Kenya's surrogacy nightmares: How legal loopholes are leaving parents devastated

In marriage, the next step after coming together for some couples is to bear children.

For those who cannot conceive, they choose to adopt, while others choose to go the surrogacy way.

But then, in between, some couples who are healthy enough to bear a child but instead choose a surrogate to carry their baby to term and surrender it once it is born.

Two cases at the Kenyan High Court have turned the focus back to surrogacy and the need for laws to regulate the practice.

The practice is not regulated by any law, as attempts by Parliament to enact laws to regulate it have never been concluded.

An attempt in 2014 flopped after the In-Vitro Fertilisation Bill, which was later renamed the Assisted Reproductive Technology Bill, had been introduced at the National Assembly but was never passed.

In 2022, Suba North MP Millie Odhiambo reintroduced the Assisted Reproductive Technology Bill, which is still in Parliament.

It was tabled in January 2023 and has already undergone the first and second readings.

It is at the committee stage where amendments that were proposed on the floor of the House will be considered clause by clause.

Observers say that when passed and signed into law, it will regularise the practice, making it accessible to all Kenyans and not a preserve of the rich, as is the case today.

In the absence of a law regulating the practice, couples and surrogate mothers depend on the law of contract.

In this, they all sign a commercial agreement where a mother commits to carrying the baby to term and surrendering it to the parents after birth, for which they are paid.

The baby is then taken through the adoption process in court to be registered as belonging to the couple.

In one of the cases at the High Court’s Civil Division, an American couple has sued NMC Fertility K. Limited, Lotus Fertility Agencies, the Coptic Hospital, and a Kenyan woman.

In their case, the couple claims that they travelled to Kenya sometime in 2024 for In Vitro Fertilisation (IVF) at the NMC fertility clinic.

They gave their sperm and ova and had an agreement in place that the embryo would be transferred into a gestational surrogate.

They say that they met the Kenyan woman who would carry the pregnancy to term.

Their baby was born on 19 January 2025 at Coptic Hospital, which was chosen by the fertility clinic and Lotus agency, and they were overjoyed with their new bundle of joy.

What they did not know, however, was that their joy would be cut short and a nightmare was on the horizon.

The woman said that after the baby was born, they noticed that it was not consistent with their background, but held on to the child given to them by the adoption process.

The couple then sought to travel back to America and were required to process documentation for the baby and needed to prove that it was theirs.

In their suit papers, they say that after consulting medical experts, they were advised to perform a DNA test, which was done in February 2025.

They allege that the results showed that the baby was not genetically related to either of them.

“The psychological impact of this news was so devastating. As a woman, I have endured months of depressive medication, physical and mental discomfort on the lost hope of finally becoming a mother to a child of my own biological connection,” said the woman.

“All my peace was taken from me by what I believe to be gross acts of negligence and breach of duty by the defendants jointly and severally.”

She added that she has suffered emotional breakdown, sleep disorders, and exhibited symptoms of depression since the incident, adding that it had affected her health, marriage, and trust in medical institutions.

The couple confronted the clinic and agency and issued a demand letter, and in return, the clinic requested another DNA test.

“The results confirmed our worst fears – the child has no biological or genetic connection to either me or my wife. This revelation caused us unspeakable shock, grief, and distress,” said the man in his affidavit.

They say that they would like to trace the biological identity of their child as well as that of the child that they had been given so as to connect it to its real parents.

“The trauma of losing a child we planned for, carried hope in, and trusted the defendants to deliver through professional care has left us with lasting emotional scars,” said the man.

They want to be compensated for the loss of genetic parenthood, emotional distress and psychological trauma, financial loss, and damages to personal and familial integrity.

In another case, still at the Civil Division, a couple is seeking damages after DNA tests showed that the baby they thought was theirs isn’t.

They are seeking Sh13 million in damages that they say they spent on medical expenses, ambulance costs, DNA testing, nursing, childcare, and air tickets.

The couple had Myra In Vitro Fertilisation Clinic in Westlands, Nairobi, as their choice to oversee the process.

They sued the facility and its owner, Dr Sukhija Sarita.

The couple had trusted Sarita to get them a surrogate who would carry their baby to term and surrender it after birth.

They signed the agreement on 4 November 2024, which said the surrogate mother would surrender the baby’s rights to the couple after birth.

The man donated his sperm, and an Indian donor was found to donate her eggs for the exercise.

The egg was fertilised, and the embryo was then inserted into the surrogate mother, which happened on 4 November 2024.

At 33 weeks of pregnancy, the surrogate mother fell ill and went back to the clinic, where she was observed by Dr Sarita on 3 June 2025.

