In re KMM (Minor) (Children's Case E239 of 2024) [2024] KEMC 80 (KLR) (19 September 2024) (Judgment)

In re KMM (Minor) (Children's Case E239 of 2024) [2024] KEMC 80 (KLR) (19 September 2024) (Judgment) Neutral citation: [2024] KEMC 80 (KLR) Republic of Kenya In the Nairobi Children's Court Children's Case E239 of 2024 JC Kibosia, PM September 19, 2024 IN THE MATTER OF KMM (MINOR) In the matter of GAW 1st Applicant ENG 2nd Applicant State's duty to protect the children born out of surrogacy arrangements by providing a legal framework to govern such arrangements _The applicants were the commissioning parents of the minor and sought for the following orders; parental rights, legal and actual custody of the minor; and liberty to leave the jurisdiction. The court reiterated that every child had the right to certainty of their parentage, a right to family, a right to a name acquired through issuance of a birth certificate, a right to access health services and a right not to suffer discrimination of any form arising from their surrogate birth. Further, it was the duty of the State to protect the children born out of such arrangements by providing a legal framework to govern such arrangements. In absence of legislation, the court reclined to article 53 of the Constitution (paramountcy principle)._ Reported by Kakai Toili **_Constitutional Law_** _\- fundamental rights and freedoms - enforcement of fundamental rights and freedoms - children’s right - children born through surrogacy arrangements -_ _whether children born through surrogacy arrangements were entitled to equal rights and protections under the Constitution and the Children Act – whether the State had a duty to provide a legal framework governing surrogacy to protect the rights of children born through such arrangements - Constitution of Kenya, article 53; Children Act (cap 141), section 11; United Nations Convention on the Rights of the Child (1989), articles 7; African Charter on the Rights and Welfare of the Child (1990), article 9._ Brief facts It was the applicants’ case that they were the commissioning parents of the minor and that the surrogate mother had granted consent for transfer of parental rights. The applicants sought for the following orders; parental rights, legal and actual custody of the minor; and liberty to leave the jurisdiction. Issues 1. Whether the State had a duty to provide a legal framework governing surrogacy to protect the rights of children born through such arrangements.**** 2. Whether children born through surrogacy arrangements were entitled to equal rights and protections under the Constitution and the Children Act.**** Held 1. The best interest of the children was paramount. 2. Jurisdiction was everything. Without it a court had no power to make one more step. Where a court had no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downed its tools in respect of the matter before it the moment it held the opinion that it was without jurisdiction. Where a court took it upon itself to exercise jurisdiction which it did not possess, its decision amounted to nothing. Jurisdiction must be acquired before judgement was given. The notice of preliminary objection on jurisdiction failed. 3. Article 53(1)(e) of the Constitution provided that every child had the right to parental care and protection, which included equal responsibility of the mother and father to provide for the child, whether they were married to each other or not. The Children Act (cap141) interpreted "parent" to mean the mother or father or any person who was conferred parental rights by law. There was no law in Kenya to support surrogacy. 4. Even where there was no legal regime, the court or any persons dealing with the issues must, in accordance with article 53 of the Constitution, decide the issue on the basis of the best interests of the child. A child born out of a surrogacy arrangement was no different from any other child. Under article 53 and section 11 of the Children Act every child had the right to certainty of their parentage, a right to family, a right to a name acquired through issuance of a birth certificate, a right to access health services and a right not to suffer discrimination of any form arising from their surrogate birth. Those rights were buttressed by international instruments like the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child under articles 7 and 9 respectively. 5. Surrogacy was not a hypothetical issue any more. It was real and many Kenyans were resorting to surrogacy as an alternative to being parents especially those who could not for medical reasons have their own children. In such circumstances, it was the duty of the State to protect the children born out of such arrangements by providing a legal framework to govern such arrangements. In absence of legislation, the court reclined to article 53 of the Constitution (paramountcy principle). _Application allowed; no order as to costs._ Citations **Cases**** _Kenya_** 1. _Director of Civil Registration v SAB & another_ Civil Appeal E029 of 2022; [2022] KEHC 14759 (KLR) - (Explained) 2. _JLN & 2 others v Director of Children Services & 2 others; Kenya National Human Rights Commission & another (Interested Parties)_ Petition 78 of 2014; [2014] KEHC 7491 (KLR) - (Explained) 3. _Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd_ Civil Appeal 50 of 1989; [1989] KECA 48 (KLR); [1989] KLR 1 - (Explained) **Statutes**** _Kenya_** 1. Children Act (cap 141) section 