In Re the Matter of Baby T D L [2014] KEHC 8012 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MILIMANI

ADOPTION CAUSE NO. 238 OF 2012 (OS)

AND

IN THE MATTER OF THE CHILDREN’S ACT

(NO. 8 OF 2001)

AND

IN THE MATTER OF BABY T. D. L.

JUDGEMENT

The applicants, J W L and W L, are Kenyan and US citizens, respectively. They are a married couple. They seek to adopt Baby T. D. L. Their originating summons is dated 17th October 2012.

The child in question was born on 25th November 2010 to P T. He was born out of a surrogacy arrangement between the applicants and the birth mother and her husband, Pastor R T. The child is biologically that of the applicants and the birth mother only carried the pregnancy, as the female applicant supplied the egg while the male applicant supplied the sperm. The child was handed over to the applicants immediately upon delivery. The birth notification was given in the name of the birth mother, and this adoption application is tailored to correct the paper work.

The child was freed for adoption by the Kenya Children’s Homes adoption society by their certificate of 24th April 2012.

To facilitate this adoption, the applicants have been assessed by the Kenya Children’s Homes, the Director of Children Services and the guardians ad litem, H S S and H K S. The three have compiled and filed their reports in court. That of the Director of Children Services is dated 12th November 2013, while that of the guardians ad litemis dated 3rd December 2013. The report by the Kenya Children’s Homes is dated 24th October 2013.

All these reports are favourable and recommend the proposed adoption. The applicants have demonstrated that they have the financial and emotional capability and capacity to take care of the child. The child himself appears to have bonded well with them and he considers them to be his parents. I have taken note of the fact that the male applicant has two biological children, who are adults.

I have noted the ethical concerns raised by the Director of Children Services in his report. I have taken note that he has recommended the proposed adoption save that he has misgivings about certain matters on a purely moral standpoint. Legally surrogacy arrangements are valid and have been upheld in other jurisdictions. The Kenyan state has been slow in passing legislation to deal with surrogacy arrangements, that however should not in my view affect the legality of such arrangements so long as they are entered into freely by consenting adults and are in the best interests of the child the subject of the arrangements. In my view the child in this case will not be prejudiced in any way, and the present arrangements are in his best interests.

In the opinion of this court it would be in the best interests of the child that he is adopted by the applicants. The applicants will be able to provide a home and a family for the child to grow up in and thereafter be a useful member of the family. Consequently, the applicants shall assume all parental rights and duties of the biological parents in respect of the adopted child; they shall treat the adopted child as if he was born to them. The applicants have been made aware that once the adoption order is made it shall be final and binding during the lifetime of the child and that the child shall have the right to inherit their property. The applicant cannot give up the child owing to any subsequent unforeseen behaviour or other changes in the child.

I am satisfied that all the legal requirements for a local adoption have been met, and I therefore make the following orders:-

That the applicants, J W L and W L, are hereby allowed to adopt the child Baby T D L, who shall hereafter be known T D L;

That H S S and H K S are hereby appointed legal guardians of the child in the event something untoward happens to the applicants;

That the Registrar-General is hereby directed to enter this adoption order in the adoption register; and

That the guardian ad litemis hereby discharged.

DATED, SIGNED and DELIVERED at NAIROBI this 4th DAY OF July 2014.

W. MUSYOKA

JUDGE

In the presence of Miss. Chakaira advocate for the applicants