, and child-centered justice in Kenya’s developing family law jurisprudence. By refusing to allow legislative silence to defeat legitimate parental rights, the Court reaffirmed that constitutional protections must evolve alongside societal and technological transformation. Parenthood, in the modern constitutional era, cannot be confined solely to traditional conceptions of family formation. Where parties act in good faith and the welfare of the child is secured, the courts will not hesitate to intervene and uphold justice.

Constitution of Kenya 2010.

AM v CAO (Appeal E034 of 2025) [2026] KEHC 5142 (KLR)

JLN v Director of Children Services) [2014] KEHC 7491 (KLR)

SMM v ANK [2022] KEHC 1043 (KLR)

Re Baby JLW (Minor) [2025] KEHC 5378 (KLR)