The High Court in Nairobi has barred the Directorate of Criminal Investigations (DCI), the police and the Director of Public Prosecution (DPP) from arresting or charging a gynaecologist in a row over the colour of a surrogate child.

Justice Bahati Mwamuye ordered that the DCI should not charge Dr. Sarita Sukhija or any of the employees of Myra In Vitro Fertilisation Clinic in Westlands, Nairobi.

“A conservatory order be and is hereby issued restraining the third, fourth and fifth respondents, jointly and severally, and whether directly or through their employees, servants, agents, or related entities from summoning, arresting, detaining, charging or causing the charging of, prosecuting or causing or continuing the prosecution of the Petitioner or any of the petitioner’s employees, servants, agents, associates, or such other person in relation to any matter touching on a complaint by the first and second respondents or with regard to any matter that is the subject of the Petition herein,” ruled Justice Mwamuye.

At the same time, the judge directed that the DCI should not summon Dr. Sarita or her employees to produce surrogacy agreement records or any other item relating to an alleged human trafficking probe.

Dr. Sarita, in her case, said that DCI had asked her employees to produce medical, financial, and administrative records arising from surrogacy agreements after a couple raised a complaint after a child born by a surrogate mother allegedly turned out darker than what they were expecting.

She said that the claims of human trafficking could not hold water as the couple was still raising the minor born at Nairobi South Hospital.

Her lawyer, Kevin Mogeni, asserted that there is no basis for the police to order the private agreements to be surrendered for investigations.

“The petitioner (Sarita) is ready to be interrogated by a medical professional body if indeed the complaint by the first and second respondent is true but the involvement of the police alleging cheating and child traffic is far-fetched and an abuse of the police process as the Petitioner lives in fear of being arrested and dragged through a criminal process while all she was undertaking was her professional duties,” argued Mogeni.

According to him, the fertility specialist just did her work and the child was born. He said that the couple that wanted parenthood voluntarily sought surrogacy services and that did not amount to cheating.

“The first respondent and second respondents are still in legal and actual custody of the child and cannot allege I cheated or tricked them as I conducted my work as an IVF Specialist and a child was born as a result. They also cannot allege child trafficking as they voluntarily sought and obtained services of a surrogate mother and they have actual and legal custody,” the lawyer said.

In March last year, the couple at the heart of the case walked to the clinic seeking to start a journey as parents.

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 with 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 couple is now at the centre of a court battle involving Sarita, the Office of the DPP, the Inspector General of Police, and the DCI.

Justice Mwamuye ordered that Sarita serve the court papers on all parties, with a reply due by September 19, 2025.  Sarita will then file a further reply by October 3.

He will mention it on October 8.