“The pregnancy with the surrogate had some complications known as circumvallate placenta that was noticed during a routine antenatal check-up at the Myra Clinic, which was very closely monitored,” she said in court papers.

After noticing the condition, the surrogate mother was admitted to Nairobi South Hospital, where she had a caesarean section.

She gave birth to a baby boy on 4 June and had the couple registered as parents.

The boy was admitted to Nairobi South for four days but developed complications and was transferred to Gertrude’s Children’s Hospital.

The couple raised issues with the colour of the baby, and Dr Sarita alleges that she told the mother to concentrate on the well-being of the child, as it was still too early to determine its true identity.

The couple expected a baby with a different colour complexion.

Unsatisfied with her assurances, the couple went ahead and performed a DNA test that showed that the baby was not theirs.

As suspicion grew over what had happened, the couple filed a police report, and as the Directorate of Criminal Investigations (DCI) probed the matter, Dr Sarita went to court.

She sued DCI, the Office of the Director of Public Prosecutions, and the Inspector General of Police.

In court, she sought to stop the investigations and from being arrested after it emerged that several of her staff had been questioned by detectives.

In their investigation, DCI was probing cheating before later changing to child trafficking.

The DNA results confirmed their suspicion that the baby was not theirs, and Dr Sarita protested, saying the tests had been done without her knowledge. She added that the process did not have independent scientific information to confirm the couple as bona fide parents.

Agreement

An agreement signed by the couple and Dr Sarita reveals what happens and what is required of the two contracting parties.

For starters, both the parents and the surrogate mother have to be adults.

The interested parent must have expressed interest in either having their sperm and egg placed into the uterus of the surrogate mother, while she (the carrier) must be interested in conceiving.

In the case before Justice Bahati Mwamuye, the surrogate mother was an adult single mother of one child. It was indicated that the minor was alive and healthy and was born through normal delivery.

“She has agreed to become Surrogate Mother as contemplated herein out of her own free will and volition and for that purpose undertakes to undergo all kinds of medical treatment and surgical operation as may be medically prescribed and necessary in the course of the process of giving birth to a child,” the agreement reads in part.

The other issue is an assurance that the surrogate mother does not have HIV and AIDS, or hepatitis B and C, or chronic diseases.

In addition, the agreement includes an awareness of the medical processes and complications that come with pregnancy and childbirth, including post-delivery complications.

On the part of the surrogate mother, she has to affirm that she has no gynaecological issues and is in good health to give birth to a child for the commissioning parents.

“She will co-operate and undertake all kinds of medical tests and take all precautionary measures and care as may be necessary and advised by the doctors during the period of her pregnancy carrying the child for the Commissioning Parents and for that purpose make herself available as and when required by the attending doctors,” the document reads in part.

It adds that the surrogate mother has to, during the pregnancy period, ensure that she does not do anything that may harm her health or that of the unborn baby.

In the meantime, she commits that she has fully agreed to the terms set out to avoid any future misunderstandings, and she is fully aware that after the birth of the child, whether single or twins, she will have no right or authority over them and that she shall hand over the child to the parents.

In the meantime, she is required to forever remain silent about the agreement and not sue.

The agreement also prohibits the surrogate mother from having sex before the embryo is placed and after, or using sex toys during the pregnancy, and from terminating the pregnancy.

In case of any complication, the authority to terminate the pregnancy is left to the attending physician or may be through delivery by caesarean section.

She has to give birth at the hospital of choice of the commissioning parents.

In the meantime, if the foetus carried by the surrogate mother has been determined by the treating medical practitioner to be physiologically, genetically, or chromosomally abnormal, the decision to terminate the pregnancy, or not to terminate the pregnancy, is to be made by the commissioning parents.

On the other hand, the parents sign that the agreement is mutual and that no money has been issued or paid to the surrogate mother for the exercise.

However, any money paid to her ought not to be deemed as compensation.

“They have a legal obligation to accept the child that the Surrogate Mother delivers through IVF and are solely responsible for arranging necessary legal and travel documentation for the new-born Child. The Child born through the IVF procedure would have all the inheritance rights of a child of the Commissioning Parents as per the prevailing law,” the agreement continues.

In the meantime, they are required to bear all the costs and expenses incurred by the surrogate mother to fulfil the agreement and take care of her until she gives birth and for routine postnatal care.

They also state that there is no guarantee of a positive pregnancy and getting twins or more out of a single embryo transfer.

In the meantime, they sign that the hospital, the IVF specialist, and the attending physician have no responsibility or liability in case the baby is stillborn owing to pregnancy complications.