When science outpaces statute, Kenyan courts are left to answer one of family law’s oldest questions in an entirely new context.

Motherhood, in its most elemental sense, needs no legal definition. It is felt before it is named. But law, by its nature, must name things and herein lies our problem. When the biological, gestational, genetic, and intentional dimensions of motherhood come apart, as they do in surrogacy, the courts are required to give a precise answer to a question that ordinary language leaves comfortably open.

This Mother’s Day, we examine one of the most searching questions to have come before Kenya’s courts in recent family law history: in a surrogacy arrangement, who is, in law, the mother of the child? Early in this author's career, she was part of the legal team that was tasked with answering this question; and the experience left a lasting impression of just how consequential the law's silence on surrogacy could be for real families.

A Story the Courts Were Not Ready For

In 2015, the High Court at Nairobi was asked to resolve a dispute that ten years earlier would have been unimaginable in a Kenyan courtroom. A woman (referred to in the judgment only as X to protect her privacy) had, after years of infertility, secondary miscarriage, and failed IVF cycles, agreed with a close friend, Z, that Z would carry a pregnancy on her behalf. X’s husband’s sperm and a donated egg were used to create embryos. Three were transferred to Z. Twin girls were born on 5 February 2013 at Kenyatta National Hospital.

By every measure that matters in a family; love, intention, financial provision, daily care; X and her husband Y were the children’s parents. Z had agreed from the outset that she would hand the children over. There was no dispute between the adults. Everyone wanted the same thing.

And yet the law had no framework within which to recognise it.

The Three Faces of Motherhood

The case; AMN & 2 others v Attorney General & 5 others (Petition No. 443 of 2014) [2015] KEHC 6960 (KLR); required Justice Ibrahim Lenaola (now a Justice of the Supreme Court of Kenya) to grapple with a taxonomy of motherhood that medical science had created but Kenyan statute had never addressed.

Writing in Re G (Children) [2006] UKHL 43, Baroness Hale of Richmond identified three distinct dimensions of parenthood, all of which the law must contend with in surrogacy:

· The Three Dimensions of Parenthood

Genetic parenthood ; providing the egg or sperm from which the child is formed.

Gestational parenthood ; carrying and delivering the child.

Social and psychological parenthood ; raising, nurturing, and being present for the child.

In the ordinary course of events, all three converge in the same woman. Surrogacy disaggregates them. In the AMN case: Z was the gestational mother. An anonymous donor provided the egg. X was the intended social and psychological mother. Y was the genetic father. No single person held all three dimensions of motherhood simultaneously.

When the law must choose one dimension to anchor legal motherhood, which does it privilege?

What the Law Said ; and What It Did Not Say

Kenya had no statute on surrogacy in 2015; and still does not, pending the outcome of the Assisted Reproductive Technology Bill currently before the Senate. Justice Lenaola was therefore required to reason from first principles, drawing on the Births and Deaths Registration Act (Cap. 149) and persuasive comparative jurisprudence from the United Kingdom, South Africa, and beyond.

The Births and Deaths Registration Act anchors registration to the act of birth: section 2 defines birth in terms of delivery, and section 22 makes it an offence to register false particulars. The Attorney General had advised, in good faith, that recording X and Y on the birth certificates would confer legal parentage and spare the family the cost of adoption. The court held that advice was incorrect. X, having not given birth, could not in law be recorded as the children’s mother at the time of registration.

Justice Lenaola applied the principle stated in Re X (A Child) [2014] EWHC 3135 (Fam) from the English Family Court: the surrogate mother, having carried the child, is the legal mother, and that remains the position unless the child is subsequently adopted or parenthood is transferred through a parental order. In Kenya, with no provision for parental orders, only adoption could effect the transfer.

The court’s ruling was clear:

“Absent a legislative framework in Kenya, the position taken by the UK courts … ought to prevail here and so I will find that the surrogate mother is the mother of the twins until such a time as the necessary legal processes are undertaken or until this or any other court has issued requisite orders in that regard.”

And, in a declaration that now stands as a general principle of Kenyan surrogacy law:

“In cases of surrogacy, the surrogate mother shall be registered as the mother of a born child pending legal proceedings to transfer legal parenthood to the commissioning parents.”

The Human Cost of Legal Uncertainty

The judgment was at pains to record the real consequences of the legal gap for the family before it. X had lost employment in the United Kingdom while pursuing the children’s citizenship applications. The family had spent years and significant resources navigating a conflict between Kenyan and UK law that neither had created and neither could unilaterally resolve. The children were British by paternal descent yet could not travel to the country of their father’s citizenship because the documentation of their birth did not satisfy UK legal requirements.

Justice Lenaola’s obiter observation carries the weight of that human reality:

“In Kenya, there is now no doubt that we require a law to regulate surrogate arrangements in order to protect all involved and affected parties including and most importantly, the children.”

The court’s solution; fast-tracking adoption by X, while directing amendment of the birth certificates to reflect Z as the biological mother; was the only remedy the law made available. It was pragmatic and compassionate in its application. But it required a woman to formally adopt children she had always intended to raise as her own, in circumstances where her husband was their genetic father.

Where the Law Stands Today

The AMN decision has not been overturned. It remains the leading Kenyan authority on legal motherhood in surrogacy, and it is consistent with the earlier High Court decision in JLN & 2 Others v Director of Children’s Services & 4 Others [2014] KEHC 7491 (KLR), which similarly anchored legal motherhood to the act of birth. Together, these cases establish that:

• The gestational surrogate is the child’s legal mother from birth.

• Legal parenthood can only pass to the commissioning mother through an adoption order.

• A commissioning father who is the genetic father of the child cannot adopt his own biological child; only the commissioning mother needs to adopt.

• Recording the commissioning mother on the birth certificate without completing the adoption process is unlawful.

The Assisted Reproductive Technology (ART) Bill, 2022; passed by the National Assembly on 11 November 2025 and currently before the Senate; would, if enacted, reverse this position for qualifying arrangements. Under the Bill, the surrogate mother must relinquish all parental rights, and the commissioning parents assume legal parenthood from birth. The intended mother would be the legal mother. The long route through adoption would be eliminated.

Until the Bill receives Senate concurrence and presidential assent, however, the gestational rule in AMN governs.

A Reflection for Mother’s Day

The AMN case is, at its heart, a story about a woman who wanted nothing more than to be a mother; and who, by every practical and emotional measure, already was one. The law’s insistence that she was not, in the absence of an adoption order, is not a commentary on her love or her commitment. It is a reflection of the gap between what science can now make possible and what statute has yet to accommodate.

Courts do not make law. They interpret what exists. Justice Lenaola applied the law as it was, reached the only conclusion that the existing framework permitted, and then called plainly for Parliament to act. That call is, a decade later, finally being answered.

Motherhood, the law is slowly learning, is not always a single story. It is sometimes a collaboration; between a woman who gives her genetic material, one who gives her body, and one who gives her life. The question of which of them the law should call ‘mother’ does not have a universal answer. But it deserves, at minimum, a statutory one.

This Mother’s Day, we recognise all of them.

About This Article

This article is a special Mother’s Day publication by our firm examining the question of legal motherhood in the context of surrogacy under Kenyan law. It is intended for general information purposes and does not constitute legal advice. The primary authority discussed is AMN & 2 others v Attorney General & 5 others (Petition No. 443 of 2014) [2015] KEHC 6960 (KLR), decided by Justice Ibrahim Lenaola on 13 February 2015. For specific advice on surrogacy, parentage, or assisted reproductive technology matters, please contact our offices.