High Court revives 'wrong sperm' case against IVF clinic
Crime and Justice
By
Kamau Muthoni
| Jun 05, 2026
IVF and a human foetus with DNA strand. [Courtesy]
The High Court has reopened an alleged donor sperm swap battle between a woman and a fertility clinic.
Judge Asenath Ongeri said if the claims by the woman, whom we codename Edna for ethical reasons, were proved true, NMC Fertility Kenya Limited would not only have breached the contract but also committed fraudulent misrepresentation.
For this, Justice Ongeri ordered that the magistrates’ court, which was initially hearing the case, hear Edna’s case.
At the same time, Ongeri also urged Parliament to fast-track enactment of the law on assisted pregnancy and surrogacy, also known as the Artificial Reproductive Technology Bill.
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“In the present case, the nature of the alleged breach was the use of a donor of the wrong race, which was not and could not have been known to the Appellant until the child was born and DNA testing was conducted,” said Justice Ongeri.
On November 17, 2018, Edna went to the in vitro fertilisation (IVF) clinic, hoping to become a mother.
She also had a choice of the sperm donor, whom she was certain her child would resemble. A sperm from a white man was not among her preferences.
However, on August 25, 2019, Edna gave birth to a mixed-race child. From the colour of the child, she was certain that NMC’s personnel had either deliberately inseminated her with the wrong sperm or perhaps made a mistake.
She sought answers and subsequently sued the fertility centre, demanding compensation for the distress caused and breach of contract.
In her case, before the magistrate’s court, Edna complained that NMC had acted against her written instructions.
She accused the facility of failing to scrutinise the donor samples for any pre-existing illness, which resulted in a child who did not meet her specifications and who had a medical condition.
On the other hand, NMC used contract law to oppose the case. It argued that since Edna had taken more than three years to sue, her case was a violation of Section 4 of the Limitations of Actions Act. The law prohibits a person from pursuing negligence beyond the three-year grace period.
It pegged its case on the period from when she gave birth on August 25, 2019.
However, in response, Edna stated that the clock would only start counting from the time either fraud of mistake is discovered.
Milimani Commercial Court magistrate Becky Mulemia Cheloti agreed with NMC and struck out the case.
Aggrieved, Edna moved to the High Court. In her appeal, she raised six issues which she felt the magistrate did not consider.
In her appeal, she said that the period to sue started running on June 16, 2021, when she discovered there was a mistake. According to her, the case was filed on August 29, 2023, which he asserted was less than three years.
She said the discovery that she got the wrong sperm came through a DNA test.
According to her, the case was about the concealment of information by the personnel and breach of contract, where the facility failed to give her specific fertility treatment services with donor specifications.
On the other hand, the facility insisted that the case was solely anchored on alleged negligence.
After hearing the rival submissions, the judge said that a law on IVF would solve the issues that individuals seeking to get children through the process encounter.
“This court notes that the proposed Bill would introduce provisions addressing the timing of the accrual of causes of action in ART cases, recognising that in matters involving the birth of a child following fertility treatment, the full extent of the harm or breach may only become apparent years after the treatment was administered,” she said.
Edna is among the growing voices of discontent following IVF. There are three different cases where clinics have been sued over the colour of the child and twins who were allegedly totally different from each other, and what their mother wanted.