8(1) - (Interpreted) 2. Constitution of Kenya article 53(2) - (Interpreted) AdvocatesNone mentioned Judgment 1.Vide originating summons dated September 5, 2024, the applicant sought the following orders:a.Parental rights, legal and actual custody to the commissioning parentsb.Liberty to leave the jurisdiction Applicant’s Case 2.It was the applicants’ case that they are the commissioning parents of the minor herein. That the surrogate mother had granted consent for transfer of parental rights. Other than parental orders, the applicants sought leave to travel with the minor out of the court’s jurisdictionA DNA report was filed in support of their prayers. Guiding Principle 3.As I consider this the matter, I am mindful of the constitutional and statutory imperative that the best interest of the children is paramount. Article 53(2) of the [Constitution of Kenya, 2010](/akn/ke/act/2010/constitution) provides:A child’s best interests are of paramount importance in every matter concerning the child.And section 8 (1) of the Children Act 2022 states as follows:In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies—(a)the best interests of the child shall be the primary consideration;(b)the best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule.(2)All judicial and administrative institutions, and all persons acting in the name of such institutions, when exercising any powers conferred under this Act or any other written law, shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to—(a)safeguard and promote the rights and welfare of the child;(b)conserve and promote the welfare of the child; and(c)secure for the child such guidance and correction as is necessary for the welfare of the child, and in the public interest. 4.Having considered the matter before me – I do find the issues for determination to be as follows:a.Whether or not the Plaintiff is entitled to the orders soughtb.Costs i. Jurisdiction 5.Jurisdiction is primordial in every suit. In the locus classicus in this subject, the court pronounced itself;[Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd](/akn/ke/judgment/keca/1989/48) (1989):Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction….Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given.”In the case of [Director of Civil Registration v SAB & IMWB](/akn/ke/judgment/kehc/2022/14759) HCCA No. 029 of 2022 (unreported) Odero J pronounced herself on the issue of jurisdiction of the Children’s Court to handle surrogacy matters thus:I fail to see how a government department will suffer irreparable harm by the granting of orders by the Children Court”The notice of preliminary objection on jurisdiction failed. ii. Right to Parental Care 6.Article 53 of the [Constitution](/akn/ke/act/2010/constitution) provides as follows:(1)Every child has the right—(e)to parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not;The [Children Act, 2022](/akn/ke/act/2022/29/eng@2022-12-31) interprets "parent" to mean the mother or father or any person _who is conferred parental rights by law_ (emphasis added) iii. Acquisition of parental rights through surrogacy 7.Currently there is no law in Kenya support surrogacy. What happens to the child in the pendency of passing of the Surrogacy Law by parliament?In the case of [JLN & 2 others v Director of Children Services & 2 others; Kenya National Human Rights Commission & another (Interested Parties)](/akn/ke/judgment/kehc/2014/7491) (Petition 78 of 2014) [2014] KEHC 7491 (KLR) (Constitutional and Human Rights) (30 June 2014) the Court pronounced itself thus:Currently there is no law in Kenya regulating surrogacy arrangements. It is because of lack of a legal regime that the parties found themselves in such a situation. But even where there is no legal regime, the court or any persons dealing with the issues must, in accordance with article 57 of the _Constitution_ , decide the issue on the basis of the best interests of the child. I agree with the submissions of Mr Chigiti, counsel for the 2nd interested party, that a child born out of a surrogacy arrangement is no different from any other child. Under article 53 of the _Constitution_ and section 11 of the _Children Act_ every child has the right to certainty of their parentage, a right to family, a right to a name acquired through issuance of a birth certificate, a right to access health services and a right not to suffer discrimination of any form arising from their surrogate birth. These rights are buttressed by international instruments like the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child under articles 7 and 9 respectively.Surrogacy is not a hypothetical issue any more. It is real and many Kenyans are resulting to surrogacy as an alternative to being parents especially those who cannot for medical reasons have their own children. In such circumstances, it is the duty of the State to protect the children born out of such arrangements by providing a legal framework to govern such arrangements.” 8.In absence of legislation, this court reclines to article 53 of the [Constitution](/akn/ke/act/2010/constitution) (Paramountcy Principle). 9.The upshot therefore is that the application is allowed in its entirety. 10.This being a children matter, I make no order as to costs **DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 19 TH DAY OF SEPTEMBER, 2024****JACKIE KIBOSIA****PRINCIPAL MAGISTRATE** In the presence of:N/A by partiesMr. Mohammed, CA *[HCCA]: High Court Civil Appeal *[J]: Judge