A woman whose child was born from
the wrong donor sperm has won the right to sue a fertility clinic.
JW consulted NMC Fertility (K) Limited in Nairobi on November 17, 2018, for intrauterine insemination, providing specific donor specifications including race.
But when the child was born on August 25, 2019—of mixed race—she accused the clinic of acting contrary to those specifications.
“She further alleged that the respondent acted contrary to her specifications, failed to scrutinise donor samples for pre-existing illnesses and as a result, she gave birth to a child whose race did not meet her specifications and who has a medical condition,” the court heard.
In June 2021, JW conducted a DNA test, confirming the child was of mixed race and filed her suit on August 30, 2023—less than three years later.
“The appellant sought general damages for distress and psychological suffering, as well as damages for breach of contract and punitive and exemplary damages.”
The clinic had argued that actions founded on tort must be brought within three years, meaning the lawsuit should have been filed within three years from the date the wrongdoing happened.
“The appellant delayed in asserting her rights within the prescribed timeline and led the suit in the lower court on August 30, 2023 without leave and without giving any reasonable explanation as to the delay given,” the respondent contended.
The trial court sided with the clinic and dismissed her suit as statute‑barred, ruling that time started running at insemination or birth.
JW appealed.
In its defence, the clinic argued that the law allows no exceptions for missing the filing deadline. In its legal submissions, the clinic claimed the mother’s attempt to extend the deadline based on a later-discovered mistake was a gross “miscomprehension on these no-brainer provisions of the law".
The clinic insisted that the lawsuit was strictly a case of medical negligence—not fraud or mistake—meaning the legal clock had run out regardless of when she received the DNA test results.
Justice Asenath Ongeri in delivering her ruling, said the dispute was a hybrid claim involving a clear breach of contract, which carries a six-year limitation period.
“The appellant expressly pleaded breach of contract and the relationship between the appellant and the respondent arose from a consensual arrangement whereby the appellant contracted the respondent to provide specific fertility treatment services with particular donor specifications,” the judge said.
“The respondent’s alleged failure to adhere to these specifications, including the race of the donor and the screening for medical conditions, constitutes a fundamental breach of the implied terms of the contract for medical services.”
In regard to the clinic's assertion that the feud was based solely in negligence, the judge said:“The appellant’s pleadings, while primarily framed in negligence, also allege that the respondent acted contrary to her specifications regarding the donor’s race.
“The act of using a donor of a different race than the one specified by the appellant, without disclosure to the appellant, constitutes a mistake, at the very least and arguably amounts to fraudulent misrepresentation.”
Justice Ongeri emphasised that the true nature of the clinic's failure could not have been verified by the mother until scientific confirmation was available.
“The child’s race may not have been immediately apparent at birth and the appellant may have harboured doubts that she could not confirm without scientific testing,” Ongeri said.
“The respondent, as a fertility clinic, held itself out as possessing specialised knowledge and expertise in assisted reproductive technology. The appellant relied on the respondent’s representations that it would comply with her donor specifications.”
The judge observed that existing law is ill‑suited for assisted reproductive technology disputes, which involve complex medical and personal dimensions.
She said the proposed Artificial Reproductive Technology Bill would fundamentally change this landscape by introducing tailored standards of care, donor screening, disclosure obligations and specific rules for when a cause of action accrues.
Consequently, the court urged Parliament to expedite its passage.
“For now, however, the existing law, properly interpreted, permits the appellant’s claim to proceed to trial, where the truth of her allegations can be tested through evidence.”
