Surrogate parents seek protection of court, release of three children

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A lawyer and two couples have sought the court’s protection against the Directorate of Criminal Investigations (DCI) and the Director of Public Prosecution (DPP).

Kevin Mogeni, Myra IVF Medical Centre, and two couples, codenamed SD and AN, and JAT and BMN, argue that the police are abusing their powers by taking away three minors and carting away medical records surrounding minors born through the assisted birth process.

The court heard that the officers from the Directorate of Criminal Investigations (DCI) also arrested SD while she was returning to London on February 6, confiscated her travel documents and phone before releasing her.

It also emerged that the officers directed that SD’s child, who was at Bristol Hospital in Utawala, should not be released.

At the heart of the battle is Dr. Sarita Shukhija, who has separately been sued by parents who are not pleased about the colour of the DNA of children born through surrogacy.

The DCI moved to the magistrate’s court and asked that they be allowed to access documents from Myra Clinic, Shukhija, SD, JAT, NL, and Mogeni and Company Advocates. This was in relation to the birth of three minors, two of whom are twins.

Mogeni also said that the police were also interested in documentation of how his clients became parents through the court process.

He stated that the minors have been legally handed over to the parents and should not be taken through difficulties.

“The surrogacy process was undertaken by the third, fourth, and fifth petitioners, and children JJOT, TDOT, and SN were born out of surrogacy and were in the custody of the intended parents. All documentation supporting the surrogacy process is available contrary to the child trafficking allegations advanced by the first respondent (DCI),” argued Mogeni.

In her supporting affidavit, Purity Makori, a lawyer who represented the trio in the surrogacy process, argued that the police had obtained far-reaching orders from the magistrate’s court and produced orders without a signature.

She said she visited her home and took her to the Kiambu Road-based headquarters, and later took her mobile phone.

At the same time, she said, they went to Myra Clinic and carted away computers and patients’ files.

She stated that the police took away the twin children to an unknown location.

“The children taken away from the fifth petitioner are five-month-old twins, all born by way of surrogacy. At the time, the fifth petitioner had already moved to court and obtained court orders where the court, on October 23, 2024, granted the fifth petitioner legal and actual custody of the minors, and all the action of taking the children away contravened the court orders,” she said.

In the children’s case, JAT and NO indicated that the surrogate, BMN, had relinquished her rights, adding that they had taken a DNA test, which confirmed that they were linked genetically.

 “We currently work for gain in the United Kingdom and can confirm that we are fully able to take care of the minors’ needs,” the application reads in part.

They want the court to find that the move by the DCI is unreasonable and unconstitutional. At the same time, they are seeking orders that the decision to search and seize their gadgets, and being taken to DCI, was illegal.

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

Parliament tried to come up with a law on surrogacy in 2014. The then Taita Taveta Woman Rep Joyce Lay seconded a motion on the Assisted Reproduction or In-Vitro Fertilisation (IVF) Bill 2014.

Then there is Kenya’s Assisted Reproductive Technology (ART) Bill, 2022, which was sponsored by Suba North MP Millie Odhiambo.