Surrogate baby's skin colour sparks court battle between parents, clinic

In March last year, a couple walked to Myra In Vitro Fertilisation Clinic in Westlands, Nairobi.

The two parties, now at the centre of a court battle involving the clinic owner, Sukhija Sarita, the Office of the Director of Public Prosecutions, Inspector General of Police, and the Directorate of Criminal Investigations, had hoped to become parents through a surrogate mother.

 The doctor and her clients came to an agreement that she would seek the services of a surrogate mother from the possible candidates who had expressed interest.

Although surrogacy remains unregulated in the country, the doctor did the screening and settled for one who then signed an agreement with the two on November 4, 2024.

The agreement signed before a lawyer was that the surrogate mother would carry the baby for nine months, and after giving birth, she would surrender all the baby’s rights to the couple, who we have opted to leave out their names for ethical reasons.

 Things were smooth, including the man going to the clinic for sperm sample collection. At the same time, a selection of eggs from an Indian donor was made.

 The clinic kept the collected sperm.

The next step was to create an embryo by fertilising the egg by an embryologist, which would be inserted into the surrogate mother. The embryo transfer, according to court documents was done on November 4, 2024.

All was well until the surrogate mother fell ill at 33 weeks of pregnancy.

“The pregnancy with the surrogate had some complications known as circumvallate placenta that was noticed during a routine antenatal checkup at the Myra clinic which was very closely monitored,” said Dr Sukhija in her case filed by lawyer Kevin Mogeni.

According to the National Institute of Health, circumvallate placenta is a condition involving the sac that is responsible for sending oxygen and nutrition to the baby and separating the mother and baby blood supply.

Now, the chorionic plate which is located on the baby’s side of the placenta is too small, causing the baby’s membranes to turn around and return on the same path (double back) around the edge of the placenta, which keeps the chorionic plate from aligning with the side that faces the rest of the mother’s body.

Sukhija told the court that on June 3 this year, the surrogate mother came to her clinic and reported bleeding. She was taken to Nairobi South Hospital and had caesarian section.

The baby was a boy, born on June 4.

The surrogate mother did her end of the bargain by giving the newborn the name desired by the couple and had their names as the father and mother, then left.

According to Sukhija, the boy stayed at Nairobi South for four days but developed complications. The couple transferred him to the Gertrude’s Children Hospital.

But it’s the colour of the newborn that stirred the dispute, which started with a demand letter from the couple, then a police complaint which boiled down to a court case.

From the Directorate of Criminal Investigations’ letters requiring Sukhija to appear for questioning, it appears that the police were uncertain about what to question the fertility expert about.

Initially, the investigator wrote to her that she was required for a probe concerning an alleged offence of cheating.

Then, in a subsequent letter requiring her and the clinic’s staff to produce records of surrogacy agreements, the DCI indicated that this time round the offence they were allegedly investigating was human trafficking.

Sukhija, in her case, claimed that she had informed the mother that it was too early to establish the race of the child, as he was born before the due date.

She further claimed that she explained to her that the race could also be affected by the long hospitalisation.

“ I further advised her to concentrate on the health of the baby, and upon discharge, the rest can be addressed,” she said.

Sukhija said that her clients went quiet until July 29 this year, when a demand letter was sent to her clinic from Gikoi Maina and Company Advocates.

She stated that the lawyer informed her that the two had commissioned an independent DNA test, and the results allegedly indicated that the child had no genetic relation to them.

In the letter, the couple was demanding compensation for alleged gross professional medical negligence.

The couple alleged that while the minor was receiving intensive care, they noted that the complexion continued to appear significantly darker than expected. The father and the donor were of light complexion. The couple’s lawyer claimed that they feared that the minor may have been swapped at birth.

“Our clients again raised this concern with Dr Sukhija Sarita, given the stark differences in the baby’s complexion and the lack of resemblance to either genetic parent, our clients began to fear that the baby may have been mistakenly swapped at birth or that the wrong embryo had been transferred.”

“These fears were met with dismissively and unfounded reassurances by Dr Sukhija Sarita, and her staff. Unsatisfied, our clients proceeded to commission an independent DNA test to put their doubts to rest. The results confirmed their worst fears; the child is not biologically related to either of them,” wrote the lawyers.

The couple claims the clinic had caused them immense trauma, psychological distress, and it had violated their trust, dignity, and contractual expectations.

They demanded that the clinic provides compensation for the emotional and psychological distress, medical and associated expenses, breach of contract, special and punitive damages.

The lawyers gave the clinic seven days to admit in writing and come up with a reasonable compensation proposal.

However, Sikhuja, in her case, said that the DNA test was done without her knowledge and involvement, hence, there was no independent scientific information that could either confirm the minor had the parents’ genes or otherwise.

The dispute then took a new twist. Sukhija stated that on August 7, DCI officers went to Myra clinic and served her with a summons, requiring her to go write a statement on an alleged offence of cheating.

She said that she went to the Diplomatic Police Unit on August 21  and explained herself.

A day before, according to her, police officers went to the clinic and summoned her receptionist, Nancy Mulwa, then Dr Bashir Dekwo, Dr Mogamed Maalim Abdisalan, and Doreen Muriungu.

She added that the officers were interested in confidential information on surrogacy processes done by her clinic.

The documents the officers wanted included surrogates’ recruitment files, screening reports, medical history and consent forms signed by the surrogate mother, surrogacy agreements, and identity details of the surrogate mother.

At the same time, they were looking for records of embryos, administrative records, financial transactions relating to surrogacy, surrogate allowances and clinic bills.

Sukhija asserted that the couple cannot claim child trafficking or cheating while still having actual and legal custody of the minor.

She stated that they voluntarily sought and obtained the services of a surrogate mother and got a child out of the arrangement.

“The first and second respondents are abusing the criminal justice system as their complaint than their expectations and there is no independent DNA that has been conducted with my knowledge or that of the clinic,” argued the IVF and gynaecologist specialist.

A certificate submitted before the court indicates that Myra IVF is licensed by the Kenya Medical Practitioners and Dentists Council (KMPDC) to  carry out clinical practice on obstetrics and gynaecology until December 31 this year.  

Surrogacy is a relatively new area within the Kenyan courts. In the absence of a specific law for surrogacy, those who wish to bear children through the process sign an agreement.

These agreements are anchored on the Law of Contract Act, where surrogacy is deemed to be a commercial agreement between the parties.

 Since one can only become a parent in Kenya through either adopting a child or giving ­­­­birth, then the only option for those who go for surrogacy is to rely on adoption law to assume parenthood.

The country has grappled with the issue for decades now, with two Bills still hanging somewhere, gathering dust in Parliament.

Parliament tried to come up with a law on surrogacy through the Assisted Reproduction or In-Vitro Fertilisation Bill, 2014. Then there is Kenya’s Assisted Reproductive Technology Bill, 2022.

In the country’s landmark case in 2014, Justice Isaac Lenaola (now Supreme Court judge) awarded a couple and their twin babies Sh1.5 million compensation for violation of their rights after a contest on who between the surrogate mother and the parents of the minor ought to be entered in the birth certificate.