The End of International Surrogacy in Kenya? What Australians Need to Know

Surrogacy in Kenya has long sat in an uneasy space. It has been available, it has been used by some foreign intended parents, and yet it has operated in a legal environment that is largely unregulated. For Australians, that combination should always have rung alarm bells.

The numbers alone tell part of the story. Very few Australians have pursued surrogacy in Kenya. Based on Australian Department of Home Affairs data obtained through Freedom of Information requests, the total appears to be fewer than 20 Australian children born there through surrogacy over an eight-year period. That is a tiny number by any measure.

But the more important issue is not volume. It is risk, ethics, and what may happen next. Kenya is now moving towards a formal legislative framework, and if the current bill becomes law, surrogacy in Kenya is likely to cease being an option for Australians altogether.

Why Kenya has attracted attention

One of the unusual features of Australia’s system is that the federal government collects data about where children are born overseas through surrogacy. It does this through applications for Australian citizenship by descent. In those applications, there is a specific question asking whether the child was born through surrogacy.

That means Australia has a better picture than many countries of where overseas surrogacy arrangements are actually happening. It is a rare source of reliable information in an area where anecdote often substitutes for evidence.

When those numbers are examined, Kenya barely features. In years where the number is very low, the government records it as “less than five” for privacy reasons rather than giving a precise figure. So while the upper estimate may be around 20 children over eight years, the true figure is probably lower.

That low uptake reflects what many lawyers and policy makers have already understood. Surrogacy in Kenya has never been a mainstream pathway for Australians. It has been niche, uncertain, and fraught with legal and ethical complications.

Why Kenya is on Israel’s “naughty list”

Kenya has also come under scrutiny internationally. Israel has identified Kenya as one of a number of countries that intended parents should not use for surrogacy. Others named include Ukraine, Albania and North Cyprus.

The concerns are serious and familiar to anyone working in international surrogacy law:

• Exploitation of women
• Commodification of women
• Commodification of children

Those concerns are amplified where there is poverty, weak regulation, and a significant power imbalance between foreign intended parents, agencies, and the women carrying pregnancies.

That is really the heart of the issue. A country does not become controversial simply because it permits surrogacy. It becomes controversial when there is little legal protection, little transparency, and too much room for vulnerable women to be treated as part of a commercial pipeline rather than as rights-bearing human beings.

The current legal position on surrogacy in Kenya

At present, surrogacy in Kenya is best described as unregulated rather than clearly lawful under a detailed statutory framework. That matters enormously.

In practical terms, the process has reportedly involved obtaining an adoption order at the end, rather than relying on a settled surrogacy regime that clearly allocates parentage from the start. That is a very different model from jurisdictions with established surrogacy laws.

There are also concerns about how related fertility arrangements operate. Egg donation is understood to be anonymous. Agencies involved in the market have largely been run by Indian operators. Taken together, those features create a system that is far from ideal for intended parents, and even more concerning for surrogates and children.

For Australians, any overseas arrangement needs to be assessed not just through the law of the destination country, but through Australian law as well. Commercial surrogacy is treated very differently from state to state in Australia, and in some places there are criminal consequences for entering into such arrangements overseas. Anyone considering international pathways should understand the Australian position first.

The bill that could change everything

Since 2022, reform has been moving through the Kenyan Parliament in the form of the Assisted Reproductive Technology Bill 2022.

The bill passed through the National Assembly, being the lower house, in late 2025 and has since moved to the Kenyan Senate. The Senate called for submissions, and that consultation period has expired. As at 17 March 2026, the bill had not yet been enacted.

Still, the direction of travel appears clear. If the bill passes in its current form, surrogacy in Kenya will no longer be a viable option for Australians because:

• Commercial surrogacy would not be permitted
• Surrogacy would be limited to locals rather than foreigners

In other words, the very features that made Kenya attractive to some foreign intended parents may disappear. That would not be a minor regulatory tweak. It would fundamentally close the international market.

