IVF children not owed duty of care after mix-up


Two children born with darker skin than their white parents following an IVF treatment mix-up were not owed a duty of care during the fertilisation process, the High Court has ruled.

Their parents, sued an unnamed Health and Social Services Trust for alleged negligence in the insemination.

They claimed the mix-up, led to racial taunting and emotional distress.

A judge also ruled they were not entitled to an award for damages.

Mr Justice Gillen said the children, who cannot be named for legal reasons, also had no legitimate expectation other than being born healthy and well.

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 a South African province.

One potential implication is that a child born to a white person from such a donor may go on to have different skin-coloured children themselves if they have a mixed-race partner.

After hearing the case in private Mr Justice Gillen said: "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 that which 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.

The mother of the children had issued claims for personal injuries, loss and damage against the trust who provided her IVF treatment.

The court heard the children are darker in complexion than their parents and of different skin colour.

Their colour was also said to be markedly different from each other.

It was claimed they have been subjected to abusive and derogatory name calling from other children, and comments about the difference between them and their parents.

It even led to the children questioning whether they were adopted.

The trust stated that sperm used in the case was not mislabelled, but that a correct label was misunderstood by a staff member.

'Sympathy and concern'

In his ruling, Mr Justice Gillen acknowledged the authority has already admitted liability to the parents and is 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.

"I have therefore come to the view that these children have not suffered any legally recognisable 'loss or damage' connected to the alleged breach by the defendant."

After dismissing the parents' claims, the judge ruled that anonymous details of the case 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," he said.

"Ordering that the court file be sealed and that there should be no publication of any account of the pleadings or the determination of this case would be a step too far.

"I am not persuaded that general discussion of the issues in this case will afford any disturbance of confidence in the IVF service or lead to irresponsible investigative journalism."