Family lose IVF mix-up appeal
Two children born with darker skin than their white parents after an IVF treatment mix-up are not entitled to damages for alleged negligence, the Court of Appeal has ruled.
Senior judges dismissed their personal injuries claim brought against an unnamed Health and Social Services Trust in Northern Ireland as they have suffered no disability in law.
They backed an original High Court finding that the children, who cannot be identified, were not owed a duty of care during the fertilisation process other than to be born healthy and well.
Dealing with the alleged negligence, the Court of Appeal considered whether a duty of care existed to the children and, if so, whether there had been any breach.
Lord Justice Girvan declared that the claim must fail as the children have a healthy existence, having been born successfully and cannot point to any physical or mental defect as a result of the process.
The judge stressed: “Having a different skin colour from the majority of the surrounding population and their parents cannot sensibly be regarded as damage or disability.”
He added that abuse directed at the children because of their skin colour is due to the “boorish and unacceptable behaviour” of others.
Lord Justice Girvan added: “In the pluralistic, compassionate and tolerant society in which we aspire to live there should be no room for such behaviour which flows from the inability of some to tolerate differences in others.
“In the imperfect world in which we do live there will inevitably be some who make unpleasant comments in relation to differences in others, whether it be in respect of skin colour, religion, the colour of an individual's hair, the clothes they wear or their family background.”
Story so far
The parents sued for alleged negligence in the insemination which they said led to racial taunting and emotional distress. Instead of using a white donor as desired in IVF treatment in 2003, the mother's eggs were inseminated with sperm labelled Caucasian (Cape coloured) — a label given to a mixed-race community in South Africa. The result was that the children had a different skin colour to their parents and each other.