TWO CHILDREN born with darker skin than their parents following a mix-up in donor-assisted IVF treatment were not entitled to an award for damages, the Northern Ireland High Court has ruled.
A judge found the children were not owed a duty of care during the fertilisation process, and had no legitimate expectation other than to be born healthy and well.
Their parents sued an unnamed health and social services trust for alleged negligence in the insemination, which they said led to racial taunting and emotional distress.
Instead of using a white donor as desired, the mother’s eggs were inseminated with sperm labelled Caucasian (Cape Coloured) – a label given to a mixed-race community in South Africa’s western Cape.
The court heard that the children were darker in complexion than their parents and also markedly different from each other. They had been subjected to abusive and derogatory name-calling from other children, and comments about the difference between them and their parents, and to the children questioning whether they had been adopted.
The mother of the children, who cannot be identified, had issued claims on their behalf for personal injuries, loss and damage against the trust that provided her IVF treatment. The trust said the sperm used in the case was not mislabelled, but that a correct label was misunderstood by a staff member.
After hearing the case in private, Mr Justice Gillen said yesterday: “The court is thus being asked to venture into the complexities of the creation of life, involving a unique physical and scientific process and to develop the law to deal with an instance where harvested eggs were fertilised with what has been termed inappropriate donor sperm.”
He said it was for parliament to “grasp the nettle” of whether a duty of care ought to be owed in circumstances such as the case before him. “Absent the imprimatur of parliament I am not content to find that these plaintiffs have sufficient status to be owed a duty of care,” the judge ruled.
Mr Justice Gillen acknowledged the authority had already admitted liability to the parents and was willing to negotiate settlement. He also stressed that their current circumstances “could not fail to engage both sympathy and concern”.
But despite the perception of how their children had suffered, the judge said: “The presence of persons sufficiently misguided and cruel as to issue racist comments directed to these children is no basis for a conclusion that they are somehow damaged.”
After dismissing the claims for the children, who were the plaintiffs in the case, the judge ruled that anonymous details of it could be published.
“I believe the issue of IVF – a subject on which differing views are held by the public at large – and the general context of what has happened in this instance, are matters of general public interest on which I should give effect to the right of the press to freedom of expression.”