Why court has blocked police from arresting, prosecuting fertility doctor

The High Court in Nairobi on Wednesday granted IVF expert Dr Sarita Shukhija a major victory after permanently blocking the Directorate of Criminal Investigations (DCI), the police, and the Director of Public Prosecutions (DPP) from arresting or charging the gynaecologist in a dispute over the colour of a surrogate child.

At the same time, Justice Bahati Mwamuye separately barred the DCI from demanding crucial surrogacy agreements from Dr Shukhija’s lawyer, Kevin Mogeni, his associates, or employees, relating to three other minors.

The judge directed that Mogeni’s case be handled by Justice Lawrence Mugambi, stating that he had already determined Shukhija’s case in her favour. He ruled that the new case required fresh judicial consideration.

The DCI had been investigating alleged child trafficking following a dispute between a couple and Dr Shukhija’s Myra In Vitro Fertilisation (IVF) Clinic over the colour of a child born through surrogacy. “A order is hereby issued restraining the third, fourth and fifth respondents, jointly and severally, whether directly or through their employees, servants, agents or related entities, from summoning, arresting, detaining, charging, or prosecuting the petitioner or any of her employees, agents, or associates in relation to any matter touching on the complaint by the first and second respondents,” ruled Justice Mwamuye.

Dr Shukhija argued that the DCI had asked her employees to produce medical, financial, and administrative records relating to surrogacy agreements after a couple complained that a child born through surrogacy was darker than they had expected.

She said claims of human trafficking could not be sustained because the couple was still raising the minor born at Nairobi South Hospital.

Her lawyer, Kevin Mogeni, argued that there was no legal basis for police to demand private agreements for investigations.

“The petitioner is willing to be interrogated by a medical professional body if the complaint is genuine. However, police involvement alleging cheating and child trafficking is far-fetched and amounts to abuse of the criminal justice process, while the petitioner lives in fear of arrest and prosecution while simply performing her professional duties,” he said.

According to Mogeni, the fertility specialist simply performed her work, resulting in the birth of a child. He added that the couple voluntarily sought surrogacy services, which did not constitute cheating.

“The first and second respondents still have legal and physical custody of the child and cannot claim they were cheated. They voluntarily sought and obtained surrogacy services. As a result, allegations of child trafficking are unfounded,” he said.

IIn March last year, the couple approached the clinic seeking fertility treatment.

Dr Shukhija helped source a surrogate mother after screening interested candidates. The surrogate signed an agreement with the couple on November 4, 2024, agreeing to carry the pregnancy for nine months before surrendering parental rights.

The agreement, signed before a lawyer, stated that the surrogate mother would carry the pregnancy for nine months and surrender parental rights to the couple after birth. The couple’s names have been withheld for ethical reasons.

The process initially progressed smoothly. The man provided a sperm sample, while eggs were sourced from an Indian donor. The clinic stored the sperm before an embryologist fertilised the egg to create an embryo, which was transferred to the surrogate mother on November 4, 2024.

The pregnancy progressed normally until the surrogate mother fell ill at 33 weeks.

The couple is now involved in a legal dispute with Dr Shukhija, the DPP, Inspector General of Police and DCI

Shukhija further said DNA testing was conducted without her knowledge, and there was no independent scientific evidence confirming the child’s genetic links to the parents.

“I instructed my lawyers to engage the first and second respondents’ lawyers on the demand letter to establish the issues raised and the way forward, as the respondents are seeking full compensation for emotional and psychological distress, medical expenses, breach of contract, and punitive damages,” she said.

The dispute escalated when DCI officers visited Myra Clinic on 7 August and issued summons requiring her to record a statement on alleged cheating.

She later attended the Diplomatic Police Unit on 21 August 2025 to explain herself. Officers had earlier visited the clinic and summoned staff members seeking confidential information about surrogacy procedures.