Automated Summary
Key Facts
JS (German citizen) and NM (Tanzanian citizen) applied to adopt AIIS, a 1-year-old child born via surrogacy at Aga Khan Hospital, Nairobi on April 2, 2024. The child is a twin to Baby STKS (Adoption E252 of 2024). The court confirmed the applicants' biological relationship to the child through DNA testing, approved the kinship adoption under the Children's Act 2022, and determined it to be in the child's best interest. Legal guardians VFN and TD were appointed as backup. All statutory reports and assessments supported the adoption.
Issues
- The court considered the legality of the surrogacy agreement between the applicants and gestational surrogate LAA, applying the 'child's best interest' principle and referencing precedents like Baby TDL [2014] eKLR to affirm its validity under Kenyan law.
- The court determined the suitability of VFN and TD (the applicants' family members) as legal guardians in case of the applicants' incapacity or death, ensuring compliance with adoption order requirements under the Children Act 2022.
- The court evaluated if the applicants, a German and Tanzanian citizen in Kenya, fulfilled statutory adoption requirements (age, relationship to child, criminal record checks) under Sections 186, 193, and 194 of the Children Act 2022 for a kinship adoption.
- The court assessed if the adoption of Baby AIIS by JS and NM aligns with the child's best interest, relying on reports from the Children Officer, Guardian Ad Litem, and statutory assessments confirming the applicants' stability and the child's bonding with them.
- The court addressed whether Baby AIIS, born via surrogacy in Kenya, qualifies for Kenyan citizenship by birth under Article 14(4) of the Constitution, given her unknown nationality and parents at birth.
Holdings
- Her date of birth shall be 2nd April, 2024 at Aga Khan Hospital, Nairobi.
- The Applicants, JS and NM are hereby allowed to adopt Baby AIIS (Minor).
- Henceforth, the child shall be known as AIIS.
- The Registrar General to enter this order in the Adoption Children Register.
- The Director Immigration is authorised to issue the child with a Kenyan Passport.
- VFN and TD are hereby appointed as Legal Guardians of the child.
- The Registrar General do issue a birth certificate indicating JS and NM as father and mother of the minor.
- The guardian ad litem is hereby discharged.
- She is presumed to be a Citizen of Kenya by birth.
Remedies
- The guardian ad litem is hereby discharged.
- The Registrar General do issue a birth certificate indicating JS and NM (the Applicants) as father and mother of the minor.
- The Registrar General to enter this order in the Adoption Children Register.
- She is presumed to be a Citizen of Kenya by birth.
- Henceforth, the child shall be known as AIIS.
- Her date of birth shall be 2nd April, 2024 at Aga Khan Hospital, Nairobi.
- The Director Immigration is authorised to issue the child with a Kenyan Passport.
- VFN and TD are hereby appointed as Legal Guardians of the child.
- The Applicants, JS and NM are hereby allowed to adopt Baby AIIS (Minor).
Legal Principles
The Court applied the principle of the child's best interests as the guiding framework for its determination, referencing Section 8 of the Children Act 2022, Article 14(4) of the Constitution of Kenya 2010, and international instruments like the UN Convention on the Rights of the Child and the African Charter on the Rights & Welfare of the Child. This principle was central to validating the surrogacy arrangement and the subsequent kinship adoption under Sections 186 and 193 of the Children Act 2022.
Precedent Name
Baby TDL [2014] eKLR
Cited Statute
- Children Act 2022
- Constitution of Kenya 2010
Judge Name
PM Nyandui
Passage Text
- 18. This Court is therefore of the opinion that this Adoption would be in the best interest of the child and allows the application with orders that;... d. She is presumed to be a Citizen of Kenya by birth.
- 12. Surrogacy agreements are relatively new within the Kenyan legal system, however Courts in Kenya have acknowledged that Children born through surrogacy are entitled to the same rights and protections as children born through traditional means where the Court rely on the 'principle of the child's best interests' to guide decisions in surrogacy cases meaning the child's well-being is paramount.
- 15. This Court is alive to the jurisdiction of the High Court vide Article 165 Constitution of Kenya 2010 and Section 183(1) Children Act 2022... The guiding principle remains in the best interests of the child pursuant to Section 8 and 194(1)(c) of the Children's Act Cap 141 of the Laws of Kenya.