Why the proposed reform matters

It is easy to think of legislative reform as simply another legal update. In fact, this proposed change goes much deeper.

The Member of Parliament driving the reform has made the policy objective clear: protecting Kenyan women and children. The concern is that in an unregulated environment, foreign intended parents and agencies can hold far more power than poor Kenyan women. That inequality is precisely where exploitation flourishes.

This is worth stating plainly. The criticism of surrogacy in Kenya has not merely been that the paperwork is messy or that the rules are underdeveloped. The criticism is that the structure itself creates conditions where exploitation becomes more likely.

That is why ethical reform matters. It is also why intended parents should be deeply cautious about jurisdictions that seem easy only because they lack safeguards.

What Australians should take from this

For Australians exploring overseas pathways, there are several practical lessons here.

1. Low numbers do not mean low risk

The fact that relatively few Australians have used surrogacy in Kenya is not reassuring. If anything, it may suggest that informed intended parents and advisers have already identified the hazards.

2. Unregulated markets are dangerous

Where there is no clear legal framework, uncertainty affects everyone. Intended parents may face problems with parentage, citizenship, and recognition of their family. Surrogates may face pressure, poor protections, and limited recourse. Children may be caught in the middle of systems that were never properly designed around their welfare.

3. Law reform can shut doors quickly

Anyone assuming an overseas option will remain available indefinitely is making a mistake. International surrogacy settings can change rapidly. Kenya may be the latest example of that reality.

4. A back-up plan is essential

Cross-border surrogacy always carries legal and practical risk. Citizenship, travel documents, parentage, and local court processes can all become sticking points. That is why intended parents should always plan for disruption rather than assuming a smooth path. A sensible starting point is this guide on having a back-up plan in surrogacy.

The Australian legal overlay

Even where an overseas arrangement appears possible, Australians cannot ignore domestic law. Different Australian states and territories regulate commercial surrogacy differently. Some prohibit participation in overseas commercial arrangements. Others regulate facilitation, advertising, or related conduct in distinct ways.

There is also the federal citizenship layer. When a child is born overseas through surrogacy, intended parents often need to deal with citizenship by descent and immigration consequences. The official starting point for that process is the Australian Government’s citizenship information through the Department of Home Affairs.

Where broader family law issues arise, the Attorney-General’s Department also provides a useful overview of Australia’s surrogacy framework, including the fact that laws differ across the country.

Is surrogacy in Kenya already over for foreigners?

Not formally, at least not yet on the information presently available. As of mid-March 2026, the Assisted Reproductive Technology Bill 2022 had not been enacted by the Kenyan Senate.

But for practical purposes, the writing may well be on the wall. The political momentum behind reform appears to be driven by ethical concerns rather than minor administrative tidying up. If those concerns remain front and centre, then surrogacy in Kenya is unlikely to remain open to foreign intended parents in its current form.

That means Australians should not view Kenya as a stable long-term option. Quite the opposite. It is a jurisdiction where the legal environment is unsettled now and may soon become closed.

The bigger lesson about international surrogacy

Kenya is a reminder that in international surrogacy, the cheapest, easiest, or least regulated pathway is often the one that carries the greatest long-term danger.

When intended parents are desperate to build a family, it can be tempting to focus on availability and speed. But the real questions are harder and more important:

• Is the surrogate properly protected?
• Is the child’s legal status secure?
• Is the arrangement transparent and ethical?
• Will Australia recognise the outcome in a workable way?

If those questions cannot be answered confidently, that is not a green light. It is a warning sign.

For that reason alone, surrogacy in Kenya should be approached with considerable caution. And if the pending legislation passes, caution will no longer be enough because the door may close entirely.

About Stephen Page

Stephen Page is widely regarded as Australia’s leading surrogacy lawyer and one of the country’s best-known voices in fertility and family law. He has advised on surrogacy matters for many years, with a particular focus on the complex intersection between Australian law, overseas arrangements, parentage, and citizenship. His work is recognised nationally and internationally for its depth, clarity, and practical insight.