Parents sued a health and services trust after a mix up during insemination

The Irish parents of two children in Northern Ireland who were born with darker skin than their parents after a mix-up in IVF treatment are not entitled to damages, the Northern Ireland High Court has ruled.

Despite verbal attacks, the judge ruled  “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.”

The parents sued a health and services trust after a mix up  during insemination which resulted in their children being born with the darker skin. The Northern Irish parents say that the mix up led to racial taunting and emotional distress.

The mix up occurred during IVF treatment when the white mothers eggs were mistakenly inseminated with sperm labeled Caucasian (Cape Colored) which is a mixed-race community in South Africa's western Cape.

The court was told that the children have darker complexions than their parents and are also markedly different from each other. According to their parents the children have been subjected to abusive and derogatory name-calling from their peers. The racial abuse has led the children to question whether they had been adopted.

The mother who cannot be identified had taken the case on the children’s behalf against the trust that provided the IVF treatment. She had also issued a claim for personal injuries, loss and damages. The trust denied that the sperm was mislabelled but insists that a correct label must have been misread by a staff member.

Commenting on the case yesterday 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 what has been termed inappropriate donor sperm.”

After hearing the case in private the judge ruled: “Absent the imprimatur of parliament I am not content to find that these plaintiffs have sufficient status to be owed a duty of care.”

He noted that the Trust had admitted liability to the parents and was will willing to negotiate settlement. He empathized with the couple when he said that their current situation “could not fail to engage both sympathy and concern”.

After Mr Justice Gillen dismissed the claims for the children he ruled that anonymous details of the case could be published as a matter of public interest.

“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.